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2023 DIGILAW 330 (JK)

Muneer Ahmad Shigan v. Skuast

2023-08-02

SANJAY DHAR

body2023
JUDGMENT : 1) Briefly stated, case of the petitioner is that he had responded to the Advertisement Notice No.01 of 2004 dated 19.11.2004, whereby applications were invited by the respondent University for appointment to the posts of Computer Programmer (Training Assistant), now designated as Programme Assistant (Computer). According to the petitioner, despite being fully eligible and qualified for the post, he was denied appointment, as a result of which he had to invoke the writ jurisdiction of this Court. The said writ petition bearing SWP No.778/2007 was allowed by this Court in terms of judgment dated 29.11.2014 and the official respondents were directed to appoint the petitioner against the available post of Computer Programmer (Training Assistant). It was also held by the Court that respondents No.3 to 6 were not eligible but the Court without disturbing their appointment directed the appointment of the petitioner. According to the petitioner, the judgment was upheld in appeal and despite this, the official respondents did not implement the same, which compelled him to file a contempt petition before this Court. The official respondents thereafter issued impugned order No.824 (Est) of 2015 dated 24.09.2015, whereby the petitioner was appointed as Programme Assistant (Computer) from the date of the said order. 2) It has been contended that because the petitioner, in terms of judgment dated 29.11.2014, was entitled to appointment immediately on conclusion of the selection process, as such, the official respondents were bound to give effect to his appointment from the date the other candidates were appointed pursuant to the aforesaid selection process. It has been further submitted that respondents No.3 to 6, who were held to be ineligible by the Court, have to be placed below the petitioner in the order of seniority. 3) It has been submitted that the petitioner approached the official respondents with a detailed representation on 16.12.2015 but no decision has been taken by them on the said representation. It is contended by the petitioner that his appointment has been delayed solely for the reasons attributable to the official respondents and, as such, he is entitled to appointment with retrospective effect as also to fixation of his seniority over and above respondents No.3 to 6. 4) The official respondents have contested the writ petition by filing a reply thereto. It is contended by the petitioner that his appointment has been delayed solely for the reasons attributable to the official respondents and, as such, he is entitled to appointment with retrospective effect as also to fixation of his seniority over and above respondents No.3 to 6. 4) The official respondents have contested the writ petition by filing a reply thereto. In their reply, the said respondents have taken a stand that as per the judgment dated 29.11.2014, no direction was issued for retrospective appointment of the petitioner. It has been further submitted that the petitioner has accepted the appointment and now he cannot turn around and seek retrospective effect to his appointment after having accepted the terms of his appointment. It has been contended that the post against which the petitioner was adjusted, was occupied by one Riyaz Ahmad Pandit, who was respondent No.6 in the earlier petition. The appointment of the petitioner on the said post was made after the death of Shri Riyaz Ahmad Pandit, which took place in the year 2013. On that basis, it is contended that no retrospective effect to the appointment of the petitioner can be given. It has also been contended by the official respondents that the petitioner was figuring at serial No.33 in the overall merit and even if the private respondents would have been removed from the select list, the petitioner would not have made it to the select list. According to the respondents, it was only because of the Court directions that the petitioner has been appointed despite having secured low merit. On this ground it is urged that the petitioner cannot claim retrospective effect to his appointment. 5) I have heard learned counsel for the parties and perused the record of the case. 6) The main ground urged by learned Senior counsel appearing for the petitioner is that the petitioner was denied appointment to the post of Programme Assistant (Computer) not because of any of his fault but because the official respondents indulged in arbitrariness while making selection and they selected ineligible candidates thereby depriving the legitimate right of the petitioner. It has been contended that for this reason, the petitioner could not have been denied appointment from the date other candidates selected in the list were appointed and consequently he is entitled to retrospective appointment and seniority over and above the private respondents. It has been contended that for this reason, the petitioner could not have been denied appointment from the date other candidates selected in the list were appointed and consequently he is entitled to retrospective appointment and seniority over and above the private respondents. In support of his contention, learned Senior counsel has relied upon the judgments of this Court in the cases of Syed Amjad Ali & Ors. Vs. State of J&K, 2011 (I) S.L. J 235, State of J&K & Ors. Vs. Ramesh Kumar Tickoo & Ors. 2013 (2) JKJ[HC] 121 and Sajad Ahmad Parray vs. State of J&K & Ors (SWP No.1450/2000 decided on 28.08.2015) and the judgment of the Supreme Court in the case of The State of Bihar & Ors. Vs. Arbind Jee, (2021) 14 SCC 38 . 7) So far as the facts relevant to the case are concerned, the same are not in dispute. It is admitted case of the parties that the petitioner had, in the first round of litigation, invoked the writ jurisdiction of this Court challenging the selection of private respondents. The said writ petition was allowed by this Court in terms of judgment dated 29.11.2014. While doing so, this Court held that the private respondents were not eligible for the advertised posts and that they were appointed notwithstanding their ineligibility. It was also held that the selection process adopted by the official respondents was arbitrary. However, this Court without disturbing the appointment of private respondents by taking a lenient view of the matter having regard to their long service with the official respondents, directed the said respondents to appoint the petitioner against the available post of Computer Programmer. As already noted, the official respondents have taken a stand that the vacancy became available when one of the selected candidates, who was arrayed as respondent No.6 in the earlier writ petition, died on 15.02.2013. It is on the said vacancy that the official respondents appointed the petitioner in terms of order dated 24.09.2015. 8) It is true that the selection of private respondents was held to be illegal by this Court in earlier round of litigation but then the official respondents have taken a stand in their reply that the petitioner had obtained merit position No.33 after securing 48 out of 100 points in the selection process. This position is not being disputed by the petitioner. This position is not being disputed by the petitioner. A perusal of the documents placed on record by the official respondents shows that the Selection Committee had recommended the appointment of only six candidates pursuant to the Advertisement Notice No.01 of 2004 dated 19.11.2004. As already noted, the rank of the petitioner in the merit list was 33, therefore, he was not entitled to be selected and appointed even if the selection of private respondents would have been quashed by the Court. It seems that the petitioner has been appointed by the official respondents despite having failed to make it to the merit list. This was done by the official respondents in deference to the judgment dated 29.11.2014 passed in SWP No.778/2007. Thus, it is not a case where the petitioner, by virtue of his merit and performance in the selection process, was legally entitled for appointment as Computer Programmer but it is a case where the petitioner despite having failed to make the grade, was appointed in terms of the directions of the Court. In these circumstances, the petitioner cannot claim seniority over and above the private respondents or a retrospective effect to his appointment. 9) The ratio laid down in the judgments relied upon by learned counsel for the petitioner are not applicable to the instant case because the facts of the same are distinguishable. In the case of Sayed Amjad Ali & Ors. (supra), the requisite category certificate was not issued in favour of the petitioners which had become cause for their non-appointment and it was in those circumstances that the Court held that the petitioners cannot be made to suffer for the fault of State Authorities. In Ramesh Kumar Tickoo & Ors. (supra), the Division Bench of this Court was not called upon to decide the issue whether or not a person having failed to secure the requisite merit, would be entitled to retrospective seniority. In Sajad Ahmad Parray’s case (supra), the appointment of the writ petitioner was delayed because the police verification was pending. It was in those circumstances that the Court directed that retrospective effect be given to the appointment of the wit petitioner. 10) In Arbind Jee’s case (supra), the Supreme Court has held that when the denial of analogous appointment is found to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. It was in those circumstances that the Court directed that retrospective effect be given to the appointment of the wit petitioner. 10) In Arbind Jee’s case (supra), the Supreme Court has held that when the denial of analogous appointment is found to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. In the instant case, even the petitioner has been a beneficiary of benevolence bestowed upon him by this Court in earlier round of litigation because this Court while deciding the said writ petition thought it appropriate to direct appointment of the petitioner despite his low merit position instead of directing the official respondents to re-draw the merit list and appoint those who had obtained the merit position immediately below the merit position of ineligible private respondents. Had the Court directed redrawing of merit list, the petitioner would not have secured his appointment at all. Keeping in view the inferior merit position of the petitioner, even he was not legally entitled to be appointed. In these peculiar circumstances, the petitioner cannot claim retrospective effect to his appointment and consequent seniority over and above the private respondents. 11) For the foregoing reasons, I do not find any merit in this petition. The same is dismissed accordingly. Interim direction, if any, shall stand vacated. 12) No order as to costs.