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2014 DIGILAW 347 (JK)

State Of Jammu & Kashmir v. Ab. Hamid Khan

2014-08-19

M.M.Kumar, MUZAFFAR HUSSAIN ATTAR

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Muzaffar Hussain Attar, J. 1. The Jammu & Kashmir Service Selection Board (SSB), at the request of Appellants, initiated selection process for making selections to the posts of Physical Education Teachers (PET). The posts were initially notified vide Notification No. 03 of 1996 dated 24-12-1996. Another Advertisement Notice No. 04 of 1997 dated 29-05-1997, was issued, in which the posts notified earlier as also those posts, which had become available, in the meanwhile, were also advertised. The respondents-writ petitioners and those selected, responded to the said Notice and sought consideration for being selected/ appointed on the posts of PETs. 2. The SSB made recommendations for appointment of respondents 09 to 51 in the writ petition. The respondents-writ petitioners challenged the said decision of the SSB, inter alia, on the grounds that the petitioners faired well in the interview; they were subjected to discriminatory treatment; the criteria adopted by the SSB was bad in law; and the candidates have been selected on the basis of their higher qualification, which they have obtained after the cutoff date fixed in the Advertisement Notice. 3. The learned writ Court, on 28-07-2008, observed as under: "On consideration of the matter, I find certain glaring illegalities committed during the process of selection. Perusal of the record would show that the candidates figuring as S. No's 178, 350 & 387 in the list prepared by the selection committee, have been awarded 20 marks each for qualifications obtained by them after cutoff date fixed in the advertisement notice. Similarly two selected candidates figuring at S. No's 10 & 17 in the minutes of the selection committee have been awarded marks (5+5) twice during viva-voce bringing them within the selection zone." 4. The learned writ Court, accordingly, directed for constitution of a Committee of two senior Officers for looking to the record. It was also directed that the said Committee shall re-examine the cases of candidates figuring at S.No. 175, 350 and 387. It was further directed that these candidates shall be afforded opportunity of hearing. The learned writ Court further directed that cases of the candidates figuring at S.Nos. 10 & 17 shall also be examined. 5. The Committee, to look into the aforesaid issues, was constituted vide Government Order No. 125-Edu (TECH) 2008 dated 22-10-2008. It was further directed that these candidates shall be afforded opportunity of hearing. The learned writ Court further directed that cases of the candidates figuring at S.Nos. 10 & 17 shall also be examined. 5. The Committee, to look into the aforesaid issues, was constituted vide Government Order No. 125-Edu (TECH) 2008 dated 22-10-2008. The Committee in its meeting held on 20-01-2009 made observations, which are taken note of: "In pursuance of Hon'ble Court direction in the SWP No. 4178/97 titled Fayaz Ahmad Kuchay v. State of J&K, the candidates figuring at S. No. 175, 350 and 387 were called to appear before the Committee constituted vide Government Order No. 125-Educ (Tech) of 2008 date 22.10.2008 at Srinagar on 20.1.2009 at 11.30 A.M. The Venue was Women College, M.A. Road, Srinagar. The said candidates were also asked to produce their testimonials for scrutiny/verification before the Committee." These candidates namely Gulzar Ahmad, Farooq Shahnaz and Mohd. Shafi Wani deposed before the committee that the posts of Physical Education teachers were advertised on 29th of May 1997 and last date for submission of forms was 16th of June 1997. Interviews for the said posts were held in the months of August/Sept-1997. The candidates had the requisite qualification for appointment against the referred to post i.e. Matric with CPED. BPED was the additional qualification for which 20 marks were allocated. It further revealed that the referred to candidates had appeared in BPED examination before the last date of submission of forms but the result for the same was declared in the month of July, 1997 i.e. after the last date of submission of forms and before the date of interview. Further, all the three candidates deposed before the committee that at the time of interview, a request was made to the selection committee for entertaining their BPED certificates. These candidates also stated that it was the collective decision of the Board members that their request along with other similarly situated candidates was accepted for the purpose of adding additional 20 points. As a result of which the additional 20 points have been awarded to the said candidates for possessing a degree of BPED course." 6. These candidates also stated that it was the collective decision of the Board members that their request along with other similarly situated candidates was accepted for the purpose of adding additional 20 points. As a result of which the additional 20 points have been awarded to the said candidates for possessing a degree of BPED course." 6. Despite directions by the learned writ Court, when the Appellants and SSB failed to look into the matter in the background of Report of the Committee, the Court considered the matter and recorded finding on the basis of the said Report that the additional qualifications of Gulzar Ahmad, Farooq Shahnaz and Mohammad Shafi Wani, were taken into consideration, when, as a matter of fact, these qualifications were acquired by them after the cut off date fixed in the Advertisement Notice. These candidates were awarded additional 20 marks. Similarly it was found that other two candidates have been given marks twice in the interview. The learned writ Court, accordingly, concluded that the selection process has not been conducted in fair manner and certain irregularities have been committed while making selection/appointments, which prejudiced the respondents-writ petitioners. The learned writ Court, after observing that the appointed candidates have been working on the posts for all these years, did not direct for cancellation of their engagements but in turn on 18-03-2011 directed the Appellants to consider the respondents-writ petitioners for being appointed on the posts. The Appellants are aggrieved of this judgement. 7. Mr. J.A. Kawoosa, Ld. Senior AAG, in support of the Appeal, submitted that the learned writ court, in the facts of this case, ought to have directed for re-drawing of the merit list in the light of the observations made by the Enquiry Committee. Mr. Kawoosa, while referring to the pleadings made in the Appeal, submitted that besides three appointed candidates, two writ petitioners -- Abdul Hamid Khan and Zulfiqar Ahmad, were also given additional marks for B.P.Ed. degrees, which they have acquired after the cutoff date fixed in the Advertisement Notice. Learned counsel submitted that the learned writ Court has directed for appointment of respondents -- writ petitioners without setting aside the selection/appointment of the candidates in respect of whom it was found that their selection was illegal. degrees, which they have acquired after the cutoff date fixed in the Advertisement Notice. Learned counsel submitted that the learned writ Court has directed for appointment of respondents -- writ petitioners without setting aside the selection/appointment of the candidates in respect of whom it was found that their selection was illegal. Learned counsel submitted that the respondents -- writ petitioners, on the basis of merit secured by them, could be considered for being appointed on the posts, which were advertised in terms of the Advertisement Notice and these persons cannot be appointed on the posts which were not notified, which posts, after conclusion of the aforestated selection process were to be and have been filled up by making fresh selections. 8. Mr. G.A. Lone, learned counsel for the respondents-writ petitioners, in view of the settled legal position, could not controvert the submissions made at bar by learned counsel for the Appellants. 9. Mr. S.A. Makroo, learned counsel appearing for those three candidates, who have been awarded 20 marks for the degrees, which they acquired after the cutoff date, however, submitted that these persons have been working on these posts for many years now and at this distance of time, it may not be proper to direct their removal from the posts. 10. Every post available in a Government Department, has been held by Hon'ble the Supreme Court, to be a public property. All the eligible candidates have right to seek consideration for being selected/appointed on the said post, in view of mandate contained in article 16 of the Constitution of India. 11. In the admitted fact situation of this case, three candidates have been given additional 20 marks, which they were not entitled to, having obtained their B.P.Ed. degrees after the cutoff date fixed in the Advertised Notice. Giving of additional 20 marks to such candidates has adversely affected the merit position of other candidates and it has, thus, affected the selection process itself. Similarly two candidates have been given marks in the viva-voce twice. Such act of the Selection Committee has also affected the selection process. 12. In the aforestated fact situation of this case, we are of the view that the Jammu and Kashmir Service Selection Board shall have to re-draw the merit list and in sequel thereto, make recommendations for appointment of candidates on the basis of their merit. 13. Such act of the Selection Committee has also affected the selection process. 12. In the aforestated fact situation of this case, we are of the view that the Jammu and Kashmir Service Selection Board shall have to re-draw the merit list and in sequel thereto, make recommendations for appointment of candidates on the basis of their merit. 13. For the above stated reasons, we dispose of this Appeal along with connected IAs in the following manner: "The impugned judgement/order dated 18th March, 2011, passed in SWP 4178/1997 in case titled Abdul Hamid Khan and others v. State and others is modified and it is directed that the Jammu and Kashmir Service Selection Board shall re-draw the merit list of the Physical Education Teacher posts, which posts were notified vide Notification No. 03 of 1996 dated 24-12-1996 and Notification No. 04 of 1997 dated 29-05-1997 and make appropriate recommendations in accordance with the merit so re-drawn. The appointments be made accordingly. This exercise shall be concluded within six weeks."