Jammu & Kashmir High Court - Srinagar Bench
Shabir Ahmad Pir & Ors. vs State Of J&K; And Others on 6 December, 2018
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SWP No. 750/2010
Date of Decision: 06.12.2018
Shabir Ahmad Pir & ors.
Vs.
State and Ors.
Coram:
Hon'ble Mr. Justice Rashid Ali Dar, Judge.
Appearing Counsel:
For Petitioner(s): Mr. Hakim Suhail Ishtiyaq, Advocate.
For Respondent(s): None.
i) Whether approved for reporting in Law journals etc.: Yes / No
ii) Whether approved for publication in press: Yes / No
1. This petition stands already admitted on 11.06.2014 but till date no response has been filed on behalf of the respondents so as to rebut the averments made in the petition despite several opportunities granted to them in this behalf.
2. Brief facts of the case as deduced from the petition are as under:-
3. The petitioners along-with other eligible candidates applied for the post of Medical Assistants in the department of Health Services in terms of the advertisement notice No.5 of 1991 but were not selected, ignoring their eligibility and qualification. It is alleged that the selection made was -2- in a casual and arbitrary manner. The said selection came to be challenged by the medium of SWP No. 1930/1992 titled Bashir Ahmad Haji Vs. State & Ors., filed in this wing of the Court. It is being also pleaded that another petition OWP No. 398/1992 titled Sudesh Pandita & Ors. Vs. State & Ors., came to be filed in the Jammu wing of this Court, challenging the said selection.
4. OWP No. 398/1992 was allowed vide judgment dated 07.04.1998, whereby the respondents were under command to appoint the petitioners therein within a period of two months. The said judgment was later on upheld by the Division Bench of this Court vide order dated 27.03.2003. Thereafter, the State had filed SLP before the Hon'ble Apex Court against the judgment of the Division Bench but the same was dismissed on the ground of delay as well as on merits vide order dated 10.11.2006(copy enclosed as Annexure-C). Then, the respondents, in compliance to the judgment dated 07.04.1998 passed in OWP No.398/1992, appointed the petitioners therein, as is evident from the communication No.Health/NG/293/2006 dated 28.12.2006 (Annexure- -3- C1). SWP No.1930/1992, filed in the Srinagar wing of this Court, was also allowed vide judgment dated 11.10.2007, operative portion of which read as:-
"Accordingly, the writ petition is disposed of in terms of the judgment passed in above quoted writ petition No.398/1992 confirmed by Hon'ble Apex Court also as already said, by providing that writ petitioners herein shall be entitled to same benefits, treatments as given to those of the above quoted judgment."
5. The grievance of the petitioners herein is that since they were appointed vide order No.02/LS of 2008 dated 09.01.2008(Annexure-E) but their seniority has not been fixed properly by the respondents. There was a legal requirement to fix their seniority from the place immediately below the last selected candidate but, as pleaded by the petitioners, their seniority has been fixed from the date their order of appointments has been issued. Petitioners herein have prayed for issuance of writ of mandamus directing the respondents to give effect to the appointment of the petitioners from 07.06.1998 and place their seniority immediately below the last selected candidate in the impugned selection, referred supra.
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6. Mr. Suhail, learned counsel for the petitioners submitted that the inaction of the respondents will prejudice the rights of the petitioners guaranteed under Article 14, 16, 19 and 21 of the Constitution of India. Learned counsel further submits that in the light of the law laid down in the various reported judgments, the seniority of the petitioners has to be fixed immediately below the last selected candidate who was selected and appointed as a result of process of selection which the petitioners also faced in the year 1991.
7. Since no reply on behalf of the respondents has been filed and the stand taken by the petitioners, in terms of the petition, is not been controverted, therefore, the merits of the case are to be examined in the light of the material available on file. Learned counsel for the petitioners has been accordingly heard. He has taken reliance on several reported judgments, referred below.
8. In Sanjay Dhar vs. J&K Public Service Commissioner, reported in AIR 2000 SC 3238, on which Mr. Suhail has relied upon, their lordships' have observed that the appellant who was wrongly refused appointment -5- during 1993 selection cannot be denied benefit of seniority and it was held that he shall be deemed to have been appointed and signed a place of seniority consistently with his placement in order of merit in 1993 select list prepared for earlier year. In another reported case Sarfaraz Maqbool Bhat Vs. State & ors., 2014(II) SLJ (HC) 544, his lordship has observed that the petitioner was deprived of the benefits of selection process undertaken by the Selection Board due to the filing of the writ petition, therefore, held that since the petitioner had not worked as teacher from the year 2009 when other persons selected along-with him were appointed, he would not be entitled to monetary benefits, however, he would be entitled to other service benefits. The petitioner was ordered to be treated notionally appointed from the date other candidates were selected and appointed in the year 2009 and consequently the seniority is to be reckoned from the date 2009.
9. Learned counsel contended that the petitioners are entitled to the consequential benefits in pursuance of their appointment made in compliance to the judgment of this Court dated 07.04.1998 passed in -6- OWP No. 398/1992. Considering the material on record, it is evident on its perusal that the petitioners have been appointed in compliance to the judgment dated 07.04.1998(supra), operative portion of which read as under:-
"...The course as indicated in above judgment is being adopted in this case. The circumstances prevailing in the State cannot be ignored. The appointment of respondents who were beyond 65 would stand but the respondents-authorities would take steps with a view to accommodate the petitioners against the available vacancies. It be seen that some of the petitioners have become over-aged. They cannot seek service elsewhere, therefore, respondents would accordingly as indicated above take guidance from the view expressed in the aforementioned case and consider the claim of the petitioners for appointment against vacant posts. If posts are not vacant then supernumerary posts be created and petitioners be accommodated. Let this exercise be completed within a period of two months. The period of two months would begin from the date the copy of order passed by this court alongwith writ petition and annexures thereof are made available by the petitioners to the respondents-authorities. If for any practical reason it is not possible to take a decision respondents would be at liberty to seek extension of time but in that eventuality they would have to explain each and every day's delay.
Disposed of accordingly."
10. In the order of appointment referred above, it is stated that the petitioners are appointed as Pharmacists subject to verification of their -7- certificates. There is nothing on record from which it could be deduced that the petitioners have no entitlement to the consequential benefits regarding the appointment made after passing the judgment dated 07.04.1998 in the above referred writ petition.
11. In the case of Javaid Iqbal Balwan Vs. State 1999 SLJ 303, their lordships' had observed that the appointments made by Government on the basis of merit obtained by candidates in combined competitive examination some candidates who were not appointed filing writ petitions and Supreme Court directing their appointment held the candidates appointed on direction of Supreme Court are entitled to get their seniority determined with effect from the date on which other direct recruits were appointed. Para-16 of the said judgment would be advantageous to be quoted hereunder:-
"16. In view of the aforementioned decisions, there is no escape from the conclusion that the petitioners who were deprived of entering into service alongwith other selected candidates, are entitled to claim the seniority with effect from the same date on which the other direct recruits came to be inducted."
12. In the light of the principles of law laid down in various judgments as relied on by learned counsel for the petitioners, the petitioners have -8- made out their case for grant of relief as sought in the instant petition. Accordingly, respondents are directed to fix the seniority of the petitioners notionally from the date when appointments were made under advertisement Notice No.5 of 1991 as per the merit position drawn by the Service Selection Board immediately below the last selected candidate who stood appointed/selected in the process of selection (supra) and to give notionally the service benefits to them, which their counterparts have been given.
13. Writ petition is disposed of accordingly.
(Rashid Ali Dar) Judge Srinagar 06.12.2018 Muzammil. Q