HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP no. 2223 OF 2011AND SWP 1067 OF 2012 AND SWP no. 2269 OF 2011 1. Khurshid Ahmed 2. Ruppali Phull 3. Abdul Rehman Petitioners 1. State of J&K and ors 2. State of J&K and ors 3. State of J&K and ors Respondent !Mr.P. N. Raina, Sr. Advocate with Mr. J. A. Hamal, Advocate Mr. H. L. Koul, Advocate Mr. Nitin Bhasin, Advocate ^Mr. Gagan Basotra, Sr. AAG Mr. F. A.Natnoo, Advocate Honble Mr. Justice Bansi Lal Bhat, Judge Date: 08.08.2013 :J U D G M E N T :
Since issue involved in all these three writ petitions is same, therefore, these writ petitions are disposed of by a common Judgement.
SWP no. 2223/2011 The petitioners competed in the Combined Competitive Examination in 2009 under Schedule Tribe category. First merit list was issued by respondent no. 3 2 on 25th March, 2011. Petitioners did not figure in the list of selected candidates, but figured at serial no. 1 and 2 of what is customarily known as wait list. Thus they were next in order of merit, after final selection cut off marks. Petitioners and others figuring in the waiting list approached respondent no.2 with an application dated 29th September, 2011 requesting for information regarding consideration of candidates in the waiting list. Respondent no. 2 supplied the information which revealed that 11 posts had fallen vacant on account of non-joining / resignation apart from one more request for acceptance of resignation of a candidate appointed under Schedule Tribe category as he had been appointed to IAS and allotted Indian Forest Service. Out of these vacancies, in regard to two posts belonging to Schedule Tribe category, petitioners are aggrieved of their exclusion/ non-consideration from recommendation and appointment to the services at the hands of respondents.3
SWP no. 2269/2011 The petitioner competed in the Combined Competitive Examination, 2009 under RBA Category. Petitoner did not figure in the list of selected candidates, though he was on tie with the last selected candidate with 1050 marks under RBA category and now stands as first waiting under RBA category. It is contended that respondents have provided information under right to Information Act to some aspiring candidates for appointment under the waiting list that 11 vacancies have fallen vacant due to non-joining/resignation of the selected candidates out of which one vacancy belongs to RBA category. The grievance of the petitoner is that the waiting list has not been operated by the respondents till date. It is further contended that one Mohd Farooq Shan, selected under RBA category and figuring at serial No. 212 in the Annexure 1 of the notification dated 10.02.2011, has not joined the service. Similarly one Satish Sharma figuring at serial no. 125 in the aforesaid annexure and Shams Ul Haq figuring at serial no. 134 in Annexure II of the Notification dated 10.02.2011, selected 4 under RBA category, have resigned after joining the service. Thus, petitioner being next in the order of merit after the last selected candidates under RBA category has a right of consideration for selection and appointment.
SWP no. 1067/2012.
The petitoner competed in the Combined Competitive Examination 2010 in the open merit category. Result of Combined Competitive Examination 2010 was issued vide Notification dated 02.09.2011, wherein petitioner figured at serial No. 270 having obtained 1220 marks (Annexure I). Thereafter select list of 182 candidates was issued vide Govt. Order No. GAD (Ser)/GEN/277/2009 dated 13.04.2010.Though 189 posts were referred by respondent no. 3-Public Service Commission, but only 182 candidates were selected/appointed and the remaining posts remained unfilled till date. It is contended that last selected/appointed candidate in open merit category has obtained 1220 marks among the four candidates securing 5 same marks i.e. 1220 marks. Out of the four candidates in the open category, two candidates namely Sourav Prashar figuring at serial No 169 and Jatinder Goswami figuring at serial no. 259 have been appointed. Thus Petitioner figures at serial No. 1 or 2 of what is customarily known as wait list i.e. next in order of merit after final selection cut off marks. Petitioner approached respondent no. 3 for her consideration against the availability of seven unfilled posts and also against two posts which had fallen vacant due to the non-joining of two candidates, namely, Vijay Kumar figuring at serial no. 24 under J&K Accounts (Gazetted Services) and Jatinder Goswami figuring at serial No. 56 under Jammu and Kashmir Police (Gazetted) Services from open merit category.
Respondent no. 3- has filed objections contesting the petition on the ground that under SRO 387 of 2008, governing Jammu and Kashmir Combined Competitive Examination, there is no provision for maintenance of a waiting list or for recommending candidates against non- joining of the posts by the candidates; that it is for the 6 Government to inform the Commission about the candidates who have not joined and on specific request from the Government to recommend the candidates against such posts. In regard to interim direction to consider the claim of the petitioners for recommending their names to respondents no. 1 and 2 against vacancies under Scheduled Tribe category having fallen vacant due to the non-joining of the candidates, respondent no. 3 pleaded that the interim direction had been conveyed to General Administration Department for initiating proper action.
In SWP no. 2269 of 2011 respondent no. 2 has pleaded that it is the prerogative of the appointing authority to take a decision on the operation or otherwise of the waiting list; that there was no provision in the Combined Competitive Examination Rules for preparation of the waiting list; that respondent no. 2 being the Cadre Controlling Authority is not under an obligation to operate waiting list against vacancies having occurred due to non-joining of selected candidates; that such vacancies are to be referred to the Commission for being 7 filled up through the conduct of subsequent examination. It is further contended that no waiting list has been prepared by respondent no. 3 in the instant case. Mr Gagan Basotra, learned AAG, filed the reply in SWP no. 2223/2011.Same was adopted in SWP no. 2269/2011 as well.
Heard rival sides and perused the record. Adverting to SWP no. 2223/2011 , the petitioners therein competed in the Combined Competitive Examination 2009. They were placed next to the selected candidates in order of merit i.e., immediately after the final selection cut-off. Thus they figured at serial no. 1 and 2 of the wait list under Scheduled Tribe category. One of the selected candidates namely Raj Kumar, who figured in the select list of KAS Officers, was working as Munsiff Qazigund. He continued to work as such and vacancy caused by his non-joining out of Scheduled Tribe category remained unfilled. Another selected candidate namely Shahzad Choudhary requested for ab-initio cancellation of his joining report as Deputy Superintendent of Police because he had joined as Assistant Conservator of 8 Forests. His joining report was permitted to be cancelled. This resulted in occurring of vacancies. Petitioners have also referred to the proceedings of Legislative Council where, in reply to a question on the floor of the House, Government is stated to have expressed itself in favour of operating the waiting list of KAS for the year 2009. The factual position noticed hereinabove has not been disputed. The only question for consideration is whether respondents are bound to operate the waiting list, recommend and appoint petitioners against the vacancies which occurred on account of non-joining of the selected candidates under the Schedule Tribe category. It is true that the General Administration Department, being the Cadre Controlling Authority of KAS/KPS, has the prerogative to operate the merit list below cut-off marks. However, such prerogative cannot be exercised arbitrarily, to the detriment of public service and the career of candidates who may become ineligible for competing in the next Combined Competitive Examination on account of being overaged. Interest of State as also those of the candidates on the verge of 9 becoming overage should be the main consideration weighing with the authorities in making recommendations for filling up of the vacancies which occurred on account of non-joining of selected candidates. Situation is, however, different in case of those candidates who after joining submit resignation thereby quitting the service for whatsoever reasons. Vacancies that occurred on account of resignation of selected candidates after joining the services have necessarily to be referred to Public Service Commission for being filled up through the next Combined Competitive Examination. While it cannot be denied that the operation of waiting list would create some problem on account of re-allocation of services of selected candidates who may have undergone training for being inducted into services allotted to them, the problem can be resolved by allocating left-over positions in the different services lying vacant to the candidates recommended from the wait list.
In my considered opinion, absence of provision in the Recruitment Rules for maintaining a wait list does not justify reference of vacancies, remaining unfilled on 10 account of non-joining of selected candidates, to Public Service Commission for being filled up by initiating fresh process of Combined Competitive Examination. Such a course is detrimental both for the service as well as for the candidates who barely fall short of the cut-off marks. My view is forfeited by the judgment of Honble the Apex Court in B.S. N. L. and ors v Abhishek Shukla and anr 2009 AIR SCW 3075.
In view of the aforesaid discussion, objections filed by respondents are over-ruled. Since petitioner no. 1 has been selected in the J&K Combined Competitive Examination 2011-12, the writ petition has been dismissed to that extent. Thus only petitioner no.2 is found entitled to relief claimed in the petition. Respondents 1 and 2 are directed to consider filling up of the vacancy caused on account of non-joining of a selected candidate under Schedule Tribe category and offer appointment to petitioner no.2 in the left-over position in any available service.
Same ratio will apply to petitioners in the other two connected writ petitions.11
In SWP no. 2269/2011 petitioner stands as first waiting under RBA category and, is found entitled to consideration for appointment against the vacancy caused due to non-joining of Mohd. Farooq Shan. In SWP no. 1067/2012 petitioner is found entitled to consideration for being appointed either against the availability of seven unfilled posts or against one of the two posts which had fallen vacant due to the non-joining of two candidates namely Vijay Kumar and Jatinder Goswami.
Respondents no. 1 & 2 shall accord consideration to the appointment of petitioners accordingly. Let this exercise be completed within a period of one month from the date a copy of this order is made available to the respondents by the petitioners.
These writ petitions are disposed off accordingly. (Bansi Lal Bhat) Judge Jammu 08.08.2013 Bir