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J&K High Court · body

2019 DIGILAW 20 (JK)

Fayaz Ahmad Ahangar v. State of J&K

2019-01-18

SANJEEV KUMAR

body2019
JUDGMENT : 1. In the year 2009, the respondent no.2 invited applications for the posts of Sub-Inspectors in the Jammu & Kashmir Police (Armed). In all 210 vacancies of Sub-Inspectors were to be filled up, out of which 190 were to be filled up from the open merit category and four, amongst the others, from the Socially Under Privileged Class (SUPC) category. The selection process was conducted which culminated into issuance of the select list. 2. The cut of merit i.e., the merit of the last selected candidate came to be fixed at 58 and 57 points in the open merit and SUPC categories respectively. Some of the selected candidates did not join resulting in shortfall of 35 posts (24 under the open merit, 07 under SC, 03 under RBA and 01 under ALC categories). Accordingly, the waiting list was operated by respondent no.2 in terms of PHQ order No.3693 of 2010 dated 24.11.2010, as a result whereof the cut of merit under open merit category was reduced to 55 points. 3. One candidate, namely, Javed Hussain, who had secured 56 points under SUPC category approached respondent no.2 seeking his selection in the open merit category on the ground that the cut of merit in the open merit category had gone down to 55 points. His request was acceded to and he was selected under the open merit category. 4. Taking que from the aforesaid development, one Kulvinder Dev, who was in the waiting list of SUPC category having secured 54 points, approached this Court at Jammu by way of SWP No. 2830/2010. The said writ petition was disposed of by this Court at Jammu vide order dated 10.02.2015. By virtue of the said order, apart from quashing the appointment of respondents 3 and 4 therein, a direction was issued to the respondents to re-frame the select list in regard to 24 vacancies in the general category which had occurred on account of non joining of the selected candidates. It was also emphasized that the names of the reserved candidates possessing higher merit than those in the open merit would be reflected in the general category and the resultant vacancies be filled up by pushing up candidates in their respective categories. 5. It was also emphasized that the names of the reserved candidates possessing higher merit than those in the open merit would be reflected in the general category and the resultant vacancies be filled up by pushing up candidates in their respective categories. 5. The judgment aforesaid clearly being judgment in rem was, however, implemented by the respondents only with regard to the petitioner, Kulvinder Dev, who vide order No.1686 of 2016 dated 07.06.2016 was also appointed as Sub-Inspector. 6. While reframing the merit list with regard to 24 vacancies in the open merit category, which had fallen vacant due to non-joining of the selected candidates, it was found that the merit of four candidates who had been selected under SUPC category was higher than the cut of mark in the general category and, therefore, entitled to be shifted to the general category and as a consequence thereof four candidates in the waiting list of SUPC category are to be pushed up to be selected against the four posts of Sub-Inspectors under SUPC category which would become available by shifting of the selected candidates to the open merit category in the manner aforementioned. 7. Out of the four persons, person figuring at Sr.No.2, Kulvinder Dev, has already been selected in terms of the judgment dated 10.02.2015 and order passed by respondent no.2 on 07.06.2016. The candidate figuring at Sr.No.1, namely, Mohammad Abass Kumar, has already joined as Sub-Inspector in the Jammu & Kashmir Executive Police. In that view of the matter, there are two persons, the petitioner and one, Abishek Salgotra, as against three posts of SUPC still lying vacant. 8. It is in this backdrop, the petitioner has filed this writ petition seeking, inter alia, a direction to the respondents to issue an order of appointment in his favour against the post of Sub-Inspector in the Jammu & Kashmir Armed Police under SUPC category and appoint him retrospectively with effect from the year 2009. 9. 8. It is in this backdrop, the petitioner has filed this writ petition seeking, inter alia, a direction to the respondents to issue an order of appointment in his favour against the post of Sub-Inspector in the Jammu & Kashmir Armed Police under SUPC category and appoint him retrospectively with effect from the year 2009. 9. The writ petition has been resisted by the respondents, inter alia, on the following grounds:— (i) That petitioner never raised any grievance and filed this writ petition after lapse of eight years and, therefore, the waiting list cannot be operated at this belated stage; (ii) That four candidates in the open merit category who have faced ouster from select list due to reframing of the select list in compliance to the orders of this Court have already approached this Court and have been protected by the Court by granting them stay against their ouster; On the aforesaid twin grounds, the respondents claim that this petition is not maintainable. 10. Having heard learned counsel for the parties and perused the record, I am of the view that the objection of the respondents to the maintainability of the writ petition on the ground of delay and laches is totally misconceived and deserves outright rejection. The cause of action to approach this Court accrued to the petitioner only when order dated 24.06.2015 in compliance to the orders passed by this Court on 10.2015 in SWP No.2830/2010 was passed by respondent no.2, giving the benefit of judgment to Kulvinder Dev, the petitioner in the said writ petition. In this regard it may be appropriate to refer to the judgment/ order dated 10.02.2015, the operative portion of which reads as under:— “For the reasons mentioned above, the present petition is allowed. The appointment of respondents no.3 and 4 is quashed. Respondents shall re-frame the select list in regard to 24 vacancies in the general category which had occurred on account of non joining of the selected candidates in the said category. The names of reserved category candidates possessing higher merit than those in open merit, be reflected in the general category and consequently, the resultant vacancies be filled up by pushing up candidates in their respective categories. Let the requisite exercise be completed within a period of three months from the date a copy of this order is served upon them. The names of reserved category candidates possessing higher merit than those in open merit, be reflected in the general category and consequently, the resultant vacancies be filled up by pushing up candidates in their respective categories. Let the requisite exercise be completed within a period of three months from the date a copy of this order is served upon them. Petitioner along with all other category candidates should be considered strictly in accordance with the rules.” 11. Reading of the operative para reproduced above would make it abundantly clear that the directions issued by the Court are directions in rem and are not restricted to the petitioner in the writ petition alone. The direction is to reframe the select list with regard to 24 vacancies in the general category having occurred due to non-joining of the selected candidates and while doing so, if there are reserved category candidates possessing higher merit than those in the open merit category, they are to be reflected in the general category and consequently the resultant vacancies to be filled up by pushing up candidates in their respective categories. This judgment of this Court, by no stretch of imagination, can be said to be judgment in personam. The respondents, however, instead of complying with the aforesaid judgment in the manner it was directed by this Court restricted the benefit to the petitioner therein only. This gave a cause of action to the petitioner to file this writ petition. In these circumstances, this petition cannot be said to be hit by delay and laches. 12. As noted above, there is no dispute on facts. There were four vacancies of Sub-Inspectors in the SUPC category notified in the year 2009 and four candidates as per merit were selected in the aforesaid category and accordingly came to be appointed. However, after the intervention of the court made in terms of judgment dated 10.02.2015, the merit list of the open merit category was reframed. Four candidates who had been selected in SUPC category having obtained higher merit than those candidates selected under the open merit category became entitled to be shifted to the open merit category and because of that four vacancies under the SUPC category became available against which the four candidates next in the order of merit were to be pushed up. Petitioner figures at sr.no.3. He, therefore, cannot be denied appointment. 13. Petitioner figures at sr.no.3. He, therefore, cannot be denied appointment. 13. Having said so, there is one important aspect that has been highlighted by the respondents that four persons in the open merit category who came to be ousted from the open merit category on account of re-framing of the list are in the court of law and have been protected qua their ouster. If that be so, the petitioner may not be entitled to any relief as on date. 14. In view of the foregoing facts and circumstances, I deem it appropriate to dispose of this writ petition by providing as under:— (i) The writ petition is allowed and the petitioner is held entitled to be appointed as Sub-Inspector in Jammu & Kashmir Armed Police under SUPC category with effect from 24th June, 2015 when Sh Kulvinder Dev, petitioner in SWP No.2830/2010 was so appointed along with all consequential benefits. (ii) The appointment of the petitioner, however, shall be subject to the availability of the vacancy in the category of SUPC out of the selection made pursuant to the notification of 2009. (iii) In case there is no vacancy in existence as aforesaid, the case of the petitioner for appointment shall be considered after the disposal of the writ petition(s), if any, filed by the four ousted candidates as contended by the respondents in their reply. 15. The writ petition is accordingly, disposed of in the aforesaid terms.