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2015 DIGILAW 7 (JK)

Shamim Ahmad Ganai v. State

2015-02-04

MUZAFFAR HUSSAIN ATTAR

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JUDGMENT Advertisement Notice was issued by the official respondents whereunder applications were invited from the permanent residents of J&K State (male candidates only) for filling up of the 1000 posts of Constables in IRP 10 Bn., in the pay scale of Rs.2750-70-3800-75-4400 plus allowances. Para 2 of the Advertisement Notice provided that the recruitment will be district wise and the candidates belonging to one District will not be considered for recruitment in another District. After the selection process was over, the petitioner was not selected which constrained him to file this writ petition. Para 5 of the objections filed by the respondents is taken note of:- “5. In reply to para 5, it is submitted that the petitioner among others had also applied for the post of Constable pursuant to aforementioned notification. He had qualified physical measurement test as well as all five outdoor attempts and, therefore, came to be brought in the open merit category list of Tehsil Bijbehara at Serial Number 7. However, as only five (5) candidates as per quota were to be taken from Tehsil Bijbehara in Open Merit Category, therefore petitioner could not be taken as he was figuring at S.No.7 in the list. It is submitted that in the process of selection/assessment of merit by the competent selection authority, petitioner though got selected but could not made it within the first five candidates. As such para is accordingly replied.” In the objections it is stated that on the basis of merit the petitioner figured at S.No.7 in the open merit category list of Tehsil Bijbehara. Admittedly, the official respondents have made selection by restricting the zone of consideration to Tehsil, which procedure adopted by the respondents is contradictory to their own advertisement notice which provided that the recruitment will be made on District wise basis. Even otherwise the selection/recruitment cannot be made by restricting the zone of consideration to the Tehsil level. The selection has been made in violation of Article 14 and 16 of the Constitution of India. However, much time has elapsed after selection has been made and the petitioner has not challenged the entire selection list. Since there is violation of guarantees contained in Article 14 and 16 of the Constitution of India, that may not thus, in the facts of this case, affect the rights of the petitioner to seek appropriate relief from the Court. However, much time has elapsed after selection has been made and the petitioner has not challenged the entire selection list. Since there is violation of guarantees contained in Article 14 and 16 of the Constitution of India, that may not thus, in the facts of this case, affect the rights of the petitioner to seek appropriate relief from the Court. Learned counsel for the petitioner referred to the judgment of a Division Bench of this Court reported in 2010(1) SLJ page 12. Learned counsel more particularly referred to para 16 and 17 of the judgment to indicate that the petitioner in view of the law laid down has to succeed in this petition. Copy of the judgment is taken on record. On 4th March, 2009 Court has directed that one post of Constable shall not be filled up until disposal of the writ petition, which otherwise would mean that one post of Constable has been reserved. On the own admission of official respondents the petitioner was a meritorious candidate and figured at S.No.7 of merit list. This would show that had the official respondents not made the selection on the Tehsil wise basis, the petitioner would have been appointed on the post of Constable. Petitioner has been arbitrarily denied the selection/appointment. For the above stated reasons this petition is disposed of in the following manner: Respondents are directed to offer appointment to the petitioner on the post of Constable. The necessary appointment order be issued within a week’s time from the date copy of this order is served. It is further directed that since the petitioner has been wrongly denied the fruits of selection, his seniority shall be reckoned from the date the other persons from the same selection process have been selected and appointed as Constables. Since the petitioner has not worked he shall not be entitled to monetary benefits for the said period.