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2009 DIGILAW 463 (JK)

Riyaz Ahmad Gada v. State Of J. &K.

2009-09-29

BARIN GHOSH, MOHAMMAD YAQOOB MIR

body2009
1. These writ petitions were tied with each other. A learned Single Judge, taking note of various contentions raised in SWP no. 1724/1999, directed the matter to be placed before a Division Bench. Accordingly, with the sanction of the Chief Justice, the said writ petition alongwith the tied writ petitions have been placed before this Bench. 2. In the earlier two writ petitions, namely, SWP no. 3851/1997 and 3973/1997, petitioners had challenged selection and appointments of candidates as Munsiffs pursuant to Notification dated May 14, 1996. In those writ petitions, among others, they had sought for a direction to make further appointments against ten more posts of Munsiffs from amongst the selectees who responded to the Notification dated May 14, 1996. The fact remains that such further appointments were not made and, instead, a Notification was issued on May 14, 1998 for the purpose of filling up the then vacancies. In consequence thereof, those two writ petitions, registered as SWP nos. 3851/1997 and 3973/1997, have become infructuous. Be that as it may, since none appeared on behalf of the writ petitioners in those writ petitions, the same are dismissed for default. Similarly, since none appeared for the petitioner in writ petition, SWP no. 51-J/2000, the same is also dismissed for default. 3. In the writ petition, SWP no. 1724/1999, the sole petitioner responded to the Notification dated May 14, 1998 and thereby expressed his desire to be appointed as Munsiff on being selected. He sat in the written examination and, after having had succeeded therein, was called at interview. He was, thereupon, not appointed. 4. In the writ petition, he has contended that the Notification clearly indicated that there are 33 vacancies. The Notification did not indicate that such vacancies may increase or decrease. However, against those 33 vacancies, 49 candidates were appointed. It is the contention of the writ petitioner, to which there cannot be any dispute, that no sooner the notified 33 vacancies were filled up, the select list stood lapsed and, accordingly, 16 people, who were appointed over and above 33 notified vacancies, could not be appointed. 5. It was contended that the subject recruitment was governed by a set of specific Rules made under the proviso to Section 124 of the Constitution of the State where it was specifically provided that the upper age limit would be 35 years; whereas respondent nos. 5. It was contended that the subject recruitment was governed by a set of specific Rules made under the proviso to Section 124 of the Constitution of the State where it was specifically provided that the upper age limit would be 35 years; whereas respondent nos. 10, 17 and 44 were more than 35 years of age at the time when they had responded to the Notification. It was contended that in such view of the matter, the appointments of respondent nos. 10, 17 and 44 are not sustainable. 6. It is true that the Statutory Rule governing the subject appointments prescribed the upper age limit at 35 years, but the fact remains that, in the meantime, by amending the Rules applicable to general Government employees, the upper age limit was increased to 37 years and the same had been reflected in the subject Notification. The petitioner, though said to have made some representation in respect of upper age limit mentioned in the Notification, but did not challenge the same; instead, he responded to the Notification. Therefore, at the time when he filed the writ petition, as it appears to us, it was too late for the petitioner to contend that no one, who had crossed the age of 35 years, could respond to the Notification. 7. It is also the contention of the writ petitioner that respondent nos. 10, 17, 44 were even above the age of 37 years at the time they responded to the Notification. This assertion stands denied by the official respondents in the counter affidavit. It has been stated that two candidates were permitted to appear in the said examination who had obtained orders from this Court for their appearance in the said examination. It was specifically stated that respondent no. 17 was over aged and, accordingly, his application was rejected, but he was allowed to appear in the examination in pursuance of the directions of the IV Additional District Judge, Srinagar. The petitioner has contended that the Notification did not mention, nor the Statutory Rules governing the subject selection, authorise grant of age relaxation, but the same was accorded in respect of some of the candidates. At the hearing, it was contended that such power was used in relation to respondent nos. 10, 17 and 44. The petitioner has contended that the Notification did not mention, nor the Statutory Rules governing the subject selection, authorise grant of age relaxation, but the same was accorded in respect of some of the candidates. At the hearing, it was contended that such power was used in relation to respondent nos. 10, 17 and 44. The fact remains that the general law governing the service conditions of the government employees do authorise the Government to relax the upper age limit and, in case of the concerned respondents provisional age relaxation was granted and, subsequently, their upper age limit was finally relaxed during the pendency of the writ petition, those orders have not been assailed. The fact further remains that the people thus appointed secured more marks in the selection process than the petitioner. 8. It is the contention of the petitioner that respondent no. 8 did not appear at the interview. This assertion has been made on the basis of the Notification which was published declaring the names of the persons who had been selected for being interviewed, wherein the name of respondent no. 8 did not feature. The fact remains that on the same day, another Notification was published where the name of respondent no. 8 was declared as one more candidate to be interviewed. 9. It was also contended by the petitioner that whereas the notified vacancies were 33 and, accordingly, 99 candidates were to be interviewed in the ratio of 1:3, but only 89 candidates were interviewed. The fact remains that the petitioner was interviewed and, accordingly, for not calling 10 more candidates at the interview, the petitioner did not suffer any prejudice. 10. It was next contended that a vacancy reserved for Scheduled Tribe candidates was not carried forward and the same was supplied by an Open Merit Category candidate. There is no dispute to the said contention. 11. It was also contended that respondent no. 5 appeared in the Open Merit Category in the previous similar selection process, but appeared in the Category reserved for candidates belonging to Backward Area while participating in the subject selection process. It was contended that respondent no. 5 thus played fraud. The Officer who issued the certificate in favour of respondent no. 5, upon which the said respondent staked his claim for the vacancy reserved for Backward Area candidates, was not made a party to the writ petition. It was contended that respondent no. 5 thus played fraud. The Officer who issued the certificate in favour of respondent no. 5, upon which the said respondent staked his claim for the vacancy reserved for Backward Area candidates, was not made a party to the writ petition. There is, thus, no scope of going into the question whether the said certificate was or was not a valid certificate and, accordingly, whether respondent no. 5 took recourse to fraud while offering himself as a candidate belonging to Backward Area Category. A person, who belongs to Backward Area Category, belongs to said category from the day he is born, but acceptance thereof depends upon a certificate to that effect being issued by the competent authority. Until such a certificate is issued, despite the person belonging to Backward Area Category, cannot stake his claim as a Backward Area candidate. 12. The petitioner contended that the aforesaid actions would demonstrate that the selection is vitiated by mala fide. 13. It is true that when the Notification declared 33 vacancies, the merit list prepared to supply such vacancies stood lapsed the moment 33 vacancies were supplied from the said select list and, accordingly, appointment of 16 people over and above the 33 notified vacancies was not permissible. It may also be true that when the subject Rules did not authorise grant of relaxation of the upper age limit, appointments made, upon such relaxation of age, is not permissible and, accordingly, those appointments are also not sustainable. At the same time, it is also true that a vacancy available for a reserve category candidate cannot be supplied by an open category candidate until the seat is de-reserved and, as such, the appointment of the person in the seat reserved for Scheduled Tribe candidates is also not sustainable. 14. The question, however, is what should the Court do in such circumstances? In the event these appointments are declared to be illegal, while the appointees will lose their appointments, in consequence whereof, people will suffer, for, a large number of posts of Munsiffs will fall vacant, but for the same analogy the petitioner cannot supply any of those vacancies, inasmuch as he is not within 33 candidates on merit, nor he is within 49 candidates on merit or a Scheduled Caste, and, as a result, even if those appointments go, he gets no berth. 15. 15. In the event those appointments, which are interfereable, are interfered with, though people will suffer to the extent as indicated above, but, at the same time, it must be considered whether, after lapse of almost ten years, it would be appropriate at all for the Court to interfere with such appointments. In the event such appointments are interfered with, those 16 people, who have been appointed over and above 33 notified posts, will suffer irreparable loss and injury, for, by reason of passage of time they have become over aged and cannot compete for being selected afresh, while, in the meantime, they have lost many opportunities to offer themselves for being selected pursuant to subsequent notifications. 16. The candidates, who had been appointed upon relaxation of their upper age limit, were appointed proceeding on the basis that the upper age limit is 37 years, which is denoted in the general Rules applicable to government employees, which in turn authorise relaxation of upper age limit. At the time they sought for and were granted relaxation of upper age limit, it was felt that the same is permissible and, accordingly, upon relaxation of their upper age limit, they were accorded a status by giving them the appointments in question on the basis of their merit adjudged. Would it not be too harsh and inhuman to take away their such status, after a lapse of ten years from the date of grant of such status when the petitioner, who is canvassing that the relaxation of upper age limit is not available in the Rules governing the subject appointment, had knowledge of the fact that while publishing the Notification, the authorities proceeded on the basis that the upper age limit shall be as fixed by the general Rules governing the Government employees, which in turn authorise grant of relaxation of upper age limit, did not take any step to establish that the same is not permissible in view of existence of a set of separate Statutory Rules governing the subject appointments. 17. The person, who was appointed in the vacancy available for a Scheduled Tribe candidate, did not know that he is being appointed in such vacancy. We think the same analogy would apply to the case of 16 persons who were appointed over and above the 33 notified posts. 18. 17. The person, who was appointed in the vacancy available for a Scheduled Tribe candidate, did not know that he is being appointed in such vacancy. We think the same analogy would apply to the case of 16 persons who were appointed over and above the 33 notified posts. 18. We would have interfered with, at least, one of the appointments, being the subject matter of challenge in the instant writ petition; provided we could accommodate the writ petitioner in the vacancy that may have had become available by reason of such interference, but for the reason, as aforesaid, the petitioner cannot be accommodated applying the same analogy. 19. We think that the human problem, as was taken note of by the Honble Supreme Court in the case of H.C. Puttaswami and others v. The Honble Chief Justice of Karnataka High Court, reported in AIR 1991 SC 295, squarely applies to the present case. In that case too, the employees, who had been appointed, were in service for the past ten years. While dealing with the matter, the Honble Supreme Court, at paragraph 14 of the judgment, referred to many of its earlier judgments, where the Honble Court found that the appointments, being the subject matter of challenge, were interfereable, but did not interfere with the appointments. The Honble Supreme Court felt that continuous working as an employee weighed in favour of the Honble Supreme Court not to interfere with the interfereable appointments. 20. We, accordingly, close the matter by upholding the contentions of the petitioner as indicated hereinabove, but refrain from interfering with the appointments which are thus interfereable, purely on humanitarian ground, for, the employees in question have worked as such employees for 10 years and have carried the status of such employees for such long years. 21. Original records produced by the State, be returned to the learned Advocate General in the open Court.