Supreme Court - Daily Orders
State Of Jammu And Kashmir vs Ravinder Singh on 6 December, 2016
Bench: R.K. Agrawal, R. Banumathi
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11976 OF 2016
(@ SLP(C)No.36761 of 2014)
State of Jammu and Kashmir and Anr. ...Appellants
VS.
Ravinder Singh and Ors. ...Respondents
O R D E R
Leave granted.
The present appeal has been filed against the judgment and order dated 28th June, 2013 passed by the Division Bench of the High Court of Jammu and Kashmir at Srinagar whereby, the Letters Patent Appeal preferred by the appellants herein was dismissed.
Briefly stated the facts which give rise to the present appeal are as follows:
In the year 1998 the Jammu and Kashmir Service Selection Board, Srinagar issued an Advertisement Notification No.4 of 1998 dated 15th October, 1998 calling upon the persons to apply for the post of Technician-III with minimum qualification of Matric with ITI trained in Electrical/Mechanical/Welder/Black Smith. The respondents Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2016.12.09 herein were all Matric with ITI trained personnel. They 17:26:11 IST Reason: applied for the post of Technician-III. However they 1 were not selected on the ground that they had secured lesser marks than what the last selected person had obtained. The last selected candidate had obtained 56.23 marks whereas the contesting respondents had obtained marks ranging from 45.47 to 55.17. The respondents preferred a writ petition being SWP No.1706 of 2000 which was initially dismissed. It was taken up in appeal by filing LPA No.20/2007 in which the Division Bench vide judgment and order dated 18th October, 2008 had remanded the matter back to the Single Judge for disposal afresh. However, the Division Bench in its judgment had held there was no court order/direction permitting or directing official respondents to receive the application of the Diploma Holders against the post of Technician-III and the judgment impugned based on a non-existent premise and assumption cannot be sustained. It further observed that the writ petition is required to be decided afresh and the submission of the appearing counsel for the petitioners that the petitioners may be adjusted against the available vacancies on the basis of the selection process already made, appeared to be plausible. It would be open for the official respondents to consider the petitioners for adjustment against available vacancies so as to give quietus to the litigation. Subsequently when the matter was taken up by the learned Single Judge, the learned Single Judge vide order dated 20th July, 2009 had directed the respondents to consider the case of 2 petitioners and take decision as per the observations made by the Division Bench within four weeks. The matter was referred by the State Government to the Service Selection Board which vide order dated 28th August, 2009 had declined to consider the case of the respondents herein on the post of Technician-III on the ground that they have received lesser marks than the last selected candidate and there is no vacancy left. Learned Single Judge vide order dated 5th April, 2012 allowed the writ petition and quashed the order dated 25th September, 2009 passed by the State Government and directed them to consider the case of the respondents herein against the available vacancies in terms of the direction of the Division Bench within three months.
Being aggrieved by the above order, the appellants filed LPA No.189 of 2012 which has been dismissed by the Division Bench by the impugned order.
We have heard the learned counsel for the parties. Learned counsel for the appellants submitted that as there is no vacancy in the cadre of Technician-III for the relevant year for which the advertisement was issued, and persons who have obtained higher marks have been appointed, there was no question of selection or appointment of the respondents herein on the said post. Learned counsel relied upon two decisions of this Court rendered in the case of Asha Kaul (Mrs) and Another vs. State of Jammu and Kashmir and others (1993) 2 SCC 573 3 and in the case of Union of India and others vs. Tilak Raj Gandhi (2014) 3 SCC 145.
Learned senior counsel appearing for the respondents however submitted that the findings given by the Division Bench in the earlier round of proceedings in its judgment dated 18th October, 1998 holding that the application of the diploma holders against the post of Technician-III could not have been entertained which direction has become final between the parties as the State of Jammu and Kashmir had not challenged the same. Further instead of setting aside the selection already made of the persons holding the diploma, the Division Bench in its wisdom observed that the official respondents to consider the petitioners therein for adjustment against available vacancies so as to give quietus to the litigation. This is apparently not being done by the appellants herein.
We may make it clear that if the persons who were holding diploma were not entitled for being considered for the post of Technician-III as held by the Division Bench in the earlier round of proceedings, there was no question for the Service Selection Board or the State Government not to appoint the contesting respondents on the post of Technician-III either on the posts which were available in the year 1998 or which may have become available in the subsequent years or by creating supernumerary posts. It would have been better to serve 4 the interest of justice at large to create supernumerary post or to adjust the respondents herein in the vacancies which might have become available in future years. That having not been done, it is not open to the State Government to say that persons already selected had obtained higher marks than the respondents herein.
We, therefore, do not find any good ground to interfere with the impugned order passed by the High Court. Further, in the interest of justice, we direct the appellants herein to create supernumerary posts for respondent Nos.1-6 to be adjusted in the post of Technician-III. Their appointment shall be from the date when the other persons have been appointed on the said post, pursuance to the advertisement issued in 1998. However, we make it clear that respondent Nos.1-6 shall not claim any back wages but shall be entitled for continuity in service. The same may be done within two months from today. The question of bar of age will not come in their way.
In view of the above, the civil appeal is disposed of.
.......................J. [R.K. AGRAWAL] .......................J. [R.BANUMATHI] New Delhi;
December 6, 2016.
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ITEM NO.24 COURT NO.11 SECTION XVIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 36761/2014
(Arising out of impugned final judgment and order dated 28/06/2013 in LPA No. 189/2012 passed by the High Court of J & K at Srinagar) STATE OF JAMMU AND KASHMIR AND ANR Petitioner(s) VERSUS RAVINDER SINGH AND ORS Respondent(s) (With interim relief and office report) Date : 06/12/2016 This petition was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE R.K. AGRAWAL HON'BLE MRS. JUSTICE R. BANUMATHI For Petitioner(s) Mr. Sunil Fernandes,Adv.
Ms. Mithu Jain,Adv.
Mr. Puneeth K.G.,Adv.
For Respondent(s) Ms. Vibha Dutta Makhija,Sr.Adv.
Mr. Gagan Gupta,Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is disposed of in terms of the signed order.
Pending applications, if any, shall also stand disposed of.
(Anita Malhotra) (Saroj Kumari Gaur)
Court Master Court Master
(Signed order is placed on the file.)
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