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Judgment
In these Intra Court appeals, the appellants have assailed the validity of order dated 15.05.2009 passed by the learned Single Judge in SWP No.
2133/2001 to the extent it set aside the selection of the appellants as Lecturers in the Zoology Department and various other disciplines. Since
common questions of law and facts arise for consideration in this bunch of Appeals, they were heard analogously and are being decided by this
common order. In order to appreciate the appellants’ grievance, few facts need mention, which are stated infra. For facility of reference, the facts
from LPASW No. 77/2009 are being referred to.Â
A Notification dated 01.08.1997 was issued by the Public Service Commission inviting applications for the posts of Lecturers in the Higher
Education Department in as many as 10 subjects, such as, English, Physics, Chemistry, Botany, Zoology, Electronics, Geography, Mathematics,
Statistics and Sociology. Initially 14 posts of Lecturers were advertised in the Zoology department, which were later on increased to 32. Thereafter,
another notification dated 31.12.1997 was issued, by which two more subjects were added, namely, Persian and Arabic and accordingly, the number
of the posts were also increased. In response to the aforesaid notification, the appellants had participated in the process of selection and their names
were kept in the waiting list. Â
The State Government had taken a policy decision vide Government order No. 22-HE of 2000 dated 09.02.2000 to operate the waiting list in all the
subjects referred in the preceding paragraph. In the Zoology Department, there were 20 posts in General Category, 6 in RBA, 3 in Scheduled
Caste, two in Scheduled Tribe and one in ALC category. The State Government vide order No. 34-HE of 2001 dated 01.02.2001 appointed 24
persons from the waiting list. Vide another Government Order dated 29.06.2001, five persons were appointed. Thus, originally only 32 posts were
advertised, but 29 candidates from the waiting list were appointed though in the different categories including the General Category. The
recommendations were also made in favour of the appellants by the Public Service Commission for their appointment on the post of Lecturers vide
communication dated 21.08.2000. However, despite assurance given to the appellants, their appointments were not made within a period of one
year. The appellants, therefore, filed SWP No. 1890/2001, in which the appellant sought operation of the waiting list in the department of Zoology in
view of the policy decision, which was taken by the State Government. The aforesaid writ petition was disposed of by a Bench of this Court vide
order dated 01.01.2000 with a direction to the official respondents to consider the case of the appellants in light of the policy decision taken by the
State Government. The aforesaid order was upheld in the Letters Patent Appeal. In pursuance of the order passed by this Court, the appellants were
appointed on the post of Lecturers vide Government order dated 31.01.2003. Admittedly, thereafter the appellants were promoted to the post of
Assistant Professors and Associate professors and are serving the department of Zoology for the past about 17 years. Similarly the appellants and
other candidates are serving in respective Department.
It is pertinent to mention here that respondent No. 2 & 3, namely, Dr. Bhavna Abrol and Dr. Arti Sharma filed SWP No. 438/2000, which was
allowed by a Bench of this Court vide order dated 13.06.2000 and permitted them to appear in interview. However in LPA, the said order was set
aside. Thereafter, the aforesaid respondents filed another writ petition, namely, SWP No. 2133/2001, in which the appellants herein were impleaded
as respondents No. 27, 28 and 15 respectively. In the aforesaid writ petition, the said respondents 2 & 3 sought quashment of the appointments of
the appellants. The learned Single Judge vide order dated 15.05.2009 allowed the writ petition and quashed the appointments of the appellants and
directed the Public Service commission to notify the vacancies within a period of four weeks and appellants were allowed to continue for a period
of four months. In the aforesaid factual background, the appellants have approached this Court.Â
Mr. K S Johal, learned senior counsel for the appellants in LPASW No.77/2009, submitted that the appellants were appointed to the posts of
Lecturers in pursuance of the Judgment dated 27.03.2002 passed in SWP No.2077/2001. Learned Single Judge has not taken note of the aforesaid
judgment, as the same was not brought to his notice. It is further submitted that in pursuance of the judgment passed by this Court on 31.01.2003,
orders of appointment of the appellants were issued. Being aggrieved, the State Government filed an appeal which was namely LPASW No.243/2003
which was dismissed as withdrawn on 04.06.2007. It is also submitted that the appellants herein in SWP No.2033/2007 which was filed by
respondents 2 and 3 were served by publication in daily Kashmir Times which has a very limited circulation in Jammu and the requirement of serving
by publication was not satisfied prior to passing of the order of serving appellants herein by publication, in the said writ petition. Therefore, the
appellants herein were proceeded ex parte. It is further submitted that the appellants were initially appointed as Lecturers and thereafter they have
been further promoted as Assistant Professors and Associate professors and are serving the department for past about 17 years. Therefore, in the
fact situation of the case, no interference is called for at the instance of the respondents 2 and 3 who could not qualify the examination. It is further
submitted that State can deviate from the advertisement and make appointment on the posts falling vacant, thereafter in exceptional circumstances
only or in an emergent situation and that too by taking a policy decision in that behalf which has been taken in the instant case. In support of aforesaid
submissions, learned senior counsel for the appellants has referred to decision of the Supreme Court in the case of Virender S. Hooda and ors. V.
State of Haryana and Anothers, (1993)Â 3 SCC 396, Prem Singh and ors. V. Haryana State Electricity Board and Ors, (1996) 4 SCC 319, Yallawwa
(smt) v. Shantavva (smt.), (1997) 11 SCC 159 and in the case of Jomu Kurian v. Siby and another, AIR 1998 Kerala 360.
Learned senior counsel, Mr. Sunil Sethi for the appellants in LPASW No.85/2009 as well as LPASW No.84/2009, while inviting the attention of this
Court to opinion of the Law Minister submitted that learned Single Judge did not take into account the opinion given by Law Minister. It is further
submitted that the learned Single Judge ought to have appreciated that the claim of the petitioner was considered for appointment in pursuance of
judgment passed by a bench of this Court. It is also submitted that respondents 2 and 3 had earlier filed a writ petition in which they had sought a
prayer for permitting them to appear in the interview. The aforesaid writ petition was allowed. However, the order passed in the writ petition was set-
aside by the Division Bench and, therefore, the respondents 2 and 3 cannot be permitted to re-agitate the issue. It is also submitted that learned Single
Judge has not appreciated the fact that on due consideration and in view of policy decision taken by the State Government, the appellants herein have
been appointed. It is also submitted that the anticipated vacancies can be filled up by taking a policy decision in this regard. It is further submitted that
learned Single Judge ought to have appreciated that in fact the writ petition was filed against a judgment passed by another learned Single Judge of
this Court and in fact the remedy of the respondents 2 and 3 was to seek the review of the judgment which was passed in favour of the appellants
herein pursuant to which they were appointed. Learned senior counsel in respect of LPASW No.85/2009 submitted that appellant in the aforesaid
LPA was appointed against the advertised vacancy as one of the candidates had resigned. In support of submissions, learned senior counsel has
referred to decision of the Supreme Court in the case of A P Aggarwal v. Government of Delhi (Ntc), 2000 AIR (SC) 205 and decision of this Court
in the case of Arun Gandotra v. State, (2014) 3 JKJ 559.
Mr. P N Goja, learned counsel for the appellant has adopted the submissions made by learned senior counsel for the appellants in the connected
writ appeals and has submitted that in LPA No.9900008/2009, a bench of this Court by an order dated 09.05.2002 directed the respondents 2 and 3 to
furnish the fresh particulars. However, the fresh particulars were not furnished and an application for substituted service was filed which was allowed
by a bench of this court on 09.03.2003 without recording satisfaction with regard to pre condition which is required to be fulfilled before directing
service by publication.
Mr. H A Siddiqui, learned Senior Additional Advocate General for the appellants in LPASW No.121/2009, submitted that the policy decision was
taken by the State Government to fill up the posts in respect of the 175 candidates and the respondents 2 and 3 who had participated in the process of
selection were not found even eligible for appearing in the interview by the Division Bench of this Court. It is further submitted that no interference is
called for at this point of time especially when the appellants herein have put in 18 years of service and have been promoted.
While opposing the submissions made on behalf made on behalf of appellants, learned counsel for respondents 2 and 3 submitted that in the year
1997, an advertisement was issued in which initially 14 vacancies were notified in Zoology which were later on enhanced to 32 and in the year 2001,
the appointments were made and the respondents 2 and 3 had filed the writ petition in the year 2001 itself. It is further submitted that the State
Government cannot make appointments on the post which were not advertised. It is further submitted that in the instant case without ascertaining
the requirement, a policy decision has been taken to fill up the posts in all the departments which suffers from the vide of non application of mind. In
support of the aforesaid submissions, reference has been made to the decision of the Supreme Court in the case of Madan Lal and others v. State of
Jammu and Kashmir and others, AIR 1995 SC 1088.
We have considered the submissions made by learned counsel for the parties and have perused the record. It is trite law that appointments to a
public post has to be made in consonance with Articles 14 and 16 of the Constitution. It is equally well settled legal proposition that normally the
number of posts which are advertised should be filled up and the excess appointments beyond the posts which have been advertised should not be
made and where advertisement gives liberty to the Government to vary the number of posts, such power cannot be exercised for filling up future
vacancies. It has further been held that judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions in
case the posts are filled up excess in number and in any case the Court cannot given any direction contrary to the statute or the rules made thereunder
in exercise of judicial discretion. (See: Anurag Kumar Singh and Others v. State of Uttarakhand and Others, 2016 (9) SCC 426). However, in the
aforesaid decision, the Supreme Court referred to the decision in the case of Prem Singh and ors. V. Haryana State Electricity Board and Ors, 1996
(4) SCC 319, wherein the Supreme Court while taking note of the ratio laid down in the case of Madan Lal and others v. State of Jammu and
Kashmir and others, AIR 1995 SC 1088 has held that selection process by way of requisition and advertised can be started for clear vacancies and
also for anticipated vacancies but not for future vacancies and the State can deviate from the advertisement by taking a policy decisioin in this regard.
In Virender S. Hooda and ors. V. State of Haryana and Anothers, 1993 (3) SCC 396, it has been held that when a policy has been declared by a State
as to the manner of filling up of the posts and the policy is not contrary to the rules , the appointments can be made. The aforesaid decision has been
referred to by the Supreme Court in the case of State of Jammu and Kashmir And Others, v. Sat Pal, (2013) 11 SCC 737 and Manoj Manu and
Another v. Union of India And Others, (2013) 12 SCC 171.
In the backdrop of the aforesaid well settled legal principles of service law, the core issue which arises for consideration in this bunch of appeals is
whether the action of recruiting agency in filling up anticipated vacancies in the fact sitaution of the cases is justified. Admittedly, before operating the
waiting list, the matter was referred by the Education Department to the Law Minister to give an opinion on 19.03.1997, the relevant extract reads as
under:
a) that in past waiting list has been made use of.
b) that waiting list in the present case was as a result of a stipulation in the very notice issued for recruitment. And there was nothing to suggest that
the same was confined to only vacancies referred to PSC and not of vacancies which would come into existence or become known during the period
of relevency of the PSC recommendation.
c) that it is this stipulation in the notice that has made present case different from one of Madan Lal referred to repeatedly by the Education
Department. The two are clearly distinguishable and had to be treated as such.
d) that in the present case, the select list including the waiting list component part of it was therefore available in the present case not only for the
vacancies referred to PSC but also to vacancies which would become available during the period of validity of selection namely one year after the
recommendation was made.
In the present case, waiting list is still alive and vitally so, vacancies are available and assuming them to be vacancies coming into existence after
the recommendation was made or in any case the reference was made to the PSC and there should be no difficulty/ hitch in making appointment of a
person on the waiting list.
Thus, from the opinion given by the Law Minister, it is evident that well considered decision was taken to fill up the anticipated vacancies on the
basis of a policy, pursuant to which appellants who were in the waiting list were appointed in the year 2000 as per their merit. In view of legal position
stated supra, such a course of action was available to the State Government. It is pertinent to note that the aforesaid decision is neither considered by
the learned Single Judge nor the same was challenged before the learned Single Judge.
The appellants were appointed in pursuance of the directions issued by this Court in various writ petitions. The aforesaid vital aspect of the matter
was not brought to the notice of the learned single Judge. It is also noteworthy that respondents 2 and 3 had earlier filed writ petition, namely, SWP
No.438/2000 in which they had sought the prayer to appear in the interview. The aforesaid prayer was granted by the learned Single Judge vide order
dated 13.06.2000. However, the order passed by the learned Single Judge was set-aside by the Division Bench in Letters Patent Appeal. In the
second round of litigation, the respondents 2 and 3, namely, Dr. Bhavna Abrol and Dr. Arti Sharma challenged the appointments of the appellants, on
the ground that the appointments have been made in excess of number of posts which have been advertised. It is pertinent to note that respondents 2
and 3, namely, Dr. Bhavna Abrol and Dr. Arti Sharma have failed in the process of selection in which the appellants were declared successful. It is
also noteworthy that the appellants by now have rendered 18 years of service and have been further promoted as Assistant Professors and Associate
Professors and are serving in respective departments for past about 18 years. Even if their appointments are quashed, in our considered opinion, at this
point of time, no relief can be granted to the respondents 2 and 3.
At this stage, we may refer to another aspect of the matter, namely, service of notice by publication. It is pertinent to mention here that learned
Single Judge while directing the service of notice by publication did not record any finding that the appellants herein were trying to evade service and it
was not possible to serve them by normal mode which is a sine qua non for directing the service by publication. The notice was public in daily Kashmir
Times in which particulars of the appellants, i.e., places of posting were also not mentioned despite specific direction issued by this Court in this regard
on 09.05.2002. Thus, the appellants were proceeded ex parte before the learned Single Judge and were deprived of an opportunity to defend
themselves.
A well considered policy decision has been taken to operate the waiting list by which 175 candidates have been appointed. The decision is not
confined in respect of the appellants herein alone. It is pertinent to mention that a Division Bench in somewhat similar circumstances by an order
dated 29.09.2009 had taken a similar view in SWP No.1724/1999 and had refrained from interfering with the appointments made in excess of number
of posts advertised. The aforesaid order passed by Division Bench of this Court was upheld by the Supreme Court vide order dated 03.02.2012 passed
in SLP (C) No.33556 of 2009. Similar view has also been taken by another Division Bench of this Court in the case of Arun Gandotra v. State, 2014
(3) JKJ 559. Admittedly, the policy decision taken by the State Government is not contrary to the rules and in the peculiar fact situation of the case, it
has become incumbent to strike a balance between the interest of the State and the public employment. Therefore, in view of well settled legal
position referred to supra, since the appointments of the appellants have been made in pursuance of a policy decision taken by the State Government
agaisnt the anticipated vacancies and not against the future vacancies which course is permissible in law and taking into account the fact that the
appellants have put in more than 18 years of service and have been further promoted as Assistant Professors as well as Associate Professors, we are
inclined to quash the order dated 15.05.2009 passed by the learned Single Judge. Accordingly, the same is quashed. In the result, the writ appeals are
disposed of along with connected MPs.