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2019 DIGILAW 471 (JK)

Maria Nazir v. State of J&K

2019-10-30

ALI MOHAMMAD MAGREY

body2019
JUDGMENT : Ali Mohammad Magrey, J. 1. Through the medium of the instant petition, the petitioners beseech for the grant of following relief(s) in their favour: “(I) By issuance of a writ of mandamus or any other appropriate writ, order or direction, respondents and more particularly respondent no.04 be directed to issue orders of posting of the petitioners forthwith and also pay them the salary with effect from 31-12-2014/ 02-01-2015, on which dates, pursuant to the order of their selection dated 29-12-2014, they submitted their joining reports before respondent no. 04 who entertained those joining reports and allowed them to join their duties. (II) The respondents be also directed to prepare service books of the petitioners and also fix their seniority in the cadre of IV employees of Education Department, District Cadre Kulgam and pay them annual increments etc. accordingly. (III) The Hon’ble Court may pass any other order or direction which it may deem fit and proper under the facts and circumstances of the case.” 2. The factual matrix of the case, as stated by the petitioners in their petition, is that by advertisement notice No. EO/K/NT/01/14 dated 4th of August, 2014, applications were invited from amongst the eligible candidates of District Kulgam for direct recruitment as Class-IV in District Cadre Kulgam, Education Department. The advertisement notice provided that the minimum and maximum qualifications are Matric and 10+2 respectively from any recognized Board/Institute. In response to the aforesaid advertisement notice, the petitioners applied for their selection and appointment to the said posts. The applications of the petitioners were received by respondent No.3 against proper receipt and after receipt of the applications of the petitioners and other candidates, the respondent No.3 issued a provisional shortlist of candidates who had applied for Class-IV posts in District Kulgam. The provisional shortlist was prepared on the basis of merit and was published for inviting objections, if any, from the concerned candidates. Pursuant to the aforesaid provisional shortlist, the petitioners, alongwith other eligible candidates, were interviewed by the respondents, whereafter a provisional selection list of the candidates for the post of Class-IV, District Cadre, Kulgam was issued by respondent No.3 on 29th of December, 2014, wherein the petitioners were shown as selected. In pursuance of the aforesaid provisional selection list, the petitioners reported to respondent No.3 by submitting their joining reports before him. In pursuance of the aforesaid provisional selection list, the petitioners reported to respondent No.3 by submitting their joining reports before him. After receiving the joining reports from the petitioners and allowing them to join, the respondent No.3, as stated, instead of issuing the posting orders of the petitioners and releasing their salary, made the petitioners to wait and, finally, in terms of communication No. CEO/K/NT/ 1523/15 dated 12th of June, 2015, requested the respondent No.2 to give his approval to the selection list so as to enable him to proceed further in the matter. The respondent No.2, in turn, vide letter No. DSEK/NT/DRC/26-31/2015Kul/2012 dated 18th of June, 2005, informed the respondent No.3 that he has nothing to do with the preparation of the provisional selection list, because the said list has been prepared by respondent No.3 in his capacity as Chairman of the Selection Committee and, as such, he has to consider the matter at his own level, after considering all aspects. The respondent No.2 also informed the respondent No. 3 that before proceeding further, he should ensure/satisfy himself that all the requisite formalities, codal procedures and prescribed parameters have been observed/adopted while making the selection of the candidates and that the selection criteria, as fixed by the Government, has been adopted in the process with transparency. Thereafter, the respondent No.4 addressed a letter No. CEO/K/NT/1666-68/15 dated 20th of June, 2015 to respondent No. 5, who in his capacity as I/C Chief Education Officer, Kulgam, had initiated the process of selection for filing up the Class-IV posts and had finalized the same by issuing provisional selection list, asking him that in case he has complied with all the requisite norms/rules/codal procedure/formalities/parameters/ selection criteria while making the selection of the candidates and the selection process was transparent and free from encumbrances, litigation, vigilance , etc., he should submit a certificate to the office of respondent No.3, in order to enable him to proceed further in the matter. The respondent No. 5, in terms of his letter dated 22nd of June, 2015, thereafter, informed the respondent No.4 that during the year 2014, selection for Class-IV posts in the Education Department was processed in almost all the Districts of the State, the respondent No.5 had also carried the same kind of process in District Kulgam. The respondent No. 5, in terms of his letter dated 22nd of June, 2015, thereafter, informed the respondent No.4 that during the year 2014, selection for Class-IV posts in the Education Department was processed in almost all the Districts of the State, the respondent No.5 had also carried the same kind of process in District Kulgam. It was also stated by the respondent No.5 that to the best of his knowledge and belief, the selection process carried out by the selection Committee has been fair throughout in observance of relevant prescribed rules, codal procedures/ formalities, parameters and free from encumbrances, litigation, vigilance, etc. After receiving the aforesaid communication, the respondent No.4 did not issue the posting orders of the petitioners nor did he release the salary in favour of the petitioners with effect from the date they joined their duties in the office of respondent No.4. The petitioners, thereafter, besides bringing the aforesaid matter to the notice of respondent No.2, also agitated their grievance before the respondent No. 1 by submitting a representation to him for directing the respondent Nos. 2 to 5 to issue their posting orders and also release their salary. This representation, as stated, was, vide communication dated 30th of July, 2015, forwarded by respondent No.1 through under Secretary to Government, School Education Department, to respondent No.2 for taking necessary action in the matter under rules, but no action has been taken by the respondent Nos.2 to 5 on the said communication till date. Faced with this situation, the petitioners have knocked at the doors of this Court with the instant writ petition for seeking the above stated relief. 3. Mr Naik, the learned Senior counsel, appearing on behalf of the petitioners, submits that the petitioners having been selected against the Class-IV posts in the Education Department for District Cadre, Kulgam, after proper selection and they having joined their duties in pursuance of their order of selection dated 29th of December, 2014, therefore, the respondents are obliged under law to issue their orders of posting and also release their salary with effect from the date they joined their duties, however, the respondents have failed to do so thereby violating the legal, fundamental and constitutional rights of the petitioners guaranteed to them under Articles 14, 16 and 21 of the Constitution of India. The learned Senior counsel pleads that it was not only in District Kulgam where the process of selection against the Class-IV posts was initiated by the Education Department, but in all the other Districts of the State such process was initiated as well and the candidates, after proper selection, were appointed to the said Class-IV posts, however, it is only in District Kulgam where the petitioners have been selected, but their orders of posting have not been issued despite they having joined before the authorities concerned. It is in this backdrop that the learned senior Counsel has proceeded to contend that the respondents have subjected the petitioners to hostile discrimination and, therefore, they deserve to be directed to issue orders of posting in favour of the petitioners and also pay them the salary with effect from the date(s) the petitioners joined their duties, without any further delay. 4. Counter Affidavit stands filed on behalf of the respondents resisting and controverting the averments made by the petitioners in their petition. It is stated that in the year 2014, the then Incharge Chief Education Officer, Kulgam/Chairman, District Recruitment Committee for Class-IV employees of Education Department in f District Kulgam, issued an advertisement notification for recruitment of Class-IV employees vide notification bearing No. CEO/K/NT/01/14 dated 4th of August, 2014 in one of the leading local daily newspapers, namely, Greater Kashmir. It is stated that the aforementioned selection process had to be carried out in light of order issued by the General Administration Department bearing No. 735-GAD of 2008 dated 30th of May, 2008, whereby the criterion for the composition of constitution of the District Level Committee for recruitment to Class-IV posts in Government departments stood notified. The respondents further submit that since the Government had, later on, felt the need to modify the Government order Supra, a new Government order bearing No. 731-GAD of 2010 dated 24th of June, 2010 was issued, incorporating a change in condition No.2, whereby two gazetted Officers belonging to two different reserve categories were replaced by the District Social Welfare Officer. The respondents further submit that since the Government had, later on, felt the need to modify the Government order Supra, a new Government order bearing No. 731-GAD of 2010 dated 24th of June, 2010 was issued, incorporating a change in condition No.2, whereby two gazetted Officers belonging to two different reserve categories were replaced by the District Social Welfare Officer. It is further submitted that when the aforementioned selection process had commenced, the Deputy Commissioner, Kulgam, by virtue of communication No. DCK/PA/2014-15/1406-07 dated 13th of October, 2014, addressed to respondent No.3, had nominated Deputy Registrar Cooperatives, Kulgam, as a member of the said selection Committee in pursuance of Government order bearing No. 735-GAD of 2008 dated 30th of May, 2008. It is pleaded that in terms of Government order dated 30th of May, 2008, it was incumbent upon the Head of the Department concerned, i.e. respondent No.2 herein, to nominate any Officer from the Directorate as one of the members of the selection Committee, however, no Officer from the Directorate had been included by the then CEO, Kulgam as a member and, on the contrary, the then CEO, Kulgam, in order to shower undue benefits upon some of his blue-eyed candidates, vide communication No. CEO/K/NT/3244/14 dated 15th of October, 2014 addressed to Principal, Higher Secondary D.H. Pora, informed him that since in terms of Government order dated 30th of May, 2008, one member from the concerned department is to be nominated by the concerned HoD in the Class-IV Selection Committee, therefore, a request for the same has been made to respondent No.2 and in reply thereto, respondent No.2 has telephonically conveyed his consent for your empanelment as one of the members of the selection Committee and, resultantly, you are nominated as one of the members of the aforementioned selection Committee. However, on gaining the knowledge of the aforesaid issue, as stated, the respondent No.2, vide communication No. DSEK/NT/DRC/26-31/2015-II/Kul/810 dated 6th of February, 2015 addressed to the then CEO, Kulgam, refuted the aforementioned instructions as averred by the then CEO, Kulgam in his communication dated 15th of October, 2014 addressed to Principal, Higher Secondary, DH Pora and sought reasons from him regarding the provisional selection of competing candidates made in violation of terms and conditions stipulated in Government Order No. 735-Edu of 2008 dated 30th of May, 2008 followed by Government Order No. 731-Edu of 2010 dated 24th of June, 2010. It is also stated that the respondent No.2 made it clear that in light of the conditions stipulated in Government orders Supra, the then CEO, Kulgam, was mandatorily required to include one member from the Directorate of School Education, Kashmir, to be nominated by the Head of the Department, i.e. the respondent No.2 himself as member, which testifies to the fact that whole selection process carried out in respect of these petitioners was vitiated, resultantly making the whole selection process as illegal and unconstitutional. The respondents contend that once the respondent No.4 was posted as Chief Education Officer, some of the candidates who were selected and, later on, joined but were not given posting orders as the then Incharge CEO, Kulgam, foreseeing the consequences of an illegal selection process, had imposed a condition in their joining reports seeking clearance from the office of respondent No.2, as a result whereof, the posting orders were not issued in favour of the petitioners. The respondents have further averred that records bear testimony to the fact that no legitimate criterion whatsoever had been formulated by the then CEO, Kulgam, as the Chairman of the District Level Recruitment Committee for assigning weightage to the academic qualifications and also for the viva-voce test of the competing candidates in order to determine their overall merit for their shortlisting and consequent selection. It is argued that for shortlisting of the candidates for the purposes of interview, a criterion of 1:20 was fixed, meaning thereby that for one post, twenty candidates were called for interview, which is indicative of the fact that in order to make room for the candidates having low merit, the criteria envisaged under relevant norms/ rules and Government orders was compromised by the then CEO. The respondents allege that it also came to fore that in order to accommodate low meritorious candidates, 40% weightage was accorded to the viva-voce test, which was again done in contravention to the norms and rules set out for carrying out the selection of petitioners for the post of Class-IV category. In the end, the respondents have urged that the petition of the petitioners, being devoid of any merit, deserves to be dismissed. 5. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter. 6. In the end, the respondents have urged that the petition of the petitioners, being devoid of any merit, deserves to be dismissed. 5. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter. 6. Having heard the learned counsel for the parties and after going through the pleadings on record, the question that arises for consideration herein this case is whether selections made by the Selection Committee constituted for the said purpose are vitiated in view of allegation vis-à-vis the composition and conduct of the selection Committee being unfair and non-transparent or whether the selectees against a particular post, after competing in the process of selection, can be denied the right of appointment on the ground that the selection process was not fair or transparent on part of the selection Committee constituted for the said purpose. 7. It is admitted position that the petitioners, after participating in the process of selection, were selected for the Class-IV posts in the respondent Department for District Kulgam. It is also not in dispute that the petitioners, after being appointed in pursuance of their selection, also joined the posts they were appointed against before the concerned authority, but they were not issued any orders of posting nor was any salary paid to them. It is well settled legal position that there is always presumption in favour of the administration that it exercises powers in good faith and for public benefit. When a bias/ irregularity alleged against a selection Committee could not be proved, it has to be taken that there is compliance of the relevant rules in the process of selection and it is not appropriate for the Courts to interfere with the judgment of the selection Committee by substituting their own assessment. Allegations of bias must be carefully examined before any selection can be set aside. In the first place, it is the joint responsibility of the entire selection Committee to select a candidate who is suitable for the post. When experts are appointed to the Committee for selection, the selection should not be lightly set aside unless there is adequate material which would indicate a strong likelihood of bias or show that any member of the selection Committee had a direct personal interest in appointing any particular candidate. When experts are appointed to the Committee for selection, the selection should not be lightly set aside unless there is adequate material which would indicate a strong likelihood of bias or show that any member of the selection Committee had a direct personal interest in appointing any particular candidate. It is not forthcoming from the pleadings of the parties that any of the member of the selection Committee had any personal interest in selection of the candidates who were selected. Furthermore, a mere non-inclusion of one of the members in the selection Committee did not vitiate the proceedings in any manner. It is of paramount importance to be noted that whether a person acting in judicial or administrative capacity has a direct or pecuniary interest in the outcome of the proceedings, the danger of bias is self-evidence. But, the entire principle rests of the factual aspect of each and every case and this cannot be applied as a straight-jacket formula. The facts of each case and the circumstances have to be thoroughly scanned before applying the principle. It has to be seen whether the bias in favour of certain candidates was established. In the case on hand, no nexus or interest has been established to have existed between any of the members of the selection Committee and the candidates who were selected. The mere allegation that the Selection Committee was inclined to select the petitioners cannot be said to be a gospel truth. The test of bias and its impact has to be tested from the angle of a man of ordinary prudence. In the given circumstances, whether an ordinary prudent man would come to the conclusion that the selection Committee was biased in favour of the selected candidates is a litmus test to be applied. The attending and preceding circumstances have to be considered. Tough the principle of acting fairly and reasonably is of paramount importance, but the test is whether a reasonable intelligent man, fully appraised of all the events and circumstances, would apprehend likelihood of bias. If the test is positive, the decision gets vitiated and not otherwise. The attending and preceding circumstances have to be considered. Tough the principle of acting fairly and reasonably is of paramount importance, but the test is whether a reasonable intelligent man, fully appraised of all the events and circumstances, would apprehend likelihood of bias. If the test is positive, the decision gets vitiated and not otherwise. In the instant case, this Court is not able to find any material to sustain the contention raised by the learned State counsel that there was procedural infraction so as to hold that the selection Committee was biased in favour of the selected candidates and, thus, it cannot be concluded that the selection Committee has not acted fairly and reasonably. Furthermore, all the competing candidates have accepted the result and remained satisfied with the selection process, including those who have not made it to the selection as there is no challenge to the selection by any of the non-selectees. 8. Looking at the case of the petitioners from yet another perspective, what requires to be stated is that the petitioners, after competing in the process of selection initiated by the respondents in terms of a valid advertisement notification, got selected for the posts in question on the basis of their merit position assessed by the selection committee constituted for the purpose by the respondents at the relevant point of time. The constitution of the selection Committee was well within the domain of the respondents and the petitioners were not, at all, associated with the said process. It is not the fault of the petitioners that they were interviewed by a certain selection Committee which was, as per the respondents, not constituted in accordance with the rules governing the field. The Committee was constituted by the respondents themselves and the process of selection was taken to its logical conclusion by the said committee resulting in the selection of the petitioners and their consequent joining on the posts in question. After the petitioners got selected and they joined the posts before the concerned authority in pursuance of such selection, the respondents cannot, now, turn around and contend that the constitution of the selection Committee was not fair and transparent. 9. After the petitioners got selected and they joined the posts before the concerned authority in pursuance of such selection, the respondents cannot, now, turn around and contend that the constitution of the selection Committee was not fair and transparent. 9. In view of the preceding analysis, this petition is allowed in the following terms: I. The petitioners are declared to have been appointed pursuant to order of selection dated 29th of December, 2014 against the posts of Class-IV in District Kulgam from the date(s) they joined on the said posts; and II. By a ‘Writ of Mandamus’, the respondent Chief Education Officer, Kulgam/ respondent No.3 is directed to issue orders of posting in favour of the petitioners forthwith and also pay them the salary with effect from the date(s) they joined on the posts in question pursuant to order dated 29th of December, 2014. 10. Writ petition disposed of as above, alongwith all connected MP(s).