Shabir Ahmed Nath vs State and others

This petition under section 103 of the Constitution of Jammu and Kashmir read with Article 226 of the Constitution of India has been filed by

Shabir Ahmed Nath S/o Mohd. Iqbal Nath R/o Padwan Payeen Kulgam on his own behalf and on behalf of 477 selected candidates. The matter

relates to the selection and appointments made in District Anantnag in the Police Department in the year 1998.

The facts relevant for the disposal of the petition are as under:

By means of order No. 1499 of 1998 dated 18.5.1998Director General of Police, JandK Jammu constituted a District Recruitment Boards for

the purpose of carrying out selection of candidates for appointment on the posts of constables in the pay scale of 2750703800754400 in the

JandK Police Executive. Each District Board shall comprise of the following officers:

Dy. Inspector General Chairman

Districts.?. Member

Dy.S.P.DAR Member

CPO/SPO Member

The notification provided reservation for various categories as also the procedure and marking system for conducting test for the selection and

appointment of constables. By another notification posts were allotted to the various districts. For the District of Anantnag 540 posts were allotted.

The process of selection was conducted in the District Anantnag too and the selection committee constituted under the said notification selected

478 candidates for the posts. The list was submitted to Police Headquarter for approval. Later by means of letter No. Pers/A25/ 98/2511518

dated 25.7.98 IGP Headquarters PHQ JandK Srinagar conveyed the approval for the appointment of constables shown in the list and advised SP

Anantnag to issue formal appointment orders after observing other formalities under intimation to the Head Quarter. Before formal appointment

orders could be issued complaints of irregularities were received by the Director General of Police who ordered an enquiry into the allegations of

these irregularities. When the allegations of irregularities were established, he ordered quashing of the selection process and appointed a fresh

recruitment board to for carrying out the selection denovo. The newly constituted board met and by means of notice no. 303032 dated 27.7.1998

directed all candidates who had already applied for the post of constables to appear in the test. Schedule of test was given in the notification. Later

the selections were made by the Committee on the basis of which appointments were made. The petitioners did not find place in the second list as

such they are aggrieved by the action of the respondents in quashing their selection list as well as constituting a new Recruitment Board for making

fresh selection and making appointments on the basis of such selection.

Through the medium of this petition petitioner have prayed for quashmcnt of the new selected/appointment list and have also prayed for a

direction to the respondents to appoint them as constables on the basis of the earlier selection list which according to them was a valid list and had

been rejected without any sufficient ground. The main grounds raised by the petitioners are that the respondents have violated the principle of

natural justice as the list by means of which they got selected was set aside without providing them an opportunity of being heard. They have thus

been condemned unheard. According to them if the selection was unfair the authorities should have resorted to the principle of natural justice and

afforded the petitioners the right of hearing.

The respondents have filed a detailed counter in which the facts which compelled the authorities to resort to a fresh selection process have been

given. The respondents have admitted that earlier they had initiated the process of selection through which the petitioners got selected but,

according to them, mere selection does not confer any right of a person to get appointment. The process of selection, according to the respondents

at the most makes a person so selected eligible for appointment which does not itself create any right of appointment in him. The respondents have

stated that keeping in view the present adverse law and order situation in the State, the State Government decided to create number of police

posts with twin purpose of providing employment to the educated unemployed youths of the State and to combat the on going militancy and in this

background recruitment of constables in the executive police was sought in terms of JandK Police Rules Consequently vide order No. 1500/98

dated 18.5.1998 distribution of constables in Kashmir Division was made districtwise, allocating number of posts to each and every district. It was

however made clear that as soon as the selection is made the list be submitted to the Police HQ for approval. On the same date i.e. 18.5.1998

advertisement notice were issued for selection of the constables in the Executive Police vide order No. 1499 of 1998 whereby Constitution of the

District Recruitment Boards were made and the same was ordered to be headed by the DIG of the concerned range and District Superintendent

of Police saquad Dy.S.P. (DAR), CPO/SPO were made the members of the said Committee. It has been further stated by the Respondents that in

the District Anantnag the Selection Committee prepared a selection list of 478 candidates while as the Committee had to prepare the list of 540

candidates leaving posts reserved for category. The list was submitted to the IGP who approved it and found that the selection list had been drawn

on the basis of guidelines but no selection record was summoned or scrutinized. It was presumed that the selection record will be in consonance

with the selection list and the selection has been made bonafidely on the basis of merit obtained by each candidate. As soon as approval was given,

number of complaints were received by respondent No.2 and by other State authorities including the PHQ for which vide letter No. Applt/

2653637 dated July 14,1998 enquiry ordered. The enquiry was conducted by Dr. Bhan IGP Armed Police who submitted a detailed report vide

APHQ/OB/Eng/98636 dated July, 24,1998, it was on the basis of enquiry report that the selection list was cancelled/quashed vide order No.

2407 of 19.98 dated 24.7.1998 by the respondent No.2 . In view of this fact fresh selection was ordered to be made and the appointments were

later ordered on the basis of selection made by a new recruitment Board.

The petitioners have filed rejoinder to the counter filed by the respondents in which it has been stated that the answering respondent has

suppressed the true and correct facts.

Heard. I have gone through the annexures placed on file.

The process of selection for the recruitment of constables in the police Department was initiated by means of order No. 1499/98 dated

18.5.1998. Vide Order No. 1500/98 dated 18.5.1998 District Anantnag was allotted 540 posts. The selection Committee, as is admitted by both

the sides, conducted various tests as required under the guidelines provided by order No. 1499/98 and prepared a selection list of 478 candidates

which was dulysubmitted to the Police HQ for approval. Director General of Police accorded necessary approval to the list and asked the

concerned SP to issue formal orders of appointment after observing other formalities under intimation to Police Headquarter. Before the issue of

the appointment orders the selection list was quashed on the allegations of irregularities for which an enquiry was got conducted by the Director

General of Police through Inspector General of Police.

The grievance of the petitioners is that the selection of the petitioners was cancelled on flimsy grounds and without affording them an

opportunity of being heard. Mr. M.A. Qayoom who argued this case at length on behalf of petitioner would submit that the action on the part of

the respondents was arbitrary, capricious and unconstitutional as the authorities have set aside the selection made duly in accordance with the

guidelines provided by the police Headquarter. According to the Id. counsel the selection list submitted by the Recruitment Board of District

Anantnag was duly approved by the Director General of Police who directed the SP concerned to issue formal orders of appointments. The

petitioners were called and were asked to prepare their own uniform which they did but before they could be given the posting order and allowed

to join against the post, there appeared news items in the ""Greater Kashmir"" of July 25th, 1998 issue through which the petitioners came to know

that the selection has been quashed and a fresh selection process ordered.

II. Ld. counsel would submit that the order of appointment became complete and final as soon as selection was approved and the S.P. Anatnag

was asked to issue formal orders. He has placed reliance on 1972 JKLR 409. According to the Ld. counsel it is now well settled as has been held

by the Supreme Court in SayeedurRehman v.State of Bihar AIR 1973 SC 239 that when the authorities intend to review an order passed by them

they must give hearing to the person who would be affected in the order. In the said authority the Apex Court observed as under:

...This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the

rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of

not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the

practice of giving hearing to the affected parties. The President of the Board of Secondary Education would be deciding a controversy affecting the

rights of the parties before him if and when he chooses to reconsider the order dated April 22, 1960, whatever be the source of his power to do

so a point left open by us. He is required to decide in the spirit and with a sense of responsibility of a tribunal with a duty to meet out evenhanded

justice. The appellant would thus be entitled to a fair chance of presenting his version of facts and his submissions on law as his rights would be

directly affected by such proceeding. The omission of express requirement of fair hearing in the rules or other source of power claimed for

reconsidering the order dated April 22, 1960 is supplied by the rule of justice which is considered as an integral part of our judicial process which

also governs quasijudicial authorities when deciding controversial points affecting rights of parties.

According to the Ld. counsel since no opportunity was provided to the petitioner the setting aside of selection list cannot stand. The Ld.

Counsel has in this behalf relied on the Benny T.D. v. Registrar Cooperative Society AIR 1998 SC202I.

On consideration of the matter I find this petition cannot stand on a very short point. Admittedly the process of selection was complete in the

present case. The petitioner admittedly were figuring in the select list but before an order of appointment could be issued in their favour, the

selection list was cancelled by Director General of Police.

It is now well settled by a series of decisions of the Supreme Court that a select list does not confer any right on the candidate whose name

figures in the list to appointment. At best it is a condition of eligibility for the purpose of appointment and which by itself does not amount to

selection nor does it create a vested right to be appointed. The legal position has been settled by now a Constitution Bench in Shankasran Dash V.

Union of India. 1991 (3) SCC 47 where the Court held that 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.

Reference in this behalf may also be made to State of Bihar v. Secrtarial Assistant Successful Examinee Union 1994 (1) SCC 126, Bahita

Prasadv. State of Bihar JT 1992 Suppl. SC 135 U.P.Bomidar Nigam Ltd. \.ShivNaryan Gupta 1994 Suppl (2) SCC 541.

Since mere selection did not confer any right on the petitioners to claim appointment, I find that the present writ cannot stand. Petitioners had

no vested right to challenge either cancellation of the earlier list of the fresh appointments made under the new selection by the authorities. In view

of this settled position of law the authorities cited and relied upon by the Ld. Counsel for the petitioner cannot be made applicable to the present

case and the pleas raised cannot be entertained.

In State of Bihar v. Secretarial Assistant successful examines union (supra) The Apex Court held as under:

It is no well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment.

Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right

to be appointed unless relevant service rule says to the contrary.

In Babita Prasad (supra) the candidates who had been selected had even been deputed for training at the Government expenses. The Court held

that the mere fact that the candidates who had been brought on the panel had been sent for training at the Government expense, would not imply

that any right had been created in their favour for appointment.

This petition is, therefore, dismissed. Order accordingly.