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2010 DIGILAW 321 (JK)

Sheikh Mohd. Maqbool v. State Of J&K

2010-05-31

Mansoor Ahmad Mir

body2010
1. Petitioners have questioned the selection of private respondents on the grounds taken in the writ petition. 2. Precise case of the petitioners is that official respondents issued advertisement notice inviting the applications from eligible candidates for the posts of Junior Assistants. The petitioners as well as the private respondents including other candidates applied and appeared in the selection process. Private respondents made the grade and came to be selected and appointed. Petitioners have averred that the selection of Khurshid Ahmad Shah, Naseer Ahmad Mir, Mustafa Ajaz Wani, Asmat Ara and Nusrat Nisa is malafide one. Further, it is contended that only seven (7) seats were requisitioned but selection was made for more than seven seats. Only the written test was to be conducted but in order to shower benefit to their close ones, the interview was also conducted, which was not required as per the advertisement notice. 3. Respondents have resisted the petition on the ground that selection came to be made strictly as per the advertisement notice. The petitioners and private respondents have undergone entire selection process. Petitioners have failed to make the grade cannot challenge the selection process. It is further stated that during the process of selection more seats became available and policy decision came to be made and accordingly an order was issued to fill up the available seats out of the selected list in order to avoid delay in dealings of the departments which are very sensitive in nature. 4. Admittedly the petitioners have undergone selection process cannot make U-turn. They are precluded from challenging the selection process and if interview was not prescribed then how they have gone through the interview process. If they would have been able to make the grade and got selected they would not have questioned the selection process. This Court in case reported as 2005(2) SLJ 423 has held as under: "It is true that 164 vacancies referred to the Commission during the pendency of the selection process were not advertised. One can understand the grievance of the candidates who had become eligible after the last date for making applications as they stood prevented from applying and seeking their consideration for selection/ appointment. But how the candidates who applied for the post in response to the earlier notifications and remained un-successful can throw a challenge on the ground that the vacancies were not advertised. But how the candidates who applied for the post in response to the earlier notifications and remained un-successful can throw a challenge on the ground that the vacancies were not advertised. In fact such of the candidates who had applied against the advertised vacancies and during the currency of selection the number of vacancies is increased have better chance of selection. With the increase in number of vacancies the competition amongst the applicants lessened. Earlier they were to compete against 413 vacancies. With the increase of 164 vacancies they were to complete against 597 vacancies with the same number of candidates. At least the writ petitioners cannot complain for the increase of the vacancies as it provided them better opportunity of selection. No prejudice has been shown to have been caused to them as they were the one who had an opportunity to seek their consideration against the additional vacancies also. Apex Court in All India SC & ST Employees Association v. A. Arthur Jeen and others (Supra) has accorded approval to the selection of candidates against the vacancies referred during the currency of selection." 5. Apex Court in case reported as AIR 1994 SC 141 has laid down the same principle. 6. The petitioners have not arrayed the officials against whom malafides are attributed as party(ies) in person. Thus, are precluded from raising such plea. The Board has to conduct examination and examinations are to be conducted within time frame and results are to be made within time. Accordingly, respondents in their wisdom made a policy and issued order for making selection out of the candidates who made the grade in terms of the merit list. The respondents have not questioned the said order which came to be passed during the selection process. If the petitioners would have been selected, they would not have questioned the selection of private respondents on this count. 7. The respondents should not have made the selection/appointment beyond the number of posts advertised but keeping in view the need of the department as discussed above, the selection came to be made against other available seats also. The selection is made in the year 2000 and private respondents have obtained a status of employee in terms of the selection/ appointment made by the official respondents. The selection is made in the year 2000 and private respondents have obtained a status of employee in terms of the selection/ appointment made by the official respondents. They have made a march ahead and it will not be proper at this stage to quash the selection as the same will shatter the life of the private respondents and their family also. 8. It is also to be kept in mind that the petitioners have not made grade, cannot claim appointment. However, the respondents in future to desist from making selection for more than the seats advertised. 9. As discussed above, the petitioners have undergone the selection process cannot challenge the selection process. This writ petition is, accordingly, dismissed along with all connected CMPs. Interim direction, if any, shall stand vacated. 10. Record produced be returned to Mr. H.I. Hussain, Advocate.