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2013 DIGILAW 445 (JK)

Pawan Kumar and others v. State and others

2013-08-05

M.M.KUMAR, TASHI RABSTAN

body2013
Tashi Rabstan, J.;— 1. By the medium of this appeal, writ petitionersappellants have assailed the judgment of the learned Single Judge dated 20.10.2011 passed in SWP No. 03/2010, titled as Pawan Kumar and others v. State of J&K and others along with other connected petitions whereby and whereunder the learned Single Judge of this Court has dismissed the writ petitions being devoid of any merit. 2. It is relevant to notice the resume of the facts as emerge from the impugned judgment and the pleadings of the parties. 3. Vide Advertisement Notification No.02-PSC of 2008 dated 18.02.2008, 321 posts of Dental Surgeons were notified for selection, and writ petitioners-appellants being eligible against the said posts also applied along with other eligible candidates. They participated in the selection process, but, could not be selected. Writ petitioners-appellants challenged the selection of the selectees mainly on the following grounds:- (i) That the selection in question was tainted with malafides inasmuch most of the selectees were those who were relatives of either members of the Commission or were kith and kin of the Ministers and higher ups in the bureaucracy; (ii) That the select list could not be construed and justified as one of the members of the Selection Committee, namely, Sh. R.L.Bharti, did not sign the select list; (iii) That there had been tempering in the award rolls; and (iv) That the whole selection was vitiated as the same was made under Rule 51 of J&K Public Service Commission (Business and Procedure) Rules, 1980 which Rule, was framed by the Public Service Commission contrary to the law laid down by the Hon’ble Apex Court in Dr. Inder Parkash Gupta s case. 4. Learned Single Judge after hearing rival contentions put forth by the learned counsel appearing for the parties and minutely going through the selection record, particularly, with regard to the allegation leveled in the writ petition came to the following conclusions :- (a) That as per the record of award sheet of marks as produced by the Public Service Commission (for short, Commission), it was apparent that the candidates had been awarded in accordance with Rule 51 of J&K Public Service Commission (Business and Procedure) Rules, 1980 (for short, Rules of 1980) as amended/recasted vide Notification No.164-PSC of 2004 dated 25.10.2004. Learned Single Judge has also found the allegations of favoritism shown to certain candidates who were alleged by the writ petitioners to be close relatives either of the members of the Selection Committee or of other members of Commission, were without any basis and were thus incorrect; (b) That from the perusal of the record and taking into consideration stand of the Commission, it was also noticed that Dr. Tara Singh member of the Commission was neither member of the Selection Committee nor he ever participated in the deliberation pertaining to the selection process in question, as such, there was no occasion for Dr. Tara Singh to influence the selection in any manner as has been alleged by the writ petitioners. Similarly, the allegation of some of the selected candidates, who were close relatives of the Chairman of the Selection Committee, Dr. N.A.Jan was also found to be factually incorrect as Dr. Jan by filing affidavit has refuted all these allegations and there was nothing on record to disbelieve the affidavit of Dr. Jan. Learned Single Judge, therefore, concluded that the allegations were only made for the sake of allegations and were not supported by any material. Similar was the case of allegations leveled against certain Ministers and the persons having say in the corridors of power. (c) That learned Single Judge also did not agree with the contention of the writ petitioners that whole selection was vitiated for the reasons that one of the members of the Selection Committee, namely, Sh. R.L.Bharti, had not signed the select list. Learned Single Judge after perusal of the record came to the conclusion that although the select list, which should have been ordinarily signed by all the members, was not signed by one of the members, namely, Sh. R.L.Bharti, yet the same could not be reason enough to upset the whole selection which otherwise had been made in accordance with the rules. It was noticed by the learned Single Judge that the candidates were assessed by the Selection Committee in the viva voce, but, the marks were awarded only by the Expert and there was concurrence of Chairman of the Committee Dr. N.A.Jan. It was further noticed and was rightly contended by counsel for the writ petitioners that Sh. It was noticed by the learned Single Judge that the candidates were assessed by the Selection Committee in the viva voce, but, the marks were awarded only by the Expert and there was concurrence of Chairman of the Committee Dr. N.A.Jan. It was further noticed and was rightly contended by counsel for the writ petitioners that Sh. R.L.Bharti had not signed the final award sheet, but, it appears that with a view to overcome this difficulty, the matter was considered by the Commission in its extra ordinary meeting held on 15.12.2009, whereby decision was taken to release the select list and to such decision Sh. R.L.Bharti was also the Signatory. There is another decision taken by the Commission on 19.12.2009 in which after due deliberation, final decision was taken to release the select list. Since Sh. R.L.Bharti had participated in the deliberation and was also the signatory to such decisions, as such, irregularity, if any, which had surfaced due to non-signing of the select list came to be regularized and the select list could not be found fault with which ultimately had the concurrence of Sh. R.L.Bharti. (d) That with regard to Rule 51 of the Rule of 1980, learned Single Judge concluded that since the writ petitioners had participated in the selection being fully aware of the provisions of Rule 51 and yet took chance in selection, as such, could not be allowed to turn around and assail the selection criteria as contained in Rule 51 of Rules of 1980 only for the reasons as they had not been able to make it to the select list. 5. Judgment of the learned Single Judge has been assailed by the writ petitioners-appellants in this appeal primarily on the grounds that the select list as well consequent appointment orders issued in favour of selected candidates were bad in the eyes of law for the reasons that the select list has been prepared by only two members of the Selection Committee whereas third member Sh. R.L.Bharti though participated in the process of viva-voce, did not sign the same for the reasons that the same had not been drawn in accordance with law. The basis of assessment had thus changed as instead of three, only two members of the Selection Committee had assessed the candidates during viva-voce and assessment made by Sh. R.L.Bharti was not available. R.L.Bharti though participated in the process of viva-voce, did not sign the same for the reasons that the same had not been drawn in accordance with law. The basis of assessment had thus changed as instead of three, only two members of the Selection Committee had assessed the candidates during viva-voce and assessment made by Sh. R.L.Bharti was not available. It was contended by learned counsel for the writ petitioners-appellants that failure of one of the members to sign the select list was sufficient to vitiate the whole selection process. 6. Learned counsel for the writ petitioners-appellants has also insisted us to minutely peruse the selection records to find out the reasons for the dissent made by Sh. R.L.Bharti. 7. We have carefully gone through the record produced by Sh. F.A.Natnoo, learned counsel for the Commission and we find that the learned Single Judge did not commit any error to reach the conclusion that select list was not vitiated on account of non-signing of the same by Sh. R.L.Bharti, particularly, when Commission had subsequently considered the matter in its extra ordinary meeting and taken unanimous decision to release the select list. Sh. R.L.Bharti participated in that meeting and duly signed the select list. It is no doubt an irregularity but it is not fatal to the selection. It has been cured by subsequent signing the proceedings. 8. The selection has been found to be in consonance with law on all other grounds and irregularity pointed out by the learned counsel for the writ petitioners-appellants does not go to the root of the selection, particularly, when the same has been cured subsequently by Sh. R.L.Bharti himself by becoming party to the ultimate decision that was taken by the Commission to release the select list. 9. We have also examined the pleadings of the parties and also gone through the judgment impugned minutely. In our view, there is no material to interfere with the well reasoned judgment of the learned Single Judge. The appeal does not merit admission. Accordingly, the same is dismissed along with connected CMA(s). 11. Registry to return the record to learned counsel for the respondent-Public Service Commission.