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2011 DIGILAW 734 (JK)

Khurshid Ahmad Mir v. State Of J&K

2011-12-28

Mansoor Ahmad Mir

body2011
1. This order will govern the CMPs. 3204 and 1688 of 2011. 2. It appears that respondents are in 2nd round of litigation, for, they had invoked the writ jurisdiction of this court by the medium of a Writ Petition, SWP No. 1904/2009, which came to be disposed of by directing the respondents to constitute a Committee, headed by the Commissioner/ Secretary to Government Agriculture Department, so that, the matter is examined by a panel of experts. 3. Before dwelling upon the consequent upshot, the-succinct narration of the facts leading to controversy needs a re-look, thus:- Notification Nos. 04-PSC of 2006 dated 26.05.2006 and 5-PSC of 2009 dated 2nd of February, 2009 were issued, by respondent No. 2, inviting applications for filing up the posts of Horticulture Dev. Officers, which was responded to, by writ petitioners, among others. A dispute arose with respect to the qualification possessed by the petitioners being not in accordance with the one prescribed in the advertisement notice. It is in this very dispute that the direction supra came to be passed. 4. As already pointed out hereinbefore, the court appreciated the controversy and passed an order dated 8th of October, 2010, the relevant portion of which is reproduced hereunder:- "In light of the stand taken by petitioner, the matter needs to be looked into from the angle as to whether the qualification possessed by the petitioners is same/ equivalent to the one prescribed in the advertisement notice. The matter, in these circumstances, needs to be considered by the respondents at their own level. Since the process of selection is already complete it would be just and proper if the department takes up the matter and get it examined by a panel of experts to resolve the controversy. " 5. As an upshot of the direction dated 8th of October, 2010, the Committee so constituted for the purpose, made a decision on 9th of December, 2010. It is apt to reproduce the relevant portion of the same herein:- "However, in the instant case the selection process should be strictly made on the basis of the recruitment rules, as there is no provision of equivalence in the recruitment rules notified vide SRO 161, dated 23rd April, 2002." 6. Having regard to the decision taken by the Committee, the respondent No. 2 issued selection list, vide its order No. 171-PSC of 2011 dated 16th of May, 2011. 7. Having regard to the decision taken by the Committee, the respondent No. 2 issued selection list, vide its order No. 171-PSC of 2011 dated 16th of May, 2011. 7. All said and done, the petitioners have not questioned the subsequent developments i.e. the decision made by the Public Service Commission, select list issued by it vide Order No. 171-PSC of 2011 dated 16th of May, 2011 and they have also not questioned the appointment order issued by the Govt.-Respondent No. 1 in favour of one of the selectee. 8. The writ petition came up for consideration before this court and this court vide order dated 20th of May, 2011 directed respondents not to fill up three posts of Horticulture Development Officers in terms of Notification No. 05-PSC of 2009 dated 6.3.2009. 9. It also transpires from the perusal of the petition that the person in whose favour the selection has gone, had not been made party, constraining respondents 3 to 5 to lay a motion for impleadment which was granted vide order dated 26th of July, 2011. They have also laid a motion-CMP No. 3204/2011 for vacation of the order on the ground that the interim direction dated 20th of May, 2011 is adversely affecting them and the same has been passed without arraying them as party. 10. The decision of the committee having gone against the petitioners, the question for determination would be to see as to whether it is open for the petitioners to challenge the decision of the committee? And whether they have a prima-facie case in their favour? 11. For now, the vacation or otherwise of the interim direction dated 20th of May, 2011 has to be focused on and the essential ingredients, which one should be influenced with, primarily, are; prima-facie case, balance of convenience and irreparable loss. 12. Admittedly the selection list issued is in favour of respondents 3 to 5 and other persons who are there in the list but are not party before the court, because the selection itself is not under challenge. Thus prima-facie case is in favour of respondents 3 to 5. The balance of convenience is also in their favour and in case the interim direction is not modified, they will suffer irreparable loss which cannot be compensated later on. Virtually they have been deprived of their rights without them being party to the lis. 13. Thus prima-facie case is in favour of respondents 3 to 5. The balance of convenience is also in their favour and in case the interim direction is not modified, they will suffer irreparable loss which cannot be compensated later on. Virtually they have been deprived of their rights without them being party to the lis. 13. In the depicted background, I deem it proper to dispose of the Civil Miscellaneous Petitions by providing that selection-appointment of respondents 3 to 5 shall remain subject to outcome of main writ petition. 14. The interim direction dated 20th of May, 2011 is accordingly modified. 15. Both the CMPs are accordingly disposed of.