Jammu & Kashmir High Court - Srinagar Bench
Afshan Anjum Baba And Others vs Union Territory Of Jk And Others on 27 December, 2021
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
S. No. 1
After Notice
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) no. 1757/2021
CM no. 5856/2021
CM no. 6241/2021
CM no. 6296/2021
CM no. 6731/2021
CM no. 8348/2021
Afshan Anjum Baba and others
.... Petitioner(s)
Through: Mr Salman Khursheed, Sr. Advocate
(Video Conference) with
Ms Asifa Rashid Mir, Advocate
Ms Sommya Chaturvedi, Advocate
Mr Shah Faisal, Advocate
V/s
Union Territory of JK and others
... Respondent(s)
Through: Mr D. C. Raina, Advocate General with
Mr Sajjad Ashraf, GA
Mr M. Y. Bhat, Senior Advocate with
Mr Furqan Yaqoob, Advocate
Mr R. A. Jan, Senior Advocate with
Mr Aswad Attar, Advocate
Mr Jahangir Iqbal Ganai, Senior Adv
with
Ms Humaira Shafi, Advocate
Mr Altaf Haqani, Senior Advocate with
Mr Shakir Haqani, Advocate
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Mohd Akram Chowdhary, Judge
ORDER
27.12.2021 Magrey, J (Oral) In terms of order dated 21.12.2021, the Court while taking into consideration the submissions of the learned counsel for the respondents qua staying the operation of the judgment dated 12th July, 2021, passed by the Central Administrative Tribunal, for short CAT, in TA No. 62/5610/2020, and directing the respondents not to finalize the selection in question, directed the listing of the matter for consideration for today.
Today, when the matter was taken up for consideration, Mr Salman Khursheed, senior counsel appearing for the petitioners, made reference to the application made by three more candidates seeking their impleadment as petitioners to the lis. The learned senior counsel further sought protection of the lis by reserving equal number of posts viz 8 posts of Range Officers, Grade-I till the final disposal of the writ petition if the court deems so appropriate, in modification of the order dated 09.09.2021.
Mr D. C. Raina, Learned Advocate General, made reference to the requisition of the Government to the Public Service Commission, for short Commission, for filling up 44 posts of Range Officers, Grade-I (Territorial) in the Forest Ecology & Environmental Department for which the process was initiated in terms of Notification no. PSC/Exam/2018/19 dated 15.03.2018 and out of these posts, 25 posts were to be filled up in the Open Competition. Learned Advocate General submits that it is for the Court to address the submission of the learned senior counsel appearing for the petitioners vis-à-vis the manner to be adopted in protecting the lis.
Mr Jahangir Iqbal Ganai, learned senior counsel appearing for the respondents 4 to 7, submits that the petitioners have no case on merit as no direction can be passed by the court against the law/ rules. He submits that the order passed by the Court staying the further recommendation of the selectees for appointment against the posts has violated their rights. He further submits that the Commission in terms of communication dated 27.08.2021 has already intimated the Forest Department that out of the 44 posts of Range Officers-Grade 1 (Territorial), 29 were selected for walk test/ Medical Test and 15 were recommended for appointment and in respect of the left out 13 candidates, the recommendation could not be made because of the pendency of the case before the CAT, but subsequently on the decision of the CAT, the Commission rejected the candidature of eight (08) candidates who could not fulfill the physical standard/ height. It is further submitted that the two candidates under OM category, who were earlier selected under ST Category but their recommendation was kept withheld for being respondents in the writ petition no. 3182/2019 titled Majid Hussain v. State & Others, the recommendation in respect of four more candidates was released in terms of the impugned judgment of the CAT. Mr Jahangir Iqbal, learned senior counsel, submits that the petitioners' case not meeting the physical standard (height) could not be recommended for appointment.
The reasons for staying the operation of the impugned judgment with further direction not to finalize the selection is detailed out in the order dated 9.9.2021 which, for facility of reference, is extracted herein, thus:
"01. By medium of the instant Petition, the Petitioners have assailed the validity of Judgment dated 12th of July, 2021, as passed by the Central Administrative Tribunal, Jammu (hereinafter referred to as 'the Tribunal') in TA No. 62/5610/2020 filed by the Petitioners, whereby the Tribunal has directed as under:
".....
33. In view of the discussions herein above, the TA is disposed of with the following directions:
1) The Select List i.e. Annexure-B to Communication No. PSC/Exam/RO/Grade-I/ Territorial/2018 dated 20.09.2019 (Annexure-I) includes the names of the persons inclusive of respondents No. 6 to 14 who are to figure in the Walk Test and Medical Examination. So, PSC (Respondent No.3) shall in the first instance conduct the exercise of height measurement, if not conducted as on date;
2) Conduct the tests mentioned in the advertisement notice;
3) Thereafter prepare the final select list of candidates who fulfil all the eligibility criteria mentioned in the advertisement notice;
4) Follow the procedure for bringing the selection procedure to its conclusion.
Let this exercise be completed within three months from the date of this order. Respondents would do well to ensure that the final list does not contain the name of candidates who do not fulfil the eligibility criteria, as per rules and conditions of advertisement notice. TA is accordingly disposed of. No costs."
Besides, the Petitioners have also called in question the mandate of SRO 359 of 1970 dated 24th of July, 1970 to the extent of prescribing the criterion of height of 5 feet 6 inch as being violative of their rights guaranteed under the Constitution. That apart, the Petitioners, by a 'Writ of Mandamus', are also seeking a direction in the name of the Respondent-Public Service Commission to forward the Selection List dated 20th of September, 2019 of the Petitioners to the Respondent-Department for making appointment of the Petitioners against the post of Range Officers, Grade-I.
02. Mr Salman Khursheed, the learned Senior Counsel, appearing on behalf of the Petitioners through Virtual mode, submitted that the Petitioners, while putting forth their case before the Tribunal with the support of pleadings on record, had raised the following issues:
a) Whether the Jammu and Kashmir Forest (Gazetted) Service Recruitment Rules, 1970 are Gender discriminatory in nature;
b) Whether the Jammu and Kashmir Forest (Gazetted) Service Recruitment Rules, 1970 could be applied selectively to the Selection made in terms of Advertisement Notification No. PSC/Exam/2018/19 dated 15th of March, 2018;
c) Whether non-qualification of criteria of height as prescribed in terms of the Jammu & Kashmir Forest (Gazetted) Service Recruitment Rules, 1970, would render the dispensation of service as ineffective against the post of Range Officer, Grade-I;
d) Whether the Selection Body is permitted to change the stand after making the selections in respect of any post;
e) Whether the Rule having not been followed consciously during the previous selections can be invoked for debarring/ declaring the Petitioners as ineligible to complete for the Post in question; and
f) Whether the candidate after participating in the process of selection is estopped under law to challenge the Rule as being violative of fundamental rights.
It is contended that the Tribunal, while passing the impugned Judgment, has not appreciated the contentions raised by the Petitioners in their OA qua the aforesaid issues in their true and correct perspective, thereby resulting in violation of the rights guaranteed to the Petitioners under the Constitution. It is pleaded that the rule making power vested with the Legislation is to be exercised within the circumference of the Constitutional scheme enshrined in the Constitution and that the said power cannot be allowed to be exercised in a manner to qualify to be unreasonable and of the nature of perpetuating the inequality on the basis of physical standard-the stand of height. The learned Senior Counsel proceeded to contend that the Tribunal, while dealing with the issue of challenge thrown to the rules by the Petitioners in their OA, has left the said aspect of the matter on a premise that the adjudication of constitutional validity of a Rule cannot be undertaken by the Tribunal and that, in such circumstances, the Tribunal, instead of directing the Respondents to complete the process of selection by strictly adhering to the rules, ought to have referred the same to this Court and seized its hands from the adjudication of the case of the Petitioners.
03. M/s Jahangir Iqbal Ganai and Altaf Haqani, the learned Senior Counsel, appearing for the Caveators in Caveat Nos. 1008/2021 and 1009/2021, respectively, would submit that some candidates, being aggrieved of the notification issued by the Respondent-Public Service Commission in relation to the process of selection in question, had filed Writ Petitions which Petitions came to be transferred to the Tribunal and, subsequently, allowed by the Tribunal, however, such Order/s of the Tribunal is/ are not challenged by the Petitioners and, as such, in such circumstances, as per the learned Senior Counsels, the relief prayed for by the Petitioners in this Petition cannot be granted in their favour with the application of the mandate of principle of res judicata. In support of this contention, the learned Senior Counsel have referred to and relied upon the judgment of law rendered by the Supreme Court in case titled 'K. H. Siraj v. High Court of Kerela & Ors., (2006) 6 Supreme Court Cases 395'.
04. Having heard the learned appearing Counsel for the parties, we, prima facie, find force in the submissions made by the learned Senior Counsel representing the Petitioners. That being so, we are inclined to show indulgence. Insofar as the objection raised by the learned Senior Counsel representing the Caveators, we are satisfied that the issues raised in the Petition in hand qua challenge to the recruitment rules, as underlined hereinabove in this Order, need decision from this Court, therefore, the said objection raised by the Caveators would be taken care of at the time of final disposal of the Petition.
05. Notice to the Respondents in the main Petition as well as in the connected CM.
06. Notice accepted by Mr Sajad Ashraf Mir, the learned Government Advocate on behalf of Respondents 1 and 2; and Mr M. Y. Bhat, the learned Senior Counsel, for Respondent No.3. They shall file Objections by the next date of hearing, with copy in advance to the other side.
07. As prayed for, the Caveators in Caveat Nos. 1008/2021 and 1009/2021 shall be at liberty to file appropriate motion(s) for seeking impleadment as parties, if they so choose. Both Caveats shall stand discharged, accordingly.
08. List on 28th of September, 2021.
09. Meanwhile, subject to Objections from the other side and till the next date of hearing before the Bench, the operation of the impugned Order dated 12th of July, 2021 passed by the Tribunal in TA No. 62/5610/2020 shall remain stayed with further direction to the Respondents not to finalize the selection in question." Mr Altaf Haqani, learned senior counsel, appearing for respondent no. 8, sought the same consideration as has been sought by Mr Jahangir Iqbal Ganai, learned senior counsel for respondents 4 to 7.
Mr R. A. Jan, learned Senior Counsel for respondent no. 9, submits that the recommendation in respect of respondent no. 9 has unnecessarily been withheld as he is selected for such appointment.
We have heard learned senior counsels for the parties. On thoughtful consideration and after going through pleadings and the records, the court is of the opinion that the ends of justice will meet only by protecting the lis so as to ensure complete justice between the parties for the time the parties complete their pleadings and the matter is finally decided.
In view of above, in modification of order dated 09.09.2021, while allowing the respondent-Government to act upon the recommendations of the Commission 08 posts be reserved out of the available posts which can, later on, be utilized for the petitioners in the event they succeed in the writ petition.
List the matter for consideration on 21st February, 2022.
(Mohd Akram Chowdhary) (Ali Mohammad Magrey)
Judge Judge
Srinagar
27.12.2021
Amjad Lone, Secretary
AMJAD AHMAD LONE
2021.12.28 12:42
I attest to the accuracy and
integrity of this document