Important point
Govt. can by a policy decision appoint people from the waiting list and while issuing advertisement the Govt. could have taken into account likely vacancies.

Headnote:Service Law—Jammu and Kashmir Medical Education Gazetted Service Recruitment Rules, 1979—Rule 57—Appointment of three appellant doctors was set aside by High Court in writ appeal holding that appointments were beyond notified vacancies as per advertisement and it was not a case of existing vacancies which were not notified—Appeal—While issuing advertisement the Govt. could have taken into account likely vacancies—Prior to date of advertisement cases of four doctors who had been promoted on officiating basis were receiving consideration of PSC—It could not be said prima facie that there were no existing vacancies or likely vacancies—Matter however needed to be remitted as certain questions needed consideration like why PCS prepared select list of only two persons when it could have drawn up list of six persons and that if there were six vacancies (two notified and four existing) whether eligibility was to be reckoned with reference to date of advertisement or from date select list was prepared.
Held : 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, PSC 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 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. (Paras 9 to 13)

Judgment

Arijit Pasayat, J.—Leave granted.

2. 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:

3. 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.

4. 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 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.

5. 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 Me

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2005 Supreme(SC) 355

Important pointGovt. can by a policy decision appoint people from the waiting list and while issuing advertisement the Govt. could have taken into account likely vacancies.

Cases Referred (2)

Important point
Govt. can by a policy decision appoint people from the waiting list and while issuing advertisement the Govt. could have taken into account likely vacancies.