Liyaqat Hussain Baniya v. State of JK & Ors

ORDER 27.07.2022

1. Heard Mr. Nissar Ahmad Bhat, learned counsel appearing for the appellant and Mr. D. C. Raina, learned AG assisted by Mr. Sajad Ashraf, learned GA appearing for the respondents.

2. The appellant has preferred this appeal aggrieved by the judgment and order dated 17th May 2019 passed by the learned Single Judge dismissing his writ petition SWP No. 2021/2017 Liyaqat Hussain Baniya vs. State of JK & Ors.

3. The short question which crops up for consideration in this appeal is whether a candidate securing merit position below the select list and the wait list candidates can lay a claim for appointment against the solitary post advertised in the event the selected and the wait list candidate fails to join.

4. On the request of the Finance Department, the J&K Services Selection Board (the Board) issued an advertisement Notice No. 3 of 2014 dated

13.12.2014 inviting applications selection/appointment on the single post of Accounts Assistant (ST Category) District Shopian. On the completion of the selection LPA No. 193/2019 Page 1 of 4 process, the Board forwarded the selection list on 31.08.2016 recommending the name of a lone candidate and a wait list consisting again of one name to the Finance Department.

5. It appears that none of the candidate, the one who was selected and the one who was put in the wait list offered their services and failed to join. The petitioner-appellant therefore made a representation to the Director General, Accounts and Treasuries that since he is next in line, he be accorded appointment. The Deputy Director (Central) Accounts and Treasuries of the Finance Department vide communication dated

02.06.2017 requested the Board to recommend another eligible candidate for appointment as none of the candidate in the select list or the wait list have joined. In pursuance thereof, the Board through its administrative officer on 26.08.2017 recommended the name of the petitioner-appellant by way of a supplementary wait list only for the reason that the Deputy Director (Central) Accounts and Treasuries had made a request in this regard. The said recommendation of the petitioner-appellant apparently appears to be under compulsion as there was no rule which provided for making recommendation over and above the select list and the wait list. The supplementary wait list recommending the name of the petitioner-appellant was returned in original to the Board without being processed as the same was not warranted under the rules.

6. The communication dated 18.09.2017 of the Deputy Director (Central) Accounts and Treasuries, Finance Department to the Secretary of the Board returning the recommendation/supplementary wait list clearly states that the Deputy Director (Central) Accounts and Treasures incorrectly addressed the communication dated 02.06.2017 requiring the Board to recommend the name of another eligible candidate inasmuch as it was issued without the approval of the competent authority and in violation of the standing instructions issued by the Board on 10.09.2015. It further stated that there was no rule for providing a supplementary wait list.

7. The J&K Civil Services, Decentralization and Recruitment Rules 2014 (hereinafter the Rules) as amended from time to time vide Rule 14 provides that the Selection Committee of the Board shall ordinarily LPA No. 193/2019 Page 2 of 4 submit a select list which shall remain in force for a period of one year and draw another list containing names of wait list candidates to the extent of 25% of the total number of selected candidates and to forward the same to the requisitioning authority. In short, the Board is empowered under the aforesaid rule to draw the select list and a wait list and to forward the same to the requisitioning department. The aforesaid rule do not envisage for submitting any supplementary wait list or for recommending the name of any additional candidate other than those included in the select list and the wait list.

8. In view of the aforesaid facts and circumstances, in the first place, the Deputy Director, (Central) Accounts and Treasuries could not have requested the Board for recommending the name of any eligible candidate over and above the names included in the select list/wait list. Secondly, the Board was not competent to recommend any additional name in excess of the names included in the select list/wait list. Thus, the recommendation made by the Board through supplementary wait list was rightly returned and the communication in this regard has rightly been taken on record by the writ court as a court of record. Accordingly, the petitioner-appellant who is not a selected candidate recommended via the select list or the wait list and does not derive any right to be recommended for appointment.

9. It is well settled and recognized in law by the Five Judges Constitutional Bench of the Supreme Court in Shankarsan Dash vs. Union of India & Ors. (1991) 3 SCC 47 that a candidate included in the merit list has no indefeasible right to appointment even if a vacancy exist. Thus,in the overall facts and circumstances of the case as the petitioner-appellant has no legal or vested right to get appointed merely by inclusion of his name in the merit list when admittedly his name was not in the select list and the wait list, he is not entitled for any appointment even if the post has remained vacant on account of non-joining of the selected or the wait list candidate.

10. In the facts and circumstances of the case, the question that has arisen in this appeal is answered holding that a candidate participating in the selection process and securing a merit position below the select list LPA No. 193/2019 Page 3 of 4 and the wait list candidate have no right of appointment against the advertised post even if the select/wait list candidate fails to join.

11. The appeal accordingly lacks merit and is dismissed. (JAVED IQBAL WANI) (PANKAJ MITHAL) JUDGE CHIEF JUSTICE SRINAGAR 27.07.2022 Altaf Whether the order is reportable? Yes/No LPA No. 193/2019 Page 4 of 4