Jammu & Kashmir High Court - Srinagar Bench
Tariq Ahmad Mir vs J&K; Khadi And Village Industries Board ... on 23 August, 2017
Author: Ramalingam Sudhakar
Bench: Ramalingam Sudhakar
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR.
SWP no. 1778/2016
MP no. 01/2016
Date of Order: 23.08.2017
Tariq Ahmad Mir
Vs.
J&K Khadi and Village Industries Board and others
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge.
Appearing Counsel:
For the petitioner(s)/applicant : Mr. S. N. Ratanpuri, Adv.
For the respondent(s) : Mr. Asif Ahmad Bhat, AAG
i. Whether to be approved for reporting in Yes/No NET.
ii. Whether to be approved for reporting in Yes/No Digest/Journal.
1. Heard Mr. Ratanpuri, learned counsel for the petitioner, and Mr. Bhat, learned AAG for the respondents.
2. Objections have been filed.
3. In view of the nature of relief sought for, and the arguments made by the counsel, the matter is admitted to hearing and taken up for final disposal.
4. The prayer in the writ petition is as follows:
i) Writ, order or direction in the nature of certiorari for quashing the impugned advertisement notice no. KVIB/01 of 2016 dated 08.10.2016 in so far as it relates to the selection of Law Officer in J&K Khadi and Village Industries Board.
ii) Writ, order or direction in the nature of mandamus commanding the respondents to complete the selection process for selection/appointment of Law Officer in the respondent institute (KVIB) initiated vide advertisement notice no. KVIB/01 of 2013 and no. KVIB/02 of 2013 both dated 26.04.2013.
5. In the year 2013 the respondent board issued advertisement notices bearing no. KVIB/01 of 2013 and KVIB/02 of 2013 dated 26.4.2013 inviting applications for different posts SWP 1778/2016 Page 1 of 7 including that of Law Officers. The petitioner claims to be fully qualified, applied for the said post in response to the advertisement notice in the year 2013. It is stated that the petitioner was awarded roll no. 82 and he appeared in the written test conducted for selection for the post of Law Officer. It is stated that the respondents thereafter did not proceed with the selection process and neither the petitioner nor any other candidate was called for interview.
6. It is stated that all of a sudden in the year 2016 a fresh advertisement notice no. KVIB/01 of 2016 dated 08.10.2016 was issued inviting fresh applications for selection of candidates for various posts including the post of Law Officer. The fresh advertisement notice has been challenged qua the post of Law Officer, in the present writ petition.
7. Interim order was granted by this court on 16.11.2016. However, that order came to be vacated by this court on 9.8.2017 and thereafter the writ petition is taken up for final disposal.
8. Learned counsel for the petitioner contends that as the advertisement notices issued in the year 2013 were proceeded to the extent of written examination, thereafter the respondents ought to have completed the process of interview and selection. It is stated that the respondents abandoned it only due to some extraneous reason, more particularly the counsel pleads that the Vice Chairman was appointed by the government to the Board and he wanted the earlier selection to be annulled and fresh selection has been initiated at his behest and therefore it is a case of interference by a political appointee to scuttle the earlier selection process. It is stated that there was no reason for the respondents to have cancelled the 2013 notices and proceed with the fresh one in the year 2016. It is stated that the action of the respondents smacks of mala fide and arbitrariness.
9. The learned counsel for the petitioner further relies upon a decision of the Supreme Court passed in the case "State of SWP 1778/2016 Page 2 of 7 A.P. and others versus D. Dastagiri and others"
(2003) 5 SCC 373. Para 4 of the judgment is reproduced hereunder:
In the counter affidavit filed on behalf of the respondents in Civil Appeal No. 915/2000, in paragraph 16 it is stated that the process of selection was cancelled at the last stage, i.e., before publishing the list of selected candidates on the sole ground that the State Government wanted to introduce prohibitor and obviously the Government felt that there was no need of Excise Constables during imposition of prohibition in the State. There is serious dispute as to the completion of selection process. According to the appellants, the selection process was not complete. No record has been placed before us to show that the selection process was complete, but, it is not disputed that the select list was not published. In paragraph 16 of the counter affidavit, referred above, the respondents themselves had admitted that the selection process was cancelled at the last stage. In the absence of publication of select list, we are inclined to think that the selection process was not complete. Be that as it may, even if the selection process was complete and assuming that only select list was remained to be published, that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State Government to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the Government had right to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the SWP 1778/2016 Page 3 of 7 recruitment of Constables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables. It is not the case of the respondent that there was any malafide on the part of the appellants in refusing the appointment to the respondents after the selection process was complete. The only claim was that the action of the appellants, in not appointing the respondents as Excise Constables, was arbitrary. In the light of the facts that we have stated above, when it was open to the Government to take a policy decision, we fail to understand as to how the respondents can dub the action of the Government as arbitrary, particularly, when they did not have any right as such to claim appointments. In the absence of selection and publication of select list, mere concession or submission made by the learned Government Pleader on behalf of the appellant-State cannot improve the case of the respondents. Similarly, such a submission cannot confer right on the respondents, which they otherwise did not have.
10. On the contrary, Mr. Bhat, learned AAG, appearing for all the respondents relies upon primary objection filed, more particularly paragraph nos. 6 and 7 which are extracted as below for the purpose of clarity.
(6) In reply to para nos. 6 and 7 of the writ petition, it is submitted that the petitioner appeared in the written test held for the selection of post of Law Officer. Rest of the para is denied as the marks obtained in the written test by the candidates who appeared for the post of Law Officer could not (be) ascertained as (the) result was not declared due to the procedural delay. It is further denied that there was no change of guard in KVIB in mid 2016. The chairman KVIB who is Minister for Industries and Commerce is the competent authority with whose approval the impugned advertisement notice was issued and published. Rest of the SWP 1778/2016 Page 4 of 7 para is mere a figment of imagination and apprehensions of the petitioner. Hence this writ petition is not maintainable in the eyes of law.
(7) In reply to para no. 8 of the writ petition it is submitted that in supersession of earlier notifications no. KVIB/01 of 2013 and no. KVIB/02 of 2013 dated 26.4.2013 a fresh advertisement notice was issued by the respondents for the post of Law Officer along with other posts. The reasons being that the respondents to bring more transparency and a fair selection process have sought the assistance of the Secretary Law, Government of J&K as Controller of examination for conducting the written examination of the candidates appearing for the post of Law Officers and for other posts. The respondents have further decided that in previous advertisement 40 per cent marks were kept for viva and 60 per cent for written. Now it is 10 per cent for experience, 30 per cent for viva and 60 per cent for written examination so that the highly experienced and capable candidates may be selected.
The another reason compelling KVIB to issue fresh advertisement notice was that the selection process was initiated in 2013 and more than 03 years were passed since then many candidates who had applied earlier may have been appointed somewhere else and a number of candidates may have also become eligible between 2013 and 2016. Therefore, in order to provide a level playing field to all eligible candidates it was imperative to initiate a fresh selection process by re-advertising all the vacant posts, notified earlier and the posts fallen vacant after April 2013. It is further apt to submit here that the notification issued on October 08, 2016 by the Boad provides a level playing field to all the applicants and does not discriminate the candidates who have applied for the post earlier on the said notification, accordingly the candidates who have applied earlier need not to apply again. The impugned advertisement notice does not affect the petitioner alone. It has been issued with the SWP 1778/2016 Page 5 of 7 approval of the competent authority keeping in view bonafide interest of unemployed candidates with justification and rising unemployment in the state without any malafides.
11. The learned counsel for the respondents states that no doubt in year 2013 the written test was conducted, but it could not be concluded for procedural delay and thereafter in the year 2016 when the new Vice-Chairman of the Board took charge in terms of section 4 of J&K Khadi and Village Industries Board Act 1965, the Board after considering the previous advertisement thought it fit that the selection should be made more rational, objective and transparent. Learned counsel for the respondents relies upon the judgment passed by Supreme Court in Shankarsan Dash versus Union of India (1991) 3 SCC 47 para 7 where it has been held: ". . . Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post."
12.The learned counsel emphasizes that in this case the recruitment process had not been concluded because it was at the stage of written test. No interview was conducted nor any selection list was issued. Therefore, respondents were well within their right to cancel the earlier advertisement notices and issue a fresh one. Furthermore in the case of State of AP and others versus D. Dastagiri and others, supra, in a case of appointment to the post of Excise Constable, government in order to introduce prohibition cancelled the selection process at the last stage and in this aspect of the matter the Supreme Court held that the process was not completed and the select list has not been published and the selection process cancelled and therefore no right accrues to the individual candidates. The Supreme Court held that the persons whose names find place in the selection list also do not get vested right to get appointment based on the selection list.
SWP 1778/2016 Page 6 of 713. Considering the relevant contentions, it is clear that the 2013 advertisement was not completed to its logical end and thereafter for good and sufficient cause as stated in paragraph 7 of the reply affidavit, the fresh advertisement notice was issued in 2016. The decision in Shankarsan Dash versus Union of India, supra, would squarely apply to the facts of the present case. Even the decision of the Hon'ble Supreme Court in "State of AP and others versus D. Dastagiri and others" supra, relied upon by the petitioner also, lays emphasis that in the absence of selection and publication of select list, it is well within the power of the government to withdraw the list, and it will not confer any right on the intending candidates.
14.Considering the factual matrix of the present case in the light of the above stated decisions, this court finds no error in the decision of the respondents to issue fresh advertisement which is impugned in the writ petition.
15. Accordingly, finding no merit in the case, the writ petition is dismissed along with connected CMP. Interim order stands vacated.
Srinagar (Ramalingam Sudhakar)
23.08.2017 Judge
N Ahmad
SWP 1778/2016 Page 7 of 7