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2020 DIGILAW 510 (JK)

Omi Laila Majeed v. Shere Kashmir University of Agriculture Sciences and Technology

2020-09-28

RAJESH BINDAL, RAJNESH OSWAL

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JUDGEMENT Rajnesh Oswal, J.—The respondent-University issued advertisement No. 01 of 2018, dated 02.05.2018 by virtue of which applications were invited from eligible candidates for the post of Assistant Professors-cum-Junior Scientists in the disciplines of Entomology, Food Science & Technology, Biochemistry, Plant Physiology, Plant Biotechnology, Environmental Sciences and other disciplines. 2. The appellants possessing degree of Philosophy (Phd) in Biotechnology, being eligible for the post of Assistant Professor-cum-Junior Scientists in the discipline of Plant Biotechnology applied for the same. 3. The respondent-University issued notification bearing No. AU/Adm (GAD)/Adv-teaching/2018/2594-2664 dated 07.05.2018, by virtue of which the post of Assistant Professors-cum-Junior Scientists in the discipline of Plant Biotechnology, Biochemistry, Plant Physiology & Environmental Sciences, were withdrawn. 4. The notification dated 07.05.2018 was challenged by various candidates who had applied for the post in the discipline of Biochemistry by filing writ petition titled “Dr. Mohd Iqbal vs State and others” bearing SWP No. 1187/2018.They sought quashing of Notification dated 07.05.2018, by virtue of which the post of Assistant Professor-cum-Junior Scientists and equivalent in the discipline of Plant Biotechnology, Plant Biochemistry and Environmental Sciences, were withdrawn and cancelled. Simultaneously the petitioners therein had prayed for issuance of writ of mandamus commanding the respondents therein to act upon the Advertisement Notice dated 02.05.2018 and allow the petitioners therein to participate in the selection process. The Court stayed the operation and implementation of the Notification dated 07.05.2018 vide order dated 31.05.2018. 5. Likewise the notification dated 07.05.2018 was also challenged by a candidate who had applied for the post in the discipline of Plant Biotechnology by filing writ petition titled “Dr. Sahar Saleem vs. SKUAST and others” bearing SWP No. 1738/2018. She had prayed for the quashing of notice dated 07.05.2018 and also prayed for issuance of a writ of mandamus commanding the respondents therein to act upon the advertisement notice dated 02.05.2018 and further to allow the petitioner to participate in the selection process. The Court stayed the operation and implementation of the Notification dated 07.05.2018 qua the discipline of Plant Biotechnology vide order dated 30.07.2018. 6. The order dated 31.05.2018 passed in Dr. Mohd Iqbal’s case (supra) was modified and on 09-07-2018 and it was ordered to be operative qua the discipline of Biochemistry only. 7. The respondent-University entertained the application forms of all the candidates and a committee was constituted for screening eligibility of the candidates, who had applied for the above mentioned posts. 6. The order dated 31.05.2018 passed in Dr. Mohd Iqbal’s case (supra) was modified and on 09-07-2018 and it was ordered to be operative qua the discipline of Biochemistry only. 7. The respondent-University entertained the application forms of all the candidates and a committee was constituted for screening eligibility of the candidates, who had applied for the above mentioned posts. The appellants and other candidates were found eligible for the post of Assistant Professors-cum- Junior Scientists in the discipline of Plant Biotechnology. 8. The respondent-University sent call letters to the aspiring candidates for the post in question and the appellants and others candidates were informed by e-mail to appear before the Screening Committee for interview, which was held on 16.02.2019. The appellants appeared before the Screening Committee on 18.02.2019 and fared well in the interview. 9. The respondent University thereafter concluded the selection process for all the advertised posts including the discipline of Plant Biotechnology, Plant Biochemistry, Environmental Sciences, the posts which were withdrawn by the respondent university vide Notification dated 07.05.2019 but the select lists were not issued. 10. Vide order dated 18.02.2019 passed in I.A. No. 1/2019 in Dr. Mohd Iqbal’s case (supra), interim order dated 09.07.2018 pertaining to discipline of Biochemistry was modified on the application of respondent- University and the respondent University was permitted to finalize the selection. The said application was filed by respondent-University seeking permission to issue appointment orders in favour of the meritorious candidates. The respondent-University moved another application as I.A. No.2/2019 in Dr. Mohd Iqbal’s case (supra), for vacation of interim directions and also clarification of order dated 18.02.2019 but this Court on 27.02.2019 held that the application was unnecessarily filed and there is no restrain upon the University to make any appointment for that subject. Thereafter the respondent University on 27.02.2019 issued appointment letters in favour of the selected candidates in the discipline of Biochemistry only. 11. As the respondent-University did not issue formal select list in other disciplines including the discipline of Plant Biotechnology, the appellants filed the writ petition titled “Omi Laila Majeed vs SKUAST and Others” bearing No: WP(C)- 2532/2019, whereby directions were sought to be issued for issuance of select list and appointment orders for the post of Assistant Professors-cum-Junior Scientists. 11. As the respondent-University did not issue formal select list in other disciplines including the discipline of Plant Biotechnology, the appellants filed the writ petition titled “Omi Laila Majeed vs SKUAST and Others” bearing No: WP(C)- 2532/2019, whereby directions were sought to be issued for issuance of select list and appointment orders for the post of Assistant Professors-cum-Junior Scientists. Prayer was also made for directing the respondents not to withhold or to diverge from Advertisement Notification No. 01 of 2018 dated 02.05.2018 in the discipline of Plant Biotechnology. The learned Single Judge vide order dated 25.07.2019 dismissed the writ petition filed by the appellants. The said order is impugned by the appellants in this intra-court appeal. 12. The learned counsel for the appellants has argued that that the finding recorded by the learned Single Judge that the order passed by the learned writ Court in a pending writ petition is a bar to the issuance of select list in the discipline of Plant Biotechnology is wrong. The learned Single Judge has fallen in grave error of law as he has not considered the fact that the appellants, who had applied in discipline of Biotechnology as well as other candidates who had applied in the discipline of Plant Biochemistry, were similarly situated as by common notification the posts were advertised and subsequently withdrawn in both the disciplines. The respondent-university could not have resorted to pick and choose policy by issuing the select list/appointment orders in one discipline i.e. Biochemistry and refusing to issue the same in the case of appellants. He further argued that that the learned Single Judge has also not considered the fact that after the notification dated 07.05.2018 was stayed, the respondent-university conducted the screening of the candidates falling under the discipline for which the advertisement was cancelled and the posts were withdrawn. 13. On the contrary the learned counsel for the respondent University has argued that it is the prerogative of the University to withdraw the advertisement notice and the appellants have no right whatsoever to question the same. 14. Heard the learned counsel for the parties and perused the record. 15. 13. On the contrary the learned counsel for the respondent University has argued that it is the prerogative of the University to withdraw the advertisement notice and the appellants have no right whatsoever to question the same. 14. Heard the learned counsel for the parties and perused the record. 15. The contention of the appellants that the learned Single Judge has dismissed the writ petition as the pendency of the writ petition will operate as a bar to the issuance of select list, is misconceived as the learned Single Judge has never dismissed the writ petition on such ground. 16. The perusal of record reveals that the notification bearing No. AU/Adm(GAD)/Adv-teaching/2018/2594-2664 dated 07.05.2018, by virtue of which the post of Assistant Professors-cum-Junior Scientists in the discipline of Plant Biotechnology, Biochemistry, Plant Physiology & Environmental Sciences, were withdrawn was the subject matter of challenge in three writ petitions. One writ petition was dismissed vide order 25.07.2019 impugned in the present appeal. The other is bearing SWP No. 1738/2018, titled, “Dr. Sahar Saleem vs. SKUAST and others” pertaining to same discipline i.e. Plant Biotechnology, is still pending. The instant appeal also pertains to the same discipline of Plant Biotechnology and the controversy is also the same, so the learned Single Judge instead of dismissing the writ petition that is subject matter of the present appeal, should have clubbed both the matters together and decided the same. When there are different writ petitions pending in court involving the same issue, every attempt should be made to decide them together, as it would not only prevent wastage of the time but also avoid the chance of conflicting judgments. More so, for the Respondent University, anomalous situation has arisen because one writ petition has been dismissed without having response from the University and the other writ is pending, in which the order dated 07.05.2018 withdrawing the Post of Assistant Professor/ Junior Scientist has been stayed. It assumes significance because after the order was stayed by the Court in other writ petition, the Respondent University has conducted the Screening of the eligible candidates. As already noticed that the third writ bearing SWP No. 1187/2018 titled as “Dr. Mohd Iqbal vs State and others” though pertains to different discipline of Biochemistry is also pending in which the same notification dated 07.05.2018 is impugned. As already noticed that the third writ bearing SWP No. 1187/2018 titled as “Dr. Mohd Iqbal vs State and others” though pertains to different discipline of Biochemistry is also pending in which the same notification dated 07.05.2018 is impugned. So we are of the opinion that as in all writ petitions referred to above similar legal issue is involved as to whether the Respondent University could have withdrawn the advertisement notice or not, hence, it would be appropriate if all these writ petitions are listed and decided together. 17. In view of what has been stated above, this appeal is allowed and the judgment impugned is set aside and the matter is remitted back to the learned Single Judge. Let the same be listed alongwith SWP No.1738/2018. Further it would be appropriate if SWP No.1187/2018, involving same legal issue but pertaining to post of different discipline of Biochemistry, is also heard along with the other writ petitions mentioned above. 18. Disposed of accordingly.