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2018 DIGILAW 483 (JK)

Muddasir Nazar v. University of Jammu

2018-07-06

TASHI RABSTAN

body2018
JUDGMENT : Tashi Rabstan, J. 1. Pursuant to Advertisement Notice No. Estab./2006/9634-9733, dated 14.07.2006, posts of Assistant Programmer and Assistant Programmer in Centre for IT Enabled Services and Management under RBA category have been advertised; whereby one post each in RBA category has also been advertised. The following posts were advertised category-wise:- Assistant Programmer: RBA 01 Open 05 SC 01 ST 01 Assistant Programmer in Centre for IT Enabled Services and Management: Open 01 RBA 01 It is contended that against the post of Assistant Programmer 128 applications and against the post of Assistant Programmer in Centre for IT Enabled Services and Management 28 applications have been received by the respondents. The petitioner being found eligible applied against both the posts under RBA category. 2. The respondents have issued interview call letters dated 04.01.2008 for both the posts, whereby intimated the petitioner that his Practical Test for the posts of Assistant Programmer and Assistant Programmer in Centre for IT Enabled Services and Management shall be conducted on 14.01.2008 at 11 am and 1 pm respectively. The petitioner accordingly appeared in the practical test for both the posts and performed well. It was intimated by the members of the Selection Committee that the written test and the practical test conducted for the post of Assistant Programmer would also be considered for the post of Assistant Programmer in Centre for IT Enabled Services & Management. 3. The respondents, thereafter, on the basis of merit and performance in practical test, issued a notice on 17.01.2008, whereby, shortlisted the candidates for interview, in which the name of the petitioner has also been reflected as eligible for interview for both the posts afore mentioned separately and was directed to appear on 18.01.2008 at 10 am in the faculty of house near University Guest House, New University Campus, Jammu. The committee being constituted for conducting interview for both the posts on the scheduled date and time fixed, firstly conducted interview for the post of Assistant Programmer and thereafter, interview for the post of Assistant Programmer in Centre for IT Enabled Services and Management. It is averred that the petitioner was the only candidate applied under RBA category for the post of Assistant Programmer in Centre for IT Enabled Services & Management. It is averred that the petitioner was the only candidate applied under RBA category for the post of Assistant Programmer in Centre for IT Enabled Services & Management. The petitioner has performed well in the interview as well as practical test, and was awaiting the select list, however, the select list was not issued, nor published in any newspaper. The petitioner learnt that the selection for the post of Assistant Programmer has been made, wherein name of the petitioner has not been found. 4. The respondents have not issued any select list for the post of Assistant Programmer in Centre for IT Enabled Services and Management under RBA category, however, the select list under open category has been issued. The petitioner, accordingly, approached the respondents to enquire about the reason for not issuing select list under RBA category for the said post. The Assistant Registrar of the University of Jammu has accordingly informed him that no one has been selected under RBA category for the said post and the respondents are proposing to re-advertise the said unfilled post under RBA category. Hence the present writ petition. 5. During pendency of the writ petition, the respondents have issued a re-advertisement vide notification dated 19.02.2009 inviting applications for the post of Assistant Programmer (IT) along with other posts. On which, the learned counsel for the petitioner has filed an application being MP No. 636/2009 for staying the operation of the said re-advertisement notification to the extent of the post of Assistant Programmer (IT) under RBA category and on 23.03.2009 this court ordered that the process for selection pursuant to advertisement notice dated 19.02.2009 viz-a-viz post of Assistant Programmer IT, Category RBA be not finalized. 6. On notice, respondents have filed objections, resisting therein the claim of the petitioner, by contending that as many as 128 applications for the post of Assistant Programmer and 28 applications for the post of Assistant Programmer in Centre for IT Enabled Services and Management have been received and after scrutiny, 86 candidates for the post of Assistant. Programmer were invited for Practical Test, out of which only 54 candidates appeared in the Practical Test. So far as the post of Assistant Programmer in Centre for IT Enabled Services and Management, is concerned, 20 candidates were invited for Practical Test, whereas only 11 candidates appeared for the same. Programmer were invited for Practical Test, out of which only 54 candidates appeared in the Practical Test. So far as the post of Assistant Programmer in Centre for IT Enabled Services and Management, is concerned, 20 candidates were invited for Practical Test, whereas only 11 candidates appeared for the same. Out of these candidates who appeared in the Practical Test, 10 candidates were common for both the Tests. Practical Test was accordingly conducted on 14.01.2008. 39 candidates were shortlisted for interview under open merit category and all the 6 candidates i.e. 3 under RBA category and 3 under Scheduled Caste category were also invited and accordingly, interview was conducted on 18.01.2008. Out of 39 shortlisted candidates under open category, only 36 candidates appeared in the interview, whereas all the candidates under RBA and SC category faced the interview. On the basis of performance of the candidates in the Practical Test and interview, the selection committee recommended five candidates under open merit category, one candidate under scheduled caste category and one candidate under RBA category for the post of Assistant Programmer. Insofar as the post of Assistant Programmer in Centre for IT Enabled Services and Management is concerned, one Nikhilesh Sharma was selected for appointment in the open merit category, however, none from the RBA category was found suitable for appointment. Thus, no candidate under RBA category for the post of Assistant Programmer in Centre for IT Enabled Services & Management has been selected. 7. It is also mentioned in the objections that the performance of the petitioner in the interview was very low and has obtained just 2 marks out of 20, thus, the respondents, being found the petitioner not reasonable, decided not to appoint him as Assistant Programmer under RBA category. 8. Learned counsel for the petitioner submitted that since the select list for the post of Assistant Programmer has already been issued and the candidate who has been selected under RBA category is more meritorious than the petitioner, thus, his prayer shall be confined only with regard to selection for the post of Assistant Programmer in Centre for IT Enabled Services & Management under RBA category. 9. Heard learned counsel for the parties. 10. 9. Heard learned counsel for the parties. 10. In view of the statement of learned counsel for the petitioner, this Court is to adjudicate the claim of the petitioner only to the extent of post of Assistant Programmer in Centre for IT Enabled Services and Management. Admittedly, the petitioner was found eligible for the post of Assistant Programmer in Centre for IT Enabled Services and Management and he participated in the entire selection process and awarded marks to the petitioner. As per the advertisement notice, no minimum cut off marks of viva voce for the post of Assistant Programmer in Centre for IT Enabled Services and Management has been prescribed. The Selection Committee had interviewed the petitioner under RBA category as he being found having requisite qualification and accordingly awarded marks. 11. The Law laid down by the Hon'ble Supreme Court in case titled Syed Mohammad vs. Union of India and Others, 2017 (11) JT 357, relevant para 7 is reproduced as under:- "We find it difficult to appreciate the contention in the background of the rules, which we have extracted above. The selection process is by way of a written test, interview and performance appraisal of the previous years. The total marks are 100. There is also a further significant stipulation that there are no minimum qualifying marks for the interview. Once no marks are prescribed as qualifying marks in the interview for the purpose of selection, whether a candidate participates in the interview or not is of no relevance, since even assuming, he had been granted zero marks in case he had otherwise obtained better marks in the written examination and the performance appraisal, he is eligible to be promoted since the selection is based on seniority-cum-merit and since there is also no provision for disqualifying an incumbent in the interview and since there is performance appraisal." 12. It is not the case of the respondents that the notification has been prescribed minimum cut-off marks for the interview. Admittedly, the petitioner has qualified the written test and also interviewed, whereby, the selection committee has awarded 2 marks out of 20. It is not the case of the respondents that the notification has been prescribed minimum cut-off marks for the interview. Admittedly, the petitioner has qualified the written test and also interviewed, whereby, the selection committee has awarded 2 marks out of 20. Since, the advertisement notice as well as the rules applicable to the field have not prescribed any minimum cut-off marks/points of viva voce for the post and the candidates who are eligible have qualified in the written test and shortlisted for interview prescribed for the post of Assistant Programmer in Centre for IT Enabled Services & Management, the non consideration of the petitioner is violation of the mandate of the Constitution and also arbitrary and discriminatory in nature. 13. In view of the facts and circumstances of the case discussed herein above, the writ petition is allowed and the advertisement notice No. Adm. (C&R)/09/3702, dated 19.02.2009, so far it pertains to re-advertisement of the post of Assistant Programmer (IT) is quashed. The respondents are directed to issue appointment order in favour of the petitioner for the post of Assistant Programmer in Centre for IT Enabled Services & Management on the basis of merit assessed by the Selection Committee. Let this exercise be completed within a period of four weeks from the date certified copy of this order along with complete set of writ petition is made available to the respondents. 14. Disposed of as above along with connected IA's.