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2013 DIGILAW 567 (JK)

Jasvinder Singh v. High Court Of J&K

2013-09-20

ALI MOHAMMAD MAGREY

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1. This petition seeks issuance of writ of Certiorari for quashing the select list of the candidates for the posts of orderlies formulated pursuant to advertisement notice no. 691 dated 30.11.2009 issued by respondent no. 2 with direction to re-advertise the posts in question and initiate the selection process strictly in compliance with the prevailing law of the land. 2. It is averred in the petition that vide advertisement notice dated 30.11.2009, respondent no. 2, i.e., the Registrar General of the High Court, invited applications from eligible candidates for the posts of orderlies. In all 15 posts were advertised which included 8 posts in the Open Merit Category, 3 posts reserved for RBA, 2 posts for SC category and 1 post each for ST and LAC candidates. Petitioner no. l, being a 9th standard pass; petitioner no. 2, a Matriculate, and petitioner no. 3, being a Middle Pass, also applied and they were duly interviewed. It is alleged that for purpose of recruiting blue eyed persons as orderlies, respondent no. 2 conducted the selection process which remained closely guarded secret and respondents 3 to 42 were clandestinely selected. The selections so made are challenged on the grounds that as against 15 advertised posts, respondent no. 2 selected and appointed 40 candidates; that the select list was not publicized; that the selections were made in violation of express mandate of reservation policy, inasmuch as the select list was not publicized and that select list does not disclose the names of persons selected in RBA category; that petitioner no. 2, though an RBA category candidate, has been treated at par with open merit candidates; and that it is settled law that selections exceeding the advertised number of posts is void. 3. The private respondents have chosen not to file any counter. Respondent no. 2 in his reply has stated that in the advertisement notice the number of posts was mentioned as 15, but a note was appended thereto clearly mentioning that the number of vacancies may increase or decrease, depending upon the availability of posts at the time of making selections. Therefore, no illegality was committed in that behalf. It is also stated in the reply that petitioners did appear in the interview but they failed to make the grade. Therefore, no illegality was committed in that behalf. It is also stated in the reply that petitioners did appear in the interview but they failed to make the grade. It is further averred in the reply that pursuant to the selection process candidates found possessing requisite merit were selected and that there was no question to keep the selection process as secret. It is also stated that the select list was available in the office of respondent no. 2. 4. I have heard learned counsel for the parties, perused the material brought on record and considered the matter. 5. At the hearing the main, rather the sole thrust, of learned counsel for the petitioners was that the impugned selections are liable to be quashed on the ground that selections and appointments made in excess of the advertised vacancies is violative of Articles 14 and 16 of the Constitution. To buttress his argument, learned counsel for the petitioners cited and relied upon Rakhi Ray v. High Court of Delhi, AIR 2010 SC 932 ; State of U.P. v. Rajkumar Sharma, (2006) 3 SCC 330 ; and Arup Das v. State of Assam, 2012 (2) Supreme 141 . 6. I have perused the above decisions of the Supreme Court. These decisions have been rendered on the principle that if posts were allowed to be filled in excess of the advertised number of posts, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled, could have also applied if they had known that the other vacancies would also be under consideration for being filled up. In the present case, the petitioners had duly applied and participated in the selection process, but failed to make the grade. It is not that they had been prevented from offering their candidature or that they had not been considered alongwith other eligible candidates. Therefore, it cannot lie in their mouth that their rights under Articles 14 and 16 of the Constitution have been violated. It is not that they had been prevented from offering their candidature or that they had not been considered alongwith other eligible candidates. Therefore, it cannot lie in their mouth that their rights under Articles 14 and 16 of the Constitution have been violated. The above decisions are also distinguishable on facts, inasmuch as in Rakhi Ray v. High Court of Delhi and Arup Das v. State of Assam (supra), it were the petitioners who had sought directions from the Court that they be ordered to be appointed over and above the number of advertised posts. The plea of the petitioners therein was contested by the respective respondents. It is in that context that it was held that vacancies cannot be filled up over and above the number of vacancies advertised. 7. In the instant case, it was provided in the advertisement notice itself that the number of vacancies may increase or decrease, depending on their availability at the time of selection. Learned counsel for respondents 1 and 2 submitted that the impugned selections cannot be faulted since there was a variation clause duly provided in the advertisement notice. The learned counsel in this behalf cited and relied upon the decision of the Supreme Court in Suvidya Yadav v. State of Haryana, (2002) 10 SCC 269 , where, in almost similar circumstances, the Supreme Court has upheld the selections made in excess of advertised posts. Learned counsel has also cited and relied upon the decision of the Supreme Court in Sureinder Singh v. State of Punjab, (1997) 8 SCC 488 , as also to a Division Bench judgment of this Court in LPA nos. 168/2002 & 303/2002, Dr. Arun Gandotra v. State of J&K, decided on 05.09.2013. In Dr. Arun Gandotra v. State of J&K, advertisement notice had been issued only for two vacancies, but selections and appointments were made on five posts. The appointments made in excess of the advertised posts were challenged before the learned Writ Court. The learned Writ Court dismissed the writ petition vide judgment dated 18.03.2002. Against the dismissal of the writ petition, the petitioners therein filed letters patent appeal. Relying on the decision of the Supreme Court in Sureinder Singh v. State of Punjab (supra), the Division Bench dismissed the Letters Patent Appeal. 8. In view of the above, this petition deserves to be dismissed. It is as such dismissed alongwith the connected CMA. Against the dismissal of the writ petition, the petitioners therein filed letters patent appeal. Relying on the decision of the Supreme Court in Sureinder Singh v. State of Punjab (supra), the Division Bench dismissed the Letters Patent Appeal. 8. In view of the above, this petition deserves to be dismissed. It is as such dismissed alongwith the connected CMA. 9. However, no order as to costs.