Wasim Sadiq vs University Of Kashmir And Others
2021 Latest Caselaw 1372 j&K/2

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR
                            ...
                     WP(C) no.2008/2020

Wasim Sadiq
                                                              .......Petitioner(s)
                                 Through: Mr Shuja ul Haq, Advocate
                                      Versus
University of Kashmir and others
                                                             ......Respondent(s)

                                 Through: Mr M.S.Latief, Senior Advocate with
                                 Mr Zia, Advocate for respondents 1 to 4
                                 Mr Jahangir Iqbal Ganai, Senior Advocate with
                                 Ms Humaira Shafi, Advocate for respondent no.5

CORAM:
         HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                   ORDER

02.11.2021

1. Petitioner seeks grant of a writ in the nature of mandamus, commanding

respondents to issue formal appointment order in his favour and operating

the select list dated 14th November 2019. He also prays for grant of writ

in the nature of prohibition, restraining respondents from re-

advertising/filling up the post of Junior Assistant (Arabic Typist) in the

University of Kashmir against which a right has accrued to him as he

figures at serial no.1 in the select list.

2. Respondent no.5, though not arrayed as party respondent yet impleaded

as party respondent no.5 by this Court vide order dated 4 th June 2021, has

filed Reply, insisting therein that mere selection of a candidate does not

confer an indefeasible right to claim appointment. It is averred that while

verifying documents of petitioner, it surfaced that he does not possess

requisite qualification prescribed in Advertisement Notice for the post in

Page 1 WP(C) no.2008/2020 question and resultantly he has been denied the appointment. It is also

contended that being conscious of the fact that petitioner does not possess

essential qualification required for being eligible for the post in question,

he in writ petition has projected that qualification of PG Diploma in

Modern Spoken Arabic Certificate, which qualification petitioner possess,

is equivalent to that of being possessed of qualification which is

equivalent to a candidate who has qualified Graduation with Arabic as one

of the subjects. In support of his Reply, respondent no.5 has placed

reliance on a communication no.F(Clar-EC) Acad/KU/21 dated 15th June

2021, issued by University of Kashmir.

3. Heard and considered.

4. Advertisement Notice 01 of 2017 dated 17 th July 2017 was issued by

University of Kashmir inviting online applications from permanent

residents of J&K for the post of Junior Assistant (Arabic Typist) with the

following essential qualifications:

• Graduation from any recognized University with at least 50% marks and Arabic as one of the subjects • Knowledge of Urdu/Arabic Computer typing • Six months certificate course in computer application from any recognized Institute.

5. As can be seen from above, a person, interested to apply for the post of

Junior Assistant (Arabic Typist) in University of Kashmir in terms of

Advertisement Notice 01 of 2017, was required to have qualification of

Graduation from any recognized University with, at least, 50% marks and

Arabic as one of the subjects. In the present case, admitted fact is that

petitioner does not possess the essential qualification of Graduation with

Arabic as one of the subjects. This important fact of the matter cannot be

Page 2 WP(C) no.2008/2020 denied. Thus, petitioner's mere participation or selection does not confer

upon him a right to demand appointment.

6. It is well settled that notification for an appointment merely amounts to an

invitation to qualified candidates to apply for recruitment and on their

selection, they do not acquire any right to the post, as has been held by a

Constitution Bench of the Supreme Court in Shankarsan Dash v. Union

of India, (1991) 3 SCC 47. Thus, it was held:

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner.

The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220, Neelima Shangla v. State of Haryana (1986) 4 SCC 268, or Jatindra Kumar v. State of Punjab (1985)1 SCC 122."

7. In S. S. Balu v. State of Kerala, (2009) 2 SCC 479, it was held by the

Supreme Court that the State as an employer has a right to fill up all the

posts or not to fill them up. A candidate will have no legal right for

claiming a writ in the nature of mandamus unless there is discrimination

or arbitrariness in regard to the filling up of the vacancies. The Supreme

Court held as under:

"12. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. (See Pitta Naveen Kumar v. Raja Narasaiah Zangiti [(2006) 10 SCC 261. The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the candidate concerned will have no legal right for obtaining a writ of or in the nature of mandamus. (See Batiarani Gramiya 23 Bank v. Pallab Kumar

Page 3 WP(C) no.2008/2020 (2004) 9 SCC 100. In Shankarsan Dash v. Union of India (1991) 3 SCC 47 a Constitution Bench of this Court held: (SCC pp. 50-51, para 7) "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted."

8. In Pitta Naveen Kumar v. Raja Narasaiah Zangiti [(2006) 10 SCC 261, the Supreme Court held:

"32. ... A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise."

9. In another judgment reported in Kulwinder Pal Singh Vs. State of

Punjab, (2016) 6 SCC 532, the Supreme Court held that the name of a

candidate may appear in the merit list but he has no indefeasible right to

seek an appointment. It was held as under:

"10. It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment vide Food Corporation of India v. Bhanu Lodh (2005) 3 SCC 618, All India SC & ST Employees' Assn. v. A. Arthur Jeen (2001) 6 SCC 380 and UPSC v. Gaurav Dwivedi (1999) 5 SCC 180.

11. This Court again in State of Orissa v. Rajkishore Nanda (2010) 6 SCC 777, held as under: (SCC p. 783, paras 14 & 16) "14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.

16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required."

Page 4 WP(C) no.2008/2020

10.I have given my thoughtful consideration to the submissions made by

learned counsel for parties and considered the matter. The law stands

settled that mere existence of vacancies or empanelment does not create

any indefeasible right to appointment. The employer also has discretion

not to fill up requisitioned vacancies, but which has to be for valid and

germane reasons not afflicted by arbitrariness.

11.Once the decision is found to be based on some valid reason, the Court

would not issue any mandamus to the Government to fill up the vacancies.

12.Respondents contend that petitioner does not possess the essential

qualification as was prescribed in Advertisement Notice 01 of 2017,

which is definitely a valid and genuine ground for not making

appointment. The Court cannot substitute its views over that of

respondents muchless issue a mandamus imposing obligations on

respondents which it is unable to meet.

13.Suffice to observe from Kulwinder Pal Singh Vs. State of Punjab, (2016) 6 SCC 532:

"12. In Manoj Manu v. Union of India, (2013) 12 SCC 171, it was held that merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies..."

14.Resultantly, this writ petition is without any merit and is, accordingly, dismissed.

15.Interim direction, if any, shall stand vacated.

(Vinod Chatterji Koul) Judge Srinagar 02.11.2021 Ajaz Ahmad, PS

Page 5 WP(C) no.2008/2020