Jammu & Kashmir High Court

Jagdish Singh And Ors vs J&K Power Development Corporation Ltd on 13 May, 2025

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                                Sr. No. 83

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU
Case No:- WP(C) No. 477/2021
          CM No. 210/221

Jagdish Singh and Ors.                                                    .....Petitioner(s)
                        Through:       Mr. Abhirash Sharma, Advocate.


                  Vs
J&K Power Development Corporation Ltd.                                 ..... Respondent(s)
and Ors.

                        Through:        Ms. Saliqa Sheikh, Advocate vice
                                        Mr. Raman Sharma, AAG.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                               JUDGMENT (ORAL)

13.05.2025

1. In the instant petition filed under Article 226 of Constitution of

India, the petitioners herein have prayed for the following reliefs:-

"(a) allow the presentH IGH petition;

O F J A MMU &

(b) quash order No. 54-PDC(CJ) of 2020 dated 21.12.2020 through

Jr. Engineer C O U R TJr. Engineer (Automation) and the medium of which the selection process in respect of post of K A S H MIR AND (Electrical), Jr. Engineer (Instrumentation) in JKPDC has been cancelled;

LADAKH

(c) direct the respondents to issue selection list of J.E Electrical and J.E Instrumentation pursuant to selection process conducted vide advertisement notice no. JKSPDC/ ADM./ NG-311/4324-33 dated 05.08.2017 and pursuant to the interviews conducted by the respondents against the such posts;

(d) direct the respondents to appoint the petitioners as Jr. Engineers in their respective fields pursuant to their selection in view of the selection process conducted vide advertisement notice no. JKSPDC/ ADM./NG-311/4324-33 dated 05.08.2017;

(e) direct the respondents to give effect to the appointment of the petitioners from the date the other selectees pursuant to advertisement notice no. JKSPDC/ADM./NG-311/4324-33 dated 05.08.2017 stood appointed;

(f) Any other writ, order or direction which this Court may deem fit or proper in the facts and circumstances of the case."

2. The facts, on the basis of which, the aforesaid reliefs have been

prayed and are stated in the petition are that an Advertisement Notice

No. JKSPDC/ADM./NG-311/4324-33 dated 05.08.2017 came to be issued by

the J&K Power Development Corporation respondent 1 herein for filling up of

the posts of Junior Engineer (Electrical), Junior Engineer (Automation), Junior

Engineer (Instrumentation) on contractual basis for a period of 2 years with a

right of the appointees to be regularized, subject to satisfactory performance in

accordance with the policy of the Corporation.

3. It is stated that the petitioners 1 to 9 herein being possessed of the

eligibility prescribed in the said Advertisement Notice, applied for selection and

appointment against the posts of Junior Engineer (Electrical) and petitioner 10

applied against the post of Junior Engineer (Instrumentation), whereafter the

petitioners came to be subjected to a computer based screening test as also a

written test in the month of June, 2018 and consequently, a result notification

came to be issued on 15.09.2018 and 09.03.2019, provisionally short listing the

candidates eligible for being subjected to the interview.

4. It is being next stated that in terms of order No. PDC/CJ/23/2019

dated 13.06.2019, the respondents issued appointment orders pertaining to the

posts of Junior Engineer (Civil), JE (Mechanical), Geological Assistant and

Surveyor and subsequently, even operated the waiting list in terms of order

dated 21.12.2019.

5. It is being next stated that some of the candidates, whose

candidature was cancelled by the respondent, who too had sought selection and

appointment against the posts in question, filed a writ petition being

SWP No. 478/2019 before this Court, which came to be dismissed on

05.02.2020.

6. It is being also stated that since the Reorganization Act of 2019

came into being after abrogation of Article 370 of the Constitution of India, the

General Administration Department of the Govt. of J&K issued Government

Order No. 654/JK(GAD) of 2020 dated 19.06.2020, providing therein that the

recruiting agency/appointment authorities to take certain action in cases,

wherein the advertisements had been issued and no written test had been

conducted and in cases, where written tests had been conducted and no

interviews had been conducted, to adopt a mechanism for making

selection/appointment to the posts advertised.

7. It is further stated that the respondent-Corporation through its

Board of Directors instead took a decision that due to the constitutional change

in the then State of Jammu and Kashmir, as also coming into being of

Reorganization Act of 2019, since a numbers of projects had been decided to be

undertaken in joint venture mode and the requirement of the Corporation,

as such, having undergone changes, the proposal for making appointments

against the post of JEs (Electrical/Automation/Instrumentation) cannot be

considered, thereby directed the Managing Director of the Corporation to scrap

the said process of selection and appointment, as a consequence whereof, the

respondent Corporation issued the impugned order dated 21.12.2020 and

cancelled the Advertisement Notice dated 05.08.2017.

8. The petitioners herein being aggrieved of the impugned order dated

21.12.2020 have maintained the instant petition on the following grounds:-

"(a) That the impugned order is unconstitutional, illegal, unreasonable and arbitrary, therefore, the same is required to be quashed.

(b) That the order impugned is required to be quashed on another ground, inasmuch as the petitioners participated pursuant to the same advertisement alongwith the other similarly situated individuals but against different posts, the petitioners were short listed alongwith the similarly situated individuals but the select list as well as appointment orders in favour of the petitioners could not be issued because of the interim directions passed by the Hon'ble Court in case titled ''Gagandeep Khajuria & ors V/s State of J&K &

ors", whereas in case of candidates who had applied for the post of J.E Civil, J.E Mechanical, J.E Automation, Geological Assistant, Surveyor (Geology, the appointment orders stood issued and the respondents in total non-application of mind cancelled the select list qua particular branches in a decision taken in Board meeting, that due to constitutional changes and Reorganization of J&K, the same cannot be considered at this stage. It is pertinent to mention herein, for the sake of arguments, if it is believed that the rules have changed, the same shall apply prospectively and not to a selection process which stood initiated before the Reorganization Act came into picture and could have been culminated well before the coming into the force of the Reorganization Act had the same not being challenged before the Hon'ble Court.

(c) That the reason cited by the respondents while cancelling the selection process as well as the advertisement qua the post of J.E (Electrical, Automation, Instrumentation) is unreasonable and does not suffice conscience, inasmuch as, when a common advertisement for diffident posts is issued, it is but obvious that the rules which are holding the field at that particular time shall operate, whereas the respondents in blatant violation of Article 14 and 16 of the Constitution of India applied the said rules by creating two different classes i.e. Pre-Reorganization Act selections and Post Reorganization Act selections, meaning thereby, the respondents issued appointment orders in favour of those candidates who had applied against the post of JE Civil, Mech. And other streams but no selection list was issued in favour of those who had applied for JE Electrical, Automation and instrumentation on the ground that the domicile /Recruitment rules have changed which is unreasonable, arbitrary as well as against the provisions prescribed under the sacrosanct constitution of India.

(d) That non-issuance of select list as well as appointment orders in favour of the petitioners or for that matter in favour of the person who have applied for the post of J.E (Electrical, Automation, Instrumentation, on time was not due to any delay attributable to the petitioners, however, due to a writ petition which was pending before the Hon'ble Court, the selection list got delayed and subsequent appointments orders were not issued, therefore, the respondents in the garb of the Reorganization Act cannot shy away from the fact that the petitioners who are similarly situated with others cannot be discriminated on the ground that the laws have changed despite the fact that it is a beaten law that the appointments are to be made keeping in view the rules which were hooding the field when the advertisement was issued.

(e) That the Govt. order no. 654-JK(GAD) of 2020 dated 19.06.2020 in clear and categoric terms issues directions to the various recruiting agencies/appointing authorities that in cases where the interviews have been conducted but the results have not been declared the selecting agency shall Issue an addendum to the extent of applicability of Jammu and Kashmir probationer (condition of

service, pay and allowances) and fixation of tenure rules to the advertised posts.

(f) That the respondents in a board meeting have taken a stand that the cancellation of the recruitment qua the posts against which the petitioners had applied is due to the change of the recruitment rules, whereas the respondents in the impugned order without citing any reason have arbitrarily in the garb of clause 6 of the advertisement notification have cancelled the selection which is unreasonable exercise of power. It is stated that any authority directly or indirectly under the control of the Govt. has to act within the four corners of the constitution and any action which is against the basic structure of the constitution which provides for the equality cannot be ignored and accepted without reasonability.

(g) That in the projects which were mentioned in the advertisement the requirement of Jr. Engineers in Civil, Mechanical, electrical.

Automation was provided and ail the said projects are functional and moreover, in the said projects J.E. Civil and Mechanical have been appointed whereas the respondents citing reason that with the change of eligibility and the reservation rules the appointments of the selection and consequent appointments of the petitioners have been cancelled which appears to be illogical, irrational and without application of mind."

9. Objections to the petition have been filed by the respondents,

wherein petition is being opposed, primarily, on the premise that the petitioners

do not disclose the infringement of any legal, fundamental or statutory right

entitling the petitioners to invoke the writ jurisdiction of this Court.

10. For the sake of brevity and convenience, the stand taken by the

respondents in the aforesaid reply is, in extenso, extracted and reproduced

hereunder, being relevant and germane to the controversy:-

"(i) That in response to the reliefs sought for by the petitioners in the writ petition, the answering respondents submit that the petitioners are neither entitled to any claim nor have any substance in such contentions/assertions, more so in view of the following submission:-

(a)That in anticipation of kick-starting of major projects in the pipeline at the time, the answering respondents-JKPDC, vide Notification dated 05-08-2017, advertised, inter-alia, the posts of JE (Electrical), JE (Automation) and JE (Instrumentation), with the following breakup of advertised posts:-

                     S. No.   Post of to the filled up          Number of posts
                       1.     Junior Engineer (Electrical)         36
                       2.     Junior Engineer (Automation) for      2
                              BHEP
                       3.     Junior Engineer (Instrumentation)    2
                              for BHEP

(b) That in terms of the Advertisement/Notification, the recruitment process was primarily conducted to meet the staffing requirements at Baglihar HEP, Sawalkote HEP, Kirthai-I/II HEPs, Lower Kalnai HEP, Ladakh region, Parnai HEP & PMDP Projects, which were in the pipeline at the time.

(c) That the answering respondents-JKPDC conducted screening test for these posts in June 2018 at Jammu and Srinagar Centres as per the following schedule:-

S. No.    Post of to the filled up          Number        of      Date
                                            posts
 1.       Junior Engineer (Electrical)            36           19th June, 2018
 2.       Junior Engineer (Automation) for         2           21st June, 2018
          BHEP
 3.       Junior Engineer (Instrumentation)       2            20th June, 2018
          for BHEP

(d) That with regard to JE (Electrical) post, during scrutiny of documents prior to Interview, It was noticed that a total of 14 candidates possessed "Bachelors Degree in Electrical and Renewable Energy Engineering" which was not notified as minimum required qualification for the post. Similarly, 1 candidate for the post of JE (Automation) possessed the same degree which was not notified as minimum required qualification for the post.

The matter was referred to the Administrative Department for examination and further Instructions vide letter No:

JKPDC/ADM/1148-49, dated 19.11.2018, and subsequent reminders dated 06.12.2018, 19.12.2018 & 10.01.2019. It is submitted that In response, the Administrative Department vide letter No. PDD/VI/SL/59/97-(PF-II) dated 26.02.2019 Instructed to proceed ahead as per the already Issued notification for the Instant recruitment drive.

(e) That accordingly, the candidates possessing "Bachelors Degree in Electrical and Renewable Energy Engineering" were rejected and candidates next In order of merit replaced them for Interview In JE (Electrical) and JE (Automation) stream. The rejected candidates approached the Hon'ble J&K High Court which passed the Instructions to allow these candidates to appear In the Interview at their own risk and responsibility. For Junior Engineer (Electrical), Junior Engineer (Automation) and Junior Engineer (Instrumentation), the Interviews were taken by two expert panels selected by the then Managing Director (answering respondent No.

1) and conducted on 18th, 19th March, 2019 In Jammu and 22nd, 23rd March, 2019 in Srinagar.

It is submitted that some candidates approached the Hon'ble High Court for consideration of eligibility/ equivalence In respect of B.Tech. In Electrical & Renewable Energy for the post of JE (Electrical) and JE (Automaton), the recruitment process of JE (Electrical), JE (Automation) and JE (Instrumentation) became sub-judice and the selection process for these posts came to a standstill. Finally, the Hon'ble High Court in November, 2019 & February, 2020, dismissed the respective writ petitions filed by candidates regarding consideration of qualification of B.Tech. (Electrical and Renewable Energy) for the post of JE (Automation) & JE (Electrical) respectively, and also vacated the Interim directions.

(f) The answering respondents submit that in the period between the Issuance of Notification viz. Aug, 2017. and the vacation of the Interim stay by the Hon'ble Court in Feb, 2020, the following events occurred which had a direct bearing on the recruitment process:-

(i) The erstwhile State of J&K was re-organized Into the Union Territories of J&K & Ladakh.

(ii)The EPC Contract of 48 MW Lower Kalnai HEP was terminated.

(iii)The Competent Authority decided that the mandate for execution/ implementation of 850 MW Ratle HEP be shifted from JKPDC to a Joint Venture Company of NHPC & JKPDC.

(g) That in light of the above developments, it was decided that the matter shall be placed before the Board of Directors for further instructions.lt is submitted that in the meanwhile, in anticipation of the Board Meeting, the Hon'ble Lieutenant Governor, J&K, on 11th October, 2020, took a detailed review of the hydropower sector in J&K. The meeting was attended by, inter-alia, the Chief Secretary, J&K, and the Principal Secretary, PDD/ MD JKPDC. The roadmap for expeditious development of the unexploited hydropower potential was also discussed. Subsequent to this meeting, NHPC submitted a proposal for execution of 1856 MW Sawalkote HEP by NHPC and 930 MW Kirthai-II HEP by CVPPPL.

(h)That the meeting of the Board of Directors of JKPDC (answering respondents herein) was held on 27-10-2020. The matter regarding appointment of JE (Electrical), JE (Automation) and JE (Instrumentation) was submitted before the Board of Directors for consideration and appropriate decision.

(i) That the Board in its meeting deliberated on the issue. The relevant extract from the minutes of the meeting is reproduced hereunder:-

"The BOD discussed the issue threadbare. It was noted that an unduly long time had elapsed since the issue of the notification. In the meanwhile, and following the constitutional changes and re-organization of Jammu and Kashmir, a number of changes in domicile/ reservation/ recruitment rules had come into play. Further, following the decision to execute a number of projects in JV mode, the manpower requirements of JKSPDCL (respondents herein) had undergone changes.

The answering respondents-JKPDC/Board decided that, in view of the above reasons and keeping in view that the Advertisement was issued prior to Jammu and Kashmir becoming a Union Territory and consequent changes in the eligibility/reservations/recruitment rules, the proposal regarding appointment of Junior Engineers (Electrical/Automation/Instrumentation) could not be considered at this stage."

(j) That the Government of LIT of J&K, vide S.O. No 339 dated 30.10.2020, apportioned the assets and liabilities of the erstwhile State of Jammu & Kashmir between Union Territory of Jammu & Kashmir and Union Territory of Ladakh. In terms of the said S.O., and in respect of Jammu & Kashmir State Power Development Corporation, it has been decided that

the Corporation shall remain under the control of the Government of Jammu & Kashmir with no division of equity, investment & loan, subject to the following provision:-

"The physical fixed assets of these Corporations, if situated in the UT of Ladakh, will be transferred on an 'as is where is' basis of UT of Ladakh or an entity established by it."

(k) That the S.O. further states in Annexure-B (Generation & Supply of Electric Power and Water) as under:-

"Any immovable assets of J&K State Power Development Corporation Ltd. (JKSPDCL) and the Chenab Valley Power Projects Pvt. Ltd. (CVPPL) located in the UT of Ladakh shall be transferred on an 'as is where is' basis to an entity to be set up by UT of Ladakh or as designated by the UT of Ladakh".

(l) That it is pertinent to mention here that the Audit & Accounts Department, in its communication dated 03-12-2020, observed that the manpower per MW in JKPDC (respondents herein) exceeded the limits set by the' Central Electricity Authority. Consequent to this, the answering respondents-JKPDC has initiated steps towards rationalization of manpower/staff and vide Order No. 21-JK (PDC) of 2020 dated 24.11.2020, a Committee headed by Executive Director (Electric) has been constituted for the purpose.

(m)That in compliance to the decision taken by the Board of Directors, the answering respondents-JKPDC, vide order dated 21-12-2020, cancelled the selection process for the posts of JE (Electrical), JE (Automation) and JE (Instrumentation.

(n)That in view of the aforementioned facts, the cancellation of the selection process was the logical conclusion in the matter in view of the changed circumstances over the period viz.

(i) Decision to undertake 1856 MW Sawalkote HEP through NHPC.

(ii) Decision to undertake 930 MW Kirthai-II HEP through CVPPPL.

(iii)Decision to undertake 850 MW Ratle HEP through a JV Company of NHPC&JKPDC.

(iv)Termination of EPC Contract of 48 MW Lower Kalnai HEP.

(v) Reorganization of the erstwhile State of J&K and consequent transfer of Project Assets to the UT of Ladakh alongwith related posts and mandate for appointment against the said posts.

(vi) Rationalization of manpower/ staff initiated by JKPDC.

(vii) Projects under PMDP not taking off in a big way in view of non-receipt of any funds for the scheme from the Govt. of India.

(viii) Non-finalization of the appraisal of 390 MW Kirthai-I HEP by the Central Electricity.

(o)That the answering respondents-JKPDC, being a commercial entity, is bound to efficiently utilize manpower/staff and keeping in view the prevalent circumstances at the time, making appointment of fresh staff whose requirement no longer exists at this juncture, would tantamount to violation of best practices in staffing & financial norms.

Heard learned counsel for the parties and perused the record.

11. Having regard to the aforesaid respective pleadings of the parties,

the fundamental question for determination of this Court would be as to whether

the petitioners' are clothed with any right enforceable in law for being subjected

to a process of selection undertaken by the respondent-Corporation for making

selection and appointment against the posts of Junior Engineers having regard to

the aforesaid case set up by the respondent-Corporation in the objections.

12. Before proceeding further in the matter, a reference hereunder to

the position of law occupying the field in this regard would be appropriate and

advantageous.

The Apex Court in case titled as "Shankarsan Dash Vs. Union of

India, reported in 1991(3) SCC 47" has held, at para-7, as follows:-

"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. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899."

The Apex Court further in case titled as "State of Orissa Vs.

Bhikari Charan Khuntia and ors., reported in 2003 (10) SCC 144" has at para-

8 held as follows:-

"8. As was observed by this Court in Government of Orissa through Secretary, Commerce and Transport Department, Bhubaneswar v. Haraprasad Das and Ors., [1998] I SCC 487, whether to fill up or not to fill up a post, is a policy decision and unless it is arbitrary, the High E Court or the Tribunal has no jurisdiction to interfere with such decision of the Government and direct it to make further appointments. In the present case, even no selection was made and not even any select list was in existence. Even if there had been any such selection or inclusion of any of the names in the select list, same could not have given any right. F Therefore, mere sending of name by the employment exchange could not have and in fact has not conferred any right. The writ applications were thoroughly mis-conceived, and the court mis-directed itself as to the nature of relief to be granted."

13. Keeping in mind the aforesaid position and principles of law and

reverting back to the case in hand, it is not in dispute that the respondent-

Corporation issued the Advertisement Notice for selection/appointment of the

posts of Junior Engineers. It is also not in dispute that the petitioners herein

competed for selection and engagement against the posts in question. It is also

not in dispute that the process of the selection undertaken by the respondent-

Corporation qua the petitioners was not concluded and consequently cancelled,

firstly, on account of filing and pendency of the writ petitions before this Court

by some unsuccessful non-selectees and thereafter, owing to the coming into

being of the Reorganization of Act of 2019, as also changed circumstances

enumerated by the respondents in their reply, which risking repetition are re-

iterated hereunder:-

"(n) That in view of the aforementioned facts, the cancellation of the selection process was the logical conclusion in the matter in view of the changed circumstances over the period viz.

(i) Decision to undertake 1856 MW Sawalkote HEP through NHPC.

(ii) Decision to undertake 930 MW Kirthai-II HEP through CVPPPL.

(iii)Decision to undertake 850 MW Ratle HEP through a JV Company of NHPC & JKPDC.

(iv)Termination of EPC Contract of 48 MW Lower Kalnai HEP.

(v) Reorganization of the erstwhile State of J&K and consequent transfer of Project Assets to the UT of

Ladakh along-with related posts and mandate for appointment against the said posts.