Jammu & Kashmir High Court
State Of J&K; & Anr. And Sixteen ... vs Surinder Singh And Ors. on 15 July, 2017
Bench: Alok Aradhe, B. S. Walia
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No. 128/2009, MP No. 115/2009
c/w
LPASW No. 86/2009, MP no. 120/2009,
LPASW No. 92/2009, MP No. 125/2009
LPASW No. 93/2009, MP No. 126/2009
LPASW No. 162/2009, MP No. 217/2009
LPASW No. 117/2009, MP No. 161/2009
LPASW D-71/2014, MP No. 77/2014 and MP No. 78/2014
LPASW No. D-77/2014, MP No. D-86/2014, MP No. D-87/2014
LPASW No. D-79/2014, MP No. D 90/2014 and MP No. D-91/2014
LPASW No. D-82/2014, MP No. D-96/2014 & MP No. D-97/2014
LPASW No. D-84/2014, MP No. D-100/2014 & MP No. D-101/2014
LPASW No. D-85/2014, MP No. D-102/2014 & MP No. D-103/2014
LPASW No. D-68/2014, MP No. D-74/2014
LPASW No. D-78/2014, MP No. D-88/2014 & MP No. D-89/2014
LPASW No. D-76/2014, MP No. D-84/2014 & MP No. D-85/2014
LPASW No. D-81/2014, MP No. D-94/2014 & MP No. D-95/2014
and
LPASW No. D-83/2014, MP No. D-98/2014 & MP No. D-99/2014
Date of order:15 .07.2017
State of J&K and anr. vs. Surinder Singh and ors.
Khurshid Ahmad Sheikh and ors. vs. State of J&K and ors.
Akash Sharma and ors. vs. Gurmeet Singh Wali & ors.
Rajinder Paul and ors. vs. Surinder Sinngh and ors.
Subash Chander Sharma vs. State of J&K and ors.
Tahir Rashid vs. State of J&K and ors.
State of J&K and ors. vs. Manjeet Singh and ors.
State of J&K and anr. vs. Sanjeev Kumar Kotwal & anr
State of J&K and anr. vs. Pawan Kumar and ors.
State of J&K and anr. vs. Sudershan Kumar and ors.
State of J&K and anr. vs. Chaggar Singh and ors.
State of J&K and anr vs. Sanjay Khajuria and ors.
State of J&K and anr. vs. Gurmeet Singh Bali & ors.
State of J&K and anr vs. Sewa Singh
State of J&K and anr. vs. Sadiq Mohd.
State of J&K and anr. vs. Agya Pal and ors.
State of J&K and anr. vs. Vishal Vaid and ors.
Coram:
Hon'ble Mr. Justice Alok Aradhe
Hon'ble Mr. Justice B. S. Walia
LPASW No. 128/2009 a/w connected matters Page 1 of 22
Appearing counsel:
For the petitioner (s) : Mrs. Seema Shekhar, Sr. AAG
Mr. D. C. Raina, Sr. Advocate With
Mr. Arun Kumar, Advocate
Mr. Abhinav Sharma, Advocate
( in (LPASW No. 86/2009)
Mr. U. K. Jalali, Sr. Advocate with
Ms. Shivani Jalali, Advocate
(In LPASW No. 93/2009)
Mr. For the respondent(s) : Mr. K. S. Johal, Sr. Advocate with
Mr. Rajesh Pal Samaotra, Advocate Mr. K. M. Bhatti Advocate vice Mr. A. H. Naik, Sr. Advocate Mr. C. S. Azad, Advocate for R-1&2 In LPASW No. D-81/2014 i/ Whether to be reported in : Yes/No Press/Media ii/ Whether to be reported in : Yes/No Digest/Journal Per Alok Aradhe-J In this bunch of appeals, the appellants have assailed the validity of the judgment dated 15.05.2009, by which writ petitions preferred by the respondents have been disposed of. In order to appreciate the appellants' challenge to the impugned judgment, relevant facts need mention, which are stated infra.
2. On the basis of requisition made by the Public Works Department, J&K Service Selection Board (hereinafter referred to as the Board) initiated the process of selection for 162 posts of Junior Engineers (Mechanical) and 374 posts of Junior Engineers (Civil) vide Advertisement Notice dated 29.04.1997. It is pertinent to note here that at the time of issuance of Advisement Notice, no rules were in existence for selection/ appointment of Junior Engineers. However, vide SRO 180 dated LPASW No. 128/2009 a/w connected matters Page 2 of 22 26.05.1997, J&K Engineering Services Selection Recruitment Rules were promulgated by the State Government. The Note-3 appended to Schedule II (a) of the aforesaid SRO provided that degree and diploma holders shall be recruited in the ratio of 1:3. Thereafter, a fresh advertisement was issued by the Board vide Advertisement Notice dated 01.07.1997, by which it was provided that the candidates who have responded to the previous Advertisement Notice need not apply again. The Board initiated the process of selection of 162 posts of Junior Engineers (Mechanical) along with 374 posts of Junior Engineers (Civil) and 6 posts of Junior Engineers (Chemical).
3. During the pendency of the process of selection for the aforesaid posts, writ petition, namely, OWP No. 667/1997 was filed by one H. S. Sawhney and others, in which legality of Note- 3 contained in Schedule II (a) of SRO 180 was challenged. The aforesaid writ petition was disposed of by the learned Single Judge of this Court by order dated 10.03.1998 with a direction to State Government to treat the writ petition as representation and to decide the same. The State Government preferred an appeal, namely, LPA No. 63/1998 against order dated 10.03.1998 passed by the learned Single Judge. However, there was divergence of opinion LPASW No. 128/2009 a/w connected matters Page 3 of 22 between two Judges of the Division Bench with regard to the validity of Note-3 contained in Schedule II (a) of SRO 180. Thereupon, the matter was referred to a third Judge, who by an order 16.04.1998 held the aforesaid note, ultra vires the Constitution. Against the decision of the Division Bench, Special Leave Petition was filed before the Supreme Court, which was registered as SLP No. 4269/2003 and was disposed by the Supreme Court on 03.09.2003 on the following terms:
"It is suggested by the learned Counsel for the parties that it is open to the State Government to frame appropriate recruitment rules for appointment of Junior Engineers taking into consideration the various facts including the recruitment of Department and no further order is required to be passed in this appeal. In our view, the aforesaid suggestion requires to be accepted. It would be open to the State Government to frame the appropriate recruitment rules for the said post by considering various factors. Hence, no further orders are required to be passed in this appeal. Interim order passed by this Court directing the parties to maintain status quo is vacated.
4. The Board issued a list of 374 selected candidates for the post of Juniors Engineers (Civil/Chemical) on the basis of ratio 1:3 as mentioned in Note-3 contained in Schedule II (a) of SRO 180. Thereupon, contempt petition was filed by the degree holders against the Board. The State Government sought clarification and LPASW No. 128/2009 a/w connected matters Page 4 of 22 the Supreme Court passed an order on 16.02.2004, which reads as under:
"It is urged that this Court has issued directions to the applicant-State of Jammu and Kashmir for framing fresh Rules. It is stated that the Rules are already in existence. If that is so, State may continue with those Rules."
The opinion of the Law Department was sought, which opined that existing criteria would govern the selection and the effect of SRO 5 of 2004 is prospective in nature. The Board in its communication dated 29.06.2004, addressed to the Principal Secretary to the Government, General Administration Department, informed the Principal Secretary that unattested corrections made in the marks recorded in the merit list are irregular and no short listing of candidates seems to have been done by the Selection Committee in violation of Rule 13 (ii) of the Jammu and Kashmir Subordinate Recruitment Services Recruitment Rules, 1992 (hereinafter referred to as 1992 Rules. It was also mentioned that there were contradiction between the select list and the proceeding of the selection and the process of selection adopted by the selection committee is not entirely in consonance with the procedure laid down in 1992 Rules. The recommendation was made seeking intervention of the State Government for invoking powers under Rule 22 (b) of 1992 Rules LPASW No. 128/2009 a/w connected matters Page 5 of 22 and to regularize the selection. The State Government thereupon took a decision that selection to the post of Junior Engineer has to be based in the ratio of 1:3 in respect of degree and diploma holders and the select list submitted by the Board for approval was accepted except in respect of those candidates whose marks in the interview were found to be tampered and such candidates were mentioned 14 in number. The recommendations were approved by the State Government vide order dated 21.10.2004 and orders of appointment were issued on 21.10.2004 after rectifying the aforesaid deficiency.
5. One of the degree holders seeking clarification of the orders dated 03.09.2003 and 16.4.2004 approached the Supreme Court by filing Special Leave Petition, which was disposed of vide order dated 25.07.2005 on the following terms:
"The upshot of the two orders passed by the Court is that the Rules would continue to operate with the Note-3 deleted there from as had been found categorically by the high Court. This Court has done no more than to affirm the high Court judgment which will hold the field. The order dated 16.02.2004 disposing of IA filed by the State Government for modification is clarified in its own turn in the manner aforesaid.
The IAs are disposed of. It is made clear that there is no question of State Government recruiting on the basis of Note- 3 in any fashion whatsoever."LPASW No. 128/2009 a/w connected matters Page 6 of 22
Vide order dated 03.07.2007 passed by this Court, the Chief Secretary was directed to look into the matter and to pass appropriate orders. On 24.07.2007, a statement was made on behalf of the appellants herein that matter was examined by the Chief Secretary and compliance report will be filed by the next date. The compliance report was filed on 08.08.2007, in which inter alia it was submitted that instructions were issued to the Board to reframe the select list vide communication dated 29.03.2007 treating the degree and diploma holders at par after ignoring the ratio fixed by Note-3, in pursuance of which, the Board reframed the merit list vide communication dated 03.07.2007. The orders of appointment of candidates made on 21.10.2004 were challenged by respondents 1 to 21 in a batch of writ petitions. The learned Single Judge vide impugned judgment dated 15.5.2009 quashed the selection and appointment of respondents 24 to 169 on the post of Junior Engineer (Mechanical) and directed the appellants herein to conduct interviews afresh in pursuance of Advertisement Notice dated 29.04.1997 and to call for all the candidates who had responded to the aforesaid notice after following the mandate contained in Rule 13 (ii) of 1992 Rules. However, the Board was also granted liberty to exercise LPASW No. 128/2009 a/w connected matters Page 7 of 22 the power of relaxation under Rule 22 (b) of 1992 Rules. The learned Single Judge inter alia has held that select list cannot be sustained for the following reasons:
"(a) That appointments have been based unconfirmed select list by following the ratio of 1:3 between degree and diploma holders despite Note-3 of Rules of 1997 been declared ultra vires by the Supreme Court.
(b) That appointment were made in pursuance to the select list which was not in conformity with Rule 10 of Rules of 1992 as it was not finalized by the Board.
(c) That no relaxation was granted in terms of Rule 22(b) of Rules of 1992 for having called more number of candidates than the required as envisaged under Rule 13(ii) of Rules of 1992.
(d) That the entire process of making selection being illegal as indicated by the Service Selection Board vide its communication dated 29.06.2004 cannot be sustained. The mischief played in making the selection is so widespread and all pervasive that cannot be sustained.
Accordingly, the appellants were directed to complete the process of selection within a period of four months. In the aforesaid factual background these Intra Court Appeals have been filed.
6. Mrs. Seema Shekhar, learned Senior Additional Advocate submitted that learned Single Judge ought to have appreciated that an exercise was under taken to issue fresh select list on the basis of merit by ignoring the criteria contained LPASW No. 128/2009 a/w connected matters Page 8 of 22 in Note-3 appended to Schedule II (a) and from the revised merit list it was clear that only five candidates were ousted and eight new candidates were placed in the revised merit list. It is further submitted that respondents 1 to 21's names did not even figure in the revised merit list which was prepared ignoring the ratio prescribed in note-3. It is also submitted that the revised select list does not contain the name of any candidate whose marks were found to be tampered and even if the mandate contained in Rule 13 (ii) of 1992 Rules was not followed, no prejudice was caused to the respondents 1 to 21 as their cases were also considered along with other eligible candidates. It is also urged that it is not the case of respondents 1 to 21 that they are more meritorious than the selected candidates. Lastly, it is urged that the learned Single Judge has grossly erred in holding that entire process of selection, which was undertaken was against the law and in quashing the entire select list. In support of her submissions, learned Sr. AAG has placed reliance on decisions of the Supreme Court in the in the cases of Union of India and ors. v. Rajesh P.U. Puthuvalnikathu and anr., AIR 2003 SC 4222, Onkar Lal Bajaj vs. Union of India, AIR 2003 SC 2562, Pankaj Sharma and ors. vs. State of J&K and ors, (2008) 4 SCC LPASW No. 128/2009 a/w connected matters Page 9 of 22 273 and Tejinder Kaur and ors. vs. Lady Constable Raj Kumari, (2009) 1 SCC 177.
7. Mr. D. C. Raina, learned senior counsel for the appellants, while supporting the submissions made by learned Senior AAG, has submitted that by non-adherence to Rule 13 (ii) of 1992 Rules, no prejudice has been caused to the respondents 1 to 21 and irregularities in selection are identified and no candidate should be allowed to suffer without there being any fault on their part. It is also submitted that respondents 1 to 21 had participated in the process of selection, therefore, it is not open for them to question the same on the ground that the appointments were made in excess of the posts advertised, which is not the case here. It is submitted that Rule 13 (ii) of 1992 Rules has been followed in respect of all the candidates except in the case of General Category candidates. In support of his submissions, learned counsel has referred to Division Bench decision of this Court in the case of Dr. Irfan Rasool Gadda vs. State of J&K and ors. 2005, SLJ (II) 423.
8. Mr. U. K. Jalali, learned senior counsel for the appellant submitted that till 25.07.2005, there was no clarity with regard to the decision of the Supreme Court. On the aforesaid date, the LPASW No. 128/2009 a/w connected matters Page 10 of 22 Supreme Court had directed that the selection has to be made by ignoring Note -3 appended to Schedule II (a) of SRO 180 dated 26.05.1997. It is further submitted that SRO 5 of 2004 is prospective in nature. It is also submitted that in compliance of the order passed by this Court, a revised merit list was prepared. The names of respondent Nos. 1 to 21 neither figured in the original list nor in the revised list. It is argued that respondents 1 to 21 have no locus to challenge the process of selection especially in view of the fact that they have not suffered any prejudice. It is also submitted that by preparation of the revised merit list, corrective steps as well as remedial measures were already taken, therefore, infirmity from which initial select list suffered did not survive. In support of his submissions, learned senior counsel has referred to the decision in the case of Pankaj Sharma and ors. vs. State of J&K and ors, (2008) 4 SCC 273.
9. Mr. Abhinav Sharma, learned counsel for the appellant, while supporting the submissions made by learned Sr. AAG, submitted that the appellant have served the State for a period of almost 13 years, therefore, equity has been created in their favour and in case their appointments are disturbed at this point of time at the instance of respondents 1 to 21, who even LPASW No. 128/2009 a/w connected matters Page 11 of 22 have failed to make the grade, the appellants shall suffer irreparable injury. In the peculiar fact situation of the case, appointments of the appellants do not require any interference. It is also submitted that no relief in any case can be granted to respondents 1 to 21.
10. Mr. K. S. Johal, learned senior counsel for the respondents on the other hand submitted that no sanctity can be attached to the merit list which has been prepared following the ratio of 1:3 as prescribed in Note-3 of Schedule II (a) of SRO 180. It is further submitted that Rule 13(ii) of the 1992 Rules has been violated and the board has also not defended the appointments made by the State Government. It is argued that in the instance case, selection process was hijacked by the State Government and Rule 10 (1) as well as Rule 13(ii) of 1992 Rules have been violated by preparing the merit list. It is further submitted that appointment to a public post should be made in accordance with the Constitutional Scheme and Rule 13 (ii) of 1992 Rules is mandatory in nature and the State Government could have waived mandatory requirement only by recording reasons. It is argued that powers have to be exercised under Rule 22(b) of the 1992 Rules to relax the rigours of Rule 13(ii) of the Rules and no explanation has been offered on behalf of the appellants LPASW No. 128/2009 a/w connected matters Page 12 of 22 herein as to why more candidates have been called for interview in violation of mandate contained in Rule 13(ii) of 1992 Rules. It is also pointed out that select list has not been approved by the Board and the entire selection has been made in violation of 1992 Rules and the reframed the select list also suffers from same infirmity. It is also submitted that appointment has to be in terms of the rules otherwise the same would not confer any right. It is urged that in case the appointments are made in breach of the Rules, equity or sympathy has no role to play. In support of his submissions, learned senior counsel has referred to the decision in the case of Union of India vs. O.Chakradhar, (2002) 3 SCC 146, A. Uma Rani vs. Registrar Coop. Societies (2004) 7 SCC 112, Secretary, State Of Karnataka vs Umadevi and others (2006) 4 SCC 1, Ashok Kumar Sonkar vs Union Of India & Others 2007 4 SCC 54.
11. By way of rejoinder reply, Mrs. Seema Shekhar, Sr. AAG has produced the record before us and pointed out that the Board had approved the select list on 29.06.2004 and the same was sent to the State Government for exercise of power under Rule 22 (b) of 1992 Rules. It is submitted that appointments were made in the ratio of 1:3 as prescribed in Note-3 contained in Schedule II LPASW No. 128/2009 a/w connected matters Page 13 of 22
(a) of SRO 180 before coming into force SRO 5 of 2004. It is further submitted that select list can neither be termed as illegal nor nullity and there is no allegation of mala fide against the appellants herein. Mr. D. C. Raina learned senior counsel has submitted that the decision in the case of Uma Devi (supra) has no application to the fact situation of the case as the same pertains to backdoor appointments. It is also submitted that the decision rendered in Ashok Kumar Sonkar (supra) also does not apply to the fact situation of the case as the same deals with the cutoff date. It is submitted that in case excess number of candidates are called than the ratio prescribed in Rule 13(ii) of 1992 Rules, the same would not vitiate the entire process of selection. In support of his submission, learned senior counsel has referred to the decision of Supreme Court in the case of Ashok Kumar Yadav And etc. vs State Of Haryana And Ors. (1985) 4 SCC 417, and decision of Davison Bench of this Court in SWP No. 555/1990 and LPA No. 16/1993, titled, Mukhtar ul Aziz vs. State of J&K, decided on 07.06.2004 and LPASW No. 82/2005, titled, Rajesh Kumari vs. State of J&K decided on 29.09.2015. It is also submitted that instant case is not a case of illegal appointment as the appellants hold qualification for the post in LPASW No. 128/2009 a/w connected matters Page 14 of 22 question and the process of selection suffered from same procedural irregularity, which has been subsequently rectified.
12. We have considered the submissions made by the learned counsel for the parties and have perused the record. The Supreme Court in the case of Krishan Yadav vs. State of Haryana, (1994) 4 SCC 165 has held that fraud, nepotism, favoritism and arbitrariness cannot be countenanced in the matter of public appointments where the entire process of selection is stinking, conceived in fraud, and delivered in deceit, the entire process of selection has to be quashed. Similar view was taken by the Supreme Court in the case of Union of India vs. O.Chakradhar, (2002) 3 SCC 146. Again similar view was reiterated in the case of A. Uma Rani vs. Registrar Coop. Societies (2004) 7 SCC 112. In MP State Coop. Bank LTD. Vs. Nanu Ram Yadav and ors, (2007) 8 SCC 264, it has been held that where the mischief played is so wide spread and all pervasive, affecting the result so as to make a difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, the only way out would be to cancel the whole selection. In other words, where it is possible to identify the persons who have been unlawfully benefited LPASW No. 128/2009 a/w connected matters Page 15 of 22 or wrongfully deprived of their selection the Court would not quash the entire select list. In the case of Joginder Pal and others vs. State of Punjab and ors. (2014) 6 SCC 644, it has been held that the entire selection list need not be quashed, if tainted as well as non-tainted candidates can be segregated. Similar view has been taken in the case of Pradeep Kumar Rai and others vs. Dinesh Kumar Pandey and others, (2015) 11 SCC 493.
13. In the backdrop aforesaid well settled legal position, the facts of the case in hand may be examined. There cannot be any dispute with the proposition that the appointment to the post in question cannot be made on the basis of the ratio of 1:3 as prescribed in Note-3 appended to Schedule II (a) of SRO 180 dated 26.05.1997 as the same has been declared to be ultra vires by the Supreme Court. Therefore, we are in agreement with the first conclusion recorded by the learned Single Judge that appointment cannot be made by following the ratio prescribed in Note-3. However, the issue which is required to be examined is whether in the fact situation of the case, the entire select list is required to be quashed.
14. Admittedly, the Board on 03.07.2007 had reframed the merit list in pursuance of the LPASW No. 128/2009 a/w connected matters Page 16 of 22 communication dated 29.03.2007 treating the degree and diploma holders at par and by ignoring the ratio fixed by Note-3 of Schedule II
(a) of SRO 180 dated 26.05.1997. In the aforesaid revised list, admittedly the names of respondents 1 to 21 do not appear. Thus, even on the basis of revised norms, the respondents 1 to 21 have failed to make the grade. It is also pertinent to mention that it is not the case of respondents 1 to 21 that they are more meritorious than the candidates, who have been selected. Thus, by preparation of the revised merit list by the Board, the basic infirmity which previous merit list had, disappeared and the merit list was prepared on the basis of merit ignoring the ratio of 1:3 as prescribed in Note-3. It is also pertinent to note that the revised merit list does not contain the names of candidates whose marks have found to be tampered. Therefore, even this irregularity has vanished with the preparation of revised list during the pendency of the writ petition.
15. The Supreme Court in the case of State of UP vs. Babu Ram Upadhya, AIR 1961 SC 751 has held that for ascertaining the real intention of the legislature the Court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other, the LPASW No. 128/2009 a/w connected matters Page 17 of 22 impact of other provisions, whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely that the statute provides for a contingency of the noncompliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered. It has further been held in the case of Mohan Singh vs. International Air Port Authority (1997) 9 SCC 132 that if the object of enactment is defeated by holding the same directory.
16. At this stage, we may advert to Rule 13 (ii) of 1992 Rules, which reads as under:
"Ordinarily, the Board shall restrict the number of applicants to the admitted to oral or written test to a maximum of five times the number of vacancies after doing the preliminary screening on the basis of marks obtained in the qualifying examination and such other criteria as the Board may deem fit.
From the perusal of the aforesaid Rule, it is evident that the aforesaid Rule is directory in nature, which is axiomatic from the language employed in the aforesaid rule. Besides that, it does not provide for any consequence for its non-compliance. The object of the Rule is to select the best candidates. Therefore, even if the LPASW No. 128/2009 a/w connected matters Page 18 of 22 candidates are called in excess in ratio prescribed in Rule 13(ii), the same would not vitiate the process of selection especially in view of the fact that respondents 1 to 21 have not suffered any prejudice as they have been considered for appointment. It is pertinent to note that Rule 13 (ii) is violated only in case of General Category candidates as only General Category candidates were called in excess of the ratio prescribed in Rule 13(ii). In respect of other categories, the same has been followed. Something more is required to be shown than merely calling large number of candidates in interview in order to invalidate the process of selection. See Ashok Kumar Yadav and etc. vs State Of Haryana and Ors. 1985 4 SCC 417. For the aforementioned reasons, in our considered opinion, partial non-compliance of Rule 13 (ii) of the Rules would not vitiate the entire selection process as the aforesaid Rule even otherwise is directory in nature.
17. Thus, in the instant case, the infirmity from which the first merit list suffered, having been removed by preparation of revised merit list, and the persons, who were unlawfully benefited or wrongfully deprived of their selection, are identifiable. It is also pertinent to mention here that the instant case is not the case of illegal appointment but an appointment which suffers LPASW No. 128/2009 a/w connected matters Page 19 of 22 from procedural infirmity which is not fatal to the process of selection. Therefore, in view of the law laid down in the case of MP State Coop. LTD, Joginder Pal and others and Pradeep Kumar Rai and ors. (supra) and in the fact situation of the case, the entire select list ought not to have been quashed by the learned Single Judge.
18. It is also noteworthy that respondents 1 to 21 have not been able to make a grade either in the first merit list or in the revised merit list. It is not the case of respondents 1 to 21 that they are more meritorious than respondents 24 to 169. Therefore, at the instance of respondents 1 to 21 no interference in the matter is called for especially at this point of time when selected candidates have put in more than 13 years of service and might have been further promoted. Similar view was taken by a Division Bench of this Court in the case of Riyaz Ahmad Gada vs. State of J&K and others decided on 29.09.2009 in SWP No. 1724/1999. The relevant extract of which read as under:
"In the event those appointments, which are interfereable are interfered with, though people will suffer to the extent as indicated above, but, at the same time, it must be considered whether, after lapse of almost ten year, it would be appropriate at all for the Court to interfere with such appointments. In the event such appointments are interfered with those LPASW No. 128/2009 a/w connected matters Page 20 of 22 16 people, who have been appointed over and above 33 notified posts, will suffer irreparable loss and injury, for, by reason of passage of time they have become over aged and cannot compete for being selected afresh, while, in the meantime, they have lost many opportunities to offer themselves for being selected pursuant to subsequent notifications."
19. Reverting to submissions made on behalf of respondents, it is noteworthy that decision relied upon in the case of Umadevi (supra) has no application to the fact situation of the case as same pertains to illegal appointments. Similarly, the decision in the case of Ashok Kumar Sonkar (supra ) is of no assistance to respondents as the same pertains to acquisition of qualification after the cutoff date, in that context, it was held that candidates who did not have requisite qualification on cutoff date could not have been called for interview. Undoubtedly, in the case of selection fraught with illegality no sympathy can be shown, which is not the case here.
20. In view of the preceding analysis, we therefore, set aside and quash the order passed by the learned Single Judge and dispose of these appeals with the following directions:
a) That the concerned department of the State Government shall make appointment to the posts in question with effect from 21.10.2004 strictly in accordance with the revised merit LPASW No. 128/2009 a/w connected matters Page 21 of 22 list prepared by the Board.
b) The Board as well as the State Government shall ensure that the list does not contain the names of the candidates, whose marks have been found to be tampered.
c) The Board shall send an intimation to the candidates, who have been found to be eligible as per revised merit list for appearing in the interview and result of such candidates, who appear in interview shall be declared. In case of such candidates the State Government shall be free to exercise powers under Rule 22(b) of 1992 Rules.
d) Let the aforesaid directions be carried out within a period of two months from today.
21. With the aforesaid directions, the appeals stand disposed of.
(B. S. Walia) (Alok Aradhe)
Judge Judge
Jammu:
15.07.2017
Karam Chand
LPASW No. 128/2009 a/w connected matters Page 22 of 22