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J&K High Court · body

2013 DIGILAW 427 (JK)

Ashiq Hussain v. State

2013-07-26

Hasnain Massodi

body2013
1. Chief Education Officer, Budgam-respondent no. 3 in the present petition, vide Advertisement Notification no. 01 of 2011 dated 10.01.2011, invited applications from the eligible candidates for Class IV posts available in the Education Department, District-Budgam. Petitioner and respondent no. 5 were amongst the candidates who applied for the advertised post under Physically Handicapped Category (PHC). The selection committee constituted to make the selection headed by respondent no. 3, in view of huge response to the advertisement notice short listed the candidates in the ratio of 1:5, on the basis of their merit in qualifying examination on 16.09.2012, the list of short listed candidates under various categories included Physically Handicapped Category, was published in a local daily. In all 150 candidates were short listed under various categories for 30 advertised vacancies, out of whom 05 candidates were short listed for 01 vacancy available under Physically Handicapped Category. 2. Petitioner with 43.24 marks was one amongst the 05 candidates short listed under Physically Handicapped Category and appeared in the interview before the selection committee on 19.09.2012. The respondent no. 3 vide notification no. 04 of 2011 published on 21.09.2011 called respondent no. 4 for interview under Physically Handicapped Category and held her interview on 21.09.2012 itself. The respondent no. 4 on the basis of her merit in qualifying examination secured 42 points and did not qualify for short listing having regard to the cut off points i.e. 42.91, fixed while short listing the candidates, notified on 16.09.2012. The respondent no. 4, thereafter, published the selection list on 25.09.2012, wherein respondent no. 5 was shown to have been selected against 01 post under Physically Handicapped Category. 3. Petitioner, aggrieved with Notification no. 04 of 2011 dated 21.09.2011, whereby respondent no. 5 was short listed under Physically Handicapped Category for the advertised post and also with Notification dated 25.09.2012, whereby selection list has been notified and petitioner declared selected for the advertised post under Physically Handicapped Category, has filed writ petition on hand. Petitioner, on the grounds urged in the writ petition seeks quashment of both the notifications and a direction to the respondents 1 to 4 to select and appoint the petitioner for Class IV vacancy advertised vide Notification no. 01 of 2011 dated 10.01.2011. 4. Petitioner's case is that respondent no. 4 after finalization of the selection process on 19.09.2012, did not have a right to short list respondent no. 01 of 2011 dated 10.01.2011. 4. Petitioner's case is that respondent no. 4 after finalization of the selection process on 19.09.2012, did not have a right to short list respondent no. 5 for interview much less select her under Physically Handicapped Category for the advertised post. The exercise, according to the petitioner, has been done with an oblique motive to benefit respondent no. 5 and deprive the petitioner of his right to be considered and thereafter select for the advertised post. It is urged that respondent no. 5 with 42 points did not have a right to be considered against the post and respondents did not only short list respondent no. 5, unmindful of her merit below the cut off merit but also selected her, ignoring other candidates short listed under Physically Handicapped Category ahead of respondent no. 5. 5. Respondents question the petitioner's right to maintain the writ petition, pleading that petitioner does not have a right to be selected against the advertised post and that his right is one of consideration and the petitioner has been considered and allowed to participate in the selection process. It is pleaded that the exercise to shift one of the candidates short listed under Physically Handicapped Category to the Open Merit Category was not restricted to Physically Handicapped Category alone and that 14 other candidates under RBA Category were likewise shifted to Open Merit Category. Respondents, explaining the reason for such an exercise state that 14 candidates under RBA Category and 01 candidate under Physically Handicapped Category were shifted to RBA Category, as points secured by these candidates were higher than the points secured by the last candidate selected under Open Merit Category. Respondents plead that on shifting of 14 candidates under RBA Category and 01 candidate, namely, Masrat Akhter from Physically Handicapped Category to Open Merit Category, candidates in respective categories next in queue were short listed and their names notified vide notification dated 21.09.2011. It is denied that notification no. 04 of 2012 dated 21.09.2012 was issued after the selection process was over. 6. Respondents insist that decision to this effect was taken unanimously by the selection committee on 19.09.2012 itself and the list of candidates to be short listed under RBA Category and Physically Handicapped Category was thereafter notified vide Notification No. 04 of 2012 dated 21.09.2012. 04 of 2012 dated 21.09.2012 was issued after the selection process was over. 6. Respondents insist that decision to this effect was taken unanimously by the selection committee on 19.09.2012 itself and the list of candidates to be short listed under RBA Category and Physically Handicapped Category was thereafter notified vide Notification No. 04 of 2012 dated 21.09.2012. It is also denied that the decision was an afterthought, made after the selection process was finalized or that the decision was taken, to benefit respondent no. 5. It is pleaded that respondent no. 5 in all obtained 55.33 points as against 49.70 points secured by the petitioner and, therefore, was selected on the basis of her higher merit under Physically Handicapped Category. Respondent no. 5 resist that the petition on the same grounds, it is opposed by respondents 1 to 4 & 6. 7. I have gone through the pleadings, as also the record made available by Mr. S. S. Naik, learned AAG. I have heard learned counsel for the parties. 8. Perusal of the record reveals that respondent no. 4 on 19.09.2012, i.e. the date petitioner and other candidates appeared in interview, took a decision to shift Masrat Akhter appearing at Serial No. 1 under Physically Handicapped Category to Open Merit Category. The decision was taken as the last candidate under Open Merit Category was found to have secured lesser points than Masrat Akhter. A similar exercise was done in the case of RBA Category, 14 candidates under RBA Category were found to have more merit than the last selected candidate under Open Merit Category. In order to maintain the ratio of 1:5, under RBA and Physically Handicapped Categories, the candidates who had applied under two categories but had lesser points than the cut off merit for short listing earlier, were also short listed and called for interview. Respondent no. 5 incidentally was next in the queue i.e., at 6th position under Physically Handicapped Category and got upgraded to 5th position after Masrat Akhter at Serial No. 1 in the short list under Physically Handicapped Category was shifted to Open Merit Category. She was, accordingly, called for interview and on the strength of her merit in academic qualification and marks secured in interview she was selected against the sole vacancy under Physically Handicapped Category. 9. She was, accordingly, called for interview and on the strength of her merit in academic qualification and marks secured in interview she was selected against the sole vacancy under Physically Handicapped Category. 9. The record would, therefore, shows that the decision was not taken after the selection process was finalized, as is being projected by the petitioner. The record does not also depict any favouritisms or mala fides on part of respondents 1 to 4 & 6. The petitioner has been considered for the advertised post alongside respondent no. 5 and has lost the race only because his merit and that of other candidates appearing under Physically Handicapped Category was inferior to or lesser than the merit of respondent no. 5. The decision to short list respondent no. 5 cannot be said to amount to change in eligibility criteria in the middle of selection process, inasmuch as, respondent no. 4 adhered to the eligibility criteria and to maintain the ratio of 1:5, considered the candidate next in the queue in the order of merit because of shifting of the candidate at the top of the list from Physically Handicapped Category to Open Merit Category. 10. This apart, the Notification dated 25.09.2012 is only the provisional select list. It left room for objections, if any, from the candidates aggrieved with the provisional selection of candidate under any of the categories including Physically Handicapped Category. Petitioner had a right to file his objections to the provisional selection of respondent no. 5, an opportunity that the petitioner has chosen not to avail and instead rushed to invoke writ jurisdiction of the Court at a premature stage. 11. For the reasons discussed above, the writ petition is without any merit and is, accordingly, dismissed. Interim direction is recalled. Respondents 1 to 4, are free to act on the provisional select list notified vide Notification dated 25.09.2012 in accordance with Rules. 12. Dismissed.