Jammu & Kashmir High Court
Sher Singh vs State Of J&K And Ors on 9 April, 2014
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPASW No. 87 OF 2009 Sher Singh Petitioners State of J&K and ors Respondent !Mr. R. S. Thakur, Sr. Advocate with Mr. Pankaj Jamwal, Advocate ^Mr. H. A. Siddiqui, AAG Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 09.04.2014 :J U D G M E N T :
Muzaffar Hussain Attar
1. The Jammu and Kashmir Service Selection Board, Jammu issued Advertisement Notice No. SSB-3 of 1995 dated 07.03.1995, whereunder applications on the prescribed form were invited from the permanent residents of J&K State for their selection to undergo Patwar training in the Revenue Training Institute, Jammu/Srinagar. It was also provided in the said notice that the candidates who will successfully complete the said training course will be eligible for appointment as Patwaries/ Office Patwaries/ Consolidation Patwaries. The writ petitioner-appellant responded to the said Advertisement Notice but he was not selected to undergo Patwar training, which constrained him to approach the Writ Court by filing SWP No. 1186/1998. Writ petitioner-appellant in the said writ petition called in question the selection of private respondents and his exclusion there from. The writ petitioner-appellant was permitted to undergo Patwar training in terms of the interim order passed by the learned Writ Court. The writ petition was disposed of by the learned Writ Court by directing the respondents to consider the claim of the writ petitioner-appellant for appointment in terms of Advertisement Notice, whereby vacancies were notified.
2. The official respondents including Service Selection Board challenged the order passed by the learned Writ Court in LPASW No. 357/2001. The Letters Patent Bench vide its judgment and order dated 09.11.2005 observed that It becomes unnecessary to go into the merit of the issues raised in the first respondents writ petition because the Writ Court direction contained in the impugned order should have been for deputing him for Partwar training, but it had wrongly directed his appointment to the post of Patwari. Even under the advertisement notice, the Patwar training only renders a candidate eligible for appointment to the post of Patwari and did not otherwise guarantee appointment in all events. This, direction, therefore, otherwise was not in order and what ought to have been directed, at best, would be to depute the first respondent for Patwar training which, in any case, was done under the interim orders of the Writ Court.
3. The Letters Patent Bench while modifying the impugned order of the Writ Court directed the appellants to consider the writ petitioner, appellant herein for appointment to the post of Patwari, if not already considered, and pass appropriate orders within two months from the date of receipt of copy of the order.
4. Contempt petition registered as COA (S) No. 115/200 was filed by the writ petitioner-appellant seeking initiation of competent proceedings. The said contempt petition was disposed of in view of Government order No. 129-NG Rev. of 2006 dated 03.08.2006 whereunder claim of the writ petitioner-appellant for the post of Patwari was rejected. The writ petitioner-appellant challenged the aforesaid Government order in SWP No. 2160/ 2006, which writ petition was dismissed by the learned Writ Court vide its judgment and order dated 20.04.2009. It is this order which is called in question in this Letters Patent Appeal.
5. Mr. Thakur, learned senior counsel appearing for the writ petitioner-appellant submitted that in view of the observations made by the Letters Patent Bench in its judgment dated 09.11.2005, the respondents had no option but to offer appointment to the writ petitioner-appellant. Learned counsel submitted that the appellant was to be considered under reserved category (RBA) for being appointed on the post of Patwari. Learned counsel while referring to the documents showing result of the candidates who had undergone Patwar training submitted that many persons who were deputed to undergo Patwar training had not qualified the said course whereas, the appellant was declared to have qualified the said course. Learned counsel submitted that Order dated 03.08.2006 whereunder claim of the appellant was rejected is non speaking order, inasmuch as, Competent Authority while passing the order has not adverted its attention to the observations made by the Letters Patent Bench in Order dated 09.11.2005. Learned counsel submitted that no appropriate reasons have been recorded in order dated 03.08.2006 for rejecting the claim of the writ petitioner-appellant for being appointed on the post of Patwari.
6. Learned counsel also submitted that the reason recorded for rejecting the claim of the writ petitioner-appellant in order dated 03.08.2006 is that by the appointment of appellant, other candidates would also claim similar treatment, which will open a floodgate and create a lot of administrative problems. Learned counsel submitted that such a ground would not disentitle the appellant from being appointed and prayed that the appeal be allowed and respondents be directed to appoint the writ petitioner- appellant on the post of Patwari.
7. Mr. H. A. Siddiqui, learned AAG submitted that in the process of selection, the writ petitioner-appellant could not be selected because of his poor merit. Learned counsel submitted that 57 posts were notified for being filled up in District Udhampur, to which District the writ petitioner belongs to. Learned counsel submitted that appellant figured at Sr. No. 77 in the selection list for undergoing Patwar Training notified vide Notification No. FC (A) of 2001 dated 03.01.2001 for the Sessions September/ 2000. Learned counsel submitted that order dated 03.08.2006 has been passed by the Competent Authority on proper appreciation of merits of the case and with due regard to the judgment of the Court. The appellant could not secure required merit, which disentitled him to be selected for undergoing Patwar Training in Revenue Training Institute.
8. It appears that 11 persons in the RBA category were selected to undergo the Patwar training course on the merit secured by them. The appellant challenged the selection of these candidates in SWP No. 1186/1998. In terms of the interim order, he was directed to undergo Patwar training course. Learned Writ Court without returning findings as to whether the appellant was illegally not selected to undergo Patwar training course or because of his poor merit failed to secure berth in the Revenue Training Institute, disposed of the writ petition and directed the respondents to consider his claim for his appointment. It appears that in the writ petition the issue was not about the appointment, but was about the selection of private respondents for undergoing Patwar training. The learned Writ Court was duty bound to return the findings about the merit of the claim of the appellant for undergoing Patwar Training course as because securing of any benefit in terms of interim order of the Court does not clothe a person with any right in law until such time, at the time of disposal of the writ petition, finding one or the other way is recorded in the judgment. Nothing has been said in the judgment as to whether appellant was entitled to undergo Patwar training on his own merit.
9. Be that as it may, Letters Patent Bench has made observation in one of the paragraphs of the judgment dated 09.11.2005, which para of the judgment has already been taken note of in this order that the issue raised in the writ petition was about deputing the writ petitioner-appellant for Patwar Training. It has been observed that the direction contained in the impugned order should have been for deputing the appellant for Patwar training but it had wrongly directed for consideration of his case to the post of Patwari. Letters Patent Bench in the same paragraph observed that the aforesaid direction for appointment was not in order and it ought to have directed to depute the appellant for Patwar Training. The Letters Patent Bench after making this observation directed that since the appellant had already completed the Patwar training course so he would deserve to be considered for appointment to the post dehors the merit of the contentions raised by the parties before the Court. The respondents were accordingly directed to consider the writ petitioner-appellant to the post of Patwari.
10. Appointments to the post of Patwari at the relevant time were governed by Jammu and Kashmir Revenue (Subordinate) Service Recruitment Rules, 1973. In terms of Jammu and Kashmir (Subordinate) Services Recruitment Rules, 1992, on reference of posts by the appointing authority, the Service Selection Board was required to make selection of the meritorious candidates.
11. Administrative Officer with Financial Commissioner (R) J&K addressed communication No. FC (NG-Writ) 26/98 dated 18.07.2003 to Secretary to Govt. Revenue Department, J&K Srinagar. In the said communication, the Secretary was informed that claim of the appellant for his appointment could not be considered as Service Selection Board had refused to select him in isolation and further on the recommendation of the Service Selection Board, the candidates have already been appointed. It was also informed that in the alternative Government should issue order for his appointment on the basis of directions of High Court.
12. In the admitted fact situation, appellant could not seek his deputation on his own merit for undergoing Patwar training in the Revenue Training Institute and has undergone the said training on the basis of interim order passed by the learned Writ Court. In the writ petition, only issue involved was about undergoing Patwar training course, which finding has been recorded by the Letters Patent Bench in its order dated 09.11.2005. The respondents have specifically stated that because of his poor merit, appellant was not selected for being deputed to undergo Patwar training course.
13. In view of the mandate contained in Article 16 of the Constitution of India, right of consideration for being selected and appointed on the post of Patwari would vest in the appellant in case he on his own merit could have been deputed to undergo Patwar training course. Even otherwise successful completion of Patwar training course does not make a person entitled for being appointed on the post of Patwari. He only has a right of consideration and not the right of appointment. Selection/appointment would depend upon the merit secured by the candidate in the selection process. Admittedly, the appellant did not secure requisite merit even for being deputed to undergo Patwar training course. Besides this, in view of the communication dated 18.07.2003, selected candidates have already been appointed and no post was available against which the writ petitioner-appellant would be considered and appointed. The respondents have rightly considered the claim of the writ petitioner-appellant in pursuance of the judgment of the court. Rejection of his claim for such appointment, for the above recorded reasons, does not call for any interference. Consequently, the impugned judgment cannot be set aside.
14. In view of the aforesaid discussions, this appeal is meritless and the same is accordingly dismissed.
(Muzaffar Hussain Attar) (M. M. Kumar) Judge Chief Justice Jammu, 09.04.2014 Karam