Sanjeev Kumar (Dr.) vs State of Jammu & Kashmir and Others

V.K. Jhanji, Chief Justice (Acting)

These two appeals under Clause 12 of the Letters Patent Rules have been filed against judgment dated 18th March, 2002 whereby the writ

petitions, being SWP Nos. 842/2000 and 666/2000, filed by the writ petitioners, appellants herein, have been dismissed by the Learned Single

Judge of this Court, up-holding the appointment of private respondents to the post of Lecturers in Paediatrics in the Jammu and Kashmir Medical

Education Department. By this common order, we proceed to decide the above two appeals.

In brief, facts of the case are that, vide notification No. 22-PSC of 1998 dated 12th October, 1998, the Jammu and Kashmir Public Service

Commission (hereinafter referred to as 'the Commission') invited applications for two posts of Lecturers, one each to be selected from amongst the

candidates belonging to Open Merit Category and Scheduled Caste Category, in the department of Paediatrics in the State Medical Education

Department. Among other things, it was stipulated that the candidates should possess two years' experience as Registrar/Tutor,

Demonstrator/Tutor or Senior Resident in the concerned discipline, i. e., Paediatrics. According to the appellants, they fulfilled all the conditions

and stipulations mentioned in the notification and applied through proper channel for the post of Lecturer under the Open Merit Category.

However, according to them, the Commission rejected their applications on the ground that they did not possess the requisite experience

prescribed in the notification. The appellants appear to have challenged the rejection of their application forms by the Commission through the

medium of two separate writ petitions, being SWP No. 1991/99 and OWP No. 1025/98. In pursuance of the interim direction dated 24th

November, 1998 passed by the learned Single Judge of this Court in the above writ petitions, the appellants (writ petitioners in the above two writ

petitions) were also interviewed. The Commission by notice 25th October, 1999 issued the select list. In the select list one Dr. Nazir Ahmad

Parray was shown to have been selected against the post of Lecturer under Open Merit Category. As regards the other post meant for the

reserved category of Scheduled Caste, the result in the select list was shown to have been withheld. In the waiting list three candidates, namely, Dr.

Muzaffar Jan, Dr. Ghulam Rasool and Dr. Ghanshyam Saini, were shown in order of merit. Pursuant to the select list, vide Government order No.

565-HME of 1999 dated 28th October, 1999, Dr. Nazir Ahmad Parray, selected under Open Merit Category, was appointed as Lecturer,

Paediatrics. Thereafter, vide a separate order, i. e. Government Order No. 211-HME of 2000 dated 24th April, 2000, Dr. Muzaffar Jan, Dr.

Ghulam Rasool Wani and Dr. Ghanshyam Saini, who figured in the waiting list, were also appointed as Lecturers Paediatrics in Government

Medical Colleges at Srinagar and Jammu. It may be mentioned here that the two writ petitions filed by the appellants, viz, SWP No. 1991/99 and

OWP No. 1025/98, were ultimately dismissed by the learned Single Judge by Judgment date 10th March, 2000 and the appellants did not file any

appeal against the aforesaid judgment of the learned Single Judge which, consequently, attained finality. However, aggrieved of the appointment of

the three candidates, namely, Dr. Muzaffar Jan, Dr. Ghulam Rasool Wani and Dr. Ghanshyam Saini, figuring in the waiting list, as Lecturers

Paediatrics, the appellants herein filed two separate writ petitions being SWP Nos. 842/2000 and 666/2000. The appellants challenged the

appointment of aforesaid three Lecturers Paediatrics mainly on the ground that the posts against which the said three candidates were appointed,

were never advertised by the respondent. It was contended by the appellants that, by the time these appointments were made, they had acquired

the requisite experience and that, had the three posts been advertised, they would have got an opportunity to compete in the selection process. The

petitioners contended that the Respondents by not advertising the three posts have violated their rights guaranteed under Articles 14 and 16 of the

Constitution. In SWP No. 842/2000, filed by Dr. Sanjeev Kumar, the appointment of Dr. Nazir Ahmad Parray, selected under the Open Merit

Category, was also challenged on the ground that he did not possess the requisite experience as prescribed in the notification and so his

appointment was also totally illegal. However, no factual foundation was laid in support of this plea to demonstrate that the said Doctor did not

possess the requisite experience. Accordingly, the appellants in their writ petitions prayed that the orders of appointment of these candidates be

quashed and the consequent vacancies be directed to be re-advertised so that all the eligible candidates could compete for the said posts.

On notice of the writ petitions, Dr. Nazir Ahmad Parray, selected and appointed under the Open Merit Category, submitted that he had the

requisite experience and so his appointment was not illegal as alleged by the appellants. The other respondents, namely, the candidates appointed

from the waiting list, contended that after the Commission furnished the list of selected candidates to the Government, the Government took a

conscious policy decision to fill in all the vacancies which were available with the Government and so no fault can be found in the action of the

Government in appointing them against the available vacancies.

The State Government in its counter-affidavit, however, stated that the notification inviting applications for the two posts of Lecturers,

Paediatrics, (one each under the Open Merit Category and Scheduled Caste Category) was issued by the Commission on the basis of the

requisition made by the respondent-State and that the said requisition made by the respondent-State and that the said requisition was made by the

Government with regard to clear vacancies and did not include the anticipated vacancies at the relevant time. Further, according to the respondent-

State, keeping in view the public interest vis--vis health care and teaching programme, the vacancies were to the filled up from amongst the panel

submitted by the Commission and that S/Shri Muzaffar Jan, Ghulam Rasool Wani and Ghanshyam Saini, having been selected and kept on the

waiting list by the Commission, were appointed.

The Commission also filed its counter-affidavit. In regard to the selection of Dr. Nazir Ahmad Parray, the Commission stated that he possessed

the requisite experience meant for the post in question and, on the basis of his merit, he was placed at Serial No. 1 in the select list. As regards the

waiting list, the stand of the Commission, was that it was done in accordance with the law and no illegality was committed in preparing the select

list or the waiting list.

The learned Single Judge did not go into the legality of the selection and appointment of Dr. Nazir Ahmad Parray. Whether Dr. Nazir Ahmad

Parray had the requisite experience as Registrar in the department of Paediatrics was also not gone into. The only question considered by the

learned Single Judge was whether the waiting list could be operated upon for filling up the posts which had not been notified. On this issue, relying

on the judgment of the Apex Court in Virender S. Hooda and Others Vs. State of Haryana and Another, the learned Single Judge held that the

State did not commit any illegality in making appointment of the candidates shown in the waiting list. The learned Single Judge also observed that

there is a specific rule permitting the Commission to form waiting list and that, ""if a rule permits preparation of waiting list, then that can be made

operational"". However, no specific rule providing for preparation of waiting list by the Commission was indicated in the judgment. The learned

Single Judge dismissed both the writ petitions filed by the appellants and upheld the appointment of private respondents as Lecturers Paediatrics.

Hence the present two appeals.

At the outset, the learned counsel for the appellants submitted that the selection and appointment of Dr. Nazir Ahmad Parray was challenged by

one of the appellants on the ground that he did not possess the requisite experience but the learned Single Judge failed to deal with that aspect of

the case. Learned counsel further submitted that they should be allowed to challenge the appointment of Dr. Nazir Ahmad Parray in both the

appeals. It may be mentioned here that the selection and subsequent appointment of Dr. Nazir Ahmad Parray as Lecturer Paediatrics was

challenged only by appellant, Dr. Sanjeev Kumar, and, as noticed earlier, the plea was not supported by any factual averments or documents to

substantiate this plea, A mere assertion, bereft of any factual foundation or material support, cannot be taken into consideration. There is another

aspect of the matter. The appellants did not possess the requisite experience and their application forms were rejected by the Commission. They

challenged the rejection of their applications forms in two separate writ petitions. They appear to have been interviewed by the Commission

pursuant to the ad-interim directions of the Court, but did not make the grade. Secondly, their writ petitions were ultimately dismissed. Therefore,

even assuming that the said Doctor, Nazir Ahmad Parray, did not possess the requisite experience, in the peculiar facts and circumstances narrated

above, the appellants could not seek a writ of certiorari for quashment of his selection or appointment since they themselves were declared

ineligible. At best, they could seek the writ of qua-warranto which they did not do. Faced with this situation, the learned counsel appearing for the

appellants submitted that they do not want to challenge the appointment of Dr. Nazir Ahmad Parray at this stage.

The other submission made by learned counsel for the appellants is that only two posts, one meant for Open Merit Category and the other for

Scheduled Caste Category, were notified by the commission in pursuance of advertisement notice dated 12th October, 1998. The commission did

into recommend any candidate under the reserved category, ostensibly, because no suitable candidate was available under that category and the

result of the candidate against the second post was shown to have been withheld. Further, according to the learned counsel, the application form of

one Dr. Muhammad Farooq Mir, who had also applied under the Open Merit Category, was also rejected as he did not fulfill the age criterion,

being over-aged. However, he too was interviewed by the Commission in pursuance of the interim direction of the Court. Subsequently, his writ

petition was dismissed, consequent upon which the Commission addressed a communication dated 17th February, 2000 to the Government

indicating therein that the said candidate, Dr. Mohd. Farooq Mir was placed at S. No. 2 in order of merit among the candidates interviewed. But,

while making the recommendations to the Government result was withheld against S. No. 2 of the recommendation. The Commission further stated

that in view of the dismissal of the petition, ""the candidate is to be treated as if not having appeared in the interview and the second post meant for

Scheduled Caste Category, which had to be kept unfilled, to be released for the next person in order of merit."" The argument advanced by the

learned counsel for the appellants is that the said Doctor, Mohd. Farooq Mir, could not be appointed as Lecturer, firstly because his candidature

was cancelled by the Commission, and secondly, the post was meant to be filled in by a candidate belonging to Scheduled Caste Category.

Mr. D. C. Raina, learned counsel for the Commission, submitted that there is a specific provision in Rule 11 of the Jammu and Kashmir Medical

Education (Gazetted) Service Recruitment Rules, 1979, which provides that, while making appointments either by promotion, by selection or by

direct recruitment, reservation shall be made in accordance with the rules and orders issued from time to time for the members of the Scheduled

Caste or any other category or class of permanent residents of the State for whom such reservation may be made under the orders of the

Government and, if sufficient number of candidates belonging to the class/category for whom reservation has been made, are not available for filling

up all or any of the vacancy reserved for them during a recruitment period, reservation for the post not so filled shall lapse and the post shall revert

to the Open Merit Category, Mr. Raina further submitted that, since no candidate belonging to Scheduled Caste Category was available, the post

was to be filled up from amongst the candidates belonging to open Merit Category and since Dr. Mohd. Farooq Mir, on the basis of his

performance in the interview, was put at Sr. No. 2 in the select list, the government appointed him after the dismissal of his writ petition in

relaxation of rules.

It may be observed here that the appointment of Dr. Mohd. Farooq Mir as Lecturer Paediatrics was not challenged by the appellants in either

of the two writ petitions. Therefore, they cannot have or raise any grievance against his appointment in these appeals. However, the manner in

which his appointment was made casts a cloud on the process of selection and the subsequent appointments as a whole. In this connection

reference may be had to the record produced for perusal of the Court.

The record shows that said Dr. Mohd. Farooq Mir had made a representation to the Chief Minister for relaxing his age bar of 33 days and

also for his appointment as Lecturer in the department of Paediatrics. His case also appears to have been recommended by the Principal/Dean,

Government Medical College, Srinagar, and the commissioner-cum-Secretary to Government, Health and Medical Education Department had

prepared a detailed note mentioning therein that in 1998 two posts of Lecturers were referred to the Commission for selection of suitable

candidates. The application of the aforesaid Dr. Mohd. Farooq Mir was rejected by the Commission being overaged by 33 days as on 1.1.1998,

but later, on the basis of interim directions passed by the court, he was interviewed for the post of Lecturer and he was put at S. No. 2 of the

select list prepared by the Commission. It was further mentioned in the note that one post of Lecturer in Paediatrics was still available and the said

Doctor could be appointed against the said post. The proposal was put up before the Under Secretary to Government, General Administration

Department who, on 25th August, 2000, while rejecting the proposal, informed the Commissioner-cum-Secretary to Government, health and

Medical Education Department that the proposal could not be agreed to as the same was against rules and the ban put by the Apex Court. The

record shows that when the note of the Under Secretary was put up before the Acting Chief Minister, he did not agree with the note and approved

the proposal submitted by the Commissioner-cum-Secretary to Government, Health and Medical Education Department recommending the grant

of age relaxation and appointment in favour of Dr. Mohd. Farooq Mir. The Under Secretary to Government General Administration Department

was directed to implement the order of the Acting Chief Minister. It is in this scenario that Dr. Mohd. Farooq Mir was appointed. As noted earlier,

the candidature of this particular Doctor was cancelled by the Commission and, as a matter of fact, there was no recommendation made in his

favour by the Commission at any stage. The only thing the Commission indicated in its subsequent letter dated 17th February, 2000 was that the

said Doctor was placed at S. No. 2 in order of merit (though not mentioned in the original recommendation), but while making the

recommendations ""result withheld"" was mentioned against S. No. 2. The Commission while saying so, expressly recommended that ""the candidate

is to be treated as if not having appeared in the interview and the 2nd post (S.C.) which had to be kept unfilled to be released for the next person

in order of merit."" In this fact scenario, the appointment of Dr. Mohd. Farooq Mir was made without there being a selection or recommendation

made by the Commission. We refrain from commenting on the manner in which the age-bar was relaxed, despite specific objection raised by the

Under Secretary to Government, General Administration Department that the proposal was against the rules as well as the ban imposed by the

Supreme Court. We may observe here that in Suraj Parkash Gupta and Others Vs. State of Jammu & Kashmir Others, their lordships of the

Supreme Court, after noticing that the State of Jammu and Kashmir has been flouting basic rules of recruitment by granting relaxations, specifically

directed the State to ensure that no relaxation of basic recruitment rules is made for direct recruitment by the Commission. The relaxation in the

present case was made by the Government despite the fact that the writ petition filed by Dr. Mohd. Farooq Mir was dismissed by this Court and

despite the fact that there was no recommendation made by the Commission in his favour. As observed, since his appointment is not under

challenge, his appointment would be taken to be against the second post which was meant for the Scheduled Caste Category.

This leaves us with the argument of the learned counsel for the appellant that the appointment of the three Doctors, namely, S/Shri Muzaffar

Jan, Ghulam Rasool Wani and Ghanshyam Saini, was made by the Government without notifying these posts, thereby violating the rights of the

appellants guaranteed under Articles 14 and 16 of the Constitution of India. Learned counsel for the appellants submitted that the judgment of the

learned Single Judge in this regard cannot be sustained because the said persons cannot usurp the right of consideration of others, who expect to

receive consideration against these posts. Learned counsel further submitted that, admittedly, the notification dated 12th October, 1998 issued by

the Commission was with regard to filing up of only two vacancies and on appointment of Dr. Nazir Ahmad Parray under Open Merit Category

and the subsequent appointment of Dr. Mohd. Farooq Mir against the post meant for the reserved category of Schedule Caste, the select list

ceased to exist and had outlived its utility. It was further submitted that the appointment of the private respondents, who were shown in the waiting

list of the select list, was clearly illegal and against the law settled by the Supreme Court. The learned counsel submitted that the orders of

appointment of these candidates, appearing in the waiting list are liable to be quashed and the resultant vacancies are required to be re-advertised,

giving opportunity to all eligible candidates to compete for these vacancies.

On the other hand, the learned counsel appearing for the private respondents as also Mrs. Shasita Hakim, learned Government Advocate

appearing for the State, citing Prem Singh and Others Vs. Haryana State Electricity Board and Others, and Virender S. Hooda and Others Vs.

State of Haryana and Another, submitted that the State acted within its jurisdiction in making appointment on the post falling vacant after the

issuance of advertisement notification. Mrs. Shaista Hakim also submitted that, otherwise too, this Court, while exercising its extra-ordinary writ

jurisdiction should not invalidate the excess appointments but should mould the relief in such a manner as to strike a just balance between the

interest of the State and that of the persons seeking employment. Mr. U. K. Jalali, Sr. Advocate appearing for the private respondents, questioned

the locus standi of the appellants on the ground that they were not eligible as they did not have the requisite experience on the cut off date and so

they have no right to question the selection made by the Commission.

We have heard learned counsel for the parties at length and have carefully gone through the record of the case.

It is not in dispute that the appointment of Dr. Muzaffar Jan, Dr. Ghulam Rasool Wani and Dr. Ghanshyam Saini was made against the

vacancies which had not been advertised. Keeping this in view, the first question that arises for consideration is whether the Government could

make appointments on these posts without notifying them to the eligible candidates and without giving an opportunity of consideration to such

eligible candidates ?

Articles 14 and 16 of the Constitution of India guarantee the right to every eligible citizen to claim and seek consideration for appointment to a

post under a State. This right is positively fundamental in character. Identical propositions, as involved in these appeals, have time and again come

up for consideration before the Supreme Court and it has been consistently laid down that appointments, in excess of advertised posts cannot be

sustained. In State of Bihar and another Vs. Madan Mohan Singh and others, applications were invited for filling up of 32 posts from direct

recruitment quota. After conducting the selection process, a panel list of 129 candidates was prepared on the ratio of 1:4 on the basis of written

test/viva voce. Their lordships of the Supreme Court held that selection would hold good for 32 advertised vacancies only and not further, because

the process of selection was meant only for those 32 vacancies. The process came to an end as soon as these vacancies were filled up. It was

observed that if the same list has to be kept alive for the purpose of filling up of other vacancies, it would amount to deprivation of rights of other

candidates who would have become eligible subsequent to the advertisement and the selection process.

Again, in Madan Lal and Others Vs. State of Jammu and Kashmir and Others, their lordships of the Supreme Court reiterated that where,

under requisition from the Government, the Public Service Commission prepares a select list of candidates in excess of the specified number of

vacancies, the appointments from the list can be made only as specified in the list and none other, and once the requisitioned vacancies are filled,

the list stands exhausted. In that case the requisition from the Government was for 11 vacancies but the Commission sent list of candidates for

more than the requisitioned vacancies and their lordships in this regard held as under :

It is no doubt true that even if requisition is made by the Government for 11 posts the Public Service Commission may send merit list of suitable

candidates which may exceed 11. That by itself may not be bad but at the time of giving actual appointments the merit list has to be so operated

that only 11 vacancies are filled up, because the requisition being for 11 vacancies, the consequent advertisement and recruitment could also be for

11 vacancies and no more. It is easy to visualize that if requisition is for 11 vacancies and that results in the initiation of recruitment process by way

of advertisement recruitment process by way of advertisement, whether the advertisement mentions filling up of 11 vacancies or not, the

prospective candidates can easily find out from the Office of the Commission that the requisition for the proposed recruitment is for filling up 11

vacancies. In such a case a given candidate may not like to compete for diverse reasons but if requisition is for larger number of vacancies for

which recruitment is initiated he may like to compete. Consequently the actual appoints to the posts have to be confined to the posts for

recruitment to which requisition is sent by the Government. In such an eventuality, candidates in excess of 11 who are lower in the merit list of

candidates can only be treated as wait listed candidates in order of merit to fill only the eleven vacancies for which recruitment has been made, in

the event of any higher candidate not being available to fill the 11 vacancies, for any reason. Once the 11 vacancies are filled by candidates taken

in order of merit from the select list that list will get exhausted, having served its purpose.""(Underlining supplied)

This case arose from the State of Jammu and Kashmir and pertained to appointments made against the posts of Munsiffs in Jammu and Kashmir

Judicial Service. Their lordships of the Supreme Court, after referring to Rule 41 of the Jammu and Kashmir Civil Services (Judicial) Recruitment

Rules, 1967, which provided that the select list shall have the life of one year from the date of publication in the Government Gazette or till its

exhaustion by appointment of candidates, whichever is earlier, observed that it is not possible to accept the contention of learned counsel for the

State that even after making appointments of the requisitioned vacancies, the list of more candidates prepared by the Commission can still be

operated upon on the ground that the Commission had sent a list of 20 candidates.

Again, in Ashok Kumar v. Chairman Banking Service Recruitment Board (1996) SCC 283. The Apex Court held as under :

Article 14 read with Article 16(1) of the Constitution enshrines fundamental right to every citizen to claim consideration for appointment to a

post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be

considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and

deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution. The procedure adopted, therefore, in appointing

the persons from the waiting list prepared by the respective Boards, though the vacancies had arisen subsequently without being notified for

recruitment, is unconstitutional...

In Prem Singh v. Haryana State Electricity Board (1996) SCC 319 cited by the learned counsel for respondents, as against 62 advertised

posts, the State Electricity Board made appointment against 138 posts. The selection process was started for 62 clear vacancies and at that time

anticipated vacancies were not taken into account. In light of the above facts, the Supreme Court observed that, if the requisitions for

advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts advertised even though

the Selection Board might have prepared a select list of more candidates. The Supreme Court, however, pointed out that the State can deviate

from the advertisement and make appointment of posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and,

that too, by taking a policy decision in that behalf. It has also been pointed out by the Supreme Court that, even when filling up of more posts than

advertised is challenged, the court may, while exercising its extraordinary jurisdiction, direct excess appointment in such a manner as to strike a

balance between the interest of the State and the interest of persons seeking public appointment and what relief should be granted in such cases

would depend on the facts and circumstances of each case. On laying down the above principles, the Supreme Court considered the extent of

validity of the excess appointments made in the case (supra). Their lordships noted that, after the selection process had started 13 posts had

become vacant because of retirement and 12 because of death and the vacancies which were likely to arise at the time of recruitment could have

been anticipated by the Board, but the Board through oversight had not taken into consideration those anticipated vacancies. Moreover, even with

respect to the appointment made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency

and equity they need not be quashed. In that view of the matter, the Supreme Court did not quash the appointment of 25 candidates made in

excess of the declared vacancies. But so far as the appointment made by the Board beyond those 87 posts (62 advertised, 13 retirements and 12

deaths), the Supreme Court held those appointments to be invalid.

In the present case, as already noticed, only two posts were referred to the Commission and notified by it for selection and appointment;

whereas appointments have been made against five posts. A perusal of note 15 contained in the record file captioned HME/03/Legal-Medical

produced before the court reveals that at the time the aforesaid two posts were referred to the Commission, there, in fact, existed four vacancies of

Lecturers. Two candidates out of the waiting list were appointed by the Government against two of these four vacancies and the third candidate

was appointed as Lecturer against the vacancy of the post of Assistant Professor. The relevant note may be quoted hereunder :

15). In 6/1998 when two posts of Lecturers were referred to Public Service Commission, there were in fact four vacancies of Lecturers against

the sanctioned strength of 6 posts. Two posts were apparently already vacant as per the seniority list issued in 1997, whereas two posts had

become available due to the promotion of Dr. Rekha Harish and Dr. Kasir Ahmed. When the selection list was received in Oct. 1999, once

candidate figuring in the selection list, namely Dr. Nazir Ahmad Parray was appointed as Lecturer vide Govt. Order No. 565-HME of 1999 dt.

10. 1999. Subsequently three more candidates figuring in the waiting list were also appointed as such vide Govt. Order No. 211-HME of

2000 dated 24.4.2000. Of these two were appointed against the vacancies of Lecturers and the third one against the post of Assistant Professor.

One post of Lecturer was kept reserved for Dr. Mohd. Farooq Mir whose appointment was also later made vide Govt. Order No. 662-HME of

2000 dated 4.10.2000 in relaxation of rules, with the approval of the then Acting Chief Minister.

It is thus clear from the above note contained in the contemporaneous record maintained by the official respondents that as on the date two

posts were referred to the Commission, actually four vacancies of Lecturers existed. What prevented the Government from referring all these

vacancies to the Commission is not disclosed. Not only that, the fifth candidate has been appointed as Lecturer against the vacancy of Assistant

Professor. Therefore, this is not a case where the Government could not anticipate the remaining three vacancies or that the vacancies occurred

during the time the selection process was on; as indicated in the official note under reference, the fact of the matter is that the vacancies existed

even at the time reference of two posts was made to the Commission. Therefore, it was obligatory on the Government and the concerned authority

to have referred all these posts to the Commission. Withholding of these posts strongly suggests that the intention of the Government and the

concerned authorities was not fair. The only inference that can be drawn is that the posts were not referred to the Commission to achieve indirectly

what could not be achieved directly. This is one aspect of the matter. Even if the vacancies had arisen after the reference of the two posts to the

Commission and the commission had sent a list of candidates more than that of the posts referred, in view of the law laid down by the Apex Court

from time to once the two candidates were appointed, the select list stood exhausted and was no more alive. In that view of the matter, we are of

the considered view that the government could not have made appointment of private respondents against these three vacancies without referring

these posts to the Commission. The State having done so, has acted contrary to the mandate of Articles 14 and 16 of the Constitution of India.

Another question that arises for consideration is in regard to the right of a person who has been put on the waiting list. Primarily, a select list

constitutes only of those candidates who, in order of merit, appear in the select list and number equivalent to the posts referred to the Commission

for selection. The selectees empanelled, either in the main list or the waiting list, by the Commission over and above the number of posts referred to

it, is a precautionary measure to enable the competent authority to fill in the posts so referred without incurring any further procedural delay or

encumbrance in the event any selected candidate does not join. The object is not to empower or entitle the Government to make appointments

against those posts also which are not referred to the Commissioner the Selection Board. In that view of the matter, inclusion of a candidate in the

merit list or waiting list in excess of the notified vacancies does not confer any right on such a candidate for appointment. In this regard reference

may be made to the case Sanjoy Bhattacharjee Vs. Union of India and others, wherein their lordships of the Supreme Court opined that merely

because a candidate has been put in the waiting list, he does not get any vested right to appointment and that for subsequent vacancies everyone in

the open market is entitled to apply for consideration of his claim on merits in accordance with law and it would be consistent with Articles 14 and

16 of the Constitution.

Again in State of Punjab v. Raghubir Chand Sharma (2002) SCC 1134 their lordships of the Supreme Court held that with the appointment of

the first candidate for the only post in respect of which the select panel was prepared, the panel ceased to exist and has outlived its utility and no

one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the

subsequent resignation of the person appointed from the panel or any other vacancy arising subsequently.

It was contended that it was within the power of the Government to keep alive the select list for one year from the date the recommendations

were made by the Commission and that the impugned appointments were made during the currency of one year. In this connection support was

sought to be derived from Virender S. Hooda and Others Vs. State of Haryana and Another, . We have considered the citation relied upon by

learned counsel for the respondents. In that case the Haryana Public Service Commission advertised 12 posts of Haryana Civil Service (Executive

Branch). On completion of selection, final list was published on 19th June, 1992. The appellants before the Supreme Court did not find place in the

merit list against these 12 posts. Their contention was that some of the selected candidates did not join and, therefore, the appellants should have

been considered against the vacancies so arising, depending upon the ranking obtained by them in the competitive examination. They quoted

circulars dated 22.3.1957 and 26.5.1972, according to which the vacancies arising within six months from the date of receipt of recommendation

of the Commission, could be filled up from the waiting list maintained by the Commission. These circulars also provided that if additional vacancies

occurred after the Commission had made recommendations, such additional vacancies could also be filled up from amongst the candidates

recommended by the Commission, The High Court took the view that administrative instructions cannot be read as making it obligatory for the

appointing authority to appoint candidates in excess of the advertised posts and that the claim for directing the respondents therein to make

appointment against posts which became available after the initiation of the process of recruitment was not justified. Their lordships of the Supreme

Court did not accept the view taken by the High Court as, in their opinion, the case of the appellants therein ought to have been considered when

some of the vacancies arose on account of non-appointment of some of the candidates recommended by the commission. It was also said that

when the vacancies arose within six months from the date of previous selection, the Government out to have considered the appellants' case as per

rank obtained by them and appointed them if they came within the range of selection, as the circulars dated 22.3.1957 and 26.5.1972, declaring

the policy of the Government, were attracted. Their lordships were of the view that when a policy has been declared by the State in regard to the

manner of filling up the posts and that policy is declared in terms of the rules and instructions issued to the Public Service Commission from time to

time, and so long as these instructions are not contrary to the rules, the respondents ought to follow the same.

In view of the authoritative pronouncements of the Supreme Court noted above, it is well settled that in cases where the number of vacancies

are notified in the advertisement, the appointment from the panel/select list is to be made to the extent of the vacancies notified in the advertisement

and no appointment in excess of the posts advertised can be made from the said panel/select list. In the case of non-joining of a candidate

appointed against the notified vacancy, a person from the said panel, which becomes waiting list, is to be appointed, but no appointment can be

made from the said panel or waiting list in excess of the posts advertised unless the rules or the policy decision provide so, or the State

Government takes a policy decision to meet certain extreme or urgent situation. The waiting list is not a perennial source of recruitment and no

person, as a mater of right, can claim appointment to the vacancies arising in excess of the notified vacancies only on the basis of inclusion of his

name in the panel which does not give any such right.

In the present case before us, admittedly, the appointment of Dr. Muzaffar Jan, Dr. Ghulam Rasool Wani and Dr. Ghanshyam Saini is beyond

the advertised vacancies. Their appointments can be upheld only if it is shown that the State Government took a policy decision to meet the

extreme or urgent situation or had framed any rules in this regard. It is nobody's case that the State Government has framed or declared any such

policy either in the shape of a rule or instructions, at least none was brought to our notice, which could authorize appointment of candidates over

and above the number of vacancies referred to the Commission or to extend the life of a select list beyond the specified posts or period of time to

govern future vacancies as well. The Jammu and Kashmir Medical Education (Gazetted) Recruitment Rules, 1979, do not make any provision for

operating the panel/select list in excess of the vacancies notified. There are also no circulars or administrative instructions issued by the State in this

regard. Even no policy decision which may have been taken to meet certain exigent requirements, if any, has been cited or brought on record by

the State Government. As a matter of fact, inspite of specific direction of this Court to produce the relevant record pertaining to the appointment of

the three Doctors figuring in the waiting list, no such record has been produced by the State. The record produced and referred to by us in this

judgment does not actually relate to the process of appointment of these three candidates.

In light of the above, the appointment of the private respondents, namely, Dr. Muzaffar Jan, Dr. Ghulam Rasool Wani and Dr. Ghanshyam

Saini, is not sustainable in law.

As regards the locus standi of the appellants to challenge the appointment of these three Doctors, we do not find any substance in the objection

raised in this behalf. The appellants had sought their consideration against one of the two posts advertised under Open Merit Category in terms of

notification dated 12th October, 1998. They were found lacking in the requisite experience. No doubt they were interviewed in terms of court

directions and did not make the grade, but that fact by itself would not debar them from competing for similar posts in future to be advertised by

the Commission. Had the three posts not been filled in surreptitiously by the Government, these posts would have to be referred to the

Commission and the appellants would be eligible to compete for the same. Therefore, the grievance of the appellants is justified that by making

appointment of persons in excess of the number of advertised posts, they were deprived of the right of their consideration against such posts.

These appointments have given a fresh cause of action to the appellants. Therefore, they have a right to agitate their grievance. At the cost of

repetition, it may be mentioned here that at the time these impugned appointments were made, the appellants had already gained the requisite

experience. Therefore, it cannot be said that they do not have any locus standi to challenge these appointments.

Mrs. Shaista Hakeem, Government Advocate, wanted this Court to strike a balance between the interests of the State and that of the

appellants. In this connection, she relied upon the decision of the Supreme Court in Prem Singh v. Haryana State Electricity Board (supra).

Interests of the State cannot be visualized in abstract; they are rooted in constitutionally established systems and norms which have withstood the

test of the time. Interests of the State cannot be served, preserved or safeguarded by orders apt to enervate the well established systems and

norms. The State is supposed to be an exemplary and ideally perfect employer. In matters of appointment to public posts, its functionaries cannot

be allowed to play hide and seek with the fundamental rights of its citizens under the garb of farce and pretentious claim of State interest. We have

already noticed the law settled on the subject and reiterated time and again by the Apex Court. The State Government has chosen to despotically

disregard and abhor these authoritative pronouncements of the Apex Court without their being any justifiable reason. The wrong has been

committed by the State. Therefore, it was for the concerned governmental authorities to evolve a viable formula, striking a balance between the

interest of the State and the appellants and submit it for consideration of this Court. That has not been done. Where the State and / or its

concerned functionaries are demonstratively and brazenly indifferent to adhere to the repeated authoritative pronouncements of the Apex Court this

Court will not, of its own, suggest ways and means to mitigate the difficulty the State Government now finds itself in, or to dilute the severity of the

wrong done by the Government, except to undo the wrong so done. In the facts and circumstances attendant to the case, that is the only course

and option left with us.

In view of what has been discussed above, these appeals are allowed and the judgment of the learned Single Judge dated 18th March, 2002 is set

aside to the extent it has upheld the appointment of private respondents, namely, Dr. Muzaffar Jan, Dr. Ghulam Rasool Wani and Dr. Ghanshyam

Saini. Consequently, their appointments to the posts of Lecturer in the department of Paediatrics in the government Medical Colleges at

Srinagar/Jammu are quashed. The State Government is directed to send requisition of all the vacancies of the posts of Lecturer in the department

of Paediatrics, which may have become available as on this date, to the Jammu and Kashmir Public Service Commission. The Commission, on

receipt of the requisition so made by the State Government, shall advertise such posts and finalise the selection process within a period of three

months from the date of such reference. In the even any of the appellants or the Doctors, whose appointments have been quashed by this

judgment, has become ineligible on account of age-bar, the Government shall accord relaxation to such age-bar in their respect. The process of

selection shall be initiated forthwith and completed with utmost urgency. A copy of this judgment shall be sent to Commissioner-cum-Secretary to

Government, Health and Medical Education Department, Government of Jammu and Kashmir, Srinagar, by the Registry for immediate

implementation of the directions contained herein.

No order as to costs.