Mehraj-ud-din Dar vs State and Others

Muzaffar Hussain Attar, J.—Petitioner responded to advertisement notices which were issued way back in the year 1985, 1986, 1988 and

1993 and sought consideration for being selected and appointed to the post of Naib Tehsildar, which post was advertised in terms of the

aforementioned notifications. The respondent/Board issued a notification in the year 1995 for conducting objective type test for the post of Naib

Tehsildar, which test was to be conducted simultaneously at Jammu, Srinagar, Leh and Kargil on 27.08.1995. Petitioner having been found eligible

on the terms and conditions of the advertisement notification was also permitted to take the objective type test. The respondent-Board thereafter

issued one more notification in the year 1997, wherein and where under, the candidates, who were found eligible on the basis of the objective type

test, were called for the oral test/interview. Petitioner did not find his roll number in the said notification and, accordingly, filed a representation

seeking rechecking of his paper. Petitioner thereafter filed this petition and prayed for issuance of a writ of certiorari seeking quashment of

notification dated 23.08.1995 and 16.06.1997. Notice dated 23.08.1995 provided for conducting of objective type test and notification dated

16.06.1997 notified the roll numbers of those candidates who were called for interview on the basis of objective type test conducted by the

respondent-Board.

The grounds of challenge projected in the writ petition primarily are that in the advertisement notification it was specifically mentioned that the

selection would be made through competitive test and interview but the competitive test as provided in terms of the Rules was not held and

objective type test was held. The time frame fixed for taking the objective type test was different at different places.

On notice issued in the writ petition respondent No. 3 filed counter affidavit. In the counter affidavit it is stated that initially a decision was taken

for calling the candidates in the ratio of 1:5 but lateron it was modified and candidates were called for interview in the ratio of 1:10. The petitioner

having not made the grade was not accordingly called for the interview. It is also pleaded that after the selection process was undertaken

candidates were selected and even appointed on the posts of Naib Tehsildars.

Heard learned Counsel for the parties. Considered the matter.

Learned Counsel for the petitioner made elaborate submissions and referred to host of judgments in order to persuade the court that the

selection process conducted by the respondents is illegal. Learned Counsel referred to cases reported in 2008(2) SCC 619, 1997 (9) SC 527 ,

Bihar Public Service Commission and another Vs. State of Bihar and others, , National Fertilizers Ltd. and Others Vs. Somvir Singh, . Learned

Counsel for the respondents submitted that the petitioner having participated in the selection process cannot be permitted now to turn around and

challenge the same selection process after having not secured the grade for being called for the interview. Learned Counsel referred to Judgment

reported in 2008(2) ST 328. Learned Counsel made pointed reference to para 7 of the judgment, which is reproduced as under:

7.It is not disputed that the writ petitioners-respondents herein participated in the process of selection knowing fully well that the educational

qualification was clearly indicated in the advertisement itself as B.PE or graduate with diploma in physical education. Having unsuccessfully

participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement

and selection with regard to requisite educational qualifications were contrary to the Rules.

After examining the record, it transpired that the respondents in counter affidavit filed on 07.08.2001 brought it to the notice of the Court as also

to the notice of the petitioner that the selection process, which is called in question in the writ petition, has culminated not only in selecting the

candidates but even in appointing them on the posts of Naib Tehsildars. The petitioner filed CMP No. 1283/09 seeking permission of the Court to

implead the selected candidates, who were appointed as Naib Tehsildars, as respondents in the writ petition. The Court vide order dated

8.5.2009 allowed the application and ordered that the selected/appointed persons, whose particulars were given in the application, are impleaded

as respondents in the case. Notice through substituted service by publication of notice in a daily newspaper was also directed by the Court.

This writ petition merits dismissal on the sole ground, that during the pendency of the writ petition the respondents not only made selections but

even appointed the selected candidates on the posts of Naib Tehsildars. This fact was brought to the notice of the Court as also in knowledge of

the petitioner way back in the year 2001 when the counter affidavit was filed. Petitioner failed to take steps to challenge the selection/appointment

of the selected/appointed candidates on the posts of Naib Tehsildars.

Assuming for a while that this writ petition is allowed, what will be the consequence, begets answer. Petitioner has prayed for issuance of a writ

of certiorari for quashing the notification which provided for conducting of objective type test as also the notification wherein and whereunder, the

candidates, whose roll numbers were mentioned therein, were called for the interview and also prayed that the respondents be directed to initiate

the process of selection for filling of posts of Naib Tehsildars in accordance with the recruitment rules as also the J&K Subordinate Service

Recruitment Rules, 1992. The petitioner further prayed that the respondents be directed not to make any selection/appointment to the posts of

Naib Tehsildar.

Their being no order passed by the Court stopping the selection process, the selection process accordingly proceeded ahead and culminated in

selection/appointment of the candidates and assuming for arguments' sake, even if the petition is allowed, it would be only for academic purposes

as the petitioner will not derive any benefit therefrom.

The selection/appointment of the selected/ appointed candidates having not been challenged by amending the writ petition, the writ petition is

rendered infructuous.

It is settled position of law and the soul of our constitution that neither a person can be condemned unheard nor a benefit can be taken away

from a person without putting him on notice and without affording him opportunity of hearing.

In this case, though in the year 2001, the application is filed for seeking impleadment of the selected/appointed candidates, that, however, will

not save the writ petition from the consequences of the dismissal, which it has to suffer on the basis of settled legal position, as appointment orders

are not challenged.

The grounds, which have been pleaded and urged at the time of hearing, in legal position, cannot be looked into in absence of challenge to the

selection/appointment of the selected/appointed candidates. Any order/judgment passed by the Court which has an effect of upsetting

selection/appointment without same having been challenged, would be violative of constitutional guarantees as contained in Article 14 of the

Constitution of India. No writ can be issued which would infringe the constitutional guarantees as contained in Article 14 of the Constitution.

This petition, for the above stated reasons, is held not to be maintainable and is, accordingly, dismissed.