Srinagar: Dismissing a plea of three doctors for their appointment as Assistant Professor (AP) Cardiology in SKIMS here, the High Court Thursday ruled that any persons in the select panel cannot be appointed against the posts that become subsequently available for any reason whatsoever.
“If a selection process is initiated to fill up a solitary post in a cadre, the moment the 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 posts that become subsequently available for any reason whatsoever,” a bench of Justice Sanjeev Kumar said.
The court said this while dismissing a petition by three doctors, two of who were seeking appointment as Assistant Professors (APs) in Cardiology department of SKIMS here against two supernumerary posts which were proposed to be created.
The petitioners along with other candidates had applied for one post of AP in the Cardiology department of SKIMS in response to an advertisement notice issued in 2015.
The Apical Selection Committee (ASC) SKIMS after conducting the interview of the eligible candidates framed a merit list of candidates.
Dr Aamir Rashid being first in the order of merit was appointed as AP Cardiology against the only post notified for the selection.
The two petitioners who were seeking appointment as APs in Cardiology department of SKIMS against two supernumerary posts figured at Serial No 2 and 3 of the merit list.
After the appointment of Dr Aamir Rashid against the notified post of AP Cardiology, the Director SKIMS forwarded a proposal to fill up one post that had fallen vacant after the retirement of an AP, Dr Vicar Jan for appointing the candidate who figured at Serial No 1 in the wait list.
With regard to two petitioners, the Director SKIMS in keeping with recommendation of the ASC and endorsed by a Sub-Committee constituted vide a government order, proposed to create two supernumerary posts of AP.
The matter reached the Chairman Governing body SKIMS, who directed that it be taken with the Finance department for concurrence.
The Finance department gave its concurrence to the proposal with a rider that the posts so created should cease to exist immediately after the posts become available in the institute.
After concurrence was conveyed to him, the Chief Secretary called upon the Director SKIMS to revise his proposal earlier submitted by him.
The proposal was revised and forwarded to the Chairman, Governing Body Governor (Governor) through Chief Secretary who directed to get clarification on the legality of such proposal.
The legal opinion by the Law Secretary on 12 February 2019 indicated that with the appointment of Dr Aamir Rashid on the lone post of AP Cardiology notified for selection, the panel got exhausted and the wait-list, if prepared, lost its life.
The opinion conveyed that the waitlist cannot serve as a reservoir to fill up vacancies which come into existence after the issuance of advertisement notification.
However, the legal opinion indicated that there was an exception to this rule as carved by the Supreme Court in Prem Singh versus Haryana State Electricity Board that in case of rare and exceptional circumstances and in an emergent situation, the government may, by a policy decision, fill up even the vacancies which were not earlier notified.
“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,” it said.
The matter once again landed before the Chairman of the Governing Body who as competent authority directed to close the matter.
“As rightly opined by the Law Secretary and in which opinion of the Law Secretary is in consonance with the settled legal position that if a selection process is initiated to fill up a solitary post in a cadre, the moment the 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 posts that become subsequently available for any reason whatsoever,” the court said.
In the instant case, the court said that 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.
The court said that the two supernumerary posts of AP 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,” it said.
The court said that it was true that by way of an exception carved out by the Supreme Court in cases Prem Singh versus Haryana State Electricity Board and others and Rakhi Ray and others versus the High Court of Delhi and others, 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 court said.