Jammu & Kashmir High Court
Union Territory Of Jammu And ... vs Shwiti Gupta on 15 December, 2021
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
CJ Court
Case: WP(C) No. 2254 of 2021
Union Territory of Jammu and Kashmir .....Petitioner(s)
Through :- Sh. H.A.Siddiqui, Sr. AAG
v/s
Shwiti Gupta .....Respondent(s)
Through :- Sh. Rahul Pant, Sr. Advocate with
Ms. Shreya Nagpal, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
15.12.2021
PANKAJ MITHAL, CJ:
01. Heard Sh. H.A.Siddiqui, Senior Additional Advocate General for
the petitioner and Sh. Rahul Pant, Senior counsel assisted by Ms. Shreya
Nagpal, learned counsel for the respondent.
02. Under challenge in this writ petition is the judgment and order
dated 02.03.2021 passed by the Central Administrative Tribunal, Jammu
Bench, Jammu (hereinafter referred to as 'the Tribunal'), allowing the
petition, O.A. No. 61/33/2021, as filed by the respondent, seeking
setting aside of the Government order dated 25.11.2020, whereby her
case for appointment as Dental Surgeon on the recommendation of the
J&K Public Service Commission, was rejected.
03. The brief facts giving rise to the above Original Application and
this writ petition are that in pursuance of the notification dated
23.06.2003 as many as 59 posts of Dental Surgeons were advertised.
The respondent-Dr. Shwiti Gupta was one of the candidates, who
applied on the said post. The selection process was undertaken by the
J&K Public Service Commission but in the select list issued in 2005,
she could not find any place. Therefore, she challenged her non-
selection by filing SWP No. 1232 of 2005, inter alia, alleging that Rule
51 of the Jammu and Kashmir Public Service Commission (Business
and Procedure) Rules, 1980 is invalid and it is on account of it that she
has been pushed lower in the merit of select list. The writ petition was
dismissed and the judgment was upheld in LPASW No. 130 of 2013.
However, on review filed by the respondent, which was disposed of vide
order dated 09.04.2018, it was directed that the State Authorities
including Public Service Commission shall accord consideration to the
selection and appointment of the respondent as Dental Surgeon on her
own merit within a period of eight weeks.
04. In pursuance of the above directions of the High Court, the
Government placed the matter of the selection of the respondent before
the Public Service Commission. The case of the respondent was
examined by the Public Service Commission in its meeting held on
17.06.2019 and that in the backdrop of the decision of the Grievances
Redressal Committee, it was decided to award 06 more points, i.e., 03
for experience and 03 for sports to the respondent so as to recommend
her to the Government for appointment against any available vacancy of
the post of Dental Surgeon under the general (OM) category for which
36 candidates were earlier recommended. Accordingly, vide
communication dated 01.07.2019, the name of the respondent was
recommended for appointment as Dental Surgeon to the Government.
The Government vide letter dated 27.01.2020 asked the Public Service
Commission to reconsider the recommendation made in favour of the
respondent but the Public Service Commission declined to reconsider
the matter. Since despite the above recommendation, appointment letter
was not issued to the respondent, she again raised the matter and finally
by the order dated 25.11.2020, the Government rejected her claim for
appointment which was the subject matter of challenge before the
Tribunal.
05. The Tribunal by the impugned order held that as the respondent
was duly eligible and qualified for appointment and as per the
recommendations of the Commission, her name has been recommended
as a selected candidate, though in the past, her name was not included in
the select list on account of the mistake on part of the Public Service
Commission, she is entitled for appointment as Dental Surgeon as
otherwise, it would be violative of Articles 14 and 16 of the Constitution
of India. Accordingly, the impugned order in the Original Application
dated 25.11.2020 was set aside and a direction was issued for the
appointment of the respondent and according her notional seniority but
with no back wages/salary.
06. In challenging the above order, the contention of Sh.
H.A.Siddiqui, learned Senior Additional Advocate General is that the
Tribunal could not have straightway issued directions for the
appointment of respondent. She cannot be appointed on the basis of
selection of 2003-2005 after fifteen years as the validity of the select list
expires within a year. All the posts which were advertised in 2003 were
filled up and, therefore, respondent cannot be appointed on any
additional post. Moreover, the Public Service Commission could not
have recommended for the appointment of respondent after it has
become functus Officio with the preparation of the final select list.
07. The arguments raised on behalf of the petitioner does not find
favour with us.
08. First of all, the respondent had disputed her non-selection
immediately without loss of any time by filing SWP No. 1232 of 2005
which though dismissed but finally on review application, an order for
consideration of the selection/appointment of the respondent on her own
merit was passed.
09. It may be pertinent to mention here that the issue as to whether
the respondent was arbitrarily left out from the selection despite having
qualified the select list was not considered either in the writ petition or
in the LPA and, therefore, the review application was disposed of on
19.04.2018 by observing as under:-
"The review petition is, accordingly, disposed of by
providing that respondents shall accord consideration
to the selection/appointment of review petitioner
/appellant, Dr. Shwiti Gupta, as Dental Surgeon on her
own merit. This exercise be completed within a period
of eight weeks from the date the copy of this judgment
is provided to the respondents."
10. A bare perusal of the above observation, which is final and
conclusive, as it has not been disputed by any one in any higher forum,
reveals that the direction was to accord consideration to the
selection/appointment of the respondent as Dental Surgeon on her own
merit.
11. The petitioner itself considered that the matter requires
consideration and, therefore, took a conscious decision to refer the
matter to the Public Service Commission to reconsider the matter of
selection/appointment of the respondent. It is on the request of the
Government that the Grievances Redressal Committee as well as the
Public Service Commission finally came to the conclusion that the
respondent was not granted proper marks in interview either for
experience or for sports and, as such, she was illegally left out from
selection. Accordingly, the Commission in its meeting held on
17.06.2019 resolved as under:-
"The Commission discussed the matter in the backdrop
of the decision of the Grievances Redressal Committee
and approved to award 6 more points i.e. 03 for
experience and 03 points for sports and recommended
Dr. Shwiti Gupta to the Government for appointment
against any available cadre post of Dental Surgeon."
12. Accordingly, the matter was recommended to the Government.
The Government, however, did not agree with the said recommendation
and vide letter dated 27.01.2020 asked the Public Service Commission
to reconsider the recommendation, which request was declined.
13. It also appears from the record that thereafter the Government
accepted the recommendations of the Public Service Commission and
decided to appoint the respondent as Dental Surgeon whereupon the
matter was placed for the approval of the Lieutenant Governor, who also
approved it. However, instead of issuing the appointment order, the
matter was again placed before the Lieutenant Governor for according
formal approval to the letter of appointment. It appears that the fact that
the Lieutenant Governor has already approved the recommendation of
the appointment of the respondent was suppressed and accordingly got it
rejected for the reason that the appointment of the respondent would
amount to re-opening of cases after fifteen years of the
recommendations made by the Public Service Commission and
recommending a candidate for appointment at this stage is against the
mandate of the recommending agency.
14. The aforesaid facts clearly reveal that the Public Service
Commission had considered the matter of selection/appointment of the
respondent only on the direction/observation of the High Court as per
the order passed in review. The Commission was not denuded of the
power to take action pursuant to the judicial direction that too after the
matter was placed before it by the Government itself. Thus, it is mis-
conceived to allege that the Commission could not have made
recommendation for the appointment of the respondent after fifteen
years or that it has become functus officio and was not empowered to
deal with the case of the respondent.
15. The petitioner is not disputing the findings recorded by the
Commission in making the recommendation in favour of the respondent
that she was entitled for more marks in interview and was illegally left
out from the select list. Thus, the respondent, who has suffered a legal
wrong and has raised objection against it, is entitled to the redressal of
the said wrong.
16. The submission that the respondent cannot be appointed after
fifteen years of the completion of the selection process, is bereft of merit
as injustice, if any, done at any point of time has to be undone. The
respondent has approached the court in time and if the decision of the
matter has consumed time by the court, it is not the fault of the
respondent and it does not even adversely affect the powers of the court
to do justice and to grant appropriate relief to the party aggrieved.
17. In the said circumstances, it cannot be said that the respondent is
not entitled to the relief of appointment which was due to her in the year
2005 itself.
18. The submission that mere selection of the respondent for the post
of Dental Surgeon would not give her any vested right to be appointed
and that it is the discretion of the Government to appoint or to leave out
any selected candidate, is also of no substance, as the Government
cannot make appointments on public posts in an arbitrary fashion by
picking and choosing the selected candidates and leaving out others,
who have also been selected. The respondent was not only declared to
be selected though subsequently but was also recommended for
appointment which recommendations were even accepted by the
Government and were also approved by the Lieutenant Governor. No
doubt, the said approval unless acted upon or communicated to the
concerned party, may be altered or rescinded but that can be done only
for valid reasons and not in an arbitrary manner by obtaining subsequent
disapproval of the Lieutenant Governor without disclosing the fact that
the approval has already been granted to the proposal of the appointment
of the respondent earlier.
19. In the aforesaid facts and circumstances, where the selection of
the respondent has already been approved for appointment, it was not
proper and justified to sit over such a selection and finally rejected her
claim on any ground.
20. The contention that the vacancy notified in the year 2003 stood
exhausted and, therefore, the respondent cannot be appointed, may not
be sufficient enough to deny relief/justice to the respondent.
21. The respondent in the earlier round of litigation in SWP No. 1232
of 2005, vide an application dated 23.12.2010, has brought on record
that she can be accommodated against the four vacancies which
remained unfilled in the selection of 2003 on account of Dr. Reecha
Gupta, Dr. Ajay Kumar, Dr. Zahid Imran and Dr. Sanjay Kumar Sharma
not joining despite selection. The said averment remained un-rebutted as
per the record of the said writ petition, which we have summoned for
the purposes of deciding this writ petition. Moreover, it has come on
record that as on date 17 vacancies of the post of Dental Surgeons are
available which have not been notified to the Commission for the
purposes of selection. Therefore, the respondent could easily be
accommodated to any of the said vacancies without disturbing the
selection/appointment of any candidates either as per the select list of
2005 or any other select list prepared thereafter.
22. Lastly, the submission that the Tribunal exceeded its jurisdiction
in straight away issuing direction for the appointment of the respondent
has no force. Such a direction was necessitated as upon earlier direction
of the High Court to accord consideration to the case of the respondent,
the Public Service Commission upon consideration recommended for
her appointment which at one stage was accepted by the Government
and approved by the Lieutenant Governor but even then appointment
letter was not being issued to the respondent. Therefore, there was no
option for the Tribunal but to direct for her appointment after quashing
the rejection order.
23. In view of the aforesaid facts and circumstances, we do not find
any merit in this writ petition, so as to exercise our discretionary
jurisdiction and the writ petition is dismissed with no order as to costs.
(JAVED IQBAL WANI) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU
15.12.2021
Tilak
Whether the order is speaking ? : Yes.
Whether the order is reportable? : Yes.
