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2019 DIGILAW 28 (JK)

Manmohan Khajuria v. Sheikh Muzaffar Ahmad

2019-01-28

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

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JUDGMENT : APLPA No.35/2017 Application is allowed as prayed for. Requirement for submission of certified copy of order dated 19.08.2017 is dispensed with. RPLPA No. 17/2017 DHIRAJ SINGH THAKUR, J. 1. This is a petition seeking review of judgment and order dated 19.08.2017 whereby condonation of delay application bearing COD No. 51/2017 in LPASW No. 144/2017 had been dismissed. Briefly stated, the material facts in the light of which the present controversy has arisen are as under: 2. Pursuant to an advertisement notice dated 09.03.2017 issued by the Director General of Police, applications were invited from eligible candidates for vacancies of Constables (Operator) in the Telecommunication wing of the Jammu and Kashmir Police. 2788 candidates applied for the advertised posts. Finally, a select list was prepared, which was challenged by unsuccessful candidates, who were the petitioners in the batch of petitions on the ground that instead of making selection at the State or Divisional level, the selections were made at the district level, which was unconstitutional. 3. The writ Court by virtue of judgment and order dated 09.05.2014 allowed the writ petitions and quashed the select list. A Mandamus was issued for framing the select list at the State level on the basis of merit secured by candidates, who had participated in the selection process having due regard to the provisions of the J&K Reservation Act, 2004 and J&K Reservation Rules, 2005 and accordingly directed to consider the candidates in the order of merit against the advertised posts. 4. What was stated by the writ Court in paragraph 24 of the judgment is reproduced hereunder:- “24. For the reasons discussed, writ petitions are allowed and Select List notified vide PHQ No. 2844 of 2009 dated 01.08.2009 (Annexure P-4 in SWP No. 1352/2010) and appointments made vide PHQ No. 2168 of 2010 dated 26.06.2010 vide notification No. 3475 of 2010 dated 23.10.2010 and 824/2011 dated 10.03.2011 (Annexure P-4(a) in SWP No. 1352/2010), on the basis of impugned Select List, quashed. Respondents are commanded to reframe Select List at State Level on the basis of merit secured by candidates, who participated in the selection process having due regard to J&K Reservation Act, 2004 and J&K Reservation Rules, 2005, and thereafter consider candidates for appointment in order of merit against 1126 posts, though not mentioned in advertisement notice, but admittedly proposed to be filled up on finalization of selection process initiated vide advertisement notice 09th March, 2007. However, selection and appointment of such of the private respondents, who find place in the reframed select list and having regard to their place in the merit list and the number of vacancies to be filled up, make grade for their appointment, shall remain intact and undisturbed. The exercise be completed as far as possible within four weeks from the date of receipt of copy of this judgment.” 5. The official respondents by virtue of order No. 211 of 2017 dated 19.01.2017, finally prepared the merit list of all those candidates, who had appeared in the selection process, at the State level. As a necessary consequence of the judgment and order dated 09.05.2014, some of the candidates including the petitioners herein have been directed to be ousted on account of the fact that they did not make up the merit. 6. In the earlier round of litigation, the applicants-petitioners herein had filed an LPA along with aforementioned condonation of delay application seeking condonation of delay in filing the appeal against judgment and order dated 09.05.2014 passed in a batch of writ petitions bearing SWP No. 1352/2010 and ors. Since the condonation of delay application was filed in the year 2017, delay from 09.05.2014 i.e. the date of the judgment upto the filing of the appeal as also the condonation of delay application were sought to be justified on the ground that the cause of action to challenge the judgment and order dated 09.05.2014 had accrued to the applicants-petitioners herein only upon the passing of Order No. 211 of 2017 dated 19.01.2017 and the applicants-petitioners could not have anticipated that they would be ousted on account of merit and that the judgment was being challenged only after the order of ouster dated 19.01.2017 had been issued. What was stated by this Court while rejecting the condonation of delay application in paragraphs 13 to 16 are reproduced hereunder: “13. What was stated by this Court while rejecting the condonation of delay application in paragraphs 13 to 16 are reproduced hereunder: “13. The fact that the select list, pursuant to which, the applicants herein had been selected and appointed had been quashed, was very much within the knowledge of the applicants. The applicants were permitted to continue till the entire process of reframing of the select list was completed. It was, therefore, a foregone conclusion that some of the respondents, who had earlier been selected, would be ousted upon preparation of the select list at the State level. In case, any of the candidates, who were respondents in the earlier batch of petitions, felt that the judgment was required to be challenged in appeal, they ought not to have waited to take a chance upon re-drawal of the merit list at the State level. The applicants were clearly fence-sitters, who were hoping that their names would figure in the fresh list prepared at the State level and only upon failing to achieve that merit position, they have now decided to challenge the said judgment and order in appeal before this Court. 14. The argument that the cause of action accrued to the applicants to file the present Letters Patent Appeal only upon issuing of the consequential order is self-defeating. The applicants ought not to have waited for the issuance of the order, which was only consequential to the judgment and order dated 09.05.2014. 15. Permitting the applicants to challenge the judgment and order in question at this belated stage, after more than three years, would consequently cause prejudice to other candidates, who were petitioners in the batch of petitions and were waiting all along for the Government to frame the fresh list in accordance with the directions issued by the Writ Court. 16. On a comparative assessment of the prejudice that might be caused by condoning the delay, we feel that the scales weigh heavily against the applicants in the present appeal.” 7. In the present review petition, the main ground urged was that review petitioners had no knowledge that they were not respondents in the earlier batch of petitions decided on 09.05.2014 and, therefore, the observations made in paragraphs 13 and 14 did not apply to the case of the review petitioners. In the present review petition, the main ground urged was that review petitioners had no knowledge that they were not respondents in the earlier batch of petitions decided on 09.05.2014 and, therefore, the observations made in paragraphs 13 and 14 did not apply to the case of the review petitioners. It is stated that the fact that the names of as many as 22 review petitioners did not figure in the array of the respondents, came to the knowledge of the review petitioners when as a matter of abundant caution, the petitioners visited the Registry of the Srinagar Wing of the High Court to examine the record and that since it has come to the knowledge of the petitioners that they were not respondents in the earlier petitions, therefore, the delay was required to be condoned and the bar of delay and laches would not apply in their case. 8. Heard learned counsel for the petitioners. 9. Admittedly, neither in the earlier condonation of delay application nor in the present review petition have the petitioners specifically averred that they had no knowledge about the passing of the judgment and order dated 09.05.2014 passed in a batch of petitions bearing SWP No. 1352/2010 and ors. In case, the petitioners did not have knowledge, then nothing could have prevented them from urging so at the time when the issue was considered in COD No. 51/2017. Even in the present review petition, it is not the case of the petitioners that they had no knowledge about the passing of the judgment and order dated 09.05.2014. What is stated in paragraph 9 of the review petition by the petitioners is as under:- “9. That the Hon’ble Writ Court vide judgment dated 09.05.2014, quashed the entire select list issued vide PHQ No. 2844 of 2009 dated 01.08.2009, the orders of appointment of the petitioners as well, despite the fact that the petitioners were never impleaded as party respondents in the aforesaid writ petitions and at no point of time any notice was ever issued to the petitioners in all the aforesaid writ petitions.” 10. The grounds urged in the review petition have been asserted only with a view to carve out a ground to somehow get over the issue of delay which, otherwise, the petitioners had failed to justify in the earlier round before this Court. 11. The grounds urged in the review petition have been asserted only with a view to carve out a ground to somehow get over the issue of delay which, otherwise, the petitioners had failed to justify in the earlier round before this Court. 11. Having considered the entire matter, we feel that the judgment and order dated 19.08.2017 dismissing the condonation of delay application earlier filed by the petitioners does not suffer from any error apparent on the face of the record and, therefore, does not justify any review of judgment and order dated 19.08.2017. 12. In view of the above, the review petition fails and is, accordingly, dismissed.