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2010 DIGILAW 89 (JK)

Mehraj-ud-din Dar v. State

2010-02-26

MUZAFFAR HUSSAIN ATTAR

body2010
1. Petitioner responded to advertisement notices which were issued way back in the year 1985, 1986, 1988 and 1993 and sought consideration for being selected and appointed to the post of Naib Tehsildar, which post was advertised in terms of the aforementioned notifications. The respondent/Board issued a notification in the year 1995 for conducting objective type test for the post of Naib Tehsildar, which test was to be conducted simultaneously at Jammu, Srinagar, Leh and Kargil on 27.08.1995. Petitioner having been found eligible on the terms and conditions of the advertisement notification was also permitted to take the objective type test. The respondent-Board thereafter issued one more notification in the year 1997, wherein and where under, the candidates, who were found eligible on the basis of the objective type test, were called for the oral test/interview. Petitioner did not find his roll number in the said notification and, accordingly, filed a representation seeking rechecking of his paper. Petitioner thereafter filed this petition and prayed for issuance of a writ of certiorari seeking quashment of notification dated 23.08.1995 and 16.06.1997. Notice dated 23.08.1995 provided, for conducting of objective type test and notification dated 16.06.1997 notified the roll numbers of those candidates who were called for interview on the basis of objective type test conducted by the respondent-Board. 2. The grounds of challenge projected in the writ petition primarily are that in the advertisement notification it was specifically mentioned that the selection would be made through competitive test and interview but the competitive test as provided in terms of the Rules was not held and objective type test was held. The time frame fixed for taking the objective type test was different at different places. On notice issued in the writ petition respondent No.3 filed counter affidavit. In the counter affidavit it is stated that initially a decision was taken for calling the candidates in the ratio of 1:5 but lateron it was modified and candidates were called for interview in the ratio of 1:10. The petitioner having not made the grade was not accordingly called for the interview. It is also pleaded that after the selection process was undertaken candidates were selected and even appointed on the posts of Naib Tehsildars. 3. Heard learned counsel for the parties. Considered the matter. 4. The petitioner having not made the grade was not accordingly called for the interview. It is also pleaded that after the selection process was undertaken candidates were selected and even appointed on the posts of Naib Tehsildars. 3. Heard learned counsel for the parties. Considered the matter. 4. Learned counsel for the petitioner made elaborate submissions and referred to host of judgments in order to persuade the court that the selection process conducted by the respondents is illegal. Learned counsel referred to cases reported in 2008(2) SCC 619, 1997 (9) SC 527, AIR 1997 SC 2280, AIR 2006 SC 2319. 5. Learned counsel for the respondents submitted that the petitioner having participated in the selection process cannot be permitted now to turn around and challenge the same selection process after having not secured the grade for being called for the interview. Learned counsel referred to judgment reported in 2008(2) Supreme Today 328. Learned counsel made pointed reference to para 7 of the judgment, which is reproduced as under: "7. It is not disputed that the writ petitioners-respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.PE or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules." 6. After examining the record, it transpired that the respondents in counter affidavit filed on 07.08.2001 brought it to the notice of the Court as also to the notice of the petitioner that the selection process, which is called in question in the writ petition, has culminated not only in selecting the candidates but even in appointing them on the posts of Naib Tehsildars. The petitioner filed CMP No. 1283/09 seeking permission of the Court to implead the selected candidates, who were appointed as Nail Tehsildars, as respondents in the writ petition. The Court vide order dated 8.5.2009 allowed the application and ordered that the selected/appointed persons, whose particulars were given in the application, are impleaded as respondents in the case. Notice through substituted service by publication of notice in a daily newspaper was also directed by the Court. 7. The Court vide order dated 8.5.2009 allowed the application and ordered that the selected/appointed persons, whose particulars were given in the application, are impleaded as respondents in the case. Notice through substituted service by publication of notice in a daily newspaper was also directed by the Court. 7. This writ petition merits dismissal on the sole ground, that during the pendency of the writ petition the respondents not only made selections but even appointed the selected candidates on the posts of Naib Tehsildars. This fact was brought to the notice of the Court as also knowledge of the petitioner way back in the year 2001 when the counter affidavit was filed. Petitioner failed to take steps to challenge the selection/appointment of the selected/appointed candidates on the posts of Naib Tehsildars. 8. Assuming for a while that this writ petition is allowed, what will be the consequence, begets answer. Petitioner has prayed for issuance of a writ of certiorari for quashing the notification which provided for conducting of objective type test as also the notification wherein and whereunder, the candidates, whose roll numbers were mentioned therein, were coiled for the interview and also prayed that the respondents be directed to initiate the process of selection for filling of posts of Naib Tehsildars in accordance with the recruitment rules as also the J&K Subordinate Service Recruitment Rules, 1992. The petitioner further prayed that the respondents be directed not to make any selection/appointment to the posts of Naib Tehsildar. 9. Their being no order passed by the Court stopping the selection process, the selection process accordingly proceeded ahead and culminated in selection/appointment of the candidates and assuming for arguments sake, even if the petition is allowed, it would be only for academic purposes as the petitioner will not derive any benefit therefrom. 10. The selection/appointment of the selected/ appointed candidates having not been challenged by amending the writ petition, the writ petition is rendered infructuous. 11. It is settled position of law and the soul of our constitution that neither a person can be condemned unheard nor a benefit can be taken away from a person without putting him on notice and without affording him opportunity of hearing. 12. 11. It is settled position of law and the soul of our constitution that neither a person can be condemned unheard nor a benefit can be taken away from a person without putting him on notice and without affording him opportunity of hearing. 12. In this case, though in the year 2001, the application is filed for seeking impleadment of the selected/appointed candidates, that, however, will not save the writ petition from the consequences of the dismissal, which it has to suffer on the basis of settled legal position, as appointment orders are not challenged. 13. The grounds, which have been pleaded and urged at the time of hearing, in legal position, cannot be looked into in absence of challenge to the selection/appointment of the selected/appointed candidates. Any order/judgment passed by the Court which has an effect of upsetting selection/appointment without same having been challenged, would be violative of constitutional guarantees as contained in Article 14 of the Constitution of India. No writ can be issued which would infringe the constitutional guarantees as contained in Article 14 of the Constitution. 14. This petition, for the above stated reasons, is held not to be maintainable and is, accordingly, dismissed.