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2019 DIGILAW 156 (JK)

Ashwani Kumar Sharma v. State

2019-03-26

SANJEEV KUMAR

body2019
JUDGMENT : SWP No. 29/2018 1. J&K Service Selection Board (for short 'Board'), vide its Advertisement Notice No. 03 of 2012, dated 28.12.2012, invited applications for direct recruitment of Junior Engineers (Electrical) in the Power Development Department. The qualification prescribed for the said posts was diploma/degree in Electrical Engineering. The petitioners, possessing the qualification of B.E. (Electrical) responded to the aforesaid notification. Petitioner No. 1 applied under RBA category, whereas petitioner No. 2 submitted his application form under SC category. Both the petitioners were selected in their respective categories and were appointed by the Government in the Department of Power Development vide Government Order No. 87-PDD of 2015, dated 24.04.2015 and Government Order No. PDD-104 of 2015, dated 05.06.2015 respectively. It may be noted that though as per the Recruitment Rules governing the selection and appointment of Junior Engineer (Electrical) by direct recruitment, the degree and diploma qualifications in Electrical Engineering are treated at par, but the Board, while laying down the selection criteria, earmarked five additional points to those possessing the qualification of degree. This resulted into an edge in favour of the degree holders. 2. The aggrieved diploma holders, who could not make it to the select list, challenged the action of the Board in SWP No. 874/2015 titled Zubair Ahmed & Anr. vs. J&K SSB in which the petitioners too were arrayed as party respondents. The said writ petition was allowed in view of the judgment already rendered by the Division Bench of this Court in LPASW No. 126/2015 titled Sartaj Ahmed Dar vs. J&K SSB & Ors. on 31.08.2015. The Board was directed to reframe the select list after awarding five points to all Degree/Diploma holders across the board. In compliance to the judgment passed by the Division Bench (supra), the merit was re-determined and five additional points were also awarded to the diploma holders. In the recast list, six of the diploma holders, who were not earlier selected, made it to the select list. Resultantly, equal number of Degree Holders came to be ousted. Six candidates could not make it to the revised list reframed pursuant to the directions of this Court in LPASW No. 126/2015 which included the petitioners herein as well. In the recast list, six of the diploma holders, who were not earlier selected, made it to the select list. Resultantly, equal number of Degree Holders came to be ousted. Six candidates could not make it to the revised list reframed pursuant to the directions of this Court in LPASW No. 126/2015 which included the petitioners herein as well. The respondents, as is revealed by them in their objections, after seeking opinion of the Department of Law, Justice and Parliamentary Affairs, cancelled the appointments of six ousted candidates including the petitioners in terms of the Government Order No. 04-PDD of 2018, dated 01.01.2018. It is this order the petitioners have called in question in this writ petition. Apart from challenging the impugned order which is purportedly passed by the respondents in compliance to the judgment of the Division Bench (supra), the petitioners have also prayed for accommodating them against the posts that have remained unfilled due to non joining of some of the candidates appointed pursuant to the revised list. 3. Having heard learned counsel for the parties and perused the record, I am of the view that so far as the challenge of the petitioners to the Government Order dated 01.01.2018 is concerned, the same must fail. Indubitably, the impugned order dated 01.01.2018 has been passed by the Government to comply with the judgement of the Division Bench of this Court passed in the case of Sartaj Ahmed (supra) which, as is admitted by the parties, was implemented after it attained finality. It is also not in dispute that the Board had gone overboard in awarding five additional points to the degree holders despite the fact that the legal position in this regard had since been settled by the Supreme Court in the case of Narinder Verma vs. State of J&K and Ors. In the aforesaid judgment, the Supreme Court had concluded that once the Recruitment Rules equate two qualifications, the selection authority cannot give advantage to the one over the other on the ground that one is a higher qualification than the other. It is this serious illegality committed by the Board which was set right by the Division Bench of this Court in Sartaj Ahmed's case (supra). After the said judgment attained finality, the respondents had no option, but to implement the same. It is this serious illegality committed by the Board which was set right by the Division Bench of this Court in Sartaj Ahmed's case (supra). After the said judgment attained finality, the respondents had no option, but to implement the same. The impugned order dated 01.01.2018 has been issued to comply with the aforesaid judgment of the Division Bench and, therefore, cannot be called in question by the petitioners, more particularly, when they were also party to the litigation. 4. The plea of the petitioners that they were not privy to the illegality, if any, committed by the Board by awarding five additional points to the degree holders and, therefore, they cannot be penalised for the action of the Board, deserves consideration. It is submitted that it is not the case of the respondents that the petitioners secured their selection and appointment by practicing any fraud or by contributing to the illegality as is found to have been committed by the Board in awarding five additional points to the degree holders. It is, thus, urged that keeping in view the special facts and circumstances of the case and also taking note of the fact that the petitioners were not privy to or contributed, in any manner, to the selection which was ultimately found to be improper and illegal by this Court, it would be in the fitness of things as also to sub-serve the interest of justice that the petitioners are also accommodated. The petitioners further plead that prior to accepting their appointments as JE in the Power Development Department, they were gainfully employed and were working in the J&K Power Development Corporation as Junior Engineer (Electrical) on contractual basis and were expecting their regularization after rendering two years of service in view of the regularization policy of the Corporation in-vogue at the relevant time. They left their jobs in the JKPDC and accepted the appointments as JE (Electrical) in PDD pursuant to their selection and appointment which was later on found to be vitiated in law by the Division Bench of this Court in Sartaj Ahmed's case (supra). 5. Having given thoughtful consideration to this aspect of the matter and taking cue from the judgment of the Supreme Court rendered in the case of Vikas Pratap Singh & Ors. vs. State of Chhattisgarh & Ors. in Civil Appeal Nos. 5. Having given thoughtful consideration to this aspect of the matter and taking cue from the judgment of the Supreme Court rendered in the case of Vikas Pratap Singh & Ors. vs. State of Chhattisgarh & Ors. in Civil Appeal Nos. 5318--5319 and the judgment of Punjab and Haryana High Court rendered in the case of Sahil Aggarwal vs. State of Punjab & Ors., decided on 26.04.2014, I am persuaded to accept the plea of the petitioners that equity in the matter demands that the petitioners are also accommodated and their appointments as JE (Electrical) in the Power Development Department are saved. What was observed by the Supreme Court in paragraph No. 26 of the judgment needs to be reproduced herein below: 6. Similar view was taken by the Bench of Punjab and Haryana High Court in Sahil Aggarwal's case (supra). In the backdrop of legal position emerging from the various judgments of the Supreme Court including the one referred hereinabove, when the facts in the instant case are examined, I find no reason to deny the relief as prayed for in this petition to the petitioners. 7. Admittedly, in the instant case, the error or illegality, if any, is committed by the J&K Board. The Board was supposed to follow the law and frame the criteria for selection which was just, fair and constitutional. It failed to do its duty enjoined upon it and framed the criteria giving advantage of five additional points to degree holders despite the fact that the legal position, on the subject, was clear and already settled in Narinder Verma's case (supra). Be that as it may, the fact remains that the candidates possessing BE Degree in Electrical Engineering including the petitioners were not party to such decision. In such situation where the petitioners along with other candidates holding the qualification of BE (Electrical) were selected and appointed, it would be too harsh to show them the door, particularly, when they had accepted the appointments after abandoning their earlier service. There is an additional aspect which needs to be considered i.e., out of six candidates, who came to be ousted on reframing of the select list, there again made it to the select list due to non joining of some of the candidates from the reframed list. There is an additional aspect which needs to be considered i.e., out of six candidates, who came to be ousted on reframing of the select list, there again made it to the select list due to non joining of some of the candidates from the reframed list. One of the ousted candidates namely Ajay Koul who has made it to the select list because of non joining of the selected candidates in the revised list has obtained points in the selection equal to petitioner No. 1 but as the luck would have it he made it to the select list because of being older in age than petitioner No. 1. Mr. Ajay Koul was at S. No. 1 of the RBA list, whereas, petitioner No. 1 was at S. No. 2 in the wait list of RBA category. Both the petitioners and Ajay Koul have obtained same points. 8. Keeping in view the aforesaid facts and in the peculiar facts and circumstances of this case as enumerated hereinabove, this Court feels that it is a fit case where the relief should be granted to the petitioners on equitable consideration. For the reasons stated above, this petition is allowed. Respondents are directed to appoint the petitioners as Jr. Engineers (Electrical) against the vacancies that are available out of the selection made pursuant to the Advertisement Notice No. 03 of 2012, dated 28.12.2012 and in case no such vacancy is available, the petitioners shall be accommodated on any available posts of JE (Electrical) in the Power Development Department. Needless to say that the relief to the petitioners in the instant case has been given in the special facts and circumstances, as such, the appointments of the petitioners which shall be made by the respondents within a period of two months shall be prospective in nature for all the purposes. 9. Disposed of as above. SWP No. 3084/2017 In view of decision rendered in SWP 29/2018, this petition, in which identical issues have been raised, is rendered infructuous. The same is, accordingly, dismissed as having been rendered infructuous.