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2010 DIGILAW 453 (JK)

Rakesh Warikoo v. State Of J&K

2010-08-18

J.P.Singh

body2010
1. The petitioner applied for selection as Junior Engineer (Electrical) Grade-II in response to the Jammu and Kashmir State Subordinate Services Recruitment Board, Jammu’s Advertisement Notice No.01 of 1992 dated 09.04.1992. He was not called for interview by the Board. He accordingly approached this Court by his Writ Petition No.1088/1992 and was thereafter interviewed pursuant to the directions passed in the Writ Petition. He was not, however, selected. Aggrieved by his non-selection, he again approached this Court by his Writ Petition SWP No.728/97 questioning the selection of Junior Engineers (Electrical) Grade-II made by the Board. 2. In terms of the directions issued on this Writ Petition, he was again interviewed but the Board did not consider him fit for selection this time too and rejected his claim vide Jammu and Kashmir Services Selection Board, Jammu’s Communication No. SSB/R-130/97/903-5 dated 10.12.2001. He filed yet another Writ Petition SWP No.1365/2002 seeking selection on the ground that the Board had erroneously relied upon the criteria fixed for selections of 1997, whereas his merit was required to be evaluated on the basis of the criteria adopted by the Board in the Selections held in the year 1992. This time, his claim was sustained by the Board which, vide its Communication dated January 22, 2004, indicated the petitioner to have secured 65.32 points i.e more than the last selected candidate in the year 1992-93, who had secured 64 points. His case was, accordingly, recommended to the State Government for appointment as Junior Engineer (Electrical) Grade-II in the Power Development Department of the State Government against available vacancy subject to the final out come of the SLP pending before the Hon’ble Supreme Court of India in the lead case titled State of Jammu and Kashmir v. Narinder Verma and others. 3. Accepting the petitioner’s claim to appointment on the basis of Board’s aforementioned Communication and finding that the SLP did not pertain to the selection in which the petitioner had been found entitled to appointment, this Court issued a direction to the State-respondents to take immediate steps to appoint the petitioner in terms of the recommendations made by the Jammu and Kashmir Services Selection Board. 4. The State of Jammu and Kashmir questioned the judgment in petitioner’s Writ Petition SWP No.1365/2002 by its Appeal LPA (SW) No. 47/2005 and CDLSW No.17/2005. 5. 4. The State of Jammu and Kashmir questioned the judgment in petitioner’s Writ Petition SWP No.1365/2002 by its Appeal LPA (SW) No. 47/2005 and CDLSW No.17/2005. 5. The Letter Patent Bench, dismissed the State’s Appeal, holding as follows:- "It is true that while deciding a writ petition, calling in question the validity of administrative actions, the High Court normally issues direction to consider the case of the person concerned but there is no hard and fast rule that a firm direction for appointment cannot be issued in any case. In the case cited by the counsel the post was not available and therefore the Supreme Court held that direction should have been issued to consider the case of the person and not to appoint him. True it is that in the instant case too no post is reportedly available but if that is so, it is because of the wrong action on the part of the Services Selection Board and/or Department for which the writ petitioner should not suffer. As indicated at the outset, it is not in dispute that the writ petitioner was placed higher in merit but superceding his claim the private respondents were appointed. The action of the Board/department being wholly arbitrary, we do not think any interference with the order of learned Single Judge is called for, much less on a technical ground, which will only perpetuate the wrong. We, accordingly, while condoning delay, dismiss the appeal as devoid of merit." 6. State’s effort to seek review of the judgment too failed with the dismissal of its Review Petition on 09.09.2005. 7. The petitioner’s claim to appointment against the post of Junior Engineer (Electrical) Grade-II ultimately succeeded with the dismissal of State’s Civil Appeal No.5576/2006 in the Hon’ble Supreme Court of India. 8. The order passed by the Supreme Court on December 04, 2006, reads thus:- "Leave granted. Heard learned counsel appearing on behalf of both sides. It is stated in para 6 of the counter affidavit of respondent no.1 as under:- "After having considered repeated orders passed by the Hon’ble Single and Division Bench of the Hon’ble High Court in Writ Petitions filed by the deponent and after having considered the fact that the less meritorious candidates who had acquired much lesser marks/points than the deponent, had already been appointed, the J&K State Service Selection Board, Jammu by letter dt. 22.1.2004 recommended the State of Jammu & Kashmir, Department of Power Development, to issue appointment letter to the deponent for the post of Junior Engineer (Electrical), Grade-II. A copy of the said letter dated 22.1.2004 issued by the J&K State Service Selection Board had already been enclosed as Annexure P-11 (page 94 to 97) of the Special Leave Paper Book." Pursuant to the above recommendation, the J&K State Service Selection Board, Jammu observed and issued the directions as under:- "Whereas the last selected candidate in the year 1992/93 has scored 64 points. Now, therefore, the petitioner namely Mr. Rakesh Warikoo S/o R.J.Warikoo R/o 2/109 Indira Nagar, Udhampur having scored higher marks and being meritorious than the last selected candidate is recommended for appointment as Junior Engineer Grade-2 in the P.D.D against an available vacancy. His appointment orders may be issued subject to the final outcome of the SLP pending before the Hon’ble Supreme Court in the lead case titled J&K State v. Narinder Verma and others." It is not in dispute that the last selected candidate in the year 1992-1993 has secured 64 points whereas the respondent No.1 (Rakesh Warikoo) secured 65.32 which is higher than the last selected candidate. We, therefore, direct the appellant to consider the request of the first respondent (Rakesh Warikoo) and issue appointment orders as per the recommendation. The appeal stands disposed of accordingly. No costs." 9. Before the dismissal of the State’s Civil Appeal in the Hon’ble Supreme Court, the petitioner had approached this Court again by his Writ Petition SWP No.1871/2004 seeking a Command to the State-respondents to appoint him against the post of Junior Engineer (Electrical) Grade-II in the pay Scale of 1760-3200 (Pre-revised) retrospectively with effect from March 30, 1993 with all Monetary benefits including fitment of salary and seniority over respondent Nos.3 to 25, besides other service benefits. 10. Although the State-respondents had denied the petitioner’s entitlement to the reliefs, prayed for in the Writ Petition, yet during the pendency of the Writ Petition and after the judgment of Hon’ble Supreme Court of India, the State Government issued Government Order No.26-PDD of 2007 dated 01.02.2007, in terms whereof, the petitioner stands appointed as Junior Engineer (Electrical) Grade-II notionally with effect from 22.01.2004, the date when the Services Selection Board recommended him for appointment. 11. 11. With the issuance of the Government Order, the controversy in the Writ Petition has been narrowed down and the only question which requires determination is about the date from which the petitioner becomes entitled to appointment as Junior Engineer (Electrical) Grade-II in the Power Development Department of the State Government. 12. There is no dispute on facts that the petitioner became entitled to selection for appointment as Junior Engineer (Electrical) Grade-II, when pursuant to the recommendations of the Recruitment Board, 104 Junior Engineers were appointed on regular temporary basis in the pay Scale of Rs.1400-40-1800-EB-50-2300 vide Government Order No.56-PDD of 1993 dated 30.03.1993, in view of his having secured marks, on evaluation of his merit, more than the cut off marks which the last selected candidate recommended for appointment had so secured. He was thus entitled, as of right, to appointment as Junior Engineer (Electrical) Grade-II along with 104 Junior Engineers. 13. The omission of the Board in not recommending the petitioner for appointment as Junior Engineer (Electrical) Grade-II along with 104 Junior Engineers, has deprived him, of his right to appointment from the date when other similarly situated 104 persons were recommended for appointment and ultimately appointed by the State Government, in that, his deprivation was in violation of Articles 14 and 16 of the Constitution of India. 14. Delayed recommendation of the Board in case of the petitioner, does not take away his acquired right to appointment as Junior Engineer (Electrical) Grade-II from the date other similarly situated 104 persons were so appointed. 15. The petitioner has, thus, established that he was situated similarly with 104 persons who were selected by the Board for appointment as Junior Engineers. He has further established his entitlement to appointment from the date similarly situated persons were appointed as Junior Engineers. 16. In view of the establishment of petitioner’s right to employment with effect from the date other similarly situated persons were so appointed, the learned State counsel submitted that the petitioner was disentitled to seek directions for his retrospective appointment and consequential benefits, as his Writ Petition was barred by the Principles of Constructive Res judicata. 17. 16. In view of the establishment of petitioner’s right to employment with effect from the date other similarly situated persons were so appointed, the learned State counsel submitted that the petitioner was disentitled to seek directions for his retrospective appointment and consequential benefits, as his Writ Petition was barred by the Principles of Constructive Res judicata. 17. I do not find any merit in the learned State counsel’s submission because the principle projected has absolutely no application to the facts of the present case, particularly when the petitioner’s right to retrospective appointment had been conceded by the State Government with the issuance of Government Order No.26-PDD of 2007 dated 01.02.2007 during the pendency of the Writ Petition, appointing him as Junior Engineer (Electrical) Grade II with effect from 22.01.2004, the date when the Recruitment Board had, pursuant to the directions issued in the petitioner’s Writ Petition, recommended his case for appointment as such. 18. This is so because no such cause of action, as has been projected by the petitioner in this Writ Petition seeking service benefits, had accrued to him when he filed his SWP No.1365/2002 questioning the selection of those who had been appointed ignoring his merit and seeking appointment on the basis of his better merit. 19. That apart, the issue of retrospective appointment was not a matter, directly and substantially in issue, in the petitioner’s earlier Writ Petition and nor had the State made the issue of petitioner’s retrospective appointment, a ground of defence or attack in the earlier Writ Petition. The bar of Res judicata, flowing from the principle underlying Section 11 of the Code of Civil Procedure, as projected by the State, is, thus, not attracted in the case. 20. There is another aspect of the matter which needs to be noticed. After having found that the petitioner had secured 65.32 points i.e higher than the last selected candidate who secured 64 points, the Hon’ble Supreme Court of India had directed the State-respondents to issue the petitioner’s appointment order, as per the recommendations of the Board, meaning thereby that the petitioner was entitled to appointment from the date the other similarly situated persons had been appointed in the year 2003. 21. 21. The State Government has, thus, committed an error in considering the petitioner’s appointment from 22.01.2004, the date when the Services Selection Board recommended his appointment pursuant to the judgment in petitioner’s Writ Petition SWP No.1365/2002, in that, the date of recommendation by the Board becomes irrelevant in view of the petitioner’s entitlement to appointment along with similarly situated persons who were appointed on March 30, 1993. 22. The State Government is, therefore, required to consider afresh the petitioner’s case for his retrospective appointment, from the date other similarly situated persons were so appointed, his placement at the appropriate place in the seniority list in accordance with the provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 and for passing appropriate orders, as admissible under rules, to grant him other service benefits. 23. This Writ Petition, therefore, succeeds and is, accordingly, allowed. A direction shall issue to the State-respondents to consider and pass appropriate orders for petitioner’s retrospective appointment and all consequential service benefits, as permissible under rules, within a period of three months.