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2014 DIGILAW 57 (JK)

Dorjay Gyatso v. State Of J&K

2014-02-13

MOHAMMAD YAQOOB MIR

body2014
1. Respondent no. 3, while competing for the post of junior Engineer (Civil/Mechanical) Grade-II has failed to make the grade. Tie process culminated in selection and appointment of 43 candidates as per Annexure to Government Order No. 331-PW of 1993 dated 15.06.1993. In the said selection/appointment list, respondent no. 4-Ghulam Nabi Zarger figured at serial no. 10, whereas petitioner nos. 1 to 5 figured at serial nos. 11, 12, 16, 25 & 28 respectively. 2. Respondent no. 3 having failed to make the grade, represented before the respondent-Authorities that respondent no. 4-Ghulam Nabi Zarger does not possess ST Certificate. On such basis, he has filed writ petition SWP No. 123/93, which has been disposed of with the following directions:- "(i) that the respondents would hold enquiry with regard to status of respondent-5. (ii) let this enquiry be completed within a period of two months. (iii) the period of two months would begin from the date copy of order passed by this court is made available to the respondents. (iv) in case enquiry is not completed within stipulated period then letter of appointment shall stand issued in favour of the petitioner and petitioner shall stand appointed to the similar post as held by the respondent-5. Petitioner would be entitled to all benefits except monetary benefit. Disposed of accordingly." 3. Still dissatisfied with the same, filed LPA (SW) No. 46/1999, which has been dismissed vide judgment dated 16th November, 1999. 4. Subsequent thereto, for ensuring implementation of the judgment, it is respondent no. 3, who filed contempt petition bearing COA (SW) No. 52-B/99. 5. During the course of the said contempt proceedings on 31st January, 2001, the submission was made on behalf of respondent (alleged contemnor) to the effect that respondent no. 3 (petitioner therein) has been appointed which was admitted but with the submission that the appointment is in pursuance to selection as was made in the year 1997, but not in compliance to the direction dated 01.12.1998 issued while disposing SWP No. 123/93. Then again on 05.12.2001, counsel for the respondents therein had said that the order dated 01.12.1998 passed in SWP No. 123/93 has been complied with. Based on such submission, the contempt petition was dismissed as having been rendered infructuous. 6. Respondent no. 3 side by side had again competed against the posts of Junior Engineers (Civil/Mechanical), which were subsequently advertised. Then again on 05.12.2001, counsel for the respondents therein had said that the order dated 01.12.1998 passed in SWP No. 123/93 has been complied with. Based on such submission, the contempt petition was dismissed as having been rendered infructuous. 6. Respondent no. 3 side by side had again competed against the posts of Junior Engineers (Civil/Mechanical), which were subsequently advertised. In that process, large number of candidates were selected and appointed but again respondent no.3 as alleged, had failed to make the grade, as a result thereof, one more writ petition was filed by Manzoor Ahmed and others. On the submission made therein that some vacancies are still available, the direction was issued to the effect that the appointment in respect of 13 posts shall defer. Subsequently, vide order dated 16.08.1999 passed therein, respondent-Authorities were directed to accord consideration to the petitioners, therein on their merit in respect of the posts which were reserved vide order dated 2nd June, 1999. In compliance whereof vide Government Order No. 418-Works of 2000 dated 23.10.2000, 11 candidates were appointed which include respondent no. 3, who figured therein at serial no. 11. It is in view of this position, a submission was made in the contempt proceedings earlier that the order has been complied with, as respondent no. 3 has been appointed. 7. Again position has been complicated as the respondents have issued one more order on 9th November, 2001, which reads as under:- "Government order no. 477-Works of 2001 Dated : 9.11.2001 In terms of judgment of Hon'ble High Court in SWP No. 123/99 and COA No. (SW) 52-B/99, it is hereby ordered that Sh. Tashi Doraje, Junior Engineer (Civil) appointed vide Govt. Order No. 418-Works of 2001 dated 23.10.2001, shall be treated to have been appointed w.e.f. 16.06.1993 notionally without any monetary benefit, (the date from which Sh. Gulam Nabi Zargar was appointed as Junior Engineer). The seniority of Sh. Tashi Doraje (petitioner) shall be fixed above Sh. Gulam Nabi Zargar. By order of the Government of Jammu and Kashmir. Sd/- Principal Secretary to Government Works Department" 8. The appointment of respondent no. 3 has been treated to be with effect from 16.06.93 notionally with a further condition that he shall figure in the seniority above Ghulam Nabi Zarger. Then final seniority list has been issued vide Government Order No. 307-PW of 2004 dated 28.07.2004 wherein respondent no. Sd/- Principal Secretary to Government Works Department" 8. The appointment of respondent no. 3 has been treated to be with effect from 16.06.93 notionally with a further condition that he shall figure in the seniority above Ghulam Nabi Zarger. Then final seniority list has been issued vide Government Order No. 307-PW of 2004 dated 28.07.2004 wherein respondent no. 3 figures at serial no. 401 above Ghulam Nabi Zarger as well as the present writ petitioners of SWP No. 1588/2002. The petitioners aggrieved by the same have filed SWP No. 1588/2002. 9. Ghulam Nabi Zarger has filed two writ petitions. In SWP No. 1175-S/2002 he has challenged Government Order No. 477-Works of 2001 and in SWP No. 1394-S/2004 he has challenged Government Order No. 307-PW of 2004 whereunder final seniority list has been issued. 10. Whether respondent no. 3, who was selected and appointed in a subsequent selection process, could be held entitled to appointment with retrospective effect in order to show compliance to the judgment dated 01.12.1998? Whether, he could be placed in seniority list above Ghulam Nabi Zarger which has the effect of also to place him over the head of other appointed persons figuring from serial no. 10 onwards which include the writ petitioners ? 11. In terms of the judgment dated 01.12.1998 upheld in LPA(SW) No. 46/1999 dated 16th November, 1999, enquiry was required to be held and completed within two months regarding ST certificate of Ghulam Nabi Zarger with a condition that in case enquiry is not concluded within two months or no enquiry is held in that eventuality, petitioner therein shall stand appointed to the similar post as held by Ghulam Nabi Zarger (respondent no.5 therein). 12. In case enquiry would have been held and if Ghulam Nabi Zarger would have been found possessing the requisite certificate then respondent no. 3 had no right of appointment. In absence of enquiry, on the strength of the judgment, he would stand appointed, if that position is taken that he is appointed without disturbing the position of Ghulam Nabi Zarger then he has to figure in the list of 43 candidates so appointed at the bottom of the list. Even otherwise, if there had been ouster of Ghulam Nabi Zarger still he would figure at the bottom of the said list. Even otherwise, if there had been ouster of Ghulam Nabi Zarger still he would figure at the bottom of the said list. In any case, he could not rank senior to the petitioners because their position in order of merit has not been assailed nor was open to challenge. Placing respondent no. 3, who had failed to make the grade above Ghulam Nabi Zarger in the list of 43 Junior Engineers is totally unwarranted and against the interests of the other Junior Engineers figuring in the said list. 13. Now another important aspect is as to whether any enquiry has been held. According to learned counsel, Mr. Pant, an application was filed by the Ghulam Nabi Zarger for ST certificate but same has been rejected by the Tehsildar on May, 1993. But this position has been concealed by respondent no. 3 himself in the earlier filed writ petition, therefore, has to be ignored more so in view of the judgment dated 01.12.98 rendered in SWP No. 123/93 which provided for holding enquiry. In compliance whereof, it appears that the District Superintending Engineer, P.W.D Circle Leh has conducted the enquiry, same has been conveyed to the Secretary to Government, PHE Irrigation and Flood Control Department] J&K Govt. Jammu vide No. SEL/Estt/-032 dated 6th March, 1999 wherein it has been clearly indicated that respondent no. 4-Ghulam Nabi Zarger has produced the original ST certificate along with photocopy duly attested. Tehsildar Leh (prescribed authority) was asked vide letter dated 05.03.1999 to confirm and authenticate, if the ST certificate has been issued in favour of the said respondent no. 4-Ghulam Nabi Zarger. In response, Tehsildar Leh vide his letter No. Teh(2)-V/95 dated 6.3.99 has informed that the requisite certificate has been issued. In short, ST certificate of respondent No. 4-Ghulam Nabi Zarger has been authenticated. If this position would have been considered by the respondent-Authorities then they might not have issued the order No. 477-Works of 2001 dated 09.11.2001. 14. In compliance of the earlier judgment, it is clear that the enquiry has been conducted, Certificate of said Ghulam Nabi Zarger has been found to be genuine, therefore, respondent no. 3 could not be included in the list of 43 Junior Engineers, as appointed vide Government Order No. 331-PW of 1993 dated 15.06.1993. 15. 14. In compliance of the earlier judgment, it is clear that the enquiry has been conducted, Certificate of said Ghulam Nabi Zarger has been found to be genuine, therefore, respondent no. 3 could not be included in the list of 43 Junior Engineers, as appointed vide Government Order No. 331-PW of 1993 dated 15.06.1993. 15. In the contempt proceedings, learned counsel had made a fair and genuine submission to the effect that the appointment of respondent no. 3 is in pursuance to the subsequent selection, not in compliance to order dated 01.12.1998 passed in SWP No. 123/93. Subsequently on 05.12.2001, perhaps in view of Order No 477-Works of 2001 dated 09.11.2001 counsel for official respondents had made submission that order dated 01.12.1998 passed in SWP No. 123/93 has been complied with. Infact, it is in pursuance to the directions issued in the subsequent writ petition, i.e., SWP No. 968/98 titled Manzoor Ahmed v. State and in view of the circumstances as given in detail in the Govt. Order No. 418-Works of 2000 dated 23.10.2000 in terms whereof 11 Junior Engineers including respondent no. 3 Sh. Tashi Dhorjay figuring at serial No. 11 have been appointed. 16. It is to be safely concluded that in case in compliance to judgment dated 01.12.1998 respondent no. 3 would have been included on the exclusion of Ghulam Nabi Zarger, he could figure at the bottom of the list and not above the writ petitioners. Even otherwise, without disturbing the position of Ghulam Nabi Zarger, if he could get in on the strength of the said judgment, still he would figure at the bottom of the list of 43 Junior Engineers appointed vide Government Order No. 331-PW of 1993 dated 15.06.1993. 17. The respondent no. 3 by no stretch of imagination could be placed in the seniority list above Ghulam Nabi Zarger, even above the other candidates, including the writ petitioners of SWP No. 1588/2002 appointed vide Government Order No. 331-PW of 1993 dated 15.06.1993. The Government Order No. 477-Works of 2001 dated 09.11.2001 which is impugned in SWP No. 1588/2002 and SWP No. 1175-S/2002 to the extent it provides for placement of Sh. Tashi Dhorjay above Sh. Ghulam Nabi Zarger is set aside. 18. The position allotted to Sh. Tashi Dhorjay at serial no. The Government Order No. 477-Works of 2001 dated 09.11.2001 which is impugned in SWP No. 1588/2002 and SWP No. 1175-S/2002 to the extent it provides for placement of Sh. Tashi Dhorjay above Sh. Ghulam Nabi Zarger is set aside. 18. The position allotted to Sh. Tashi Dhorjay at serial no. 401 above Ghulam Nabi Zarger on the basis of Government Order No. 477-Works of 2001 dated 09.11.2001 in the seniority list issued vide Government Order No. 307-PW of 2004 dated 28.07.2004 impugned in SWP No. 1394 shall be ignored and deleted. Respondent no.3, Sh. Tashi Dhorjay shall be considered for being placed in the seniority list at an appropriate place where he deserves to be placed but in any case shall not be placed above 43 Junior Engineers appointed vide Government Order No. 331-PWof 1993 dated 15.06.1993. 19. As a necessary corollary, all the three Writ Petitions bearing SWP No. 1588/2002 filed by Dorjay Gyatso & others, SWP Nos. 1175-S/2002 & 1394-S/04 filed by Ghulam Nabi Zarger are allowed, so shall stand disposed of as indicated above along with connected CMA(s).