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CASE NO.: Appeal (civil)  1396-1397 of 2005

PETITIONER: State of J & K and Ors.

RESPONDENT: Sanjeev Kumar and Ors.

DATE OF JUDGMENT: 24/02/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of S.L.P. (C) Nos. 21637-21638 of 2003)

(With C.A. Nos.1411-1412/2005 @ SLP (Civil) Nos.21954-955/2003)

ARIJIT PASAYAT, J.

       Leave granted.

       These appeals are directed against the judgment rendered by a  Division Bench of the Jammu and Kashmir High Court holding that the  appointment of three doctors, namely, Dr. Muzaffar Jan, Dr. Ghulam  Rasool Wani and Dr. Ghanshyam Saini-the appellants in the civil appeals  corresponding to SLP (C) Nos.21954-21955 of 2003 to be illegal.  They  are also private respondents in the appeals filed by the State of Jammu  and Kashmir, and Jammu and Kashmir Public Service Commission (in short  the ’PSC’).

       Backgrounds facts in a nutshell are as follows:  

       An advertisement was issued on 12.10.1998 by the State inviting  applications for appointment as lectures in Paediatrics in the Medical  Education Department of the State of Jammu and Kashmir. Before that  date four persons had been granted ad-hoc promotion as Assistant  Professors. Such promotion was subject to approval by the PSC.  On  23.10.1998 PSC accorded approval to the promotion of the four lecturers  as Assistant Professors.

       In response to the advertisement, several persons had applied.   Dr. Sanjeev Kumar and Dr. Arun Gandotra (the writ petitioners before  the High Court) had also applied.  Since they were not found eligible  for appointment they were not called for interview. Questioning such  action writ petitions were filed by them. Pursuant to interim orders by  the High Court they were allowed to participate in the selection  process; but were not found eligible. The writ petitions filed by them  were dismissed. There was no further challenge. Subsequently, a select  list was prepared by the PSC indicating that one Dr. Nazir Ahmad Parray  was placed at no.1 while the result in respect of second post was being  held.  A waiting list was prepared where names of Dr. Muzaffar Jan, Dr.  Ghulam Rasool Wani and Dr. Ghanshyam Saini were listed.  The select  list was prepared on 25.10.1999.  According to the operative Rules i.e.  Jammu and Kashmir Medical Education Gazetted Service Recruitment Rules,  1979 (in short the ’Rules’) period of validity of the list is one year  which may be extended by another six months  on special request of the  Government if the request for such extension is made before the expiry  of the validity of the panel.  The relevant Rule is Rule 57. Before the

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expiry of the one year, period Dr. Muzaffar Jan, Dr. Ghulam Rasool Wani  and Dr. Ghanshyam Saini were appointed.  Questioning their  appointments,  Dr. Sanjeev Kumar and Dr. Arun Gandotra filed writ  petitions before the Jammu and Kashmir High Court.  A learned Single  Judge dismissed the application holding that the appointments were made  in accordance with the Rules, and there was nothing infirm and in any  event the writ petitioners who were found ineligible initially and  their challenge to the selection was held to be without substance  cannot raise any dispute. Letters Patent Appeals were filed before the  High Court.  By the impugned judgment the Division Bench of the High  Court allowed the appeal  holding that the appointments were beyond the  notified vacancies as per advertisement and this was not really a case  of existing vacancies which were not notified.  On the contrary, it was  in respect of future vacancies.  It was held that though learned Single  Judge had referred to certain Rule as regards preparation of select  list, the specific Rule was not noted.  The writ petitioners had locus  standi to question the selection as they could have come within the  zone of consideration had these posts been notified.  Though reference  was made to certain policy decisions to justify the appointments the  relevant files were not produced in spite of specific directions.

       In support of the appeals, learned counsel for the appellants  submitted that the High Court rejected the State’s stand that the  policy decision was taken to appoint the selected persons, in view of  the piquant situations, the relevant files could not be produced. The  files would clearly indicate that to meet the requirements as stated by  the Medical Council of India (in short the ’MCI’) appointment from the  waiting  list  was   imperative.        The  approach of the High Court was  erroneous both factually and legally. It failed to notice that because  of the officiating promotions given to four persons, there were four  vacancies existing. Merely because they were not notified, that did not  make the situation different. It was not really a case of future  vacancies but anticipated and existing vacancies. Since it is  permissible, no faults should have been found by the High Court.  The  writ petitioners did not possess the requisite qualifications and,  therefore, they did not have locus standi to challenge the selection.

       In response, learned counsel for the writ petitioners  (respondents in the present appeals) submitted that the State had not  made any requisition for six posts.  It had categorically advertised  for two posts. If in reality the PSC had considered the four vacancies  to be existing vacancies, it would have made list of six candidates and  would not have drawn up waiting list.  Though the writ petitioners were  found to be ineligible on the date of advertisement, they were eligible  on the date the select list was drawn up. The advertisement indicated  the eligibility criteria to be as on 26.10.1998.   

       The legal position so far as the case of existing vacancies,  notified vacancies and future vacancies has been set out by this Court  in several decisions.  In Prem Singh and Ors. v. Haryana State  Electricity Board and Ors. (1996 (4) SCC 319), in paragraphs 25 and 26  it was laid down as follows:                                                                  "25. From the above discussion of the case-law it  becomes clear that the selection process by way of  requisition and advertisement can be started for  clear vacancies and also for anticipated vacancies  but not for future vacancies. If the requisition and  advertisement are for a certain number of posts only  the State cannot make more appointments than the  number of posts advertised, even though it might  have prepared a select list of more candidates. The  State can deviate from the advertisement and make  appointments on posts falling vacant thereafter in  exceptional circumstances only or in an emergent

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situation and that too by taking a policy decision  in that behalf. Even when filling up of more posts  than advertised is challenged the court may not,  while exercising its extraordinary jurisdiction,  invalidate the excess appointments and may mould the  relief in such a manner as to strike a just balance  between the interest of the State and the interest  of persons seeking public employment. What relief  should be granted in such cases would depend upon  the facts and circumstances of each case.  26. In the present case, as against the 62  advertised posts the Board made appointments on 138  posts. The selection process was started for 62  clear vacancies and at that time anticipated  vacancies were not taken into account. Therefore,  strictly speaking, the Board was not justified in  making more than 62 appointments pursuant to the  advertisement published on 2-11-1991 and the  selection process which followed thereafter. But as  the Board could have taken into account not only the  actual vacancies but also vacancies which were  likely to arise because of retirement etc. by the  time the selection process was completed it would  not be just and equitable to invalidate all the  appointments made on posts in excess of 62. However,  the appointments which were made against future  vacancies - in this case on posts which were newly  created - must be regarded as invalid. As stated  earlier, after the selection process had started 13  posts had become vacant because of retirement and 12  because of deaths. The vacancies which were likely  to arise as a result of retirement could have been  reasonably anticipated by the Board. The Board  through oversight had not taken them into  consideration while a requisition was made for  filling up 62 posts. Even with respect to the  appointments 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. Therefore, in view of the special  facts and circumstances of this case we do not think  it proper to invalidate the appointments made on  those 25 additional posts. But the appointments made  by the Board on posts beyond 87 are held invalid.  Though the High Court was right in the view it has  taken, we modify its order to the aforesaid extent.  These appeals are allowed accordingly. No order as  to costs."  

       As is clearly spelt from the quoted portion, the Government can  by a policy decision appoint people from the waiting list. It has been  laid down that on the facts of Prem Singh’s case (supra) while issuing  advertisement the Government could have taken into account likely  vacancies.  The principle in Prem Singh’s case (supra) was followed in  Virender S. Hooda and Ors. v. State of Haryana and Anr. (1999 (3) SCC  696).  

It appears from the records that prior to the date of  advertisement cases of four persons who had been promoted on  officiating basis were receiving consideration of the PSC. In fact,  within a very short period from the date of the advertisement, PCS  approved the recommendations from promotions for four persons.  Therefore, it cannot be prima facie said that there were no existing  vacancies or likely vacancies. Additionally, the effect of Rule 57 has  not been considered by the Division Bench on the strong reasoning that

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though learned Single Judge had referred to a Rule, the specific Rule  was not indicated. It is not in dispute that such a Rule exists. It was  not the case of the writ petitioners in the Appeal before the Division  Bench that no such Rule exists. The effect of the Rule was required to  be considered by the High Court.  

But several other questions also need to be considered. One is  why the PCS prepared select list of only two persons, when it could  have drawn up list of six persons, while drawing up of the select list  on 25.10.1999 after the interview on 14.9.1999.  Though a reference has  been made by the High Court to the PSC’s stand in its judgment, the  details are not indicated.  

Further the question that needs to be considered is if there were  six vacancies (two notified and four existing), whether the eligibility  was to be reckoned with reference to 26.10.1998 or from the date select  list was prepared on 25.10.1999.  This has to be considered in the  background of the dismissal of the earlier writ petitions filed by Dr.  Arun Gandotra and Dr. Sanjeev Kumar. There is no definite finding  recorded by the Division Bench in this regard.

Additionally we find that though the State was asked to produce  the files, it appears that for reasons beyond its control the files  containing the alleged policy decision could not be produced for  perusal of the Bench hearing the appeals.   

       In the aforesaid background, we remit the matter to the High  Court for fresh consideration. Parties shall be permitted to file  further affidavits and documents in support of their respective stand.  As undertaken by the learned counsel for the State, files shall be  produced as and when required by the Bench hearing the appeal.

       The existing position pursuant to interim order of this court  shall continue till disposal of the matter afresh by the High Court. We  make it clear that we have not expressed any opinion on the merits,  which shall be considered by the High Court uninfluenced by any  observation made by it earlier in the impugned judgment.

       The appeals are accordingly disposed of without any order as to  costs.