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2014 DIGILAW 38 (JK)

State Of J&K v. Parshotam Lal Khajuria

2014-02-04

DHIRAJ SINGH THAKUR, MUZAFFAR HUSSAIN ATTAR

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1. The respondent No. 1-writ petitioner has not been appointed on the post of Naib Tehsildar though was recommended by the Service Selection Board in pursuance to the judgment impugned in this appeal because of the pendency of this appeal, which is filed by the State of Jammu and Kashmir. 2. In the year 1993, 70 posts of Naib Tehsildars were advertised by Jammu and Kashmir, Service Selection Board vide Advertisement Notice No. 2 of 1993 dated 21.6.1993. Five percent of the posts were reserved for Ex-Serviceman category. The five percent of the 70 posts would mean that 3.5 posts were to be made available for the candidates belonging to the Ex-Serviceman Category. The respondent-Service Selection Board advertised three posts for this category. One Sh. Vijay Sharma did not succeed in the selection process. As he belonged to the Ex-Serviceman category, filed writ petition, bearing SWP No. 165/2000 before the writ court. One of the pleas taken by the said Vijay Sharma was that 3.5 posts when rounded off would come to four posts. 3. The contention of Sh. Vijay Sharma was negatived by the learned writ court, which resulted in filing of LPA No. 57/2005. 4. The Division Bench of this Court vide its judgment dated 5.12.2005 ruled that 3.5 posts when rounded off would come to four posts. The Division Bench also directed the Service Selection Board to forward the name of the writ petitioner/appellant therein to the Government for his appointment, in case his merit position warrants such appointments and if being next candidate in the order of merit. 5. Mr. Vijay Sharma, appellant in LPA No. 57/2005, preferred a Review Petition and prayed that the observation of directing the respondent-Service Selection Board to forward his name to the Government for appointment provided he was the candidate next in merit, be deleted from the LPA judgment and the Service Selection Board be directed to recommend the name of Sh. Vijay Sharma, for being appointed on the post of Naib Tehsildar irrespective of his merit position. 6. The Review court on 24.4.2006 directed the respondent-Board to notify the names of all the candidates under Ex-Servicemen Category in the order of their merit so that in case none of the candidates more meritorious than Sh. Sharma would put forth his claim under Ex-serviceman category, his name would be considered. 7. 6. The Review court on 24.4.2006 directed the respondent-Board to notify the names of all the candidates under Ex-Servicemen Category in the order of their merit so that in case none of the candidates more meritorious than Sh. Sharma would put forth his claim under Ex-serviceman category, his name would be considered. 7. The review petition was disposed of by the court vide its order dated 28.12.2007. 8. The name of respondent-writ petitioner was not recommended by the Service Selection Board notwithstanding this fact that he had laid claim for the same after the merit list of his category was notified by Service Selection Board. 9. The petitioner approached this court by filing SWP No. 28/2008. The learned writ court vide its judgment dated 4.6.2012 allowed the writ petition and directed the Service Selection Board to recommend his name to the Government for being appointed on the post of Naib Tehsildar. 10. This judgment is questioned in this Letters Patent Appeal. 11. Mr. Siddiqui, learned AAG, submitted that without quashing the selection/appointment of the last selected candidate, the fourth post could not be filed up. Learned counsel submitted that since on the recommendation of the Service Selection Board, all the posts were filled up, the petitioner could not be appointed on a non-existent post. Learned counsel further submitted that the respondent-writ petitioner approached the court at a belated stage and thus, cannot be appointed on the post of Naib Tehsildar. 12. Learned counsel further submitted that the appeal be allowed and the impugned judgment set aside. 13. Mr. Bhardwaj, learned Senior Counsel, appearing for the respondent-writ petitioner, submitted that the respondent-writ petitioner has shown utmost urgency in laying his claim on the post immediately after the merit list was published by the respondent-Service Selection Board. 14. Learned counsel further submitted that after the passing of the impugned judgment, Service Selection Board has recommended the name of the respondent-writ petitioner to the Govt. for being appointed on the post of Naib Tehsildar, but because of the pendency of this appeal, the appointment order could not be issued. 15. 14. Learned counsel further submitted that after the passing of the impugned judgment, Service Selection Board has recommended the name of the respondent-writ petitioner to the Govt. for being appointed on the post of Naib Tehsildar, but because of the pendency of this appeal, the appointment order could not be issued. 15. One of the fundamental issue before the Division Bench in LPA No. 57/2005 was as to how many posts were to be reserved for the Ex-serviceman Category and in view of the fact that five percent reservation out of 70 notified posts would come to 3.5 the Letters Patent Bench ruled that 3.5 posts when rounded off would come to four posts. Thus, there is declaration that four posts were to be filled up from amongst candidates belonging to Ex-serviceman category. This finding of the Letters Patent Bench has attained finality as the judgment was not challenged before the Apex Court. The respondent-Service Selection Board was duty bound to recommend the name of the person, who is next in merit, to the Government for being appointed on the post of Naib Tehsildar. 16. The contention of the learned counsel for the appellant that without the quashment of the appointment of the last selected candidate, the fourth post in the category of Ex-serviceman could not be filled up, being merit less, deserves to be turned down on the ground that the Letters Patent Bench held that 3.5 posts when rounded off would amount to four posts. By judicial reasoning that fourth post for the candidates belonging to Ex-serviceman category came into existence. The candidate next in merit in this category would automatically have a right of being recommended for being appointed on the post of Naib Tehsildar. Taking any other view would result in infringing the right of the respondent-writ petitioner, who is next in merit, for being selected/appointed on the post of Naib Tehsildar, as guaranteed by Article 16 of the Constitution of Jammu and Kashmir. 17. The court is duty bound to enforce the finding recorded in the judgment dated 5.12.2005 passed in LPA No. 57/2005. 18. The illegality was committed by Service Selection Board by not notifying four posts in the Ex-serviceman category. This illegality was corrected by Letters Patent Bench of this court. Consequently, the right of selection and appointment of respondent-writ petitioner is surviving till date. 19. 18. The illegality was committed by Service Selection Board by not notifying four posts in the Ex-serviceman category. This illegality was corrected by Letters Patent Bench of this court. Consequently, the right of selection and appointment of respondent-writ petitioner is surviving till date. 19. The Review court on 24.4.2006 directed the respondent-Board to notify the list of the candidates under Ex-Servicemen Category in the order of their merit. The respondent-writ petitioner immediately after the publication of the said list, laid his claim on the post. Thus, there is no delay in making the claim and filing the writ petition by the respondent-writ petitioner. Even otherwise, as already stated, his legal right of being appointed, which was illegally taken away by only notifying three posts, still survives. 20. The appellant is duty bound to make available the fourth post in the category of Ex-serviceman about which declaration has been made by the Letters Patent Bench of this court way back in the year 2005 and the said declaration has attained finality having not been challenged by the Apex Court. 21. The respondent-writ petitioner though next in merit after the three selected candidates, was deprived to reap the fruits of placement in the merit list, because of the wrong decision of the Service Selection Board in notifying only three posts. It does not lie in the mouth of the appellant to say that he laid his claim on the post at a belated stage. 22. For our above recorded reasons, this Letters Patent Appeal is found to be without merit and is accordingly dismissed. The appellant shall act upon the recommendation of Service Selection Board and accord consideration for appointment on the post of Naib Tehsildar in favour of respondent-writ petitioner within four weeks. 23. CMA(s), if any, also stands disposed of.