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2016 DIGILAW 433 (JK)

J&K Public Service Commission v. Shyam Singh

2016-08-19

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This appeal is preferred by the J&K Public Service Commission against the order made in Contempt Petition No. 509/2011, dated 15.10.2015, holding that the order passed by the Public Service Commission dated 03.04.2013, cancelling/rejecting the claim of the 1st respondent does not amount to compliance of judgment of Writ Court dated 10.11.2010 and the appellant was directed to comply with the Writ Court judgment and file a fresh compliance report before the next date of hearing. The case put forth by the 1st respondent in the contempt petition was that appellant advertised post of Lecturers in CVTS in Government Medical College Jammu by notification dated 06.03.2007 and the 1st respondent being fully eligible applied for the same. Two unqualified/ineligible candidates, namely, Dr. Arvind Kohli and Dr. Inshtiyaq also applied for the said post and their candidature was objected by the 1st respondent as they were not having recognized requisite degrees. The appellant having not taken note of the objection raised by the 1st respondent, he was constrained to file SWP No. 513/2007 impleading the said two doctors as party respondents and prayed to reject the applications filed by the said two doctors by the appellant. The Writ Court passed an order on 10.11.2010, taking note of the fact that the selection process has not been completed, held that private respondents in the writ petition were not satisfying the basic eligibility and any recommendation made for treating their degree as valid shall not be acted upon for competing in the selection process for the post advertised. Ultimately the Writ Court directed the authorities to initiate the process of selection for the above post in terms of the notification issued by the Public Service Commission by allowing only those candidates to compete in the said process who are possessed of basic eligibility i.e. M. Ch. Degree in CVTS from the medical institute/University which is recognized by the Medical council. Having aggrieved the said private respondents, namely, Dr. Arvind Kohli and Dr. Ishtiyak Ahmad Mir challenged the order of the Writ Court in LPA Nos. 175/2010 and 181/2010 respectively. The Division Bench by an elaborate order considered all aspects wherein the Public Service Commission supported the case of the private respondents/appellants who filed the L.P. Appeals and dismissed the appeals. Having aggrieved the said private respondents, namely, Dr. Arvind Kohli and Dr. Ishtiyak Ahmad Mir challenged the order of the Writ Court in LPA Nos. 175/2010 and 181/2010 respectively. The Division Bench by an elaborate order considered all aspects wherein the Public Service Commission supported the case of the private respondents/appellants who filed the L.P. Appeals and dismissed the appeals. Having not received any relief in the L.P. Appeals, the private respondents in the writ petition preferred SLP (Civil) No. 29969 of 2011 before the Hon'ble Supreme Court. However, the said SLP was dismissed as withdrawn by order dated 31.01.2013. Thereafter the Public Service Commission issued Order No. 92-PSC of 2013, dated 03.04.2013 taking a stand that the first respondent was not an in-service candidate and therefore, he was over-aged for selection to the said post of lecturer and consequently, cancelled the process as ab-initio and ordered for fresh process of selection. The said order passed being contrary to the directions issued, contempt petition was filed wherein the appellant pleaded that the first respondent having been employed in SKIMS which is not a Government institution, therefore, his candidature cannot be treated as an in-service candidate for whom alone, there is no age bar. Such an argument having been raised by the appellant in the contempt proceedings, the learned Single Judge was called upon to decide as to whether the first respondent was over-aged or not. The learned Single Judge, therefore, thought it fit to go into the said issue as it was raised by the Public Service Commission for the first time, by stating that such a plea having not been raised either before the writ court or before the Appellate Court, it is not open to the Public Service Commission to take a different ground to defeat the right accrued to the first respondent in terms of the Writ Court Order. 2. The second ground taken in the order dated 03.04.2013 is that SKIMS was taken over by the Government by Govt. Order No. 820-HME/2013, dated 22.07.2003 and was treated as a Government department/organization with its Directors as ex-officio Secretary to the Government in his official capacity. The said order was also upheld by judgment dated 07.06.2005 (SLJ 2005 282) : ( 2006 (1) JKJ 315 [HC] : JKJ Soft JKJ/21898 Sher-e-Kashmir National Medical Institute Trust v. State of J&K & Ors). Order No. 820-HME/2013, dated 22.07.2003 and was treated as a Government department/organization with its Directors as ex-officio Secretary to the Government in his official capacity. The said order was also upheld by judgment dated 07.06.2005 (SLJ 2005 282) : ( 2006 (1) JKJ 315 [HC] : JKJ Soft JKJ/21898 Sher-e-Kashmir National Medical Institute Trust v. State of J&K & Ors). It is stated in the order that Government Order No. 36-MED of 1979, dated 01.02.1979 was issued stating that SKIMS was declared as a Government Hospital for all intents and purposes. Thus, the learned Single Judge gave a finding that the first respondent being an in-service candidate was eligible for the advertised post notwithstanding the fact that he having crossed the upper age limit prescribed for direct recruitment on the cut off date as he is an in-service candidate. The learned Single Judge has also taken a note of the fact that the PSC having treated the first respondent as an in-service candidate and having conducted the interview, it is not entitled to take a different stand in a collateral proceedings. 3. The said finding rendered by the learned Single Judge is challenged by the PSC by contending that in the contempt proceedings the learned Single Judge was not justified in giving such a finding. 4. We have considered the said submissions. 5. The issue arises for consideration is as to whether the appellant is justified in taking a stand that the first respondent was not an in-service candidate and therefore, was age barred for direct recruitment. 6. Admittedly the appellant has not chosen to take the stand before the writ Court as well as before the Appellate Court and the finding rendered by this Court having attained finality, a different ground which was not taken earlier cannot be allowed to be raised by the appellant while implementing the order of the Court. The said issue cannot be raised on the principle of constructive res-judicata. It is well accepted principle of law that if several grounds are available which were failed to be raised, agitated and decided, the said grounds cannot be allowed to be raised in subsequent proceedings. It is also a well accepted proposition of law that principle of constructive res-judicata is applicable to even writ proceedings and the said issue is no longer res-integra. It is also a well accepted proposition of law that principle of constructive res-judicata is applicable to even writ proceedings and the said issue is no longer res-integra. The Hon'ble Supreme Court in the decision reported in (2015) 2 SCC 727 (South Central Railway Employees Cooperative Credit Society v. B. Yashodabai & Ors.) held the said proposition and in paragraph 15 it is held thus:- "15. ....If the litigants or lawyers are permitted to argue that something what was correct, but was not argued earlier before the higher court and on that ground if the courts below are permitted to take a different view in a matter, possibly the entire law in relation to the precedents and ratio decidendi will have to be rewritten and, in our opinion, that cannot be done....." 7. The eligibility of the first respondent by treating him as an in-service candidate cannot at all be disputed in view of the fact that the first respondent was appointed in SKIMS which was taken over by the Government by Govt. Order No. 820-HME of 2003, dated 22.07.2003 and the said taking over was also upheld by this Court which order has become final. Thus, the first respondent is an in-service candidate eligible to apply irrespective of his crossing the upper age limit. The said stand having been taken by the appellant by raising the said issue in the contempt proceedings, the appellant is not justified in raising the contention that in contempt proceedings., the said issue ought not to have been decided. The contempt proceedings were initiated for not implementation of the order of the writ Court. The appellant having raised the issue in the contempt proceedings which is a collateral proceedings, the appellant is thus, estopped from raising the said ground in this appeal. 8. It is also relevant to be noticed that the appellant accepted the candidature of the first respondent and allowed him to participate in the interview by treating him as an in-service candidate knowing fully well that he is an employee; in SKIMS and having satisfied all his eligibility and having not raised the same issue in the earlier proceedings, the appellant is estopped from raising the said plea. 9. It is also to be noticed that finality of judicial proceedings between the parties has to be maintained to maintain the rule of law. 9. It is also to be noticed that finality of judicial proceedings between the parties has to be maintained to maintain the rule of law. If the argument as advanced by the learned counsel appearing for the appellant is countenanced, it will have disastrous consequences in the administration of justice as any order can be defined by the authority by stating that the person who got the relief is not entitled to get the relief for a reason which was not raised or argued at the appropriate stage. In such circumstances, we are unable to find any reason to entertain the appeal. The appeal is dismissed. No costs.