State of J & K vs Budhi Singh and Ors.

This appeal is directed against order dated 6.7.2001 passed in SWP No. 1810/98 directing the State government to determine the ratio

proportion of vacancies and offer the same to the petitioner who are in the merit list prepared by the Commission.

By reference letter No. PD (E&S) 60272/79 Srws 20.6.1980 Administrative Department of the Government referred 11 posts of Assistant

Director Statistic scumEvaluation for selection to the public Service Commission Subsequently 13 more post were referred vide Letter No. PD

(E&S) 602/72/79 dated 30.9.1981. On the basis of two references Public Service Commission vide Notification No. PSC/EH92/22 dated

15.12.1982 invited applications from all eligible candidates for direct recruitment for the aforementioned posts. Pursuant to the notification,

Commission received 231 applications, out of which 18 upon scrutiny by the eligibility committee were rejected. The written examinations of

eligible candidates was conducted w.e.f. 20.2.1984 to 1.3.1984. Only 54 candidates qualified for the vivavoce test which was conducted on 11th

& 12th March 1985 for the candidates of Jammu Division and on 14 & 15 March 1985 for the candidates of Kashmir Division. For vivavoce test

the Public Service Commission associated an eminent expert on the subject from outside the State and amongst other, the then Additional

Secretary, planning Department was also associated as departmental observer. The inters merit based on the basis of written examination,

vivavoce test as well as overall performance for the purposes of merit and suitability was judged and a merit list of 20 candidates was

recommended for appointment. 18 candidates were in the open category while two candidates were from scheduled Cast category. It is not in

dispute that out of 20 candidates 19 candidates joined.

Writ petitioner namely respondent herein on not finding their names in the merit list filed writ petitioner being SWP No. 946/85. In the writ

petition two grievances were made, one was in regard to the appointment of respondents 3 to 8 therein and second was that more than 24 posts

were available for direct recruitment but only 20 candidates were selected. In this regard the writ petitioners contended that as per government

order the appointments to the post had to be made in the ratio of 50:50 i.e. 50% had to be appointed by direct recruitment and 50% by

promotion. The selection of private respondents was challenged on the ground that they being inservice candidates entered the examination and

procured selection without their applications submitted through their Head of Department. Writ petition was contested by the private respondents,

the Public Service Commission and the Government. In the facts and circumstances of the case learned Single Judge in his order dated

24.12.1987 did not find that the said respondents were disqualified for selection. Learned Judge also did not find anything wrong regarding the

declaration of result as contemplated by Rule 30 of Public Service Commission Rules. It was observed that Rule 30 provides after the final

selection is made, a list of selected candidates according to the merit will be published in Government gazette and the candidates who are not

selected cannot claim violation of rule merely on the ground that their names do not find place in the gazette notified. The write petition, however,

was allowed only to the extent that official respondents 1 and 2 therein were directed to maintain quota of 50% for direct recruits and 50% for

promotes strictly in accordance with the rules and in case the quota of direct recruit was to be increased, the writ petitioners, if they made up their

mark on merits in the list of final selection, were to be considered for appointment.

It appears that the State being aggrieved of order dated 24.12.1987 passed in SWP No. 946/85 took t he matter in LPA. During the pendency

of letters patent appeal, the writ petitioners filed contempt petition No. 140/88. In the contempt petition it was point ed out that fresh appointments

to the post of Assistant Director (Statistics) against direct quota are being made shortly and in the case the writ petitioners are not considered in the

light of order passed on SWP No. 946/85, then their right for consideration would be affected. Vide order dated 27.2.1990 contempt petition

was disposed of with a direction to respondents there in the consider the case of writ petitioners for appointment before making any fresh

appointments. The rule issued against the respondents was discharged.

Writ petitioners again filed another contempt being COA No. 66/91 in which the grievance made by the petitioners was the number of posts

referred to the Commission were contrary to the recruitment rules. It was said that instead of 32 posts which were to fall to the share of direct

recruits, only 25 posts were requisitioned and against which Public Service Commission submitted only a select list of 20 names. It was also stated

that the writ court in SWP No. 946/85 had directed the respondents to make appointment out of the direct recruitment quota proportionate to the

share that would fall in accordance with the percentage fixed, but the respondents are proceeding to fill up the vacancies by holding examination

without considering them for appointment. The respondent, against whom the contempt petition was initiated, field statement of facts stating that

since the State has already field letters patent appeal and the matter is subjoined, therefore the contempt petition is not maintainable. Vide order

dated 26.11.1991 the contempt petition was disposed of, the relevant portion of the order reads as under:

I have heard the learned counsel for the parties. In accordance with the Judgment of this Court dated December 24.1987 quota of 50% for

promotes is required to be maintained but it seems that respondents are more particular about S.R.O. 18 dated 14.1.1980 which fixed the quota

at 60:40. Respondents are responsible official of the state and it is not expected from them to violate orders of the court till those are modified or

rescinded by the higher Judicial Forums. In this case respondent 1 & 2 are Chairman and Secretary public Service Commission. They were

wrongly interpreted the judgment and while making selection they laid more stress on S.R.O. 18 dated 14.1.1980. Respondent No. 3, who is

Commission Planning Department has also landed in error or wrongly interpreting the court orders. Orders of the court are clear for maintaining

quota of 50:50 while making selection to the post of Assistant Director (Statistics). Respondents have already committed contempt by not

following verdict of the court and only following S.R.0. 18 dated 14.1.1980.1 do want to punish these officials but while disposing of this petition it

is directed that selection process already made shall be reopen and reconsider by following court orders to the above referred extent"", (emphasis

supplied).

Respondents have placed on record a letter written by one Sh. G.M. Wani, Under Secretary Public Service Commission, Jammu to the Deputy

Secretary, Planning & Development Department which seems to have created problems for the Commission by observing in Para 2 (b) as under:

'That the judgment of the court was based on assumption that the ratio between the departmental and direct recruits was 50:50 but this was not the

case, as in SRO 18 of 14.1.1980 the ratio was changed to 60:40 respectively. This as per the statement prepared, there was no increase in the

number of posts meant for direct recruitments. The judgment as quoted in your letter, has been torn our of context and has to be read in the

context of the proceeding Para of the judgment.

This official has misquoted and missinterpreted the judgment of the court and as he is not a party in this case no action can be taken against him.

But I would like to make an observation that such like officials who seem to have no knowledge about interpretation of court judgment and law

create problems and shall not be posted on responsible positions. Copy of this order be sent to the Chief Secretary and also Chairman Public

Service Commission for necessary action.

It appears that against the aforementioned order the State took the matter to the Supreme Court of India in SLP No. 1287/92. The SLP was

disposed of on 20.3.1995 as it was brought to the notice of their Lordships of Supreme Court that the letters patent appeal has been disposed of

on 10.11.1993 and so no further action was found to be necessary.

The writ petitioners once again filed contempt petition being COA No. 607 95 in which the grievance made was the neither the Public Service

Commission nor the Government has considered the case of petitioners for their appointment to the post of Assistant Director,

StatisticscumEvaluation. Upon notice of the contempt petition, a detailed affidavit dated 22.12.1995 was filed by Sh. Girja Dhar, Chairman, Public

Service Commission, in which it was stated that the Commission in the light of letter dated 9.10.1995 received from Additional Chief Secretary,

Planning Department help special meeting on 20.10.1995. In the said meeting it was brought to t he notice of Commission that the matter was also

discussed earlier on 6.9.1995 whereby names of two candidates figuring in the select list after t he last candidate namely Mohd. Ismail Teli were

sent to the department concerned. The Commission on going through the record found that against 24 vacancies, which were referred to the

Commission, only 20 candidates were found suitable by the then Commission and accordingly their names were recommended for appointment as

Assistant Director (Statistics) vide Letter No. PSC/Ex85/DSAD/14 dated 14.8.1995. the Commission also found even with the increase of two

vacancies i.e. 24 to 26 the position would remain same as the candidates who were found suitable by the Commission have already been

recommended and appointed by the Government. The Commission further submitted that as per the direction of court order dated 24.12.1987 the

case was reopened and considered, but the Commission again has come to the conclusion that suitability of the candidates for appointment stood

already determined by the Commission and the remaining candidates having found not suitable at that time the present Commission has no reason

to disagree with the earlier decision taken way back in the year 1985. The Commission in this special meeting also found that had the then

Commission found other candidates suitable, they would have recommended 24 candidates and not 20 candidates for appointment as Assistant

Director, StatisticcumEvaluation against 24 vacancies referred to the Commission for selection. The Chairman thus in the supplementary affidavit

clarified the factual position and further stated that the writ petitioners did not make the grade and as such they were not recommended for

appointment.

In view of the definite stand taken by the Commission and also the Government that the names of writ petitioners cannot be recommended for

appointment because they were not on the select list, the writ petitioners once again filed writpetition being SWP No. 1810/98, the order passed in

which is subject matter of this appeal, seeking quashing the decision taken by the Public Service Commission by which the petitioners have been

found unsuitable to be appointed for the post of Assistant Director (Statistics). They further sought writ in the nature of mandamus directing the

respondents to publish the overall merit list of all the candidates including the names of the writ petitioners, who had appeared in the examination,

reflecting therein their position in the examination and viva voce. The writ petitioners further prayed that the respondents be directed to appoint

them against 11 vacancies under direct recruitment quota and to give them all consequential benefits of promotion, seniority etc w.e.f. the date

others were appointed in pursuance to the recommendations made by the public Service Commission pursuant to the Selection process started

vide their notification dated 15.12.1982. The writ petitioners inter alia stated that had the respondents been fair in implementing the order passed

by the writ court earlier in SWP No. 94685 in its right spirit by maintaining a ration of 50% between the direct recruits and the promotes, all the

writ petitioners would have been appointed. They further averred that the decision of the Commission not to recommend the names of writ

petitioners for appointment and consequently the decision on the part of government not to appoint the petitioners is tot ally illegal, arbitrary and

violated writ petitioners' right of equality as enshrined in Article 14 of the Constitution of India. Writ petitioners also started that even in the year

1990/1991 Public Service Commission was asked by the Planning Commissioner vide his letter dated 8.1.1991 to take a fresh look into the

matter and make recommendation for available direct quota of vacancies of 1985, but the Commission failed to recommend the names of four

persons out of total referred vacancies of 24. The writ petitioners stated that the Commission never disclosed the reason for recommending the

names of only 20 candidates as against the requisition of 24 posts. The precise submission made by the writ petitioners was that the Commission

and the Government be directed to make compliance of order dated 24.12.1987 passed in SWP No. 946/85 in its true letter and sprit. The

respondents contested the writ petition and the stand taken by them was same which they had taken in response to the contempt petition. The

respondents submitted that the writ petitioners were not on the select list and even if the Quota of direct recruit had been increased. They would

not have made the mark on the select list. After the written test though 52 candidate were found eligible for viva voce test only 20 were found

suitable and their names were accordingly recommended for their appointment. I earned Single Judge did not accept the stand taken by the

commission that the writ petitioner merit was below the candidate who was selected but since there is nothing else against the writ petitioner and

the fact they were medically examined and were found fit, there is no reason why the writ petitioners not given relief sought for by them in the writ

petition. The learned single Judge also did not find any merit in the other contention of the commission that though 20 candidates were found

suitable and recommended against 24 vacancies, but taking into consideration the command of the Court with respect to enforcement of ratio of

50:50 for direct recruitment and departmental promotes, two names Tilk Raj Sharma and Hera Lal Bhat, who were immediately below the last

candidate on the select list, were sent to the Government, but since they were not on the select list they not appointed. The learned Single Judge

thus allowed the writ petition and direct the State Government to determine the ratio proportion of vacancies and offer the same to the petitioner

who are in the order of merit list prepared by the Commission. The commission has been asked to give effect to judgment with in two months from

the date a copy of the order is made available to the Commission and in the event of failure to do so, writ petitioners have been held entitled to

interest@ 12% per annum. Hence the present appeal.

Learned counsel appearing on behalf Service Commission conducted that the learned single Judge has failed to take notice of the stand taken

by the public Commission that only 20 candidates were found suitable by the Commission and resultantly theirs names were recommended for the

appointment since the writ petitioners were never found suitable by the commission, so no direction could be given by the Commission to

recommend the name of persons who were not in the select list or found suitable for appointment. Learned Counsel further submitted that simply

because, of candidates, who had been called for viva voce test, were asked to undergo medicinal examination in anticipation of the

recommendations which were to be made by the public Service Commission, would not constitute a ground for appointment of all such candidates.

Learned Counsel further submitted that the writ petitioners were neither on the select list not there was submitted list and the select list prepared in

the year 1985 cannot be given fresh life. On the other hand, learned counsel appearing on behalf of writ petitioners contended that the writ

petitioners are in Court since 1985, but till date the Judgment passed in SWP No 946/85 has not been complied with by the respondents Through

the writ petitioner time and gained filed contempt petitions and the writ petition. Learned Counsel submitted that the Commission Should be asked

to produce the entire record and the perusal of the same the Court should determine Whether the criterion adopted by the commission for

preparing the select list of 20 candidates was fair or on the what basis the names of the other were not recommended for appointment. Learned

counsel further submitted that the record must be scrutinized to see the writ petitioners visavis persons who were on the select list and were

recommended for appointment.

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

It is not in dispute that the selection process was initiated by the state Government for filling up 24 vacancies by the holding competitive

examination through Public Service Commission for making appointment to the post of assistant Director (Statistics). Out of 200 odd candidates

who had appeared for the written examination, only 52 qualified for the viva voce test. After the viva voce test a list of 20 successful candidates

was noticed, 18 were in the open category and 2 were in the scheduled caste category. The unsuccessful candidate namely writ petitioners

approached this Court in SWP No. 946/86 and challenged the selection on various ground including that more vacancies were available for direct

recruits but had not been referred to the Commission for selection. Writ petitioners also made a grievance in regard to the final selection and

publication of select list. While disposing of the writ petition, learned judge of this Court in his order dated 24.12.1987 specifically dealt with this

matter and did not find anything wrong with Rule 30 of Public Service Commission Rules providing the publication of list of selected candidates

according to the merit in the Government Gazette. The learned Judge held that the candidates who are not selected cannot claim violation of rule

merely on the ground that their names do not find place in the gazette notified. In the present writ petition the writ petitioners cannot to allowed to

challenge the process of selection which admittedly was over on 14.8.1985 when names of 20 candidates were recommended for appointment. In

the earlier writ petition the only relief granted to the writ petitioners was that the Commission and the Government were directed to maintain quota

of 50% for direct recruits and 50% for promotees and in case of proportionate increase of direct recruits for the recruitment made in the year

198283 for the post of Assistant Director (Statistics), the case of writ petitioners was to be considered for appointment if they were to make up

their marks on merits in the list of final selection. The submission of learned counsel for the write petitioners that in COA No. 66/91 learned Judge

of this Court in his order dated 26.11.1991, while interpreting judgment dated 24.12.1987 passed in SWP No. 946/85 directed ""that the selection

process already made shall be reopened and reconsidered.......

Cannot be accepted for the proposition that the scope of judgment/order dated 24.12.1987 was enlarged by the learned Judge of this Court while

deciding the contempt petition. Their Lordship of Supreme Court in ""Lalith Mathur v. L. Maheswara Rao"", reported in (2000) 10 SCC 285, have

held that in the contempt jurisdiction High Court cannot give relief on merits. In the said case the writ court had directed the Government to

consider the employee's representation which was duly complied with, though the representation was rejected on merits. The employee instead of

assailing the rejection in a fresh writ petition, filed a contempt petition and High Court which disposing of the same issued direction that the

employee be absorbed in a suitable post. Their Lord of Supreme court held that such an order of High Court was with out Jurisdiction and should

not have been passed in contempt petition which itself was not maintainable and the only remedy available with the employ was challenge the order

rejecting his representation in an appropriate forum.

In ""J.S. Parihar v. Ganpat Duggar & others"" reported in AIR 1997 SC 113 the Supreme Court has opined that in Contempt Proceeding the

matter cannot be considered on merits nor fresh direction could be given by the contempt court touching the merits of case.

In view of the law laid down by the Supreme Court, we do not find any merit in the submission of learned counsel for petitioner that the

learned Judge While Deciding the contempt petition enlarged the Scope of direction given by the Court.

In regard to the submission of writ petitioners that on maintaining 50:50 ratio between the direct recruits and promoters, the number of

vacancies which were to increase, the petitioners' names were bound to be recommended for appointment, we do not find merit in this contention.

In this case firstly there was no merit list or the waiting list. There was only one select list of 20 candidates. Otherwise also even if the case of writ

petitioners is accepted that their names were in the merit list or the waiting it is now well settled that the inclusion of candidates in the merit list or

the waiting list in excess of notified vacancies or vacancies which had been referred to the Commission for selection confer no right on the excess

candidates to claim that fresh recruitment cannot be resorted to unless they are appointed. In ""Sanjay Bhattacharjee Vs Union of India & other

reported in (1997) 4 SCC 283 the Supreme Court opined that merely because the applicant had been put in the waiting list, he does not get any

vested right of appointment and for subsequent vacancies every one in the ipen market is entitled to apply for consideration of his claim on merits in

accordance with law and it would be consistent with Articles 14 & 16 (1) of the Constitution of India. In ""State of Uttar Pardesh v. Rafiquddin &

other"" reported in 1987 (supp.) SCC 401 the Supreme Court considering long the list of candidates for a particular examination can be utilized for

appointment, held that a list prepared by the Commission on the basis of competitive examination of a particular year could be utilized by the

Government for making appointment to the service before the declaration of result of subsequent examination. It was observed that the result of a

particular examination must come to an end at some point of time like a dead ball' in cricket. It could not be kept alive fro years to come for

making appointment. Similar view was taken by the Superme Court in ""Madan Lal and Others v. State of J&K and other"" reported in (1995)3

SCC 486. the Case of writ petitioners is not on better footing than the cases referred to above. In the present case neither the name of writ

petitioners figured in the select list nor there was any merit list or waiting list. If the ration of 50:50 for direct recruits and promotees was to be

maintained, then also writ petitioners were not to be appointed as they had not made their mark on the list.

As regard the action of the Government in not ensuring proper quota between the direct recruits and the promotees, their Lordships of Suprme

Court in ""Suraj Paakesh v. State and other"" reported in 2000(3) SCJ 34, notice that State of J&K has been flouting basic rule of recruitment by

granting relaxation of rules and direct recruitment as also the rules requiring consultation with PSC/DPC for promotion/recruitment by transfer and

in order to ensure that this is not done in future, gave the following general direction to the State Jammu and Kashmir.

(A) The State of Jammu and Kashmir shall appoint a high level Committee within a month from today to go into the question as to whether in any

department in Government service, direct recruitment of existing vacancies has not been made and if there was unreasonable delay, the State will

consider making direct recruitment expeditiously depending on the needs in the service and other relevant factors. But it will ensure that no

promotees are put in the direct recruitment quota. Temporarily or on stop gap or adhoe basis unless simultaneously proceedings are initiated for

direct recruitment through the service Commission. The Commission will recommend in what manner the direct recruitment could keep pace with

promotions as contemplated by Rules.

(B) Similarly, the Committee will find out in which department the adios/stop gap promotes are languishing without their cases being referred to the

Service Commission/DPC for regularization within their quota.

(C) The State of Jammu and Kashmir will ensure that no relaxation of basic Recruitment Rules is made for direct recruitment through PSC or for

purposes of regular promotions/recruitment by transfer. The recommendations of the Committee referred to above may be considered by

Government and implemented in accordance with the Rules and in accordance with law without unreasonable delay

Learned counsel appearing for the appellant has contended that the State Government has removed the imbalance to a great extent and if any

imbalance is left, then the exercise is on and it would be removed in the coming selection.

Lastly learned counsel for the writ petitioners conducted that one candidate namely Shoukat Aziz, who was similarly situated had field SWP

No. 928/86 in Srinager Wing of J&K High Court and his writ petition was allowed by the learned Single Judge of Srinager wing on 16.4.1998.

and in pursuance of directions given therein, he has been given appointed. It is contended that the since the Government has accepted the

Judgment in Shoukat Aziz case. There is no reason for the Government not to give appointment to the writ petitioners who are similarly situated

sand were in the merit than Shoukat Aziz. Mr. D.C. Raina, learned counsel for the public Service Commission Contended that the reading of order

referred to by the learned counsel for the writ petitioners, shows that the Public Service Commission had not put in appeararance in that Case. He

contended that the order does not show whether the Commission was served in the case. He contended that the stand of Commission was not to

the learned Judge, otherwise Shoukat Aziz, who was not on the select list, would not have been appointed. Mr. H.A. Siddiqui AAG appearing

opn behalf of appellant coudected that he is not aware as to under what circumstances the Government did not file appeal against the

judginent/order given in SWP No. 928/86. He submitted that since this has been brought to his notice, he would recommend to the Government

that necessary steps may be takes to correct the omission on the part of officials in not deciding to file letters patent appeal. A reading of order

dated 16.04.1998 shows that Shoukat Aziz, who was not on the select list, has been directed to be appointed against the post of Assistant

Director, StatisticscumEvaluation, but in our view order dated 16.04.1998 passed in SWP No. 928/86 does not entitle the write petitioners to

claim similar benefit. Their Lordsips of Supreme Court in ""State of Bihar & other v. Kameshwar Prasad Singh & another"" reported in 2000 AIR

SCW 2389, have authoritatively held, ""the concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot

be enforced in negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of

individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of

one individual does not entitle others to claim similar benefits"". This being the law we are of the view that the writ petitioners cannot claim that they

be given similar treatment which has been given to shoukat Aziz on the basis or order dated 16.04.1998 passed in SWP No. 928/86.

In view of the above discussion, the appeal is allowed and the judgment of learned Single Judge dated 6.7.2001 is set aside and resultantly the

writ petition filed by the writ petitioners is dismissed.