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2015 DIGILAW 128 (JK)

Riyaz Ahmad Najar v. J&K Board for Muslim

2015-03-26

B.S.WALIA

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JUDGMENT : B.S. Walia, J.:- 1. Learned counsel for respondent Nos. 1 to 3 states that in view of the judgment of Co-ordinate Bench of this Court holding that the writ petition is not maintainable against Waqaf Board having been stayed by the LPA Bench, he does not press the objections with regard to the maintainability of the writ petition at this stage. Prayer in the SWP is for the issuance of a writ of Certiorari for quashing the impugned advertisement notice i.e. Annexure H (Page 15) issued by respondent No. 3 for making selection for the posts of Works Supervisor (Civil), for quashing of the entire selection process initiated by the official respondents for the posts of Works Supervisor (Civil) including the impugned order i.e. Annexure-K dated 29.04.2013, appointing the private respondents as Works Supervisor (Civil) as also for the issuance of a writ of Mandamus commanding the official respondents to initiate a fresh selection process and to consider only those candidates who have diploma in ITI from Building construction trade/Mason and further for commanding the official respondents to appoint the petitioner as Works Supervisor in the Muslim Waqaf Board. A prayer has also been made for restraining the official respondents from allowing the private respondents to function as Works Supervisor in Muslim Waqaf Board and from releasing their pay dues. 2. The entire controversy revolves around the qualification prescribed for the post of Works Supervisor (Civil) in the advertisement Annexure-H (Page-15). The stipulated qualification reads as under:- 3. Works Supervisor (Civil)Consolidated Rs. 500/-10+2 with minimum 3 years experience in civil works supervision and execution of ITI trained. 3. Grievance of the petitioner is that the qualification laid down is defective and it ought to have been only ITI trained and a person possessing qualification of 10 + 2 with minimum three years experience in Works Supervisor (Civil) and execution ought not to have been considered as eligible for selection and appointment to the post of Works Supervisor (Civil). 4. Learned counsel for the petitioner states that in all the departments of the State of Jammu and Kashmir, the qualification for the post of Works Supervisor (Civil) is only ITI trained in building construction. Therefore, it was not open to the Jammu and Kashmir Muslim Waqaf Board to have laid down a different qualification. 5. Learned counsel for respondent Nos. Learned counsel for the petitioner states that in all the departments of the State of Jammu and Kashmir, the qualification for the post of Works Supervisor (Civil) is only ITI trained in building construction. Therefore, it was not open to the Jammu and Kashmir Muslim Waqaf Board to have laid down a different qualification. 5. Learned counsel for respondent Nos. 1 to 3 states that it is the prerogative of the employer to lay down the qualifications for the advertised post and that no challenge can be raised to the qualification laid down by the employer in the absence of it being shown that the qualification stipulated is irrelevant, perverse or has no nexus whatsoever with the post advertised. Learned counsel for the respondent Nos. 1 to 3 further states that the same is not the position in the instant case. The petitioner's challenge to the stipulated qualifications as advertised vide advertisement (Annexure H) is without any lawful basis. Learned counsel for respondent Not. 1 to 3 further states that be that as it may, the writ petition is liable to be dismissed on the short ground that once having participated in the selection process without registering any protest in respect of the qualification laid down in the advertisement Annexure H, it is not open to the petitioner to turn around and challenge the criteria laid down for the selection once the selection result is not palatable to the petitioner. 6. Learned counsel for respondent Nos. 1 to 3 relies upon a judgment of the Hon'ble Supreme Court reported in AIR 1995 SC 1088 in case titled Madan Lal v. State of J & K & Ors. Relevant extract of the same is reproduced as under:- "..............In the case of Om Prakash Shukla v. Akhilesh Kumar ghukla, AIR 1986 SC 1043 , it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner..........." 7. Learned counsel for 7respondent Nos. 1 to 3 also relies upon the decision of this Court in SWP No. 246/2004 and other connected writ petitions in case titled as Raghbir Singh and Ors. Learned counsel for 7respondent Nos. 1 to 3 also relies upon the decision of this Court in SWP No. 246/2004 and other connected writ petitions in case titled as Raghbir Singh and Ors. v. State of J & K and Ors. to the effect that it is the prerogative of the employer to prescribe the eligibility qualification for the candidates for posts, which the employer desires to fill up etc. Relevant extract of the judgment is reproduced as under:- "Be that it may, it is the prerogative of the employer to prescribe any eligibility qualification for the candidates to a post which it desires to fill up. For filling up a post available under the State Government, it is for the Government to prescribe the eligibility qualification for the post. In prescribing such qualification, the Government is also competent to say as to wherefrom or from which institutes such qualification, should have been acquired by the candidates. No fetters can be placed upon this power of the State Government on the basis of any policy decision to the contrary taken by the Central Government relating to the posts under it." 8. It is well settled law that it is the employer who is competent to stipulate the qualification for the advertised post and that the same cannot be challenged unless it be that the qualification prescribed is irrelevant for the post advertised. 9. Secondly, in view of the law settled by Hon'ble the Supreme Court in Madan Lal v. State of J & K (Supra), it is not open to the petitioner to challenge the laying down of the eligibility condition after having participated in the selection process without any protest. 10. In these circumstances, the writ petition is devoid of any merit. Resultantly, the same is ordered to be dismissed. 11. No order as to costs.