Mudasir Bashir vs Government Of J&K And Others

Sanjeev Kumar, J

In the instant petition the petitioner has essentially challenged the vires of Rule 51-A of the Jammu and Kashmir Public Service Commission

(Business and Procedure) Rules, 1980 (hereinafter to be referred as ‘the Rules’), and has sought a direction to the respondent- Public Service

Commission to call the petitioner for medical/fitness test and appoint him to the post of Civil Judge ( Junior Division)/Munsiff, notified in terms of

notification dated 30.05.2018.

The facts which are relevant to the disposal of this petition are that, vide reference dated 21.05.2018 issued by the Department of Law Justice &

Parliamentary Affairs ( hereinafter for short, ‘the Department of Law’), 42 posts of Civil Judge ( Junior Division)/Munsiffs were referred to the

J&K Public Service Commission for conducting selection process in accordance with the Jammu and Kashmir Civil Services (Judicial) Recruitment

Rules, 1967 ( hereinafter for short, ‘ the Recruitment Rules’). The referred posts were notified by the Commission vide its notification dated

30.05.2018. The selection process, in which the petitioner also participated as one of the candidates, was finalized by the Commission and

communicated to the Department of Law vide letter dated 25.10.2019. One post in Open Merit/PHC category was kept reserved pending clarification

from the indenting department regarding earmarking of slot for the physically handicapped category candidates. In the select list for Open Merit

Category candidates issued by the Public Service Commission, the petitioner was given over all rank of 24 with aggregate score of 580 marks. The

respondent No.5, with the same aggregate score was, however, ranked 23rd and, therefore, figured as a last candidate in the Open Merit Category.

The petitioner was denied selection on the ground that the tie between the petitioner and private respondent No.5 was broken by applying Rule 51-A

of the Rules and the petitioner, having scored lesser points in the viva voce, was placed below respondent No.5.

Having been ousted from the zone of consideration because of operation of Rule 51-A of the Rules, the petitioner has filed the instant petition

throwing challenge to the vires of Rule 51-A on the ground that the same is arbitrary, unreasonable and in violation of Article 14 of the Constitution of

India. However, at the time of arguing the writ petition, learned counsel appearing for the petitioner did not press the aforesaid ground of challenge

and submitted that due to later development, i.e. due to non-joining of one of the candidates in Open Merit Category, a post of Munsiff has fallen

vacant and petitioner, being next in the order of merit, is entitled to be selected and appointed against the post so fallen vacant.

Having heard learned counsel for the parties and perused the record, we are of the view that the grievance of the petitioner can be well taken care

of and redressed in view of the later development i.e. position emerging due to non-joining of one of the selected candidates, namely, Nitika Mahajan.

In that view of the matter, we do not propose to go into the question of vires of Rule 51-A of the Rules, which is a provision for breaking the tie

between two candidates.

The position that one post in the Open Merit category has fallen vacant due to non-joining of one of the selected candidates, namely, Nitika

Mahajan, in the pre-induction training, is not disputed either by Mr. B. A. Dar, learned Sr. AAG appearing for the Department of Law or by Mr.

Azar-ul-Amin, learned counsel for the Public Service Commission. There was, however, some difference of opinion as to how, in such situation, the

respondents ought to act.

In view of the admitted position, one post of Munsiff in the Open Merit Category has fallen vacant as the selected candidate, namely, Nitika

Mahajan, who was selected, despite notice failed to join the pre-induction training in the State Judicial Academy and, consequently, her name was not

recommended for appointment by the High Court. In that view of the matter, the petitioner having merit equal to the candidate selected in the Open

Merit i.e. respondent No.5, cannot be denied selection and appointment. Ordinarily the Public Service Commission should have prepared a Wait List to

meet such contingency but non-framing of the wait list by the Public Service Commission cannot deprive the petitioner of his right to be considered

and appointed as Munsiff being a candidate next in the order of merit.

Indisputably, the recruitment to the post of Munsiff is governed by Recruitment Rules of 1967 and as per the scheme of the Rules, an indent for

filling up the vacant posts of Munsiffs in the subordinate judiciary is required to be issued by the Department of Law. The selection is conducted by

the Public Service Commission and, accordingly, the select list is sent to the Department of Law. With the approval of the High Court, the candidates

selected are made to undergo pre-induction training in the State Judicial Academy. On successful completion of training in the Judicial Academy, the

High Court recommends the names of the selected candidates for formal appointment to the Government. Going by the clear scheme of the Rules, in

the instant case it is for the Department of Law to call for the name of the candidate next in merit from the J&K Public Service Commission and

forward it to the High Court. The High Court, after approving the selection of the petitioner shall make the requisite recommendations to the

Department of Law for issuance of the formal order of appointment.

The plea of Mr. B. A. Dar, learned Sr. AAG, appearing for the Department of Law, that the name of the petitioner should be called from the J&K

Public Service Commission by the High Court, goes against the scheme of the Rules and, therefore, not tenable.

For the foregoing reasons, we dispose of this writ petition by providing as under:-

(i) That the Department of Law, within two weeks from the date of receipt of this order, shall write a formal communication to the J&K Public

Service Commission for forwarding the name of the petitioner, who is next in order of merit, with its recommendation to appoint him against the post

that has fallen vacant due to non-appointment of Nitika Mahajn, a candidate selected in the Open Merit Category;

(ii) The Public Service Commission shall arrange to conduct the medical test of the petitioner, as envisaged under the Recruitment Rules and,

accordingly, if found fit, shall make recommendations to the Department of Law for appointment of the petitioner.

(iii) The Department of Law, on receipt of recommendations from the J&K Public Service Commission, shall forward it to the High Court for

approval within two weeks after its receipt from the Public Service Commission.

(iv) The High Court shall consider the matter and make appropriate recommendations to the Government in the Department of Law as soon as

possible for appointment of the petitioner. We, however, leave it to the High Court to devise a way to impart the pre-induction training to the petitioner,

if required.

(v) The Government shall issue the formal order of appointment of the petitioner as Munsiff within four weeks from the date of receipt of

recommendations from the High Court.

The writ petition is, accordingly, disposed of.