STATE OF J & K AND ORS. versus SANJEEV KUMAR AND ORS.

Citation: [2005] 2 S.C.R. 400 · Decided: 24-02-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

A 
STATE OF J & KAND ORS. 
v. 
SANJEEV KUMAR AND ORS. 
FEBRUARY 24, 2005 
B 
[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] 
j ! 
.. 
Service Law : 
Jammu and Kashmir Medical Education Gazetted Service Recruitment 
C Rules, 1979; Rule 57: 
Appointment of doctors by direct recruitment-Gran/ of ad hoc promotion 
to departmental employees approved by State Public Service Commissio~ 
Panel/select /~st <!rawn.by the Commission in pursuance of direct recruitment-
Appointments frqm list/panel-Challenge t~Allowed by High Court holding 
D that the appointments were m"ade from future va~ancieslbeyond the notified 
I 
vacancies-On appeal, Held: Commission recommended for promotion for 
departmental employees within a very short period from the date of the 
advertisement for direct recruitment-Thus, there existed vacancies-High 
Co.urt did not examine the validity of select list/panel beyond one year-File 
E record containing policy decision with regard to the appointments in question 
not produced by the Department in spite of specific directions by the High 
Court-Hence, the case is remitted to the High Court for consideration afresh. 
Appellant-State of Jammu & Kashmir issued an advertisement for 
appointment of lecturers/doctors in the Medical Education Department. 
F In the meantime, four departmental employees were granted ad hoc 
promotion. Later, State Public Service Commission (Commission) 
accorded its approval for the promotion. Pursuant to the advertisement 
for the direct recruitment, the Commission prepared a select list and 
waiting list. In pursuance thereof,. three persons were appointed. Their 
appointment was challenged by the respondents. The challenge was held 
G to be without substance by the High Court. However, in the Letters Patent 
Appeal, Division Bench of the High Court held that the appointments were 
beyond the notified vacancies as indicated in the advertisement for the 
appointment but it was in respect of future _vacancies. Hence the present 
appeals. 
H 
400 
/ 
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...... 
} 
! 
STATE v. SANJEEV KUMAR 
401 
It was contended by the appellant-State that the approach of the A 
High Court was erroneous both factually and legally; that it failed to notice 
that because of the officiating promotions given· to four persons, there 
existed four vacancies, merely because they were not notified, that did not 
make the situation different; and that since petitioners were not eligible 
for appointment, they did not have locus standi to challenge the selection. B 
Respondents submitted that the State did not make requisition for 
appointment for six posts but it had categorically advertised for 
appointment for two posts; that ·had the Commission considered the four 
vacancies to be existing vacancies, it would have made list of six candidates 
and would not have drawn up "waiting list; and that though the writ C 
petitioners were found to be ineligible on the date of advertisement, they 
were eligible on the date the selectlist was drawn up. 
Disposing of the appeals, the Court 
HELD : 1.1. The Government can by. a policy decision appoint D 
persons from the waiting list; and that while issuing advertisement the 
Government could have taken into account the likely vacancies. [406-BI 
Prem Singh and Ors. v. Haryana State Electricity Board and Ors., (1996] 
4 SCC 319 and Virender S. Hooda and Ors. v. State of Haryana and Anr., 
[19991 3 sec 696, relied on. 
E 
1.2. ln fact, within a very short period from the. date of the 
advertisement, Public Service. Commission approved the recommendations 
for promotions for four persons. Therefore, it cannot be prima facie said 
that there were no existing vacancies or likely vacancies. Moreover, the 
effect of Rule 57 has not been considered by the Division Bench of the F 
High Court on the strong reasoning that though Single Judge of the High 
Court had referred to Rules, the specific rule was not indicated, though 
such a rule exists. It was not the case of the writ petitioners in the Appeal 
before the Division Bench that no such rule exists. The effect of the rule 
was required to be considered by the High Court. (406-D-EJ 
G 
1.3. The question as to why the Commission prepared select list of 
only two persons, when it could have drawn up list of six persons, while 
drawing up of the select list, needs to be considered by the High Court. 
Though a reference has been made by the High Court to the Commission's 
stand in its judgment, the details are not indicated. Another que

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