Research › Search › Judgment

J&K High Court · body

2006 DIGILAW 64 (JK)

Farooq Ahmad v. State

2006-03-31

NISAR AHMAD KAKRU

body2006
1. Process of selection relating to contractual appointments initiated by the Deputy Commissioner Doda vide advertisement notice No.1124-62/ARA/2003 dated 04.08.2003, inter alia, for the posts/vacancies of Junior Engineers in Civil/Mechanical in district Doda, came to be clinched by a recommendation made to the Government, followed by an order of appointment vide Government Order No. 169-PW of 2003 dated 24.09.2003. It is the said order which is sought to be set at naught by the petitioners mainly on the ground that the appointment is de hors the rules. To bring home the point reliance is placed on Note: 3 of Schedule II-A appended to the rules called the Jammu & Kashmir Engineering (Subordinate) Service Recruitment Rules, 1995 notified vide SRO 180 extracted hereunder for facility of reference. "Note 3. The appointment of Junior Engineer to Grade-II shall be made in the ratio 1: 3 between degree and diploma holders respectively." Suffice it to say that the argument has been advanced simply to be rejected in view of the fact that above referred note stands scrapped from the statute by a judicial decision of this Court in H. S. Sahni Vs. State of J&K (KLJ 2000 para 17 page 567 and para 39 page 583). Otherwise also the argument does not attract any credence in the face of the proviso contained in SRO 255 itself, which reads: "Provided that there shall be no ratio system between degree and diploma holders while making appointment for engineering service." The grammatical construction of the proviso makes it crystal clear that ratio system between degree and diploma holders for determination of the number of vacancies within the quota of degree and diploma holders is absolutely inapplicable. 2. Next is the challenge thrown to the criteria of weightage. Dealing with the contention it is averred by the Respondent-State in its reply supported by an affidavit that the petitioners and the selectee-respondents have been treated alike. The stand has not been countered. Thus it emerges that no prejudice is caused to the petitioners. 3. This brings me to the contention that SRO 255 will have no application to the appointments in question because of the fact that advertisement notice was issued on 04.08.2003 whereas SRO 255 was notified on 05.08.2003. In essence the contention of the learned counsel is that SRO 255 cannot be applied retrospectively. 3. This brings me to the contention that SRO 255 will have no application to the appointments in question because of the fact that advertisement notice was issued on 04.08.2003 whereas SRO 255 was notified on 05.08.2003. In essence the contention of the learned counsel is that SRO 255 cannot be applied retrospectively. The contention needs to be appreciated in the light of the guidelines issued by the Government for contractual appointments vide Order No. GAD(Adm)186/2003-V dated 30.07.2003. A perusal whereof reveals that essentially the guidelines have prescribed the eligibility and has brought into being a Selection Committee. How to make the appointments guideline (6) assumes significance, which reads: "Appointment shall be made by the appointing authority to be intimated separately and shall be governed by the rules to be notified separately." A plain reading of the guideline makes it clear that the appointments had to be made as per the rules to be intimated separately, accordingly rules were made public on 5th of August 2003 vide SRO 255. Apart from that indisputably the process of appointment was at its very inception when the SRO 255 was notified as is evident from the fact that advertisement notice was issued on 4th of August, 2003 and SRO was issued the next day only, obviously, the appointing authority had no option but to adhere to SRO 255. More so, to make the SRO consistent with the object sought to be achieved it has to be read along with guideline (6) and a conjoint reading thereof makes it manifestly clear that contractual appointments had to be made under SRO 255 notwithstanding its issuance a day later to the advertisement notice. Viewed thus contention is bereft of any logic. 4. It was also contended that the candidates having certificates from outside the State have been treated alike the petitioners but particulars are wanting and there is no specific instance, not even worth the name which leads to the conclusion that a bald assertion is made to persuade the Court to show the door to the selectee-respondents. It is also canvassed that Respondent No.19 had not produced the certificate and Respondents 23 and 24 have not appeared in the interview. The averment is refuted by the respondents. The rebuttal being supported by an affidavit, I find no reason not to believe it. No other ground was urged. 5. It is also canvassed that Respondent No.19 had not produced the certificate and Respondents 23 and 24 have not appeared in the interview. The averment is refuted by the respondents. The rebuttal being supported by an affidavit, I find no reason not to believe it. No other ground was urged. 5. In the aforementioned backdrop, I find no fault with the contractual appointments of the respondent-selectees. Interference is declined and writ petition dismissed along with CMPs. Interim direction, if any, shall stand vacated. It goes without saying that the least that is expected from the Respondent-State is to accelerate the pace of process of selection in accordance with the rules relating to the service of Junior Engineers in the discipline of Civil/Mechanical. No order as to costs. SWP No.226/2004: Mr. S.C. Mansotra for the petitioner. Mr. SC Gupta, AAG, for respondents 1 to 5. Mrs. S. Kour for respondents 7, 8 and 16. Mr. Raghu Mehta for respondent No. 10. At the very outset it needs to be placed on record that the learned counsel for the petitioner had expressed inclination to lay a motion for amendment of the writ petition to throw challenge to SRO 255. The difficulty for him is that the appointment has been made somewhere in the year 2004 and the process of selection for regular appointment is on cards as contended by Mr. BS Salathia in SWP 1911/2003 and reiterated by Mr. SC Gupta. More so, the writ petition has been clubbed along at the request of the learned counsel himself as is evident from order dated 02.03.2006 passed in this writ petition. In addition to that no reason is put forth that prevented the petitioner to claim a writ against the SRO and no cause much less tenable one is advanced to justify the failure to lay a motion for last couple of years suggesting that afterthought stance to lay a motion is a pretext for adjournment. Yet another difficulty for the petitioners is the judgement of the Division Bench which impliedly provides for ouster of the selectee-respondents in case disposal of the SWP 1911/2003 goes beyond today the 31st of March, 2006. In the given circumstances adjournment is declined. Coming to the sole ground of challenge urged at the bar by Mr. Mansotra that merit of the petitioner is a casualty. In the given circumstances adjournment is declined. Coming to the sole ground of challenge urged at the bar by Mr. Mansotra that merit of the petitioner is a casualty. The contention is answered in the negative by the respondents on affidavit based on the record of the selection, depicting further that the petitioner trails merit-wise. The stand having gone unrebutted the challenge cannot sustain. Writ petition is dismissed along with CMPs. Interim direction, if any, is vacated. No order as to costs.