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2013 DIGILAW 428 (JK)

Mohd. Rafiq Baba v. State

2013-07-26

Hasnain Massodi

body2013
1. Petitioner claims to have responded to an Advertisement notice no NB-2682 dated 18.03.2010 issued on behalf of Director General, National Cadet Corps, published in a local daily on 19.03.2010, inviting applications from eligible candidates amongst others for the post of Lascars, Boat Keepers and Peons, District Cadre, Srinagar. The advertised posts being District cadre posts, the zone of consideration was restricted to the candidates belonging to District, Srinagar. Petitioner participated in the selection process. He did not find place in the select list notified by Group Commander, NCC Group Headquarter, Srinagar and published in a local daily on 04.04.2011. The selection list included the name of Sh. Waseem Raja S/o Abdul Ahad R/o Anzimar, Khanyar Srinagar under Open Merit Category and Sh. Niyaz Ahmad Wagay S/o Ali Mohammad Wagay R/o Abhama, Pulwama for the post of Boat Keeper, while petitioner was shown at Serial No. 1 in the waiting list. 2. Petitioner aggrieved with his non-selection and selection of respondent no. 4 against the post of Boat Keeper, has filed writ petition on hand. His case is that the post of Boat Keeper in terms of Advertisement Notice in question, is a District Cadre post and only a candidate from District Srinagar would be eligible for the post. It is pleaded that as respondent no. 4 hails from Village Abhama, District Pulwama and lacks eligibility, he could not have been allowed to participate in the selection process, much less to be selected against the aforesaid post. Petitioner claiming to be a resident of Tailbal, Wangunda, Shalimar, District Srinagar, insists that he deserved to be selected against the aforesaid post in place of respondent no. 4, who belongs to a different district and therefore not eligible in terms of advertisement notice. 3. Petitioner on the strength of averments made in the petition seeks a Writ of Certiorari, quashing the selection list issued by respondent no. 4 and published on 04.04.2011 and Writ of Mandamus commanding the respondents to maintain "his candidature" and not to operate the reservation quota in contravention of Rules. 4. The respondents oppose the writ petition on the ground that though initially shown as a District Cadre post, the post of Boat Keeper was later decided to be treated as Divisional Cadre post in view of the responsibilities of and duties performed by NCC Units spread over to more than one districts. 4. The respondents oppose the writ petition on the ground that though initially shown as a District Cadre post, the post of Boat Keeper was later decided to be treated as Divisional Cadre post in view of the responsibilities of and duties performed by NCC Units spread over to more than one districts. It is pleaded that in view of the decision to treat the post in question as a Divisional Cadre post, a selection committee headed by Group Commander, NCC and one member each from Education Department, National Cadet Corps, Directorate and office of Divisional Commissioner was constituted, to make the selection. The respondents claim that having regard to the mandate of SRO 294 of 2005 [Refer 2005 (4) JKS JK-112 : JKS Soft JKS/2707], one of the two advertised posts of Boat Keeper was reserved for Reserve Backward Area (RBA) candidates and the respondent no. 4 selected against the reserved post. The respondents deny that the petitioner was exposed to any hostile discrimination. They also deny that SRO 144 of 2008 [Refer 2008 (7) JKS JK-17 : JKS Soft JKS/314], amending SRO 294 of 2005 [Refer 2005 (4) JKS JK-112 : JKS Soft JKS/2707], had any role to play in the selection process, inasmuch as, SRO 144 of 2008 amended SRO 294 of 2005 [Refer 2005 (4) JKS JK-112 : JKS Soft JKS/2707], to the extent it relates to filling up of the posts in a cadre, by promotion. The respondent no. 4 opposes the writ petition on the grounds similar to the grounds urged in reply filed by the official respondents. 5. Petitioner in supplementary affidavit filed on 14.11.2011 questions composition of the selection committee constituted by the respondents to make the selection for advertised posts on the ground that in terms of Government Order no. 735-GAD of 2008 dated 30.05.2008 [Refer 2008 (7) JKS JK-117 : JKS Soft JKS/553], read with Government Order No. 731-GAD of 2010 dated 24.06.2010 [[Refer 2011 (13) JKS JK-75 : JKS Soft JKS/6935],, District Social Welfare Officer/Deputy Director Social Welfare, (Administration) of the respective Districts/Divisions are to be associated as members of District Level and Divisional Level selection committees respectively and that neither of the officers were associated by the respondents with the selection process. The selection made, according to the petitioner, because of improper constitution of selection committee is illegal and liable to be set aside. 6. The selection made, according to the petitioner, because of improper constitution of selection committee is illegal and liable to be set aside. 6. It is further pleaded that in terms of Jammu and Kashmir NCC (Subordinate) Rules, 1991 read with J&K Civil Services Decentralization and Recruitment Rules, 2010, a post of Lascar/Boat Keeper is a District Cadre post. In any case, any change in the cadre, according to the petitioner, was never notified. Petitioner insists that the change in cadre even if notified would amount to change in eligibility criteria in the middle of the selection process a course not permissible under Law. 7. I have gone through the pleadings and the record available on the file. I have heard learned counsel for the parties. 8. The respondents while admitting that the petitioner responded to the advertisement notice no. NB-2682 dated 18.03.2010 published on 19.03.2010 have taken the stand that he was considered for the post of Boat Keeper. The stand taken by the respondents is impliedly accept by the petitioner, inasmuch as, the petitioner has restricted his challenge to the selection of respondent no. 4 selected as Boat Keeper vide select list published on 04.04.2011. It is important to note that vide aforesaid notification select list as regards the post of Lascars and Peons was also published. Petitioner, however, has not questioned the select list to the extent it related to the candidates selected as Lascars and Peons. As regards selection made against two advertised posts of Boat Keepers also, challenge is thrown to the selection list to the extent of the candidate (respondent no. 4) selected under Reserve Backward Area Category. 9. The advertisement notice NB-2682 dated 18.03.2010, invited applications for two posts of Boat Keepers. The advertisement notice required the candidates to append Reserve Category Certificate with the application, leaving room for filling up the advertised posts from the Reserved Category candidates in terms of J&K Reservation Act, 2004 and J&K Reservation Rules, 2005. The recruitment proposed to be made was governed by J&K National Cadet Corps (Subordinate) Service Recruitment Rules, 1991. Rule 4 deals with strength and composition of the service. Rule 5 prescribes qualification and method of recruitment. In terms of Rule 4 the Government is given power to determine the permanent/temporary strength of the cadre and the nature of posts included therein from time to time. Rule 4 deals with strength and composition of the service. Rule 5 prescribes qualification and method of recruitment. In terms of Rule 4 the Government is given power to determine the permanent/temporary strength of the cadre and the nature of posts included therein from time to time. The initial strength of the cadre, however, is to be specified in Schedule I to the Rules. Rule 5 makes it mandatory for an aspirant for a post in any class, category or grade in the Service to possess qualification as laid down in Schedule II to the Rules. In terms of Schedule I, the post of Boat Keeper is to carry a pay scale of Rs.745-1025 (un-revised) and total number of the posts of Boat Keeper is 5, out of which in terms of J&K Reservation of Rules of 2005 (SRO 294 of 2005), one post (20% of sanctioned strength) is to be reserved for RBA Category. The respondents having regard to the mandate of SRO 294 of 2005 have filled up one of the two advertised vacancies of Boat Keepers from RBA candidates. 10. Petitioner as already pointed out applied under the Open Merit Category. He questions the selection process on the grounds of favouritism, nepotism, corrupt practice etc. But surprisingly has avoided to question selection of the candidate, namely, Waseem Raja S/o Abdul Ahad R/o Anzimar Khanyar, Srinagar, selected as Boat Keeper under Open Merit Category and avoided to array him as a respondent in the petition. The petitioner, having grievance about mode and manner of selection, ought to have questioned selection of the candidate selected as Boat Keeper under Open Merit Category i.e. the category under which the petitioner applied for the advertised vacancy. Petitioner without questioning the selection of the candidate selected under the category under which petitioner participated in the selection process has assailed selection of respondent no. 4 who admittedly applied under Reserved Category, on the ground that he belonged to a district different from one where the advertised post was available. Even if, petitioner's case is accepted and selection of respondent no. 4 who admittedly applied under Reserved Category, on the ground that he belonged to a district different from one where the advertised post was available. Even if, petitioner's case is accepted and selection of respondent no. 4 set aside, the petitioner is not to draw any benefit inasmuch as the post that may fall vacant is to go to the RBA candidate, next in the queue and in the event no such candidate is available, to be advertised and filled up from amongst the RBA candidates in accordance with Rules. 11. The petitioner, for the reasons discussed, does not have locus standi to question selection of respondent no. 4 selected as Boat Keeper under RBA Category when the petitioner on his own showing participated in the selection process under Open Merit Category. The grounds urged in the petition regarding composition of the selection committee, methodology adopted and eligibility of respondent no. 4 in terms of J&K National Cadet Corps (Subordinate) Service Recruitment Rules, 1991 and terms and conditions of the advertisement notice, in the said background, do not merit any consideration. 12. There is no specific challenge by the petitioner to the selection of respondent no. 4 on the ground that post under RBA Category was not available and the respondent no. 4 could not have been considered and selected under RBA Category. The only plea raised is that the respondents are "operating reservation quota in contravention of the Rules". Petitioner relies on SRO 144 of 2008 dated 28.05.2008 to reinforce his claim. However, SRO 144 of 2008 is not at all relevant to the present controversy as it deals with Rules 6, 7, 9 & 10 of J&K Reservation Rules, 2005 (SRO 294 of 2005) and not to Rule 4 that makes it mandatory to adhere to the quota fixed for each of the reserved categories. 13. For the reasons discussed above, the petition is bereft of any merit and is accordingly dismissed. Interim orders, if any, are recalled.