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2009 DIGILAW 506 (JK)

Mohd. Rafiq Sofi v. State Of J. &K.

2009-10-26

MUZAFFAR HUSSAIN ATTAR

body2009
1. Advertisement Notification dated 28.07.1997 was issued inviting applications from eligible candidates for being considered for the selection/appointment to the posts of Sub-Inspector (Telecommunication) in J&K Police Department. Petitioner being eligible sought consideration for being selected/appointed on the said post by filing an application complete in all respects. The petitioner alongwith other eligible candidates was subjected to selection process. Appointment order was issued in the year 1998 and petitioner being not appointed filed this writ petition challenging the appointment of respondents 6 to 30, interalia, on the grounds that the petitioner had faired well in the process of selection under taken by the official respondents and out of total selected candidates 4 appointed candidates did not join. In the supplementary affidavit and rejoinder affidavit it is, however, pleaded that only 58 candidates were appointed, whereas the stand taken by the official respondents, that 70 posts were available and all were filled up in the same selection process, is not correct statement. The petitioner is possessing the license required to be possessed in terms of Rule 10 of Indian Wireless Telegraph Rules and the other candidates who were selected and appointed did not possess the said certificate. 2. The official respondents have filed reply affidavit in which it is stated that 70 posts were available and all the posts have been filled up by appointing 70 persons out of the selection list which was prepared. Respondents have further stated that the last selected candidate obtained 68 marks whereas the petitioner in aggregate obtained 57 marks in open category. It is also pleaded that out of 100 marks only 10 marks were allocated for viva voce test. 3. Heard learned counsel for the parties. Considered the matter. 4. Learned counsel for the petitioner has reiterated the grounds urged in the writ petition while arguing the case. Learned counsel for the petitioner further submitted that it is only the petitioner who was aggrieved of the said selection as he alone has challenged the selection/appointment of the private respondents by filing writ petition and no other person has challenged the selection/appointment of private respondents. Learned counsel would thus submit that as only the petitioner was possessing superior merit than the private respondents so he alone filed the writ petition feeling aggrieved of said selection/appointment to the posts of Sub Inspector (Telecommunication). 5. Mr. Learned counsel would thus submit that as only the petitioner was possessing superior merit than the private respondents so he alone filed the writ petition feeling aggrieved of said selection/appointment to the posts of Sub Inspector (Telecommunication). 5. Mr. Shah learned counsel for the official respondents submitted that the petitioner on the basis of his merit could not make grade for being selected/appointed to the post of Sub-Inspector (Telecommunication). Learned counsel while referring to the record available with him submitted that 70 candidates, which include 40 open merit category candidates, were selected/appointed. Learned counsel further submitted that all the candidates selected and appointed have joined and no post remained available with the respondents. Learned counsel while referring to the record further submitted that the last selected/appointed candidate has secured 68 marks and the petitioner has secured only 57 marks, in between last selected candidate and the petitioner there are 38 persons who are higher in merit than the petitioner. Learned counsel submitted that the petitioner having no case, writ petition deserves to be dismissed. 6. The submissions of the learned counsel for the petitioner that the petitioner faired well in the selection process cannot be judged by this Court. This Court in exercise of its jurisdiction cannot act as an Appellate Authority and adjudge the suitability of the candidates which has been adjudged by the Selection Committee. Learned counsel, however, submitted that two selected candidates did not join and two candidates who were appointed resigned, thus, leaving four posts available with the respondents. 7. Learned counsel for the petitioner referred to and relied upon judgment of Honble Supreme Court in case titled Ashok alias Somanna Gowda and another v. State of Karnataka reported in 1992 SLJ 281 and submitted that Honble Supreme Court issued directions for appointment of the candidates who had approached the Central Administrative Tribunal (CAT) and other persons who were not selected did not approach the tribunal so it could be said that they had no grievance about the selection process. So the Honble Supreme Court directed the respondents for providing appointment to the appellants therein. 8. The facts of the said case were that 50 marks out of 150 were allocated for interview which was held to be in violation of the judgment of the Honble Supreme Court. So the Honble Supreme Court directed the respondents for providing appointment to the appellants therein. 8. The facts of the said case were that 50 marks out of 150 were allocated for interview which was held to be in violation of the judgment of the Honble Supreme Court. The another ground, on which direction for appointment of the appellants therein was issued, was that more marks were allocated to the selected candidates in the interview though they had secured much less marks than the appellants therein in the qualifying examination. The Honble Supreme Court opined that if the marks for interview were kept at 15% of the total marks and merit list was prepared accordingly then both the appellants were bound to be selected. 9. The facts in the case referred to by learned counsel for the petitioner are materially different than the facts obtaining in this case. In this case as already stated that only 10 marks out of 100 were allocated for viva voce test the other marks were apportioned for adjudging the personal aptitude, behavior, presence of mind and over all knowledge of the candidate. 10 marks allocated to the interview in the facts of this case would not change the composition of merit/selection list. The petitioners claim that he alone had approached the Court cannot make a ground for issuing direction to the official respondents to appoint the petitioner. 10. As the petitioner has been litigating before the court for about ten years the official respondents may consider his claim for appointment in case the post is available and petitioner satisfied the eligibility and suitability required for the same. 11. This writ petition is accordingly disposed of with the direction that the official respondents will consider the petitioner for appointment to the post of Sub Inspector in the Telecommunications incase the post is available and petitioner satisfies the eligibility and suitability required for the same, and if such consideration begets appointment to the petitioner, that appointment shall commence from the date order is issued. Disposed of.