AI Structured Summary
Not yet generated for this judgment
Judgment
J.P. Singh, J.—Claiming consideration for selection and appointment as Junior Engineer (Civil) in the Public Works Department of the State,
the petitioners, who are stated to be Degree-holders in Civil Engineering from various recognized Engineering Colleges and belonging to the
Scheduled Caste Category, had approached this Court on an earlier occasion in SWP No. 1800/2004 seeking relief's which reads thus:
(a) Writ of mandamus commanding upon the respondents to fill up all existing and backlog vacancies of junior Engineers (Civil) in addition to the
vacancies advertised vide Notification No. 03 of 2004 dated 14-09-2004 in the same selection process.
(b) Further writ of mandamus commanding upon the respondents to conduct the selection process for all the existing and backlog vacancies for the
posts of Junior Engineer (Civil) in ST and SC;
(c) Further writ of mandamus commanding upon the respondents to select and appoint the petitioners as Junior Engineer (Civil) in view of their
eligibility and merit in their respective categories.
During the pendancy of this writ petition, the Jammu and Kashmir State Subordinate Services Recruitment Board issued its advertisement notice
No. 03 of 2004 dated 14-09-2004 inviting applications for selection and consequent appointment against 256 posts of Junior Engineers, break-up
whereof indicated, inter alia, twenty one (21) posts against the Scheduled Caste Category. The petitioners, therefore, in view of the issuance of
aforementioned notification, withdrew SWP No. 1800/2004.
Yet another notification appears to have been issued by the Board vide its advertisement notice No. 04 of 2005 dated 14-09-2005 inviting
applications from eligible candidates, inter alia, against twenty one (21) reserved posts of Junior Engineers for the Scheduled Caste Category. It
was followed by another advertisement notice No. 08 of 2005 dated 29-11-2005, inviting applications from eligible candidates for twenty (20)
posts of Junior Engineers (Civil) against Scheduled Caste Category. The closing date for filing applications in terms of this last notification of the
Board was 12-12-2005. This notification specifically provided that it had been issued in continuation to earlier notice No. 03 of 2004 dated 14-
09-2004 and 04 of 2005 dated 14-09-2005.
It was during the process of finalization of the selection process for the posts of Junior Engineers (Civil) that the petitioners filed this writ petition,
claiming PREFERENCE and WEIGHTAGE in selection against the reserved category posts of Junior Engineer (Civil), urging that delay on the
part of the Board in holding selection, when the first notification had been issued, had expanded the area of competition, which, according to them,
entitled them to Preference and Weightage in selection.
The petitioners, therefore, seek a command of the Court to the respondents for providing them PREFERENCE on the basis of batch-seniority
in reference to advertisement notice Nos. 03 of 2004 dated 14-09-2004, 04 of 2005 dated 14-09-2005 and 08 of 2005 dated 29-11-2005.
An interim order was issued at the motion hearing stage restraining the Jammu and Kashmir Services Selection Board not to issue the select list.
This interim order was later clarified on April 13, 2007 when while dismissing the applications of the interveners belonging to the categories other
than Scheduled Caste for their impleadment as party respondents, it was provided on the concession of learned Counsel for the petitioners that the
interim direction issued by the Court would apply only to the vacancies reserved for the Scheduled Caste Category. It was noticed in the interim
order that the Jammu and Kashmir Services Selection Board had issued select list of candidates for the posts of Junior Engineers, which was
published in the newspaper on 17-04-2007.
Keeping in view the urgency projected by the interveners selected against the Scheduled Caste Category and the respondents to the writ
petition, the whole matter was taken up for motion hearing.
Learned Counsel for the parties and those appearing in Civil Miscellaneous Petition Nos. 920/2007, 934/2007, 935/2007, 963/2007,
964/2007, 965/2007 and 968/2007 were heard in detail.
Learned Counsel appearing for the writ petitioners, Mr. Sethi submitted that the vacancies notified by the Jammu and Kashmir Subordinate
Services Recruitment Board were ""Backlog"" vacancies of various years starting from 2001 the right of consideration against these Backlog
vacancies would thus be available only to those Scheduled Caste Category candidates who were eligible at the time when these vacancies had
became so available.
Elaborating his submission, learned Counsel submits that competition against the vacancies which had been notified in the first notification could
only be amongst those who were eligible at the time of the notification and like wise only those who were eligible in terms of the subsequent
notifications would alone be eligible to compete for the posts of Junior Engineers, so notified. Learned Counsel, therefore, in short, submits that all
the vacancies notified in the three notifications could not be clubbed by the Board, seeking competition amongst those who were eligible in terms of
the third notification. Reliance has been placed on the latest judgment of Hon'ble Supreme Court of India reported as Vijay Singh Charak v. Union
of India and Ors. 2007 (1) SC 19 : AIR 2007 SC 15021
Mr. S.K. Shukla, learned Counsel for the Board, submits that the petitioners, having competed in the selection process and taken chance of
being selected against all the vacancies reserved for Scheduled Caste Category candidates, have no right to stall the selection process mid-way to
seek Preference, which, according to the learned Counsel, was neither contemplated by the Recruitment Rules nor by the Advertisement Notices
issued by the Board in this behalf. Omission of the petitioners to question the notifications, estops them to maintain the writ petition, which,
according to the learned Counsel, was even otherwise premature at the time when it was filed and had by efflux of time become infructuous with
the issuance of the select list by the Board.
Mr. S.C. Gupta, learned Additional Advocate General, reiterating the submissions made by Mr. Shukla, opposed the maintainability of the writ
petition, saying additionally that Preference cannot be claimed as of right and delay on the part of an employer to fill-up the existing vacancies,
cannot create any preferential much less an enforceable right in a candidate to seek a command against the employer to fill up the vacancies as and
when those had arisen regardless of the constraints because of which the employer may not, in the exigencies of administration, elect so to do.
Mr. U.K. Jalali, learned Sr. Advocate and M/S K.S. Johal and Shahzad Azeem, Advocates, appearing for the petitioners in applications
seeking impleadment of those who had been selected by the Board against Scheduled Caste Category posts of Junior Engineers, and vacation of
interim order issued by this Court, pursuant whereto, the Board had put the selection process to hold, while adopting the submissions made by
learned Counsel for the Board and State, additionally urged that the vacancies advertised by the Jammu and Kashmir Subordinate Services
Recruitment Board were not Backlog vacancies strict-o-senso in terms of the Jammu and Kashmir Reservation Rules, 1994 and neither the
Recruitment Rules nor the Reservation Rules notified vide SRO126 of 1994 support the plea of the writ petitioners that the vacancies arising in a
particular year were required to be filled-up only from amongst those candidates who had become eligible in the year/s when the vacancies had
become available.
Learned Counsel for the respondents and petitioners in the CMPs have placed reliance on J and K. Public Service Commission, etc. Vs. Dr.
Narinder Mohan and others etc. etc., and Sanjay Kumar and Others Vs. Narinder Verma and Others, .
I have considered the submissions of learned Counsel for the parties to the writ petition as also those appearing in the Civil Miscellaneous
petitions, seeking impleadment and vacation of interim order.
Writ Petitioners' plea that recruitment to the existing Scheduled Caste Category vacancies was available only to those candidates who had
become eligible in the year when the vacancies became so available, and, the Recruitment Board could not club all the vacancies which had arisen
in the subsequent years with the existing vacancies and thereafter go in for selection, providing chance of competition to all those candidates who
were eligible at the time of issuance of the last Notification, appears to be misconceived. This is so because neither the Recruitment Rules nor the
Rules framed by the Jammu and Kashmir Subordinate Services Recruitment Board for selection of candidates envisage such a mode of selection
as is projected on behalf of the writ petitioners. The reservation rules too do not contemplate any such restriction, still less preference in selection.
In the absence of any Statutory Rule or, for that matter, any administrative instruction or guidelines on the subject, no restriction on the power and
authority of an employer to extend the area of competition by clubbing the vacancies for the purpose of selection and appointment may be
justifiablal.
To define the area of competition for selection and appointment is the exclusive province and domain of the employer. Any impediment or
restriction on such right of the employer would be fraught with grave consequences, which may not be conducive to the accepted principles of
service jurisprudence and concept of master and servant relationship. It is the prerogative of an employer, rather than that of a candidate to
prescribe terms and conditions of competition and employment, No candidate, desirous of seeking selection and appointment may be conceived to
have any right to compel his perspective employer to devise mode of selection and appointment as suggested by him. Likewise, a candidate
desirous of seeking selection for appointment cannot desire, muchless demand a limited area of competition. The employer cannot be denied the
discretion to select its own time, method and manner it may chose to go in for selection and fill up the vacancies. No restriction on this right of the,
employer may be contemplated.
Preference cannot be claimed as of right by a candidate. The only right, which a candidate desirous of seeking selection has is the right of
participation and equal consideration in the matter of selection and appointment. It is the prerogative of the employer to consider grant or otherwise
of preference to such eligible candidates, who, in his opinion, may be entitled to such preference. Delay in filling up the vacancies cannot, in any
case, vest any right in a candidate to seek preference. Claim of preference, even otherwise, may not be agitated for adjudication before a Court,
exercising power and jurisdiction of Judicial Review.
In the absence of any right in the petitioners to seek preference or any corresponding obligation on the respondents to provide preference to
the petitioners, claim of the petitioners for issuance of a writ of mandamus is wholly misconceived.
Plea of the petitioners that clubbing of vacancies was impermissible too appears to be irrational. A candidate cannot compel an employer to go
in for selection when the vacancies become so available, denying him his discretion to club vacancies and thereafter seek competition amongst
eligible Candidates against the clubbed vacancies in one go or otherwise.
In any case/the question raised by the petitioner in the writ petition, is no longer res Integra and stands answered by a judgment of the Hon'ble
Supreme Court of India in Jammu and Kashmir Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors. where, dealing with the
similar question, Hon'ble Supreme Court of India held as follows:
It is difficult to accept the contention of Sh. Rao to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of
the candidates found eligible for the respective years. It would be fraught with grave consequences. It is settled law that the Government need not
immediately notify vacancies as soon as they arose. It is open, as early as possible; to inform the vacancies existing or anticipated to the PSC for
recruitment and that every eligible person is entitled to apply for and to be considered for his claim for recruitment provided he satisfies the
prescribed requisite qualifications. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application
for recruitment offending Articles 14 and 16.
In view of what has been said above and the law laid down by Hon'ble Supreme Court of India, no right may be said to have accrued to the
petitioners to seek selection in a limited area of competition, or, for that matter, any right to seek preference in selection.
I will now deal with the latest judgment of Hon'ble Supreme Court of India, which had been relied upon by the learned Counsel for the
petitioners.
Perusal of the judgment (supra) reveals that Hon'ble Supreme Court of India had not laid down any rule of General Application that select list
in all cases of selection had to be prepared every year and clubbing of vacancies for different years was impermissible. The law reiterated by
Hon'ble Supreme Court of India that vacancies arising in a particular year for the purpose of drawing the select list was impermissible, was only in
the context of Indian Forest Service (Recruitment) Rules, 1965 and Indian Administrative Service (Appointment by Promotion) Regulations, 1955.
A perusal of Regulation 5 of Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (as enforced in 1980), would
demonstrate that what had been held by Hon'ble Supreme Court of India was only referable to those situations where there was a specific rule
provided for drawing of select list in the year in which the vacancies had arisen. This Regulation, for ready reference, is quoted hereunder:
5.(1) Each Committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State Civil Service as are
held by them to be suitable for promotion to the Service. The number of members of the State Civil Service, include in the list shall not be more
than twice the number of substantive vacancies anticipated in the course of the period of twelve months, commencing from the date of preparation
of the list, in the posts available for them under Rule 9 of the Recruitment Rules, or 10 per cent of the Senior posts shown against Items 1 and 2 of
the cadre schedule of each state or group of States, whichever is greater.
(2) The Committee shall consider for inclusion in the said list, the cases of members of the State Civil Services in the order of a seniority in that
service or a number which is equal to five times the number referred in sub-regulation (1):
Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than five times the maximum
permissible size of the Select List and in such a case the Committee shall consider all the eligible officers:
Provided further than in computing the number of inclusion in the field of consideration, the number of officers referred to in Sub-regulation (3) shall
be excluded:
Provided also that the Committee shall not consider the case of a member of a State Civil Service unless, on the first day of January, of the year in
which it meets he is substantive in the State Civil service and has completed not less than eight years of continuous service (whether officiating or
substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government: Provided also that
in respect of any released Emergency Commissioner or Short Service Commissioner officers appointed to the State Civil service, eight years of
continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to
the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the
first day of January of the year in which the committee meets, in the post of Deputy Collector or in any other post or posts declared equivalent
thereto by the State Government. Explanation. - The powers of the State Government under the third proviso to this sub-regulation shall be
exercised in relation to the members of the State Civil Service of a constituent State, by the Government of that State.
(2-A)
* * *
(3) The Committee shall not consider the cases of the members of the State Civil Service, who have attained the age of 52 years, on the first day
of January of the year in which it meets:
Provided that a member of the State Civil Service, whose name appears in the Select List in force immediately before the date of the meeting of
the Committee, shall be considered for inclusion in the fresh list, to be prepared by the Committee, even if he has in the meanwhile attained the age
of 52 years:
Provided further that a member of the State Civil Service who has attained the age of 54 years on the first day of January of the year in which the
Committee meets shall be considered by the Committee, if he was eligible for consideration on the first day of January of the year or of any of the
years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during
such preceding year or years.
(4) * * *
(5) * * *
(6) The list so prepared shall be reviewed and revised every year.
(7) * * *
I am, therefore, of the view that principle laid down by Hon'ble Supreme Court of India cannot be applied to the facts of the present case
where no rule or regulation, or, for that matter, any administrative instruction issued in this behalf mandates against clubbing of vacancies, or d
rawing up of the select list every year.
That apart, the petitioners having chosen not to question notifications issued in the year 2004, when they first came to this Court in SWP No.
1800 / 2004 and the subsequent notifications issued thereafter in which it had been specifically mentioned that the notifications were being issued in
continuation to earlier notifications, and rather seeking consideration after the issuance of notification No. 08 of 2005 dated 29.11.2005, estops
them to question the selection process and seek preference in selection at this belated stage when the selection process had been completed and
select list issued during the pendency of the writ petition. '
For all what has been said above, I do not find any merit in the writ petition, which is, accordingly, dismissed.
In view of the dismissal of the writ petition, no orders are required to be passed in CMP Nos. 920/2007, 934/2007, 935/2007, 963/2007,
964/2007, 965/2007 and 968/2007 seeking impleadment and vacation of interim order These CMP's are, accordingly, disposed of.
With the dismissal of the writ petition, the interim stay issued by this Court on 5th of April, 2007 and modified on 13th of April, 2007 is also
vacated.
CMP No. 808/2007 is disposed of accordingly.