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Friday, February 8, 2013

service matter = The controversy in hand is yet another illustration of the denial of a legitimate claim, of an innocent citizen. Rather than appreciating the claim raised by the respondent before the High Court through SWP no.1156 of 2009, to which the appellants failed to even file their response, the same was ordered to be closed by an order dated 5.4.2010. = a waiting list was valid for one year. The fact that the prevalent rules envisaged, that the merit list of candidates in continuation of those offered appointment, would constitute the waiting list, and would be valid for a period of one year, was not disputed even before us.= it would be just and appropriate to direct the appellants to appoint the respondent Sat Pal against the post of Junior Engineer (Civil) Grade-II. The aforesaid offer of appointment will relate back to the permissible date contemplated under the rules laying down conditions of service of the cadre to which the respondent Sat Pal will be appointed. Naturally, the respondent will be entitled to seniority immediately below those who were appointed from the same process of selection. Since Sat Pal has not discharged his duties, he would be entitled to wages only with effect from the date of the instant order.


                                                                “REPORTABLE”

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 938-939 OF  2013
              (Arising out of SLP (C) Nos. 31591-31592 of 2012)


State of J&K & Ors.                                …. Appellants

                                   Versus

Sat Pal                                            …. Respondent


                               J U D G M E N T


JAGDISH SINGH KHEHAR, J.

1.    Leave granted.
2.    The Public Works Department of the State of Jammu & Kashmir  conducted
a process  of  selection,  for  recruitment  against  the  posts  of  Junior
Engineer (Civil) Grade-II.  
Sat Pal, the respondent herein  participated  in
the aforesaid process of selection.  He  was  successful,  inasmuch  as,  he
figured in the  final  merit/select  list  of  scheduled  caste  candidates,
prepared at the culmination of the selection process.   
Having  learnt  that
some scheduled cast candidates above him in the merit/select  list  had  not joined inspite of having been  offered  appointment,  Sat  Pal  addressed  a representation to the appellants seeking appointment  against  an  available vacancy. 
In his representation, he mentioned the name  of  Trilok  Nath  as
one of the selected candidates, who had been offered  appointment,  but  had
not joined.  
In his  representation,  he  also  pointed  out,  that  in  the
merit/select list  pertaining  for  scheduled  caste  candidates,  his  name
figured immediately after the name of the said Trilok Nath.
3.    Since the representation filed by the respondent  remained  undecided,
he approached the High Court  of  Jammu  &  Kashmir  at  Jammu  (hereinafter
referred to as, the High Court) by filing SWP no. 1156 of 2009.  
Before  the
High Court, the respondent Sat Pal reiterated the factual position  asserted
by him in his representation.  
To substantiate his assertion  pertaining  to
Trilok Nath, that although  the  aforesaid  Trilok  Nath  had  been  offered
appointment  against  the  post  of  Junior  Engineer  (Civil)  Grade-II  on
22.4.2008, Trilok Nath had not joined against the same,   he  placed  before
the High Court a communication dated 5.5.2008 issued by the  Chief  Engineer
(R&B) Department, Jammu, narrating that Trilok Nath was  not  interested  to
join against the post of Junior Engineer (Civil) Grade-II.
4.    Before the High Court, the respondent relied upon the prevalent  rule,
whereunder, 
a waiting list was valid  for  one  year.   The  fact  that  the prevalent  rules  envisaged,  that  the  merit   list   of   candidates   in continuation of those offered  appointment,  would  constitute  the  waiting list, and would be valid for a period of one year,  was  not  disputed  even before us.
5.    Despite the High Court having issued notice to  the  State  Government
in SWP no.1156 of 2009, and had required it to  file  pleadings,  the  State
Government i.e.,  the  appellants  before  this  Court,  did  not  file  any
objections.  The right of the appellants to file objections  was  closed  by
an order dated 5.4.2010.
In the  aforesaid  view  of  the  matter,  it  was
natural for the High Court  to  infer,  that  the  assertions  made  by  the
respondent  before  it,  were  truthful   and   acceptable   for   a   final
determination of the controversy.  
Despite the aforesaid, the  High  Court
disposed  of  the  aforesaid  writ  petition  at  the  admission  stage,  by
directing the appointing authority to examine the claim of  the  respondent,
for appointment against the post of Junior  Engineer  (Civil)  Grade-II,  by
keeping in mind  the  communication  dated  5.5.2008  issued  by  the  Chief
Engineer (R&B) Department,  Jammu,  affirming  that  Trilok  Nath,  who  was
offered appointment against the post under reference, had declined to  join.
 The High Court required the appellants herein to take a final  decision  in
respect of the appointment  of  the  respondent,  within  a  period  of  two
months, from the date a copy of  the  order  of  the  High  Court  was  made
available.
6.    In compliance of the directions issued by the High  Court  vide  order
dated 9.8.2010 in SWP no. 1156 of 2009, the appellants passed  an  order  on
23.8.2011.
By the said order dated 23.8.2011, the claim of  the  respondent
for appointment against the post of Junior  Engineer  (Civil)  Grade-II  was
rejected for the following reasons:-
      “(i)  In view of the fact that the waiting list issued in  respect  of
           the recruitment has outlived its validity way back in May,  2008
           itself, he cannot be granted appointment in accordance with  the
           same.

      (ii)  And that for the abovesaid reason, vacancies cannot be filled at
           a belated stage.”

7.     Aggrieved  by  the  rejection  order  dated  23.8.2011,  rather  than
assailing the same by way of a fresh writ  petition,  the  respondent  filed
Contempt (SWP) no.  157  of  2011.   
The  aforesaid  contempt  petition  was
disposed of by  the  High  Court  vide  order  dated  29.10.2011,  with  the
following observations:-
      “The claim of the petitioner for his appointment  as  Junior  Engineer
      (Civil) Grade-II arose during the validity of select  list/wait  list.
      The duty was cast on the competent authority, who was  seized  of  the
      select list/wait list to fill up the vacancies from the wait list, but
      it failed to perform its duty.  It is not the fault of the  petitioner
      that his claim for appointment was not considered during the  validity
      of select list/wait list.  The fault is committed by the authority and
      the petitioner cannot penalized  for  the  same.   The  claim  of  the
      petitioner on merits deserved to be allowed for being appointed on the
      post of Junior Engineer (Civil) Grade-II when  select  list/wait  list
      was in operation.  Same having not been done  despite  request  having
      been made, his right of consideration for being appointed  would  thus
      survive though such claim was considered by the Government  after  the
      expiry of the validity period of select list/wait list.

            Consideration order issued by the  Government  does  not  comply
      with the court directions.  Before initiating action for framing  rule
      in this contempt  petition,  it  will  be  appropriate  to  afford  an
      opportunity to the respondents to consider the whole  issue  and  pass
      orders in accordance with judgment of the Court.  Four week’s time  is
      granted to the respondents to reconsider the whole issue in the  light
      of the observations made hereinabove and file compliance report by  or
      before next date.”

8.    The appellants herein were aggrieved by the order passed by  the  High
Court in Contempt (SWP) no. 157 of 2011 filed by the respondent,  since  the
appellants felt, that the directions in the  nature  recorded  by  the  High
Court  (in  the  order  extracted  hereinabove),  were  not  permissible  in
exercise of contempt jurisdiction.  It is, therefore,  that  the  appellants
preferred a letters patent appeal (LPAC no.2 of 2012) to  assail  the  order
dated 29.10.2011 passed by the High Court  in  Contempt  (SWP)  no.  157  of
2011.  The letters patent bench, by its order dated 3.4.2012, held the  said
letters patent appeal as not maintainable.  The orders passed  by  the  High
Court dated 29.10.2011 and 3.4.2012 have been  assailed  by  the  appellants
before this Court, by way of present appeals.
9.    The controversy in hand is yet another illustration of the  denial  of
a legitimate claim, of an innocent citizen.  Rather  than  appreciating  the
claim raised by the respondent before the High Court through SWP no.1156  of
2009, to which the appellants failed to even file their response,  the  same
was ordered to be closed by an order dated  5.4.2010. 
 Thereupon  appellants
have chosen to pursue a course, which would sideline the  main  controversy.
The course adopted would neither serve their own purpose,  nor  the  purpose
of the respondent Sat Pal.
10.         It is not a matter of  dispute,  that  the  respondent  Sat  Pal
participated in a process of selection for recruitment against the  post  of
Junior Engineer (Civil) Grade-II.
It is also not in dispute, that his  name
figured in the merit/select list  of  scheduled  caste  candidates.
 Trilok
Nath, who had been offered appointment against the post of  Junior  Engineer
(Civil) Grade-II on 22.4.2008, did not  join,  despite  the  said  offer  of
appointment.
The instant fact is fully substantiated from the  order  dated
5.5.2008 issued by the Chief Engineer (R&B) Department, Jammu.  Even  though
candidates who were higher in merit, were offered appointment  to  the  post
of Junior Engineer (Civil) Grade-II, for which recruitment  was  held,  some
of such posts remained vacant on account of the fact that persons higher  in
merit to the respondent Sat Pal had declined to join,  despite  having  been
offered appointment.
Atleast one such vacancy offered to Trilok Nath  never
came to be filled up.  In such a situation, the claim of the respondent  Sat
Pal whose name figured in the merit/select list, ought to have been  offered
appointment against the said post.
The claim of respondent  Sat  Pal  could
not have been repudiated, specially on account of his  assertion,  that  his
name  in  the  merit/select  list   amongst   Scheduled   Caste   candidates
immediately below the name of Trilok Nath, was  not  disputed  even  in  the
pleadings before this Court.  It is not the case of  the  appellants  before
this  Court,  that  any  other  candidate  higher  than  Sat  Pal   in   the
merit/select list is available out of Scheduled Caste  candidates,  and  can
be offered the post against which Trilok Nath had not joined.
11.   In view of  the  factual  position  noticed  hereinabove,  the  reason
indicated by the appellants in declining the claim  of  the  respondent  Sat
Pal for appointment out of the  waiting  list  is  clearly  unjustified.   A
waiting list would start to operate only  after  the  posts  for  which  the
recruitment is  conducted,  have  been  completed.   A  waiting  list  would
commence to operate, when offers of appointment have been  issued  to  those
emerging on the top of the merit list.  The existence  of  a  waiting  list,
allows room to the appointing authority to fill  up  vacancies  which  arise
during the subsistence of the waiting list.  A  waiting  list  commences  to
operate, after the vacancies for which  the  recruitment  process  has  been
conducted have been filled up.  In the  instant  controversy  the  aforesaid
situation for operating the waiting list had not arisen, because one of  the
posts of Junior Engineer (Civil) Grade-II for which the recruitment  process
was conducted was actually never filled up. For the reason that Trilok  Nath
had not  assumed  charge,  one  of  the  posts  for  which  the  process  of
recruitment was conducted, had remained vacant.  That apart, even if  it  is
assumed for arguments sake, that all the posts  for  which  the  process  of
selection was conducted were duly filled up,  it  cannot  be  disputed  that
Trilok Nath who had participated  in  the  same  selection  process  as  the
respondent herein, was  offered  appointment  against  the  post  of  Junior
Engineer (Civil) Grade-II on  22.4.2008.   The  aforesaid  offer  was  made,
consequent upon his selection in  the  said  process  of  recruitment.   The
validity of the waiting  list,  in  the  facts  of  this  case,  has  to  be
determined with reference to 22.4.2008, because the vacancy was  offered  to
Trilok Nath on 22.4.2008.
 It is the said vacancy, for which the  respondent
had approached the  High  Court.   As  against  the  aforesaid,  it  is  the
acknowledged position recorded by  the  appellants  in  the  impugned  order
dated 23.8.2011 (extracted above), that the  waiting  list  was  valid  till
May, 2008. If Trilok Nath was found eligible  for  appointment  against  the
vacancy in question out of the same  waiting  list,  the  respondent  herein
would be equally eligible for appointment against the  said  vacancy.
 This
would be the unquestionable  legal  position,  in  so  far  as  the  present
controversy is concerned.
12.   The date of filing of the  representation  by  the  parties  concerned
and/or the date on which the competent authority  chooses  to  fill  up  the
vacancy in question, is of no consequence  whatsoever.  
The  only  relevant
date is the date of arising of the vacancy.  It would be a  different  legal
proposition,  if  the  appointing  authority  decides  not  to  fill  up  an
available vacancy, despite the availability of  candidates  on  the  waiting
list.
The offer made to Trilok Nath on 22.4.2008 by  itself,  leads  to  the
inference that the vacancy under reference arose within the  period  of  one
year, i.e., during the period of validity of the waiting list postulated  by
the  rules.  
The  offer  of  the  vacancy  to  Trilok  Nath,  negates   the
proposition posed above, i.e., the desire of the employer  not  to  fill  up
the vacancy.
Herein, the appellants wished to fill  up  the  vacancy  under
reference.  Moreover, this is not a case where the  respondent  was  seeking
appointment against a vacancy, over  and  above  the  posts  for  which  the
process of selection/ recruitment was  conducted.  Based  on  the  aforesaid
inference, we have no hesitation in concluding that the appellants ought  to
have appointed the  respondent  Sat  Pal,  against  the  vacancy  which  was
offered to Trilok Nath.
13.    The  issue  arising  for  consideration  herein,  has  already   been
adjudicated upon by this Court.  In the  first  instance  reference  may  be
made to the decision rendered by this Court in Virender S. Hooda   v.  State
of  Haryana  (1999)  3  SCC  696.   In  the  instant   case   administrative
instructions envisaged, that vacancies which came into existence within  six
months of the date of  recommendation  by  the  Public  Service  Commission,
could be filled up from the earlier process of selection.  The  observations
made by this Court on the  instant issue,  in  the   aforesaid   background,
are being  extracted below:
      “…..The fact that there were further vacancies available  and  when  9
      vacancies were advertised to be filled  up  within  a  period  of  six
      months after announcement of the previous selection cannot be disputed
      at all.  In terms  of  the  circulars  issued  by  the  Government  on
      22.3.1957 and 26.5.1972 when such vacancies arise  within  six  months
      from  the  receipt  of  the  recommendation  of  the  Public   Service
      Commission they  have  to  be  filled  up  out  of  the  waiting  list
      maintained by the Commission.  In respect of the vacancies which arise
      after the expiry of six months it is necessary to send the requisition
      to the Commission.  It is also made clear that if the Commission makes
      recommendations regarding a post  to  the  Department  and  additional
      vacancies occur in the Department within a period of six months on the
      receipt of the recommendations, then the vacancies which  occur  later
      on can be filled in from amongst the additional candidates recommended
      by the Commission.  It is urged  on  behalf  of  the  appellants  that
      letter dated 7.1.1992 indicated that the cadre strength in the Haryana
      Civil Service (Executive Branch) was  440  and  the  officers  filling
      these posts were around 129 and there was a shortfall of  111  and  23
      posts had to be filled up by direct recruitment.  Thus  12  posts  for
      direct recruitment were vacant when the advertisement for  recruitment
      was made which was held in  1991.   Therefore,  the  appellants’  case
      ought to have been considered when some  of  the  vacancies  arose  by
      reason of non-appointment of some of the candidates.   Therefore,  the
      Government ought to have considered the case of the appellants as  per
      the rank obtained by them and the appellants had to  be  appointed  if
      they came within the range of selection.  Thus  when  these  vacancies
      arise within the period of  six  months  from  the  date  of  previous
      selection the circulars are attracted and hence the view of  the  High
      Court that vacancies arose after selection process  commenced  has  no
      relevance and is contrary to the declared policy of the Government  in
      the matter to fill up such posts from the waiting list.”


This Court has  also  considered  the  same  issue  wherein  there  were  no
rules/administrative instructions for filling up vacancies from the  waiting
list.
While examining the aforesaid issue this Court  in  Mukul  Saikia  v.
State of Assam, (2009) 1 SCC 386, held as under:
      “At the outset it should be noticed that the select list  prepared  by
      APSC could be used to fill  the  notified  vacancies  and  not  future
      vacancies.  If the requisition  and  advertisement  was  only  for  27
      posts, the  State  cannot  appoint  more  than  the  number  of  posts
      advertised, even  though  APSC  had  prepared  a  select  list  of  64
      candidates.  The select list got exhausted when all the 27 posts  were
      filled.  Thereafter, the candidates below the 27 appointed  candidates
      have no right to claim appointment to any vacancy in regard  to  which
      selection was not held.   The fact that evidently and  admittedly  the
      names of the appellants appeared in the select  list  dated  17.7.2000
      below the persons who have been appointed on merit against the said 27
      vacancies, and as such they could not have been appointed in excess of
      the number of posts advertised as the  currency  of  select  list  had
      expired as soon as the number  of  posts  advertised  are  filled  up,
      therefore, appointment beyond the number  of  posts  advertised  would
      amount to filling up future vacancies meant for direct  candidates  in
      violation of quota rules.  Therefore, the appellants are not  entitled
      to claim any relief for themselves.  The  question  that  remains  for
      consideration is whether there  is  any  ground  for  challenging  the
      regularisation of the private respondents.”


The determination  rendered  by  this  Court  in  the  aforesaid  judgments,
substantiates the view expressed by us in the foregoing paragraphs.
14.   It is in the background of the aforesaid factual and  legal  position,
that  the  High  Court  recorded  some  observations  in  its  order   dated
29.10.2011  passed  in  Contempt  (SWP  no.157  of  2011).   The   aforesaid
observations  were  advisory  in  nature.   Rather  than  initiating  action
against the appellants for having missed the point,  while  considering  the
claim of the respondent in contempt jurisdiction,  the  High  Court  in  its
wisdom required the appellants to  correct  the  mistake  committed  by  the
appellants.  The High Court did not, in the  first  instance,  initiate  any
coercive action against the  appellants.   In  the  aforesaid  view  of  the
matter it  is  apparent,  that  the  appellants  unnecessarily  preferred  a
letters  patent  appeal  to  assail  the  order  of  the  High  Court  dated
29.10.2011, on a technical plea, that the High  Court  in  exercise  of  its
contempt jurisdiction could not have dealt with the merits of the  claim  of
the respondent.  The same issue is being pursued now before us on  technical
grounds of maintainability of the letters patent  appeal  preferred  by  the
appellants before the High Court (out of  which  the  instant  appeals  have
arisen).
15.   In so far as the technical objections  raised  by  the  appellants  is
concerned, reliance, in  the  first  instance  was  placed  by  the  learned
counsel on Prithawi Nath Ram v. State of Jharkhand & Others,  (2004)  7  SCC
261, wherein this Court opined, that a court in  exercise  of  its  contempt
jurisdiction, dealing with an application alleging  non  compliance  of  its
earlier order, could not examine the rightness or wrongness of  that  order,
nor could it issue further directions.
 Reliance was  also  placed  on  V.M.
Manohar Prasad v. N. Ratnam Raju & Anr., (2004) 13  SCC  610,  
wherein  this
Court held, that a contempt court was precluded  from  adjudicating  on  the
merits of a controversy by passing any supplemental order,  in  addition  to
the order non compliance of which, was  the  basis  of  initiating  contempt
proceedings.  
Finally, reliance was placed on Midnapore Peoples’ Coop.  Bank
Ltd. & others v. Chunilal Nanda & Others (2006) 5 SCC 399, dealing with  the
maintainability of an intra-court appeal against  an  order  passed  by  the
High Court in exercise of its contempt jurisdiction.
16.   It is not as if the pleas raised at the hands of  the  appellants  are
not fully legitimate.  
In the facts and  circumstances  of  this  case,  for
reasons which would emerge from our  instant  order,  we  would  decline  to
invoke the jurisdiction vested in us under Article 136 of  the  Constitution
of India, for debating and deciding the  technical  pleas  advanced  by  the
appellants.  
We would rather invoke our jurisdiction under  Article  142  of
the Constitution of India for doing complete justice in the cause  in  hand.
Entertaining the instant appeals would defeat the ends of justice for  which
the respondent Sat Pal had approached  the  High  Court.   
Entertaining  the
objections filed by the  appellants  would  result  in  deviating  from  the
merits of the claim raised by  the  respondent  Sat  Pal,  before  the  High
Court.
17.   It gives us no pleasure to record that the State is not an  adversary,
and ought not have behaved in the manner it has  chosen  in  the  facts  and
circumstances of this case.  
In the first instance, it failed to  even  file
a response before the High Court, to the  writ  petition  preferred  by  the
respondent Sat Pal.  
The matter could have been adjudicated on  merits,  had
the High Court chosen to do so. 
 In order to  ensure  that  justice  to  the
respondent  was  not  delayed,  the  High  Court  considered  it  just   and
appropriate to direct the appointing authority to consider the claim of  the
respondent, consequent upon Trilok Nath having declined to join the post  of
Junior Engineer (Civil) Grade-II.  
Mainly because, the  respondent  Sat  Pal
had approached the High Court for relief, the appellants rejected his  claim
for wholly unreasonable grounds.  
Rather than focusing on the merits of  the
claim raised by  respondent  Sat  Pal,  the  appellants  chose  to  initiate
proceedings which would deviate the legal process from  the  merits  of  the
claim of respondent.  
Had we issued notice to respondent Sat  Pal  based  on
the technical pleas raised by the appellants, the  respondent  Sat  Pal  may
not even have been in a  position  to  defend  himself  before  this  Court.
Litigation  before  this  Court,  is  an  expensive  proposition.   
A   poor
scheduled caste candidate cannot be subjected to unnecessary  harassment  at
the hands of the mighty State.  
It is for the aforesaid  reasons,  that  the
instant order is being passed, for doing complete  justice  in  the  instant
cause.
18.    In  view  of  the  factual  and  legal  position  discussed   by   us
hereinabove, we are of the view, that in  the  facts  and  circumstances  of
this case, 
it would be just and appropriate  to  direct  the  appellants  to
appoint the respondent Sat Pal against the post of Junior  Engineer  (Civil)Grade-II.  The aforesaid offer  of  appointment  will  relate  back  to  the permissible date contemplated under the  rules  laying  down  conditions  of service of the cadre to which the respondent  Sat  Pal  will  be  appointed.
Naturally, the respondent will be entitled to  seniority  immediately  below those who were appointed from the same process of selection.  
Since Sat  Pal has not discharged his duties, he would  be  entitled  to  wages  only  with effect from the date of the instant order.
15.   Disposed of in the aforesaid terms.

                                       …………………………….J.
                                        (P. Sathasivam)



                                        …………………………….J.
                                        (Jagdish Singh Khehar)
New Delhi;
February 5, 2013.
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