Jagdeep Katoch vs State Of J&K And Ors

Rahul Bharti, J

Through the medium of the present writ petition filed on 27.05.2013, the petitioner is seeking to upset the selection-cum-engagement of the respondent no. 5 namely Vakesh Kumar as Gram Rozgar Sewak/Sahayik (GRS) for Panchayat, Hambal-A, Block Marmat, District Doda effected by the respondent no.3 i.e. Assistant Commissioner Development (Chairman NREGA Supporting Staff Selection Committee) Doda.

The selection-cum-engagement of the respondent no. 5 is sourced to a notification dated 20.07.2012 no. ACDD/MGNERA/SS/2102/5163-80 accompanied with annexure thereto in which the provisional select list of the candidates for temporary engagement of Gram Rozgar Sewak/Sahayik (GRS), Block Marmat, District Doda, 2nd Phase got published wherein the name of the respondent no. 5 with score point of 46.87 came to figure for temporary engagement as Gram Rozgar Sewak/Sahayik (GRS) for Panchayat Humbal-A whereas the petitioner came to be placed in waiting list with score point of 45.39.

Upon coming across with the said notification, the petitioner, bearing the grievance that the figuring of Vakesh Kumar in the provisional select list for temporary engagement as Gram Rozgar Sewak/Sahayik (GRS) was a back door exercise carried out by the Assistant Commissioner Development, Doda, filed a writ petition being SWP no. 1643 of 2012 before the High Court on 03.08.2012. The writ court, in terms of an interim order dated 03.08.2012, came to direct the stay of selection of Vakesh Kumar as Gram Rozgar Sewak/Sahayik (GRS) for Panchayat Humbal-A, Block Marmat, District Doda.

During the pendency of said SWP no. 1643 of 2012, the petitioner had come to submit a written representation dated 22.09.2012 to the Assistant Commissioner Development, Doda as being the Chairman of the NREGA Selection Committee, whereby the petitioner had registered his vehement objection to the figuring of Vakesh Kumar in the provisional select list. The point of objection taken by the petitioner in his representation dated 22.09.2012 was to the effect that the claim of Vakesh Kumar having a graduation degree from the alleged Sikkim Manipal University Gantok was spurious. To the said representation of the petitioner, the Assistant Commissioner Development, Doda, instead of taking due care and caution to examine and verify the objection stated therein, came forward with a three line reply that since the matter is subjudiced before the High Court under SWP no. 1643 of 2012, so the representation of the petitioner was not to be considered.

Upon this response from the respondent no. 3, the petitioner came to submit an application on 13.02.2013 before the writ court, being seized of SWP no. 1643 of 2012, seeking a court direction to the Assistant Commissioner Development, Doda for deciding the said representation dated 22.09.2012 of the petitioner on its merits. The writ court had found favour with the said plea of the petitioner and vide an order dated 15.02.2013, the writ petition SWP no. 1643 of 2012 itself came to be disposed of with a direction to the Assistant Commissioner Development, Doda to dispose of the said representation of the petitioner within a period of two months time frame.

The cause of action for the petitioner to come up with the present writ petition before the High Court accrued upon the outcome of the disposal of his said representation dated 22.09.2012 by an order dated 13.05.2013 no. ACDD/Court Cases/2013-14/2445-49 passed by the respondent no.4, as being the respondent no.3 i.e. the Assistant Commissioner Development, Doda. The petitioner chose to carry forward his resolve to seek justice in his cause on account of his non selection-cum-engagement as Gram Rozgar Sewak/Sahayik (GRS) and has sought the relief in the writ petition for quashment of not only his representation rejection decision by the respondent No. 3 but also the corrigendum notification dated 24.04.2012 to the extent it pertains to the short listing of the respondent no.5 for the selection-cum-engagement as Gram Rozgar Sewak/Sahayik (GRS) and who was subsequently, vide notification dated 20.07.2012, favoured with the provisional selection as Gram Rozgar Sewak/Sahayik (GRS).

The respondent No. 5, despite being served in the case, has chosen not to come and defend his selection-cum-engagement on temporary basis as Gram Rozgar Sewak/Sahayik (GRS).

In the writ petition, the respondent no. 4 is impleaded by name as he was then serving as the respondent No.3 i.e., Assistant Commissioner Development, Doda who officiated as Chairman NREGA Supporting Staff Selection Committee, Doda and has been the maker of situation rendering the petitioner aggrieved. The objections to the writ petition came to be filed on behalf of the official respondents No. 1 to 4 supported with an affidavit of the present incumbent as the respondent no.3.

Heard the learned counsel for the petitioner as well as for the official respondents.

Applications for selections-cum-engagement for NREGA Supporting Staff (Gram Rozgar Sewaks) block wise in 112 Panchayats in the District Doda, J&K, were invited by a notification dated 28.11.2011 no. ACD/MGNREGA/SS/2011-12/8385-8400 issued by the respondent No. 3 i.e., the Assistant Commissioner Development, Doda (Chairman NREGA Supporting Staff Selection Committee Doda).

The respondent no.3 i.e. Assistant Commissioner Development, Doda came forward with a Notification dated 02.04.2012 no. ACDD/NREGA/2009/2011-12/14-30 in terms whereof from all the applicants who had applied for selection-cum-appointment as Gram Rozgar Sahayak, the short listed candidates, which included the name of the petitioner and five others but not that of the respondent no.5 figuring in annexure A to the said notification dated 02.04.2012 were called for interview announced to be conducted with effect from 09.04.2012 to 22.04.2012 at Zila Gramin Vikas Bhawan ACD Office Doda. In this very notification dated 02.04.2012 with respect to the short listed candidates, the eligibility prescribed was 10+2 and the selection criteria was laid down to the effect that out of 100 points, 60 points reserved for candidates possessing 10+2, 10 points for graduation, 05 points for Post Graduation, 05 points for experience and 20 points for viva-voce. The short listing was done in terms of 1:5 ratio in each category.

In addition to the short listed candidates figuring in annexure A to the notification dated 02.04.2012, notification provided a scope with respect to the candidates whose names did not figure in the short list but were having points more than or equal to cut-off points shown in the short list (annexure A), to submit application along with the relevant documents/testimonials to the respondent no.3 by or before 07.04.2012.

The notification dated 02.04.2012 carried a condition at serial no.10 putting the candidate(s) on caution that anyone found guilty of impersonation or submitting fabricated/tampered documents/testimonials or making false, incorrect or suppressing material information shall be rendered liable for criminal prosecution besides being debarred from participation in any recruitment to be made by the selection committee i.e. by the respondent No.3. This condition no. 10 carries significance in the context of issue involved in the present petition as to whether the graduation degree of the respondent no. 5 which gave him the scoring edge viz-a-viz the petitioner was a genuine and valid degree.

In the annexure A which was an original first short list to the notification dated 02.04.2012, it was only the petitioner along with five other individuals who figured therein for Hambal-A and in that the name of the respondent no. 5 was missing. The respondent no.3 then came forward with a Corrigendum dated 24.04.2012 no. ACDO/NREGA/2002/779-99 purportedly issued upon dealing with objections of left out applicants who did not figure in the first short list Annexure A to the notification dated 02.04.2012. Vide this corrigendum dated 24.04.2012, the name of the respondent no. 5 was also included in the short list candidates for Gram Rozgar Sewaks under MGNREGA in respect of Panchayat Hambal-A. Thus the total number of short listed candidates came to be seven for Panchayat Hambal-A.

Now, the basis which purportedly led to the selection of the respondent no. 5 for engagement as Gram Rozgar Sewak for Panchayat Hambal-A was his claim of qualification as being a graduate Bachelor of computer Application (BCA) from Sikkim Manipal University through Study Centre VIT College 69, B. C. Road, Rehari Chungi, Jammu. It is this purported qualification which earned marks to give the respondent no. 5 an edge to outscore the petitioner in the competition for the engagement.

The petitioner, by carrying out his inquiry through RTI mode, came forth with a situation that the alleged graduate degree of the respondent no. 5 was from an educational institution non-recognized by the State of J&K and, as such, brought the matter to the notice of the respondent no.4, then serving as the respondent no.3, but the same did not bother the respondent no.4 to confirm the educational credentials as to graduation claim of the respondent no.5 despite the fact that the condition no.10 of the notification dated 02.04.2012 did envisage that the genuineness of the testimonials to be an indispensable condition of selection. Even in their objections to the writ petition, the official respondents no. 1 to 3 have avoided to take any stand worth name as to the genuineness and validity of the alleged graduate degree of the respondent no. 5 and who himself has also chosen to stay away from the proceedings of the writ petition for the reasons which can lend a very safe inference that the respondent no. 5 has perhaps made use of a spurious document as a graduation degree. In fact, a bare look and perusal of the copy of the alleged degree of the respondent no. 5 on record by this Court itself sets in an impression as if it is a self produced and prepared document which was meant to be used for its desired purpose. Now, when there is no one to vouchsafe the veracity and validity of the alleged graduation degree of the respondent no. 5 which actually earned him the favour of shortlisting and then selection, then how come the same can be allowed to hold good for justifying the selection of the respondent no.5.

Thus, the very basis firstly of late inclusion of the respondent no. 5 in the short listed candidate and then even getting selected for engagement, though not actually engaged, as Gram Rozgar Sewak/Sahayik, Panchayat Humbal-A, being related to his graduation degree gets eroded. Instead of suffering rejection, the respondent no. 5 came to be favoured with selection by the dereliction and casualness on the part of the respondent no.4 serving as the respondent no.3.

The selection of the respondent no.5 is, thus, held and declared as wrong and underserving which is, accordingly, set aside. Since the next candidate by merit basis and in the wait list was the petitioner, so the petitioner is held entitled to be selected, not account of being in the wait list but being the one who ought to have been actually selected. Now, whether the Scheme under which the engagement of Gram Rozgar Sewak/Sahayik was undertaken or was being undertaken continue to be in place so as to afford the engagement in favour of the petitioner as Gram Rozgar Sewak/Sahayik for Panchayat Humbal-A, Block Marmat, District Doda is for the respondent no. 3 to consider. In case the Scheme is still in effect and the Gram Rozgar Sewaks/Sahayiks so selected and engaged under Notification dated 20.07.2012 no. ACDD/MGNREGA/SS/2102/5163-80 by the respondent no. 3 are working on their engagement, then the petitioner be also engaged by following the procedure meant to have been followed in case the petitioner would have been actually selected for engagement at first instance. The engagement, if so made, shall not earn any retrospective monetary claim to the petitioner.

Announced.