Jammu & Kashmir High Court - Srinagar Bench
Nisar Ahmad Khuroo vs Union Of on 17 February, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SWP No. 547 of 2011
SWP No. 526 of 2011
SWP NO. 650 of 2011
Nisar Ahmad Khuroo
Mohammad Iqbal Dar
Shabir Hassan Lone & Anr
Petitioners
State & ors
State & ors
State & ors
Respondents
!Mr. Azhar-Ul-Amin, Advocate
Mr. O.Singh, Advocate
Mr. M.Ismail, Advocate
^Mr. A.M.Magray, Advocate
Mr. M.A.Qayoom, Advocate
Honble Mr. Justice Muzaffar Hussain Attar, Judge
Date:17/2/2012
: J U D G M E N T :
SWP 547/2011 :
1/ Advertisement Notification No. Estt/W- 5/2001/9122-9220 dated 09-03-2007 was issued by the respondent No.2 Director General of Police, J&K State, PHQ Srinagar/Jammu, inviting applications from the eligible candidates for being selected/appointed for the posts of Constable (Operator) in the J&K Police Telecommunication Organization in the pay scale of Rs. 2750- 4400. Besides other candidates, the petitioner and the private respondent responded to the said notification. Selection process culminated in issuance of selection list of 974 candidates and the said list was operated upon and the candidates figuring therein were offered appointment. However, 11 candidates did not join at all and some candidates, after joining, resigned. Since the posts had become available , the respondent No. 2, issued order bearing No. 824 of 2011 dated 10-03-2011, whereunder the private respondent was appointed on the posts of Constable (Operator) in the J&K Police, Telecommunication Organization.
2/ Appointment of the private respondent, has been called in question on the principal ground that after selection process completed, the official respondents changed the rules of the game, in as much as, the candidates figuring in the waiting list were appointed on the basis of their age. 3/ On notice issued, respondents have filed reply affidavit/objections.
4/ Mr. Azhar-ul-Amin, learned counsel for the petitioner, submitted that the settled legal principle is that the norms of selection cannot be changed during the selection process. The appointment of the private respondent on the basis of the norm of being older than the petitioner cannot be accepted in law. He further submitted that on this score alone, the appointment of the private respondent deserves to be set aside. Learned counsel submitted that as the merit obtained by the petitioner and the private respondent was equal and the petitioner was ranked higher in the selection list than that of the private respondent, he (petitioner ) was entitled for being considered for being appointed on the post of Constable (Operator). It was also submitted by Mr. Azhar that the norm of offering appointment on the basis of higher age was adopted only to accommodate the private respondent. He further submitted that in order to break the tie, the competent authority could fix any other norm which would include the marks obtained in the viva voce or in the written examination or even by draw of lots. While arguing the case, Mr. Azhar also submitted that the private respondent No.4 has been appointed against the vacancy which had become available due to resignation of the some appointed candidate. Thus, the appointment of the private respondent stands vitiated in law. He, accordingly, prayed for allowing of his writ petition.
5/ Mr. Mohammad Ismail, learned proxy counsel appearing vice Mr. Z.A.Qureshi for the petitioner in SWP 526/2011, adopted the arguments of Mr. Azhar-ul-Amin. Mr. Qayoom, learned counsel for the private respondents submitted that the petitioner in this writ petition has been appointed on the post of Constable in a subsequent selection process. 6/ Mr. O.Singh, learned counsel for the petitioner in SWP 650/2011, also adopted the arguments of Mr. Azhar-ul-Amin and submitted that his writ petition deserves to be allowed.
7/ Mr. A.M.Magray, learned Sr.AAG, submitted that the tie amongst the candidates, who had secured equal merit, was broken by offering appointment to the candidates, who were older than the petitioners. He submitted further that this norm was adopted only to offer appointment to the candidates who had less chances of seeking consideration for being selected/appointed on the post in view of age. Mr. Magray also submitted that the selection list/waiting list was prepared by the selection authority role number-wise. Learned counsel, accordingly, submitted that the petitioners are ahead of the appointed candidates in the waiting list only because the role numbers were assigned to them ahead of the appointed candidates. While illustrating the said argument, learned counsel invited attention of the Court to the reply affidavit filed by the official respondents to indicate that the waiting list was prepared and the candidates were placed in the said list on the basis of role numbers. He submitted that placement of the candidates in the selection list or in the waiting list did not determine their inter se merit. 8/ Mr. Qayoom, learned counsel for the private respondents in all the three writ petitions, submitted that while fixing the norm for offering appointment to the private respondents on the basis of being older than the petitioners, the official respondents have not committed any illegality. In support of his contention, he referred to and relied upon the case titled Bibhudatta Mohanty Appellant Versus Union of India & others Respondents, reported in AIR 2002 SC 1503. He further submitted that the submission made by Mr. Azhar-ul-Amin, learned counsel for the petitioner in SWP 547/2011, about respondent No.4 therein, that he has been appointed on a vacancy which became available because of resignation of an appointed candidate, cannot be considered, in as much as, there is no pleading in the said writ petition to this effect which has disabled the official respondents as well as the private respondent No.4 to explain their position. He further submitted that in view of the Law of Pleadings, an oral submission of such type cannot be taken note of by the Court. He, accordingly, prayed for dismissal of all the three writ petitions.
9/ What is not in dispute in these writ petitions is that the petitioners and the persons appointed have secured equal merit in the selection process. The only question which arises for consideration of the Court is as to whether the appointment of the private respondents, on the basis of being older in age than the petitioners, can vitiate their appointment. 10/ The selection process was initiated way back in the year 2007. The selection list was published in the year 2010 and selection list/waiting list was exhausted by appointing the candidates figuring therein in the year 2011. It is pertinent to mention here that selection process, in most of the cases, is very cumbersome and takes years together to culminate in appointing the selected candidates on the notified posts. In order to vitiate the selection and appointment of the candidates, there would require to be very strong and cogent reasons to be projected by the persons who challenge such selection/appointment. In the writ petitions on hand, selection of the appointed candidates is not in question. What is in question is their appointment, that too, on the ground that they figure down below in the selection list/waiting list than the petitioners and the norm, which was fixed for offering appointment to them, could not have been fixed at the conclusion of selection process or that some other norm could have been fixed other than the one on the basis of which the private respondents have been appointed. The petitioners are beneficiaries of the selection process. They figure in the waiting list, where, admittedly, they were placed higher than the private respondents. However, as explained by the official respondents, which explanation is accepted by the Court, the petitioners and private respondents were not placed on the waiting list in order of merit but their placement took place on the basis of the role numbers assigned to them. The selection process has taken almost four years in reaching to its culmination. The petitioners and the private respondents had equal merit. The respondent competent authority, in order to ensure that the selection process undertaken does not get derailed, decided to appoint the candidates figuring in the waiting list and in the case of those candidates who had secured equal merit, it was decided that the candidates being older in age be offered appointment. It is pleaded in the writ petitions and also submitted at the bar that this norm was adopted to accommodate the private respondents. This is a general allegation leveled in the pleadings. In order to plead mala fides, the petitioners are required to give details as to how and for what reason and under which circumstance, a reasonable person would come to a conclusion that for mala fide reasons, the norm aforementioned has been adopted. The general allegation would not cater to such requirement. Even otherwise, the fixing of norm of offering appointment to the person/s with older age appears to be reasonable in the facts and circumstances of these cases, because such person/s would lose chance of competing another time to seek selection/appointment in Government service. A candidate with lesser age would get further chances and opportunities to seek consideration for being selected/appointed on any post even at a later stage.
11/ Admittedly, the appointments to the private respondents have not been offered to them only on the ground of they being older in age than the petitioners. The merit between the petitioners and the private respondents was equal. The appointment is not, thus, offered to a person with lesser merit because in such circumstance, the appointments may stand vitiated in the eyes of law. The Honble Supreme Court in the aforementioned case has also upheld the course adopted in the like manner. 12/ The contention raised at the bar that respondent No.4 in SWP 547/2011 has been appointed on a vacancy which became available because of resignation of the appointed candidate, cannot be entertained for the reason that this is not the case set up in the writ petition. If such oral submission would be accepted, then that will result in condemning the appointed candidate unheard and would also violate the principles of natural justice vis- `-vis the appointed candidate.
13/ The Honble Supreme Court in case titled Bharat Singh and others Appellants versus State of Haryana and others Respondents, reported in 1988 SC page 2181 in its paragraph 13, has ruled as under :
..In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the points, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. In this context, it will be not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be plead ed, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit. 14/ For the above stated reasons, all these writ petitions, being meritless, are dismissed along with respective CMPs. Interim directions, if any, shall stand vacated.
TARIQ MOTA SRINAGAR.
17-02-2012 (MUZAFFAR HUSSAIN ATTAR) Judge