The main legal point established is that the court can direct the Public Service Commission to recommend the appointment of a candidate against a vacancy caused by non-joining of another candidate, based on the next meritorious candidate and relevant rules.

Aradhe, J.

1. By an order dated 23.08.2017, requirement of service of notice on respondent Nos. 2 to 7 was dispensed with as they were not the contesting respondents. Petition is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally.

2. In this intra Court Appeal, the appellant has assailed the validity of order dated 24.10.2016 passed by the learned Single Judge by which the writ petition preferred by the petitioner- respondent No.1 herein has been allowed and the Public Service Commission has been directed to recommend the name of respondent No.1 against a vacancy caused on account of non-joining of respondent No.6 herein. It has further been directed that the there would be no requirement for the Public Service Commission to elicit a request from the General Administration Department to ascertain whether the vacancy exists or not on account of non-joining of respondent No.6. The General Administration Department has been directed to pass requisite orders within three weeks and respondent No.1 has also been granted liberty to submit an appropriate representation with regard to his claim for seniority as also other claims which shall be dealt with by the appellant herein in accordance with rules. In order to appreciate the appellant’s challenge to the impugned order, few facts need mention are stated infra.

3. Respondent No.1 appeared in the J&K Combined Competitive Examination, 2010 conducted by the Public Service Commission vide notification dated 01.05.2010. Respondent No.1 and respondent No.6 herein were selected under SC category and allotted Police Services. Respondent No.6 herein did not join and respondent No.1 was the next candidate in the select list. However, he was not given appointment. Thereupon, respondent No. l approached this Court by filing SWP No.2401/2012. In the said writ petition, the Public Service Commission filed response in which it was stated that it had not prepared any waiting list, therefore, respondent No.1 had no right of consideration for appointment. Learned Single Judge by placing reliance on the Division Bench decision of this Court rendered in LPASW No. 195/2013 allowed the writ petition with directions which have been referred to supra. In the aforementioned factual background, this intra Court Appeal has been filed.

4. Mrs. Seema Shekhar learned Sr. AAG submitted that the select list was prepared on 21.11.2011 and the validity of the said select list was only for a period of one year. The vacancy which was left over in the year 2010-11 was carried forward to the next year i.e 2012-13. It is further submitted that the learned Single Judge ought to have appreciated that in fact, no vacancy exists, there fore, the directions for appointment could not have been issued. Alternatively, it is submitted that the appellant ought to have been granted liberty to ascertain whether or not any vacancy exists.

5. On the other hand, Mr. Abhinav Sharma learned counsel for respondent No.1 submitted that 122 posts were allotted to the Police Department. It is further submitted that there were three vacancies under SC category and final select list could be published only after the medical examination was conducted. In the instant case, since the medical examination of the candidates was not conducted, therefore, no final select list was issued. In this connection, learned counsel for respondent No.1 has invited our attention to the averments contained in paragraph Nos. 5 to 9 of the counter affidavit filed by the Public Service Commission. It is also submitted that respondent No.6 herein namely Lokesh Kumar, the last selected candidate under SC category has sworn an affidavit from which it is evident that a vacancy exists, therefore, the learned Single Judge has rightly issued the directions contained in the impugned order.

6. We have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, respondent No.1