DR TILAK RAJ SHARMA vs HIGHER EDUCATION DEPARTMENT on 31 December 2025

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP/WPC/1184/2018 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.741/2022 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court seeking following relief: - a) Writ order of direction in the nature of writ of Mandamus directing the respondents to regularize the petitioners as principals Degree College in the Higher Education Department Jammu and Kashmir Government retrospectively w.e.f. the date petitioners were made I/C Principals of Government Degree Colleges i.e. 24th June 2014 and 7th August, 2014 respectively. b) Writ order of direction in the nature of writ of Mandamus commanding the respondent regularize the petitioners as principals Degree Colleges strictly in accordance with the recommendations made by the J&K Public Services Commission by operating the waiting list, with all consequential benefits:

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c) Any other writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case, may also be granted in favour of the petitioners and against the respondent along with cost.

3. The facts of the case as pleaded by the petitioners in their pleadings are as follows: - a) The present Transfer Application arises out of SWP/WP(C) No. 1184/2018, which stood transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A. No. 741/2022 before this Tribunal. The applicants seek substantive appointment and regularization to the post of Principal, Government Degree Colleges, along with consequential benefits. b) Both the applicants are permanent residents of the erstwhile State of Jammu and Kashmir and are serving in the Higher Education Department. Applicant No.1 has rendered about 34 years of service, while Applicant No.2 has rendered approximately 27 years of service. Both applicants possess

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Doctorate degrees and claim to have an unblemished service record. The post of Principal in Government Degree Colleges is a selection post, filled through the Jammu and Kashmir Public Service Commission (JKPSC) by selection from amongst eligible Associate Professors, in accordance with the applicable Recruitment Rules. c) Owing to a large number of vacancies in the cadre of Principals, the JKPSC initiated a selection process, which culminated in the recommendation of 61 candidates for appointment, while six candidates were placed on the waiting list. These recommendations were communicated vide JKPSC letter dated 14.06.2016. The applicants figured in the waiting list at Serial Nos. 64 and 67 respectively. The candidate placed at Serial No. 62 in the waiting list had already retired from service. d) Since the select list could not be operated within its original validity period of one year due to pending litigation, the Government approached the JKPSC for extension of its validity. The JKPSC extended the validity of the select list by six months with effect from 16.12.2017. Consequently, the

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Government issued Government Order No. 684-HE of 2017 dated 12.12.2017, appointing 57 candidates as Principals. Four posts were kept reserved due to pending court cases. Certain candidates who had figured in the select list had already retired, and thereafter the remaining candidates up to Serial No. 61 were appointed. e) The applicants assert that after the issuance of the aforesaid Government Order, additional vacancies arose due to retirement of several incumbents. Despite availability of vacancies and despite the fact that the candidates placed ahead of the applicants in the waiting list had either been appointed or had retired, the applicants were not issued appointment orders before expiry of the validity of the panel in June 2018. f) Applicant No.1 was appointed as In-charge Principal of Government Degree College, Dharmari, District Reasi, vide Government Order dated 24.06.2014, while Applicant No.2 was appointed as In-charge Principal vide Government Order dated 07.08.2014 and subsequently transferred to various colleges. Both applicants continued to discharge duties of Principals and

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were also granted charge allowance vide Government Order dated 01.09.2017. g) It is pleaded that the applicants were fully eligible under both the Recruitment Rules of 2008 as well as the amended Rules of 2014. They contend that once they had been recommended by the JKPSC and vacancies were available within the validity period of the panel, the respondents were under a legal obligation to operate the waiting list and issue appointment orders in their favour. Non-issuance of appointment orders, according to the applicants, is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. h) The applicants further contend that pendency of SWP No. 2966/2017 titled Kartar Chand & Ors. vs. State of J&K & Ors. did not operate as a bar to their appointment, as no stay had been granted against the recommendations of the JKPSC and the applicants were not parties to the said writ petition. They therefore seek directions for regularization as Principals with retrospective effect from the dates they were appointed as In-

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charge Principals, or in the alternative, from the date vacancies became available, along with all consequential benefits.

4. The respondents have filed their reply statement wherein they have averred as follows: - a) At the outset, it is contended that the application does not disclose infringement of any fundamental, statutory or legal right and is liable to be dismissed in limine. According to the respondents, no cause of action has accrued in favour of the applicants and the application is based on misrepresentation and selective narration of facts. b) On merits, it is submitted that Applicant No.1 was working as In-charge Principal with effect from 24.06.2014 and was adjusted against a clear vacancy. He was also granted charge allowance in accordance with rules. The post of Principal is a selection post to be filled through JKPSC/DPC in accordance with the Recruitment Rules. Under the Recruitment Rules of 2008, selection was from amongst Lecturers (Selection Grade), whereas under the amended Rules of 2014, selection was from amongst Associate Professors.

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c) It is admitted that Applicant No.1 was eligible under both sets of Rules and was accordingly recommended by the JKPSC, being placed at Serial No. 64 in the waiting list. However, it is specifically pleaded that Applicant No.1 retired from Government service on 30.09.2019, and therefore, no substantive appointment as Principal could be granted to him after his retirement. d) With respect to Applicant No.2, it is stated that he was appointed as In-charge Principal with effect from 07.08.2014 and was also granted charge allowance. He too was eligible under both the Recruitment Rules of 2008 and 2014 and was placed at Serial No. 67 in the waiting list by the JKPSC. Subsequently, Applicant No.2 was promoted/appointed as Principal vide Government Order No. 270-JK(HED) of 2022 dated 21.12.2022 and is presently serving on deputation with Cluster University, Jammu. Consequently, according to the respondents, the grievance of Applicant No.2 already stands redressed.

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e) The respondents submit that inclusion in a waiting list does not confer any indefeasible right to appointment, and the applicants cannot claim regularization or retrospective appointment merely on the basis of having worked as In-charge Principals. It is further contended that appointments already made were in accordance with law and subject to court orders, and that no illegality or arbitrariness can be attributed to the action of the respondents. f) On these premises, the respondents pray for dismissal of the Transfer Application.

5. Heard learned counsel for the parties and perused the material available on record.

6. The present Transfer Application stands registered on transfer of SWP/WP(C) No.1184/2018 from the Hon’ble High Court of Jammu & Kashmir and seeks directions, inter alia, for regularization/appointment of the applicants as Principals, Government Degree Colleges, including a prayer for retrospective effect from the dates on which they were placed as In-charge Principals, and for consequential benefits. The foundational claim of

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the applicants is that they were recommended by the JKPSC in a selection process, were placed in the waiting list, vacancies allegedly became available within the validity of the panel, and yet appointment orders were not issued in their favour.

7. The record further reflects that Applicant No.1 was placed as In- charge Principal w.e.f. 24.06.2014 and Applicant No.2 w.e.f. 07.08.2014; both were granted charge allowance, and both were placed in the waiting list at Serial Nos. 64 and 67 respectively in the JKPSC recommendations dated 14.06.2016. The Government thereafter issued Government Order No. 684-HE of 2017 dated 12.12.2017 appointing the recommended candidates, while reserving certain posts due to litigation. The applicants contend that additional vacancies arose due to retirements and the waiting list ought to have been operated before its expiry in June 2018.

8. The respondents, in reply, raise preliminary objections of non- maintainability and absence of enforceable right. On merits, the respondents state that Applicant No.1, though eligible and placed in the waiting list, retired on 30.09.2019, and therefore could not be granted substantive appointment thereafter; and that Applicant No.2

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has already been promoted/appointed as Principal vide Government Order No. 270-JK(HED) of 2022 dated 21.12.2022, hence his grievance stands redressed.

9. The controversy essentially requires determination of the following:

(i) Whether placement of the applicants in the waiting list conferred an enforceable right to appointment/regularization as Principal, particularly after expiry of the panel.

(ii) Whether long continuation as In-charge Principal, and grant of charge allowance, creates a legal right to retrospective regularization/appointment.

(iii) Whether any relief survives in view of Applicant No.1’s retirement and Applicant No.2’s subsequent appointment as Principal.

10. At the outset, it is settled that mere inclusion in a select list or waiting list does not create an indefeasible right to appointment. The employer may fill or may choose not to fill vacancies for valid reasons, and a candidate cannot claim appointment as a matter of right merely because his name appears in a panel. This principle has been authoritatively laid down by the Hon’ble Supreme Court in Shankarsan Dash v. Union of India (1991) and consistently

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reiterated thereafter. Further, in State of U.P. v. Rajkumar Sharma (2006), the Supreme Court reiterated that selectees cannot claim appointment as of right and mere inclusion in the list does not confer enforceable entitlement even if some vacancies remain unfilled.

11. The waiting list is essentially a contingency arrangement and operates only within its legally permissible life and for the limited purpose of meeting contingencies such as non-joining of selected candidates during the currency of that selection process. It cannot be treated as a “reservoir” for future appointments. The Hon’ble Supreme Court has emphasised that a select list cannot be used indefinitely and empanelment is only a condition of eligibility, not a vested right.

12. In the present case, the very pleadings of the applicants show that the panel/waiting list had a stated life, and the dispute is rooted in the contention that it ought to have been operated before expiry in June 2018. Even assuming, for the sake of examination, that vacancies arose within the relevant period, the Tribunal cannot issue a mandamus for retrospective regularization/appointment from dates earlier than any lawful substantive appointment, particularly when the applicants were only discharging charge/stop-gap duties on

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In-charge basis. The law is equally settled that officiating/stop- gap/charge arrangements do not confer a right to claim regular promotion/regular appointment by mere length of such arrangement.

13. The applicants’ prayer for regularization as Principals retrospectively from 24.06.2014 and 07.08.2014 is also legally untenable for an additional reason. Regularization in public employment cannot be ordered as a matter of course and cannot be used to bypass recruitment rules or the constitutional requirements of equality in public employment. The Constitution Bench decision in Secretary, State of Karnataka v. Umadevi (3) (2006) holds that courts/tribunals cannot ordinarily direct regularization contrary to the recruitment rules and constitutional scheme. The applicants here were holding charge arrangements and seeking retrospective substantive status and benefits merely on that basis, which the settled law does not permit.

14. Coming now to the individual claims: as regards Applicant No.2, the respondents have specifically pleaded—and the record in the reply reflects—that he has already been promoted/appointed as Principal

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vide Government Order dated 21.12.2022 and is presently deputed in Cluster University Jammu. In such a situation, the core grievance of non-appointment as Principal does not survive for adjudication in the manner originally framed. The Tribunal cannot, in the teeth of settled principles discussed above, travel backward to grant retrospective regularization as Principal from 2014 merely because he was placed as In-charge Principal and was once in a waiting list.

15. As regards Applicant No.1, the reply categorically states that he retired on 30.09.2019. Even otherwise, the relief prayed is not merely a notional placement but a substantive regularization/appointment with retrospective effect and consequential benefits. In service jurisprudence, retrospective appointment/promotion is not granted as a matter of routine and certainly not on the basis of charge arrangements or on the strength of a waiting list whose validity has lapsed. Once the panel has expired, the Tribunal cannot revive it and compel appointment, particularly when no vested right existed even during its currency. The claim of Applicant No.1, therefore, does not disclose an enforceable right warranting mandamus.

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16. The applicants also relied on the contention that litigation (status quo order) did not stay the recommendations of JKPSC and that they were not parties to that litigation. Even if so, that circumstance does not convert the waiting list into a vested right, nor does it confer a right to retrospective regularization from the dates of in-charge postings. The judicial review in service matters is concerned with legality, arbitrariness, discrimination, or breach of rules; it cannot be invoked to create a substantive right where the law does not recognize one.

17. In view of the above, this Tribunal finds that the applicants have failed to establish any statutory or enforceable legal right to seek (i) retrospective regularization as Principals from their in-charge dates, or

(ii) appointment from an expired waiting list by treating it as an indefeasible entitlement. The relief claimed is contrary to settled principles governing select/wait lists and contrary to the constitutional limitations on regularization in public employment.

18. For the foregoing reasons, the Transfer Application is dismissed. No order as to costs.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member

Judicial Member

/harshit/

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