Jammu & Kashmir High Court
Vikas Kant vs State Th. Home Deptt. And Ors. on 7 May, 2013
Author: Hasnain Massodi
Bench: Hasnain Massodi
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HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.2132/2003, CMA No.2345/2003
Date of Decision:07/05/2013
Vikas Kant Vs. State and ors.
Coram:
Hon'ble Mr. Justice Hasnain Massodi, Judge
Appearing Counsel:
For the Petitioner(s) : Mr. P.N. Raina, Sr. Advocate with
Mr.J.A. Hamal, Advocate.
For the Respondent(s) : Mr. Gagan Basotra, Sr. AAG.
1. Whether approved for reporting in law journals? : Yes
2. Whether approved for publishing in Press/Media? : Optional \
1. Petitioner participated in the selection process initiated by the respondents in the year 2003 for making appointments against 53 Prosecuting Officers in the grade of Rs.6500-200-10500. However he did not find place in the select list notified by the respondents on 27th September, 2003.
2. Aggrieved with his non selection, petitioner has come up with the writ petition on hand. He on the strength of averments made in the writ petition, seeks following relief;
a. "A Writ of Certiorari and thereby quash and set aside the impugned select list of the Prosecuting Officers issued by the respondents 2 to 5, i.e. the Police Department of the State of Jammu & Kashmir whereby the private respondents 6 to 70 have been selected for their appointment as Prosecuting Officers in the Prosecution Wing of the J&K Police Department.
b. A Writ of Prohibition and thereby prohibit and restrain the official respondents 1 to 5 from acting upon the impugned Select List in any manner, 2 whatsoever, and further from issuing any appointment orders in respect of the private selected respondents on the basis of the said impugned select list c. A Writ of Mandamus and thereby command and direct the respondent no.1 i.e. the State of Jammu & Kashmir to bifurcate the Prosecution Wing of the J&K Police Department and form a separate and independent prosecution wing under the direct control and supervision of the Home Department of the Government of Jammu & Kashmir and also further direct the respondent no.1 to frame the rules for the recruitment of the Prosecutors in the State of Jammu & Kashmir and make selection and appointments to the available posts strictly in accordance with the said rules.
And also consider the petitioner herein for his selection and consequential appointment as a Prosecuting Officer".
3. The writ petition is opposed by the respondents on the grounds that none of the petitioner's fundamental, legal or statutory rights has been violated and that the petitioner therefore cannot invoke extraordinary writ jurisdiction of the Court. It is pleaded that petitioner after participating in the selection process cannot turn around and question the selection criteria on the ground of alleged irregularities in mode and manner of selection process only because he could not make the grade and does not find place in the select list. The respondents deny all the factual averments made in the petition.
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4. I have gone through the pleadings and have heard learned counsel for the parties at length. I have also gone through the record placed on the file.
5. Petitioner questions the select list on the ground that the respondents instead of short-listing candidates on the basis of their performance in the written test, called all the candidates for the interview and, therefore, made a departure from the procedure notified in the advertisement notice. It is pleaded that the respondents, after physical measurements of the candidates were done, were required to allow such of the candidates to appear in the written test, who satisfied physical measurement criteria and thereafter, call candidates, in the order of merit secured in written test corresponding to the number of vacancies. The respondents are said to have called all the candidates, who appeared in the written test irrespective of their performance and merit position, for the interview/ viva voce .
6. The selection is also questioned on the ground that date(s) and venue of interview was not duly notified by the respondents. However, petitioner admits to have received information about his date of interview and the venue at which interview was to be conducted and to have appeared in the interview. 4
7. It is, however, pleaded that interview was a complete eyewash and a mere formality and performance of candidates either in written test or viva voce had no role in selection of the candidates. The select list is also questioned on the ground that the respondents as against 53 notified vacancies, selected 65 candidates - a course not permissible under law. The recruitment, according to the petitioner, is bad under all the categories and selection against posts under General as well as Reserved Categories is vitiated because of the illegality committed. It is insisted that the Selection Committee was competent to make selection against 53 vacancies referred to it by the Police Department and it did not have power to make selection against the vacancies not referred to it. The petitioner also raises a larger question of separation of Prosecution Wing from the Police Department. It is pleaded that in terms of Jammu and Kashmir Police Manual, Prosecuting Officer is a Police Officer of the rank of Inspector of Police and in terms of the Manual, has to perform duties of a Police Officer. The mechanism, according to the petitioner, impinges upon independence of prosecution and has serious consequences for criminal justice system. The petitioner refers to Malimath Committee Report recommending separation of Prosecution from the Police Department and seeks a direction to the 5 respondents to make prosecution an independent agency free from the clutches of the Police Department.
8. A closer look on the grounds urged in the petition to question the selection would reveal that none of the grounds has any merit in the context of surrounding circumstances. The ground that the respondents allowed all the candidates, who appeared in the written test to appear in interview, loses significance in view of the fact that the petitioner has also been permitted to participate in the selection process and appear before the Interview Committee. The petitioner cannot have any grievance as regards decision of the respondents to call all the candidates, who satisfied physical measurements to appear in the interview, when such decision did not exclude him from appearing in interview. The selection Committee may anticipate a larger response to the advertisement notice and to avoid administrative costs, decide to call number of candidates proportional to the advertised vacancies for interview. This however, does not preclude the selection Committee to call all the candidates for interview, in case, it does not find response to the advertisement notice on the expected lines and a lesser number of candidates respond to the advertisement notice. The selection Committee is within its rights to change the methodology as long as 6 it does not deny consideration to any aspirant for the advertised post.
9. The ground that the interview schedule was not given due publicity again is of no help to the petitioner. The plea loses significance as the petitioner was made aware of his date and venue of interview and, therefore, was not prejudiced in any manner.
10. The grievance as regards selection of more candidates than the posts advertised is equally without merit, in the present context. The petitioner rushed to the Court immediately after the select list was notified. The selection list is to in the nature of recommendation to the indenting department and it is for indenting department to act on the selection list and issue appointment orders. The respondents while according consideration to the selection list, are expected to be alive to the number of vacancies advertised and permissibility of appointment of the candidates selected in excess to the posts advertised under General Category and other Reserved Categories.
11. The petitioner can have no grievance as regards his non-selection because as per the record made available by Mr. Gagan Basotra, learned Senior Additional Advocate General, he secured less marks (62) than the last selected candidate under his Category. Even if, the Selection Committee is held to 7 have unauthorizedly selected 38 candidates under General Category against 29 posts advertised vide advertisement notice dated 05.03.2003, the petitioner would stand now here because his merit falls below the 38th candidate in the select list. The petitioner cannot have any grievance regarding selection of respondent no.57 inasmuch as petitioner applied under General Category where respondent no.57 has been selected under Scheduled Caste Category
12. The grievance as regards failure on part of the State Government to order separation of Prosecution from the Police Department is genuine to say the. The State Government, however, is expected to be alive to the recommendation in the Malimath Committee Report and directions passed by the superior Courts from time to time, emphasizing need to separate Prosecution from the Police Department and is expected to take a decision without further delay.
13. For the reasons discussed, petition is bereft of any merit and is, accordingly, dismissed.
(Hasnain Massodi) Judge Jammu 07/05/2013 Varun Bedi