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2018 DIGILAW 779 (JK)

State of J&K v. Kewal Singh

2018-10-04

DHIRAJ SINGH THAKUR, SINDHU SHARMA

body2018
JUDGMENT : Thakur, J. 1. This Letters Patent Appeal has been preferred against the judgment and order dated 30.05.2018 in SWP No.1328/2015 passed by the learned Single Judge. 2. Briefly stated, the material facts of the case are as under :- 3. Petitioner applied pursuant to Advertisement Notice dated 30.04.1992 for selection to the post of Patwari under the Open Merit Category. There were as many as 56 posts meant to be filled up under the said category. As against these 56 posts, only 53 candidates were selected and appointed as three candidates were found ineligible, resultantly leaving three vacancies unfilled. 4. The petitioner had an interest as against three unfilled vacancies for the post of Patwari and therefore, started a spate of litigations spanning over a period of 21 years. First writ petition came to be filed by the petitioner being SWP No.1918/1997 wherein a direction was issued by the Writ Court vide judgment and order dated 04.06.1999, directing the respondents to fill up the three unfilled seats from amongst the eligible candidates strictly as per merit. The Jammu and Kashmir Services Selection Board was directed to recommend the names of three candidates against the unfilled seats strictly as per merit within a period of six weeks. 5. It was also observed that in case any of the petitioners’ was eligible and falling in merit, he would be considered accordingly. Since the direction as contained in the judgment and order dated 04.06.1999 was not complied with, the petitioner filed another writ petition bearing SWP No.1043/2010 which came to be disposed of vide judgment and order dated 09.09.2014 with a direction to the respondents to consider the case of the petitioner for selection on merit based on performance keeping in view the fact that the petitioner was the only candidate who had been agitating the matter. 6. It was further observed that the records of the selection were not forthcoming whereupon the merit could be determined and in that regard, it was ordered that the same be retrieved and if the same was not forthcoming, the case of the petitioner would be considered on merits and further that the age bar would not be construed as a disqualification for consideration of the petitioner’s case. 7. 7. Despite the aforementioned directions, the judgment and order was not complied with, which finally forced the petitioner to file writ petition bearing SWP No.1328/2015 which came to be disposed of on 30.05.2018. It needs to be reiterated that the original records pertaining to selection were not produced even during the above proceedings but only a photocopy, purporting to be the merit list of the candidates appointed as also overall merit list of as many as 226 candidates, was produced. 8. By virtue of the judgment and order impugned, the writ Court after considering the entire matter came to a conclusion that the photocopy of the merit list produced by the appellants could not be relied upon. It was observed that the record which was not produced and was not traceable since 1997, was produced suddenly in the year 2016, after a gap of more than 19 years of declaration of the result. It was, thus, held that the same could not be trusted as it might be tampered and manipulated. 9. Reliance was also placed upon communication dated 06.04.2015 addressed by the Secretary, Service Selection Board, Jammu to the Financial Commissioner (Revenue), Department, Civil Secretariat, Jammu wherein it was stated that the petitioner’s name figured at serial No.12 and it was in those circumstances that the Writ Court proceeded to allow the writ petition and inter alia directed the respondents to formally recommend the name of the petitioner to the Deputy Commissioner, Jammu for appointment/training as Patwari within a period of two weeks. In addition, the Writ Court also imposed cost of Rs.50,000/- payable by the Deputy Commissioner, Jammu, in view of the fact that almost two decades had elapsed since the petitioner started agitating the redressal of his grievances. 10. Learned counsel for the appellants, Mr. Nanda, submits that the direction to appoint the petitioner/private respondent No.1 herein is contrary to the record, inasmuch as, the petitioner does not enjoy the merit which would justify his appointment. It is stated that the last candidate appointed had secured 75 marks whereas the petitioner had only secured 65 marks and in between, there were many other meritorious candidates, who could also be considered. 11. Heard learned counsel for the parties. 12. Fact of the matter is that the records relied upon by Mr. Nanda, learned Senior Additional Advocate General, are not the original records but only a photocopy. 11. Heard learned counsel for the parties. 12. Fact of the matter is that the records relied upon by Mr. Nanda, learned Senior Additional Advocate General, are not the original records but only a photocopy. The authenticity of such records which are being relied upon by learned counsel is not beyond doubt. The fact that the records were never produced in any of the proceedings before the Court except in the writ petition out of which the present appeal arises, speaks volume about the same. While we appreciate the concern of Mr. Nanda that there might be other candidates above the petitioner in merit, who could have a better right to seek appointment, fact of the matter is that none of those candidates had ever approached this Court despite the fact that more than 21 years. The petitioner has all around been agitating the matter before this Court and has filed as many as three writ petitions as also contested the matter upto the Apex Court. It is true that while issuing directions, normally the Courts always direct the Selection Authority to make appointments in accordance with merit as was done in the present case in writ petition bearing SWP No.1918/1997 decided vide order dated 04.06.1999, yet the said direction was not complied with for the reasons best known to the official respondents. Even otherwise, the merit ought to have been determined on the basis of authentic record and not on the basis of the record being relied upon by learned counsel for the appellants which is only a photocopy and remains unverified and unauthenticated. 13. Be that as it may, we cannot persuade ourselves to take a view different from the one taken by the learned Single Judge. However, we set aside the judgment and order only to the extent of imposition of costs. 14. Disposed of accordingly.