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2009 DIGILAW 372 (JK)

Des Raj Bhagat (Dr. ) v. State

2009-07-30

NISAR AHMAD KAKRU

body2009
1. In view of the issues raised which I am going to mention a bit late while dwelling upon the interim matter, the writ petition is admitted to hearing. Notice afresh. Mr. Natnoo accepts notice on behalf of respondent no.2. Since no one appears for the State, therefore, to be put on notice at the expense of the petitioner returnable within four weeks. Counter by respondent no.2 by next date. Be listed thereafter. CMP No.752/2009. 2. Advertisement Notice issued by the Public Service Commission (for short PSC) vide Notification No.1-PSC of 2009 dated 29.01.2009 hereinafter referred to as impugned notification, is questioned in so far as it relates to the post of Lecturer in ENT discipline in Jammu Medical College. Upon consideration of the interim matter, one of the co-ordinate benches of this court passed the following ad interim direction: - "Mr. O.P. Thakur. Notice in the main petition as also in the CMP. In the meanwhile, subject to the objections by the other side and till further orders, it is directed that the respondent authorities may complete the selection process but the result of said selection shall not be declared. Dated: 01.04.2009" 3. A bare perusal of the direction would make it clear that the PSC was authorized to finalize the list with a restraint against making the selection public. The selection list having been finalized, a motion was laid by the PSC on 15.07.2009 expressing urgency for its consideration which begot a direction for listing of the matter, accordingly the petition stands listed in the regular cause list and Mr. Raina learned senior Advocate opted for its consideration in absence of the objections and on the basis of the documents placed by the petitioner on record, however he produced a Notification bearing No.14-PSC of 2009 dated 17.07.2009, which is taken on record. Accordingly, learned counsel for the parties have been heard. 4. Elaborating the cause of the petitioner, Mr. Raina learned senior Advocate opted for its consideration in absence of the objections and on the basis of the documents placed by the petitioner on record, however he produced a Notification bearing No.14-PSC of 2009 dated 17.07.2009, which is taken on record. Accordingly, learned counsel for the parties have been heard. 4. Elaborating the cause of the petitioner, Mr. Thakur made reference to the Notification No.21-PSC of 1997 dated 06.10.1997, selection list and a communication of the PSC addressed to the Government bearing No.PSC/DR/ Lecturer/13/09/2005 dated 06.10.2005 to canvass that the selection against the post under the scheduled caste category was not filled up by the PSC because of non-availability of the candidates, therefore, obligatory upon the PSC to take recourse to clause-2 of Rule 6 of Reservation Rules and proviso thereto which reads:- "(2) While the roster shall be maintained in accordance with rule 5, it shall be the responsibility of every selection agency to send a return as per the Annexure-F to the Social Welfare Department on the day it notifies the recommendation for appointment: Provided that the rosters for appointment by direct recruitment existing as on commencement of these rules shall continue to be operated in the manner prescribed." 5. Contention of Mr. Thakur is that at the time of earlier selection, the last point utilized was scheduled caste category which was unreserved for want of a suitable candidate, therefore, for selection in question, the first point has to start from the scheduled caste category. To refute the contention, Mr. Raina has placed reliance on clause (2) of Rule 11 of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 extracted hereunder: - "(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." 6. Going by mandate of the provision reproduced in the preceding para, reservation has to lapse in case of non-availability of the candidate belonging to the class concerned and post has to be filled up from the open merit. Going by mandate of the provision reproduced in the preceding para, reservation has to lapse in case of non-availability of the candidate belonging to the class concerned and post has to be filled up from the open merit. Which of the provisions of law should prevail, any comment at this preliminary stage may prejudice the rights of either of the parties, therefore, I refrain from expression of opinion. Regarding judicial pronouncement in Dr. Shoukat Mehmood Choudhary Vs. The Chief Secretary and others (SWP 1372/07), same has no application to the statutory controversy because it has not taken note of clause-2 of rule 11 of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979, obviously of no help for interim relief to the petitioner. 7. Mr. Raina disputes the very locus standi of the petitioner to raise any question relating to appointments made in pursuance of the notifications of 1997 and 2005 because of his ineligibility at the relevant point of time. To bring home the point, reference is made to his Master of Surgery certificate, his experience certificate as Registrar annexed with the writ petition and the averments made in the writ petition itself, unveiling that eligibility for the post was attained by him in the last week of August, 2006, ex facie ineligible in 1997 and 2005 for the post of Lecturer ENT. 8. One more aspect of the controversy discernable from the communication No.ME-GM-139/2002-III dated 07.08.2006 forming part of the writ petition. The posts of Lecturers ENT in two Government Medical Colleges Srinagar and Jammu stand redistributed in the ratio of 2:1, 2 to Srinagar under open and RBA (one each) and 1 to Jammu in the open merit. All the three seats having been advertised, the question arises as to out of two open merit posts (1 for Srinagar and 1 for Jammu) which one can be said to fall under the scheduled caste category. The question has to await adjudication in the main petition. Then comes the event of notification No.14-PSC of 2009 dated 17.07.2009, advertising the post under the scheduled caste category in the discipline of ENT for Jammu College to which the petitioner has responded through his application form as contended by Mr. Raina and not refuted by other side. The question has to await adjudication in the main petition. Then comes the event of notification No.14-PSC of 2009 dated 17.07.2009, advertising the post under the scheduled caste category in the discipline of ENT for Jammu College to which the petitioner has responded through his application form as contended by Mr. Raina and not refuted by other side. The crux of the matter is that post under the scheduled caste category is not only available for competition but the petitioner has applied for consideration against the said post, which makes it clear that the eligible persons under the scheduled caste category are not deprived of their due. 9. In addition to what is stated above, the circumstances which I would like to take note of is that nothing prevents the court to quash the impugned selection in case writ petition succeeds after having been tested on the touchstone of the law, obviously there is no apprehension of any loss much less irreparable one likely to occasion to the petitioner by withholding the interim direction sought. That apart restraint sought to be placed upon the respondents from making recommendation to the Commission would amount to denial of availability of Lecturers to the students of the College, apparently likely to effect their career adversely. In the ultimate analysis, balance tilts against grant of interim direction. Accordingly, it is declined and ad-interim direction dated 01.04.2009 is vacated. Nevertheless the selection/ appointment shall have to be subject to the outcome of the writ petition. CMP No. 752/2009 disposed of.