State of J&K and Others vs Ved Singh

This Letters Paten Appeal has been preferred by the appellants including Service Selection Recruitment Board (hereinafter referred to as SSRB

) against the judgement dated 30.04.2001, whereby writ petition bearing SWP No. 304/2000 has been allowed directing the respondentState to

operate the waiting list wherein the respondent Ved Singh appears at S.No. 2 of the waiting list.

Appellants have challenged the legality of the order under appeal on the ground that appellant No. 3, SSRB has written a letter dated

23.03.1999 to appellant No.1 conveying therein, not to operate the waiting list furnished by the Board, till further communication from the Board.

Appellant SSRB advertised various posts including the post of Jr. Engineer gradell vide Advertisement Notification No.3 of 1997 dated

29.04.1997. Petitioner/respondent herein, who belongs to RBA category, was subject to the process of selection alongwith others. Board selected

the candidates against all the categories including 36 candidates against Resident of backward Area (hereinafter referred to as RBA) category. List

was forwarded to appellant No.1 who made appointments. Respondent being in the waiting list was not appointed and thus approached the court

by means of SWP No. 304/2k.

On appreciation of the rival contentions, learned Single Judge has recorded in the course of order under appeal that 36 candidates for the post

of Jr. Engineer Gradell were selected and out of that selection only 29 candidates have joined. Fall out seats could not be filled up as the waiting

list was not operated by the SSRB for the reasons best known to them. Learned Single Judge has allowed the writ petition.

We have heard the learned counsel for the parties and perused the record.

At the very outset it is to be recorded that the plea taken in the present appeal that the SSRB has written a communication dated 23.03.1999 to

appellant no.1 conveying therein, not to operate the list, was not the plea of the appellant Board before the learned Single Judge in their objections.

Board pleaded in the counteraffidavit that since SSRB has made the selection it is for the appointing authority to consider the writ petitioner for

appointment.

We have perused this communication. It appears that this communication has been addressed on the representation of Diploma/Degree Holder

candidates belonging to ST category for the post of Jr. Engineer (Civil). This communication, therefore, pertains to the selection of Jr. Engineer

(Civil) earmarked for to ST category and not for RBA category. Assuming this is the situation as State has understood that the waiting list has not

to be operated upon, this was not the stand taken by the Board before the learned Single Judge. Mr. Thakur in rebuttal to the argument of the

learned counsel for the appellants in support of his plea has relied upon case titled Jai Narain Ram Vs. State of U.P. and others, reported in AIR

1996 SC 703.wherein point in issue before the Apex court was that the selection was made against four posts, candidates did not join and next

meritorious was not offered the post. Dealing with the situation, Apex Court observed in paras 6 and 7 which reads as under :

It is not in dispute that the appellant is a reserved candidate belonging to Scheduled Castes. In view of the admitted position that four post were

reserved in the Finance Department in category 1 mentioned earlier and 4 select candidates appeared to have not joined in the service, as asserted

in para 11 of the S.L.P. and not specifically denied by the respondents in the counteraffidavit in para 6 as referred to earlier, it is clear that the

appellant also is the 4th candidate in the order of merit would have been selected, had there been a requisition by the State Government for

appointment of the reserved candidates.

Right to seek appointment to a post under Article 14 read with Article 16 (1) and (4) is a constitutional right to equality. The State failed to

perform its constitutional duty to requisition the P.S.C. to recommend the next qualified person to the posts reserved for scheduled castes. Under

these circumstances, the denial of appointment to the appellant and three others above him is unconstitutional. Therefore, the respondents are not

justified in denying the claim of the appellant for the appointment to the above post.

Case of the respondent herein is on better footing. Respondent has been selected and placed in the waiting list. Waiting list has been framed by

the SSRB strictly in accordance with law. If rule does not provide for framing of waiting list, issue would have been dealt with accordingly. Here in

the present case it has been made obligatory for the SSRB to frame the waiting list of 20% of the total number of the selected candidates by

enacting specific law in terms of SRO 332 of 1999 promulgated vide Notification dated 25.11.1999 which reads as under.

SRO 332ln exercise of the powers conferred by the proviso to section 124 of the Constitution of Jammu and Kashmir, the Governor hereby

directs that the subrule (vi) of rule 10 of the Jammu and Kashmir State Subordinate Services Recruitment Rules, 1992 shall be substituted by the

following namely :""The Board shall also finalize waiting list of 20% of the total number of selected candidates and forward the same to the

concerned Department. The waiting list shall remain in force for a period of one year from the date of its receipt or till a fresh list is drawn up by the

Recruitment Board, whichever be earlier.

Waiting list has been framed by SSRB while discharging the statutory obligation. Respondents have not taken stand before the learned Single

Judge that waiting list is not to be operated rather stand taken is that waiting list, if any, is for fall out vacancies and it is for the appointing authority

to consider the case of the candidates out of waiting list for their appointments, if the candidates out of the main select list do not join.

Mr. Gupta, Learned AAG could not make out before the court as to whether communication relied upon be made applicable to the RBA

category also, whereas communication specifically contains a mention, for not operating the waiting list with regard to the ST category. It is also

not made out as to whether the Board has jurisdiction after making selection and preparing waiting list to command Respondent No. 1 not to

operate the waiting list which has been prepared as per mandate of law.

Board has been provided an opportunity to meet the challenge of the appellant as projected. It is settled proposition of law that once action of

a particular authority is challenged before the court it is duty of that authority to defend its action. SSRB in this case has miserably failed. Learned

counsel for the appellants could not make out as to whether the letter being contrary to the provisions of law could be entertained by the State,

particularly when the selection has been made and not withdrawn by the SSRB. The fall out vacancies and the selected candidates are available, it

is unjustified on the part of Respondent No.1 not to utilize the vacancies for which selection list has been prepared and forwarded.

For the aforesaid reasons, we are of the considered view that plea of the Stateappellant cannot be entertained which is not justified. Therefore,

we maintain the judgement of the learned Single Judge and dismiss the appeal.