State of J.K. vs Shabir Ahmad Shabir

Mr. Ali Mohammad Magrey, J.—Review petitioners-respondents 1 and 3 in the writ petition SWP No. 1862/2015 are seeking review of final

order/Judgment dated 26.08.2015 and recalling of the same on the grounds detailed out in the review petition. In order to appreciate the grounds

forming the basis for seeking review of the Judgment, it shall be appropriate to detail out the brief facts of the case as under:-

The J&K Service Selection Board vide advertisement notification No. 04 of 2013 dated 23.02.2013, invited applications for the post of Village

Level Worker, District Cadre, Shopian. The applications were invited for 27 posts. Out of these 27 posts, 14 posts were in the ""Open Merit

category and the remaining posts in various reserved categories. Writ petitioners from serial No. 1 to 13 belong to ""Open Merit"" category and

petitioners 14 to 18 belong to reserved category of ""RBA/ST/SC"".

The Service Selection Board conducted a common uniform test of the candidates who had applied for Village Level Worker posts and those

who had applied for the post of Teacher. Writ petitioners appeared in the Common test and having made the grade, were called for the interview.

Some of the petitioners had applied for both the posts of Teacher as well as Village Level Worker. Vide notification dated 09.12.2014, the

Service Selection Board notified the ""Merit List"" of the candidates including that of the writ petitioners.

Admittedly, having regard to the merit, none of the petitioners were selected and the selection list was notified vide notification No.

SSB/Sel/Secy/2014/9158-62 dated 21.10.2014. Since the candidates had applied for both the posts, viz Teacher and Village Level Worker, the

selection list mentioned several of the candidates as having been selected both as Teacher as well as Village Level Worker. Writ petitioners claim

that as many as 22 candidates were shown selected as Teacher as well as Village Level Worker, therefore, all the 22 candidates who had been

selected as Village Level Worker joined as Teachers and out of 27 candidates only 4 candidates joined as Village Level Worker and because of

non-joining of as many as 23 candidates as Village Level Worker, the Director Rural Development Department, Kashmir vide communication No.

DRDK/Estt/2538 dated 20.04.2015 informed the Secretary to Government, Rural Development Department that despite appointment of 26

candidates only 03 candidates have joined. He further informed the Secretary that ""waiting list"" was operated by the department but again only 01

candidate joined.

As the sequence of above, it is stated that 22 posts have remained vacant. Petitioners in the writ petition state that the Administrative Secretary,

acting on the communication of the Director Rural Development Department, Kashmir, Srinagar, addressed a communication to Service Selection

Board under No. RD/PR/Estt/NG/16/2014 AF dated 07.07.2015 and the Service Selection Board in response to the communication referred to

above, forwarded the list of 21 candidates vide communication No. SSB/Secy/Sel/2015/7373-75 dated 07.08.2015.

Writ petitioners feeling aggrieved of non issuance of appointment orders in their favour, filed the writ petition and claim the following reliefs:-

Writ direction or order including a writ in the nature of mandamus respondents be directed to issue appointment orders of the petitioners in

accordance with the recommendations of Service Selection Board as contained in Annexure-E appended to this petition.

This Court in terms of Judgment/final order dated 26.08.2015, with the consensus of learned counsel for the parties, disposed of the writ

petition. For convenience the operative portion of the Judgment is reproduced as under:-

(i) Respondent No. 1 shall consider the recommendation made by SSB as contained in the communication dated 07.08.2015 and after accord of

consideration grant necessary approval.

(ii) Respondent No. 3 on receipt of approval from the Government shall issue necessary appointment orders of the petitioners and the eligible

candidates in terms of rules and norms.

(iii) Decision shall be taken within a period of one month from the date copy of the order is served upon respondents.

Disposed of along with connected CMP(s).

Respondent State (review petitioners) have filed the instant review petition seeking review of the Judgment/ final order dated 26.08.2015 and

recalling of the same on the grounds taken in the review which are summarized as under:-

The petitioners received a select list from the Service Selection Board and accordingly, appointment orders in favour of 26 candidates were

issued. Out of the 26 candidates only 03 candidates joined in the office of Project Officer, Wage Employment (ACD) Shopian. It is stated that

subsequently while operating the waiting list only 01 candidate joined. In the meantime, representations were received from the candidates who

had applied for the post of Village Level Workers. After examining the representations a communication was made to the Service Selection Board

to submit another waiting list but instead of waiting list, the Service Selection Board submitted a list of the candidates in order of merit.

It is submitted that the case was again examined and it was found that the furnishing of merit list by Service Selection Board was dehors Rule

14(7) of Civil Services Decentralization and Recruitment Rules, 2010, as it was not a select list and therefore, the letter dated 07.07.2015 was

withdrawn and referred the posts to Service Selection Board again for selection. It is submitted that the candidates figuring in merit list filed SWP

No. 1862/2015, which came to be decided in terms of the Judgment dated 26.08.2015, It is further averred that the review petitioners are

aggrieved of the said Judgment and as such are seeking review of the same on the ground that in terms of the Judgment dated 26.08.2015, the

review petitioner No. 1 has been bound by this Hon''ble Court to consider the recommendation of the proforma respondent No. 19 as contained

in communication dated 07.08.2015 and after accord of consideration grant necessary approval. The Hon''ble Court has also bound the review

petitioner No. 2 to issue necessary appointment orders in favour of respondents 1 to 18. It has also been directed in terms of the Judgment supra

to take a decision in the matter within a period of one month from the date copy of the Judgment is served upon the review petitioners.

It is submitted that it is a settled position of law that recommendation made by the Service Selection Board is not binding upon the appointing

authority. If the Government/appointing authority has a valid reason, the recommendations made by the selection authority with respect to selected

candidates can be turned down. It is averred that the merit list furnished by the proforma respondent No. 19 ( being neither the selection list nor

the waiting list) has been made binding upon the writ petitioners in terms of the said Judgment.

The respondents 1 to 18 do not figure in the select list nor in the waiting list but have been shown figuring in the merit list prepared by the

proforma respondent No. 19 and therefore, have no right to approach this Hon''ble Court to seek appointment on the basis of merit list which has

no legal force in view of Rule 14(7) Civil Services Decentralization and Recruitment Rules, 2010. It is further submitted that the respondents 1 to

18 have not informed this Hon''ble Court that the letter dated 07.07.2015 has already been withdrawn by the review petitioner No. 1 vide letter

dated 24.08.2015 and therefore, once the letter dated 07.07.2015 upon which the respondents 1 to 18 are banking upon their case has been

withdrawn, the respondents 1 to 18 had no cause to maintain the writ petition.

It is submitted that the respondents 1 to 18 have not informed this Hon''ble Court that the posts of Village Level Workers (22 Nos.) which had

fallen vacant in District Shopian have been referred to Service Selection Board vide letter No. RD/PR/Est/NG/145/2015 dated 20.08.2015. It is

further averred that the said posts have also been advertised by the Service Selection Board and therefore, in absence of the posts the respondents

1 to 18 have no legal justification to claim for their appointment.

Heard learned counsel for the parties, perused the records and considered the matter.

Since no recommendation with reference to selection of writ petitioners is made by the Service Selection Board against the post of Village

Level Workers, therefore, merely on the basis of merit list they cannot seek mandamus for directing the respondents to accord approval of the

recommendation and appoint them against the said posts. Important it is that the fact of the posts having become available on non-joining of

selected and wait list candidates have been referred for fresh selection and the process of selection initiated on the requisition of review petitioner,

therefore, the earlier selection process stands completed. The review petitioners-state respondents have rightly asked the Board to treat the letter

dated 07.08.2015 as withdrawn. Law on the subject is no more res-integra as even selected candidate has no right to seek consideration for

appointment not to speak of the candidate, who is only in the merit list.

Learned counsel for the review petitioners submits that the process of selection against the post of Village Level Workers has become

complete and final as soon as the recommendation of the Selection Committee was accepted and appointment orders issued and the appointed

candidates having failed to join the posts, therefore, non-joining of the candidates has formed basis for referring the posts for fresh selection.

Mr. Z. A. Shah, learned Senior counsel, appearing on behalf of the writ petitioners submits that there is no substance in the submissions made

by the State counsel, reiterating the grounds taken in the review petition. Learned counsel submits that the review petition is bereft of the material

supporting the claim of the State and is meritless. It is further averred that the pleadings in the petition are factually incorrect and legally

unsustainable. Learned senior counsel further submits that there is no error apparent on the face of the record which can form the basis for grant of

relief.

It is now well settled by a series of decisions of the Supreme Court that a select list does not confer any right on the candidate whose name

figures in the list to appointment. At best it is a condition of eligibility for the purpose of appointment and which by itself does not amount to

selection nor does it create a vested right to be appointed. The legal position has been settled by now a Constitution Bench in Shankasran Dash

v. Union of India. 1991 (3) SCC 47 where the Court held that ordinarily the notification merely amounts to an invitation to qualified candidates to

apply for recruitment and on their selection they do not acquire any right to the post.

Reference in this behalf may also be made to State of Bihar v. Secretarial Assistant Successful Examinee Union 1994 (1) SCC 126,

Babita Prasad v. State of Bihar JT 1992 Suppl. SC 135 U. P. Bomidar Nigam Ltd. v. Shiv Naryan Gupta 1994 Suppl (2) SCC 541.

Since mere selection did not confer any right on the petitioners to claim appointment, I find that the present writ cannot stand. Petitioners had

no vested right to challenge either cancellation of the earlier list of the fresh appointments made under the new selection by the authorities. In view

of this settled position of law the authorities cited and relied upon by the learned counsel for the petitioner cannot be made applicable to the present

case and the pleas raised cannot be entertained.

In State of Bihar v. Secretarial Assistant Successful examines Union (Supra) the Apex Court held as under:

It is no well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment.

Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right

to be appointed unless relevant service rule says to the contrary.

In Babita Prasad (Supra) the candidates who had been selected had even been deputed for training at the Government expenses. The Court

held that the mere fact that the candidates who had been brought on the panel had been sent for training at the Government expense, would not

imply that any right had been created in their favour for appointment.

Considering the pleadings of the review petition with supportive material and law on the subject, this Court is of considered opinion that there

is an error on the face of the record, which needs to be corrected.

In view of above, the review petition is allowed and the final order dated 26.08.2016 passed in SWP No. 1862/2015 is recalled,

consequentially writ petition being without merit shall stands dismissed.

No order as to costs.