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2010 DIGILAW 655 (JK)

Naseer Ahmad Mir v. State Of J&K

2010-12-31

Hakim Imtiyaz Hussain, MUZAFFAR HUSSAIN ATTAR

body2010
Muzaffar Hussain Attar, J. 1. Respondent J&K Service Selection Board (for short SSB) issued advertisement notice No.4 of 2007dated 19lh Nov. 2007, whereby posts of Junior Engineers (Electric) Grade II were advertised. Applications were invited from the eligible candidates to seek consideration for being selected/appointed on the post of Junior Engineer (Electric) Grade II. Respondent No.4 responded to said notification and sought consideration for being selected/appointed against the aforementioned post under RBA category. One more advertisement notice was issued on 14th July 2008. The process of selection initiated by SSB resulted in issuance of provisional selection list which was published in one of the daily news paper in its edition dated 23rd June 2009. The respondent No.4 figured at serial No. 83 of the said provisional selection list as RBA category candidate. In terms of the said provisional selection list, respondent No.4 had secured 58.40 marks while as appellant had secured 58.38 marks. Being aggrieved of the said provisional selection list SWP No. 1095/2009 was filed .by few non selected candidates in the Jammu Wing of this court in which the entire provisional selection list was called in question. Respondent No.4 figured at serial No. 71 in the array of respondents. Ld single Judge on 6th July 2009 directed that subject to objections and till further orders one post each be reserved for petitioner(s) therein in RBA and S.T category. The SSB, accordingly, reserved one post in RBA category and consequently no recommendation was made to the competent authority for making appointment against the said post. One Akash Deep Singh S/o Kuldeep Singh Katoch who was selected under RBA category did not join the services. The respondent No. 4 being next in merit represented to the authorities for recommending his name to the appointing authority so as to enable the appointing authority to issue appointment order in his favour. When the request did not evoke any response, respondent No.4 filed SWP No. 1569/2009 praying therein that SSB be directed to forward his name to respondent No.1 so as to enable respondent No.1 to issue appropriate order in his favour against the post which became available due to non joining of Sh. Akash Deep Singh. It was further prayed that respondents be directed not to issue the appointment order in favour of the appellant. Akash Deep Singh. It was further prayed that respondents be directed not to issue the appointment order in favour of the appellant. No reply was filed by respondents in the writ petition which was disposed of by the court vide order dated 17th Nov. 2009. The order is reproduced as under: - Heard. Admit. Notice. Mr. Chashoo accepts notice on behalf of respondent No. 1 and Mr. Magray for respondent No. 2. By consent of Ld counsel for the parties, matter is taken up for final disposal. Learned counsel for the petitioner submits that the petitioner shall feel satisfied if the respondents are directed to accord consideration to him, to which, Mr. Magray responds with a reservation on the count that it can be so provided petitioner is next available candidate in the open merit list. In view of the stand so taken, it is provided that respondents shall consider, the petitioner subject to the condition that he figures next to the selectee candidate. Disposed of along with CMPs." 2. The respondent No.1 issued government order No. 251-PDD of 2009 dated 3rd Dec. 2009, vide which, besides other candidates, appellant was ordered to be appointed as Jr. Engineer (Electric) Grade II under RBA category. Petitioner feeling aggrieved of the order, challenged the same by filing writ petition which was registered as SWP No. 1885/09. The SSB as also the appellant filed reply affidavit/objections. The SSB in its reply affidavit stated that respondent No.1 had secured 58.40 points under RBA category and appellant had secured 58.38 points under the said category. It was also admitted by the SSB that last cut of point under RBA category remained 58.40 points. 3. In the objections, the appellant pleaded that respondent No.4 cannot seek consideration for being selected/appointed on the post of Jr. Engineer (Electric) Grade II under RBA category in as much as, in terms of order dated 17th Nov. 2009 passed in SWP No. 1569/09 he is to be given consideration in open merit category. It was further pleaded that appellant was appointed because of the merit he has secured. The writ petition was taken up for final disposal with the consent of the Ld counsel for parties which included appellant as well. By judgment dated 23rd Nov. 2010 the appointment of the appellant on the post ordered vide order No. 251-PDD of 2009 dated 3rd Dec. The writ petition was taken up for final disposal with the consent of the Ld counsel for parties which included appellant as well. By judgment dated 23rd Nov. 2010 the appointment of the appellant on the post ordered vide order No. 251-PDD of 2009 dated 3rd Dec. 2009 was quashed and the appointing authority was directed to offer appointment to respondent No. 4 based upon recommendation made by the SSB. It was also provided that effect of the appointment be given notionally only for the purpose of seniority. The appellant who had worked for some time on the post of Jr. Engineer was held entitled to receive salary for the period for which he has actually worked. It is this judgment which is called in question in this Letters Patent Appeal (LPA). 4. We have heard Ld counsel for parties. Considered the matter. 5. Mr. G.A. Lone Ld counsel for appellant submitted that judgment impugned in this LPA is illegal in as much as respondent No.4 could not be considered under RBA category as he was to be considered in open merit category in terms of order dated 17lh Nov. 2009 passed in SWP No. 1569/09. Ld counsel submitted that claim of respondent No.4 for his consideration under RBA category was taken away by the aforementioned judgment and the respondent No. 1 had rightly issued appointment order in favour of the appellant. Ld counsel also submitted that writ petition having not been admitted to hearing, the judgment impugned in this LPA could not have been passed without affording opportunity of filing counter affidavit to the appellant. Ld counsel lastly submitted that there are posts of Junior Engineers available and against one such post the appellant could be considered for being appointed. 6. Mr. M.A. Beigh Ld counsel for respondent No.4 submitted that respondent No.4 sought consideration for being selected and appointed on the post of Junior Engineer (electric) Grade II under RBA category. Ld counsel submitted that the provisional selection list also declared him provisionally selected as RBA category candidate. Ld counsel submitted that respondent No.4 could not be recommended by SSB for being appointed on the post of Jr. Engineer for the reason that ex-parte interim order was passed in a writ petition filed in the Jammu Wing of the court. One post under RBA category was ordered to be kept reserved. Ld counsel submitted that respondent No.4 could not be recommended by SSB for being appointed on the post of Jr. Engineer for the reason that ex-parte interim order was passed in a writ petition filed in the Jammu Wing of the court. One post under RBA category was ordered to be kept reserved. Ld counsel submitted that one Akash Deep Singh who was selected/appointed under RBA category did not join and accordingly respondent No. 4 got right of appointment being next in merit to that of the last appointed candidate. 7. The whole hog reliance placed by the Id counsel for appellant on the order dated 17th Nov. 2009 passed in SWP No. 1569/09 to displace the case of respondent No.4 for his appointment under RBA category is misplaced in the facts of this case. The respondent No.4 sought consideration for being appointed under RBA category. He was provisionally selected for being appointed under RBA category. The SSB has admitted in its objections that respondent No.4 was selected under RBA category and secured 58.40 points which was the cut of merit for such selection. On close examination of order dated 17th Nov. 2009, what transpires is that Ld counsel for respondent No.4 made submission that he will feel satisfied if respondents in that writ petition were directed to accord consideration to him. The Ld counsel for SSB responded to the said submission by stating that consideration can be accorded to him if he is next available candidate in the open merit list. The court disposed of the writ petition by observing that respondent-competent authority in the said writ petition shall consider the respondent No. 4, petitioner therein, subject to condition that he figures not to the selected candidate. The court did not direct for consideration of the respondent No. 4 as an open merit candidate. It was submission of Ld counsel for SSB which was taken note of in the order. The case of writ petitioner in the writ petition was that he sought consideration under RBA category was selected under said category. The stand taken by the Ld counsel for SSB without filing reply affidavit in the said writ petition is inconsequential and would not bind the respondent No.4 or even the SSB and appointing authority. The stand taken by Ld counsel for SSB was admittedly against the record. The stand taken by the Ld counsel for SSB without filing reply affidavit in the said writ petition is inconsequential and would not bind the respondent No.4 or even the SSB and appointing authority. The stand taken by Ld counsel for SSB was admittedly against the record. In the subsequent writ petition filed by respondent No. 4 SWP No. 1885/09, the SSB has admitted that respondent No. 4 was selected under RBA category. The order dated 17th Nov. 2009, thus, would not preclude either respondent No.4 to stake his claim for being selected/appointed under RBA category nor would disable SSB and appointing authority to accord consideration for appointing the respondent No.4 as Jr. Engineer under RBA category. The respondent No.4 while responding to advertisement notification applied as a reserve category candidate. He sought consideration for being selected and appointed as RBA category candidate. SSB accorded consideration to him as RBA category candidate and was selected for being appointed under said category. The right to seek consideration for selection and appointment is guaranteed fundamental right under Art. 16(1) of Constitution of India. The said right of respondent No.4 culminated in his selection as RBA category candidate. This right of selection and consequent appointment under RBA Category candidate, cannot be taken away on mere statement of Ld counsel for SSB, further when such statement was against its own record. Justice cannot be shackled hand and foot as suggested by Ld counsel for appellant. The respondent No. 4 is to be appointed on the post, as directing otherwise would result in naked injustice, which court of law will never allow to happen. The contention so raised fails. 8. The writ petition was taken up for final disposal at the request of Ld counsel for parties which includes Ld counsel for appellant as well. In view of the controversy raised in the case and in view of the consent given by the Ld counsel for parties which includes appellant also for taking up the case for final disposal, the appellant is precluded from joining the issue raised in this appeal by stating that the writ petition was not admitted to hearing. Pleadings were complete and no prejudice is caused to the appellant, more so when appellant himself consented for final disposal of the writ petition at that stage. Pleadings were complete and no prejudice is caused to the appellant, more so when appellant himself consented for final disposal of the writ petition at that stage. The Ld counsel for appellant did not state that appellant had not authorized his counsel to give consent for final disposal of the writ petition. The issue raised by appellant in his objections were reasserted by his Ld counsel while arguing this appeal and no new point on merits of case was raised. The appellant in the facts and circumstances of this case is estopped from raising the issue. The writ proceeding Rules of 1997 also do not lend support to contention raised at bar. 9. Admittedly and undisputedly respondent No. 4 has secured more merit than the appellant. The respondent no.4 had secured merit which was declared to be cut of merit for the last selected candidate. The respondent No. 4 both in law and fact and in view of the mandate contained in Article 16(1) of Constitution of India deserves to be appointed. No fault can thus be found with the judgment impugned in this LPA. 10. The submission of Ld counsel for appellant that appellant can be considered against a post available with the appointing authority cannot be answered in positive. It is settled legal position that no direction can be given for consideration of a candidate for his appointment against the future vacancy. 11. For the above stated reasons, we find no merit in this appeal, which is accordingly dismissed.