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“  REPORTABLE”   

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 938-939 OF  2013 (Arising out of SLP (C) Nos. 31591-31592 of 2012)

State of J&K & Ors. …. Appellants

Versus

Sat Pal …. Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. Leave granted.

2. The Public  Works Department  of  the State  of  Jammu & Kashmir  

conducted  a  process  of  selection,  for  recruitment  against  the  posts  of  

Junior  Engineer  (Civil)  Grade-II.   Sat  Pal,  the  respondent  herein  

participated  in  the  aforesaid  process  of  selection.   He was successful,  

inasmuch as,  he figured in the final  merit/select  list  of  scheduled caste  

candidates, prepared at the culmination of the selection process.  Having  

learnt that some scheduled cast candidates above him in the merit/select  

list  had not  joined inspite  of  having  been offered  appointment,  Sat  Pal  

addressed a representation to the appellants seeking appointment against  

an available vacancy.  In his representation, he mentioned the name of  

Trilok  Nath  as  one  of  the  selected  candidates,  who  had  been  offered  

appointment, but had not joined.  In his representation, he also pointed out,  

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that in the merit/select list pertaining for scheduled caste candidates, his  

name figured immediately after the name of the said Trilok Nath.

3. Since  the  representation  filed  by  the  respondent  remained  

undecided, he approached the High Court of Jammu & Kashmir at Jammu  

(hereinafter referred to as, the High Court) by filing SWP no. 1156 of 2009.  

Before  the  High  Court,  the  respondent  Sat  Pal  reiterated  the  factual  

position  asserted  by  him  in  his  representation.   To  substantiate  his  

assertion pertaining to Trilok Nath, that although the aforesaid Trilok Nath  

had been offered appointment against the post of Junior Engineer (Civil)  

Grade-II on 22.4.2008, Trilok Nath had not joined against the same,  he  

placed before the High Court a communication dated 5.5.2008 issued by  

the Chief Engineer (R&B) Department, Jammu, narrating that Trilok Nath  

was not interested to join against the post of Junior Engineer (Civil) Grade-

II.   

4. Before the High Court, the respondent relied upon the prevalent rule,  

whereunder,  a  waiting  list  was  valid  for  one  year.   The  fact  that  the  

prevalent rules envisaged, that the merit list of candidates in continuation  

of those offered appointment, would constitute the waiting list, and would  

be valid for a period of one year, was not disputed even before us.

5. Despite  the  High  Court  having  issued  notice  to  the  State  

Government in SWP no.1156 of 2009, and had required it to file pleadings,  

the State Government i.e., the appellants before this Court, did not file any  

objections.  The right of the appellants to file objections was closed by an  

order dated 5.4.2010.  In the aforesaid view of the matter, it was natural for  

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the High Court to infer, that the assertions made by the respondent before  

it, were truthful and acceptable for a final determination of the controversy.  

Despite the aforesaid, the High Court disposed of the aforesaid writ petition  

at the admission stage, by directing the appointing authority to examine the  

claim  of  the  respondent,  for  appointment  against  the  post  of  Junior  

Engineer  (Civil)  Grade-II,  by  keeping  in  mind  the  communication  dated  

5.5.2008  issued  by  the  Chief  Engineer  (R&B)  Department,  Jammu,  

affirming that Trilok Nath, who was offered appointment against the post  

under  reference,  had  declined  to  join.   The  High  Court  required  the  

appellants herein to take a final decision in respect of the appointment of  

the respondent, within a period of two months, from the date a copy of the  

order of the High Court was made available.

6. In compliance of the directions issued by the High Court vide order  

dated 9.8.2010 in SWP no. 1156 of 2009, the appellants passed an order  

on  23.8.2011.   By  the  said  order  dated  23.8.2011,  the  claim  of  the  

respondent  for  appointment  against  the  post  of  Junior  Engineer  (Civil)  

Grade-II was rejected for the following reasons:-

“(i) In view of the fact that the waiting list issued in respect of the  recruitment  has outlived  its  validity  way back  in  May,  2008  itself, he cannot be granted appointment in accordance with  the same.

(ii) And that for the abovesaid reason, vacancies cannot be filled  at a belated stage.”

7. Aggrieved  by  the  rejection  order  dated  23.8.2011,  rather  than  

assailing the same by way of  a fresh writ  petition,  the respondent  filed  

Contempt (SWP) no. 157 of 2011.  The aforesaid contempt petition was  

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disposed  of  by  the  High  Court  vide  order  dated  29.10.2011,  with  the  

following observations:-

“The claim of the petitioner for his appointment as Junior Engineer  (Civil) Grade-II arose during the validity of select list/wait list.  The  duty was cast on the competent authority, who was seized of the  select list/wait  list  to fill  up the vacancies from the wait list,  but it  failed to perform its duty.  It is not the fault of the petitioner that his  claim  for  appointment  was  not  considered  during  the  validity  of  select list/wait list.  The fault is committed by the authority and the  petitioner cannot penalized for the same.  The claim of the petitioner  on merits deserved to be allowed for being appointed on the post of  Junior  Engineer  (Civil)  Grade-II  when  select  list/wait  list  was  in  operation.  Same having not been done despite request having been  made,  his  right  of  consideration  for  being  appointed  would  thus  survive though such claim was considered by the Government after  the expiry of the validity period of select list/wait list.

Consideration  order  issued  by  the  Government  does  not  comply with the court directions.  Before initiating action for framing  rule  in  this  contempt  petition,  it  will  be  appropriate  to  afford  an  opportunity to the respondents to consider the whole issue and pass  orders in accordance with judgment of the Court.  Four week’s time  is granted to the respondents to reconsider the whole issue in the  light  of  the  observations  made  hereinabove  and  file  compliance  report by or before next date.”

8. The appellants herein were aggrieved by the order passed by the  

High Court in Contempt (SWP) no. 157 of 2011 filed by the respondent,  

since the appellants felt, that the directions in the nature recorded by the  

High Court (in the order extracted hereinabove), were not permissible in  

exercise  of  contempt  jurisdiction.   It  is,  therefore,  that  the  appellants  

preferred a letters patent appeal (LPAC no.2 of 2012) to assail the order  

dated 29.10.2011 passed by the High Court in Contempt (SWP) no. 157 of  

2011.  The letters patent bench, by its order dated 3.4.2012, held the said  

letters patent appeal as not maintainable.  The orders passed by the High  

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Court  dated  29.10.2011  and  3.4.2012  have  been  assailed  by  the  

appellants before this Court, by way of present appeals.

9. The controversy in hand is yet another illustration of the denial of a  

legitimate claim, of an innocent citizen.  Rather than appreciating the claim  

raised by the respondent before the High Court through SWP no.1156 of  

2009, to which the appellants failed to even file their response, the same  

was  ordered  to  be  closed  by  an  order  dated  5.4.2010.  Thereupon  

appellants have chosen to pursue a course, which would sideline the main  

controversy. The course adopted would neither serve their own purpose,  

nor the purpose of the respondent Sat Pal.   

10. It  is  not  a  matter  of  dispute,  that  the  respondent  Sat  Pal  

participated in a process of selection for recruitment against the post of  

Junior Engineer (Civil) Grade-II.  It  is also not in dispute, that his name  

figured in the merit/select list of scheduled caste candidates.  Trilok Nath,  

who had been offered appointment  against  the post  of  Junior  Engineer  

(Civil)  Grade-II  on  22.4.2008,  did  not  join,  despite  the  said  offer  of  

appointment.  The instant fact is fully substantiated from the order dated  

5.5.2008 issued by the Chief Engineer (R&B) Department, Jammu. Even  

though candidates who were higher in merit, were offered appointment to  

the post of Junior Engineer (Civil) Grade-II, for which recruitment was held,  

some of such posts remained vacant on account of the fact that persons  

higher  in  merit  to  the respondent  Sat  Pal  had declined to join,  despite  

having been offered appointment.   Atleast one such vacancy offered to  

Trilok Nath never came to be filled up.  In such a situation, the claim of the  

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respondent Sat Pal whose name figured in the merit/select list, ought to  

have  been  offered  appointment  against  the  said  post.   The  claim  of  

respondent Sat Pal could not have been repudiated, specially on account  

of his assertion, that his name in the merit/select list amongst Scheduled  

Caste candidates  immediately  below the  name of  Trilok  Nath,  was not  

disputed even in the pleadings before this Court.  It is not the case of the  

appellants before this Court, that any other candidate higher than Sat Pal  

in the merit/select list is available out of Scheduled Caste candidates, and  

can be offered the post against which Trilok Nath had not joined.

11. In  view  of  the  factual  position  noticed  hereinabove,  the  reason  

indicated by the appellants in declining the claim of the respondent Sat Pal  

for appointment out of the waiting list is clearly unjustified.  A waiting list  

would start  to  operate  only  after  the posts  for  which the  recruitment  is  

conducted,  have  been  completed.   A  waiting  list  would  commence  to  

operate, when offers of appointment have been issued to those emerging  

on the top of the merit list.  The existence of a waiting list, allows room to  

the  appointing  authority  to  fill  up  vacancies  which  arise  during  the  

subsistence of the waiting list.  A waiting list commences to operate, after  

the vacancies for which the recruitment process has been conducted have  

been  filled  up.   In  the  instant  controversy  the  aforesaid  situation  for  

operating the waiting list had not arisen, because one of the posts of Junior  

Engineer (Civil) Grade-II for which the recruitment process was conducted  

was  actually  never  filled  up.  For  the  reason  that  Trilok  Nath  had  not  

assumed charge, one of the posts for which the process of recruitment was  

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conducted,  had remained vacant.   That apart,  even if  it  is assumed for  

arguments sake, that all the posts for which the process of selection was  

conducted were duly filled up, it cannot be disputed that Trilok Nath who  

had participated in the same selection process as the respondent herein,  

was offered appointment against the post of Junior Engineer (Civil) Grade-

II  on  22.4.2008.   The  aforesaid  offer  was  made,  consequent  upon  his  

selection in the said process of recruitment.  The validity of the waiting list,  

in the facts of this case, has to be determined with reference to 22.4.2008,  

because the vacancy was offered to Trilok Nath on 22.4.2008.  It is the  

said vacancy, for which the respondent had approached the High Court.  

As against the aforesaid, it is the acknowledged position recorded by the  

appellants in the impugned order dated 23.8.2011 (extracted above), that  

the waiting list was valid till May, 2008. If Trilok Nath was found eligible for  

appointment against the vacancy in question out of the same waiting list,  

the respondent herein would be equally eligible for appointment  against  

the said vacancy.  This would be the unquestionable legal position, in so  

far as the present controversy is concerned.  

12. The date  of  filing  of  the  representation  by  the  parties  concerned  

and/or the date on which the competent authority chooses to fill  up the  

vacancy in question, is of no consequence whatsoever.  The only relevant  

date is the date of arising of the vacancy.  It would be a different legal  

proposition, if  the appointing authority decides not to fill  up an available  

vacancy, despite the availability of candidates on the waiting list. The offer  

made to Trilok Nath on 22.4.2008 by itself, leads to the inference that the  

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vacancy under reference arose within the period of one year, i.e., during  

the period of validity of the waiting list postulated by the rules.  The offer of  

the vacancy to Trilok Nath, negates the proposition posed above, i.e., the  

desire of the employer not to fill up the vacancy.  Herein, the appellants  

wished to fill up the vacancy under reference.  Moreover, this is not a case  

where the respondent was seeking appointment against a vacancy, over  

and above the posts for which the process of selection/ recruitment was  

conducted.  Based on the aforesaid  inference,  we have no hesitation in  

concluding that the appellants ought to have appointed the respondent Sat  

Pal, against the vacancy which was offered to Trilok Nath.

13. The  issue  arising  for  consideration  herein,  has  already  been  

adjudicated upon by this  Court.   In the first  instance reference may be  

made to the decision rendered by this Court in Virender S. Hooda  v. State  

of  Haryana  (1999)  3  SCC  696.   In  the  instant  case  administrative  

instructions envisaged, that vacancies which came into existence within six  

months of the date of recommendation by the Public Service Commission,  

could be filled up from the earlier process of selection.  The observations  

made by this Court on the  instant issue,  in the  aforesaid  background,  

are being  extracted below:

“…..The fact that there were further vacancies available and when 9  vacancies  were  advertised  to  be  filled  up  within  a  period  of  six  months  after  announcement  of  the  previous  selection  cannot  be  disputed at all.  In terms of the circulars issued by the Government  on 22.3.1957 and 26.5.1972 when such vacancies arise within six  months from the receipt of the recommendation of the Public Service  Commission  they  have  to  be  filled  up  out  of  the  waiting  list  maintained by the Commission.  In respect of the vacancies which  arise  after  the  expiry  of  six  months  it  is  necessary  to  send  the  requisition  to  the  Commission.   It  is  also  made  clear  that  if  the  

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Commission  makes  recommendations  regarding  a  post  to  the  Department and additional vacancies occur in the Department within  a period of six months on the receipt of the recommendations, then  the vacancies which occur later on can be filled in from amongst the  additional candidates recommended by the Commission.  It is urged  on behalf of the appellants that letter dated 7.1.1992 indicated that  the cadre strength in the Haryana Civil Service (Executive Branch)  was 440 and the officers filling these posts were around 129 and  there was a shortfall of 111 and 23 posts had to be filled up by direct  recruitment.  Thus 12 posts for direct recruitment were vacant when  the advertisement for recruitment was made which was held in 1991.  Therefore, the appellants’ case ought to have been considered when  some of the vacancies arose by reason of non-appointment of some  of  the  candidates.   Therefore,  the  Government  ought  to  have  considered the case of the appellants as per the rank obtained by  them and the appellants had to be appointed if they came within the  range  of  selection.   Thus  when  these  vacancies  arise  within  the  period of six months from the date of previous selection the circulars  are attracted and hence the view of the High Court that vacancies  arose after selection process commenced has no relevance and is  contrary to the declared policy of the Government in the matter to fill  up such posts from the waiting list.”

This  Court  has also considered the same issue wherein  there were no  

rules/administrative instructions for filling up vacancies from the waiting list.  

While examining the aforesaid issue this Court in Mukul Saikia v. State of  

Assam, (2009) 1 SCC 386, held as under:

“At the outset it should be noticed that the select list prepared by  APSC could  be  used to  fill  the  notified  vacancies  and not  future  vacancies.   If  the  requisition  and  advertisement  was  only  for  27  posts,  the  State  cannot  appoint  more  than  the  number  of  posts  advertised,  even  though  APSC  had  prepared  a  select  list  of  64  candidates.  The select list got exhausted when all the 27 posts were  filled.  Thereafter, the candidates below the 27 appointed candidates  have no right to claim appointment to any vacancy in regard to which  selection was not held.   The fact that evidently and admittedly the  names of the appellants appeared in the select list dated 17.7.2000  below the persons who have been appointed on merit against the  said 27 vacancies, and as such they could not have been appointed  in excess of the number of posts advertised as the currency of select  list had expired as soon as the number of posts advertised are filled  up, therefore, appointment beyond the number of posts advertised  would  amount  to  filling  up  future  vacancies  meant  for  direct  candidates in violation of quota rules.  Therefore, the appellants are  

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not entitled to claim any relief  for themselves.   The question that  remains  for  consideration  is  whether  there  is  any  ground  for  challenging the regularisation of the private respondents.”

The  determination  rendered  by  this  Court  in  the  aforesaid  judgments,  

substantiates the view expressed by us in the foregoing paragraphs.

14. It is in the background of the aforesaid factual and legal position, that  

the High Court recorded some observations in its order dated 29.10.2011  

passed in Contempt (SWP no.157 of 2011).  The aforesaid observations  

were  advisory  in  nature.   Rather  than  initiating  action  against  the  

appellants for having missed the point, while considering the claim of the  

respondent in contempt jurisdiction, the High Court in its wisdom required  

the appellants to correct the mistake committed by the appellants.  The  

High Court did not, in the first instance, initiate any coercive action against  

the appellants.  In the aforesaid view of the matter it is apparent, that the  

appellants  unnecessarily  preferred  a  letters  patent  appeal  to  assail  the  

order of the High Court  dated 29.10.2011,  on a technical  plea, that the  

High Court in exercise of its contempt jurisdiction could not have dealt with  

the  merits  of  the  claim  of  the  respondent.   The  same  issue  is  being  

pursued now before us on technical grounds of maintainability of the letters  

patent appeal  preferred by the appellants before the High Court  (out  of  

which the instant appeals have arisen).   

15. In  so  far  as  the  technical  objections  raised  by  the  appellants  is  

concerned, reliance, in the first instance was placed by the learned counsel  

on Prithawi Nath Ram v. State of Jharkhand & Others, (2004) 7 SCC 261,  

wherein  this  Court  opined,  that  a  court  in  exercise  of  its  contempt  

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jurisdiction,  dealing  with  an  application  alleging  non  compliance  of  its  

earlier order, could not examine the rightness or wrongness of that order,  

nor could it issue further directions.  Reliance was also placed on V.M.  

Manohar Prasad v. N. Ratnam Raju & Anr., (2004) 13 SCC 610, wherein  

this Court held, that a contempt court was precluded from adjudicating on  

the merits of a controversy by passing any supplemental order, in addition  

to the order non compliance of which, was the basis of initiating contempt  

proceedings.  Finally, reliance was placed on Midnapore Peoples’ Coop.  

Bank Ltd. & others v. Chunilal Nanda & Others (2006) 5 SCC 399, dealing  

with the maintainability of an intra-court appeal against an order passed by  

the High Court in exercise of its contempt jurisdiction.   

16. It is not as if the pleas raised at the hands of the appellants are not  

fully legitimate.  In the facts and circumstances of this case, for reasons  

which would emerge from our instant order, we would decline to invoke the  

jurisdiction vested in us under Article 136 of the Constitution of India, for  

debating and deciding the technical pleas advanced by the appellants.  We  

would rather invoke our jurisdiction under Article 142 of the Constitution of  

India for  doing complete justice in the cause in hand.  Entertaining the  

instant appeals would defeat the ends of justice for which the respondent  

Sat Pal had approached the High Court.  Entertaining the objections filed  

by the appellants  would result  in deviating from the merits  of  the claim  

raised by the respondent Sat Pal, before the High Court.   

17. It gives us no pleasure to record that the State is not an adversary,  

and ought not have behaved in the manner it has chosen in the facts and  

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circumstances of this case.  In the first instance, it  failed to even file a  

response  before  the  High  Court,  to  the  writ  petition  preferred  by  the  

respondent Sat Pal.  The matter could have been adjudicated on merits,  

had the High Court chosen to do so.  In order to ensure that justice to the  

respondent  was  not  delayed,  the  High  Court  considered  it  just  and  

appropriate to direct the appointing authority to consider the claim of the  

respondent, consequent upon Trilok Nath having declined to join the post  

of Junior Engineer (Civil) Grade-II.  Mainly because, the respondent Sat  

Pal had approached the High Court for relief, the appellants rejected his  

claim for wholly unreasonable grounds.  Rather than focusing on the merits  

of the claim raised by respondent Sat Pal, the appellants chose to initiate  

proceedings which would deviate the legal process from the merits of the  

claim of respondent.  Had we issued notice to respondent Sat Pal based  

on the technical  pleas raised by the appellants,  the respondent Sat Pal  

may not even have been in a position to defend himself before this Court.  

Litigation before this Court, is an expensive proposition.  A poor scheduled  

caste candidate cannot be subjected to unnecessary harassment at  the  

hands of the mighty State.  It is for the aforesaid reasons, that the instant  

order is being passed, for doing complete justice in the instant cause.  

18. In  view  of  the  factual  and  legal  position  discussed  by  us  

hereinabove, we are of the view, that in the facts and circumstances of this  

case, it would be just and appropriate to direct the appellants to appoint the  

respondent  Sat Pal against  the post of  Junior Engineer (Civil)  Grade-II.  

The aforesaid offer of appointment will relate back to the permissible date  

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contemplated  under  the  rules  laying  down  conditions  of  service  of  the  

cadre to which the respondent Sat Pal will be appointed.  Naturally, the  

respondent will be entitled to seniority immediately below those who were  

appointed  from the  same process  of  selection.   Since  Sat  Pal  has  not  

discharged his duties, he would be entitled to wages only with effect from  

the date of the instant order.

19. Disposed of in the aforesaid terms.

…………………………….J. (P. Sathasivam)

…………………………….J. (Jagdish Singh Khehar)

New Delhi;  February 5, 2013.

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