Bashir Ahmed vs State of J&K through Chief Secretary

The post of Draftsman in Rural Engineering Wing (REW) of Rural Development Department (ROD), is the bone of contention. Both petitioner

and private respondent No.7 are claiming it for their own reasons.

The matter has had a chequerred history. It had gone through bouts of litigation and had finally landed up for final disposal.

Petitioner's case is that he was first engaged for the post on daily wage basis from 10.1.1992 to 5.7.1993. He then sought regularisation of his

services on the post. His case was processed and recommended by respondent No.5 to respondent No.2 vide communication dated 16.7.1993.

But, he was ultimately told to apply to the Services Selection Board (SSRB) and seek selection to the post which was ordered to be referred to

the Board through respondent No.5. This, according to him, gave birth to advertisement notice No. 7/93 dated 22.12.1993 issued by the SSRB

inviting applications from eligible candidates for filling one post of Draftsman is REW (ROD) and 20 posts of Draftsman in Public Works Deprt.

(PWD). He responded to it and so did private respondent No.7 and there ends the similarlity.

But, petitioner claims that he applied forthe post of Draftsman in ROD whereas private respondent No.7 did not specify her choice and

impliedly sought selection for 20 posts in PWD. But, when the Board later prepared a select list, he was placed at S.No. 15 of the merit list but

was surprisingly recommended for appointment to the post of Drafts man. In PWD(R&B) for which he had not applied and ordered to be posted

in Srinagar Development Authority. As against this, private respondent No. 7 figured at S.No. 28 and was selected for appointment as Draftsman

in ROD (REW) by Order dated 2.9.1994 passed by respondent No. 5.

Petitioner has filed this petition calling in question the appointment of private respondent No.7 in RDD(REW). His claim is that he alone was

liable to be appointed to the post of Draftsman in ROD as he had specifically sought consideration for it pursuant to advertisement notice No. 7/93

and since he was not a candidate for remaining 20 posts of Draftsman in the PWD. It is also submitted by him that this all important post was

referred to the SSRB on his prodding and persuation to formulize his appointment on the post against which he had worked since 10.1.1992. As

such he could not be deprived of consideration and appointment to this post more so when private respondent No.7 had not applied for selection

to this post.

It appears that at one stage this Court was informed that private respondent No.7 had no objection to petitioner's appointment to the post. This

writ petition was consequently disposed of once by judgement dated 20.10.1995 directing the SSRB to amend its recommendation and to

substitute petitioner for private respondent No.7 for appointment to the post of Draftsman in ROD (REW). An appeal was taken against this

judgement both by the SSRB and private respondent No.7. The appeal of SSRB was dismissed by the Division Bench but that of private

respondent No.7 was allowed on the plea that reply of this private respondent was fraudulently manipulated to convey ""No objection' on her

behalf. Resultantly, the judgement of the writ Court was set aside and the matter was remanded for rehearing. That is how the petition is coming up

for a second disposal now.

Be that as it may, both the SSRB and private respondent No.7 have filed their reply taking a similar stand. It is projected by both that a

common advertisement notice No. II 93 had notified common category posts of Drafts without requiring the candidates to specify their

choice/option of the department. Accordingly all the candidates had competed for all the posts and were interviewed and assessed together and

later allotted to the two departments on the basis of their merit. It is pointed out that private respondent No.7 was allotted to ROD because of her

inferior merit.

The reply filed by private respondent No.7 proceeds on the same lines besides alleging fraud againt the petitioner for placing on record ""No

Objection of private respondent No. 7"" to facilitate his appointment to the post of Draftsman in ROD (REW).

In this backdrop, all that remained to be seen was: whether petitioner or private re, spondent No.7 was the true and legitimate claimant to the

prized post of Draftsman in ROD?

The arguments of the rival counsel proceeded on expected lines. Petitioner's counsel, Mr. Aijaz, reiterated his stand that the petitioner alone

was entitled to be appointed as Draftsman in RDD as he had applied for it and sought appointment for it. He could not be allotted to the PWD

because he had not sought any appointment in this. He further contended that once official respondents had made an offer for filling up the post of

Draftsman in RDD and petitioner had accepted this by seeking selection, he could not be deprived of appointment to this post.

The opposite counsel, Mr. Bashir, expectedly harped on the ""common category of posts"" theory. He argued that since applications were not

invited for separately for two categories of posts and the SSRB had not conducted any separate test for these posts, it was not open to a

candidate to exercise his option for the post of Draftsman in either department.

The case represents a queer mixup of sorts pleading to a surprising reversal of positions. But it does not require any effort to visualise that the

petitioner was unjustifiably deprived of his appointment to the post of Draftsman in RDD on untenable grounds. It is borne by the record that he

was all along working on this post since 1992 and was clamouring to seek appointment to it on permanent basis. He had made endeavours in this

regard by seeking regularisation of his services through executive action which finally culminated in reference of this post to the SSRB for selection

whereby he was informed to seek consideration through Board vide Under Secretary's communication dated 13.9.1993 and as a sequel whereto

the post was advertised in advertisement notice No. 7/93.

It is also a matter of record that the petitioner alone had sought selection for appointment to the post of Draftsman in ROD and no other

candidates. He had not set up his candidature in PWD. Thus, he could neither be rejected nor appointed to this post because he had not sought

appointment on it. He could not be appointed to a post for which he had not sought consideration nor could he be found suitable for it by the

SSRB. If anything, his suitability for this post of Draftsman in ROD was beyond doubt because he had worked on it from 1992 onwards and had

gained experience in the process.

On the contrary, private respondent No.7 had applied for the post of Draftsman and not in ROD. She could be said to have applied impliedly

in PWD and was not liable to be recommended for appointment in ROD. But, she was strangely selected in ROD and on the specious but

untenable plea that she possessed inferior merit. It is not understandable how this criteria was evolved to allot her to ROD in disregard of the

candidates comparative suitability for the post.

The justification offered by the Board that the post of Draftsman was advertised as a ""common category post"", also does not sound plausible.

It is inconsequential whether the Board had asked the candidates to give their choice or option for the post or whether it had held a common or

separate test. So long as it advertised one post in RDD and 20 posts in PWD and petitioner specifically sought appointment to the post of

Draftsman in RDD and was selected, it had not choice but to recommend him for appointment to this post. Private respondent No.7 was indeed a

stranger for consideration to this post.

This petition accordingly succeeds and the mixup is cleared by providing that petitioner be treated as selected for appointment to the post of

Draftsman in RDD and private respondent No.7 in PWD from their respective dates of appointment with consequential benefits, if any. Any orders

passed to the contrary shall be deemed quashed.