Jammu & Kashmir High Court - Srinagar Bench
Dr. Syed Nisar Ahmad & Anr vs State And Ors on 13 November, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Page 1 of 18
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Case no: Date of decision: 13.11.2018
i) SWP no.499/2016 with IA no.01/2016
C/w CPSW no.201/2018
And
ii) SWP n.531/2016
C/w CPSW no.970/2017
i) Dr. Syed Nisar Ahmad & anr. v State of J&K & anr.
ii) Dr. Mohammad Hayat Bhat v State of J&K & anr.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearance:
For Petitioners: Mr. Salih Pirzada, Advocate.
For Respondents: Mr. Shah Aamir, AAG, for no.1;
Mr. Azhar-ul-Amin, Advocate, for PSC.
Whether approved for reporting: Yes/No
1. These two clubbed writ petitions, fundamentally, hinge on the claim of the petitioners that once a post is advertised, setting out the eligibility criteria, the selecting authority is estopped from re-advertising the post prescribing a new eligibility criteria on the basis of amended Rules of Recruitment. Concomitantly, an allied plea is that a right has accrued to the petitioners to a consideration in accordance with the eligibility criteria notified in the initial advertisement notice which cannot be taken away by superimposition of new conditions of eligibility, and that the selections have to be concluded and made in accordance with the eligibility criteria as existed on the date of issue of the first advertisement notification as Page 2 of 18 were mentioned therein and, that too, restricting the selection process to the candidates who had offered their candidature in response to the initial advertisement notice. The relevant facts are noted hereunder.
2. The Jammu and Kashmir Public Service Commission (hereafter, the Commission) issued Notification no.09-PSC of 2011 dated 02.06.2011, notifying certain posts of Lecturers in Super Specialities in Government Medical Colleges of Jammu and Srinagar, including in the disciplines of Endocrinology, Clinical Haematology and Medical Oncology. The last date for receipt of application forms was notified to be 04.07.2011 which was also stipulated to be the date for determining the eligibility.
3. Petitioners in SWP no.499/2016, namely, Dr. Syed Nisar Ahmad and Dr. Afaq Ahmad Khan, are stated to have offered their candidature for the posts of Lecturers in Medical Oncology and Clinical Haematology, respectively; whereas the petitioner in SWP no.531/2016, Dr. Mohammad Hayat Bhat, is stated to have applied for the post of Lecturer Endocrinology.
4. Subsequently, the Commission issued Notification no.58-PSC (DR- P) of 2012 dated 25.09.2012, whereby, in supersession of the earlier Notification no.09-PSC of 2011 dated 02.06.2011, it invited applications on prescribed form for the posts of Lecturer in Super Specialities in Government Medical Colleges, Jammu/Srinagar as per the category-wise break up given therein. This notification did not notify the posts of Lecturers in all the disciplines those had been mentioned in the earlier notification dated 02.06.2011, particularly the disciplines of Endocrinology, Clinical Haematology and Medical Oncology. Notification no.58-PSC (DR-P) of 2012 dated 25.09.2012, however, bore a Note that the rest of the disciplines notified vide Notification no.09-PSC Page 3 of 18 of 2011 dated 02.06.2011 shall be re-notified as and when clarification was received from concerned Administrative Department.
5. Four years later, the Commission issued Notification no.03- PSC(DR-P) of 2016 dated 19.02.2016 inviting on-line applications for posts of Lecturer in certain disciplines in Super-Speciality Hospitals, Government Medical Colleges, Jammu/Srinagar, including the disciplines of Endocrinology, Clinical Haematology and Medical Oncology. The last date for filing of online applications was notified to be 23.03.2016/24.03.2016.
6. Petitioners in the first of these two writ petitions, viz. SWP no. 499/2016, have filed the writ petition with the prayer to quash the Commission's Notification no.03-PSC(DR-P) of 2016 dated 19.02.2016 and for a direction to the respondents to adhere to the conditions of eligibility of the first and the second advertisement notice for selection to the post of Lecturer in the Super Speciality disciplines of Medical Oncology and Clinical Haematology in Government Medical College, Srinagar. Exactly, similar prayers have been made in the second of these two writ petitions, filed by Dr. Mohammad Hayat Bhat, except to the extent that the discipline mentioned is Endocrinology.
7. The two writ petitions proceed on identical narratives as to facts and seek to raise identical issues. Therefore, I need not set out the facts narrated in the two writ petitions separately. For the sake of brevity, I would broadly state the case of the petitioners as transpires from the two writ petitions.
8. The specific case of the petitioners is that in terms of the Note appended to the second Notification no.58-PSC(DR-P) of 2012 dated Page 4 of 18 25.09.2012, the respondents were obliged to re-notify the posts on the same conditions as to age, qualifications and experience, as had been stipulated in the first Notification no.09-PSC of 2011 dated 02.06.2011, and that it was not open to them to issue a fresh advertisement notice prescribing fresh eligibility criteria. According to the petitioners, the word 're-notify' did not import fresh advertisement, but meant notifying the posts denovo on the same terms of eligibility. It is stated that the process necessitated only re-notification of already advertised posts which would relate back to the conditions provided in the basic advertisement notice. According to the petitioners, the fixation of fresh conditions and eligibility criteria constituted fresh advertisement instead of re-notification. This, according to the petitioners, was likely to expose them to unhealthy competition and prejudice them as a result of fresh process. It is, however, admitted by the petitioners that, as expressed in the second notification, the process initiated under the first advertisement notice was interrupted on account of seeking clarification from the Administrative Department. It is averred that superimposition of conditions over the existing conditions has the effect of taking away the rights of the petitioners and exposing them to unfair competition and, at the same time, instil undue advantage to the candidates who were not qualified to compete at the initial stage.
9. It is further the case of the petitioners that in the event the respondents are permitted to abandon the process and to proceed with fresh advertisement, the right of consideration, that has accrued to the petitioners, shall be eliminated, and that the respondents are bound by the terms and conditions of the advertisement notice which, according to the petitioners, did not reserve any condition for recall or amendment of any of the conditions arbitrarily.
Page 5 of 1810. It is stated that fresh advertisement notice is beyond the scope of re- notification and that the innovation brought about in the process of selection is unwarranted and unconscionable against the petitioners who have been acting on a legitimate expectation to participate in the selection process, but are being put to hostile discrimination and vagaries of unhealthy competition on intelligible differentia. According to the petitioners, such amalgamation of candidates under the selection process, contemplated under the impugned notification, is constitutionally impermissible under Article 14 of the Constitution.
11. It is further the case of the petitioners that the vacancies those existed upto the date of first notification could not be subjected to fresh selection and the candidates who were not eligible at the material date have no right of consideration. According to the petitioners, the respondents have orchestrated the impugned notification to siphon in ineligible candidates in the garb of fresh advertisement notice which cannot give leverage to the candidates acquiring eligibility after the cut off dates stipulated in the first advertisement notice. In this regard, it is the specific case of the petitioners that they were the only eligible candidates available and there was no reason for interruption of selection process on the pretext of seeking clarification from the Administrative Department or otherwise.
12. It is astonishing as well as unfortunate to note that respondent no.1, i.e., the Health and Medical Education Department have, in their reply, sought to shift the onus on the PSC, inasmuch as, referring to the fact of reference of the vacancies in question to the PSC, it is stated that till date no recommendations for appointment of any suitable candidate have been received by the Department from the Commission, and that the answering Page 6 of 18 respondent has completed its process in every respect and it was for the Commission to expedite the process of selection and furnish the list of selected Super Speciality doctors for their appointment so as to make the departments function smoothly across the State. While stating so, it is averred that the Commission sought certain clarifications regarding experience prescribed viz. Special Training, Senior Resident-ship or Registrar-ship which culminated into amendment of the Recruitment Rules for these posts vide Government order no.181-HME of 2011 dated 15.03.2011. Further clarification sought resulted in issuance of Government order no.72-HME of 2014 dated 30.01.2014 modifying the earlier Government order no.181-HME of 2011 dated 15.03.2011.
13. The Commission in their reply have, inter alia, stated that on reference of the posts in question to it by the Government and after notifying the posts, inviting applications from eligible candidates for direct recruitment, the Commission, on scrutiny of the matter noticed that there was ambiguity in qualification / experience prescribed in the Recruitment Rules. As such it sought clarification from the Health and Medical Education Department on three points quoted in para no.1 of the reply. Since, despite a series of communications seeking clarification, it did not receive any response from the Health and Medical Education Department, the Commission returned the posts to the Department vide communication no.PSC/DR/HME/29/2011 dated 20.06.2012. It is, however, stated that, meanwhile, vide Government order no.163-HME of 2012 dated 02.03.2012, the upper age limit of doctors with Super Speciality qualifications for the first-time-recruitment in the Super Speciality Hospitals of Jammu / Srinagar was fixed as 52 years. Furthermore, vide Government order no.453-HME of 2012 dated Page 7 of 18 16.07.2012, modification to Schedule II of the Recruitment Rules was made, deleting, ab initio, the provision of teaching experience for the candidates possessing 03 years' recognised Degree of DM/MCH. It is stated that the posts in question were again referred to the Commission by the Health and Medical Education Department vide their letter no. ME/GN/95/2011 dated 03.08.2012 and that, as a result of the above clarifications, posts in the disciplines of Plastic Surgery, Paediatric Surgery, Neuro Surgery, Urology, Neurology, Nephrology, Cardio Vascular & Thoracic Surgery, Cardiology, and Plastic & Reconstructive Surgery were again advertised vide notification no.58-PSC(DR-P) of 2012 dated 25.09.2012.
14. So far as the remaining disciplines were concerned, which included the disciplines in which the petitioners had offered their candidature, it is stated that the process could not be proceeded with as the issue of 02 years' Special Training Certificate Course and one year's training programme etc. mentioned in the experience part of various disciplines in the Schedule-II of Government order no.181-HME of 2011 dated 18.05.2011 remained undecided. In this regard, the Commission, after conducting a detailed exercise, is stated to have sought clarification from the Department as to whether only DM/M.Ch/DNB qualification was to be covered under the Government order no.163-HME of 2012 dated 02.03.2012 or the candidates possessing special training in relevant subject as per standing rules were to be given benefit of upper age and further who shall be the authority to clarify the genuineness of special training, if any, possessed by the candidates for the posts of Lecturer, Super Speciality. As a result of this exercise, the Health and Medical Education Department issued another Government order bearing no. 72- Page 8 of 18 HME of 2014 dated 30.01.2014 deleting the provision of 2 years' Special Training in a particular speciality. According to the Commission, though the above clarification did not cover all the issues which had been raised by it with the Department, yet it decided to go ahead with the recruitment process for the posts where no clarification was further required. Accordingly, vide notification no.03-PSC-(DR-P) of 2016 dated 19.06.2016, it advertised the posts of Lecturers in six other disciplines, which included the disciplines of Endocrinology, Clinical Haematology and Medical Oncology.
15. It is asserted by the Commission that advertisement of posts by a Selection Body does not create an indefeasible right in a candidate to claim completion of the selection process according to the terms and conditions set out in the advertisement notice and/or to say that advertisement once issued cannot be withdrawn even for a good reason. It is also asserted that widening the area of competition does not violate any right of a competing candidates, muchless his right to consideration, and that the respondent has an obligation to choose the best candidates for the posts by widening the area of consideration zone for the selections in question.
16. It is also stated by the Commission that the petitioners in both these petitions, responding to the impugned advertisement notice, have duly applied for their consideration in their respective disciplines and, therefore, they are estopped from challenging the advertisement notice in question.
17. It may be mentioned here that the details of the facts stated by the Commission in their reply, as briefly narrated above, are supported by the Page 9 of 18 contemporaneous record photocopies whereof were produced before the Court for perusal at the final hearing of these petitions.
18. I heard learned counsels for the parties and considered the matter. The learned counsels for the parties have stuck to their respective stands and versions as stated by them in their respective pleadings.
19. First and the foremost, it is observable that the petitioners have not challenged the advertisement notification no.58-PSC(DR-P) of 2012 dated 25.09.2012 which was issued in supersession of the first advertisement notification no.09-PSC of 2011 dated 02.06.2011. Though the aforesaid second notification did not mention/advertise the posts of Lecturers in all the disciplines which had been advertised earlier by the first notification, yet the said second notification dated 25.09.2012, issued in supersession of the first notification, admittedly and specifically, bore a Note immediately after mentioning the re-advertised posts to the effect that rest of the disciplines notified vide notification no.09-PSC of 2011 dated 02.06.2011 shall be re-notified as and when clarification was received from the concerned Administrative Department. This note appended to the second advertisement notice, unambiguously, was in supersession of the earlier notification dated 02.06.2011 vis-a-vis and to the extent of the left over disciplines, which included the disciplines of Endocrinology, Clinical Haematology and Medical Oncology. The first notification no.09-PSC of 2011 dated 02.06.2011 to the extent of the left over disciplines thus stood superseded for all practical purposes, with the lone rider mentioned in the note, which was that the same shall be re-notified as and when clarification was received from the concerned Administrative Department.
Page 10 of 1820. The fact that the posts were returned by the Commission to the concerned Department is a sufficient proof that it had decided to withdraw the advertisement notification dated 02.06.2011 and, in any case, thereafter, in absence of any vacancy left with it, the Commission could not have proceeded with the process pursuant to the advertisement notice in question. In fact, the Commission vide its communication no.PSC/DR/H&M Edu/29/2011 dated 24.03.2012, referring to its earlier communications dated 02.08.2011, 09.09.2011, 13.09.2011 to the Department followed by DO no.PSC/Chrmn/2011-SS dated 23.12.2011 from its Chairman to the address of Minister for Medical Education, had informed the Commissioner/Secretary to Government, Health & Medical Education Department that if the requisite clarification sought by it was not received within the stipulated time, the matter would be placed before the Commission for withdrawal of notification no.09-PSC of 2011 dated 02.06.2011. Thereafter, by communication no.PSC/DR/H&ME/29/2011 dated 20.06.2012, the Commission returned 60 (17 and 43) posts of Lecturers in various disciplines in Super Specialities in Government Medical College, Jammu and Srinagar, respectively, with the request to re- refer these posts after the matter regarding clarifications sought on the subject was resolved. The body of the communication written in this regard by the Deputy Secretary, PSC, to the Department is quoted hereunder:
"I am directed to refer your letter No. ME/Gaz/95/2011 dated 16.03.2011 regarding the subject captioned above and to inform that since the Health and Medical Education Department has failed to meet out the clarifications as sought vide this office letters of even number dated 02.06.2011, 02.08.2011, 09.09.2011 and D.O. letter from Hon'ble Chairman dated 23.12.2011 followed by reminders dated 24.03.2012 and 16.04.2012, the Commission has now decided to return all the Page 11 of 18 posts of Lecturers in Super Specialities in Government Medical College, Jammu/Srinagar.
I am accordingly directed to return herewith 17 and 43 posts of Lecturers in various disciplines in Super Specialities in Government Medical College, Jammu and Srinagar respectively with the request to re-refer these posts after the matter regarding clarifications sought on the subject by the Commission is resolved."
21. It is, thus, established that the Commission had returned the posts and had decided to withdraw the advertisement notification which fact was informally published for information of the candidates in terms of Note-1 appended to the second notification dated 25.09.2012 stating that the posts shall be re-notified as and when clarification was received from the Administrative Department concerned. Looking at the matter from any angle, it is established that after issuance of notification dated 25.09.2012, the first notification dated 02.06.2011 would not, and did not, exist or survive. It could be revived only if the Note appended to notification dated 25.09.2012 was, for any legally tenable reason, quashed, but the petitioners, as already said, have not challenged the said notification to the extent of the said Note for reasons best known to them. However, one inference from such conduct of the petitioners is writ large, which is that they have not been aggrieved of the said second notification even to the extent of the Note appended thereto.
22. Above being the factual and the legal position vis-a-vis the matter in issue, the petitioners cannot place any reliance on the terms and conditions of the Notification no.09-PSC of 2011 dated 02.06.2011, nor can they claim that once the posts were advertised, the selectiing authority was estopped from re-advertising the posts prescribing a new eligibility criteria on the basis of amended Rules.
Page 12 of 1823. It was argued with some vehemence by the learned counsel for the petitioners that Note-1 appended to the second advertisement notification dated 25.09.2012 only said that the rest of the disciplines shall be re- notified. According to the learned counsel the re-notification would relate back to the conditions of eligibility as had been prescribed in the first notification. He submitted that it was, therefore, not open to the respondents to issue a fresh advertisement notice imposing new conditions of eligibility.
24. It be seen that the word re-notify does not occur either in the Webster's Dictionary or the Oxford Dictionary. However, 'notify' as verb intransitive means to give notice to; inform (2) to give information; make known [The New International Webster's Comprehensive Dictionary of the English Language, Deluxe Encyclopaedic Edition, Trident Press International 2004 Edition). According to the Oxford Dictionary, 'notify' means to inform, typically in a formal or official manner [Concise Oxford Dictionary, Tenth Edition (Indian Edition)]. The prefix 'Re', according to the very same Dictionaries means: again : anew; and once more: afresh :
or anew. So re-notify would mean: to again give notice to; inform anew, or to make known anew or again; to inform in an official manner anew, afresh or once more.
25. Keeping in view the fact that the Note appended to the notification said that such re-notification would be made after clarification was received from the Administrative Department, it connotes that such clarification, as would be made, would necessarily form part of the fresh or new notification. Once that be so, the notification that was to be issued afresh, once again, anew would necessarily lay down new conditions of eligibility based on such clarifications made by the Government in the Page 13 of 18 Health and Medical Education Department. Notice of this fact had, thus, been given by the Commission to the candidates well in advance in terms of the Note appended to the second notification. In that view of the matter, the word "re-notify" by no standards, in the facts and circumstances of the case, would mean re-notification of the posts on the same terms and conditions of eligibility as had been prescribed in the first notification; anew, means in a new or different form.
26. Concomitantly and, as a necessary corollary, the petitioners cannot claim that once the posts were advertised, setting out the eligibility criteria, the selecting authority was estopped from re-advertising them prescribing a new eligibility criteria on the basis of amended Rules. The argument raised in this behalf is misconceived and untenable.
27. Further the argument that it was not open to the respondents to issue a fresh advertisement notice prescribing fresh eligibility criteria on the basis of amended Rules is noted only to be rejected.
28. The contention that the impugned notification superimposed any condition on the existing conditions of eligibility is equally dehors any merit, for, after issuance of the second notification, appending Note-1 thereto, there was no subsisting condition of eligibility vis-a-vis the post prescribed by the Commission, nor were, nor even the posts were available with the Commission till 03.08.2012.
29. As regards the contentions raised on behalf of the petitioners that issuance of fresh advertisement notice on fresh conditions of eligibility was likely to expose them to unhealthy competition and would prejudice them as a result of fresh process or that fresh conditions of eligibility would instil undue advantage to the candidates who were not qualified to Page 14 of 18 compete at the initial stage or that fresh advertisement has the effect of eliminating the right of consideration that had accrued to the petitioners, and that the petitioners are being put to hostile discrimination and vagaries of unhealthy competition on intelligible differentia are all grounds of insubstantial nature.
30. To deal with all such arguments it would suffice to refer to the judgment of a Coordinate Bench of this Court in Muzaffar Rasool Mir v State of J&K, 2015 (2) JKJ 698 [HC], cited at the Bar and relied upon by Mr. Azhar-ul-Amin, learned counsel for the Commission.
31. In that case the Commission had invited applications by notification no.09-PSC(DR-P) of 2013 dated 23.05.2013 from eligible candidates to fill up 1289 vacancies of Assistant Professor in different disciplines in various Government Degree Colleges of the State. The selection process was to be undertaken in accordance with the J&K Education (Gazetted) College Services Recruitment Rules, 2008 notified vide SRO 423 of 2008 dated 23.12.2008 read with Government order no.252-HE of 2012 dated 30.05.2012, 254-HE of 2013 dated 21.05.2013 and communication no.Coll/Coord/774/2013 dated 22.03.2013 issued by the Higher Education Department. In terms of SRO 423 of 2008 dated 23.12.2008 a candidate with M. Phil Degree was eligible for the advertised position, even if he had not qualified National Eligibility Test / State Level Eligibility Test / State Eligibility Test (NET / SLET / SET). The Government order no.252- HE of 2012 dated 30.05.2012 deleted M. Phil from the relevant para of Schedule II of the Rules of 2008. Resultantly, a candidate with M. Phil Degree was not eligible for the post unless he had qualified NET/SLET/SET. The Commission, accordingly, deleted M. Phil Degree from the prescribed qualification in the Advertisement Notification dated Page 15 of 18 23.05.2013. This notification came to be challenged before the Court to the extent it excluded aspirants with M. Phil Degree and without NET/SLET/SET for the advertised posts on the ground that as the Rules of 2008 were made in exercise of powers under Section 124 of the Constitution of Jammu and Kashmir, it was not open to respondent no.1 therein to amend the Rules by Government order. That writ petition came to be allowed, quashing the Government order which deleted M. Phil Degree from the relevant Schedule. The Government, thereafter, vide SRO 124 of 2014 dated 21.04.2014 substituted Schedule I and II of the 2008 Rules. In terms of substituted Schedules exemption from NET/SLET/SET was restricted to candidates having Ph. D Degree in accordance with UGC Regulations, 2009, and such exemption was no more available to a candidate with M. Phil Degree. This substitution of Schedules I and II of the Rules, resulted in issuance of fresh Advertisement Notification dated 29.05.2014 in supersession of the earlier notification dated 23.05.2013 by the Commission. This fresh advertisement notification was challenged by the candidates possessing M. Phil Degrees on, inter alia, the grounds akin to the ones taken by the petitioners herein. In paras 15 and 16 of the judgment, the Coordinate Bench of this Court observed as under:
"15. It is well settled law that Advertisement Notice does not confer any right on a candidate who responds to the notice to be considered for advertised post, to ask for finalization of the selection process or a right to oppose withdrawal of the post advertised or resist the abandonment of the selection process. The advertisement is nothing but a notice to the general public regarding availability of advertised vacancies so as to enable the candidates satisfying the eligibility criteria to submit their applications. It signifies the intention of the Selection Body to receive applications for the advertised post and initiate the selection process. It does not vest right for appointment in the Page 16 of 18 candidate(s) who respond to the Advertisement Notice. It is equally well settled that the Selection Body can at any time withdraw the Advertisement Notice or abandon the selection process or withdraw some of the advertised posts and decide to restrict selection to only some of such posts. A candidate applying for the advertised post is not clothed with right to restrain the Selection Body from withdrawal of Advertisement Notice or abandonment of the selection process.
16. Furthermore, the Competent Authority would be well within its powers to change eligibility criteria after the advertisement is issued and withdraw the advertisement notice. It may thereafter re-advertise the posts earlier advertised, now prescribing the changed eligibility criteria. The candidates, who responded to the earlier notice and become ineligible because of change in Recruitment Rules and therefore ineligible under the new Advertisement Notice, cannot insist that their eligibility should be assessed at the touchstone of old and repealed Recruitment Rules and they allowed to participate in the selection process. The only exception possibly would be where mala fides are alleged and substantiated on part of the employer or Selection Body in taking such decision....".
(Emphasis added)
32. The above Co-ordinate Bench of this Court, while deciding, rather dismissing, the above case, derived support from the judgment of the Punjab and Haryana High Court in Babita Rani v. State of Haryana, 2002(4) SCT 670; Dharmvir v State of Haryana, 1996 (1) RSJ 296 which itself was founded on the judgments of the Supreme Court in Dr. K. Ramulu v Dr. S. Suryaprakash Rao, J. T. 1997 (2) SC 80 and Renu Ahuja v State of Punjab, 1992 (4) SLR 263; and judgment of the Supreme in State of Orissa v. Bhikari Charan Kuntia 2003(10) SCC 144.
33. Coming to the instant case, no mala fides are alleged against the Commission or the Government in the Health and Medical Education Department, the question of establishing any mala fides does not arise.
Page 17 of 18Herein, the experience clause of the Recruitment Rules was finally altered only on 30.01.2014 vide Government order no.72-HME of 2014 when the Commission pin pointed the ambiguity therein and sought clarifications thereon by a series of communications/reminders. Therefore, it was neither possible for the Commission to invoke the conditions of eligibility prescribed in the superseded notification, nor was it bound by those criteria. It be noted here that in Renu Ahuja v. State of Punjab (supra), it has unambiguously been laid down that if the advertisement notice issued for direct recruitment is withdrawn after amendment of Rules and fresh advertisement is issued, the applicants cannot claim any right under the previous recruitment. This ratio of the judgment is wholesomely attracted in the instant case.
34. Another important and glaring factor attendant in the instant case is that the three petitioners in the two writ petitions are stated to have responded to the impugned notification and offered their candidature. It is, thereafter, that they have filed these writ petitions. It thus is an afterthought on their part and an attempt to hoodwink the Court. Curiously, they have suppressed this fact from the Court in their respective writ petitions. Apart from the fact that there is a legal inference available against them that they have come to the Court with unclean hands and, therefore, do not deserve any equity, even if they had a case against the impugned notification, which, though, there is none, they had accepted the terms and conditions of eligibility prescribed therein and had thus acquiesced to the fresh advertisement notice. They cannot turn around and challenge the advertisement notification.
35. Last, but not the least, widening of the consideration zone does not impinge upon the right of consideration of a candidate in a selection Page 18 of 18 process. The Government and/or the Selection Body is within its rights to do so to choose the best of the lot. In law, to ask for restricting the consideration zone to a few candidates cannot be said to be founded on the doctrine of legitimate expectation, nor can any discrimination, muchless hostile discrimination be read in such a situation. It is true that candidates who might not have been eligible when the first notification was issued may have gained the requisite eligibility by the date of issuance of the impugned notification, but, in the facts and circumstances of the case, that would not give the petitioners a cause to come to the Court and seek directions of the nature prayed for herein. In light of the facts and circumstances of the case, there was no option left with the Commission, but to do what it has actually done; consequently, there is nothing wrong in the impugned notification.
36. For all what has been narrated, said and discussed above, I find no merit in these writ petitions; the same deserve to be dismissed.
37. Accordingly, the two writ petitions are dismissed, being without any merit, together with the connected IAs, vacating the interim directions, whatever, subsisting.
38. No order as to costs.
39. Resultantly, the two contempt petitions filed by the petitioners in the two writ petitions are dismissed.
(Ali Mohammad Magrey) Judge Srinagar, 13.11.2018 Syed Ayaz, Secretary.