J&K HC | Process which is not mentioned in service rules or statute governing appointment process, cannot be given effect by the Court

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. dismissed an appeal seeking directions for an appointment based on the subsequent waiting list when the selected candidate and the waitlisted candidate did not report.

The petitioner had offered his candidature for selection against the post of Accounts Assistant (ST category) by the Jammu and Kashmir Services Selection Board. The board, at the culmination of the selection process, forwarded the selection list containing the name of a lone candidate along with a waiting list, also containing the name of only one candidate. While the Department had yet to act on the selection list so forwarded to it by the Board, the petitioner made a representation addressed to the Directorate General, Accounts and Treasuries, bringing it to his notice that the selected candidate and the candidate figuring in the waiting list had tendered affidavits stating that they did not intend to join, and requesting him to direct the concerned authorities to process his case for appointment in accordance with norms as his candidature was on top in the subsequent waiting list. The request was rejected by the board as there were no rules for appointment of a candidate whose name is neither in the selection list and nor in the waiting list.

The petitioner feeling aggrieved by the above rule moved to the Court.

The issue for determination was: whether a candidate in a selection process securing a merit position below the waitlisted candidate can lay a claim for selection and appointment against the advertised post in the event the waitlisted candidate does not join against the post when the appointment is offered to him on account of non-joining of the selected candidate

Learned counsel for the petitioner Nissar Ahmad, submitted that since the petitioner’s name was there in the merit list after the waitlisted candidate, who did not join against the post, a right has accrued to him for being appointed against the post, but the respondents were unjustifiably denying him such right. It was also averred that the respondent had not shown any legal infirmity in denying appointment order in favour of the petitioner.

Learned counsels for the respondent D.C Raina and Mir Suhail, submitted before the Court that there was no rule to provide a supplementary waiting list and this position was clarified by the Board earlier in terms of communication. It was further stated in the reply that since the petitioner’s name did not figure either in the select list or the waiting list he had no right or locus to claim selection and appointment against the post. Furthermore, Rule 14 of Jammu and Kashmir Civil Service Decentralization and Recruitment Rules Act, 2010 (2010 Rules) which governs the selection process did not provide any provisions for making an appointment from the subsequent waiting lists. Thus, they requested the Court to dismiss the petition.

 The Court observed that since the 2010 Rules was the governing statute for the appointment to the concerned post and it did not provide any provision regarding making of a subsequent waiting list for the purpose of filling a seat, the same cannot be de done as it would be violating the provisions of the statute. The Court also relied on the Judgment given in the case of Prem Singh v. Haryana SEB, (1996) 4 SCC 319 in which Supreme Court very clearly observed that appointment on more than the advertised seats cannot be allowed as the governing provision laid no rules regarding that. The Court, thus, dismissed the petition.[Liyakat Hussain Baniya v. State of Jammu and Kashmir, 2019 SCC OnLine J&K 442, decided on 17-05-2019]

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