Jammu & Kashmir High Court - Srinagar Bench
Mohammad Maqbool Rather & Anr vs Hamid Rauf Ganai & Anr on 31 March, 2016
HIGH COURT OF JAMMU AND KASHMIR
SRINAGAR
Case No: LPA 28/2016 & Caveat 138/2016 Dated : 31ST MAR. 2016
MOHAMMAD MAQBOOL RATHER & ANR VERSUS HAMID RAUF GANAI & ANR
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR - JUDGE.
HON'BLE MR. JUSTICE TASHI RABSTAN- JUDGE
Whether approved for reporting : yes
FOR THE APPELLANT/s : MR. R.A.JAN, Sr. ADV WITH MS. AMANI SYED
FOR THE RESPONDENT/s: M/S. R.A.KHAN, AAG, M.A.WANI, AAG,
ZAFAR A. SHAH, Sr.ADV WITH A.HANAN MUZAFFAR HUSSAIN ATTAR (oral) 1/ Caveat 138/2016 is discharged.
2/ Heard. Admit. 3/ Notice. 4/ At this stage, Mr. Hanan appeared and submitted that he has
instructions to accept notice on behalf of respondents 1 & 2. Similarly M/s. M.A.Wani - AAG & R.A.Khan - AAG appeared and submitted that they have instructions to accept notice on behalf of respondents 3 & 4 respectively.
5/ Their statements are taken on record. 6/ In view of short controversy involved in this case and at the
request of learned counsel for the parties, this LPA is taken up for final disposal.
7/ The Appellants are aggrieved of the judgement of the learned writ Court dated 01st February, 2016, passed in SWP 1034/2015. 8/ The respondent - J&K Service Selection Board (for short respondent - Board), issued Advertisement Notification No. 04 of 2013 dated 23rd February, 2013, whereunder number of posts in different Departments were notified for being filled up. Some posts of Technician III in some Districts in the Power Development Department (PDD) were also notified. The qualification prescribed was notified as Matric with ITI in relevant trade. 9/ Besides others, the Appellants as also private respondents- writ petitioners, responded to the said notification and sought consideration for being selected/appointed on the posts of Technician/ III. One of the Appellants sought consideration for being selected/appointed for the said post under open merit category and the other sought consideration under RBI category. Similar is the position of the private respondents- writ petitioners. After the competing candidates were subjected to selection process, in as much as, they were interviewed, it surfaced that the candidates, having their trade certificates in different trades, have filed their applications, which have been entertained and they have also been subjected to selection process. It was after the interview of the competing candidates was conducted that the respondent - Board took cognizance of the fact that the Application Forms of the candidates, having trade certificates in different trades, have also been entertained and they have been subjected to selection process as well. It is on 31st January, 2015 that the respondent - Board, in its 116th Board Meeting, at Agenda No. 11, while referring to the aforesaid situation, decided that only the candidates with ITI in relevant trade, viz. Electrician, have to be considered as prescribed in the Advertisement Notification. It is for this reason that the Appellants, though possessed of lesser merit than those of the private respondents- writ petitioners, were selected and recommended for being appointed on the posts of Technician III in PDD. 10/ The private respondents- writ petitioners challenged the said decision in SWP 1034/2015 and the judgement of the learned writ court turned in their favour.
11/ Learned counsel for the parties argued in tune with their respective pleadings.
12/ It is the settled position in law that the terms and conditions of the Advertisement Notification binds the Authority, who issues the same. (Refer to 1997 vol. 4 SCC 18).
13/ In the Advertisement Notification, the respondent - Board referred to the posts available in the PDD and the qualification, as already stated, was prescribed as Matric with ITI in the relevant trade. What was the relevant trade, nothing was specified. The respondent - Board entertained the Applications from all the candidates including those of the private respondents- writ petitioners, who were not possessed of the trade certificates, which were relevant for the post of Electrician. They were subjected to selection process, in as much as, they were interviewed. This fact situation would show that the trade certificates possessed by the private respondents- writ petitioners were taken to be relevant in terms of the prescribed qualification in the Advertisement Notification. The respondent - Board, in the peculiar facts and circumstances of this case, was, thus, dutybound to proceed with the selection process in the manner it had initiated. However, on 31st January, 2015, in pursuance of clarification sought, respondent - Board took a decision that the relevant trade is that of Electrician and the competing candidates must have the prescribed qualification in the said trade. This decision is taken after the Applications of the competing candidates were entertained and after they were interviewed as well. The respondent - Board, if there was any confusion, ought to have clarified about the same immediately after issuance of the initial Advertisement Notification. After entertaining the Applications and after interviews were conducted, they were estopped from creating class apart from amongst the competing candidates by providing that it is only the Electrician trade, which is relevant trade. The respondent - Board has, apparently, committed a mistake in law.
14/ The private respondents- writ petitioners have been aggrieved of the decision of the respondent - Board and they, accordingly, challenged the same in the writ petition. The learned writ Court, while referring to the persons, who were appointed in the Electric Department, having similar technical qualifications, which the private respondents- writ petitioners are possessed of and particulars whereof were filed by learned counsel for the private respondents- writ petitioners, it is sufficient to show that the respondent - Board has, earlier also, made selection, on the posts of Electricians in the PDD, of the persons, who are possessed of the technical qualifications, which the private respondents- writ petitioners are possessed of.
15/ The respondent - Board, because of its casual approach, has exposed the Appellants as also the private respondents- writ petitioners to an avoidable litigation.
16/ In the fact situation of this case, besides having selected the Appellants, the respondent - Board ought to have selected the private respondents- writ petitioners also because of the superior merit secured by them in the selection process.
17/ We are conscious of the fact that in view of our aforesaid finding, the entire selection process would come under cloud. But since the selection process takes long time in its completion and only two persons, viz. the private respondents- writ petitioners felt aggrieved of the action of the respondent - Board, so disposal of this Appeal and the consequent disposal of the writ petition, would be confined only to the Appellants and the private respondents- writ petitioners and its benefit would not flow to any other person/candidate as they have accepted the decision of the respondent - Board in excluding all other competing candidates from the selection process, who were not possessed of ITI trade certificates in the discipline of Electrician.
17/ For our above recorded reasons, we dispose of this Appeal in the following manner :
"The impugned judgement of the learned writ Court dated 01st February, 2016, passed in SWP 1034/2015 is set aside. Writ petition (SWP1034/2015) is disposed of as under :
The respondent - J&K State Service Selection Board, Srinagar, shall recommend the Appellants, who were private respondents in the writ petition, for being appointed on the posts of Technician III in the Power Development Department. The said respondent shall also select the Private respondents
- writ petitioners and recommend their names for being appointed on the available posts of Technician III in Power Development Department. The respondent - Board to prepare Selection List and make recommendations in the manner provided in this order. If two posts will not be available with the respondent - Board, then the Appointing Authority (respondents), without seeking recommendations from the J&K Service Selection Board, shall also appoint private respondents - writ petitioners on the posts of Technician III available with them."
(TASHI RABSTAN) (MUZAFFAR HUSSAIN ATTAR)
JUDGE JUDGE
Tariq MOTA
SRINAGAR.
31-03-2016