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2016 DIGILAW 604 (JK)

Bharat Vijay v. State of J&K

2016-11-22

ALOK ARADHE

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JUDGMENT : ALOK ARADHE, J. 1. None appeared on behalf of the respondent Nos. 1, 2 & 4 to 36, despite matter being taken in the second round. With the consensus of the learned counsel for the parties, the matter is taken up on board for final hearing. In this writ petition preferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K State, the petitioner inter alia seeks quashment of select list dated 08.12.2007, issued for the post of Draftsman Civil, Division Cadre, Kashmir. The petitioner also seeks a writ of mandamus commanding the respondent Nos. 1 to 3 to appoint the petitioner as Draftsman Civil with all consequential benefits. 2. Facts giving rise to the filing of the writ petition briefly stated are that an advertisement notice dated 03.07.2007 was issued by the SSRB, by which applications were invited for the post of Draftsman Civil, Public Works Department, Division Kashmir. Under the aforesaid notification, 87 vacancies under different categories were notified and the minimum qualification prescribed for the post in question was two years diploma course. The petitioner being eligible submitted his application form. An interview call letter dated 28.09.2007 was received by the petitioner after the date of interview i.e. on 09.10.2007, whereas the interview was scheduled to be held on 08.10.2007. The petitioner on receipt of the information about the date of the interview from his own sources appeared before the interview committee on 08.10.2007. 3. Respondent No. 3 adopted the criteria for selection and prescribed, 70 marks for qualification and 30 marks for interview. The petitioner obtained 48.22 marks for his qualification out of 70 marks earmarked for qualification. Thereafter, the selection list was published on 08.12.2007, by which 34 candidates were selected under the open merit category. The petitioner was not selected, thereupon the petitioner approached the Secretary of the Board under the J&K Right to Information Act, 2004 by submitting an application on 19.12.2007 and sought the information with regard to the marks given to the selected candidates as well as the wait listed candidates. 4. However, the application filed by the petitioner failed to evoke any response. 4. However, the application filed by the petitioner failed to evoke any response. Thereupon, the petitioner filed a writ petition bearing SWP No. 320/2008 before this Court, which was disposed of by a Bench of this Court on 27.03.2008, with a direction to respondent No. 3 herein to supply the information to the petitioner as to how many marks have been given to the selected candidates for qualification as well as for viva-voce. In pursuance of the order passed by this Court, the respondent No. 3 supplied the information in respect of 34 candidates. From the information supplied by the respondent No. 3, the petitioner learnt that the selected candidates have been awarded marks in the viva-voce between 19.33 to 29 marks, whereas the petitioner was awarded only 5.67 marks in the viva-voce out of 30 marks. In the aforesaid factual background, the petitioner has approached this Court seeking the reliefs as is stated supra. 5. Learned counsel for the petitioner submitted that the petitioner on the basis of his qualification was awarded 48.22 marks out of 70 marks, whereas in the interview he has been awarded 5.67 marks out of 30 marks. It is submitted that the members of the selection committee were prejudiced against the petitioner. In this connection, learned counsel for the petitioner has referred to the averments made in the grounds D, E and G of the writ petition. Learned counsel for the petitioner has also referred to the averments made by the respondent No. 3 in the grounds B and D of his objections, and has submitted that the petitioner has acquired the diploma from Jammu and Kashmir State itself. A stand taken by the respondent No. 3 in the grounds B and D of his objections does not justify the award of 5.67 marks to the petitioner in the interview. 6. On the other hand, Mr. Raman Sharma, learned Dy. AG for respondent No. 3 submitted that merely because the petitioner had good academic record, it does not mean that the petitioner has to be awarded more marks in the interview. It is further submitted that the marks have been awarded on the basis of the performance of the petitioner in the interview and there is no presumption that a person who is good in academics may perform well in the interview as well. It is further submitted that the marks have been awarded on the basis of the performance of the petitioner in the interview and there is no presumption that a person who is good in academics may perform well in the interview as well. It is further submitted that the case the petitioner is based on assumptions and presumptions and the petitioner has been dealt with fairly by a duly constituted selection committee on the basis of the criteria evolved by the selection committee, which is not under challenge in this petition. It is also submitted that the petitioner having participated in the process of selection cannot be permitted to challenge the same. 7. I have considered the submissions made by both sides and have perused the records. In paragraph G of the petition, the petitioner has made a specific averment that he had answered all the questions put to him and one of the members of the interview board asked the question to the petitioner as to why he has opted to fill in the form from the Kashmir Division and instead he should have applied for the post in question from the Jammu Division. It has further been stated that a member of the interview board told him that keeping in view his merit in the qualifying examination he could have been selected had he applied from Jammu Division. It has also been stated that the members of the interview board were highly prejudiced on the ground that the petitioner belongs to the Jammu Division. 8. Respondent No. 3 has denied the averments made in paragraph G of the writ petition and has stated that the same was totally wrong and baseless. In other words, there is no specific denial of the averments made in the ground G. It is also pertinent to mention here that in paragraph D of the objections, respondent No. 3 has taken a stand that certain candidates had obtained the Diploma in Draftsmanship from various institutions outside the State and some even in the Hindi medium had secured high percentage, therefore, they were grilled by the selection committee during the process of interview and, therefore, they could not get marks in viva-voce commensurate to their high percentage in academics. 9. 9. It is also pertinent to mention here that the petitioner has secured the diploma in Draftsmanship from the state of Jammu and Kashmir, therefore, prima facie the aforesaid stand taken by the respondents in the return, does not justify securing of 5.67 marks in the viva-voce out of a total of 30 marks, specially taking into account the fact that the petitioner had secured 48.22 on the basis of his qualification. 10. From a perusal of the marks obtained by the successful candidates, which list was obtained by the petitioner under the J&K Right to Information Act, 2004, it is evident that the minimum marks, which has been awarded to a candidate in the interview are 19.33 marks, whereas the maximum marks awarded to a candidate in the interview are 29 marks, therefore, I am of the considered opinion that the petitioner has not been subjected to fair treatment by the members of the interview board and the petitioner has been awarded inordinately low marks i.e. 5.67 marks out of 30 marks. Besides that, it is pertinent to mention here that even though the petitioner have made averments with regard to the members of the interview board, however, the return filed on behalf of the respondents is not supported by an affidavit filed by any of the members of the interview board. 11. Private Respondents Nos. 4 to 36 have already appointed on the post of Draftsmen in the year 2008 and since then are performing their duties, therefore, at this point of time, no useful purpose would be served by disturbing their appointments. A Bench of this Court by an ad interim order had directed that one post of Draftsman shall be kept vacant, therefore, the claim of the petitioner for consideration still survives. 12. In the present fact situation of the case, I deem it appropriate to direct the respondent No. 3 to hold a fresh interview of the petitioner by taking into account the fact that the selected candidates have been awarded marks in the range of 19.33 to 29 marks and thereafter to take a decision with regard to selection of the petitioner on the post in question. Needless to state that, in case, the petitioner is found entitled for selection to the post in question, he shall also be entitled to all consequential benefits. Needless to state that, in case, the petitioner is found entitled for selection to the post in question, he shall also be entitled to all consequential benefits. Let the aforesaid exercise be carried out within a period of four months from today. It is made clear that this Court has not expressed any opinion on the merits of the case. With the aforesaid directions, the writ petition is disposed of.