Jammu & Kashmir High Court
Faizan Ahmad vs State And Ors. on 31 December, 2018
Author: Rajesh Bindal
Bench: Rajesh Bindal
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Reserved on 13.12.2018
Date of decision: 31 .12.2018
1. SWP No. 3224/2015
Faizan Ahmed ....Petitioner
vs.
State of J&K and ors ....Respondents
2. SWP No. 2313/2015
Ankit Gupta and ors. ....Petitioners
vs.
State of J&K and ors. ....Respondents
3. SWP No. 2553/2015
Sayela Mir ....Petitioner
vs.
State of J&K and ors ....Respondents
4. SWP No. 2587/2015
Deepak Jamwal and ors. ....Petitioners
vs.
State of J&K & ors ....Respondents
5. SWP No. 2695/2015
Shayan Ji Saleem ....Petitioner
vs.
State of J&K and others ....Respondents
6. SWP No. 2746/2015
Imran Mir and ors ....Petitioners
vs.
State of J&K and others ....Respondents
7. SWP No. 2758/2015
Anurag Sharma and ors ....Petitioners
vs.
State of J&K & ors. ....Respondents
8. SWP No. 2801/2015
Avinandan Singh and ors ....Petitioners
vs.
State of J&K &ors. ....Respondents
__________________________________________________________________________________
SWP Nos. 3224/2015and other connected cases
Page 1 of 13
9. SWP No. 158/2016
Virender Singh ....Petitioner
vs.
State of J&K and others ....Respondents
10. SWP No. 47/2016
Vikas Sharma ....Petitioner
vs.
State of J&K and others ....Respondents
11. SWP No. 473/2016
Vikas Sharma and anr. ....Petitioners
vs.
State of J&K &others ....Respondents
12. SWP No. 558/2016
Rajesh Singh ....Petitioner
vs.
State of J&K and others ....Respondents
13. SWP No. 2392/2017
Aditya Sangotra ....Petitioner
vs.
State of J&K and others ....Respondents
14. SWP No. 1183/2018
Rameez Hussain and anr. ....Petitioners
vs.
State of J&K & ors ....Respondents
(O&M)
CORAM : HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
Appearance:
For Petitioner (s) : Mr. F. S. Butt, Advocate
(in SWP No. 3224/2015)
Mr. Abhinav Sharma Advocate
( in SWP No. 2695/2015)
Mr. Sunil Sethi, Sr. Advocate with
Mr. Vaibhav Gupta, Advocate
( in SWP nos. 2313/2015, 1183/2018 & 2587/2015)
Mr. Ashwani Kumar Sharma, Advocate
__________________________________________________________________________________
SWP Nos. 3224/2015and other connected cases
Page 2 of 13
(in SWP nos. 2801/2015, 158/2016, 2746/2015,
473/2016 & 47/2016)
Mr. Irfaan Khan Advocate
(in SWP no. 2392/2017)
Mr. Z. A. Mughal, Advocate
( in SWP nos. 2758/2015 & 558/2016)
None in SWP Nos. 2553/2015
For Respondent (s) : Mrs. Seema Shekhar, Sr. AAG
Mr. Z. A. Shah, Sr. Advocate with
Mr. Vipan Gandotra, Advocate
Mr. Rahil Raja, Advocate for R- 4, 5, 8, 11, 12, 13,
14, 15, 17, 18, 19, 20 & 23.
Rajesh Bindal, J.
1. This order will dispose of a bunch of writ petitions bearing SWP Nos. 3224, 2313, 2553, 2587, 2695, 2746, 2758, 2801 of 2015, SWP Nos. 158, 47, 473, 558 of 2016, SWP No. 2392 of 2017 and SWP No. 1183 of 2018.
2. Common issue has been raised by the petitioners in these writ petitions. Challenge is to the selection and appointment to the post of Inspector (Finance Department). The selection was carried out in pursuance to the advertisement notice No. 06 of 2013 dated 10.05.2013. The petitioners seek quashing of Government order No. 97-F of 2014 dated 31.03.2014 and Government order No. 176-F of 2014 dated 23.07.2014, whereby appointments have been made.
3. In SWP No. 3224/2015, learned counsel for the petitioner submitted that advertisement notice No. 06 of 2013 was issued on 10.05.2013 inviting applications for various posts in the State of Jammu and Kashmir. One of the posts advertised was Inspector (Finance Department). The petitioner being fully eligible and qualified in terms of the aforesaid advertisement notice not only applied for the post of Inspector but also for the post of Sub-Inspector (Finance Department) and Assistant Handicraft Training Officer, for which he was eligible. As per the procedure prescribed, common written examination was to __________________________________________________________________________________ SWP Nos. 3224/2015and other connected cases Page 3 of 13 be held for selection of various posts. Admit cards were issued to the candidates containing their roll numbers and other particulars. Written test was conducted on 21.09.2013. The posts for which the candidates had applied were duly mentioned in the applications filled. In the written examination, the petitioner did exceptionally well. The candidates were thereafter short listed, however, name of the petitioner did not figure in the list of candidates to be interviewed for the post of Inspector (Finance Department), though he had been short listed for the post of Sub-Inspector. He appeared in the interview and on the basis of his performance, he was selected for the post of Sub-Inspector. The petitioner did not raise any issue at that stage as remained under the impression that he may not have done well in the written test, to be considered for the post of Inspector. Though the final select list for the post of Inspectors was published, yet the same was lacking in particulars, such as marks obtained by the short listed and selected candidates. The merit list of candidates was published and uploaded on the website one year after the selection process was completed by the department in the year 2015. It was only on going through the merit list, the petitioner came to know that the candidates, who secured marks less than the petitioner, had been selected. However, the candidature of the petitioner was ignored.
4. Only plea raised by the official respondents to deny relief to the petitioner is that candidature of the candidates was considered in terms of the posts mentioned in the admit card. As in the admit card, the post of Inspector was not mentioned, the candidature of the petitioner could not be considered. It was specifically mentioned in the admit card that if there is any discrepancy in the same, it should be pointed out to the J&K Service Selection Board (hereinafter referred to as „the Board‟) in order to get the error corrected. Submission is that if there was fault on the part of the Board, the candidates cannot be made to suffer on that account. In reply, stand has also been taken that candidature of the petitioner was considered for the post mentioned at item No. __________________________________________________________________________________ SWP Nos. 3224/2015and other connected cases Page 4 of 13 038 (01 of 2013), though the same was not mentioned in the admit card. That was the post of Assistant Handicraft Training Officer. However, it is submitted that on his selection, the petitioner had joined as Sub-Inspector.
5. There is no delay in filing the writ petition as merit list containing the marks obtained by the candidates was uploaded on the website on 26.06.2015 and writ petitions were filed immediately thereafter.
6. In SWP No. 2695/2015, the petitioner had applied for five posts, namely, Inspector (Finance Department), Sub-Inspector, Accountant-Cum- Storekeeper and Assistant Handicraft Training Officer and Supervisor. In this case also, on account of error in the admit card, the petitioner was not called for interview for the post of Inspector, whereas he appeared for the post of Sub- Inspector. Letters for interview were uploaded on 17.09.2013 and the interview was conducted on 21.09.2013. Hence, there was no time for making any representation. It was further submitted that the petitioner in the present case secured marks more than the last selected candidate for the post of Inspector. In written examination, the petitioner secured 60.7821 marks, whereas last selected candidate had secured 71.8585 marks. He required only 11 marks in the interview. When he appeared in the interview for the post of Sub-Inspector, he was awarded 17 marks in the interview. The selection committee constituted for interviewing the candidates for the post of Sub-Inspector was same as was for the post of Inspector. Hence, if the marks secured by the petitioner in that interview are considered, he secured more marks than the last selected candidate. Even if, there was bona fide mistake on the part of the petitioner, he should not be denied the relief, which is admissible to him. He has further submitted that in response to the application filed by the petitioner under Right to Information Act, the department admitted that the posts of Inspectors are still lying vacant. Hence, the petitioner can be adjusted against one of those posts.
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7. In SWP No. 2313/2015, the case set up by the petitioners is similar to the cases referred to above. They also claim that they have secured marks more than the last selected candidate in the category of Inspector. If there was mistake in the admit cards, the petitioners could not be made to suffer. In the admit card, even the year of advertisement was wrongly mentioned. While candidature of candidates for those posts was considered. The process which can be adopted at this stage is that all the candidates can be interviewed afresh. However, if the State wants to protect the candidates already appointed, the petitioners cannot be denied the relief. All the petitioners remained under the impression that their candidatures had rightly not been considered in terms of the marks obtained by them in the written examination. However, the petitioners came to know when details of marks were uploaded on the website by the department that their candidatures for the post of Inspector had wrongly not been considered. In fact, it was a mala fide exercise, where certain candidates have been given un-due benefit while ignoring the meritorious candidates.
8. In other writ petitions as well, the arguments as noticed above, have been adopted.
9. In some of the writ petitions filed subsequently, the prayer was that even in the fresh selections being made the posts should be reserved for the petitioners so as to ensure that relief claimed by them in the earlier writ petitions is not rendered infractuous. However, argument of the petitioners in these writ petitions is that once the writ petitions claiming substantive relief are being decided, nothing would survive in these writ petitions.
10. On the other hand, learned counsel for the State as well as the Board submitted that the selection process was initiated after inviting applications vide advertisement notice No. 06 of 2013. For participation in the process of selection for number of posts, common written test was to be held for certain categories of posts. The public notice regarding uploading of the admit cards was published in various newspapers on 03.09.2013, which was to be generated by the candidates. __________________________________________________________________________________ SWP Nos. 3224/2015and other connected cases Page 6 of 13 Admit cards were issued to the candidates mentioning the posts for which they had applied. In a separate public notice issued, it was also specified that if any candidate finds any error in the particulars mentioned in the admit card, he should immediately point out the same to the Board. Even as per the note on the Admit Card, the candidates were required to check the particulars mentioned in the admit cards carefully. Some of the candidates pointed out certain errors in mentioning the code numbers of the posts for which they had applied. Keeping that in view, fresh public notice was published in number of newspapers on 25.09.2013 specifically stating therein that it has come to the notice of the authorities that there had been certain discrepancies in the admit cards issued to the candidates, who had appeared in the written test on 17.09.2013 and 21.09.2013. They were given liberty to make representations along with documentary proof up to 30.09.2013 in order to enable the Board to consider the same and no representation was to be entertained thereafter. The cases in which representations were received, wherever correction was required, needful was done. The petitioners had not been called for interview for the post of Inspector as in the admit cards issued to them, the post was not mentioned. Hence, their candidature had not been considered for the same.
11. It was further submitted that it will not be possible to put the clock back at this stage, as suggested by the learned counsel for the petitioners. The interviews cannot be held at this stage. It is not a case of mala fide. No officer/official has been impleaded as respondent in person. Marks obtained by the candidates in interview for the posts of Sub-Inspectors cannot be considered for the posts of Inspectors for the reason that merit of the candidates to be judged for a higher post is always different as compared to the lower post.
12. It was further argued that some of the petitioners have filed the writ petitions in the years 2017 and 2018, which are highly belated. The petitioners in those writ petitions cannot be granted any relief. The petitioner in SWP No. __________________________________________________________________________________ SWP Nos. 3224/2015and other connected cases Page 7 of 13 3224/2015 claims that representation was filed by him, which has been denied by the official respondents.
13. Mr. Z. A. Shah, learned senior counsel appearing for some of the selected candidates of 2015 advertisement submitted that the writ petitions were filed only to reserve certain posts. The writ petitions filed pursuant to the advertisement notice issued in the year 2015 are totally misconceived as no final relief is prayed for in those writ petitions. The interim order passed by this Court is required to be vacated. The petitioners are not the candidates in the selection process initiated in the year 2015. It was further submitted that on account of interim stay granted by this Court, selection process of some of the candidates was delayed. Hence, the writ petitions be dismissed and authorities be directed to offer appointments to the selected candidates with all benefits from the date other candidates in the same selection process were appointed.
14. Learned counsel appearing for some of the selected candidates against advertisement notice issued in the year 2013 submitted that common written test was conducted for four posts. Qualification prescribed was graduation. Fair opportunity was afforded to all the candidates to represent if there was any error in the admit cards. Specific stand of the official respondents is that the Board had even issued public notice after the written test was over. The candidates interested had represented. There is no mala fide as such in the process of selection for not disclosing the marks obtained by the candidates at the stage when selection was finalized. It was for the reason that process of selection for other posts was still under progress and the same marks obtained in the written test were to be considered. The petitioners, who were not vigilant enough, cannot be now permitted to raise the grievance. The private respondents had also been selected against other posts but they opted for the post of Inspector. Setting aside of their selection at this stage would prejudice them as they will loose opportunity to join other posts. They were also deprived of participation in any __________________________________________________________________________________ SWP Nos. 3224/2015and other connected cases Page 8 of 13 other process of selection initiated after the appointments were made. Any relief at this stage can affect selection and appointments of other categories as well, which were based on the same written test. However, none of those candidates have been impleaded as party. The process of computerization had just taken place in the State of Jammu and Kashmir, which had been outsourced. There may be some issue at the initial stage. Twice opportunity was granted to the candidates to point out any error and further corrective steps were also taken to correct any error, wherever pointed out.
15. Heard learned counsel for the parties and perused the paper book.
16. Some basic facts available on record are that the State had issued advertisement notice No. 06 of 2013 dated 10.05.2013 inviting applications for different posts, which included the post of Inspector (Finance Department) and Sub-Inspector besides Accountant-Cum-Storekeeper and Assistant Handicraft Training Officer. The last date for receipt of the applications was 10.06.2013. On 03.09.2013, public notice was issued by the Board notifying the candidates to download the admit cards. The same could be downloaded from 04.09.2013 onwards for appearance in the objective type written test. The admit cards provided for details of application number of the candidates as well as item code regarding the posts they had applied. Each of the post had been given separate code number in the advertisement, such as, the post of Inspector in the Finance Department was given „003‟ code number against advertisement No. 06 of 2013. In the column of instructions for the candidates, first one was that particulars in the admit card be carefully checked by the candidates and any error should be pointed out to the Board immediately. The relevant part is extracted below:-
"(i) Particulars in the Admit Card shall be carefully checked. Error, if any, should be immediately reported to the J&K SSB Srinagar/Jammu."
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17. For facility of reference, notice published in the newspaper on 03.09.2013 giving opportunity to the candidates to get any error in the admit card corrected, is also reproduced below:-
"Government of Jammu and Kashmir J&K Service Selection Board, Zam Zam Building Rambagh, Srinagar (www.jkssb.nic.in) Notice Subject: Downloading of admit cards from the official website of Service Selection Board w.e.f. 04.09.2013 from 02.00 p.m. onwards for appearing in objective type test to be conducted on 14.09.2013.
Through the medium of present notice, all the aspiring candidates who are appearing in the objective type written test to be conducted on 14.09.2013 are hereby informed that besides collecting their admit cards from the respective Employment and counseling centre, they can also download their admit cards from the official website of the J&K service Selection Board (www.jkssb.nic.in) INSTRUCTIONS FOR DOWNLOADING ADMIT CARDS Visit the official website of the Board. Click on "download Admit Card" for examination on 14.09.2013. It may be noted that the candidate has to mention his/her application number (barcode number) mentioned on the OMR application form and date of birth for downloading the Admit Card.
In case the candidate has forgot his/her application number (Barcode number) mentioned on the OMR application and wants to access the same, he/she has to mention his/her name, parentage and date of birth as mentioned in his/her application. In case the Admit Card downloaded does not have photograph or signature on it, paste a good quality photograph duly attested by Gazetted Officer as was pasted in OMR sheet and make sure to sign at the space provided for signature. In case of any discrepancy in the provisional Admit Card, candidate may contact the following:-
__________________________________________________________________________________ SWP Nos. 3224/2015and other connected cases Page 10 of 13 Respective District Units of J&K SSB of Employment and Counseling Centres of the concerned District. However, in case of Jammu and Srinagar Districts, candidate can approach the divisional officer of the Board."
18. The case set out by the respondents is that the candidates had enough time to go through the admit cards, which were to be downloaded from 04.09.2013 onwards as the written test was to be conducted on 17.09.2013 and 21.09.2013. Some of the candidates finding error in the admit cards brought the same to the notice of the Board and thereafter the error was corrected. As there could be similar error in other admit cards issued to the candidates even after written test had been conducted, a public notice was published in various newspapers, specifically pointing out that it has come to the notice of the authorities that there had been some discrepancies in the contents of the admit cards issued in favour of the candidates, who had appeared in the written test on 17.09.2013 and 21.09.2013. They were again given opportunity to bring the error to the notice of the Board upto 30.09.2013 along with documentary proof so as to enable the authorities to correct the error. The aforesaid public notice was published in various newspapers.
19. It is not a matter of dispute that the petitioners were the candidates for responsible post in the Finance Department, namely, Inspector. It cannot be presumed that they were so careless that they did not notice any error in the admit cards to point out the same to the Board, either immediately after admit card was issued or when they were given opportunity after the written test was over. Thousands of the candidates had appeared. There may be some error. Allegation of mala fide cannot be made out against an Institution, as none of the officers/officials has been impleaded as respondent in the writ petition leveling personal allegations against him. It has further come on record that the petitioners have been selected and appointed as Sub-Inspectors and are working in the department as such for the last about five years, when the candidates for the post of Inspectors were selected. Even if, there was any error in the __________________________________________________________________________________ SWP Nos. 3224/2015and other connected cases Page 11 of 13 particulars mentioned in the admit cards that may be due to wrong punching of data in computer. However, the fact remains that measures to correct the error were taken by the Board immediately after it came to their notice.
20. It is not the stage when fresh interview can be held by scrapping selection process of all the candidates. The marks obtained by all the candidates in written test are known. The marks obtained in the interview for the post of Sub- Inspector cannot be considered for the post of Inspector because the level of two posts is totally different and so the responsibility. Further, there is likelihood of other candidates being effected, who may have been selected and appointed against other posts. They may have to be pushed down because of change of entire select list. They are not party before this Court. They cannot be condemned unheard.
21. Pleas raised by the petitioner in SWP No. 3224/2015 that he had filed representation for correction of error in the admit card is not established from the material placed on record, as there is no proof thereof. Hence, the same is rejected.
22. The writ petitions filed merely seeking relief of reservation of some of the posts in the process of selection initiated pursuant to the advertisement notice issued in the year 2015, to safeguard the interest of the petitioners, who were the candidates for advertisement notice issued in the year 2013, are totally misconceived. Admittedly, the petitioners were not the candidates in the selection process initiated in the year 2015. The writ petitions were filed merely seeking reservation of the posts to secure their interest in case they succeed in the writ petitions filed earlier pertaining to the selection process initiated in the year, 2013, the same deserve to be dismissed.
23. For the reasons stated above, I do not find any merit in these writ petitions. The same are, accordingly, dismissed.
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24. Before parting with the order, this Court would like to observe that we are living in the era of technology. The recruitment agencies, which are entrusted the job of recruitment, should also use the same, while carrying out recruitment process. The print media is not the only a mode to communicate with the candidate. Each of the candidates have mobile phones and most of them have computers. The applications are also required to be submitted on line. If the information regarding e-mail Id and mobile phone numbers is taken by the recruitment agencies at the time of filling of forms, besides public notices, the candidates can also be apprised about any development through e-mail and messages on mobiles. This will not give any chance to a candidate to raise plea that he never came to know about any notice published by the recruitment agency in the newspapers or that the newspaper has no circulation in the area, where they are residing. Entire information should be uploaded on the website of the recruitment agencies and the candidates should be adviced to visit the website regularly to note any instructions issued pertaining to any selection process. The notices should be compartmentized advertisement wise. This will be a step in the direction to bring more transparency and fairness in the process of selection.
25. A copy of the order to sent to the Chief Secretary to the Government of Jammu and Kashmir for necessary action.
(RAJESH BINDAL) JUDGE JAMMU 31.12.2018 Karam Chand Whether the order is speaking : Yes/No Whether the order is reportable : Yes __________________________________________________________________________________ SWP Nos. 3224/2015and other connected cases Page 13 of 13