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2010 DIGILAW 339 (JK)

Syed Amjad Ali v. State Of J&K

2010-06-03

MUZAFFAR HUSSAIN ATTAR

body2010
1. Notification No.5 dated 29.12.1992 was issued by the J&K Service Selection Board inviting applications from the eligible candidates for being considered for being selected and appointed as Jr. Engineers in Public Works Department. Out of total vacancies advertised 40 were reserved for candidates belonging to Schedule Tribe. Petitioners being eligible for being selected and appointed as Jr. Engineers on the terms and conditions of the Advertisement Notification applied and sought consideration under Schedule Tribe Category. Petitioners were interviewed in the month of April, 1993 by the Selection Committee. The Tehsildar did not issue certificates in favour of the petitioners which would evidence the fact that the petitioners belong to Schedule Tribe Category. Petitioners challenged the order of Tehsildar before the Appellate Authority in the month of June, 1993. The Appellate Authority failed to exercise its statutory powers in disposing of the appeal within the time frame fixed by the statute. The inaction on the part of statutory authority to consider and dispose of the appeal, constrained the petitioners to approach this Court by filing SWP No. 1046/93. The Court vide interim order dated 28.06.1993 directed as under : "Issue notice in the CMP also returnable within the same period. In the meanwhile, subject to objections of the other side, the respondent No:3 Dy. Commissioner Leh is directed to dispose of the appeals of the petitioners within the prescribed period as given in schedule Tribe (Issuance of Certificates) Rules, 1990. The petitioners have filed the appeals on 8.6.1993 and in terms of the rules mentioned above, respondent No:3 is supposed to dispose of the appeals by 8.7.1993. The respondents are also directed to reserve four posts of Junior Engineers in Schedule Tribe category over and above those who have already been appointed till the matter is considered by the Court." 2. The certificates evidencing the fact that the petitioners belong to Schedule Tribe Category were issued in the year 1996 and 1997 in favour of the petitioners by the competent statutory authority. This Court after considering the issues involved in the writ petition disposed of the same vide its judgment dated 18.02.1998. The certificates evidencing the fact that the petitioners belong to Schedule Tribe Category were issued in the year 1996 and 1997 in favour of the petitioners by the competent statutory authority. This Court after considering the issues involved in the writ petition disposed of the same vide its judgment dated 18.02.1998. The operative part of the judgment is reproduced as under: "Therefore, this writ petition is disposed of with the direction that the second respondent shall, on production of the Schedule Tribe Certificate, examine the petitioners’ merit and if selected forward their names to the Government on the basis of which the first respondent shall consider them for appointment under the schedule tribe category against the four posts reserved by the order of this court dated 28.06.1993. This process shall be completed within a period of two months from the date of receipt of this order." 3. Respondents issued Government Order No.72-Hyd of 1998 dated 23.10.1998 and ordered for appointment of petitioners as Jr. Engineers Grade-II in the respondent department. The order is reproduced as under: "Government of Jammu and Kashmir Civil Sectt. PHE, Irri. & F.C. Department Subject:- SWP No.l046/93-Syed Amjad Ali and others v. State and others-Appointment of candidates for the post of Junior Engineers Dip./Degree (Grade-II) pursuant to Notification No.5 of 1992 dated 29.12.1992. Reference: Letter No.SSB/B-55/93/1775-77/98 dated 16.7.1998 from the Secretary, J&K Service Selection Board, Srinagar. Government Order No.72-Hyd of 1998 Dated: 23.10.1998 As recommended by the J&K Service Selection Board, Srinagar sanction is accorded to the appointment on regular temporary basis of the following candidates belonging to Scheduled Tribe Category as Junior Engineers grade-II in the pay scale of Rs.4500-7000:- S/Shri 1. Syed Amjad Ali S/o Syed Abduliah R/o Chchot Gongma, Leh. 2. Rashid Ahmad S/o Mohd Amir R/o Leh. 3. Ghulam Mohi-ud-din S/o Gh. Qadir R/o Thiksay, Leh. The appointment be allowed to join subject to the production and verification of the following certificates by the District Superintending Engineer, P.W.D Leh Ladakh: 1. Date of birth/Health certificate 2. Permanent Resident Certificate. 3. Tech. Qualification Certificate of a recognized institution in Civil Engineering. 4. Reservation certificate being of Scheduled Tribe issued by the competent authority. 5. Certificate from the concerned authorities to the effect that- a) No loan under the Self Employment Scheme has been drawn. b) the stipend if any received has been refunded in full into the Treasury. 3. Tech. Qualification Certificate of a recognized institution in Civil Engineering. 4. Reservation certificate being of Scheduled Tribe issued by the competent authority. 5. Certificate from the concerned authorities to the effect that- a) No loan under the Self Employment Scheme has been drawn. b) the stipend if any received has been refunded in full into the Treasury. The appointees shall report to the District Superintending Engineer, PWD (R&B) Circle, Leh within 21 days from the date of issue of this order failing which the appointment order shall be cancelled. The District Superintending Engineer shall intimate the position of candidates who join within the stipulated time to the Administrative Department immediately after their joining. The allotment of wing of the incumbents shall be made separately. By order of the Government of Jammu and Kashmir. Sd/- (S.R.S.Madni) Secretary to Government PHE, Irri. & F. C. Department No.: PNG-Estt-13/98-WP dated 23-10-1998" In this writ petition following relief is sought: "...It is accordingly prayed that by an appropriate writ direction or order including a writ in the nature of mandamus respondents be directed to treat the petitioners as having been appointed to the service and to the post of Junior Engineer Grade II as from 15.06.1993 when their colleagues came to be appointed (Scheduled Tribe Category) and their seniority be directed to be fixed accordingly as prescribed by rules..." 4. Heard learned counsel for the petitioner. Considered the matter. 5. Learned counsel for the petitioners submitted that the petitioners seeking selection/appointment as Jr. Engineers Grade II in pursuance of Notification No.5 of 1992 dated 29.12.1992, even though had secured requisite merit in the selection process for being appointed as Jr. Engineers, were not, however, appointed as such, as they had sought consideration for being selected and appointed under Schedule Tribe Category and the requisite certificate was not issued in their favour by the Tehsildar concerned, who rejected their claim and, it is after filing of the appeal that certificates were issued that too when this Court vide order dated 28.06.1993passed in SWP No.1046/93 directed the Dy. Commissioner Leh to dispose of the appeals of the petitioners within prescribed period as given in Schedule Tribe (Issuance of Certificates) Rules, 1990. The certificates were accordingly issued in the year 1996-1997 as aforementioned. 6. Commissioner Leh to dispose of the appeals of the petitioners within prescribed period as given in Schedule Tribe (Issuance of Certificates) Rules, 1990. The certificates were accordingly issued in the year 1996-1997 as aforementioned. 6. Learned counsel further submitted that it is not because of any of the fault of the petitioners that they were not appointed when all other candidates who had participated in the selection process alongwith them were appointed on 15.06.1993. Learned counsel accordingly submitted that in this factual ground the petitioners could not be denied the benefits of seniority from 15.06.1993. Learned counsel submitted that the petitioners shall be deemed to have been notionally appointed from the aforesaid date and would be thus entitled to get seniority from the same date. 7. The appointment of a person to a post in service begins from the date the appointment order is issued by the competent authority. All other service benefits including seniority has to be determined from the date a person is appointed on a post available in the service in accordance with the mandate of rules occupying the field. 8. Rule 24 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 provide the mode and method for fixing seniority of a person who is appointed on a post in pursuance of selection process. 9. What right the petitioners have to seek direction from this Court for treating them to have been notionally appointed from 15th June, 1993 as Jr. Engineers Grade II in Schedule Tribe category and for fixing of seniority from the said date is to be considered in the peculiar facts and circumstances available in this case. 10. This Court is Court of justice and has to ensure that justice reaches to every nook and corner where injustice is done. This Court has to remove injustice when it stares at its face. 11. The admitted fact position is that the process of recruitment to the post of Jr. Engineers was initiated on 29.12.1992 by issuance of Advertisement Notification. Petitioners were eligible so were considered and interviewed by the selection authority. The petitioners could not be appointed on 15 June, 1993 when their colleagues were appointed, as petitioners’ applications seeking issuance of Schedule Tribe Certificates were rejected by the Tehsildar concerned. Engineers was initiated on 29.12.1992 by issuance of Advertisement Notification. Petitioners were eligible so were considered and interviewed by the selection authority. The petitioners could not be appointed on 15 June, 1993 when their colleagues were appointed, as petitioners’ applications seeking issuance of Schedule Tribe Certificates were rejected by the Tehsildar concerned. The appeal was filed before the statutory authority which in terms of statute was duty bond to decide the same within a period of 30 days. The Appellate Authority failed to discharge its statutory functions and did not decide the appeal within the time frame fixed by the statute. This Court in SWP No. 1046/93 directed the Appellate Authority to dispose of the appeals in terms of the mandate contained by the statute. It is thereafter that the appeals were considered and disposed of and certificates issued in favour of petitioners in the year 1996 and 1997. This Court after considering the issues involved in the aforementioned writ petition disposed of the same directing the second respondent therein to examine the petitioners’ merit on production of Schedule Tribe Certificates and if selected furnish their names to Government and respondent No.1 therein was directed to consider the petitioners for appointment under the Schedule Tribe Category against the four posts reserved by the Court vide order dated 28.06.1993. Respondent No.1 accordingly issued the appointment order in favour of the petitioners on 23rd of October, 1998. The appointment order also refers to the selection process and was initiated pursuance of Notification No.5 of 1992 dated 29.12.1992. 12. The consideration of all these facts do show that it was not because of any of the faults of the petitioners that they could not be selected and appointed alongwith their other colleagues on 15.06.1993. It is the statutory authorities who had failed to discharge statutory functions to issue the requisite category certificates in favour of the petitioners, which become cause for non-appointment of petitioners on 15.06.1993. Petitioners cannot be made to suffer for the faults of the authorities of the State. The benefits which would accrue to the petitioners otherwise, if they would have been appointed alongwith their colleagues on 15.06.1993, have been denied to them because of the fault of the statutory authorities. Petitioners could not be made to suffer for this. Petitioners cannot be made to suffer for the faults of the authorities of the State. The benefits which would accrue to the petitioners otherwise, if they would have been appointed alongwith their colleagues on 15.06.1993, have been denied to them because of the fault of the statutory authorities. Petitioners could not be made to suffer for this. The Statutory Authorities, if would have exercised their jurisdiction in accordance with the mandate of statute, the petitioners would have been appointed alongwith their colleagues on 15.06.1993 and would have got also benefits from the said date which would include monetary benefits as well. The petitioners, however, having not worked from 15.06.1993 would not be entitled to monetary benefits but they certainly on the anvil of equity and justice would be entitled to the benefits of seniority under the Schedule Tribe Category from 15.06.1993, when their other colleagues were appointed. This benefit cannot he denied to the petitioners on any count as that would he doing injustice to the petitioners and violating the basic tenets of fairness. 13. For the aforesaid reasons this petition is disposed of in the following manner: By issuance of writ of mandamus respondents are directed to give seniority benefit to the petitioners in the Schedule Tribe Category as Jr. Engineers Grade Ilnd from 15.06.1993 when their other colleagues were appointed to the service and after fixing the seniority petitioners be considered for all consequential benefits which would accrue to them on such fixation.