Y.P. Nargotra, J.
1.The Jammu and Kashmir Public Service Commission invited applications on the prescribed forms for two posts of Lecturers in Bio-Chemistry in the Health and Medical Education Department (one in open category and one in ST category) vide notification no. 4-PSC of 1998 dated 31st March, 1998. The petitioner being fully eligible for the said post applied and for which the other candidates also applied. The Public Service Commission completed the selection process and issued select list dated 21st October, 1999, in which one Subhiya Majid was placed at S. No. 1 against the open category. Petitioner being a candidate in open category was placed in the wait list. Consequently, recommendation for appointment of Mrs. Subhiya Majid was made by the Commission to the Government. On the recommendations of the Commission, Mrs. Subhiya Majid was appointed as lecturer in Bio-Chemistry in Government Medical College, Srinagar. As regards the other vacancy existing in the Scheduled Tribe category, no recommendation was made by the Commission on account of pendency of some litigation before the court. The second post thus, remained unfilled. The Medical Education Department, experiencing difficulty in the patient care field, by its letter no. ME-GM-139/99 dated 03-12-1999, wrote to the Secretary, J&K; Public Service Commission in the following terms:
2. The second post could not be utilized in view of your observations that the same may not be filled up till the final out come of CMP No. 446/99 titled Mrs. Shaista v/s. State and others. In this connection it may be stated that the request of Mrs. Shaista w/o Mohamad Mushtaq Ahmad for grant of relaxation of having two years experience as Demonstrator has not been agreed to by the Government. Same is the position in the case of Sh. Bashir Ahmad Ganai. It is therefore, requested that action for getting the CMP disposed of may kindly be taken up with the Hon'ble Court so that the restrictions for utilizing the post are lifted and the next candidate on the select list is appointed against the available vacancy in the interest of patient care as well as teaching of the students undergoing training in Govt. Medical College of the State.
3. The Secretary, Public Service commission by its letter dated 10th March, 2000, responded to the said request of the Medical Education Department by saying that:
out of the four candidates, interviewed on the directions of the Court, the petition of one candidate namely Ms. Shaista W/o Mohd Mushtaq Ahmed in OWP No. 446/99 has been finally decided. The operative part of the judgment is reproduced below:
Since a candidate with M. Sc. In Bio-Chemistry is not eligible for the post of Demonstrator/Tutor or Sr. Resident or Registrar therefore, if the contention of Mr. Raina! is accepted, he will not be eligible for the post of Lecturer. But if it were to be so, there was no need to include M.Sc. as qualification because he can never be appointed in any capacity in a teaching medical institution. But it is not and cannot be so. A medical person requires practical experience in Bio-Chemistry because he holds no qualification in Bio-Chemistry. He qualifies himself by experience only when he works as Registrar or Demonstrator in the subject. But a candidate having M. Sc. is possessed of the qualification as his experience in the laboratory was part of the M.Sc. Course and he needs no further experience. The Commission was, therefore, not right in rejecting the application of the petitioner, who under rules, is eligible for the post because the experience clause applies to the medical persons only and not to the candidates possessing M.Sc. or above as qualification.
In view of the above, this petition is allowed and the petitioner is held to be eligible for the post of lecturer. Consequently, communication dated 28.1.99 is quashed. The petitioner will be considered for the post of lecturer in Bio-Chemistry, as she is eligible for the said post under rules.
The matter could not be taken in appeal because the medical Education Department itself appears of the view that there is a flaw in the recruitment rules (copy of letter enclosed).
4. In view of the above situation, the result of the interview of Ms. Shaista Goni W/o Dr. Mohd Mushtaq is to be declared and the post kept reserved till final out come of the above writ petition is to be released.
5. On the basis of overall performance at the interview, academic merit, publications and other relevant factors, Ms. Shaista Goni W/o Dr. Mohd Mushtaq has not been found suitable for appointment as lecturer Bio-Chemistry even by relaxed standards applied for reserved category candidates. The Administrative Department may take necessary action for filling up of the post under rules.
6. Thus, the desks were cleared for filling up the post under the reserved category. The petitioner, though was a candidate in open category, made a representation for his appointment for the post reserved for ST category being number one in the wait list and no suitable candidate being eligible for appointment under the reserved category.
7. In the meanwhile, Under Secretary to Government, Health and Medical Education Department by its letter no. ME-GM-139/99 dated 30th November, 2000, wrote to the Commission to furnish the requisite information with regard to the position of OWP no. 280/99. The Commission wrote back that writ petition no. 480 of 1999 ( not 280/99 as mentioned in the letter) titled Bashir Ahmed Ganai and Others vs. State and others, the Hon'ble High Court at Srinagar had passed interim orders dated 08.09.1999, which reads as under:-
in the meantime respondents are directed to interview the petitioners as well under rules. Their result be kept withheld till it is decided whether they are fulfilling qualifications for the posts.
8. Nevertheless to mention here that the Hon'ble High Court while directing the respondents to interview the petitioners have not ordered to keep any post reserved for them and after keeping all aspects in view the recommendations made by the Commission were communicated to you vide our letters mentioned above letter dated 10.03.2000 clarifies the position in this regard.
9. The Commission thus, by the above said letter dated 21st December, 2000, informed the Health and Medical Education Department in terms of its earlier communication dated 10th March, 2000 (Annexure 'C') that the Administrative Department may take necessary action for filling up the post under rules for the reason that Mrs. Shaista Goni has not been found suitable for being appointed. When the petitioner was not considered for appointment, he filed writ petition (SWP no. 583/2001) for seeking a direction to the respondents for considering his candidature for the reserved vacancy as the candidate from the reserved category was not available. The writ petition of the petitioner came to be disposed of by order dated 9th April, 2002, in the following terms:
The argument put across by the petitioner that as the candidate from the reserved category was not available therefore the vacancy should go to the general category has also been considered. So far as the issue of reservation is concerned, this rule is covered by Rule 11 of the J&K; Medical Education (Gazetted) Service Rules, 1997. This rule was commented upon in a writ petition bearing OWP No. 321/2k, entitled Tulsi Dass vs. State and others. Therefore this limited aspect would be considered by the respondents at their own level. However, as indicated above, no writ of mandamus can be issued. The petitioner submits that he has already made a representation, as such State is left free to consider the claims and nothing said in this judgment would stand in the way of petitioner.
10. The question as to whether a candidate from open category could be considered as against the post in reserved category was answered by the Court in writ petition of the writ petitioner in terms of the law laid down in writ petition No. 321/2k which was decided with OWP no. 306/2000. The above said writ petitions were disposed of by order dated 11th December, 2001. This Court while considering Rule 11 of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979, vis-a vis Rule 13 of Jammu and Kashmir Reservation Rules of 1994 (SRO 126), observed that:
If Rule 13 as noticed above is taken into consideration then it becomes apparent that in terms of Rule 13(ii), if in the first attempt of recruitment suitable candidates are not available, second attempt has to be made in the same recruitment year and if even then suitable candidates are not available, the vacancies are to be treated as back-log vacancies. There is a proviso. This is to the effect that total number of reserved vacancies are not to exceed 50% of the ! total available vacancies. As to what is to happen in the subsequent years is dealt with sub-rule (iii) and
(iv). It has been specifically laid down in Rule 13 (iv) that the reserved vacancies remaining vacant for subsequent three years despite recruitment drive shall be treated as de-reserved. A reading of the above Rules does indicate that in case the candidates belonging to the reserved category is not available then this vacancy is to be carried forward in the manner indicated in the Rule. This provision helps the argument put across by the learned counsel for the petitioner. However, there is one impediment in accepting this argument. This is in the shape of Rule 11 as contained in the Jammu & Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. Rule 11 of these rules reads as under:-
Reservation of appointment.
(1) while making appointment either by promotion by selection or by direct recruitment, reservation shall be made in accordance with the rules and orders issued from time to time for the members of the Scheduled Castes or any other category or class of permanent residents of the State for whom such reservation may be made under the orders of the Government.
(2) If a sufficient number of candidates belonging to the classes for whom reservation has been made, are not available for filling up all or any of the vacancy reserved for them during a recruitment period, reservations for the posts not so filled shall lapse and the posts shall be filled up as if no reservation therefore had been made.
11. So far as rule 11(1) is concerned, it lays down that posts are to be reserved in terms of what is said in sub-rule (1). However, sub-rule (2) is specific. This is to the effect that if sufficient number of candidates belonging to the class for whom reservation is made are not available for filling up vacancies reserved for them during a recruitment year, reservation of posts not so filled up shall lapse and the posts shall be filled as if no reservation has be! en made.
12. The petitioner again represented to the Government seeking his appointment against the reserved vacancy on the ground that as suitable candidate under reserved category was not available, therefore, that has to be considered as de-reserved and he was to be given appointment being number one position in the wait list. The Principal, Government Medical College, Jammu in turn recommended the case of the petitioner to the Principal Secretary to Government, Health and Medical Education Department. The case of the petitioner for appointment against the reserved vacancy, however, was not considered by the Government for the reason that by then the life of panel submitted by the Public Service Commission whereby the petitioner has been kept at number one in the wait list had expired. The Under Secretary to Government, Health, F. W. & M. E. Department vide its communication no. ME-GM-139/99 dated 9th April, 2002 wrote to the Commission requesting the extension of validity of the period of panel so as to enable the Government to utilize the ST category post by appointment of Dr. Pawan Kumar Gupta, petitioner as lecturer in Bio-Chemistry in response to the said request of the Government. The Commission informed the Health and Medical Education Department by its letter dated 18th October, 2002 (Annexure 'N') that it has been resolved by the Commission not to approve the relaxation in the validity of select/wait list, therefore, the matter may be treated to have been closed. The petitioner being aggrieved of the refusal of the Commission to extend the time of the panel, has approached this Court through the present writ petition seeking quashment of the said order of the Commission. The petitioner also seeks a direction to respondent no. 2 , the Government to appoint the petitioner as lecturer in Bio-Chemistry in Government Medical College, Jammu.
13. The State has not filed any reply and it is only the Public Service Commission who is contesting the petition of the petitioner. It has been submitted by the respondent-Commission that two posts of lecturers in Bio-Chemistry were advertised, (one in open category and the other in ST category), vide notification no. 4-PSC of 1998 dated 31st March, 1998, in response to which 25 applications were received. However, it was found by the Eligibility Committee that only eight candidates were eligible, including petitioner herein who were called for interview. The petitioner could not find place on the basis of his merit and performance in the select list of open category but was placed at S. No. 1 in the wait list in the open category. The recommendations were sent to the Government. However, one post in ST category remained unfilled because the only candidate in that category namely, Mrs. Shaista Goni who was earlier determined ineligible by the Commission was later on interviewed in pursuance of the court directions but still could not find place in the select list. It has however been submitted by the respondent-Commission that request for extension of validity of select/wait panel vide no. PSC Bio-Chem/47/97 dated 21st October, 1999 made by the Health and Medical Education Department vide letter no. ME-GM/39/99 dated 9th April, 2002, was not approved because as per Rule 57 of Jammu and Kashmir Public Service Commission(Business & Procedure) Rules, 1980, the validity of select panel can be extended for a further period of six months provided a request in this behalf is made during the life/existence of the panel. In the instant case, panel was recommended in October, 1999 and request was made in April, 2002 i.e. one and half years after the expiry of select panel.
14. In the facts and circumstances of the case, the question arising for consideration is whether the petitioner is entitled to the consideration of his case for appointment against the available vacancy of lecturer in Bio-Chemistry after the expiry of the period of panel and whether the Commission was justified in refusing ! to extend the life of the panel on the request of the Government being made after the period stipulated by Rule 57 of J&K; Public Service Commission (Business and Procedure) Rules, 1980, has expired. The Commission issued the select panel on 21.10.1999. Rule 57 of J&K; Public Service Commission (Business & Procedure) Rules 1980 reads:
57. The decisions of the Commission for making appointment by direct recruitment shall, subject to the provisions of Rules 9 and 10 be signed by all the members. The recommendations of the Commission shall be communicated to the Government by the Secretary.
15. The recommendations shall be valid for a period of one year from the date they are communicated to the Govt. The validity period of one year can, however, be extended for a further period of six months on specific request of the Govt. if the request for such extension is made before the expiry of the validity of the panel.
Provided that waiting list of candidates may be drawn up by the Commission and communicated to the Govt. along with the original recommendations to the extent to be determined by the Commission in each case.
16. From the bare reading of the rule, it is manifest that life of the select panel has to be one year which may be extended for a further period of six months on the specific request of the Government made before the expiry of one year's period. In the instant case, the request for extension of life of the panel being made after the expiry of the period of one year, the Commission was well justified in declining the request of the Government for extension of time as it was bound by rule 57 aforequoted and the rule did not permit any discretion. The petitioner has not challenged the validity of Rule 57, therefore, the question of validity of the rule need not be gone into.
17. What can be the effect of the expiry of the select panel on the right of the petitioner for his consideration for appointment; is the question needs to be answered.
18. It is a settled principle of law ! that a person merely selected for a post does not acquire a right for appointment, such selected has a right to compel appointing authority not to travel outside the list for making appointments and to make appointments strictly in the order the candidates have been placed in the select list (refer AIR 2002 SC 1885). The selected candidate acquires the right of consideration for appointment in the order of his merit in the select list, the moment the select panel is operated upon. A select panel prepared by the Commission and submitted to the Government remains alive for a period of one year extendable by a further period of six months. So long as the panel is alive, it remains the prerogative of the Government to operate the same and make appointments in accordance with the panel or to allow it to lapse. If the Government chooses for not operating the panel, no selected candidate can insist under law for appointment. But once the Government operates the panel and make some appointment out of the panel then the other candidates selected acquire a right to seek appointment if the vacancy for which the panel has been prepared is available. Once such right gets vested in a selected candidate then there cannot be any question of expiry of the panel. In my considered opinion, limitation prescribed by Rule 57 of the J&K; Public Service (Business & Procedure) Rules, 1980 for the validity of the select panel refers only to that panel which has not been operated upon by the Government at all for the reason that selected person does not acquire a right to be appointed merely because of his selection in the panel. But when the panel is operated upon within the period of its validity and some selected person is appointed then the other selected candidates also acquire a right of consideration for appointment for the available vacancies for which the panel has been drawn and in that case the right of such candidate cannot be defeated by the Government by not according consideration to the case of such candidate for appointment. Once the panel submitted by the Commission is acted upon may be partially, it cannot lapse because Rule 57 shall have no application. The bar of Rule 57, in my opinion, applies to the select panel as a whole and not in part.
19. In the instant case, the name of the petitioner was existing in the wait list of the panel. The panel submitted by the Commission was operated upon by the Government within the period of its validity by giving appointment to Mrs. Subhiya Majid in the open category. The other post under ST category was not filled up due to court cases. The candidate, Ms. Shaista Goni for the post under ST category was not found suitable for appointment. So the Commission by its letter dated 10.03.2000 informed the Government that its Administrative Department may take necessary steps for filling up the post under rules. Thus the vacancy of the post under ST category became available for being filled up.
20. The petitioner was in the wait list as a general category candidate. The post under ST category was required to be deemed de-reserved due to the non-availability of the ST candidate in view of the provision contained in Rule 11 of Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979, as was held by this Court in the writ petition of the petitioner, OWP 583/2001 and writ petition No. 321/2000. The case of the petitioner , therefore, was required to be considered by the Government against the de-reserved vacancy, there being no legal requirement for the Government to seek extension of the validity of the period of select panel. The Government is, therefore, in the circumstances is bound to consider the case of the petitioner un-influenced by the refusal of the Commission to extend the period of validity of the panel against the available vacancy.
21. Mr. Raina submitted that Government has already referred afresh one post of lecturer under ST category for selection to the Commission and Commission has even issued notification No. 4PSC ! of 2004 dated 24.2.2004. This fact, in my view, cannot come in the way of the petitioner for being considered for appointment which right stands vested in him under law. It is for the Commission and the Government to take remedial steps.
22. In the totality of circumstances of this case, the writ petition merits to be allowed and accordingly, it is allowed with a direction to the respondent-State for considering the petitioner for appointment against the available vacancy for the post of lecturer in Bio-Chemistry in Health and Medical Education Department un-influenced by the refusal of the Commission to extend the validity period of the select panel.