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2013 DIGILAW 615 (JK)

Aijaz Muzafar Runga v. State

2013-10-10

BANSI LAL BHAT

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1. The case of petitioner briefly put is that being eligible he responded to Notification No. 1 of 2008 dated 01.1.2008 issued by Deputy Commissioner, Badgam inviting applications for filling up of vacancies of Dental Surgeons in District Badgam on contractual basis. Selection panel was drawn up when selection process was complete. Petitioner figured at serial no. 5. However, he was not engaged, as he was found overage. Despite making representations to Government to the effect that similarly situated candidates have been considered, petitioner was not engaged. He, alongwith another candidate, approached this Court by filing SWP No. 1738/2009. The writ petition was disposed of by issuing a writ of mandamus directing respondents to consider the claim of writ petitioners for according relaxation in upper age limit at par with similarly circumstanced persons and in the event of such relaxation being accorded, consider the writ petitioners for being appointed on contractual basis. Since no consideration was accorded to the case of petitioner herein, he filed contempt petition No. 478/2011 in which respondents filed statement of facts together with Government Order No. 12-GAD of 2012 dated 3.1.2012 . It was pleaded by respondents that consideration had been accorded to the case of petitioner in light of aforesaid Government Order. Feeling aggrieved of aforesaid Government Order, petitioner has filed instant writ petition assailing the same as being arbitrary, illegal and violative of constitutional guarantees. 2. Respondents 1 and 2, in their reply, pleaded that Deputy Commissioner, Badgam had initially forwarded a select list of 31 candidates for appointment on contractual basis as Dental Surgeons. However, only 26 names were forwarded to Health and Medical Education Department for issuance of orders of engagement. Petitioner did not figure in the list of 26 candidates recommended for engagement on the ground that five candidates including the petitioner had crossed upper age limit for entering into government service. Deputy Commissioner, Badgam was asked to explain position. He reported that five over-aged candidates had made it to the selection list by virtue of their superior position in inter se merit (basic merit + performance in viva voce). The matter was taken up with Health and Medical Education Department which recommended relaxation of upper age bar in favour of these candidates. He reported that five over-aged candidates had made it to the selection list by virtue of their superior position in inter se merit (basic merit + performance in viva voce). The matter was taken up with Health and Medical Education Department which recommended relaxation of upper age bar in favour of these candidates. However, Government did not find any merit for considering grant of relaxation in their upper age bar as they were neither exceptionally qualified nor outstanding candidates as mandated by Government Order No. 1500 GAD of 2000 dated 21.12.2000. Petitioner and another candidate filed SWP No. 1738/2009 before this Court which was decided in their favour. Respondents were directed to consider and take decision on the claim of writ petitioners for relaxation of upper age bar and consequent appointment on contractual basis. The case was examined and consideration accorded to the case of instant petitioner. However, no new ground/justification was found which could warrant any change in the decision taken by Government. It is further pleaded that the petitioner was not similarly situated with those candidates in whose favour age relaxation was considered and granted. It is pointed out that in earlier cases relaxation granted was approximately for three years but in case of petitioner, relaxation required was exceeding six years as on 01.1.2012. It is further pleaded that after the enactment of Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, there is complete ban on contractual appointments. Respondents further pleaded that competent authority has already granted relaxation in upper age bar by 2 years, 4 months and 10 days in favour of petitioner for his contractual appointment as Dental Surgeon in District Kargil. He availed the said benefit and again applied in District Badgam where he secured a superior position in inter se merit. However, relaxation in upper age was not approved by the competent authority and the same has been rejected. In regard to respondent-4, it is pleaded that no relaxation had been sought by the selection/appointing authority in his case and no such relaxation was granted to respondent-4. It is vehemently denied that any relaxation was granted in upper age bar for six years. It is denied that the petitioner was similarly placed with those candidates in whose favour age relaxation was considered. 3. It is vehemently denied that any relaxation was granted in upper age bar for six years. It is denied that the petitioner was similarly placed with those candidates in whose favour age relaxation was considered. 3. Respondents-1 and 2 have filed supplementary affidavit in support of their reply giving details of cases in which relaxation has been granted in upper age limit in respect of seven candidates (Dental Surgeons) belonging to different districts. It is deposed on oath that latest consideration to the case of petitioner has been accorded in the year 2012 but relaxation has not been agreed to as it involved relaxation of 6 years, 4 months and 10 days as on 01.1.2012. 4. Heard and considered. 5. The instant case brings to fore insensitivity on part of authorities in dealing with the matters of public employment. In the wake of an eloquent finding of this Court in SWP No. 1738/2009 that the writ petitioners in the writ petition form a class alongwith all those persons in whose favour approval was given by the Government for relaxation in upper age limit, the petitioner cannot be discriminated against and it was imperative upon respondents to given uniform treatment to all similarly circumstanced persons. The dictum of this Court is "loud and clear." 6. In the facts and circumstances of this case it appears that the petitioners have been subjected to invidious discrimination. This court is duty bound to remedy the wrong meted out to the persons by the State and its authorities." 7. In-spite of this finding, respondents embarked upon a futile exercise which appears to have been undertaken only to defeat the judgment rendered in SWP No. 1738/09. It is ridiculous on part of the respondents to plead that the petitioner required relaxation of 6 years, 4 months and 10 days as on 01.1.2012 when the selection process related to the year 2008 and the relevant date for determining age of petitioner was 01.1.2008 in terms of Notification No. 1 of 2008 dated 01.1.2008. Respondents have placed reliance on Annexure-R-1 which incorporates the factum of upper age relaxation required in case of seven left out candidates with petitioner figuring at serial no. 6 in whose case age was required to be relaxed by 2 years, 4 months and 10 days as on 01.1.2007. Respondents have placed reliance on Annexure-R-1 which incorporates the factum of upper age relaxation required in case of seven left out candidates with petitioner figuring at serial no. 6 in whose case age was required to be relaxed by 2 years, 4 months and 10 days as on 01.1.2007. As per Government Order No. 12 GAD of 2012 dated 3.1.2012, petitioner's name was incorporated at Serial No. 1 of the left out candidates whose age was required to be relaxed by the same period as on 01.01.2008. There appears to be some contradiction inter se Annexure R-1 to supplementary affidavit of respondents 1 and 2 and Government order No. 12 GAD of 2012 dated 3.1.2012 . This may probably be on account of some error in calculation. Be that as it may, period for relaxation in age of petitioner had to be determined with reference to 1.1.2008 in terms of Notification No. 1 of 2008 dated 1.1.2008 which, in any case did not exceed 2 years, 4 months and 10 days. On their own showing respondents have relaxed age bar approximately by 3 years in earlier cases. This has specifically been pleaded in para-4 of objections filed by respondents 1 and 2. Thus, there was no justification in declining relaxation of age bar in favour of petitioner when the same did not exceed 2 years, 4 months and 10 days on the relevant date. It was not permissible for respondents to treat "1.1.2012" as the relevant date for consideration of relaxation of age bar which was not only repugnant to the settled legal position but also ran parallel to the criteria adopted for relaxation of same period in favour of petitioner previously for his engagement in district Kargil. 8. Viewed thus, it is manifestly clear that petitioner has become victim of official apathy and insensitiveness on part of those who, failed to understand what "uniformity" conveys. There is no hesitation in holding that the petitioner has been discriminated against and equal treatment with those similarly situated, has been denied to him. There is clear infringement of Articles 14 and 16 of the Constitution of India. Petitioner is entitled to the relief claimed. The impugned order dated 3.1.2012 is legally unsustainable. 9. Writ petition is allowed. There is no hesitation in holding that the petitioner has been discriminated against and equal treatment with those similarly situated, has been denied to him. There is clear infringement of Articles 14 and 16 of the Constitution of India. Petitioner is entitled to the relief claimed. The impugned order dated 3.1.2012 is legally unsustainable. 9. Writ petition is allowed. Let writ of certiorari, quashing impugned order dated 3.1.2012 and writ of mandamus, commanding respondents to issue appointment order in favour of petitioner in consequence of selection list prepared in pursuance of Notification No. 1 of 2008 dated 1.1.2008 after giving relaxation in upper age limit as indicated in the judgment.