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J&K High Court · body

2019 DIGILAW 178 (JK)

Farooq Ahmad Jan v. State

2019-04-01

ALI MOHAMMAD MAGREY

body2019
Judgment 1. Petitioner, by the present writ petition, questions the selection and appointment of respondent no. 5 made against the post of Veterinary Consultant pursuant to the advertisement notice dated 4th January, 2017, inter alia on the ground that the selection in question is arbitrary in nature; violative of Article 14 and 16 of the Constitution; selected candidate is inferior in pro rata merit of the qualifying examination; the selection and appointment of respondent no. 5 is made at the instance of some influential person who is in her relation thereby rendering the selection an outcome of mala-fide exercise; it is violative of principles of natural justice; the respondents had no authority to change or alter the terms of the advertisement; selection of respondent no. 5 is void abinitio as it suffers from grave legal errors and infirmities, etcetera. 2. Based on the grounds taken in the writ petition, the petitioner has sought the writ of certiorari to the effect that selection and appointment of respondent no. 5 to the post of Veterinary Consultant be quashed; a writ of prohibition is also sought for to the effect that selection and appointment of respondent no. 5 to the post of Veterinary Consultant be not given effect; a writ of mandamus is also sought for to the effect of directing respondents to select and appoint the petitioner against the post of Veterinary Consultant w.e.f. the date of selection of respondent no. 5 with all consequential benefits. 3. Upon notice respondents appeared and filed their reply and resisted the claim of the petitioner. It is averred in the reply that petitioner could not make the grade while as the respondent no. 5 performed well in the process of selection resulting in her selection. It is further averred in the reply of the official respondents that petitioner has misrepresented before the court. The respondent no. 5, is stated to have been selected on the basis of merit obtained by her in the process of selection and the said selection does not suffer from any legal infirmity as projected in the writ petition. 4. I have heard learned counsel for the parties. 5. A brief re-look at the events leading to the filing of the instant petition is desirable, thus: 6. A notification bearing no. 4. I have heard learned counsel for the parties. 5. A brief re-look at the events leading to the filing of the instant petition is desirable, thus: 6. A notification bearing no. DHSK/IDSP/209 dated 25th December, 2016 came to be issued by the respondents for hiring contractual staff for strengthening the Integrated Disease Surveillance Programme (Centrally Sponsored Scheme) at Divisional/ District level for a period of one year in the first instance extendable on the basis of performance or till the continuation of the scheme relating to various programmes including the Veterinary consultant. The criterion for the selection against the post in question was provided as under:— Qualification + Experience Suggested selection criteria A Post Graduate Veterinary Degree in Veterinary Public Health or Veterinary Epidemiology of Veterinary Medicine or Veterinary Microbiology or Veterinary Pathology; (i) Post-Graduation on Pro-rata basis: = 80 points (ii) Viva Voce: = 20 points OR (i) Graduation on Pro-rata basis = 80 points (ii) Viva Voca = 20 points 3 years’ experience in Veterinary Public Health or Veterinary Epidemiology or Animal Health OR A Bachelor’s Degree in Veterinary Science and Animal Husbandry as listed in the 1st & 2nd Schedule of the Indian Veterinary Council Act, 1984; Age: Up to 65 years 5 years’ experience in Veterinary Public Health or Veterinary Epidemiology or Animal Health Note: In case the number of eligible candidates is more than 5 per post screening test needs to be conducted for shortlisting;— (i) Screening test = 40 points; (ii) Qualifying examination; = 40 points; (iii) Viva Voce; = 20 points Item (i) & (ii) on pro-rata basis.” 7. Amongst others, petitioner and respondent no. 5 applied and participated in the selection process. The selection process culminated in the selection of respondent no. 5 who was subsequently appointed also. 8. Feeling aggrieved of the selection the petitioner challenges the same on varied grounds with particular reference to screening test having been conducted in derogation of rules inasmuch as the number of candidates were less than five. The other side, however, controverts and puts the number of candidates to be 19. 9. Learned counsel for the petitioner while reiterating the grounds of the writ petition submits that the petitioner’s merit has been turned into demerit by the respondents by selecting the respondent no. 5 against the post in question. The learned counsel further submits that the respondent no. 9. Learned counsel for the petitioner while reiterating the grounds of the writ petition submits that the petitioner’s merit has been turned into demerit by the respondents by selecting the respondent no. 5 against the post in question. The learned counsel further submits that the respondent no. 5 did not satisfy the conditions of the advertisement as the experience certificate produced by her is not issued by the competent authority. Mr Altaf Haqani, learned counsel for the petitioner submits further that the petitioner, being the resident of district Srinagar had to be given the preference in terms of clause 2 of the terms and conditions of the advertisement notice. He further submits that the respondent no. 5 has completed her bachelor’s degree of animal husbandry in the month of June, 2013 and the Post-Graduation on 7th December, 2016. 10. Learned counsel further submits that there were only five eligible candidates available with the respondents, therefore, there was no requirement of screening test in terms of the criteria of selection, but the respondents still conducted the screening test to shower the undue benefit upon respondent no. 5. 11. Mr Shah Aamir, learned AAG, appearing for the State Respondents, submits that the selection of respondent no. 5 is legally valid and no right, muchless a legally enforceable right of the petitioner has been infringed by the selection in question. He submits that the petitioner participated in the selection process and when he did not make the grade and failed in the process, he felt aggrieved and questioned the selection. He submits that if at all the petitioner believed that screening was not required to be conducted in the matter, he ought to have opted out of it, but he did not. He submits that petitioner gladly participated in the screening test and if he would have succeeded he would not have questioned the selection process. He submits that the challenge laid to the selection exercise being bad in law is devoid of force, therefore, cannot be accepted. Learned State Counsel further submits that the submission of the learned counsel for the petitioner that there were only five eligible candidates available with the respondents, therefore, the screening test was not required to be conducted is belied by the records which shows that there were as many as 19 candidates available. 12. Ms Saima Mehboob, learned counsel appearing for the respondent no. 12. Ms Saima Mehboob, learned counsel appearing for the respondent no. 5, also made submissions to demonstrate that the selection of the respondent no. 5 is legally valid and the documents submitted by the respondent no. 5 are in tune with the requirement of the terms and conditions of the advertisement notice. 13. Considered the submissions made. 14. The dispute raised with regard to the selection of respondent no. 5, in nutshell, revolves around the screening test having allegedly been conducted in disregard of the criterion and the experience certificate produced by the selected candidate being not in tune with the terms and conditions of the advertisement notice. 15. The petitioner in support of his stand has referred to the criterion to indicate that screening test was required to be conducted for the post in question only in a situation where the number of candidates is more than five which, as per his belief, was not the case. The petitioner believes that only two candidates were eligible and available with the respondents, therefore, the condition of screening test was not attracted. He thus believes that the screening test was conducted in de-horse the rules. The petitioner pleads for intervention of this court to declare the screening test as void abinitio so that he emerges as the meritorious candidate for the post as he is stated to have obtained more points than the selected candidate in the pre-screening process. 16. The other submission made by the learned counsel for the petitioner that the experience certificate produced by the respondent no. 5 was not issued by the competent authority as was required in terms of the advertisement notice. 17. The other side has specifically pleaded that no illegality could be attributed to the conduct of screening test as the number of eligible candidates for the post in question were more than five thus attracting the stipulation of screening test. He further submits that the respondents have made selection strictly in accordance with the criterion laid down in this behalf. The learned State counsel has produced the relevant record to indicate that there is no infirmity in the selection process. 18. The respondents have sufficiently explained that there were more than five candidates available with the respondents requiring them to conduct the screening test for the post in question. The learned State counsel has produced the relevant record to indicate that there is no infirmity in the selection process. 18. The respondents have sufficiently explained that there were more than five candidates available with the respondents requiring them to conduct the screening test for the post in question. The record produced by the learned State Counsel also substantiates such stand of the respondents. The plea of the learned counsel for the petitioner that the screening test conducted was in violation of the terms of the advertisement notice, therefore, loses significance and is accordingly rejected. 19. The other challenge made to the selection that the experience certificate produced by the respondent no. 5 is not in tune with the terms and conditions of the advertisement notice appears to be carrying weight as the records produced by the State Counsel demonstrates that the experience certificate of the selected candidate is issued by “Dar Medicate” A shop dealing poultry, veterinary and human medicine at Habak, Srinagar. The requirement of the advertisement notice was that the candidate has to produce the experience certificate issued by the competent authority and it does not require one to be a rocket scientist to know as to whether a Shopkeeper would qualify to be the competent authority to issue an experience certificate to certify that an aspirant is possessing an expertise in the particular field. It certainly does not. 20. Since the respondents have very consciously acknowledged, entertained and given weightage to a certificate which is not in conformity with the requirements of the advertisement notice being not issued by the competent authority, therefore, the whole exercise undertaken for the selection of post in question, gets opaquer. 21. In the circumstances when the court finds the selection exercise opaquer the only course required to be adopted would be to done away with the selection made. However, even if such course is adopted, that would not, in any means, tilt the balance in favour of petitioner to be selected in place of respondent no. 5 as the benefit of a sham exercise should go to none. 22. Having regard to what has been said hereinbefore the writ petition is allowed in the following manner:— (a) By a writ of Certiorari, the entire selection exercise made for the post of Veterinary Consultant shall stand quashed resultantly the selection of respondent no. 5 as the benefit of a sham exercise should go to none. 22. Having regard to what has been said hereinbefore the writ petition is allowed in the following manner:— (a) By a writ of Certiorari, the entire selection exercise made for the post of Veterinary Consultant shall stand quashed resultantly the selection of respondent no. 5 for the post in question is also quashed. (b) Respondents shall be free to undertake a fresh exercise of selection for the post in question in terms of the Scheme, of course if the same is still in existence. (c) Respondent no. 5 shall be paid the legitimately earned wages for the services rendered. 23. The writ petition along with connected MP is disposed of on the above lines. 24. Record produced by the learned State Counsel is returned to him in the open Court.