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2018 DIGILAW 1029 (JK)

Nishant Gupta v. State of J&K

2018-12-27

GITA MITTAL, TASHI RABSTAN

body2018
JUDGMENT : 1. The respondent No.6 is not served. It is submitted by Mr. Abhinav Sharma, learned counsel for the appellant that irrespective of the view that this Court would take on the challenge made in the judgment dated 3rd of November, 2018 dismissing SWP No.2574/2017 in limini, the right of the respondent No.6 to appointment shall remain protected. In view thereof, this appeal is taken up for consideration with the consent of learned counsel for the parties who are present in the Court. 2. The appellant has assailed the order dated 3rd of November, 2017 whereby his writ petition challenging the appointment of private respondent No.6 before us, in open merit category, (though he had applied as a candidate in the RBA category), was rejected in limini. 3. In the selection process conducted pursuant to notification dated 19th of March, 2016 by the Public Service Commission for ten posts of Lecturer (10+2) in the discipline of Bio-technology, seven posts in the OM (open merit category), two posts in the RBA (Resident of Backward Areas) and one for SC (Scheduled Caste Category), the appellant featured at Sr. No.7 in the open merit category in the select list which was prepared. However, the Public Service Commission amended the select list by a notification dated 16th of October, 2017. 4. The petitioner was aggrieved by his removal from the select list on the ground that the private respondent No.6, namely, Irshad Ahmad Rather, had applied in the RBA category and should have been considered in this category and in spite of that he was selected in the open merit category, as has been done by the respondents-Public Service Commission. The petitioner has challenged that the respondent No.6 had enjoyed the benefit of relaxed standards at the time of short listing, as prescribed in the notification dated 12th of May, 2016, and therefore, respondent No.6, who had applied under RBA category, could not have been considered as a candidate in the open merit category at the time of final select list. 5. In support of his submission, our attention was drawn to the merit list which was drawn of short listed candidates in the order of merit. 5. In support of his submission, our attention was drawn to the merit list which was drawn of short listed candidates in the order of merit. We are informed that while respondents conducted selection for seven candidates, as per the prescription, the respondents had applied the ratio of 1:4, in as much as, seven candidates had drawn up the same merit, the respondents had short listed 35 candidates in the open merit category. The list of the short listed candidates with their marks and merit has been placed on record. A bare perusal thereof would show that the candidates from Sr.No.14 to 17, have drawn 38 marks; candidates from Sr. No.20 to Sr. No.26 had drawn 37.50 marks; whereas candidates from Sr. No.28 to 35 had all drawn 37 marks. It is contended that after having short listing of these 35 candidates, the number of candidates who had to be short listed for participating in the further selection process in the open merit category stood exhausted. 6. Apart from the candidates in the open merit category, the respondents appear to have drawn up a list of candidates who had applied in the reserved categories. In respect of candidates under RBA category, are concerned, the respondents invited Sr. No.36-Aadil Yousaf Dar and Sr.No.37-Sachin Sharma, to participate in the selection process. Mr. Abhinav Sharma, learned counsel for the appellant vehemently contends that in this background, so far as the respondent No.6 was concerned, he could be short listed only by application of relaxed standards. Mr. Abhinav Sharma has submitted that the cut off for being considered for further selection and to feature in the merit list, a candidate had to obtain the minimum 37 marks in the open merit category. 7. In view of the above, Mr. Sharma has contended that candidate at Sr. No.36-Sachin Sharma has secured 36 marks. Perusal of the short list in the order of merit, we find that so far as the respondent No.6-Irshand Ahmad Rathar is concerned, he has secured only 35.50 marks. He was way below the three candidates placed at Sr. No. 38, 39 and 40 in the RBA category, who had secured 36 marks, and therefore, he was placed at Sr. No.41 in the merit list. 8. He was way below the three candidates placed at Sr. No. 38, 39 and 40 in the RBA category, who had secured 36 marks, and therefore, he was placed at Sr. No.41 in the merit list. 8. It is contended that the only way, in which the respondent No.6 could have participated in the further selection after short listing, is if he was given the benefit of relaxed standards in terms of marks and, consequently, merit criteria for further benefits, by considering and treating him under general category. 9. In view of the above factual narrations, Mr. Abhinav Sharma, learned counsel would contend that in this background, irrespective of the position secured by the respondent No.6 in the further selection process, he could not have been treated as a successful candidate in the open merit category. It is submitted that respondent No.6 was required to be treated as reserved category candidate and should have been considered for appointment in that category alone. 10. In support of this submission, the reliance is placed by Mr. Abhinav Sharma, on the pronouncement of Supreme Court of India reported at (2009) 5 SCC 1 , Andhra Pradesh Public Service Commission Versus Baloji Badhavath and others; judgment of learned Single Judge of this Court reported at (2011) 1 JKJ 894 , Kuldeep Kumar and ors. Versus State and other; and the judgment of Mudurai Bench of Madras High Court dated 27th December, 2006 passed in W.P(MD) No.8568/2006, M.Sankar S/o A.Menon Versus Bharat Heavy Electricals Limited. 11. In paragraph No. 43 of the pronouncement in M.Sarkar by the Madurai Bench of the Madras High Court, the principles on which short listing can be achieved stand summed up. The relevant portion (para 43 sub paras-3&4) whereof reads thus:- “43. Therefore, on that basis, we direct that short-listing may be done in the following manner:- (3) A candidate belonging to reserved category securing less than the qualifying marks prescribed for general category but availing the relaxed standard can be considered only as against that particular reserved category at the time of short-listing as well as selection. Therefore, on that basis, we direct that short-listing may be done in the following manner:- (3) A candidate belonging to reserved category securing less than the qualifying marks prescribed for general category but availing the relaxed standard can be considered only as against that particular reserved category at the time of short-listing as well as selection. (4) After keeping apart the applications of the candidates coming within the above category, the names of other candidates belonging to general category as well as reserved category should be prepared in the descending order of merit in respect of each trade as envisaged in General Condition No.(i) of the notification No.227 of BHEL, Tiruchirappalli.” (Emphasis supplied) 12. It is submitted by Mr. Abhinav Sharma, learned counsel for the appellant that in the foregoing facts and circumstances and given the above position in law, the submissions made by the appellant in the writ petition deserve to be considered and the writ petition could not have been dismissed in limine. 13. Prima facie, there appears to be substance in the submission of Mr. Abhinav Sharma that the relaxed standards in terms of the minimum marks which had to be secured for being shortlisted in the further selection process, was applied in the case of the respondent No.6, who failed to secure the requisite 37 marks. 14. As we have noted above, writ petition has been dismissed in limine, without any opposition having been obtained from the respondents. The learned Single Judge has however noted the oral submissions made on behalf of the Public Service Commission. As noted in the para 9 of the impugned order dated 3rd of November, 2017, in the submissions made by learned counsel for the respondents, there is no reference to the relaxed standards so far as the minimum marks which were required to be obtained at the time of short listing. 15. We are of the view that the issues raised by the appellant deserve a more detailed scrutiny and in view thereof, the order dated 3rd of November, 2017 is set aside and quashed. SWP No.2574/2017 is remanded back to learned Single Judge for consideration afresh. 16. The respondents shall ensure that the objections to the writ petition are positively filed within four weeks from today. The appellant-petitioner shall be at liberty to file rejoinder to the objections to be filed by the respondents. 17. SWP No.2574/2017 is remanded back to learned Single Judge for consideration afresh. 16. The respondents shall ensure that the objections to the writ petition are positively filed within four weeks from today. The appellant-petitioner shall be at liberty to file rejoinder to the objections to be filed by the respondents. 17. The petition shall be listed before the learned Single Judge for consideration on 6th of February, 2019. 18. Subject to petitioner taking steps within one week, fresh notice be issued for service of respondent No.6, for appearance before the learned Single Judge. 19. The appeal along with connected IA, is disposed of on the above terms. 20. It is further directed that the interim order dated 13th of December, 2017 passed in this appeal shall continue till the same is varied or modified by the learned Single Judge in the aforesaid writ petition. 21. We make it clear that the observations made hereinabove shall not be treated as the merits of the case.