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2017 DIGILAW 514 (JK)

Talib Hussain v. Sayeed Majid Malik

2017-08-02

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Caveat No. 2463/2017 Caveat stands discharged. LPASW No. 137/2017 1. Heard on the question of admission. 2. In this Intra Court Appeal, the appellant has assailed the validity of the order dated 28th July, 2017 passed by the learned Single Judge, by which the learned Single Judge has passed an ad interim order, subject to objections and till next date before the Bench and the selection of respondent No. 4 (herein appellant) on the post of Lecturer in Surgery under RBA Category as well as the process of selection has been stayed. 3. Learned counsel for the appellant submitted that the learned Single Judge has granted the final relief while dealing the prayer for interim relief. It is further submitted that while granting the interim relief, the learned Single Judge has mis-interpreted Section 19 of the Jammu and Kashmir Reservation Act, 2004 and it ought to have been appreciated that the option was with the petitioner. It is further submitted that the appellant had initially joined as Medical Officer in the Health Department under J&K Medical (Gazetted) Service Rules, 1970 as Scheduled Tribe (ST) Category. Thereafter, in pursuance of different process of selection initiated for different services, namely, under the Jammu and Kashmir Medical Education (Gazetted) Services Rules, 1979, the appellant applied for the post of Lecturer under RBA Category and opted for the same. It is further submitted that Section 19 of the Jammu and Kashmir Reservation Act, 2004 nowhere provides that a candidate cannot change his category and in the instant case, the appellant stands on better footing in the sense that in the case of appellant pertains to different service. 4. On the other hand, learned counsel for respondent No. 1 has submitted that under Section 19 of the Jammu and Kashmir Reservation Act, 2004, option can be exercised only once and since the appellant has opted once as a candidate of Scheduled Tribe (ST) Category, therefore, it is not permissible for the appellant to change his category. It is further submitted that against the impugned order, the Letters Patent Appeal is not maintainable, as the rights of the parties have not been determined. In support of the submissions, learned counsel for respondent No. 1 has referred to the decision of the Division Bench of this Court in the case titled, “Qadir Mir and ors. Vs. It is further submitted that against the impugned order, the Letters Patent Appeal is not maintainable, as the rights of the parties have not been determined. In support of the submissions, learned counsel for respondent No. 1 has referred to the decision of the Division Bench of this Court in the case titled, “Qadir Mir and ors. Vs. State of J&K and ors., 2015 (4) JKJ 482 ”. It is also submitted that the impugned order does not amount in granting the final relief and the writ petition is already fixed before the learned Single Judge in 3rd week of August, 2017. 5. We have considered the submissions made by the learned counsel for the parties and have perused the record. We are afraid that if we express our opinion with regard to the rival contentions made by the learned counsel for the parties before us, it will have the bearing on the writ petition pending before the learned Single Judge. The Supreme Court in the case of “State of UP and others Vs. Modern Transport Co., Ludhiana, (2002) 9 SCC 514 ” has held that High Court while passing interim orders should assign the reasons. Similar view has been taken by the Supreme Court in the cases of “Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 ” as well as “ Nitco Tiles Ltd. Vs. Gujarat Ceramic Floor Tiles Mfg. Assn. and others, (2005) 12 SCC 454 ”. 6. In view of the aforesaid enunciation of law, from close scrutiny of the order passed by the learned Single Judge, we find that after recording the submissions by the learned counsel for the parties, the learned Single Judge has only observed “that prima-facie case for showing indulgence in favour of the petitioner has been found”. In other words, no reasons have been assigned by the learned Single Judge while passing the interim order. Accordingly, the order dated 28th July, 2017 passed by the learned Single Judge in SWP No. 1738/2017 insofar as it grants the interim relief in favour of respondent No. 1 is hereby quashed. The learned Single Judge is requested to hear the parties afresh on the question of grant of interim relief afresh and to decide the same. The learned Single Judge may either decide the question of grant of interim relief or the writ petition itself on merits. 7. The learned Single Judge is requested to hear the parties afresh on the question of grant of interim relief afresh and to decide the same. The learned Single Judge may either decide the question of grant of interim relief or the writ petition itself on merits. 7. With the aforesaid observations, the appeal is disposed of alongwith connected MP(s).