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J&K High Court · body

2020 DIGILAW 158 (JK)

Vinod Kumar v. State Th. Home Deptt

2020-03-11

SANJEEV KUMAR

body2020
JUDGMENT 1. The petitioner is aggrieved and has challenged order No. 1654 of 2013 dated 20.06.2013 issued by Director General of Police, J&K Srinagar, read with order No. 311 of 2014 dated 24.05.2014 issued by the Superintendent of Police, Doda to the extent the petitioner has been appointed prospectively and has not been given retrospective effect to his appointment from 10.02.2011 on which date the other candidates were appointed vide order No. 52 of 2011 dated 10.02.2011. 2. Briefly stated, the facts of this case are that pursuant to an Advertisement Notification issued by respondent No. 2 vide its No. DIP/J-298 dated 07.04.2010, the petitioner applied for the post of Constable in District Doda. The selection process was concluded, but the petitioner was not selected due to erroneous measurement of his height. The petitioner filed an appeal before the respondents for correcting the measurement of his height. He claimed that he was more than 5-10', whereas his height recorded in the selection record was 5-9 '. The appeal was considered by respondent No. 2 and on his direction the petitioner was re-measured and it was found that the actual height of the petitioner was 5-10 ' and therefore, he was entitled to one additional point. 3. The petitioner was found to have obtained 25 points which was higher than the cut-off in the selection i.e. 24 so far as district Doda was concerned. Accordingly, the petitioner was appointed by respondent No. 2 vide PHQ order No. 1654 of 2013 dated 20.06.2013 prospectively. In compliance to the aforesaid order and after conducting the verification of the character antecedents of the petitioner, respondent No. 4 issued a formal order of appointment in favour of the petitioner vide order No. 311 of 2014 dated 24.05.2014. 4. The grievance, as projected by the petitioner in this petition, is that the petitioner was entitled to be selected and appointed along with candidates, who came to be selected pursuant to the notification dated 07.04.2010 and appointed vide order No. 52 of 2011 dated 10.02.2011 issued by respondent No. 2. 5. Learned counsel appearing for the petitioner submits that the petitioner was denied appointment along with other candidates who had participated in the selection process because of an error committed by the respondents and not because of any act or omission attributable to the petitioner. 6. 5. Learned counsel appearing for the petitioner submits that the petitioner was denied appointment along with other candidates who had participated in the selection process because of an error committed by the respondents and not because of any act or omission attributable to the petitioner. 6. Having heard learned counsel for the parties and perused the record, I am of the view that the benefit of retrospective effect to the appointment cannot be denied. Admittedly, the petitioner was initially denied appointment because of the faulty measurement taken by the concerned selection board. On an appeal by the petitioner, the re-measurement of the petitioner was done and the error earlier committed was rectified. 7. The respondents found the petitioner fit to be appointed in view of his better merit than the candidate last selected in the RBA Category. The respondent conceded to the request of the petitioner and ultimately appointed him as Constable prospectively. Once it is not the case of the respondents that the petitioner was left out of the selection when the initial selection list was issued because of any act or omission attributable to the petitioner but it was because of the faulty and erroneous measurement taken by the selection board, the petitioner cannot be punished for the lapse of the selection board. 8. In that view of the matter, denying the petitioner retrospective effect to his appointment to bring him at par with the candidates, who were appointed vide order No. 52 of 2011, would be highly unequitable. 9. Accordingly, this petition is allowed and the respondents are directed to treat the petitioner as having been appointed on the date on which the candidate last selected in the category of RBA was appointed by the Superintendent of Police concerned, pursuant to the order No. 52 of 2011 dated 10.02.2011. The petitioner shall be entitled to all the service benefit other than monetary benefits. The seniority of the petitioner shall be fixed as per his position in the merit in the selection list.