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J&K High Court · body

2017 DIGILAW 75 (JK)

Tahir Mahmood v. Vice Chancellor

2017-02-17

B.S.WALIA

body2017
JUDGMENT : B.S. Walia, J. 1. Petitioner, who claims to be eligible, applied for the post of Assistant Professor, posts in the discipline of English, in response to Advertisement (Annexure-A) dated 04.02.2015 issued by the Baba Ghulam Shah University, Rajouri. Out of the six advertised posts, four were under Open Merit Category, one was under Scheduled Caste Category while one was under Scheduled Tribe Category. Petitioner applied under the Open Merit Category. Petitioner was issued interview letter dated 12.05.2016 vide registered post by respondent No. 4 for 31.05.2016 but the said letter allegedly was delivered by the Postman of Post Office Sangla to the petitioner only on 09.06.2016 i.e. after the date of interview. Petitioner approached respondent No. 4 on 10.06.2016 and submitted a representation with copy to respondent No. 1 requesting to be interviewed for the post of Assistant Professor in the discipline of English on the ground that he did not receive the interview call letter within time due to negligence of the postal department but to no avail. It has further been pleaded that notification for conduct of interview for the post of Assistant Profession in the discipline of English was not published in the newspaper, only mode adopted by the official respondents was to intimate the concerned candidates through registered post. 2. Plea is that respondent No. 5 not having delivered the call letter to the petitioner within time due to negligence, the petitioner could not be penalized for the same as the negligence was attributable exclusively to respondent No. 5 i.e. Postman concerned. 3. Reliance has been placed on the decision of this Court in case reported as 2015 (1) JKJ 623 [HC] as also in case titled as Anju Bala v. Chairman SSRB i.e. SWP No. 2986/2015 decided on 06.11.2015 wherein the respondents had been directed to conduct special written test of the petitioner as the petitioner could not appear in the said test due to bona fide mistake. In the aforementioned background, prayer is for issuance of directions to the respondents to conduct special interview of the petitioner for the post applied for. 4. In the aforementioned background, prayer is for issuance of directions to the respondents to conduct special interview of the petitioner for the post applied for. 4. Objections have been filed inter alia contending that the petitioner had not approached this Court with clean hands and had tried to mislead the Court by projecting distorted facts by stating that respondent No. 5 i.e. concerned Postman of the Post Office, Sangla had delivered the call letter on 09.06.2016 whereas the same was factually incorrect as the call letter was sent to the petitioner well in time through registered post on 20.05.2016 vide No. EE806572887IN and the detailed record of the registered letter clearly indicated that the letter was received in the Post Office Samote on 25.05.2016 and the same was delivered to the petitioner on 31.05.2016 at 1200 hours. The petitioner having failed to appear in the interview on account of his own negligence, carelessness and lethargy, could not seek indulgence of this Court for a direction for conduct of special interview and as per the University Rules, there was no provision of holding separate interview and the Selection Committee for selection of Assistant Professors was constituted as per the Statute of the University comprising amongst others the nominee of the Chancellor, Executive Councillor not connected with the University etc. and the constitution of the Selection Committee was a time consuming process, that the case law relied upon was not applicable in the facts of the case. It was contended that in the aforementioned background, the plea that the letter had been delivered on 09.06.2016 was totally false. It was further contended that the writ petition was liable to be dismissed on the ground of concealment and suppression of material facts alone. Secondly, that the writ petition involved disputed questions of fact which could not be gone into in exercise of writ jurisdiction, that even otherwise it had been specially mentioned in Clause 29 of the Advertisement Notice dated 04.02.2015 that "Candidates are advised to remain in contact with University office/website regarding date of interview". Besides the University had published the interview date in leading newspaper of the State i.e. Daily Excelsior & Greater Kashmir on 25.05.2016 with the clear instructions that in case the candidate did not receive call letters latest by 26.05.2016, concerned candidate was required to get in touch with the Deputy Registrar (Establishment) on Phone No. 01962-241006. Besides the University had published the interview date in leading newspaper of the State i.e. Daily Excelsior & Greater Kashmir on 25.05.2016 with the clear instructions that in case the candidate did not receive call letters latest by 26.05.2016, concerned candidate was required to get in touch with the Deputy Registrar (Establishment) on Phone No. 01962-241006. The petitioner did not make any attempt to contact the Deputy Registrar (Establishment) on the aforementioned phone number, besides the University had also uploaded the said notification with regard to the date of interview on the University Website on 25.05.2016 for general information of the candidates and as a matter of abundant caution, even phone calls were also made by the University Officials to the concerned candidates on their mobile numbers and in the case of the petitioner, the phone of the petitioner was "not reachable" when the said call was made. On the basis of the same, it is contended that the averments of the petitioner in paragraph No. 9 of the writ petition, that the notification for conduct of interview for the post in question was not published in the newspaper and only mode adopted by the University to communicate to the candidate through registered post was factually incorrect and contrary to the record as per details given above. 5. I have gone over the pleadings, considered the submissions as well as the judgments relied upon and am of the considered view that the writ petition cannot succeed and is liable to be dismissed on the grounds mentioned hereunder. 6. A perusal of the Advertisement (Annexure-A) reveals that as per Clause-21 of General Instructions and other conditions of the said Advertisement, the University had categorically mentioned that it was not responsible for any postal delay/lapse in receipt of interview call letters and as per Clause-28 & 29 of the General Instructions and other conditions of the Advertisement, the candidates were required to mention their e-mail and mobile numbers on the application form besides were advised to remain in contact with the University Office/website regarding date of interview. 7. Clause-21, 28 & 29 of the General Instructions and other conditions of the Advertisement is reproduced hereunder:- "21. Interview call letters shall be sent to the eligible/short listed candidates under certificate of postage/speed post/registered post, whichever suitable. The University shall, however, not be responsible for any postal delay/lapse. 28. 7. Clause-21, 28 & 29 of the General Instructions and other conditions of the Advertisement is reproduced hereunder:- "21. Interview call letters shall be sent to the eligible/short listed candidates under certificate of postage/speed post/registered post, whichever suitable. The University shall, however, not be responsible for any postal delay/lapse. 28. Candidates should write their e-mail and mobile number on the application form. 29. Candidates are advised to remain in contact with University Office website regarding date of interview". 8. Although the petitioner has attached a receipt (Annexure-D) purporting to evidencing receipt of the postal article containing the interview call letter on 09.06.2016 yet the same bears the signatures of the petitioner and is contrary to computerised online documentary record placed on record by the respondents evidencing that the postal article in question was booked on 20.05.2016 and was delivered on 31.05.2016, therefore, it is apparent that writing on Annexure-D does not reflect the correct factual position. Besides, in terms of Clause-28 of the General Instructions and other conditions of the Advertisement, the petitioner was required to mention his e-mail and mobile number on the application form while in terms of Clause-29, the petitioner was required to remain in contact with the University Office/Website regarding date of interview while as per Clause-21, it was made clear that the interview call letter would be sent under certificate of postage/speed post/registered post but that the University would not in any manner be responsible for any delay/lapse. The respondents have also taken up the stand that the interview call letter was dispatched on 20.05.2016 i.e. well in advance of the date of interview that was 31.05.2016. It has also been mentioned that on 25.05.2016 notification of date of interview was also published in two leading newspapers namely 'Daily Excelsior' and 'Greater Kashmir' besides the University officials had also tried to contact the petitioner on his phone number provided by him but the phone number of the petitioner was coming switched-off, the interview notification published in newspapers on 25.05.2016 had also intimated that in case of non-receipt of call letter latest by 26.05.2016, the candidate concerned was required to contact the Deputy Registrar (Establishment) on Phone No. 01962-241006 but no such contact was made by the petitioner. It has been contended that the petitioner has tried to mislead this Court by stating that the interview letter had been received on 09.06.2016 and that in the circumstances, the plea of the petitioner for being subjected to special interview was without any merit, therefore, the writ petition was liable to be dismissed. 9. The University Authorities had dispatched the interview call letter by speed post on 20.05.2016 and the same was delivered on 31.05.2016 at 1200 hours whereas the petitioner has tried to project that the same was delivered on 09.06.2016. Although, the letter for calling the petitioner for interview was delivered on 31.05.2016, yet the facts remains, that was the same day on which the interview was scheduled and it may not have been possible for the petitioner to appear for interview on the same day. However, the delay cannot in any manner be attributed to the University since it had dispatched the call letter for interview well in advance by speed post. In addition thereto, as per Clause-21 of the Advertisement, it was made clear that the University would not be responsible in any manner for any delay or lapse of the postal authorities. As a further caution, the candidates had been advised to remain in touch with the Universities Authorities on phone/to check up the website of the University with regard to the date of interview and further that attempts were also made to contact the petitioner on the mobile number as given in the application form but his phone number was coming switched off. In addition thereto, the University had also published interview notification on 25.05.2016 in two leading newspapers of the State of Jammu & Kashmir i.e. Daily Excelsior and Greater Kashmir that in case, interview calls were not received by 26.05.2016, the candidates should get in touch with the Deputy Registrar (Establishment) on Phone No. 01962-241006. 10. No doubt, the petitioner has denied the receipt of the letter dated 31.05.2016 and has taken up the plea that the same was delivered to him by respondent No. 5 on 09.06.2016 but the fact remains that as per Clause-21 of the General Instructions and other conditions of the Advertisement, it was made clear that the University would not in any manner be responsible for any delay/lapse on the part of the postal department. The petitioner has highlighted that his village is at a distance from the Tehsil Headquarter and that there is no circulation of any newspaper in any part of the village, therefore, he could not have any knowledge of the date of interview. 11. The petitioner also claims having made several phone calls to the University officials but has pleaded that the phone number of the University officials remained busy or not reachable most of the time and sometimes, the call was not answered and sometimes he was informed that the interview date had not been finalized. He has also taken up the plea that there was no internet facility in the village where he resides, therefore, he could not know about the uploading of the notification etc. 12. I am afraid that the aforementioned pleas put forth by the petitioner do not advance his case since in the circumstances narrated by the petitioner in the Supplementary Affidavit, it was all the more incumbent upon the petitioner to have made arrangement to ensure that he had made proper intimation of the interview call letter well in time, once he knew that the area where he resided was a remote area not having access to internet etc. Although, it is unfortunate that the petitioner stands deprived of appearing for consideration for the advertised post yet the fault cannot in any manner be attributable to the University Authorities. On the contrary, it is the petitioner who himself appears to be responsible by not taking appropriate measures to ensure receipt of intimation. 13. Judgments relied upon by the petitioner are also of no help to him. The judgment of the Hon'ble Division Bench of this Court reported as 2015 (1) JKJ 623 [HC] in case titled as State of J & K & Ors. v. Zafeer Ahmad is of no help to the petitioner since in the said case, it was the mistake of the authorities therein in the context of which it was held that the same could not be held against the candidate therein, therefore, the direction of the learned Single Judge to conduct a special examination was upheld by the Hon'ble Division Bench. In the instant case, there is no lapse on the part of the University authorities, therefore, the petitioner cannot avail the benefit of the aforementioned judgment. 14. In the instant case, there is no lapse on the part of the University authorities, therefore, the petitioner cannot avail the benefit of the aforementioned judgment. 14. The decision in Anju Bala v. Chairman SSRB dated 06.11.2015 in SWP No. 2986/2015 is also of no help since the same pertained to inadvertent omission in mentioning the correct date of advertisement. There was no negligence involved. Besides interviews had yet not been conducted, therefore, a direction was issued to permit the petitioner therein to participate in the selection process for the post of Assistant Tailor Master by issuing Admit Card and in case written test had already been conducted, respondents were directed to conduct a special written test for the petitioner therein. The instant case is not involving a written test by an interview only. 15. In the instant case, the petitioner has been thoroughly negligent in not taking appropriate steps for receipt of intimation despite the various cautions reflected by the University in the advertisement as well as by issuing intimation in two newspapers, placing the intimation on University website and even making attempts to contact the petitioner on the phone number given by him. In the circumstances, it is not open to the petitioner residing in a remote area to not make arrangement to receive intimation of the call letter particularly when it was categorically made clear in the advertisement vide Clause-21 of the General Instructions and other conditions of the Advertisement that the University would not in any way be responsible for delay/lapse of the postal department in delivering of interview call letter. Secondly, interview call letter had been dispatched well in advance by speed post. In addition thereto, the University had also taken further precautions not only of placing intimation of date of interview on its website but also published interview notification in two newspaper i.e. Daily Excelsior & Greater Kashmir on 25.05.2016 intimating that if the interview call letters were not received by 26.05.2016 then the candidates would immediately get in touch with the Deputy Registrar (Establishment) on the given phone number. The petitioner claims to be a resident of remote area not having access to newspaper/internet/proper road access, yet ignored the cautions given in the Clause-21, 28 & 29. The petitioner claims to be a resident of remote area not having access to newspaper/internet/proper road access, yet ignored the cautions given in the Clause-21, 28 & 29. Unfortunate non-receipt of interview call letter in due time to enable the petitioner to appear for the interview is not attributable to the University Authorities in any manner and the petitioner alone is to blame for the same. Resultantly, finding no merit in the writ petition, the same is dismissed. Interim directions, if any, stand vacated. University will take forthwith steps to fill up the unfilled post, which had been reserved under orders of this Court, from amongst the candidates who had appeared in the interview as per merit. No order as to costs.