Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 183 (JK)

Vijay Sharma v. State of J&K

2015-04-16

TASHI RABSTAN

body2015
JUDGMENT : Tashi Rabstan, J.:- 1. The petitioner is aggrieved of his non-selection to the post of Technician Grade-III in the Power Development Department pursuant to Advertisement Notice No. 6 of 1997 dated 01.07.1997. He by the medium of present writ petition is seeking a direction to the respondents to select and appoint him against the said post as per his merit position in the selection process and also grant him all consequential benefits with effect from the date other similarly situated candidates came to be selected and appointed against the said post. The facts-in-brief, as gathered from the writ record, are that pursuant to advertisement Notice No. 6 of 1997, dated 01.07.1997 petitioner applied for the post of Technician Grade-III in Power Development Department for Divisional as well as District Cadre posts. The qualification prescribed for the said post was Matriculate with ITI in Electric/Electronics. Service Selection Board issued the select list in the year 1998. Petitioner could not find his name in either of the select lists of Divisional as well as District Cadre posts of Technician Grade-III. For District Cadre Rajouri the Board had selected as many as 45 candidates and the last selected candidate had secured 44.08 marks. Aggrieved of his non-selection petitioner filed SWP No. 1252/1998 in this Court challenging the selection of selected candidates. Other aggrieved candidates also filed writ petitions challenging the same selection, lead case being SWP No. 879/1998. A coordinate Bench of this Court while disposing of these petitions directed the respondents to appoint the petitioners therein against the available vacancies in different districts without disturbing the selection already made. It was further directed that the petitioners therein would also be entitled to all consequential benefits minus the monetary benefits. The Court was also of the view that the respondent-Board had wrongly fixed the weightage for technical qualification as 80 points, and did not assess the candidates as far as qualification of matric was concerned. 2. Against the said judgment, J & K Service Selection Board filed LPA(SW) No. 378/99. The LPA Bench vide judgment dated 16.11.2002, while setting aside the order of learned Single Judge, directed the respondents to re-draw merit list of the candidates according to their merit by preparing state-wise list within a period of three months and, thereafter, direct the candidates to join their duties at the particular place after taking undertaking from them. 3. The LPA Bench vide judgment dated 16.11.2002, while setting aside the order of learned Single Judge, directed the respondents to re-draw merit list of the candidates according to their merit by preparing state-wise list within a period of three months and, thereafter, direct the candidates to join their duties at the particular place after taking undertaking from them. 3. The judgment of LPA Bench was further challenged before the Apex Court in SLP(C) No. 7612/2003 and other connected matters. The Apex Court while disposing of these cases vide judgment dated 26.10.2005 held as under: "Under the above circumstances, it is just and proper to direct that out of the notified vacancies, if any of the posts are remaining unfilled either due to want of candidates or non-joining duties, these vacancies shall be filled up by candidates out of the petitioners who have secured more than the cut-off marks secured in the 1997 selection and they be appointed according to the marks secured in the selection. This exercise shall be completed within a period of four months and their appointments shall be effected by the petitioner State within this period. It is also clarified that in case any of the candidates have become over aged by this time, that criterion shall not stand in the way of their appointment." 4. Pursuant to the aforesaid decision, respondent No. 3 undertook the exercise for implementing the judgment of Apex Court with Financial Commissioner and Secretary to Government, Power Development Department vide communication dated 22.06.2006. In the concluding part of said communication it was observed as under: "In the event of de-reservation of these 165 posts, the Government can consider appointment of the candidates from out of the merit list formulated and detailed in Annexure F in respect of candidates placed in the order of merit from S. No. 1 to 126. Out of these 126, the candidates figuring at S. Nos. 03, 26, 34, 40, 45, 47, 78, 86, 93, 94, 108, 115 and 123 have not preferred claim vis-a-vis the notice issued by the Board. A view about these thirteen candidates needs to be taken by the Department." 5. Annexure "A" to the said communication was the list of candidates who had preferred claims vis-a-vis the notice issued by the Service Selection Board. The name of petitioner herein figured at Sr. No. 2 in the said list. A view about these thirteen candidates needs to be taken by the Department." 5. Annexure "A" to the said communication was the list of candidates who had preferred claims vis-a-vis the notice issued by the Service Selection Board. The name of petitioner herein figured at Sr. No. 2 in the said list. Annexure "F" to the said communication was the consolidated merit list of 126 candidates whom the respondent-Board had deemed eligible to grant the benefit of appointments pursuant to the directions of Apex Court. However, the name of petitioner did not figure in the consolidated merit list of 126 candidates. The reason which the petitioner was orally given to understand was that his merit was less than the last candidate figuring at Sr. No. 126, which was notified as 46.94. It is pertinent to mention here that out of these 126 candidates, 125 were from open merit category. 6. Thereafter the Government vide Order No. 165-PDD of 2006 dated 22.09.2006 accorded sanction for de-reservation of 125 reserved category posts of Technician-III in Power Development Department from out of the posts that were notified for recruitment originally in 1997 by the Service Selection Board. These posts were to be filled from out of the petitioners in SWP No. 879/1998 and other connected matters who had secured more than the cut-off marks in the 1997 selection process. Respondent No. 2, thereafter, issued Order No. 511-DCP, dated 20.11.2006 appointing 74 candidates against the post of Technician Grade-III. Again vide Order No. 260-PDD dated 03.09.2007 three candidates came to be appointed against the said post. Thereafter the respondents issued Order No. 250-PDD, dated 30.11.2009 by virtue of which sanction came to be accorded for appointment of 44 candidates against the post of Technician Grade-III. 7. It is averred in the petition that the name of petitioner was not considered at all for appointment to the said post despite the fact that he had secured more than the cut-off marks in the selection process of 1997. Further it is averred that in the year 2010, in another litigation pertaining to the same selection, respondent No. 1 filed supplementary affidavit dated 03.05.2010, in paragraph 7 whereof it was clarified that out of 125 de-reserved posts, only 116 candidates came to be appointed as per the break-up of 71+3+42, thus leaving 9 de-reserved vacancies still unfilled. Further it is averred that in the year 2010, in another litigation pertaining to the same selection, respondent No. 1 filed supplementary affidavit dated 03.05.2010, in paragraph 7 whereof it was clarified that out of 125 de-reserved posts, only 116 candidates came to be appointed as per the break-up of 71+3+42, thus leaving 9 de-reserved vacancies still unfilled. It is also averred that thereafter no other order appointing any of the candidate against these 9 de-reserved posts came to be issued by respondent No. 2. It is also averred that in order to know how much marks he had secured in the selection process, the petitioner filed an application under Right to Information Act. And vide communication No. SSB/Adm/RTI-156/11/1025-29, dated 25.08.2011 he was informed that he had secured 66.60 points for Divisional Cadre and 58.12 points for District Cadre post of Technician Grade-III, whereas the last selected candidate under District Cadre post had secured only 44.08 marks. It is, thus, averred that the petitioner was fully eligible and entitled to be shown in the merit list of 126 candidates, wherein the last selected candidate was shown to have obtained 46.94 points only, i.e., much below the points which the petitioner had secured for District Cadre Post, i.e., 58.12 points. 8. Counter affidavit has been filed on behalf of respondents 3 & 4. It is contended that the petitioner had secured 66.60 points for the post of Technician Grade-III, Divisional Cadre, Jammu, and the last cut-off point was 69.14. Whereas, for District Cadre Rajouri, the petitioner had secured 58.12 points and the last cut-off point was 60.34. However, it is averred that after de-reservation of 125 posts, the cut-off point for the candidates included in the select lists was derived across the board for open merit category in the selection of 1997 and 43.36 points scored by the lowest last selected candidate in District Srinagar was found to be cut-off point to determine the eligibility of the selectees. Further, it is averred that though the petitioner had secured 58.12 points, yet he was rendered ineligible by the Power Development Department vide letter No. PDD-VI/219/97, dated 13.08.1997 on the ground that his qualification of Matric with TV/Radio Mechanic was not in line with the post advertised. 9. Heard learned counsel for the parties and perused the pleadings. 10. Further, it is averred that though the petitioner had secured 58.12 points, yet he was rendered ineligible by the Power Development Department vide letter No. PDD-VI/219/97, dated 13.08.1997 on the ground that his qualification of Matric with TV/Radio Mechanic was not in line with the post advertised. 9. Heard learned counsel for the parties and perused the pleadings. 10. Admittedly, the petitioner had applied for the post of Technician Grade-III in Power Development Department for Divisional as well as District Cadre posts pursuant to advertisement Notice No. 6 of 1997, dated 01.07.1997. The qualification prescribed for the said post was Matriculate with ITI in Electric/Electronics. It is not the case of respondents that the petitioner had obtained less marks than the marks obtained by the last selected candidate. In fact, the petitioner was awarded much higher marks than the last selected candidate for District Cadre Post Rajouri. 11. The stand taken by the respondents is that 43.36 points scored by the lowest last selected candidate in District Srinagar was found to be the cut-off point to determine the eligibility of the selectees; the petitioner, no doubt, had obtained 58.12 points, much more than the lowest last selected candidate, yet he was held ineligible for the post in question as the qualification possessed by him was not in consonance with the qualification prescribed in the advertisement notice. As per the stand of respondents, the petitioner possessed the qualification of Matric with TV/Radio Mechanic. 12. At page 2 of the counter affidavit filed by respondents 2 & 3, they have mentioned the qualification for the post of Technician Grade-III. It would be relevant to reproduce the same hereunder: "The prescribed qualification for the post as given in the advertisement notice was as under: "Matriculate with ITI in Electric/Electronics" 13. It is specific stand of respondents that the qualification of TV/Radio Mechanic possessed by the petitioner was not in consonance with the qualification prescribed in the advertisement notice; therefore, he was not selected and appointed against the post-in-question, although he had secured much more marks than the last selected candidate. 14. Additional Secretary to Government, Power Development Department vide Communication No. PDD-VI/219/97, dated 13.08.1997 apprised respondent No. 3 that ITI Trade in TV and Radio Mechanics is not eligible qualification for the post of Technician III. 14. Additional Secretary to Government, Power Development Department vide Communication No. PDD-VI/219/97, dated 13.08.1997 apprised respondent No. 3 that ITI Trade in TV and Radio Mechanics is not eligible qualification for the post of Technician III. Upon receiving the said communication, Administrative Officer of the Board vide Communication No. SSB/J/5498 dated 22.02.1998 addressed to Director, Technical Education, Jammu, sought further clarification on the issue because the petitioner herein was not only having two years course in Radio and TV from ITI Jammu, but he was also possessing Electronic Product Course of six months. In the meanwhile, Principal, Industrial Training Institute, Jammu, vide Communication No. 2077, dated 20.02.1998 clarified the Board that Vijay Sharma, petitioner herein, has successfully passed the Electronic Product Course of six months and he can apply for the post of Technician-III in Power Development Department. Therefore, in view of this clarification, communication dated 13.08.1997 holding the petitioner ineligible to apply for the post loses its significance. Petitioner has not only done two years Course in Radio and TV from ITI, but has also done six months course in Electronic Product. Therefore, respondent-Board cannot deny the claim of petitioner merely on the basis of communication dated 13.08.1997. Otherwise too, Radio/TV Mechanic Course also comes within the definition of Electronics. The rejection of petitioner's claim by the respondents is not only arbitrary but discriminatory in nature too. The petitioner is hankering for justice for the last more than 16 years, but the respondents on one or the other pretext are denying his rightful claim. 15. In view of the above factual position, the writ petition is allowed. Respondents are directed to issue appointment order in favour of petitioner for District Cadre Rajouri with effect from the date other similarly situated persons came to be appointed against the post of Technician Grade-III in Power Development Department. Let the order of appointment be issued within a period of two weeks. The petitioner shall be entitled to all consequential benefits minus the monetary benefits. Petitioner is also entitled to notional seniority. Respondents are directed to fix his seniority strictly as per his merit position in the original select list. The petitioner has been denied his rightful claim and made to suffer for so long years for no fault of him. The matter is hanging for the last more than sixteen years only because of laxity and non-serious approach of respondents. Respondents are directed to fix his seniority strictly as per his merit position in the original select list. The petitioner has been denied his rightful claim and made to suffer for so long years for no fault of him. The matter is hanging for the last more than sixteen years only because of laxity and non-serious approach of respondents. Since the delay in offering appointment to the petitioner rests squarely on the respondents, they are burdened with costs of rupees fifty thousand, to be deposited by them in the Registry of this Court within a period of one month from today. On deposit, the same shall be released in favour of petitioner after proper verification and identification. It is made clear that in case the respondents fail to deposit the costs within the aforesaid period, Registrar (Judicial) is directed to frame a separate robkar against them and list the same before the Court.