Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 136 (JK)

Vasu Nischal v. State Of J&K

2014-03-27

TASHI RABSTAN

body2014
1. Jammu and Kashmir Services Selection Board- respondent no.3, issued Advertisement Notice Nos.03 of 2004 dated 14.09.2004, No.02 of 2005 dated 30.03.2005, No.10 of 2005 dated 29.12.2005 and No.04 of 2006 dated 29.12.2006, inviting, applications, amongst others, for the posts of Junior Scale Stenographer in the pay scale of Rs.5000-8000 (pre-revised) for District/ Division/State Cadre for various Departments. The posts of Steno Typists as well in the grade of Rs.4000-6000 were also advertised. Petitioners responded to said advertisement notices for the posts of Junior Scale Stenographers as also Steno Typist either for Jammu Division or State Cadre. 2. All candidates, who applied to aforementioned advertisement notices, were put to common test and result of that was published in daily newspapers on 13th December 2007. In order to scrutinize certificates appended by candidates with their application forms for posts of Junior Scale Stenographer and Steno Typist, the candidates belonging to Kashmir Division were directed to present themselves on 19th December 2007 in Central Office of SSB Zum Zum Hotel, Rambagh, Srinagar, whereas candidates belonging to Jammu Division were directed to remain present in Central Office of SSB Sehkari Bhawan, Rail Head Complex, Panama Chowk, Jammu, on same date. Petitioners herein, amongst the candidates of Jammu Division, figure at Serial Nos.16, 21, 24 and 26. This was followed by Provisional Select List of candidates for the posts of Junior Scale Stenographer/Steno Typist, State/Divisional/District Cadre as also other posts, published in various newspapers on 30th December 2007. Petitioners figure at Serial Nos.09, 11, 12 and 14 in order of merit. Petitioners, vide Government Order No. 1207-LD(A) of 2008 dated 26.03.2008 [ were appointed as Junior Scale Stenographers in the pay scale of Rs.5000-8000 in the office of Advocate General, J&K (Kashmir Division). 3. The petitioners' case is that they though in pursuance of their appointment order joined in the office of Advocate General at Srinagar on 5th April 2008 and since condition like "Kashmir Division" and establishment of Advocate General's Office were ipse dixit of respondents as Advocate General's Office has no independent establishment nor does have independent posts of Junior Scale Stenographer in Divisional Cadre, petitioners with a view to project their case and for redressal of their grievances approached respondents with numerous representations. It is pleaded by petitioners in their writ petition that they represented before Principal Secretary to Government, Department of Law, Justice and Parliamentary Affairs and thereafter before Grievance Cell of Chief Minister (J&K) and that petitioners also approached General Administration Department of J&K. Petitioners aver that they filed application under Right to Information Act and on receipt of information provided by office of respondent no.3, they came to know that pick and choose policy had been adopted inasmuch as candidates figuring at Serial No.2 and 20 have been recommended to be appointed in General Administration Department (State Cadre) and candidates at Serial Nos.3,4,5,6,15,16,18,19,21 and 22 were recommended to be appointed in Finance Department in their respective Divisions i.e. Jammu Division and Kashmir Division Cadre posts whereas petitioners, being above in the merit than the candidates falling at Serial Nos.16,19,20 and 21 in the merit list, were neither recommended for General Administration Department nor for Division Cadre Jammu. It is pleaded that the department, against which candidates figuring at Serial No.21 and 22, were initially appointed, was changed, and the said candidates were appointed in Revenue Department that too within their own respective Divisions. Petitioners on the strength of averments made in writ petition, seek following relief: "a) Mandamus, commanding respondents to appoint petitioners either in Finance Department or GAD or Housing and Urban Development Department or Planning & Development Department against State Cadre post or Divisional Cadre (Jammu) post advertised vide notification nos. 03 of 2004 dated 14.9.2004, 02 of 2005 dated 30.03.2005, 10 of 2005 dated 29.12.2005, and 04 of 2006 dated 29.12.2006. b) Mandamus, commanding respondents to encadre the post held by petitioners in the office of Advocate General to State Cadre either in Law Department or any other department under the State respondents. c) Mandamus, commanding respondents to consider case of petitioners for transfer of their services from Division Cadre Kashmir to Divisional Cadre Jammu." 4. Respondent State in their reply state that respondents do not fill up posts in question on their own and same are being referred to respondent Board for selection and that appointments are being made as per recommendations of respondent Board. Respondent State in their reply state that respondents do not fill up posts in question on their own and same are being referred to respondent Board for selection and that appointments are being made as per recommendations of respondent Board. It is insisted that every Department is under obligation to refer posts falling within purview of respondent Board to it for selection of suitable candidates and it is only respondent Board that selects and recommends candidates for appointment against posts, which are referred to it, therefore, respondent State has no role in the entire selection process as it is exclusive domain of respondent Board. It is averred that petitioners have not even challenged their `selection' made by respondent Board and their appointment orders rightly because they have joined in pursuance of their `selection' and appointment. Respondent State also contended that petitioners have never made any representation. However, one representation was endorsed by office of Deputy Chief Minister on 26.05.2011 and in that it was observed that matter pertains to selection of petitioners by respondent Board and it is respondent Board distributing cadres among the selected candidates. Respondent State maintains that they have no role either in selection process or allotment of cadre of petitioners. 5. Respondent Board in its Reply admits that petitioners had applied pursuant to the notifications against the posts of Junior Scale Stenographer for "State Cadre" and "Divisional Cadre Jammu". The respondent Board avers that petitioners figure at Serial Nos. 9, 11, 12 and 14 in the Selection List for the posts of Junior Scale Stenographer. However, 28 posts of Junior Scale Stenographer remained vacant/unfilled due to non-availability of eligible candidates. Respondent Board admits that selection of petitioners inadvertently made against the posts in Divisional Cadre Kashmir for Law Department was wrong and the mistake remained unnoticed and that it was not brought to the notice of respondent Board by any of the petitioners during stipulated period of time. Respondent Board admits that selection of petitioners inadvertently made against the posts in Divisional Cadre Kashmir for Law Department was wrong and the mistake remained unnoticed and that it was not brought to the notice of respondent Board by any of the petitioners during stipulated period of time. It is averred that more than five years have lapsed and as on date respondent Board is handicapped to rectify the error as any rectification at this point of time is likely to disturb the postings of other candidates who might have earned their promotions by this time in their respective departments and that petitioners did not agitate their claim for last four years and had the petitioners informed respondent Board regarding the mistake well in time, the respondent Board might have rectified it. The contention of respondent Board is that petitioner No.2, namely, Ripu Dawan had in fact applied for correction of his name and particulars before respondent Board but at that time petitioner no.2 remained silent about the change of his Cadre, as such, the alleged mistake which had crept in selection of the candidates against the cadres (State/Division) for which petitioners have applied remained unnoticed. 6. Petitioners in their Rejoinder state that petitioner no.2, admittedly, applied for correction of his particulars, wrongly shown as "daughter of" instead of "son of" in Provisional Select List advertised in Daily Excelsior on 30th December 2007. It is insisted that the said Provisional Select List does not provide against which Cadre petitioners have been selected and that this fact can be substantiated from Provisional Select List (Annexure-A7 to writ petition). Petitioners contend that they came to know as regards their Cadre by means of appointment order issued by Law Department on 5th August 2008 and by moving RTI application before respondent Board, petitioners came to know about the Cadre of other selectees. It is asserted that had petitioners been informed about the Cadres of selectees including petitioners at the time of publication of Provisional Select List, need of moving any RTI application for accessing to information with regard to Cadre of selectees would not have arisen at all. It is pleaded that petitioners had made all efforts to communicate their grievances to all quarters. It is pleaded that petitioners had made all efforts to communicate their grievances to all quarters. It is averred by petitioners in their Rejoinder that respondent Board admits its mistake to select petitioners against the vacancies, to which petitioners had never applied and that selecting other candidates, with lower merit than petitioners, against the vacancies, against which petitioners in fact had applied. Mistake, according to petitioners, needs to be rectified and if persisted it partakes the character of fraud and that respondents have played fraud with petitioners while selecting petitioners against vacancies that are having no promotional avenues as also change of posting whereas the less meritorious candidates have been selected against the vacancies/posts with better chances of promotion and change of postings. 7. I have heard learned counsel for parties and gone through the pleadings of the case. 8. The controversy in the present case orbits around selection and appointment of petitioners in "Divisional Cadre" or in "State Cadre". 9. Jammu and Kashmir Subordinate Services Recruitment Rules, 1992, were notified vide Notification/SRO 194 dated 18th August 1992. These Rules shall apply to recruitment of all non-gazetted posts under the Government. Rule 3 Sub Section (ii) defines "Board" as the Services Selection Board. Rule 3(v) defines "Subordinate Service" means and includes all non-gazetted posts under the Government whether grouped into organized service or not. "State Cadre" posts in terms of Rule 3(vi) means sanctioned strength of non-gazetted posts borne on establishment of headquartered offices of the departments having jurisdiction over the whole State but does not include the posts borne on the Divisional and District cadres. According to Rule 3(vii) "Divisional Cadre" means cadre of the department in Division, comprising posts of all non-gazetted posts. Rule 3(viii) provides that "District cadre" is the cadre of a department in a District comprising all posts whether executive, ministerial, technical or manipulative. In so far as respondent Board is concerned, Rule 4(i) of J&K Subordinate Services Recruitment Rules, 1992 provides that J&K Services Selection Board shall make recruitment to subordinate services. 10. Rule 3(viii) provides that "District cadre" is the cadre of a department in a District comprising all posts whether executive, ministerial, technical or manipulative. In so far as respondent Board is concerned, Rule 4(i) of J&K Subordinate Services Recruitment Rules, 1992 provides that J&K Services Selection Board shall make recruitment to subordinate services. 10. "State Cadre" non-gazetted posts on the standard of J&K Subordinate Services Recruitment Rules, 1992, are the posts borne on establishment of headquartered offices of the Departments having jurisdiction over the whole State but does not include the posts borne on "Divisional" and "District cadres" whereas "Divisional Cadre" posts are the posts borne on the establishment of headquartered offices of the Departments having jurisdiction over the whole Division. 11. Appointment of petitioners has been made vide Government Order No.1207-LD(A) of 2008 dated 26.03.2008 in Advocate General's office (Kashmir Division). The order makes reference of respondent Board's letter No.SSB/Sel/Secy/ 08/130-34 dated 09.01.2008. The said Letter dated 09.01.2008 of respondent Board addressed to respondent department, on its bare reading shows at "Subject" the "Select list of the candidates for the post of Jr. Scale Stenographers Divisional Cadre Kashmir" whereas in the body, it mentions that respondent Board encloses "Select List of the candidates for the post of Jr. Scale Stenographer State Cadre advertised vide advertisement notice No.04 of 2006 Dated 29.12.2006". The respondent Board, if one goes through the contents of letter dated 09.01.2008, has enclosed Select List of "State Cadre", however, inadvertently in the Subject it indicates "Divisional Cadre Kashmir". The mistake inadvertently committed by respondent Board has been admitted by respondent Board in its Reply in opposition to writ petition. In this regard it would be advantageous to reproduce appropriate portion/s of Reply of respondent Board hereunder: "All the petitioners had applied pursuant to the notifications detailed in the writ petition as against the posts of Jr. Scale Stenographer and Steno Typist for State and Divisional Cadre. xxxxxxxx However, 28 posts of Jr. Scale Stenographer and 15 posts of Steno Typists remained vacant/unfilled due to non-availability of eligible candidates. Since the petitioners were not required to indicate their choice for Division/State Cadre, so the Services Selection Board distributed cadres among the selected candidates as per the notification as against which they had applied. However, the petitioners were selected, inadvertently as against the posts advertised for Divisional Cadre Kashmir, for the law department. Since the petitioners were not required to indicate their choice for Division/State Cadre, so the Services Selection Board distributed cadres among the selected candidates as per the notification as against which they had applied. However, the petitioners were selected, inadvertently as against the posts advertised for Divisional Cadre Kashmir, for the law department. xxxxxxxxxxx The selection of petitioners inadvertently against the posts in divisional cadre Kashmir for law department was wrong, and the mistake remained un-noticed." 12. The respondent Board admits mistake committed by it while showing petitioners selection against "Divisional Cadre Kashmir" instead of "State Cadre" or "Divisional Cadre Jammu". The mistake, according to respondent Board, has crept inadvertently. Can this wrong/mistake committed by respondents be exclusively saddled on petitioners and can it be said that it is mistake or wrong committed by petitioners? Answer to that is in negative. As per respondents' own showing, 03 posts of Junior Scale Stenographer (State Cadre) and 03 posts under Divisional Cadre Kashmir were vacant in respondent department that were advertised by respondent Board. It is admitted case that petitioners had not applied for advertised posts of Junior Scale Stenographer advertised that were vacant in Law Department but applied in other Departments that too either in "State Cadre" or "Divisional Cadre Jammu". There was no occasion for petitioners to apply for posts in "Divisional Cadre Kashmir" inasmuch as there were ample posts available and advertised under "State Cadre" and "Divisional Cadre Jammu" by respondent Board. Even as per admission made by respondent Board that after making selection, 28 posts of Junior Scale Stenographers were vacant and available. The only ground taken by respondents in their Reply is that petitioners had not approached respondents well in time but at the same time respondents in their Reply accept and admit that petitioners representation from the office of Deputy Chief Minister was endorsed and in that it was observed that matter pertains to petitioners' selection by Service Selection Board, thus, it is respondent Board that has distributed the Cadres among the selected candidates. The endorsement by the office of Deputy Chief Minister was, obviously, made on the representation/application of petitioners as regards remedying their grievances. There is another communication dated 29th January 2010 (Annexure A-10 to writ petition) on the subject matter addressed by Deputy Secretary to Chief Minister, J&K, to Secretary Law Department. The endorsement by the office of Deputy Chief Minister was, obviously, made on the representation/application of petitioners as regards remedying their grievances. There is another communication dated 29th January 2010 (Annexure A-10 to writ petition) on the subject matter addressed by Deputy Secretary to Chief Minister, J&K, to Secretary Law Department. Thus, delay or laches made tool by respondents to getaway of mistake committed by them, cannot sustain. 13. Advertisement notices, to which petitioners responded, thereafter appeared in the test/s conducted by respondent Board in pursuance of said advertisement notices, selection made and subsequently appointment made in favour of petitioners, stipulate a common condition, i.e.:- "A candidate can apply only in one District of his choice for District Cadre posts and in one Division of his choice in respect of Divisional Cadre posts simultaneously. Provided that if any candidate applies for a post in more than one District or Division, his candidature shall be considered only for the District or Division in which he is ordinarily residing." 14. Above quoted condition in the Advertisement Notices, to which petitioners responded and in pursuance thereof selected and appointed, stipulates that if petitioners apply for a post in more than one Divisions, their candidature is to be considered for the Division in which they ordinarily reside. It is condition set by respondent Board. It can be well said that respondent Board has violated the condition. Selection has been made by respondent Board of all candidates including petitioners. Respondent Board was under obligation in terms of the condition set by it to select petitioners in the Division in which petitioners reside. But what has been done by respondent while selecting and appointing petitioners cannot be said to be fault of petitioners. The mistake, admittedly, has been committed by respondent Board, then how petitioners would be held liable for such fault and would suffer. Even if petitioners might have applied for the post of Junior Scale Stenographer in Kashmir Division, yet respondent Board was required, in terms of the condition, to select petitioners in the Division where petitioners reside. 15. Of late Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010, came into being on 10th May 2010, aiming at providing equitable opportunities of employment in Civil Services in the State keeping in view the State's complex socio-economical and geographical/topographical/linguistic/concerns and matters connected therewith and incidental thereto. 15. Of late Jammu and Kashmir Civil Services Decentralization and Recruitment Act, 2010, came into being on 10th May 2010, aiming at providing equitable opportunities of employment in Civil Services in the State keeping in view the State's complex socio-economical and geographical/topographical/linguistic/concerns and matters connected therewith and incidental thereto. It would be advantageous to reproduce Section 2 of the J&K Civil Services Decentralization and Recruitment Act, 2010 [Refer JK Laws 2nd Ed. 2013 Vol. 3 P-707] hereunder: "2. Definitions: In this Act, unless the context otherwise requires:- (b) "District Cadre" means the cadre of a department in a district comprising all the posts whether executive, ministerial, technical or manipulative the basic pay of which does not exceed the basic pay for the post of Senior Assistant but does not include the posts falling under the Divisional or State Cadre; (c) "Divisional Cadre" means the cadre of a department in a Division comprising the following posts:- (i) all non-gazetted posts the basic pay of which exceeds the basic pay for the post of Senior Assistant but does not exceed the basic pay for the post-of Sectional Officer and does not include the posts falling under the State Cadre; (ii) such gazetted posts or services as the Government may from time to time notify in this behalf; (e) "State Cadre" means:- (i) the sanctioned strength of all gazetted and non-gazetted posts borne, on the establishment of the headquarter offices of all the departments having jurisdiction over the whole State, but does not include the posts borne on the Divisional and District Cadre." 16. "State Cadre" posts (both gazetted and non-gazetted) as per J&K Civil Services Decentralization and Recruitment Act, 2010 are the posts borne on the establishment of headquartered offices of all the Departments having jurisdiction over the whole State but does not include the posts borne on "Divisional" and "District cadres". Likewise, "Divisional Cadre" posts (both gazetted and non-gazetted) are the posts borne on the establishment of headquartered offices of the Departments having jurisdiction over the whole Division. 17. Learned counsels for respondents, controverting writ petition, insist that once appointment is accepted and petitioners joined the service pursuant to the appointment order, they were stripped of their right to seek their adjustment in the "State Cadre" or "Division Cadre Jammu" and that would not be available to the petitioners in terms of appointment order. 17. Learned counsels for respondents, controverting writ petition, insist that once appointment is accepted and petitioners joined the service pursuant to the appointment order, they were stripped of their right to seek their adjustment in the "State Cadre" or "Division Cadre Jammu" and that would not be available to the petitioners in terms of appointment order. Learned counsel for the petitioners on the other hand, dilating on the grounds set out in the writ petition, insists that the petitioners cannot be punished for no fault of theirs and the mistake, if any, committed by the respondents in petitioners' selection an appointment was not attributable to petitioners. 18. In view of all what is pleaded, controverted, argued and discussed, I do not find any merit in the contention of respondents that petitioners after having joined pursuant to appointment order were estopped from demanding and asking for their adjustment in the "State Cadre" or "Division Cadre Jammu" that was denied to them only because their selection by respondent Board and subsequent appointment by respondent department in "Division Cadre Kashmir" was made on account of administrative lapse and not because petitioners had a role in such selection or appointment. The appointment orders did not stipulate that the petitioners on joining the service would surrender the right to seek their adjustment in "State Cadre" or "Division Cadre Jammu" inasmuch as they had applied for "State Cadre" and "Division Cadre Jammu" and that respondent Board was required to consider the petitioners' candidature with respect to the Division in which they reside and not with respect to the Division in which they do not reside or for which they have never applied. It did not give to petitioners a choice or provide that once petitioners took up appointment, they would be barred and estopped to seek remedy of their grievances available to them in the facts and circumstances of the case. It is significant to mention here that petitioners would have been in Select List of State Cadre/Division Cadre Jammu and appointed alongside other selected aspirants, had there been no mistake on the part of respondent Board in making selection casually, inadvertently and perfunctorily. 19. It is significant to mention here that petitioners would have been in Select List of State Cadre/Division Cadre Jammu and appointed alongside other selected aspirants, had there been no mistake on the part of respondent Board in making selection casually, inadvertently and perfunctorily. 19. In view of the foregoing discussion, writ petition is disposed of with a direction to respondent-Law Department, to shift the posts of Junior Scale Stenographers held by petitioners from the "Kashmir Division Cadre" to the "State Cadre" or "Divisional Cadre Jammu" in the office of Advocate General J&K. 20. Disposed of as above.