Jammu & Kashmir High Court
Manmohan Khajuria And Ors vs Sheikh Muzaffar Ahmed And Ors on 1 June, 2023
Bench: Chief Justice, Puneet Gupta
1
Sr. No. 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CJ Court
Case: LPASW No. 144/2017
Along with connected matters.
Manmohan Khajuria and ors. .....Appellant/Petitioner(s)
Through :- Mr. Abhinav Sharma, Sr. Advocate with'
Mr. Abirash Sharma, Advocate.
Mr. Z. A. Shah, Sr. Advocate with
Mr. A. Hannan, Advocate.
Mr. Syed Faisal Qadri, Sr. Advocate
with Ms. Tayba Gulnaz, Advocate.
Mr. Hakim Suhail Ishtiaq, Advocate.
(through virtual mode from Srinagar)
v/s
Sheikh Muzaffar Ahmed and ors. .....Respondent(s)
Through :- Ms. Monika Kohli, Sr. AAG.
Mr. Rahul Pant, Sr. Advocate with
Ms. Arushi Shukla, Advocate.
Mr. Vikram Sharma, Sr. Advocate
Mr. Monish Chopra, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
01.06.2023 N.KOTISWAR SINGH-CJ (ORAL)
01. The matter pertains to recruitment process initiated vide advertisement dated 09.03.2007 for the posts of Constable (Wireless Operator) in Police Department and the consequent actions thereto by the State.
02. Without going into detail facts of the case, this Court would like to observe that after the said advertisement was issued for the 1128 posts of Constable (Wireless Operator) in the Police Department and on conclusion of the recruitment process, 925 persons were selected on 01.08.2009. -2- Appointments were given to the selected candidates by considering the District wise vacancies in the year 2010. The said District wise appointments of 925 candidates were put to challenge by some other candidates on the ground that appointments should have been made on basis of State wise merit list and not on District wise merit list. The said challenge was successful as per the judgment rendered on 09.05.2014 by the learned Single Judge (Srinagar wing) in writ petition being SWP no. 1352/2010 along with other clubbed writ petitions because of which out of aforesaid 925 selected candidates, 220 candidates had to be removed from the service.
03. In the meantime, before the ouster of these 220 candidates who were already appointed under the District Wise merit list, the petitioners who challenged the appointment filed a Review Petition being Review Petition (RP) No. 33/2014 urging that the services of those 220 candidates who were adversely affected may be protected as they had served for a considerable period of time and at the same time to accommodate the review petitioners, to which proposal the State Government apparently had agreed. From the above, the stand of the State Government appears to be that they wanted to protect 220 candidates, who were already appointed in District wise merit list and served as Constables (Wireless Operators) for a considerable period of six years and these candidates having gained valuable experience in the field and also accommodate the review petitioners who had faced the selection process. However, subsequently the Review petition was dismissed by this Court on merit on the ground that no case for review had been made out.
04. Though the decision of this Court in setting aside the District wise appointments was made on 09.05.2014, and directing the Government to prepare fresh select list on State wise merit, the Government actually drew up -3- the State wise merit list only on 19.01.2017 vide order No. 211 of 2017. In the aforesaid fresh redrawal of the select list in terms of the State wise merit list, these 220 candidates did not find place thus had to be ousted from service. Since, the aforesaid 220 candidates were ousted, being aggrieved by the ouster they approached this Court by filing a Writ Petition being SWP No.114/2017 and this Court granted an interim protection by order dated 27.01.2017 by staying their termination order and directing the respondent authorities to allow the petitioners to continue in their services. However, instead of complying with the interim direction issued by this Court, the State appointed 220 candidates as per the State merit list vide order 12th June 2017.
05. Since the earlier batch of 220 candidates were out of service and were not reinstated inspite of interim direction passed by this Court, they opted to challenge the original order dated 09.05.2014 on the ground that selection and appointment should have been made as per the District wise merit list. This appeal filed by the 220 candidates was, however, dismissed vide order dated 19.08.2017 by the Appellate Court on the ground of delay against which these 220 candidates preferred an SLP before the Hon'ble Supreme Court by filing a Special Leave to Appeal being SLP No. 26437/2017. The said SLP was however, withdrawn with the liberty to approach the Appellate Forum of the High Court afresh with additional and fresh grounds.
06. Accordingly, these 220 candidates filed a Review application seeking review of order by which earlier Letters Patent Appeal was dismissed on the ground of delay. The said Review Petition was dismissed on 28.01.2019 against which these 220 candidates again approached the Apex Court by way of filing a Civil Appeal being 919-920 of 2023 which was ultimately allowed by the Apex Court condoning the delay by order dated 24.01.2023 and the Apex Court -4- remitted the matter to the Appellate Court of this High Court to hear the Letters Patent Appeal and other similar writ petitions.
07. It may be apposite to mention that during this period, the 220 candidates who were ousted from service and were not taken back in service in terms of the interim order came to be engaged by the State Government in the lower posts of Wireless Assistant considering the experience gained and the nature of work they were performing relating to sensitive matters of the State, in terms of the then Cabinet Decision taken vide no. 80/5/2018 dated 24.04.2018. Accordingly, out of 220 candidates, 151 came to be reengaged as Wireless Assistants on consolidate basis and these 151 candidates have continued to remain in service, as the remaining of the 220 were not interested or were engaged in some other capacity. The appointment of these 151 candidates on consolidated basis, however, has been put to challenge by some candidates on the ground it is violative of Article 14 and 16 of the Constitution of India as the posts were not advertised, and, therefore, there could be no decision to regularize their services after ten years of services. The challenge to the appointment of these 151 candidates on consolidated pay as Wireless Assistants was considered by the Central Administrative Tribunal (CAT), Jammu Bench, in TA No. 62/864/2021 which was decided on 28.07.2021 holding the engagements to be in violation of Article 14 and 16 of the Constitution of India.
08. The said decision of the CAT, Jammu Bench in quashing the engagement of the 151 Wireless Assistants has been challenged before this Court in WP(C) No. 1548/2020 in which this Court vide order dated 05.08.2021 stayed the judgment of the CAT Jammu Bench. Thus, these 151 persons have continued to remain in service on the strength of the interim order passed by this Court. -5-
09. Under the aforesaid situation, this Court will be called upon to examine whether the appointment of these 151 candidates based on District wise merit list was valid or not. However, this Court has noted that this matter is pertaining to 2009 which has traversed though various steps of judicial sojourn and still there is uncertainty as to the respective rights of the petitioners as well as the respondents.
10. It has also been brought to our notice that the advertisement was initially made for 1126 posts of Constable (Wireless Operators) in the Police Department in the year 2007 but only 925 candidates were selected. Thus, there were 201 vacant posts which are still lying vacant as not being filled. As per the redrawn list of the State wise merit list, out of selected 925 candidates 220 candidates had to be ousted to accommodate the new entrants as per the State wise merit list, and out of the aforesaid 220 who had been ousted, only 151 continue to remain in service though in another capacity as Wireless Assistants. It appears that there are 270 (201+69) vacant posts are available and if the present 151 petitioners are adjusted against the said existing 270 vacant posts of Wireless Operators, 119 posts are still remaining vacant.
11. It has been brought to our notice by the contesting parties that in addition to the above 151 candidates whose right is yet to be determined, there are about 111 claimants who have been litigating since 2009 though not appointed till now. These 111 claimants were not found either in the State nor District wise merit list, but, if they could be adjusted against the 119 number of vacancies after adjustment of the 151 Wireless Assistants as mentioned above, perhaps the long drawn litigation could come to an happy ending for all the contesting private parties.
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12. While pending consideration of the matter on merit, if the respondent authorities can come up with a proposal to accommodate these 151 Wireless Assistants and 111 claimants to the existing 270 vacant posts of Constables (Wireless Operators) as these 111 claimants have already taken part in the selection process and if otherwise not found suitable and also considering the facts that these 151 candidates have been serving till now, and not only the present 151 candidates, but the other 111 candidates must have crossed the age bar for seeking appointment in future. perhaps this long drawn litigation can come to an end even without touching upon the merit of the case,
13. Under these circumstances, we require the respondent authorities to inform this Court as to whether they are agreeable to accommodate these 151 Wireless Assistants and 111 candidates against the available vacancies which this Court would welcome. If such proposal is not forthcoming from the State, obviously, we will proceed to decide the matter on merit.
14. Let the matter be listed on 8th June 2023 before the same Bench, to be taken up by hybrid mode.
(PUNEET GUPTA) (N.KOTISWAR SINGH)
JUDGE CHIEF JUSTICE
JAMMU
01.06.2023
SUNITA/PS