Jammu & Kashmir High Court - Srinagar Bench
Naseer Ahmad Mir vs State & Ors. Has Been Reserved. One on 10 April, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 1156 of 2011 CMP No. 1930 of 2011 Naseer Ahmad Mir Petitioners State & ors. Respondents !Mr. Z. A. Shah, Advocate ^Mr. M. A. Chashoo, Advocate Mr. T. H. Khawja, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date:10/04/2013 : J U D G M E N T :
1. In pursuance to the advertisement notices No.04 of 2007 and 09 of 2008, applications were invited for filling up the posts of Junior Engineer Electric Grade II(State Cadre). The process of selection culminated in selection of the candidates, which include 86 candidates under category RBA. Petitioner Naseer Ahmad figured at serial No.1 in the wait list under the said category(RBA).
2. One post i.e. 86th post from the said category in compliance to High court order dated 06.07.2009 passed in SWP No.1095/2009 titled Amresh Kumar & ors Vs. State & ors. has been reserved. One candidate had not joined, as a result thereof, petitioner being at serial No.1 in the wait list of RBA category has been appointed as against the said vacancy vide Govt. order No.251-PDD of 2009 dated 03.12.2009.
3. One Hilal Ahmad Dar S/O Ab. Rehman Dar R/O Hakbara Sumbal was to figure at serial No.86 of the select list whose name had not been reflected, instead as against serial No.86 it has been recorded post reserved in deference to HHC order dated 06.07.2009 passed in SWP No.1095/09 titled Amresh Kumar & ors Vs. State & ors. Said Hilal Ahmad Dar filed writ petition(SWP) No.1885/2009 claiming therein that since he had to figure at serial No.86 of the select list in order of merit, when one candidate did not join then he should have been offered appointment, instead wait list has been operated by appointing the petitioner Naseer Ahmad. The appointment order of the petitioner bearing No.251-PDD of 2009 was quashed vide judgment dated 23.11.2010 and a direction was issued to the respondents to offer appointment to the said Hilal Ahmad upon the recommendation made by SSRB. The Naseer Ahmad (petitioner herein) was directed to be paid the salary for the period he had worked. The said judgment was challenged by medium of LPA No.155/2010, same has been dismissed vide judgment dated 31.12.2010.
4. In compliance to the said judgment, the petitioner herein was ousted and in his place said Hilal Ahmad was appointed. In one more development i.e. one Mohammad Arif Ganai who figured amongst the selected 86 RBA category candidates, as such, was offered appointment but later on it had surfaced that he had played fraud by producing a fake RBA certificate. The said position was examined by the respondents and vide Govt. order No.131-PDD of 2011 dated 19.4.2011, the appointment of said Mohammad Arif Ganai was declared void ab initio. The operative part of the said order reads as under:-
Now, therefore, appointment of Shri Mohammad Arif Ganai S/O Ghulam Nabi Ganai R/O Verinag as Junior Engineer Grade II is hereby declared as void and shall be deemed to have been terminated ab initio. The salary drawn by him shall be recovered from him and deposited into the Treasury under intimation to this Department.
5. This gave cause to the petitioner to file the instant petition wherein it is projected that since the petitioner figured at serial No.1 of the wait list under category RBA, in case Mohammad Arif Ganai would not have played fraud, he would have figured at serial No.86 in order of merit in the select list and would have been offered appointment along with other appointees in the year 2009 itself. In the petition it has been prayed that the order No.41-PDD of 2011 dated 9.2.2011 in so far it pertains to the petitioner may be quashed or in alternative respondents may be directed to issue order of appointment in favour of the petitioner as against the post which was held by Mohammad Arif Ganai.
6. Considered.
7. So far as first prayer is concerned, same cannot be granted because Govt. order N.41-PDD of 2011 dated 9.2.2011 has been passed in compliance to the judgement dated 31.12.2010 passed by Division Bench of this Court in LPA No.155/2010.
8. The question which now arise for consideration is as to whether petitioner can be offered appointment against the post which was held by Mohammad Arif Ganai fraudulently. In this connection, learned counsel for the respondents would contend that the wait list was to remain valid for a period of one year from 22.8.2009 when, upon selection, vide Govt. order No.175-PDD of 2009 dated 22.8.2009 appointments were made. The contention is without substance because in case Mohammad Arif Ganai would not have produced a fake RBA certificate, the petitioner would have figured at serial No.86 of the select list and would been appointed, as such, he would have figured in the select list not in the wait list. The position of fraud as was played by Mohammad Arif Ganai got exposed and consequential orders were passed on 19.4.2011, the operative part of which stand quoted hereinabove. As a result thereof, petitioner had to figure at serial No.86 in the select list. Pendency of the lis coupled with the fact of fraud played and its exposition and consequential order dated 19.4.2011 would not in any manner deprive the petitioner of his guaranteed right, otherwise it shall be a travesty of justice to deny him the right which so far has been defeated in view of production of fake RBA certificate by Mohammad Arif Ganai who otherwise at all would not have figured in the select list.
9. Learned counsel for the respondents next contended that the post as has become available, in view of termination of Mohammad Arif Ganai, cannot be offered to the petitioner because such submission was made by the counsel for the petitioner in LPA No.155/2010 which was not allowed but this submission has no substance because in the judgment rendered by the Division Bench of this Court dated 31.12.2010 prayer for consideration was declined on the ground that in view of the settled legal position consideration of a candidate for his appointment against future vacancy is not permissible. There can be no quarrel on the said legal position and the Division Bench judgment has to be followed but here position is slightly different i.e. the vacancy as was held by Mohammad Arif Ganai on his termination on the basis of fraud played by him while getting selected and appointed on the basis of a fake RBA certificate, cannot be termed to be a future vacancy. It is a vacancy which existed for which candidates competed and the petitioner would have figured in the select list instead in the wait list but for the fraud played by Mohammad Arif Ganai in getting appointment on the basis of a fake RBA certificate.
10. The wording employed in the order of termination dated 19.4.2011 would date back to the date of selection as made pursuant to above referred advertisement notices. So such a vacancy cannot be termed to be a future vacancy, that too in light of order of termination of Mohammad Arif Ganai dated 19.4.2011. With the ab initio termination of Mohammad Arif Ganai petitioner has every right of appointment against the said vacancy as having undergone a selection process which culminated in his selection and figured, in order of merit, in the wait list at serial No.1.
11. Petitioner earlier had been appointed but later on ousted in view of the judgment of the Division Bench on the ground that Hilal Ahmad Dar was superior in merit who had to figure at serial No.86 but for direction for reservation of the post. That wrong committed by the respondents has been rectified and the petitioner had been ousted after rendering two years service. The petitioner should have been offered appointment in place of Mohammad Arif Ganai when his appointment was declared as void ab initio.
12. Learned counsel for the respondents again projected that petitioner has been considered and on consideration his claim for appointment as against the vacancy which had accrued due to termination of Mohammad Arif Ganai, was found without merit and was rejected vide Govt. Order No.316-PDD of 2011 dated 24.10.2011, the said order has not been challenged.
13. Learned counsel for the petitioner rightly pointed out that the said consideration order was passed in compliance to the interim direction passed by this Court while considering CMP filed alongside this writ petition on 03.06.2011 and in compliance case of the petitioner had been considered and rejected on the grounds which are projected in the reply as filed by the respondents in the writ petition.
The grounds as projected in the reply are untenable, when it is so, the order of consideration which was outcome of compliance to interim direction, automatically becomes irrelevant so is not required to be challenged.
14. In the upshot, the only irresistible conclusion possible in the peculiar facts and features, in-keeping with the cannons of justice is that the petitioner deserves and shall be considered by the respondents at their respective levels within six weeks irrespective of the consideration order issued vide Govt. Order No.316-PDD of 2011 dated 24.10.2011, for appointment as against the vacancy which was fraudulently held by Mohammad Arif Ganai, whose appointment stand terminated ab initio vide Govt. Order No.131-PDD of 2011 dated 19.4.2011.
15. Petition accordingly succeeds, as such, shall stand disposed of along with connected CMP.
(Mohammad Yaqoob Mir) Judge Srinagar 10.04.2013 Mohammad Altaf