A Writ of Mandamus cannot be issued unless the petitioners have a vested right of appointment: High Court Of Jammu & Kashmir And Ladakh

 h475 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR SWP No.602 2019 Dr. Jahangir Rashid Beigh and another Reserved on : 27.09.2021 Pronounced on : 06.10.2021 ...Petitioner(s) Through: Mr. Jahangir Iqbal Ganai Sr. Adv. with M s Murad and Rahat Advocates State of J&K and others ...Respondent(s) Through: Mr. Shah Aamir AAG Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE Sher i Kashmir Institute of Medical Sciences vide advertisement notice No.04 of 2015 dated 10th July 2015 invited applications from eligible candidates possessing requisite qualification and experience for filling up of various vacant faculty positions and the posts of Professor and Assistant Professor in different department. By way of addendum to the aforesaid advertisement notification post of Assistant Professor in the department of Cardiology was also notified on the terms and conditions already notified vide advertisement notice No.015. This was followed by Advertisement Notice Nos.01 of 2016 dated 19th March 2016 06 of 2016 dated 5th May 2016 and Advertisement Notice No.016 dated 5th September 2016. 2 SWP No.602 2019 In response the said advertisement notifications several applications from eligible doctors including petitioners were received for the post of Assistant Professor in Cardiology. The Screening Committee constituted by the Government for screening the applications found eight applicants including the petitioner Nos. 1 and 2 possessing the requisite qualification and experience and eligible for the post. The Apical Selection Committee constituted by the Government for recommending suitable candidates which met under the Chairmanship of the Chief Secretary of Jammu & Kashmir State interviewed all the eligible candidates on 19th July 2017. The ASC on conclusion of interviews of the eligible candidates framed a merit list of candidates for appointment. Dr. Aamir Rashid topped the merit list followed by petitioner No.1 and petitioner No.2 who figured at serial Nos. 2 and 3 of the merit list. It appears that the ASC which is only a recommending body placed the merit list before the Chairman of the SKIMS governing body. The Chairman of the governing body i.e. His Excellency the Governor of Jammu & Kashmir State ordered the matter to be placed before Sub Committee recommendations made by the ASC. Accordingly vide Government Order No. 64 SKIMS of 2018 dated 28th July 2018 the matter was placed before the Sub Committee for scrutinizing the recommendations of the ASC on case to case basis and offer its recommendations. As is gatherable from the reply affidavit filed by the respondents the appointment order in respect of Dr. Aamir Rashid who was first in the 3 SWP No.602 2019 order of merit as Assistant Professor Cardiology was issued. The only post which was notified for selection was thus filled up. However having regard to the recommendations of the ASC and in view of dearth of faculty in the discipline of Cardiology matter with regard to creation of additional posts of Assistant Professors in Cardiology department was taken up with the competent authority and the finance department. It is the positive case of the petitioners that the proposal submitted to the finance department received the concurrence of the finance department but the competent authority for undisclosed reasons did not formally create posts and adjust the petitioners though the SKIMS needed faculty in the department of cardiology and the petitioners were found qualified and meritorious in the selection process conducted by the ASC. The respondents have filed reply affidavit. It is submitted that in terms of Advertisement Notice No.015 dated 10th July 2015 read with addendum dated 10th July 2015 only one available post of Assistant Professor in the department of Cardiology was notified for selection which post on the basis of selection and recommendations made by the ASC was filled up by appointment of Dr. Aamir Rashid the candidate who was on top of the merit list. Petitioner Nos.1 and 2 however were not offered any appointment for the reason that there were no post to accommodate them. It is admitted by the respondents that having regard to the dearth of faculty in the department of cardiology and the eligibility and merit of the petitioners and on the basis of recommendation of the ASC the matter was taken up with the competent authority and the finance 4 SWP No.602 2019 department for creation of additional posts of Assistant Professors in the cardiology department however the proposal could not materialize. It is because of this reason the petitioners though recommended by the ASC could not be appointed due to non availability of posts. The post which later fell vacant in November 2017 on superannuation of Dr. Viccar Jan was advertised under direct recruitment and reserved for Scheduled Caste category4 SCC 319 and opined that in case of rare and exceptional circumstances and in emergent situation the respondents may by a policy decision fill up even the vacancies which 6 SWP No.602 2019 were not earlier notified. The Law Secretary also opined that the exigency pointed out by the Director SKIMS on account of non availability of Cardiologists in SKIMS would fall within the purview of an emergent situation and exceptional circumstances and therefore the respondents may take a policy decision in this regard. 10. The matter once again landed before the Chairman of the Governing Body Hon’ble the Governor through Chief Secretary. The Chairman however directed to close the matter meaning thereby the competent authority declined to take any policy decision. This is how the proposal mooted by the Director SKIMS could not get through. 11. When the case set up by the petitioners is examined and analyzed in the light of settled legal position and the record produced by Mr. Shah Aamir learned AAG one would find no justification to interfere with the decision taken by the competent authority. Indisputably the advertisement notification was for filling up one post of Assistant Professor in the department of Cardiology SKIMS. It is also not in dispute that on the date of issuance of advertisement notification and even after conclusion of the selection process only one post of Assistant Professor Cardiology was available in SKIMS. The petitioners along with other candidates participated in the selection process for the said post. On the basis of overall merit it was Dr. Aamir Rashid who got selected and subsequently appointed. As rightly opined by the Law Secretary and which opinion of the Law Secretary is in consonance 7 SWP No.602 2019 with the settled legal position that if a selection process is initiated to fill up a solitary post in a cadre the moment said post is filled up by appointing the selected candidate the select panel gets exhausted and the persons in the panel cannot be appointed against the post(s) that become subsequently available for any reason whatsoever. It is equally true that a selection process can be initiated for clear as well as anticipated vacancies but not for the future vacancies and in doing so the selection authority is obliged to indicate that the selection is not only for clear vacancies but also for future vacancies so that the candidates applying have a fair idea of vacancies they are competing for. In the instant case the post that fell vacant due to superannuation of Dr. Vicar Jan was perhaps an anticipated vacancy but that was not made part of the advertisement and therefore was not put to selection. Two supernumerary posts of Assistant professor which were proposed to be created and if created by the orders of the competent authority would have been the posts that would come in existence after the selection process was over. In any case these could only be termed as future vacancies. 14. The judgment in Prem Singh’s case does not permit filling up such future vacancies by operating the wait panel prepared in relation to a selection of a post and which panel stands exhausted and there is rationale in this proposition of law. There could be many more candidates who may have acquired eligibility after the closing date of filling application in reference to the earlier advertisement notification and have 8 SWP No.602 2019 thus acquired a right to seek consideration against such future vacancies. True it is that by way of an exception carved out by the Supreme Court in Prem Singh and Rakhi Ray and others v. High Court of Delhi and others 2 SCC 637 such Rule can be deviated if there are rare and exceptional circumstances or an emergent situation. However such deviation is permissible only after a policy decision is taken by the employer based on some rationale. The competent authority appears to have considered the detailed opinion rendered by the Law Secretary and has instead of taking a policy decision directed the matter to be closed. It is in these circumstances the proposal which was mooted by the Director SKIMS and which had the approval of ASC and the Sub Committee and the concurrence from the finance department did not get through. Consequently no formal order of creation was issued by the competent authority. Besides a writ of mandamus cannot be issued unless the petitioners have a vested right of appointment. As is held in Punjab State Electricity Board and others v. Malkiat Singh 9 SCC 22 mere inclusion of candidate in a select panel does not confer upon him her a vested right to appointment. 15. That being so the clear position that emerges is that the respondents have not created any post on supernumerary basis or otherwise nor the petitioners acquire any right of appointment against non existent posts. They cannot in law seek a mandamus to the respondents to create supernumerary posts and adjust them on the ground that they are next in merit to the candidate selected and appointed. The only post that became 9 SWP No.602 2019 available on superannuation of Dr. Vicar Jan too was subsequently notified for selection thereby creating third party right of consideration 16. Viewed from any angle I find no merit in this petition. The same is Record produced by Mr. Shah Aamir learned AAG be returned against the said post. accordingly dismissed. 06.10.2021 Judge Whether the order is speaking : Yes Whether the order is reportable: Yes 

Summary: The competent authority seemed to have considered the detailed opinion rendered by the Law Secretary and instead of taking a policy decision, had directed the matter to be closed. Such an opinion was held by The Hon’ble High Court Of Jammu &amp; Kashmir And Ladakh before The Hon’ble Mr. Justice Sanjeev Kumar in the matter of Dr. Jahangir Rashid Beigh and another vs. State of J&amp;K and others [SWP No.602/2019].  The facts of the case are associated with the advertisement published by the Sher-i-Kashmir Institute of Medical Sciences (SKIMS), inviting applications for filling up positions of Professor and Assistant Professor in different departments. In response to said advertisement, numerous applications from eligible doctors including petitioners were received for the post of Assistant Professor in Cardiology. The application of the petitioner and 8 others were found eligible by the Screening Committee constituted by the Government. The Apical Selection Committee (ASC) framed the merit list after the conclusion of the interview and appointment. The list was topped by Dr. Aamir Rashid followed by petitioner No.1 and petitioner No.2. Dr. Aamir Rashid, who was first in the order of merit, as Assistant Professor, Cardiology was issued.  Further, the proposal submitted to the finance department by the petitioners received the concurrence of the finance department. In the department of cardiology, the SKIMS needed faculty and the petitioners were found qualified and meritorious in the selection process conducted by the ASC. A reply affidavit was filed by the respondents wherein they contended that according to the advertisement only one available post of Assistant Professor in the department of Cardiology was notified for selection, and on the basis of selection and recommendations made by the ASC, was filled up by the appointment of the top candidate Dr. Aamir Rashid. Petitioners no 1 and 2 were not offered any appointment since there were no posts to accommodate them.  The Chief Secretary conveyed the concurrence of the finance department, called upon the Director, SKIMS to revise his proposal earlier submitted by him. The Chairman, Governing Body through Chief Secretary was forwarded the revised proposal and further he had directed to get clarification on the legality of such proposal. The said matter finally landed before the department of law for opinion. The Law Secretary had such opinion that “the exigency pointed out by the Director, SKIMS on account of non-availability of Cardiologists in SKIMS, would fall within the purview of an emergent situation and exceptional circumstances and, therefore, the respondents may take a policy decision in this regard.” After going through all submissions The Hon’ble High Court held that “… They cannot, in law, seek a mandamus to the respondents to create supernumerary posts and adjust them on the ground that they are next in merit to the candidate selected and appointed. Viewed from any angle, I find no merit in this petition. The same is, accordingly, dismissed.”