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2013 DIGILAW 626 (JK)

Farooq Ahmad Bhat v. State

2013-10-28

Mansoor Ahmad Mir

body2013
1. By the medium of this writ petition, the petitioner has sought writ of mandamus commanding the respondent No. 3 to select and recommend the petitioner for appointment to the post of Medical Record Officer with a prayer to direct the respondents 1 & 2 to consider the case of the petitioner for appointment against the said post on the basis of such recommendations to be made by the Jammu & Kashmir Public Service Commission, with all consequential benefits. 2. Precisely, the edifice of the petitioner's case is founded on the facts that he has participated in the selection process pursuant to notification bearing No. 20-PSC of 2001 dated 30.07.2001, and that he was selected but the selection list could not be issued because of the restraint order passed by this Court in a writ petition filed by one Firdousa Akhter. It is stated that the post which was notified in terms of the aforesaid notification is still vacant and the petitioner is the only candidate who is entitled to selection / appointment against the post in question. Paragraphs 09 and 10 of the writ petition, which depict the entire controversy, are quoted hereunder: "09. That all the three writ petitions were pending before this Hon'ble Court which resulted in non-consideration of the panel framed by the J&K PSC and during the said period the candidates figuring at S. No. 2 and 4 were adjusted against the post of Medical Record Officers a Government Medical College Jammu and JVC Srinagar and the candidate figuring at S.No.1could not produce the relevant certificates. It was only the petitioner who was required to be recommended by the PSC and consequent thereto be appointed against the post in question on the basis of his merit and suitability as determined by the PSC at the time of conduct of the interview against the post in question. It is essential to state here that the recommendations in favour of the petitioner could not be issued because of the reason that the post was held by the said Firdousa Akhter under and in terms of the direction passed by this Hon'ble Court. 10. It is essential to state here that the recommendations in favour of the petitioner could not be issued because of the reason that the post was held by the said Firdousa Akhter under and in terms of the direction passed by this Hon'ble Court. 10. That as the writ petitions filed by the said Firdousa Akhter were pending before this Hon'ble Court and the pendency of the same was directly effecting the rights of the petitioner, the petitioner through the medium of an application which came to be registered as 1884 of 2004 sought impleadment as party respondent in the writ petition filed by the said Firdousa Akhter. Copy of the application as filed by petitioner is placed on record as Annexure P-7. On consideration of application as filed by the petitioner, this Hon'ble Court in acceptance to the application was pleased to implead the petitioner as a party respondent in the matter. The writ petitions filed by the said Firdousa Akhter were consider by this Hon'ble Court and this Hon'ble Court under and in terms of its order dated 05.08.2008 dismissed all the three writ petitions filed by said Firdousa Akhter. The copy of the Judgment and order passed by this Hon'ble Court on 05.08.2008 in writ petitions filed by said Firdousa Akhter is placed on record as Annexure P-8". 3. Respondents have filed the reply and have resisted prayers as well as averments made in the writ petition. Respondents in their reply have specifically averred in their reply affidavits that the petitioner has not participated in the selection process drawn by the respondents in terms of notification bearing No. 02-PSC of 2002 dated 09.01.2002. Thus he has no right to seek consideration for selection / appointment to the post in question. 4. Apart from what has been stated hereinabove, what emerges from the record is that in response to the writ petitions filed by one Firdousa Akhter, the petitioner has laid a motion in one of her writ petition bearing SWP No. 1358/2001 titled Firdousa Akhter v. State of J&K and others for his impleadment which was allowed in terms of order passed by this Court on 20.12.2006. The said writ petition came to be dismissed vide judgment and order dated 05.08.2008, thus respondent No. 3 was under a legal obligation to issue the select list and make recommendations to the State for appointment. 5. The said writ petition came to be dismissed vide judgment and order dated 05.08.2008, thus respondent No. 3 was under a legal obligation to issue the select list and make recommendations to the State for appointment. 5. What emerges further is that in other two writ petitions bearing SWP Nos. 1801/2000 and 158/2001, the petitioner has not laid any motion for his impleadment. In all the three writ petitions the petitioner therein had sought writ of mandamus to command the respondents to allow her to continue on the post and had also sought quashment of the communications/ orders impugned in the said writ petitions. 6. It needs a mention here that the petitioner of aforementioned writ petitions had neither questioned the advertisement notice No. 20-PSC of 2001 dated 30.07.2001 nor 02-PSC of 2002 dated 02.01.2002. Thus what is revealed is that the selection process drawn in terms of the above said notification was not subject matter of that lis. 7. The argument of Mr. Jahangir Iqbal, learned counsel for the petitioner is misconceived for the following reasons. The motion which he had laid for impleadment in SWP No. 1358/2001, therein he has not averred that the petitioner, Farooq Ahmad Bhat, has competed in the selection process in terms of notification No. 20-PSC of 2001 dated 30.07.2001, thus he be arrayed as a party-respondent. But what he has stated is that he was in position in the same manner as of the writ petitioner of writ petitions, Firdousa Akhter. It is apt to reproduce paragraphs 1 & 2 of the CMP No. 1884/2004. "1. That the applicant herein is trained Medical record technician and besides that he is post graduate in Economics. The applicant has more than ten years experience in handling medical records. The applicant is presently working as MRT in Govt. Bone and joint Hospital Srinagar. Therefore on the basis of said background the applicant has accrued right to be considered for the post of Medical Record Officer and he is also eligible for competing process of selection for the said post under direct recruitment. 2. The applicant is presently working as MRT in Govt. Bone and joint Hospital Srinagar. Therefore on the basis of said background the applicant has accrued right to be considered for the post of Medical Record Officer and he is also eligible for competing process of selection for the said post under direct recruitment. 2. That the petitioner has filed the above writ petition and she was actually working as Senior Assistant who has been given charge of the post of Medical Record Officer in gross violation of the rules and post deserves to be filled-up under rules, the petitioner has been given undue benefit, but because of interim orders passed by this Hon'ble Court the petitioner is continuing against the Medical Record Officer post and same is not being filled-up for last four years, which has resulted in violation of infringement of the rights of the applicant who deserves to be considered against the said post and if the said post is to be filled-up by promotion then the applicant is having first preferential right over the said post. The petitioner has no right of promotion against the said post and she has been stepped-up by three steps which action is totally illegal. Hence on these reasons the application deserves to be arrayed as respondent in the writ petition filed by writ petitioner." 8. Now the question which arises for consideration is as to whether the petitioner can seek selection on the ground of his participation in the selection process drawn in terms of notification No. 20-PSC of 2001 which was not taken to its logical end because of so many factors and circumstances read with the fact that respondent No. 3 has issued fresh advertisement notice No. 02 of 2002, wherein it was specifically mentioned that all those candidates who have applied in terms of advertisement notice No. 20-PSC of 2001 for the post in question have not to apply afresh, meaning thereby, that all those candidates who have already applied had to undergo selection process which was drawn in terms of advertisement notification No. 02-PSC of 2002. It is advantageous to reproduce the contents of the advertisement notice alongwith the note appended thereto, which reads as under: "In continuation to Notification No: 20-PSC of 2001 dated 30.07.2001 read with corrigendum issued under endst. It is advantageous to reproduce the contents of the advertisement notice alongwith the note appended thereto, which reads as under: "In continuation to Notification No: 20-PSC of 2001 dated 30.07.2001 read with corrigendum issued under endst. No. even dated 23.11.2001; applications are invited from the permanent residents of Jammu and Kashmir State for the post of Medical Record Officer in Health & Medical Education Department on prescribed form obtainable from the Office of J&K, public Service Commission on payment of Rs. 25/= in the shape of Indian Postal order in the name of Secretary, J&K Public Service Commission or Bank Draft payable at J&K, Bank Limited Branch Amira Kadal, Srinagar/ Chowk Chabutra, Jammu or Treasury Receipt of in Major Head 0051-PSC. ; NOTE:- THE CANDIDATES WHO HAVE APPLIED EARLIER VIDE NOTIFICATION NO: 20-PSC OF 2001 DATED 30.07.2001 FOR THIS POST NEED NOT APPLY." 9. Now what can be gathered from the record of the writ petition is that the petitioner was required to participate in the selection process Which he has not done. Moreso, the petitioner has not questioned the advertisement notice so far and has come out of deep slumber after more than eight years from the date of issuance of notifications and after two years from the date of judgment rendered by this Court, whereby all the three writ petition filed by Firdousa Akhter stand dismissed. It is also worthwhile to mention here that the writ Court has not granted any relief in favour of the petitioner of the writ petition at hand, who had sought impleadment as discussed in the preceding paragraph. 10. From a perusal of the whole record, it is revealed that the respondents have concluded the selection process and issued the selection list. Besides that, admittedly, the petitioner has not questioned the selection list as on date, therefore, his case cannot be considered in isolation. 11. What is further revealed from the record of the writ petition is that the respondents 4 to 6 came to be arrayed as respondents by laying motions and were not arrayed by the petitioner as respondents. 12. It is reiterated that the petitioner has not questioned the selection of the selectees-respondents and has not sought any writ of certiorari. 13. In the aforementioned backdrop and in the totality of circumstances, besides the writ petition suffering from delay and laches, I find no merit in the petition. 12. It is reiterated that the petitioner has not questioned the selection of the selectees-respondents and has not sought any writ of certiorari. 13. In the aforementioned backdrop and in the totality of circumstances, besides the writ petition suffering from delay and laches, I find no merit in the petition. It is dismissed alongwith CMPs. As a corollary, interim direction shall stand vacated. However, there will be no order as to costs. 14. The record produced by the learned counsel for respondent No. 3 in sealed envelope as per the directions of this Court dated 09.05.2011 read with order dated 27.05.2011 which is placed on the file unopened is returned to Mr. Azharul Amin in the open Court.