Manu Ji Saproo vs J&K Handicrafts (Autonomous Bodies) on 28 November, 2019

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Jammu & Kashmir High Court - Srinagar Bench

Manu Ji Saproo vs J&K Handicrafts (Autonomous Bodies) on 28 November, 2019

1. By way of this writ petition, the petitioner has sought quashing of selection of respondent no. 4 made on 3rd December, 2004 as Chief Designer and quashing of Rule 51 of the J&K Handicrafts Rules. The petitioner also seeks a direction to the official respondents to provide 50% reservation of in-service candidates as Chief Designers.

2. By the order dated 17th December, 2004, it was directed that the appointment of respondent no. 4 shall be subject to the outcome of the writ petition.

3. The objections dated 3rd April, 2006 stand filed by the respondent no.4 wherein it is stated as follows:

"2. That answering respondent satisfied the requirement as provided in the advertisement notice in as much as she has a Degree in Fine Arts from a recognized university i.e. Jamia Milia Islamia, New Delhi and has also five years' experience in Handicrafts designs and was having the prescribed age, as such her eligibility was considered by the public service commission and accordingly she was allowed to participate in the selection process along-with petitioner. Merit of the petitioner and answering respondent was evaluated and compared and the experts have come to the opinion that the answering respondent is having better merit as against petitioner including that of the candidates who participated in the selection process, as such, their judgment cannot be SHAMEEM HAMID MIR questioned in the writ petition nor the Hon'ble court can replace or 2019.11.30 12:23 I attest to the accuracy and integrity of this document Page 2 of 6 substitute its own opinion regarding the merit of the selected candidate. As such, none of the rights fundamental or otherwise of the petitioner stands violated.

4. That the petitioner is estopped under law of estoppel and waiver to challenge the selection and appointment of the respondent as he has not at any point of time challenged the eligibility of the answering respondent for the post of Chief Designer when the eligibility was determined by the Public Service Commission nor he filed any memo against the answering respondent with any authority questioning the qualification/experience of the answering respondent on any account. Therefore, after selection and appointment he is estopped to question the same when he has failed to obtain the merit in the selection process. Therefore, it seems to be an after through, as such under the Doctrine of Estoppel and Waiver petitioner cannot question the qualification and experience of the answering respondent, therefore, contention of the petitioner is misconceived and liable to be dismissed.

5. That the answering respondent is fully eligible as per the advertisement notice as she is having a degree in Fine Arts and there was no requirement for having 5 years' experience in Handicrafts Design as alleged by the petitioner, that is why the application of the answering respondent was accepted and entertained by the Public Service Commission and the petitioner as well as answering respondent and other candidates participated in the selection process. Therefore, contention of the petitioner that the answering respondent is lacking five years' experience in Handicrafts Design is misleading as such the writ petition on this court is not maintainable and the same is liable to be dismissed. It is submitted that the requirement of eligibility clause regarding the qualification is as under:

                      i) a)      Degree in Fine Arts
                           b)    Degree in Commercial Arts
                           c)    Degree i.e. B.S., B.A., B. Com etc. or like degrees, with

Diploma in handicrafts design, if diploma is from recognized university/institute.

ii) Degree in B.Sc., B.A, B. Com etc. plus Diploma in commercial arts from recognized university/Institute with 5 years' experience in Handicrafts.

It is submitted that the Degree in Fine Arts and a simple degree in any SHAMEEM HAMID MIR other subject other than arts and commercial Arts are two distinct 2019.11.30 12:23 I attest to the accuracy and integrity of this document Page 3 of 6 disciplines, therefore, if a candidate is having a degree or graduation or post-graduation other than in the fine arts and Commercial Arts, he or she is required to have Diploma in Fine Arts or Commercial Arts from any recognized University/Institute with five years' experience in Handicrafts designs but if a candidate has post-graduation or graduation in Fine Arts/Commercial Arts, he is not required to have diploma or five years' experience in Handicrafts. It is pertinent to mention that a candidate who does not have the Degree in Fine Arts or Commercial Arts, is required to have a Diploma and a practical experience in Handicrafts Design of 5 years then alone he can become equal to degree holder in Fine Arts. Therefore, contention of the petitioner in this behalf that 5 years' experience in Handicrafts is required for a candidate having degree in Fine Arts or Commercial Arts, is totally misplaced, therefore contention of the petitioner as projected in the writ petition is totally unwarranted, misleading as such on this account also the writ petition is not maintainable and is liable to be dismissed.

6. That the petitioner was in-eligible for appointment to the post of Chief Designer as he was more than 40 years of age required under the Statute, therefore, was ineligible to seek consideration, as such, he cannot question the selection/appointment of eligible candidate nor can seek any relief, as such the present writ petition is misconceived and is liable to be dismissed.

Para wise reply

11. In reply to para 10(a) it is submitted that the petitioner has not put up true and correct facts and made suppression in order to mislead the Court. The answering respondent had obtained Degree in Home Science from Kashmir University in the year 1990 and thereafter Degree in Fine Arts in 1994. Thereafter the answering respondent worked as Artist Trainee from June 1994 to December, 1994 in Flex Industries Ltd., New Delhi Noida. The answering respondent was a Computer Trainee from February 1995 to May 1995 with Creative Studio, New Delhi. The answering respondent was also Designed in designing of Kashmir Craft Support in organizing exhibitions from June 1995 to October 1998 in Zanana Dastakari, Production Centre, Khanyar Srinagar, as such had experience of designing of handicrafts for 3 years and 4 months. Answering respondent was also appointed as Art Teacher on part time basis in Green VBalley School Buchpora. In SHAMEEM HAMID MIR 2019.11.30 12:23 I attest to the accuracy and integrity of this document Page 4 of 6 addition, the answering respondent discharged duties in Zanana Dastakari Production Centre Khanyar. The answering respondent thereafter was appointed in the College Education as Art Teacher in teaching Art to B.ed. students and also for organizing workshop of stitching from October 1998 to July 2001 in Government College of Education M.A. Raod, Srinagar, which was a full time adhoc job. Thereafter answering respondent was appointed as Designer for Willow Work, Chain Stitching, Tapestry etc., in the school of Designs of the Handicraft Department J&K Government from July 2001 till of the Handicraft Department J&K Government from July 2001 till December 2004. Thus the answering respondent had in all experience as Designer in Handicraft more than 5 years from Zanana Dastikari Production Centre Khanyar as well as from the school of Designs Handicrafts Department J&K Government and as such was eligible. Therefore, contention of the petitioner is factually incorrect. The answering respondent was found suitable because she was having more suitability as Designer in the Handicrafts and was having otherwise requisite qualification as she was Graduate in Home Science and Fine Arts. Therefore, was having two Degrees and requisite Degree in Fine Arts. As far as experience is concerned, the answering respondent submits that she has more than five years' experience in the field of Handicraft Designing, therefore, she was having the requisite qualification and experience.

12. in reply to para 10 (b) it is submitted that the contention of the petitioner does not pertain to the answering respondent as it pertains to the respondent No. 2. However, it is submitted that the petitioner cannot question the selection process after he subjected himself to the said process and failed to obtain the desired results. If the petitioner was aggrieved of any manner or method of selection, he had an occasion to challenge the same before the Hon'ble court much earlier before the initiation of selection process. However, a detailed reply in this behalf has been submitted by the answering respondent in writ petition No. 1617/2004 titled Noushad Hussain Wani V. J&K PSC a nd others. The reply made therein by the answering respondent in para 99 of the para- wise reply be taken as reply to the present para as well.

13. in reply to para 10(c), it is submitted that the petitioner cannot question J&K Handicraft rules which provide 100% direct recruitment to the post of Chief Designer and the petitioner having participated in SHAMEEM HAMID MIR 2019.11.30 12:23 I attest to the accuracy and integrity of this document Page 5 of 6 the selection/appointment process of the same but having failed to obtain selection/desired result, he is estopped under law to question the quota fixed for direct recruitment under the relevant rules it is pertinent to mention that the care has been taken of the in-service candidates as they have been granted relaxation in their age to the extent of 40 years as is mentioned in the advertisement notice itself, though being ineligible and sought consideration for appointment to the post of Chief Designer. Therefore, contention of the petitioner is misleading and contradictory. However it is for the respondent No. 1 to 3 to reply the said part. It is further submitted that as per the Recruitment Rules the petitioner has a chance of appointment to the post of Senior Designer and then he can aspire to become Chief Designer as per rules by resorting to direct recruitment. Therefore, recruitment rules does not deprive the chance of promotion of the petitioner at all rather takes care of the same. It is submitted that the right of the promotion is not a fundamental right but a right of consideration for promotion is a fundamental right. As the petitioner has a right of consideration for the post of Chief Designer and has also been considered for the post of Chief Designer under direct recruitment therefore his fundamental right has been violated rather has been complied with. Thus the contention of the petitioner in this behalf is misleading; It is submitted that as the petitioner has subjected himself to the process of selection, he is estopped to question the same after having failed to obtain the requisite merit in the selection process. Further his right of consideration has been adhered to by giving him sufficient relaxation in age to seek consideration. Therefore, the petitioner fundamental right of consideration for his higher post has not been denied at all.

14. in reply to para (d) it is submitted that this para does not pertain to the answering respondent but to the Public Service Commission but so far as answering respondent is concerned, it is submitted that 50 marks reserved for interview/viva voce has been divided by the Public Service Commission as per their rules of selection. Therefore, contention of the petitioner seems to be factually incorrect and without any basis."

4. The J&K Public Service Commission/respondent no.2 has filed the objections dated 18th July, 2007 (page 96).

SHAMEEM HAMID MIR 2019.11.30 12:23 I attest to the accuracy and integrity of this document Page 6 of 6

5. The respondent nos. 1 to 3 have also filed objections dated 20th September, 2005 (page 91) to the maintainability of writ petition wherein it is stated as under:-

"7. In reply to para 7, it is submitted that the Jammu and Kashmir Handicrafts (Gazeted) Service Recruitment Rules, 1978 have not been amended as far as the method of recruitment of Chief Designer is concerned which is at present 100% by direct recruitment. The proposal, if at all, with Respondent no.1 about the amendment of Handicrafts (Gazetted) Recruitment Rules does not amount to amendment in the rules.

8. That in reply to the contents of para No.8, it is stated that on the recommendation of Jammu & Kashmir Public Service Commission sanction was accorded to the temporary appointment of Respondent No.4 against the post of Chief Designer, School of Designs in Handicrafts Department in the pay scale of Rs.10,000-325-15200 and was allowed to join on probation for a period of two years. The grounds (a, b & c) of para 8 of the writ petition are baseless and false/frivolous and have no weight in view of the law/rules annunciated by the Government in this behalf."

6. It is pointed out by Mr. Showkat Ahmad Naqashbandi, learned AAG appearing for the official respondents, that the respondent no.4 has continued as Chief Designer for the last fourteen years. It is further submitted that the petitioner has never participated in the selection process and as such, is not entitled to grant of any relief.

7. There was no appearance on behalf of petitioner when the matter was called out on 25th October, 2019. Adverse orders were deferred in the interest of justice.

8. This writ petition is pending for last more than 15 years.

9. None appears for the petitioner even today when the matter is called out. 10. Even the particulars of the case and the names of counsel for the parties are mentioned correctly in the cause list

11. In view thereof, writ petition is dismissed.

(GITA MITTAL) CHIEF JUSTICE Srinagar 28.11.2019 Shameem H. SHAMEEM HAMID MIR 2019.11.30 12:23 I attest to the accuracy and integrity of this document

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