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2017 DIGILAW 695 (JK)

Manmohan Khajuria v. State of J&K

2017-08-19

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

body2017
JUDGMENT : DHIRAJ SINGH THAKUR, J. 1. This is an application, seeking condonation of delay in filing an appeal against the judgment and order dated 9th of May, 2014 passed in a batch of writ petitions bearing SWP No. 1352/2010 and others. With a view to understand the context in the background of which the present controversy has arisen, it is necessary to state in brief the material facts. 2. Pursuant to an advertisement notice dated 9.3.2017 issued by the Director General of Police, applications were invited from eligible candidates for vacancies of Constables (Operator) in the Tele-communication wing of the Jammu and Kashmir Police. 2788 candidates applied for the advertised posts. Finally, a select list was prepared, which was challenged by unsuccessful candidates, who were the petitioners in the batch of petitions on the ground that instead of making selection at the State or Divisional level, the selections were made at the district level, which was unconstitutional. 3. The writ court by virtue of judgment and order dated 9.5.2014 allowed the writ petitions and quashed the select list. A mandamus was issued for framing the select list at the State level on the basis of merit secured by candidates, who had participated in the selection process having due regard to the provisions of the J & K Reservation Act, 2004 and J & K Reservation Rules, 2005 and accordingly directed to consider the candidates in the order of merit against the advertised posts. 4. What was stated by the writ court in paragraph 24 of the judgment is reproduced hereunder: "24. For the reasons discussed, writ petitions are allowed and Select List notified vide PHQ No. 2844 of 2009, dated 01.08.2009 (Annexure P-4 in SWP No. 1352/2010) and appointments made vide PHQ No. 2168 of 2010, dated 26.6.2010 vide notification No. 3475 of 2010, dated 23.10.2010 and 824/2011, dated 10.3.2011 (Annexure P-4(a) in SWP No. 1352/2010), on the basis of impugned Select List, quashed. Respondents are commanded to reframe Select List at State level on the basis of merit secured by candidates, who participated in selection process having due regard to J & K Reservation Act, 2004 and J & K Reservation Rules, 2005, and thereafter consider candidates for appointment in order of merit against 1126 posts, though not mentioned in advertisement notice, but admittedly proposed to be filled up on finalization of selection process initiated vide advertisement notice 9th March 2007. However, selection and appointment of such of the private respondents, who find place in the reframed select list and having regard to their place in the merit list and the number of vacancies to be filled up, make grade for their appointment, shall remain intact and undisturbed. The exercise be completed as far as possible within four weeks from the date of receipt of copy of this judgment." 5. It appears that a review petition was filed against the judgment and order aforestated, which was dismissed. 6. The official respondents, by virtue of order No. 211 of 2017, dated 19.1.2017, finally prepared the merit list of all those candidates, who had appeared in the selection process, at the State level. Some of the candidates, who were the respondents in the earlier batch of petitions, and applicants herein, have been directed to be ousted on account of the fact that they do not make up the merit. 7. The applicants are trying to justify the delay in filing the Letters Patent Appeal by stating that the cause of action to challenge the judgment and order dated 09.05.2014 had accrued to the applicants only upon passing of the Order No. 211 of 2017, dated 19.1.2017 and that since the applicants could not have anticipated that they would be ousted on account of merit, there was no occasion for them to challenge the judgment and order dated 9.5.2014 immediately after the same had been pronounced. 8. What is briefly stated in the application for condonation of delay is contained in one para, which is para 1, which reads as under: "1. That the impugned judgment though was delivered by the learned Single Judge on 09.05.2014 and a direction was issued to the PHQ to redraw the merit within a period of four weeks, yet for a considerable period of time no steps were taken to redraw the merit. That the impugned judgment though was delivered by the learned Single Judge on 09.05.2014 and a direction was issued to the PHQ to redraw the merit within a period of four weeks, yet for a considerable period of time no steps were taken to redraw the merit. It is stated that in the absence of redrawing of merit the applicants had no knowledge that they would be ousted from the Zone of Selection, as such, till the time the list was revised the appellants had no cause to prefer the Letters Patent Appeal against the judgment dated 09.05.2014." 9. In response to the application, seeking condonation of delay, objections were filed by the State, opposing the prayer made by the applicants. 10. Heard learned counsel for the parties. 11. Admittedly, the judgment and order in question was passed as long back as on 9.5.2014. The directions issued by the writ court were clear, specific and unambiguous. The select list prepared by the official respondents at the district level had been quashed. The direction was to prepare the select list by considering the merit of the candidates at the State level. The appointment of only such of the candidates, who were respondents in the writ petition, would remain intact and undisturbed if they made up the grade in the re-framed select list. 12. The fact that the select list, pursuant to which, the applicants herein had been selected and appointed had been quashed, was very much within the knowledge of the applicants. The applicants were permitted to continue till the entire process of re-framing of the select list was completed. It was, therefore, a foregone conclusion that some of the respondents, who had earlier been selected, would be ousted upon preparation of the select list at the State level. In case, any of the candidates, who were respondents in the earlier batch of petitions, felt that the judgment was required to be challenged in appeal, they ought not to have waited to take a chance upon re-drawal of the merit list at the state level. The applicants were clearly fence sitters, who were hoping that their names would figure in the fresh list prepared at the State level and only upon failing to achieve that merit position, they have now decided to challenge the said judgment and order in appeal before this court. 13. The applicants were clearly fence sitters, who were hoping that their names would figure in the fresh list prepared at the State level and only upon failing to achieve that merit position, they have now decided to challenge the said judgment and order in appeal before this court. 13. The argument that the cause of action accrued to the applicants to file the present Letters Patent Appeal only upon issuing of the consequential order is self-defeating. The applicants ought not to have waited for the issuance of the order, which was only consequential to the judgment and order dated 9.5.2014. 14. Permitting the applicants to challenge the judgment and order in question at this belated stage, after more than three years, would consequently cause prejudice to other candidates, who were petitioners in the batch of petitions and were waiting all along for the government to frame the fresh list in accordance with the directions issued by the writ court. 15. On a comparative assessment of the prejudice that might be caused by condoning the delay, we feel that the scales weigh heavily against the applicants in the present appeal. 16. Having considered the entire matter, we feel that the applicants have failed to justify the delay in preferring the present Letters Patent Appeal. The instant condonation application is found to be without any merit and is accordingly dismissed. Consequently, the appeal bearing LPASW No. 144/2017 along with connected MP shall stand dismissed.