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J&K High Court · body

2019 DIGILAW 457 (JK)

Shahzada Musharib v. State of J&K

2019-10-22

SANJEEV KUMAR

body2019
Judgment 1. The petitioner is aggrieved and challenges the select list issued by respondent No.2 in reference to Item No. 53 of advertisement notification No. 02 of 2003 dated 10.12.2003 whereby and whereunder the respondent No.3 has been selected on the post of Assistant Superintendent of Jail. The petitioner also seeks direction to the respondents to select and appoint him on the post of Assistant Superintendent Jail notified vide notification dated 10.12.2003. 2. Briefly stated, the facts relevant to the disposal of this petition are that, respondent No.2 vide its notification No. 02 of 2003 dated 10.12.2003 invited applications, inter alia, for one post of Assistant Superintendent Jail under Open Merit Category in the State cadre. As per the advertisement notice, the prescribed qualification was same as had been notified in the advertisement notice No. 01 of 2001 dated 11.01.2001 issued for the post of Assistant Superintendent Jail. The qualification was Degree of recognized University, preference being given to those possessing Degree/Diploma in Social Work, Specialization in criminology work. Proficiency in knowledge of handling of handicrafts, cottage industries was to be treated as additional qualification. Qualification for Ladakhis, however, was prescribed as under-graduate. The petitioner being a Postgraduate in Social Work from Aligarh Muslim University also responded to the aforesaid advertisement. The respondent No.2, with a view to make selection, notified the selection criteria in terms of its notification dated 28.06.2011. The criteria prescribed was in the following manner: - i. Graduation: 40 points ii. Diploma/Degree in Social work: 20 points iii. Certificate Course in criminology: 10 points iv. Certificate in Handicrafts related course: 10 points v. Viva voce: 20 points Total: 100 points 3. The respondent No.2 initiated the process of selection for filing up the vacancies of Assistant Superintendent Jail notified by two different notifications together and simultaneously. All eligible candidates, who had applied for the post pursuant to two notices supra, were called for Height and Measurement test vide notification No. SSB/Div/Int/Kash-II/734-41 dated 28.06.2011. The height and measurement test was conducted by respondent No.2 on 8th and 9th of July, 2011. The petitioner and some other candidates, who could not participate in the test for the reason that the notification had not been given wide publication, represented and were eventually allowed by the respondents to participate in the interview subject to clearance of the Height and Measurement Test. The petitioner and some other candidates, who could not participate in the test for the reason that the notification had not been given wide publication, represented and were eventually allowed by the respondents to participate in the interview subject to clearance of the Height and Measurement Test. The SSB thereafter, in terms of its notification dated 24.09.2011 issued the short list of the provisionally eligible candidates for participation in the interview for both the notifications to be conducted on 03.10.2011 at J&K SSRB, Zum Zum Building, Ram Bagh, Srinagar. The name of the petitioner was reflected in the supplementary list at serial No. 2 with reference to notification No. 01 of 2001, with a condition that he has to qualify the Height and Measurement Test before taking the interview. The name of the petitioner was also reflected in the supplementary list at serial No. 28 with reference to notification No. 02 of 2003. A single interview was conducted for the posts of Assistant Superintendent Jail notified by two different notifications. The petitioner participated in the interview process. While calculating the selection merit of the petitioner, the Postgraduate Degree of the petitioner obtained from Aligarh Muslim University, was not considered with reference to notification No. 01 of 2001 as the same had been obtained by the petitioner after the cut off date. He was thus awarded 36.73 points in the selection process. The aforesaid qualification i.e. Postgraduate Degree in Social Work, was, however, considered and given weightage with reference to the post advertised vide notification No. 02 of 2003. The petitioner was awarded 36.32 points. However, with reference to the second notification i.e. notification No. 02 of 2003, the petitioner was not awarded any points for the interview on the ground that at the time of participation in the interview he had filled up the check list only with reference to notification No. 01 of 2001 and had omitted to do so with reference to notification No. 02 of 2003, though the interview with reference to both the notifications was common. The petitioner could not make it to the select list with reference to notification No. 01 of 2001 on account of his inferior merit vis-à-vis the candidate selected. The petitioner has no grievance or grouse against the candidate selected under notification No. 01 of 2001. 4. The petitioner could not make it to the select list with reference to notification No. 01 of 2001 on account of his inferior merit vis-à-vis the candidate selected. The petitioner has no grievance or grouse against the candidate selected under notification No. 01 of 2001. 4. The grievance of the petitioner, however, is that since there was a common interview for both the posts notified by two different notifications, as such, the points obtained by him in the common viva voce i.e. 13 points should have been added to his merit with reference to notification No. 02 of 2003. He submits that, had these 13 points been added to his total merit, his merit would have gone to 49.32 points, which is higher than the merit points of the respondent No.3 who has been shown selected to the post of Assistant Superintendent Jail in reference to notification No. 02 of 2003. This, in nut shell, is the controversy involved in this petition. 5. Having heard learned counsel for the parties and perused the record, I am of the view that the petitioner has been deprived of his appointment as Assistant Superintendent Jail in reference to Advertisement Notification No. 02 of 2003 by practicing fraud and tempering with check list signed by the petitioner in response to advertisement notice No. 02 of 2003 dated 01.12.2003. 6. There is no dispute with regard to the fact that petitioner had responded to both the notifications, one issued in the year 2001 and another issued in the year 2003. At the time the petitioner submitted his application form in reference to notification No. 01 of 2001, he was simply a graduate and had not obtained the Post Graduate Degree before the cut off date. The petitioner, however, was Post Graduate in Social Work when he responded to advertisement notification No. 02 of 2003. It may be noted that there was one post of Assistant Superintendent Jail in Open Merit Category in each of the aforesaid two notifications. The selection process was commenced and there was a common interview for both the posts. The petitioner participated in the selection process and was also interviewed by the selection Committee. He was awarded 13 points out of 20 points earmarked for the viva voce test. Admittedly, the petitioner did not make the grade insofar as notification No. 01 of 2001 is concerned. The petitioner participated in the selection process and was also interviewed by the selection Committee. He was awarded 13 points out of 20 points earmarked for the viva voce test. Admittedly, the petitioner did not make the grade insofar as notification No. 01 of 2001 is concerned. However, the petitioner makes grade for selection if 13 points awarded to him in the interview are added to his selection merit. 7. The respondents have denied these 13 points of interview to the petitioner with reference to the post advertised vide notification No. 02 of 2003 on the ground that, though the petitioner was interviewed in the common interview held for both the posts, yet he did not sign the check list with reference to notification No. 02 of 2003. This plea of the respondents, on the face of it, is totally misconceived and preposterous. The check list is only an evidence of attendance in the interview and production of requisite documents and nothing more. When the interview is one and common with reference to both the notifications, the respondents cannot take the plea that the petitioner has only been interviewed with reference to one notification and not with reference to the other. 8. That apart, from perusal of record it clearly transpires that the check list filled up and signed by the petitioner with reference to notification No. 02 of 2003 has been tempered at more than one places. When confronted with the aforesaid position, learned counsel appearing for the Selection Board could not justify the aforesaid tempering. Record clearly reveals that with a view to deprive the petitioner of selection and appointment to the post of Assistant Superintendent Jail notified by notification No. 02 of 2003 and confer wrongful benefit upon respondent No.3, the officers/officials of the respondent-Board indulged in tempering of the records. It is painful to notice that even the officers at the helm of affairs have made all efforts to justify the wrong committed by its officers who were associated with the selection process in question. It was expected of Service Selection Board to come clear in the reply affidavit and admit omissions and commissions committed by its officers. Had the court not perused the relevant record, the tempering in the check list of the petitioner would have gone un-noticed. 9. It was expected of Service Selection Board to come clear in the reply affidavit and admit omissions and commissions committed by its officers. Had the court not perused the relevant record, the tempering in the check list of the petitioner would have gone un-noticed. 9. It is not in dispute that if petitioner is awarded 13 points for interview and the same are added to his total tally of selection merit, he would make it to the select list being a person with highest merit in the selection for the post in question. The learned counsel for the Board does not deny this position. 10. In view of the aforesaid facts and circumstances, I am inclined to accept this petition and the same, accordingly, is allowed. The selection of respondent No.3 as Assistant Superintendent Jail is quashed. The respondent No. 2 is directed to forward the selection of the petitioner against the post of Assistant Superintendent Jail, in reference to Notification No. 02 of 2003, to the respondent No.1with its recommendations for appointment within a period of four weeks from the date a certified copy of this order is received by it. Respondent No.1 shall issue the appointment order of the petitioner within a period of four weeks thereafter. The petitioner shall be entitled to appointment as Assistant Superintendent Jail retrospectively with effect from the date respondent No.3 was so appointed, with all consequential benefits, except monitory benefits. 11. The original record produced by Mr. Mir Suhail, AAG, be returned to him after retaining a photocopy of page 42 thereof, i.e. check list filled up by petitioner, duly attested by the Bench Secretary of this Court.