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2014 DIGILAW 526 (JK)

Shabir Hussain v. JKEDI

2014-12-29

ALI MOHAMMAD MAGREY

body2014
1. The petitioner has filed this writ petition seeking to quash the select list issued by the respondent, Jammu and Kashmir Entrepreneurship Development Institute (JKEDI) whereby respondent no. 5 has been selected for appointment as Trainer, with a prayer for directing the official respondents 1 to 4 to select and appoint the petitioner on the said post. 2. The case of the petitioner is this: that the respondent no.1 issued advertisement notice no.JKEDI/P&PR/Advt./2013/13 dated 23.03.2013 inviting applications to fill up certain Faculty Positions either on contract or deputation basis initially for a period of two years. The Faculty Positions mentioned in the advertisement notice included the five positions of Trainer, Centre for Trainings & Skill Development. The notice, apart from other things, mentioned the minimum required qualification for the posts in question. The petitioner offered his candidature. According to the petitioner, he received call letter dated 18.05.2013 advising him to appear in the screening test on 29.05.2013 at JKEDI Campus Jammu. It is averred that it was mentioned in the call letter that the candidates who qualify the screening test shall have to appear in viva voce for the final selection. The petitioner appeared in the screening test on 29.05.2013 at JKEDI Campus, Jammu. It is stated that the screening test was an aptitude test, which included questions relating to economic development of J&K State. The petitioner secured 26.25 marks in the screening test; whereas, according to him, the topper in the said test secured 28.25 marks. It is averred that in the result sheet of the screening test, the name of private respondent no.5 figured at serial no.5 and he was shown to have remained absent. The petitioner in support of this assertion has appended a copy of the result sheet as annexure C to his petition. It is the further case of the petitioner that the official respondents, thereafter, as per the screening test evaluation, shortlisted the candidates and informed them vide notification no. JKEDI/P&PR/Advt./2013/34 dated 01.06.2013 to visit the Institute alongwith all relevant testimonials/documents for verification by or before 04.06.2013. In the said notification, for the post of Trainer, names of 16 candidates were mentioned. However, respondent no.5's name did not figure therein. Thereafter, the final selection list of candidates for various posts was notified wherein respondent no.5 was shown to have been selected as Trainer at serial no.2. In the said notification, for the post of Trainer, names of 16 candidates were mentioned. However, respondent no.5's name did not figure therein. Thereafter, the final selection list of candidates for various posts was notified wherein respondent no.5 was shown to have been selected as Trainer at serial no.2. The petitioner has, therefore, filed this writ petition seeking to quash respondent no.5's selection as Trainer mainly on the ground that whereas petitioner had secured 26.25 marks in the screening test, respondent no.5 had absented himself. Therefore, selection of respondent no.5 is bad in law and the result of an arbitrary exercise of power by the official respondents. 3. The official respondents 1 to 4 as well as private respondent no.5 have filed their respective replies. 4. The official respondents in their reply have stated that the petitioner has filed the writ petition on misleading facts and, thereby, approached the Court with unclean hands. It is averred that after receipt of applications pursuant to advertisement notice dated 23.03.2013, they notified the schedule for the conduct of the screening test of the eligible candidates vide notice dated 28.05.2013. The candidates were informed that the screening test shall be conducted at JKEDI Main Campus, Pampore and Jammu Campus, JLN Udhyog Bhawan. They received an application from respondent no.5 for changing his test venue from JKEDI Main Campus, Pampore, to Jammu Campus JLN Udhyog Bhawan, for the reason that he was out of State and it would be convenient for him to appear in the test at Jammu Centre. His request was acceded to and he was telephonically informed to appear at Jammu Centre on the date and time already specified in notice dated 18.05.2013. It is stated that respondent no.5 thus appeared in the screening test at Jammu Centre. To buttress this statement, the answering respondents have placed on record a copy of the application dated 22.05.2013 and scanned copy of the e-mail sent by respondent no.5 in that behalf. They have also placed on record copies of the attendance sheet of the Jammu Centre, answer scripts of the screening test held on 28.05.2013 and 29.05.2013 containing the signatures of the invigilators and other staff members. 5. It is further stated that the petitioner has given a wrong impression that the selection process consisted only of two tier stages, i.e., screening test and viva voce. 5. It is further stated that the petitioner has given a wrong impression that the selection process consisted only of two tier stages, i.e., screening test and viva voce. It is averred that the fact of the matter is that the selection process consisted of three stages comprising of screening test, Comprehensive Descriptive Written Test and viva voce. It is stated that the screening test was conducted only for purposes of shortlisting the candidates for written test and viva voce and that the merit obtained by the competing candidates in the screening test were not to be taken into consideration for determining the merit of candidates for purposes of making selections. It is also denied that the topper in the screening test had obtained 28.25 points; instead, it is stated, he had obtained 33.50 marks. It is also stated that the result of the written test and viva voce, about which the petitioner has maintained a malicious silence in the writ petition, was notified by the answering respondents vide notice dated 04.06.2013 in Daily Greater Kashmir in its issue dated 05.06.2013. It is denied that respondent no.5 had remained absent. In this connection, it is stated that respondent no.5 had obtained 27.75 points in the screening test. He also appeared in the written test, in proof whereof the official respondents have placed on record a copy of the attendance sheet of the written test wherein his name figures at serial no.5. It is, however, stated that respondent no.5 was erroneously shown as absent from the screening test because of the fact that he had appeared in Jammu Centre and not at Srinagar Centre and that is why he was shown as physically absent in the Srinagar Centre. It is stated that mistake/error committed by the answering respondents in not displaying the name of respondent no.5 in notification dated 01.06.2013 did not give any right to the petitioner to seek a direction for his appointment irrespective of his low merit than respondent no.5. It is denied that the selection of respondent no.5 was either bad in law or was a backdoor entry. 6. Respondent no.5 has filed his reply almost on similar lines. In his reply he has averred that he was working in Sewells Group, New Delhi when the respondents issued the call letters and notice dated 18.05.2013. It is denied that the selection of respondent no.5 was either bad in law or was a backdoor entry. 6. Respondent no.5 has filed his reply almost on similar lines. In his reply he has averred that he was working in Sewells Group, New Delhi when the respondents issued the call letters and notice dated 18.05.2013. Therefore, it was convenient for him to appear in the test at Jammu rather than at Srinagar. Accordingly, he made an application through fax to the Director, JKEDI on 22.05.2013 requesting him for changing his test venue from JKEDI Main Campus, Pampore to Jammu Campus, JLN Udhyog Bhawan. His request was accepted and he was telephonically informed about it with instruction to appear at Jammu Centre on the dates and time already specified in the notice dated 18.05.2013. It is averred that he had also sent a scanned copy of the said application to the official respondents through e-mail on the same day. Respondent no.5 has stated that he appeared in the screening test for two posts, Community Organizer and Trainer at Jammu. In the screening test for the post of Trainer he obtained 27.75 points and figured at serial no.5; whereas the petitioner obtained 26.25 points and figured at serial no.8 of the result sheet of screening test. It is further stated by respondent no.5 that he appeared in the Comprehensive Descriptive Written Test and Interview (Viva voce) as per the schedule prescribed by the official respondents. Respondent no.5 has also explained the circumstances under which he was shown to have absented from screening test from the Srinagar Centre. It is stated that he had actually applied for the posts in question from Srinagar and, therefore, his name seems to have been shown in the list of candidates who were to take the screening test at the Srinagar Centre, whereas, on his request, he was allowed to appear in the tests at Jammu Campus. It is also stated that pursuant to his selection, he was appointed as Trainer alongwith other similarly placed selectees. 7. I have heard learned counsel for the parties, perused the records produced by the official respondents and considered the matter. 8. This petition has been filed by the petitioner basically on the misconceived notion that respondent no.5 had absented himself from the screening test, therefore, he could not have been selected. 7. I have heard learned counsel for the parties, perused the records produced by the official respondents and considered the matter. 8. This petition has been filed by the petitioner basically on the misconceived notion that respondent no.5 had absented himself from the screening test, therefore, he could not have been selected. Perusal of the original record shows that pursuant to the advertisement notice dated 23.03.2013, in all 173 candidates had applied for the posts of Trainer. In the list of the total number of applications thus received, prepared by the official respondents, the name of respondent no.5 figured at serial no.64. He had applied for the post in form no.5043. His residential address in the said list was shown to be Daulatabad, Nowpoora, Srinagar. Since the screening test was conducted both at Srinagar and at Jammu, the official respondents bifurcated the candidates on the basis of their residential addresses such that the candidates who belonged to Kashmir would take their test at Pampore Campus and those who belonged to Jammu province would take their test at Jammu Campus of the Institute. The petitioner's name in the attendance sheet of Pampore Campus figured at serial no. 3. But the records show that he had appeared in the screening test at Jammu and his name figures in the provisional attendance sheet of Jammu. Consequently, he was shown absent in the attendance sheet that was prepared of the candidates who appeared in such test at Pampore Campus. In the shortlist of candidates, the petitioner's names figures at serial no.8; whereas respondent no.5's name is shown at serial no.5 and both are shown to be eligible. Meaning thereby, that the screening test was conducted only for proposes of shortlisting of candidates. In all 15 candidates had been shortlisted. 9. The note sheet dated 03.06.2013 on the file records as under: "3. Mr. Aijaz Ahmad Mulla had applied for the post of Trainer advertised by the Institute on 23.03.2013. Upon his written request received through e-mail, the copy whereof is placed alongside, the candidate was allowed to appear in the screening test at our Jammu Campus. However, while framing the result sheet of the examination, Mr. Aijaz Ahmad Mulla was inadvertently shown as absent in the screening test. 4. Upon his written request received through e-mail, the copy whereof is placed alongside, the candidate was allowed to appear in the screening test at our Jammu Campus. However, while framing the result sheet of the examination, Mr. Aijaz Ahmad Mulla was inadvertently shown as absent in the screening test. 4. The same result was uploaded on the Institute's website and the list of shortlisted candidates prepared on the basis of the said result sheet was published in the local dailies on 2nd instant. Copy placed alongside. 5. Mr. Aijaz has, however, secured 27.75 marks in the screening test and is among the successful candidates. 6. In order to rectify the error it is proposed that: 1) we may upload the corrected list on the Institute's Website immediately for information of all concerned; 2) since the last date of submission of testimonials by the shortlisted candidates has been scheduled as 4th instant, i.e., tomorrow, we may inform Mr. Aijaz Ahmad Mulla telephonically to submit his testimonials by the said date." The aforesaid note has been put up to the Director of the Institute who in turn, while approving the proposal, has recorded that this is a serious lapse and that the records be checked up to find out no other error was committed therein. 10. From the records it thus becomes manifest that the petitioner had not absented himself from the screening test, but he had on his request been allowed to take the said test at Jammu and had duly appeared not only in the screening test, but also in the subsequent test and interview. He had been inadvertently shown to have been absent from the screening test. It is nobody's case that the official respondents could not have rectified their patent error on its detection. However, they ought to have published the rectified and revised result sheet of the screening test in the local daily in the same way as the original result had been published, but they seem to have only uploaded it on its Website. Nonetheless, failure to do so on the part of the official respondents would not alter the fact scenario, nor would it clothe the petitioner with any right as against respondent no.5. Above being the factual position, it removes the foundation underneath the petitioner's case and renders his claim as misconceived. 11. Nonetheless, failure to do so on the part of the official respondents would not alter the fact scenario, nor would it clothe the petitioner with any right as against respondent no.5. Above being the factual position, it removes the foundation underneath the petitioner's case and renders his claim as misconceived. 11. There is yet another important aspect of the case, as rightly put by the learned counsels for the respondents. The shortlisted candidates, including the petitioner and respondent no.5, were put to Comprehensive Written Test and viva voce. The following criterion was formulated in this behalf: i) Soft Skill Descriptive Test: 20 points ii) Personality & Personal Demeanor: 20 points iii) Domain Knowledge: 20 points iv) Knowledge of the Sate: 20 points v) Analytical Ability: 20 points Total: 100 points The petitioner secured 44 points out of 100; whereas respondent no.5 secured 58 points out of 100. The petitioner has laid his claim on the basis of the merit obtained by him in the screening test when the fact is that the said test was conducted only for purposes of shortlisting the candidates and the merit obtained therein was not to be taken into consideration for purposes of drawing the select list. In fact, the petitioner has conveniently omitted to mention these facts in his writ petition and has, thus, tried to hoodwink the Court by suppressing the material and relevant facts. Be that as it may, the petitioner having secured merit less than respondent no.5 cannot claim violation or infringement of any of his rights, muchless the rights guaranteed under Articles 14 and 16 of the Constitution. The claim put forth by the petitioner in his writ petition is not substantiated. It, therefore, deserves to be dismissed. 12. It may be observed here that when this petition had first come up for consideration before a Coordinate Bench of this Court, on the submissions made by the learned counsel for the petitioner, the Court in its order dated 21.06.2013 observed as under: "Petitioner claiming to be eligible in all respects, applied for the post of Trainer in response to Notice No. JKEDI/P&PR/Advt./2013/13 dated 23.03.2013. He appeared in the screening test. However, tables were turned on him, when the selection list was published. He appeared in the screening test. However, tables were turned on him, when the selection list was published. The petitioner, although having better merit found his name missing in the select list, while the private respondent no.5, who was absent during the screening test figured at serial No.2 in the select list. Learned counsel for the petitioner submits that the instant case is a case of backdoor entry and misuse of official position by the authorities concerned, whereby the private respondent found berth in the select list without participating in the screening test." The statements made before the Court, as reflected in the aforesaid order, are axiomatically unfounded. It becomes clear that the statements have been made at the Bar only with a view to misleading the Court. It is undesirable on the part of any counsel to resort to sensationalism. Be that as it may, one thing is clear that the petitioner has approached the Court with soiled hands inasmuch as he has suppressed material and relevant facts. 13. In view of all what has been discussed above, no ground is made out to admit this petition to hearing. It is dismissed in limine together with the connected CMP. Interim order dated 21.06.2013 is vacated. 14. Taking a lenient view against the petitioner, it is ordered that the parties shall bear their own costs.