Right to appointment not indefeasible, but selected candidate has equitable claim against future vacancies.

The petitioner, Zaheer Abass, a permanent resident of District Rajouri, applied for two Driver posts (one General, one OBC) advertised by the respondents in 2014, under the OBC Category.

He was sponsored by the District Employment Exchange and appeared for the Driving Test/Interview between February 25-27, 2014.

A Screening Committee evaluated candidates, and the petitioner secured 76 out of 100 marks, placing him at Serial No. 1 in the OBC Category merit list.

Despite this, no formal appointment order was issued.

The petitioner submitted representations and a legal notice but received no action.

The respondents contended that mere inclusion in a select list does not confer an indefeasible right to appointment and that the Selection Committee's recommendations were never approved by the competent authority.

They further stated that due to administrative and technical reasons, specifically a communication dated July 4, 2017, from the Directorate of Field Publicity (Headquarters), the post of Driver in the Regional Office, DFP Jammu, was abolished, changing the vacancy position.

The original SWP No. 2374/2017 was transferred from the Hon'ble High Court of Jammu & Kashmir to this Tribunal and re-registered as T.A. No. 566/2021.

Whether the act of the respondents in not issuing a formal appointment order in favour of the petitioner for the post of Driver under the OBC Category, despite his selection by the Selection Screening Committee, is ultra-vires, illegal, arbitrary, unconstitutional, and contrary to the provisions of law and rules?

Whether the petitioner is entitled to a formal appointment order for the post of Driver under the OBC Category, or any other relief, given his selection and the subsequent abolition of the post?

The Tribunal applied the principle that mere inclusion in a select list does not confer an indefeasible right to appointment, as established by the Hon'ble Supreme Court in AIR 1991 SC 1612.

However, it also held that the discretion of the employer is not absolute and must be exercised reasonably, fairly, and in consonance with Articles 14 and 16 of the Constitution of India, which prohibit arbitrariness and ensure equality.

The Tribunal recognized that where a selected candidate is denied appointment for reasons not attributable to them, and the post is subsequently abolished, courts can protect the candidate by directing consideration against available or future vacancies.

The Tribunal acknowledged that while inclusion in a select list doesn't guarantee appointment, the State cannot act arbitrarily or unfairly.

The petitioner was placed first in the OBC merit list through a selection process free of irregularities or allegations against him.

The non-issuance of the appointment order was not due to any lapse on his part.

The respondents' justification for non-appointment relied on the lack of formal acceptance by the competent authority and the subsequent abolition of one Driver post three years later in 2017.

The Tribunal noted that the respondents failed to provide material showing the OBC post specifically ceased to exist immediately after the selection or that the entire recruitment process was cancelled.

The administrative inaction between 2014 and 2017, leading to a delay that caused the petitioner to cross the age limit for future employment, was not attributable to him.

Although the Tribunal could not direct appointment to an abolished post, it recognized the strong equities in the petitioner's favour.

Therefore, balancing legal principles with fairness, the Tribunal decided to protect the petitioner's selection by directing consideration for future vacancies.

The Tribunal held that while it could not command appointment to an abolished post, the petitioner's selection and merit position warranted relief due to the respondents' inaction.

The Tribunal directed the respondents to verify the petitioner's merit position from the 2014 selection and treat him as the first empanelled candidate under the OBC Category.

If an OBC Driver vacancy is currently available in the Directorate of Field Publicity/successor department for the Jammu Region, the petitioner shall be appointed, subject to eligibility and medical fitness.

If no vacancy is currently available, he shall be considered against the first arising vacancy of Driver under the OBC Category in the said establishment.

The petitioner's consideration shall not be rejected due to age.

If appointed, he shall be entitled to notional seniority from the date a similarly situated candidate was appointed (if any), but without back wages, with monetary benefits accruing only from the date of actual joining.

This exercise is to be completed within three months.