1. By the medium of this writ petition, the petitioner is seeking a writ in the nature of Mandamus, commanding Commissioner/Secretary to Government. In dustries & Commerce Department, respondent no. 3 herein, to include her name in the final seniority list of Project Managers in the Industries & Commerce Depart ment after deleting her name from the final seniority list of Functional Managers. She has also sought a direction to the respondents to induct her name in the Kashmir Administrative Services (KAS) with effect from 22.07.2008 under the Scheduled Tribe Category (for short, ST Category) with all consequential benefits, on the grounds taken in the writ petition, which can be aptly and precisely enumerated as hereunder. 2. As per the averments made in the writ petition, the petitioner appeared in the Combined Competitive Examination, 1999 and she successfully made the grade under the ST Category. She was allotted Industries & Commerce (Gazetted) Service and her name figured at Serial No. 18 of the said list under the head Scheduled Tribe Category. Thereafter, vide Government Order No. 137-GAD of 2002 dated 22.01.2002, the General Administration Department on the recommendation of J& K Public Service Commission, issued appointment order in favour of the selected candidates and the name of the petitioner figured at Serial No. 23 of the said Government Order and was allotted J&K Industries & Commerce/Handi craft/Handlooms (Gazetted) Service(s). After undergoing the requisite training, she was transferred and posted as Functional Manager/Project Manager, DIC, Rajouri. Thereafter, she was adjusted as Project Manager, DIC, Rajouri against a clear vacancy till 11.06.2010, when her services were placed at the disposal of Rural Development Department against a higher post equivalent to KAS Cadre in her own pay and grade. She was adjusted as Project Officer Watershed (Haryali), Rajouri. It has been further averred that she has been discharging her duties as a Project Manager since 22.10.2003, but her name was not included in the final seniority list of Project Manager which was issued vide order dated 10.07.2008. On noticing the same, petitioner made a representation to respondent no. 3 on 20.02.2009 seeking inclusion of her name in the final seniority list of Project Manag ers under Scheduled Tribe Category and also for making a recommendation to respondent no. 2 for her induction into KAS. 3. It is further averred that during the pendency of said representation, respon dent no.
3 on 20.02.2009 seeking inclusion of her name in the final seniority list of Project Manag ers under Scheduled Tribe Category and also for making a recommendation to respondent no. 2 for her induction into KAS. 3. It is further averred that during the pendency of said representation, respon dent no. 3 vide Government Order No. 72-Ind of 2009 dated 16.03.2009 issued tentative seniority list of Functional Managers of Industries and Commerce Depart ment. It was provided that if any person is aggrieved of the order, he/she could file objections within a period of 21 days from the date of issuance of said order. Petitioner filed objections that she has been wrongly shown in the list of Functional Managers. It is contended that respondent no. 3 without considering her objections, issued the final seniority list of Functional Managers vide Government Order No. 16-Ind of 2010 dated 15.01.2010. It is also contended that her representation dated 20.02.2009 was also sent to the Law Department for obtaining legal opinion, which was never communicated to her. She filed an- application under Right to Informa tion Act and obtained copy of the legal opinion made by the Law Department, which had opined that she does not possess the qualification required for the post of Project Manager, therefore, her seniority cannot be fixed in the said cadre. It is further contended that she appeared in the Combined Competitive Examination as per the advertisement notice and the rules applicable. The basic qualification required was Graduation and the competing candidate(s) had to appear in the Preliminary Examination, followed by Mains Examination and thereafter the suc cessful candidates had to appear in the interview. It is contended that for filling up the posts of Project Manager it was no where mentioned in the advertisement notice that the candidates aspiring for the said post must have some additional qualifica tion, therefore, the stand taken by the respondents is quite contrary to the law and rules quoted in the writ petition. 4. Respondents have filed reply. However, they have not specifically denied the averments contained in the writ petition, virtually have admitted the same. 5. It is beaten law of the land that when averments contained in the writ petition are not specifically denied, the same are deemed to have been admitted. Same view was taken by the Apex Court in ease, titled as, Asha v. FT.
5. It is beaten law of the land that when averments contained in the writ petition are not specifically denied, the same are deemed to have been admitted. Same view was taken by the Apex Court in ease, titled as, Asha v. FT. B.D. Sharma University of Health Sciences, (2012) 7 SCC 389 . It is appropriate to reproduce paragraphs 17, 18 & 19 herein. "17. It is a settled principle of the law of pleadings that an averment made by the appellant is expected to be specifically denied by the replying party. If there is no specific denial, then such averment is deemed to have been admitted by the respondent. In the present case, it is evident that the abovenoted averments in the writ petition were relevant and material to the case. In fact, the entire case of the appellant hinged on these three paragraphs of the writ petition. It was thus expected of the respondents to reply to these averments specifically, in fact to make a proper reference to the records relevant to these paragraphs. In view of the omission on the part of the respondents to refer to any relevant records and failure to specifically deny the averments made by the appellant, we are of the considered view that the appellant has been able to make out a case for interference. 18. Not only this, if the averments made in Para 9 of the writ petition are correct and the appellant had instantaneously raised her claim before the respondents, followed by making of the representation, we see no reason why the claim of the appellant could not be settled at that time or in any case in the subsequent counselling held on 30.09.2011, where the appellant was admittedly present. The attendance sheet produced before us shows that the appellant was present on all the three days. Even the records produced by the respondents before the Court support the case of the appellant. 19. The appellant filed the writ petition before the High Court without any undue delay and on 4th November, 2011, the judgment by the court was passed in her favour.
Even the records produced by the respondents before the Court support the case of the appellant. 19. The appellant filed the writ petition before the High Court without any undue delay and on 4th November, 2011, the judgment by the court was passed in her favour. The cumulative effect of the above factual matrix, the pleadings of the parties and the expeditious manner in which the appellant had taken action before the authorities and then before the court and pursued her remedies, persuade the Court to believe that the case of the appellant is truthful. The cases of the present kind are not required to be tested by us on the touchstone of stringent principles of burden of proof applicable to criminal jurisprudence. As already mentioned, it was the obligation of the respondents to specifically deny the averments made by the appellant and to produce the relevant records to show that the stand taken by them is worthy of credence. Having failed to do so, they cannot shift the burden upon the appellant and expect this Court to believe that a student of the same college, would disappear at the relevant time of counselling after having marked her presence at the counselling. 6. While advancing the arguments at the Bar, Mr. Basotra, learned Sr. AAG sought adjournment. In the meanwhile, he filed supplementary affidavit, though without seeking permission of the Court. Petitioner also filed response to the same. 7. While going through the supplementary affidavit, one comes to an inescap able conclusion that the respondents have not denied the averments contained in the writ petition. 8. In the given circumstances, I am of the considered view that the petitioner has carved out a case as the respondents have not examined the case of the petitioner in light of the averments contained in the writ petition read with the rules applicable as well as the representation dated 20.02.2009 and the objections filed by the petitioner to the seniority list of Functional Managers. 9. Having glance of the above discussion, the petitioner has made out a case and the writ petition merits to be allowed. In the given circumstances, respondents are directed to examine the case of the petitioner while keeping in view the discussion made hereinabove and pass appropriate orders within a period of three months from the date a copy of this order is served upon them.
In the given circumstances, respondents are directed to examine the case of the petitioner while keeping in view the discussion made hereinabove and pass appropriate orders within a period of three months from the date a copy of this order is served upon them. Registry is directed ; to send copy of this order to the respondents for doing the needful. However petitioner is also at liberty to serve copy of the order upon the respondents. 10. Disposed of along with all connected CMAs.