Jammu & Kashmir High Court
Bhavneet Singh & Ors vs S. D. Singh & Others on 7 March, 2014
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 373 OF 2009 AND SWP No. 349 OF 2009 AND SWP NO. 417 OF 2009 1. Bhavneet Singh & ors 2. Kamal Sharma & ors 3. Ayoub Khan Petitioners State & ors Respondent !M/S: Sunil Sehti, Sr. Adv. Ravi Abrol & Sumit Nayyar, Abhinav Sharma, S. K. Shukla, Aruna Thakur, Ashok Parihar, R. S. Parihar ^ M/S: Gagan Basotra, Sr. AAG, Vipan Gandotra & M. P. Sharma HONBLE MR. JUSTICE MOHAMMAD YAQOOB MIR, JUDGE Date: 07.03.2014 :J U D G M E N T :
SWP No.373/2009, CMA Nos.491/2009, 1846/2011 C/W CMA No.282/2009 in SWP No.236/2009 CMA Nos.548/2009 & 1848/2011 CMA No.484/2009 in SWP No.367/2009 SWP No.349/2009, CMA Nos.1135/2012 & 460/2009 CMA No.2975/2011 in SWP No.322/2009, CMA Nos.425/2009 & 1853/2011 CMA No.2974/2011 in SWP No.362/2009, CMA Nos.479/2009 & 1854/2011 SWP No.417/2009, CMA No.555/2009 SWP No.374/2009, CMA No.492/2009 SWP No.398/2009, CMA No.522/2009 SWP No.1531/2009, CMA No.2008/2009 SWP No.457/2009, CMA 605/2009 SWP No.472/2009, CMA No.624/2009 SWP No.371/2009, CMA No.488/2009 CMA No.1211/2009 in SWP No.904/2009 OWP No.1272/2009
1. Bhavneet Singh & orsv. State & ors
2. Kamal Sharma & ors. v.State & ors.
3. Ayoub Khanv. State & ors.
4. Randhir Singhv.State & ors.
5. Lalit Kumar Sharma & anr v.State & ors.
6. Sushil Kumarv.State & ors.
7. Ishfaq Bukhari & ors v.State & ors.
8. Yogeshwar Singh & ors.v.State & ors.
9. Fayaz Ahmad v.State & ors.
10.Ajay Kumarv.State & ors.
11.Shabir Ahmad & ors.v.State & ors.
12.Anayat Ali Mirv.State & ors.
13.Naveed Anjum & anr.v.State & ors.
14.Davinder Sharma & ors.v.State & ors.
15.Rakesh & ors.v.State & ors.
1)Issue for determination in the batch of above numbered writ petitions is identical, therefore, are clubbed together for disposal.
2)For appreciating the matter in its right perspective, factual matrix has to be noticed precisely:
a)In the year 2003, an advertisement notice was issued inviting applications for the posts of Sub Inspectors in J&K Police but the process of selection could not commence up to year 2007. In the year 2007 fresh advertisement notice was issued, in which from amongst the conditions, condition No.3 reads as under:-
The candidates who had applied earlier for the post of Sub Inspector in J&K Police in response to PHQ Advertisement issued under endst.
No.Estt/Computer
-03/ 2003-25736-76 dated 19.05.2003 need not to apply again. In case any of these candidates has crossed upper age limit, his age will be reckoned from the date he has applied earlier as per the said advertisement notice.
b)Again the process of selection could not commence. In the year 2009, four advertisement notices have been issued for filling up the posts of Sub Inspectors in (1) Executive Wing, (2) Armed Wing, (3) Auxiliary Wing and (4) Telecommunication Wing of J&K Police.
c)Writ petitioners had crossed the age limit as prescribed, their applications could not be received, therefore, have filed these writ petitions alleging therein that it is the inaction of the respondents that the process of selection initiated pursuant to advertisement notice issued in the year 2003 followed by one issued in the year 2007 has not been finalized, as such, they cannot be denied the right to participate in the process as initiated in the year 2009 on the count of not being within the prescribed age limit.
d)In almost all the writ petitions interim direction has been granted, in pursuance whereof, application forms of all the writ petitioners were entertained and were admitted to selection process. During pendency of the writ petitions, the result of all writ petitioners has been produced, some have made the grade and some have failed. Vis-`-vis writ petitioners who could not make the grade, writ petitions stand dismissed.
e)It is during the pendency of writ petitions, respondents have produced two notices, dated 10.07.2008 and 01.07.2008, in terms whereof, advertisement dated 19.05.2003 and 17.02.2007 have been withdrawn. Faced with such situation, the writ petitioners, after grant of leave, have filed the amended writ petitions questioning the validity of the said notices.
f)In the year 1999, process of selection for the posts of Sub Inspectors (Executive) In J&K Police was initiated. Same culminated into selection of 259 candidates, the merit list was drawn at Divisional level, same was challenged by medium of various writ petitions on the ground that the Sub Inspector is a State cadre post, therefore, merit list should have been drawn at State level. The writ petitions were allowed, LPAs filed were dismissed and finally SLPs filed before the Honble Apex Court were dismissed vide judgment dated 10.02.2004.
State had been given three months time to implement the judgment. In compliance whereof, merit list at State level was re-drawn, in the process, 54 candidates got included to the exclusion of 47 candidates. The said 47 candidates challenged their exclusion and side by side other 22 candidates claimed benefit at par with 54 candidates as were included.
g) Finally, the matter was settled in the Honble Apex Court as in the case of Tanvir Hussain Wani & others Vs. S. D. Singh & others (Civil Appeal No.4758 of 2006), then learned Advocate General had made a submission that all 47 candidates who are likely to go out of job and 22 respondents as impleaded will be accommodated. He had further submitted that all the above 47 candidates who were selected and appointed and are presently working will be allowed to continue. It is on the terms of said statement, the appeal was disposed of.
h)In compliance thereto, the position of 47 candidates was not disturbed. In addition thereto, other aforesaid 22 candidates were also appointed vide order No.685 of 2005 dated 23.02.2008.
3)Learned Sr. AAG, Mr. Gagan Basotra, would submit that as against the posts advertised in the year 2003 and 2007, in compliance to the order of the Honble Supreme Court, 47+22 candidates in excess of what were advertised in the year 1999 were adjusted, as a result thereof no vacancy remained available for selection. It is in the same background said two advertisement notices were withdrawn vide two notices dated 10.07.2008 and 01.07.2008, therefore, writ petitioners have no right on the basis of said two advertisement notices.
4)During the course of hearing, learned Sr. AAG was pointedly asked as to what was the number of posts advertised in the year 2003 and 2007 because in the advertisement notices number of vacancies was not given. In case only 69 vacancies were available, then no vacancy could remain available in view of adjustment of 47+22=69 candidates in compliance to the orders of the Honble Apex Court. In case some posts were available in excess thereto, against those posts petitioners had a right to compete and while issuing notice in the year 2009, the condition as incorporated in the advertisement notice of the year 2007, as quoted above, should have been incorporated so as to protect the interests of the writ petitioners. In the same background, learned AAG was directed to produce the record, which has been produced.
5)The perusal of the said record would reveal that while noticing the position of advertisement notice of the year 2003 and the vacancy position in the year 2006, the exact number of vacancies of Sub Inspectors for direct recruitment in Armed as well as Executive Police has been worked out as:
(a)Executive Police =113
(b)Armed Police =17 Decision was taken to issue fresh advertisement notice for the said posts with a condition that the candidates who had applied in response to advertisement notice of 2003 need not to apply afresh. It is in the same background, advertisement notice was issued in the year 2007 wherein specific condition No.3 as quoted above was incorporated protecting the position of the candidates who had applied in pursuance to advertisement notice of 2003. Their age was to reckon from the date they had applied earlier.(Xerox copy of the pages containing Note Nos.258, 259 available on record to be made part of the file).
6)Again the process remained as it is. In the meantime while making reference to vacancy position, again in a note it is recorded that an advertisement notice has been issued in the year 2003 for filling up 14 posts. Then in the month of December, 2006, vacancy position is shown to have been reviewed and 37 clear vacancies were available and a decision was taken to advertise the said vacancies but then with the adjustment of 22 candidates in compliance to order of the Honble Supreme Court, it had been decided that in view of non-availability of vacancies, two advertisement notices of the year 2003 and 2007 shall be withdrawn and were withdrawn accordingly. (Xerox copy of the pages containing Note Nos.374, 375, 376 and 377 to be placed on the file).
7)Here again an important situation has emerged that in the records when decision was taken to re-advertise the posts in the year 2006, in the note 130 vacancies(113 in Executive Police and 17 in Armed Police) were shown available. Then again in the year 2006 itself, it is recorded only 37 vacancies are available as against which aforesaid 22 candidates have to be adjusted. Even if this situation is taken correct that in the year 2006 only 37 clear vacancies were available whereas 22 candidates were adjusted as against those vacancies in pursuance to the order of the Honble Apex Court, still 15 vacancies were available, as against those writ petitioners had ever right to compete. In the advertisement notice issued in the year 2009 a condition should have been incorporated so as to provide protection to the candidates, i.e. their age would reckon with effect from the date of earlier advertisement notice of the year 2007.
Instead, earlier two advertisement notices were withdrawn.
8)The vacancy position initially in the year 2006, as emerge from the records, was worked out as 130 posts. Then in order to create some confusion on adjustment of 22 candidates, respondents again in the year 2006 itself have recorded that only 37 vacancies were available. As against those 37, 22 candidates were adjusted. In both the cases, if the position, as worked out in the beginning of the year 2006, more vacancies than 69 were available. Even if the position of later part of the year 2006 is taken to be true, still out of clear 37 vacancies after adjusting 22 candidates in pursuance to the orders of the Honble Apex Court, 15 vacancies were available. Therefore, it is clear that the advertisement notice of 2007 would survive as against 15 vacancies so should not have been withdrawn.
9)Now the question for consideration is as to what is the relief to be granted to the writ petitioners. Since the writ petitioners under the orders of the Court have been permitted to participate in the selection process, after participation some have failed and some on making the grade have been selected.
The only relief which is now open to be granted legally is that the writ petitioners, who after participation in pursuance to advertisement notice of the year 2009 have made the grade and are shown selected, shall have to be considered for appointment by reckoning their age for the purposes of being eligible, as it was in the year 2007 i.e. the date of earlier advertisement notice or in alternative they deserve relaxation of age for appointment. In both cases, in the stated facts and circumstances, interests of justice demand for their appointment. Respondents-State, as such, is directed to consider appointment of selected writ petitioners, mentioned below, after satisfaction of requisite norms, within a period of six weeks from the date copy of this order is served upon respondents:
1.Avtar Krishan S/O Rattan Lal R/O Bhatyari Bishnah A/P H/No.270 Sec-F Sainik Colony, Jammu (SWP No.373/2009)
2.Lalit Kumar Sharma S/O Daya Ram R/O Mast Garh Jammu (SWP No.322/2009)
3.Rakesh Bandral S/O Vash Dev Singh Bandral R/O Jandrore Ram Nagar Udhampur (SWP No.322/2009)
4.Ayub Khan S/O Mohammad Shafi Khan R/O Pali H. No.318 Bharat Nagar Rehari Colony Jammu (SWP No.367/2009)
5.Ranjit Singh S/O Mohan Singh R/O Channu Chak A/P Lower Shiv Nagar Jammu (SWP No.236/2009)
6.Vishal Kumar S/O Rajinder Parshad R/O Panjtirthi Jammu (SWP No.236/ 2009)
7.Paramjit Singh S/O Tara Singh R/O Gobind Nagar Udhampur (SWP No.904/2009)
10)In CMA No.1848/2011 arising out of writ petition No.236/2009, the candidates who were figuring in the wait list stand impleaded as party/respondents. Learned counsel appearing on their behalf, Mr. Vipin Gandotra, had projected that the respondents of their own have reserved certain posts in view of pendency of these writ petitions, therefore, they were not considered for appointment. It is made clear that only 7(seven) writ petitioners named above are required to be considered for appointment. Along side them, the candidates who, in order of merit were to be selected and appointed, shall also be considered as against other remaining out of reserved vacancies.
11)All the writ petitions shall accordingly stand disposed of along with connected CMAs.
12)Record as produced be returned to the learned Sr. AAG after retaining the Xerox copies of the pages containing Note Nos.258, 259, 374, 375, 376 and 377, which shall form part of the writ records.
(Mohammad Yaqoob Mir) Judge Jammu Mohammad Altaf 07.03.2014