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2001 DIGILAW 156 (JK)

Avtar Krishan Pandita v. State Of J. &K.

2001-07-30

T.S.DOABIA

body2001
1. The facts which are not disputed are, as under: i) That the petitioner A.K. Pandita was infact appointed as Economic Investigator. This appointment was made in pursuance of an advertisement notice issued by the respondent State on 03-04-1974; ii) That this advertisement notice made mention of the five other posts which were to be filed. At S. No. 1 the post mentioned is that of Economic Investigator; iii) That when recommendations were made, it also contained a recommendation for appointing some persons as Extension Officer; iv) That the posts of Extension Office was not advertised at all; v) That this led to a writ petition being preferred in this Court. This bears No. 93/1974. In this, six persons were arrayed as private respondents. These names are as under:- 1. Shri Abdul Rashid Bhat S/o Gh. Mohd Bhat R/o Wact Mohalla Batmaloo, Srinagar; 2. Sh. Khursheed Ahmad S/o Ghulam Mohd Bhat R/o Guru Bazar, Srinagar; 3. Shri Abdul Rashid Kasnoo R/o Tral; 4. Shri Mohammad Naseem R/o Chari-Sharief; 5. Sh. Avtar Koul R/o Bulbul Lankar Srinagar; 6. Sh. Hira Lal Tikoo R/o Srinagar; vi) That this court was of the opinion that as no advertisement notice was issued for the post of Extension Officer, therefore, no appointment could be made qua this office. 2. The petitioner has now come to this Court. The present writ petition was preferred in the year 1992. Petitioners case is that he was appointed as Economic Investigator, as he was selected for this post and therefore, the observations made in the judgment delivered in writ petition No. 93/1994 cannot be made to operate to his prejudice. With a view to appreciate his claim that he was appointed as Economic Investigator, he places reliance on the stand taken by the respondent-State. For facility of reference, the stand taken by the State is reproduced below:- "In the reply affidavit filed by the Convenor State Recruitment Board, the names of candidates appointed as Economic Investigator was wrongly shown as having been appointed as Extension Officer. It is reiterated here that the posts of Economic Investigator have been properly referred to the Recruitment Board while as the posts of Extension Officers had not been referred. The Honble High Court vide its judgment dated: 15-05-1976 quashed the appointment of respondent Nos. 4, 6, 7 & 8 who were unfortunately wrongly shown as Extension Officers. It is reiterated here that the posts of Economic Investigator have been properly referred to the Recruitment Board while as the posts of Extension Officers had not been referred. The Honble High Court vide its judgment dated: 15-05-1976 quashed the appointment of respondent Nos. 4, 6, 7 & 8 who were unfortunately wrongly shown as Extension Officers. The Honble Judge held that since the posts of Extension Offices were not properly advertised, therefore, the petitioners was denied the right to compete for these posts. A review petition was filed before the same Judge praying for corrections for errors that had crept indue to bonafide mistake as stated by Convenor State Recuitment Board by wrongly showing the respondents as Extension Officers whose selection without reference to State Recruitment Board was quashed by the Honble High Court. The review petition was dismissed in default on 21-O8-80." 3. The petitioner submits that as appointment to the post of Economic Investigator was upheld, therefore, petitioner rightly came to be appointed as Economic Investigator, therefore, the judgment in questions should not operate against him. 4. Even though, the factual stand taken by the State is in favour of the petitioner, yet an objections has been raised that judgment to be delivered in present writ petition i.e. SWP No. 452/1992 would virtually amount to review of the order passed by this Court in the writ petition No. 93/1994. It is submitted that petitioner should have sought review or he should have preferred an appeal against the order passed in writ petition No. 93/1974. 5. So far as the above argument raised by learned counsel for the State is concerned, it be seen that the present petitioner did not figure in the array of parties in the aforementioned writ petition. Therefore, he would not be bound by the judgment given in the aforementioned writ petition. The question as to whether the petitioner could prefer a writ petition in this regard or prefer a review petition is a matter which is no longer res integra. The Supreme Court of India in the case reported as Shivdeo Singh and Ors. Vs. State of Punjab and others, AIR 1963 SC 1909, considered exactly a similar question. In the above case, a writ petition was preferred by one "A" for cancellation of order of allotment which was passed by the Director of Rehabilitation in favour of "B". The Supreme Court of India in the case reported as Shivdeo Singh and Ors. Vs. State of Punjab and others, AIR 1963 SC 1909, considered exactly a similar question. In the above case, a writ petition was preferred by one "A" for cancellation of order of allotment which was passed by the Director of Rehabilitation in favour of "B". The High Court of Punjab decided the issue in favour of "A", though "B" was not a party to the proceedings. Lateron, "B" filed a writ petition under Article 226 of the Constitution. He wanted the matter to be re-heard as a whole. The High Court allowed the writ petition. This order was challenged in the Supreme Court of India. Supreme Court of India was of the view that such a course could be adopted. A new writ petition could be preferred when the earlier order passed by the Court in the exercise of writ jurisdiction operated to the prejudice of a person, who was not party to the earlier writ petition. It was observed that there is nothing to preclude the High Court from exercising the power of plenary jurisdiction to prevent mis-carriage of justice or to do justice. It was observed that while entertaining these petitions, the High Court only saw to it that the principles of natural justice had been followed. Question from head note is reproduced below:- "On a writ petition by "A" for cancellation of the order of allotment passed by the Director of Rehabilitation in favour of "B", the High Court cancelled the order in favour of "B" though he was not a party to the writ proceedings. Subsequently "B" filed a petition under Art. 226 for impleading him as a party to "As" writ petition and re-hearing the whole matter. The High Court allowed the writ petition. Held that the second writ petition by "B" was maintainable and the High Court had not acted without jurisdiction in reviewing its previous order at the instance of "B" who was not a party to the previous writ proceedings. There is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. There is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In entertaining "Bs" petition the High Court thereby did what the principles of natural justice required it to do." 6. The aforementioned decisions squarely covers the situation as has arisen in the present case. The preliminary objection raised by the State is thus without merit. In view of the above and keeping in view the stand taken by the respondent-State, which does show that the petitioner was appointed as Economic Investigator, his appointment as Economic Investigator is upheld. This petition is allowed in the manner indicated above.