Jammu & Kashmir High Court - Srinagar Bench
State Of J&K; And Ors vs Asif Hamid Khan & Ors on 27 October, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Case no. Date of decision: 27.10.2017
LPASW no.130/2017; MP no.01/2017
State of J&K & ors. v. Asif Hameed Khan & ors
Coram:
Hon'ble Mr. Justice Badar Durrez Ahmed, Chief Justice
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearing counsel:
For appellants: Mr. Jehangir Iqbal Ganai, AG with
M/s MA Beigh, AAG & Muzaffar Nabi Lone, GA.
For respondents: Mr. Z. A. Shah, Sr. Advocate with
Mr. A. Hanan, Advocate for no.1;
Mr. Mohsin Qadiri, Advocate, for 11, 13, 14 & 15.
Reporting instructions:
i) Whether to be reported in press/media: Yes / No ii) Whether approved for reporting in Law Journals: Yes / No Per Magrey, J:
1. The State of Jammu and Kashmir through Commissioner / Secretary to Government, General Administration Department, and the Establishment-cum- Selection Committee through its Chairman, i.e., the Chief Secretary, J&K State, are in appeal against the judgment and order dated 02.06.2016 passed by the learned Writ Court in respondent no.1's writ petition, SWP no.1768/2015. By the said judgment, the learned Writ Court quashed Government order no.1036-GAD of 2015 dated 30.07.2015 with direction to the appellants herein to comply with the earlier judgment of the Court dated 31.03.2015 passed in the petitioner's two earlier clubbed writ petitions, SWP no.946/2006 and SWP no.805/2008, and to give all consequential benefits to the petitioner with further direction to them to consider the claim of the petitioner for his induction into Indian Administrative LPASW no. 130/2017 Page 1 of 18 Service (IAS) in accordance with the mandate contained in the earlier judgment and his name be recommended along with other selected candidates.
2. The aforesaid Government order no.1036-GAD of 2015 dated 30.07.2015 was purportedly passed by the appellants herein in consideration of the claim of respondent no.1 pursuant to the decision of the learned Writ Court in his aforesaid two writ petitions, SWP nos.946/2006 and 805/2008.
3. It may be observed that the simple and only point involved in this appeal is: once the appellants rejected the claim of respondent no.1 for induction into Kashmir Administrative Service (for short, KAS) on a specific ground and that ground was overturned on judicial review by the learned Writ Court, whether the appellants on fresh consideration of the case of respondent no.1 in purported compliance of the decision and direction of the learned Writ Court could reject his claim on a ground which by itself was the sine qua non of the ground already determined by the Court, and, in any case, which was not taken nor pressed into service earlier?
4. We have heard learned counsel for the parties and considered the matter.
5. The Jammu and Kashmir Administrative Service is governed by the Jammu and Kashmir Administrative Service Rules, 1979 as amended vide SRO 177 of 1993 dated 24.09.1993. It is constituted of five scales of pay, the lowest being the Junior Scale (of Rs.2125-3600) and the next being the Time scale (of Rs.3000-4500), and so on. Rule 5 of these Rules provides for the following methods of recruitment to the Service:
(a) By a competitive examination at the junior scale;
(b) By promotion to the time scale of the service from amongst the members of the departmental feeding services holding the time scale of pay of Rs.2125-3600 (as it then existed) or any other higher grade in the respective departmental Service; and
(c) By selection to the time scale of the service from amongst the persons of outstanding ability and merit serving in connection with the affairs LPASW no. 130/2017 Page 2 of 18 of the State in Departments / Services other than those covered under clause (b) above or in Autonomous Bodies (Government owned Public Sector Undertakings carrying pay scale equivalent or higher than the time scale of KAS, on the recommendation of the concerned department / Autonomous Body / Government owned Public Sector Undertaking, respectively.
Sub-rule (3) of Rule 5, among other things, provides that the number of persons to be recruited to the Time Scale of the Service under sub-rule (1) shall be, inter alia, 10% of the vacancies of senior scale posts occurring in a calendar year by selection from persons referred to in clause (c) of sub-rule (1); provided that till the first batch of Junior KAS becomes eligible for promotion to the time scale, the vacancies shall be filed up by promotion of officers as specified in clause (b) and clause (c) of sub-rule (1) in the ratio of 85:15 respectively. This 10%/15% of the posts in the time scale of KAS is generally known as Technical Quota.
6. The Government started the process of filling up of the vacancies available under technical quota in 1997. In this connection, communications are stated to have been addressed by the General Administration Department (for short, GAD) to all the Administrative Departments, administering the Services other than the feeding Services, for recommending names of suitable officers for being accorded consideration for induction into KAS against the technical quota posts. Subsequently, on 31.07.1998, all the concerned Departments and PSUs, which had recommended the officers, were asked to obtain willingness of the officers under them and to furnish the same to the GAD by or before 20.08.1998. It appears that the Selection Committee constituted under Rule 6 of the Rules decided to evaluate / assess the suitability of these officers for induction into KAS with reference to their APRs for a period of 5 years from 1992-93 to 1996-97. The GAD was asked to prepare the final evaluation sheet after adopting the following criteria so that the officers could be called for interview:
APRs of last five years: 75 points (max)
Grading
LPASW no. 130/2017 Page 3 of 18
Outstanding: 15 x 5 years = 75
Very Good: 12 x 5 years = 60
Good: 09 x 5 years = 45
25% for viva-voce / interview of the candidates by the Selection Committee short listed for the interview.
The Selection Committee decided that such of the officers who would score 45 or more points be called for interview which was scheduled to be conducted on 10.07.1999, 13.07.1999 and 17.07.1999 at SKICC, Srinagar.
7. Respondent no.1, was initially appointed as Addl. Trade Agent, Bombay, in terms of Government order no.29-GR(H&P) of 1990 dated 13.12.1990. He was regularised as Trade Agent, Bombay, by Government order no. 1-GR-(H&P) of 1992 dated 21.02.1992, and remained posted at Bombay till 07.01.1997. He was working in the pay scale of Rs.3000-4500 which was equivalent to the time scale of KAS. At that time, the post of Trade Agent was an isolated post, reportedly, administered by the GAD. Respondent no.1 was, however, transferred from Bombay by Government order no.36-GAD of 1997 dated 07.01.1997 and posted on deputation basis as Secretary, J&K State Agro Industries Development Corporation Limited.
8. After being transferred and posted in the J&K State Agro Industries Development Corporation Limited, respondent no.1 made a representation bearing no. Misc/PF(KAS)97 dated 24.06.1997 to the Commissioner/Secretary to Government, GAD, for accord of consideration for his induction into KAS/Time Scale. This representation is stated to have been processed inasmuch as the GAD made a communication no. GAD(SET)KAS/110/97 dated 124.07.1997 to the Managing Director, J&K State Agro Industries Department, requisitioning his APRs for the period 1990 to 1996-97.
9. Thereafter, while respondent no.1 was working on ex-cadre basis as Deputy Secretary to Government, Revenue Department, on 14.07.1999 he learnt that the Selection Committee was conducting interviews of candidates belonging LPASW no. 130/2017 Page 4 of 18 to other organizations for induction into KAS (Technical Quota) on 15.07.1999. He approached the Commissioner/Secretary, GAD, who asked him to exercise the requisite option for accord of consideration for his induction into KAS under Technical Quota, which respondent no.1 readily did, stating therein that he could not submit the undertaking due to non-receipt of GAD's communication dated 30.07.1998. Respondent no.1 was directed to appear for interview on 15.07.1999 at SKICC. However, he was not interviewed, but was told that his case would be taken up by the Selection Committee separately at the Civil Secretariat.
10. Thereafter, the Government issued order no.1014-GAD dated 31.08.2000, appointing as many as 50 officers to KAS under Technical Quota.
11. Respondent no.1 made series of representations against his exclusion from the list. While his representations were pending, the State vide SRO 159 dated 23.04.2002 promulgated the J&K Hospitality, Protocol and Agencies (Gazetted) Service Rules, 2002 constituting the J&K Hospitality, Protocol and Agencies (Gazetted) Service which was included as one of the feeding Services to KAS. Consequently, respondent no.1 became a member of the said Service at its initial constitution and, accordingly, he was inducted into KAS in its Time Scale as being a member of the aforesaid feeding Service in terms of Government order no.08-GAD of 2005 dated 04.01.2005 under Rule 5(1)(b) of the KAS Rules, 1979.
12. As respondent no.1 claimed his induction into KAS against technical quota with effect from 31.08.2000, the date persons similarly placed with him were inducted into the Service, he filed a writ petition, SWP no.946/2006, praying therein, inter alia, for a direction to accord consideration for his induction into KAS under Rule 5(1)(c) of the 1979 KAS Rules.
13. While the aforesaid writ petition was pending consideration of the Court, on account of certain developments taking place on the representation filed by respondent no.1 in the meantime, he filed another writ petition, SWP LPASW no. 130/2017 Page 5 of 18 no.805/2008. Therein, the Court on 29.05.2008 passed an interim direction providing that "in case petitioner has made the APRs available to the respondents, he shall be accorded consideration in accordance with rules governing the field subject to his eligibility'. Thereupon the Government issued order no.1740-GAD of 2009 dated 15.12.2009 rejecting the claim of respondent no.1.
14. Given the controversy raised in the present LPA, it becomes necessary to mention and quote at this stage the reason disclosed in Government order no.1740-GAD of 2009 dated 15.12.2009 for rejecting his claim. The relevant paragraph of the Government order is quoted hereunder:
"Whereas, the Establishment-cum-Selection Committee in its meeting held on 16.11.2009 again considered the case of the petitioner in light of the orders of the Hon'ble High Court referred to in para-2 above. The Committee after threadbare discussions decided as under:-
'The Committee considered the case of the officer in light of the above orders of the Hon'ble High Court and the developments which have taken place subsequently. The Committee noted that Shri Asif Hamid Khan was not the only officer whose case was not considered but there were other officers who could not be interviewed for want of APRs. Since neither the officer himself nor his administrative department submitted the APRs within the stipulated time, he could not be assessed and interviewed. As the inductions from technical quota have since been concluded in August 2000, there was no scope for reconsideration of his case. Further, having been appointed to the KAS from a feeding service, there was no justification for reconsideration of his induction from technical quota retrospectively from 2000 at this stage.' Now, therefore, in view of the above detailed factual position, the claim of the petitioner having been considered in compliance with the directions of the Hon'ble High Court as reflected hereinabove, no cogent or justifiable grounds exist as would warrant his appointment / induction to the Jammu and Kashmir Administrative Service retrospectively in Technical quota from 2000, as he has already been appointed to KAS in LPASW no. 130/2017 Page 6 of 18 January, 2005 from a feeding service. The claim of the petitioner is, therefore, rejected."
15. Consequent upon issuance of the aforesaid rejection order dated 15.12.2009 by the Government, respondent no.1 amended his writ petition, SWP no.805/2008, incorporating therein inter alia, the prayer for quashing of the said order.
16. The aforesaid two writ petitions, SWP nos. 946/2006 and 805/2008 were clubbed and allowed by the learned Writ Court by a common judgment dated 31.3.2015. The operative part of the judgment is quoted hereunder:
"For the reasons discussed, writ petition nos. 946/2006 & 805/2008 are allowed and the order no.1740-GAD of 2009 dated 15.12.2009, is quashed. The respondents by a writ of mandamus are commanded to accord consideration to petitioner's appointment to the Service under Technical Quota in terms of Rule 5(1)(c) J&K Administrative Service Rules w.e.f. 31st August, 2000 i.e. the date when his colleagues were appointed to the Service. Let Establishment-cum-Selection Committee be convened within two weeks from the date of receipt of copy of order. The Establishment- cum-Selection Committee shall accord consideration to petitioner's claim having regard to APRs for the period 1995 to 1997 admittedly received by respondents, and take a decision in the matter within two weeks thereafter. The respondents are expected to be alive to the fact that justice has eluded petitioner for last 15 years, and, therefore, they need to adhere to above time frame. Once the consideration is accorded and decision taken, petitioner's seniority shall be ref-fixed in light of such decision after hearing officer(s), if any adversely affected by such re-fixation. Petitioner shall be granted all the service benefits due to him, like promotion etc. that petitioner would have earned in wake of his appointment to the Service under Technical Quota w.e.f. 31.8.2000."
17. After the learned Writ Court decided respondent no.1's aforesaid two writ petitions vide the said judgment dated 31.03.2015, the Government in the General Administration Department issued Order no.1036-GAD of 2015 dated 30.7.2015, purporting to be the consideration order, the concluding paragraphs whereof read as under:
LPASW no. 130/2017 Page 7 of 18"And whereas, having considered the matter in its entirety, the Committee found that Mr. Asif Hamid Khan was not recommended by his parent department for being accorded consideration to his appointment to the Time Scale of KAS, under technical quota, in terms of Rule 5(1)(c) of Jammu and Kashmir Administrative Service Rules, and as such his APRs were not forwarded to the GAD at the relevant point of time. It was also found that he could neither exercise the option regarding his willingness to the terms and conditions communicated by the GAD, applicable in the event of appointment, by or before the stipulated date, nor was any interview call letter dispatched to him, as he could not be assessed with reference to the APRs which were never made available in his case. The Committee, accordingly, held that the non-inclusion of Mr. Asif Hamid Khan in the select list prepared by the Selection Committee in 1999-2000 was a natural sequel and a foregone conclusion;
And whereas, the Committee accordingly recommended to issue a consideration order to the effect of rejecting the claim of the petitioner in compliance of the order dated 31.3.2015 passed by the Hon'ble High Court in SWP No.946/2006 clubbed with SWP No.805/2008 titled Asif Hamid Khan Vs State and others.
Now, therefore, having accorded consideration to the case of Mr. Asif Hamid Khan for his appointment to the Jammu and Kashmir Administrative Service, under technical quota, in terms of Rule 5(1)(c) of Jammu and Kashmir Administrative Service Rules 1979, w.e.f. 31.8.2000, in compliance of the order dated 31.3.2015 passed by the Hon'ble High Court in SWP No.946/2006 clubbed with SWP No.805/2008 titled Asif Hamid Khan Vs State and others, keeping also in view the averments contained in the writ petitions filed by him and the observations made by t5he learned Single Judge in his order dated 31.3.2015, the claim of Mr. Asif Hamid Khan for his appointment to the Time Scale of KAS, under 'technical quota', is rejected being devoid of merit."
18. The aforesaid 'consideration' order, being Government order no.1036- GAD of 2015 dated 30.07.2015, was challenged by respondent no.1 in his third writ petition, SWP no.1768/2015 which was decided by the learned Writ Court by judgment dated 02.06.2016 which is impugned in the present LPA. The operative portion of the judgment is quoted hereunder:
LPASW no. 130/2017 Page 8 of 18"For the above stated reasons impugned order is rendered illegal.
This writ petition accordingly in view of the discussion made in this order is disposed of in the following manner:
By issuance of writ of certiorari order dated 1036-GAD of 2015 dated 30th July, 2015 passed by respondent no.4 is quashed. The official respondents are directed to comply with the judgment dated 31st March, 2015, passed in SWP No.946/2006 and SWP NBo.805/2008 and give all the consequential benefits to the petitioner.
By issuance of writ of mandamus the official respondents are further directed to consider the claim of the petitioner for his induction in Indian Administrative Services (IAS) in accordance with the mandate contained in the earlier judgment and his name shall be recommended along with other selected candidates in accordance with the decision of the Court dated 31st March, 2015."
19. This appeal has been filed by the appellants against the aforesaid judgment dated 02.06.2016 passed by the learned Writ Court.
20. It is noticed that the learned Writ Court in its aforesaid judgment has held that the controversy raised by issuance of the order of consideration impugned therein in essence stood settled by the Court in its decision dated 31.03.2015 passed in SWP nos.946/2006 connected with SWP no.805/2008, and that the issues raised in the respective pleadings by the parties had been considered, discussed, deliberated upon and findings recorded which bind the parties. The learned Writ Court has further held that the parties cannot re-agitate or re-open those issues, inasmuch as both the parties accepted the aforesaid decision of the Court having not challenged the same in appeal. The learned Writ Court at page 4 & 5 of the judgment (un-numbered paras 8, 9 and 10) has held as under:
"Now at post ad litem and post decisional stage grounds are urged that the petitioner was 'neither recommended by his parent department for being accorded consideration to his appointment under technical quota and his APRs were not forwarded to General Administrative (Administration) Department (GAD) at the relevant point of time and as also did not exercise his willingness to the terms LPASW no. 130/2017 Page 9 of 18 and conditions'. This stand taken by the respondents cannot be accepted by the Court, as it has the effect of defeating earlier judgment of the Court. It appears that in order to defeat the judgment of the Court the respondents have carved out these grounds. If in t5he wisdom of the official respondents, these were the appropriate grounds for rejecting the claim of the petitioner then these grounds ought to have been raised in the earlier round of litigation.
These issues have been raised only to defeat the judgment of the Court which has attained finality. The Court is duty bound to ensure that judgments rendered by it, which are not challenged, are implemented and the authority which has to implement the said judgment is not permitted to wriggle out of the impact of the Court judgment by either manufacturing or projecting a new ground. The Court judgments which have otherwise attained finality cannot be allowed to be rendered inconsequential and incapable of implementation. Any uncouth attempt by any authority to defeat the Court judgment cannot be accepted.
In the facts and circumstances of this case everything is settled in terms of the earlier Court judgment. The Court judgment will not be permitted to be defeated by projecting a new ground. It is declared that all the available grounds were taken in the first round of litigation and stand settled."
21. In this appeal the ground taken is that the issue as crystallized by the learned Single Judge while deciding the earlier two writ petitions, namely, SWP nos.946/2006 and 805/2008, was that of non-consideration of respondent no.1 for appointment to the time scale under technical quota in terms of rule 5(1)(c) of the KAS Rules on account of non-availability of APRs. It is submitted that the learned Single Judge, after deriving satisfaction that the non-availability of APRs could not be read against the writ-petitioner - respondent no.1 herein - set aside the order impugned therein, and that no other issue was decided by the learned Single Judge in the judgment. It is further contended that it was for this reason that the learned Writ Court left it for the respondents to place the case of the writ- petitioner before the Establishment-cum-Selection Committee for according consideration of the petitioner's appointment to the Service under technical quota. The learned Advocate General argued that the effect of the impugned judgment LPASW no. 130/2017 Page 10 of 18 is directing consideration of the petitioner in violation of Rule 5(1)(c) of the KAS Rules and that there cannot be a direction in contravention of the Rules.
22. First and the foremost, it needs to be observed here that it is not correct to say that the learned Writ Court while deciding the two writ petitions, SWP nos.946/2006 and 805/2008, crystallized the issue of non-consideration of respondent no.1 for appointment to the time scale under technical quota in terms of rule 5(1)(c) of the KAS Rules on account of non-availability of APRs. The fact of the matter is that, as would be shown later in this judgment by referring to and quoting the relevant paragraphs of the judgment passed by the learned Writ Court dated 31.03.2015, this was the total case of the State-respondents before the learned Writ Court. Notwithstanding that, the point sought to be raised is that under Rule 5(1)(c) of the KAS Rules, 1979, appointment by selection to the Service was to be made only from amongst the eligible persons of outstanding ability and merit, whose names had to be recommended by the concerned departments / autonomous bodies / public sector undertakings etc. and that recommendation from the concerned Administrative Department was a condition precedent to the accord of consideration. It is contended that respondent no.1 was not recommended by his Administrative Department, nor his willingness was received through his parent department, and that the Establishment-cum- Selection Committee, as such, was justified in rejecting the case of respondent no.1 on that ground.
23. In light of the above specific argument taken by the learned Advocate General before us, the controversy boils down to finding what was pleaded by the appellants herein and decided by the learned Writ Court in the respondent no.1's first two writ petitions namely, SWP nos.946/2006 and 805/2008. In this connection, it would be apt to refer to paras 16, 17 and 18 of the judgment of the learned Writ Court dated 31.03.2015. But before we do that, we feel that it would be appropriate to refer to a certain statement made by the respondents 1 and 2 in the writ petition, SWP no.946/2006, in their reply before the learned Writ Court.
LPASW no. 130/2017 Page 11 of 1824. Therein at page 5 of the reply, it was stated that "...a communication dated 08.12.1993 was addressed to all the administrative departments administering the Services other than the feeding Services and autonomous bodies for recommending the names of suitable candidates for consideration for induction into KAS against technical quota under Rule 5(1)(c). In terms of the Rules the said departments were required and supposed to sponsor and recommend the names of the officers of outstanding ability and merit serving in connection with the affairs of the State" and that "the APRs of the officers sponsored/recommended by the departments were necessarily to be forwarded alongwith their sponsorship/recommendations, for the said APRs would form a basis for assessing the merit and suitability of the said officers before the Selection Committee for making selections under the KAS Rules".
25. The word 'recommend', as we know, means to put forward with approval as being suitable for a purpose or role. Similarly, 'sponsor', in the sense it has been used, means to take official responsibility for the suitability of the person so recommended or sponsored. A plain reading of the statements made by the respondents in their aforesaid reply would make it axiomatic that the departments etc. were required to recommend / sponsor the officers of outstanding ability and merit. Ordinarily, once an officer was recommended or sponsored, the recommending or the sponsoring department would take the responsibility of the suitability of the officer so recommended. But that was not the case or enough; the departments were required to justify and support their recommendations / sponsorships by the APRs of the officers so recommended/sponsored by them to be gone into by, or at the instance of, the Establishment-cum-Selection Committee. So, sequentially, the first thing that would come is the recommendation or sponsorship made by a department to be followed, justified, supported or accompanied by the APRs of the officer. Of course, both would constitute and comprise one single action simultaneous in despatch, but it is not that the APRs would precede the recommendation / sponsorship or that the APRs LPASW no. 130/2017 Page 12 of 18 alone of an officer, bereft of any recommendation / sponsorship, would be placed before the Selection Committee. If there was no recommendation, there would be no APR supplied or submitted before the Selection Committee. In such a situation, the question of candidature of an officer before the Selection Committee would not arise and, consequently, no comment would emanate from the Selection Committee about any officer not recommended for consideration of the Selection Committee. On the contrary, the Selection Committee would comment on non-availability or non-submission of APRs or their insufficiency etc. only when the name of an officer was recommended / sponsored and placed before it without fulfilling the requirement of number and period of APRs. Existence of such circumstance has been admitted in the reply, inasmuch as it is stated that when the process was again started in the year 1998, 325 officers were sponsored and recommended upto 10.03.1998 and APRs in respect of only 207 officers were made available out of which most of the APRs were incomplete and were photocopies. This statement establishes that the Selection Committee could make a comment about non-availability of APRs or of they being incomplete only in respect of those of the officers who stood recommended and sponsored by their respective departments.
26. Now, coming back to the instant case, the point raised is that respondent no.1 had not been recommended / sponsored by his parent department. Admittedly, earlier, his writ petitions were contested on the ground that his APRs were not received. The two stands cannot co-exist; if his name was not sponsored and his APRs were not submitted, naturally, his name would not be before the Selection Committee, and if that be so, how did the Establishment-cum-Selection Committee comment about the non-availability of his APRs? Going by the above legally derivable analogy and the factual statements made by the respondents in their reply referred to above, it can be said that the Selection Committee would have had no occasion to comment about the non-availability of the APRs of respondent no.1 had his name not been recommended/sponsored. The Selection LPASW no. 130/2017 Page 13 of 18 Committee made the comment about his APRs only when his name stood recommended / sponsored; otherwise there would be no occasion for it even to go into the factum of existence or non-existence, availability or non-availability of his APRs. As a necessary corollary, since it has been the case of the appellants that the APRs of respondent no.1 were not made available by his parent department, this fact by itself establishes that his name had duly been recommended and was placed before the Selection Committee.
27. In light of the above, in this appeal it being the admitted case of the appellants that the issue determined by the learned Single Judge while deciding the earlier two writ petitions, namely, SWP nos.946/2006 and 805/2008, was that of non-consideration of respondent no.1 for appointment to the time scale under technical quota in terms of rule 5(1)(c) of the KAS Rules on account of non- availability of APRs, it cannot lie in the mouth of the appellants that respondent no.1 had not been recommended / sponsored by his department. The learned Single Judge having derived satisfaction that the non-availability of APRs could not be read against the writ-petitioner, respondent no.1 herein, and having quashed the order impugned therein, there was no need of deciding any other issue, as none was raised, at least, on behalf of the State-respondents therein. It is reiterated that commenting on availability and existence or otherwise of the APRs was premised on the receipt of the recommendation / sponsorship.
28. Reverting back to paras 16, 17 and 18 of the judgment dated 31.03.2015 of the learned Writ Court, the same are quoted hereunder:
"16. Respondents 1 & 2 resist the writ petition and oppose relief sought on the grounds that the petitioner was not considered by Selection Committee for induction and appointment to the Service under Technical Service / Quota on 30th July, 1998, as his Annual Performance Report (APRs) were not made available to the Selection Committee by the concerned department. The respondents reproduce in detail the communications addressed from time to time to the concerned department to furnish APRs of the eligible officer and lament over their indifference and apathy to the requests and LPASW no. 130/2017 Page 14 of 18 reminders made in this regard. The respondents justify petitioner's non-inclusion in Government order no.1014-GAD of 2000 dated 31.08.2000, on the ground of non-availability of his APRs to the Selection Committee. The writ petition is next opposed on the ground that the petitioner failed to question Government order no.1014-GAD of 2000 dated 31.08.2000, well in time and instead waited for six long years to voice his grievance. Petitioner is alleged to have slept over the matter and therefore lost right to ask for his appointment to the Service with effect from 31.08.2000, pointing out that as eligibility criteria for appointment under Technical Service / Quota is different from eligibility criteria for appointment to Service under feeding Services, the recommendation / sponsorship of respective department in case of appointment to Service under Technical Service / Quota and report as regards outstanding merit and ability of the officer recommended / sponsored are reflected in their APRs, therefore, assumes significance. It is pleaded that petitioner's APRs were received much after 30th July 1998, and some of the APRs for the relevant period, i.e., 1992-93 to 1996-97 on 12.05.2008, and that by said date the appointment to the Service under Technical Quota were made from time to time. It is pleaded that the petitioner can no more ask for consideration for his appointment to the Service under Technical Service / Quota with effect from 03.08.2000, when his colleagues stand already inducted / appointed to the Service.
17. It is further pleaded that in wake of merger of Trade Agencies with Jammu and Kashmir Hospitability and Protocol (Gazetted) Service in April 2002, one of the Services feeing for appointment to the Service, petitioner was considered and vide Government order no.08-GAD of 2005 dated 4th January 2005, appointed to the Service against available vacancy. It is insisted that after his aforementioned appointment, it was no more open to the petitioner to seek his appointment to the Service w.e.f. 31st August 2008. It is pleaded that petitioner by not questioning his non-induction in technical quota in 2000 and thereafter avoiding to throw challenge to Government order no.08-GASD of 2005 dated 4th January 2005, on the ground that he deserved to be appointed / inducted from an earlier dte, he has lost his right to maintain the writ petition and invoke writ jurisdiction of the Court.
18. It is reiterated that petitioner's representation for his appointment to the Service from 31st August 2008 (sic) was examined by the Establishment-cum-Selection Committee under the chairmanship of Chief Secretary more than once and thereafter the Committee in its meeting held on 25th April 2007 asked the respondents to find out the reasons for petitioner's non-consideration LPASW no. 130/2017 Page 15 of 18 by the Selection Committee on 15th July, 1999. The Committee constituted is said to have attributed the petitioner's non- consideration on 15th July 1998 to non-availability of his APRs and held the claim to be without any merit as the appointment to the Service under Technical Quota had already concluded. This is said to have lead to Government order no.1740-GAD of 2009 dated 15th December 2009."
Then in paras 25 and 26 of the judgment the learned Writ Court held and observed as under:
"25. The respondents likewise admit that petitioner was eligible and deserved to be considered for appointment to the Time Scale of Service in the year 1998. This is the reason that he was vide communication no.GAD(Ser)KAS-30/93-II dated 30.07.1998 asked to exercise his option for being considered for appointment to the Service. It is, therefore, nobody's case that petitioner was not eligible for appointment to the Service. However, respondents justify his non- consideration on the ground that petitioner's APRs were not made available by the concerned department to Selection Committee resulting in his non-consideration.
26. In view of bold and brave admission made by respondents as regards the averments made in the petition and petitioner's claim, the controversy narrows down to justifiability of non-consideration of petitioner for appointment to the Time Scale of Service under Technical quota in terms of Rule 5(1)(b) on account of non- availability of APRs."
29. As seen above, apart from recording a clear and conclusive finding that on the basis of the admissions made by the respondents in their reply, the controversy narrowed down to justifiability of non-consideration of respondent no.1 for appointment to the Time Scale of Service under Technical quota in terms of Rule 5(1)(b) on account of non-availability of APRs, the learned Writ Court had also found it as a fact that the respondent no.1's representation for his appointment to the Service was examined by the Establishment-cum-Selection Committee under the chairmanship of Chief Secretary more than once and that, thereafter, the Committee in its meeting held on 25th April 2007 asked the respondents to find out the reasons for respondent no.1's non-consideration by the Selection LPASW no. 130/2017 Page 16 of 18 Committee on 15th July, 1999. The Committee constituted is said to have attributed his non-consideration on 15th July 1999 to non-availability of his APRs.
30. It may be relevant to reiterate here that the above judgment rendered by the learned Writ Court was not challenged by the State-respondents and, thereby, they accepted the same.
31. So far as the requirement of submitting willingness / option for induction is concerned, it may be mentioned that, admittedly, the cut off date for giving such option was 01.01.1998 and respondent no.1 had represented for his consideration for induction into KAS on 24.06.1997, much before the cut off date. Then he had submitted another willingness / option on 14.07.1999 before the Commissioner / Secretary to Government, GAD. So, it is not a case where respondent no.1 had failed to give his willingness or option in this regard.
32. In view of the above, once the learned Writ Court had quashed the earlier consideration order, viz. Government order no.1740-GAD of 2009 dated 15.12.2009 after returning definite findings regarding the claim of respondent no.1; overturned the only ground put forth for non-consideration of respondent no.1 for his induction into KAS in technical quota with effect from 31 st August, 2000; and then made positive directions to the respondents therein to accord consideration to respondent no.1's appointment to the Service under Technical Quota in terms of Rule 5(1)(c) of the J&K Administrative Service Rules with effect from 31st August, 2000, i.e., the date persons similarly placed with him had been so inducted into the Service, with specific and time bound direction to the Establishment-cum-Selection Committee to accord consideration to petitioner's claim having regard to APRs for the period 1995 to 1997 admittedly received by respondents, it was iniquitous on the part of the appellants to invoke a ground which neither existed nor was taken up at any stage by the respondents during the previous rounds of litigation and is against record. Such a conduct on the part of the respondents strikes at their behavioural deficiency in goodfaith and, therefore, LPASW no. 130/2017 Page 17 of 18 cannot be sustained. The State is supposed to be fair in its actions; it cannot perpetrate injustice against respondent no.1. We hold that the respondents are estopped from taking any such ground at this stage.
33. Thus we do not find any error or irregularity committed by the learned Writ Court in its judgment dated 02.06.2016 while deciding respondent no.1's third writ petition, SWP no.1768/2015. We concur with the observation and findings recorded by the learned Single Judge that the matter stands concluded by the judgment dated 31.03.2015 passed in the petitioner's two earlier clubbed writ petitions, SWP no.946/2006 and SWP no.805/2008, and expect the State respondents to give a quietus to the matter now and implement the judgments of the learned Writ Courts.
34. Accordingly, there being no merit in this LPA, it is dismissed as unnecessary, however, without any order as to costs.
(Ali Mohammad Magrey) (Badar Durrez Ahmed)
Judge Chief Justice
Srinagar:
27.10.2017
Syed Ayaz Hussain, Secretary
LPASW no. 130/2017 Page 18 of 18