Mushtaq Ahmed vs State Of Jammu & Kashmir & Ors

Rajinder Singh Dogra, Member J

The SWP No.414/2015 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.8135/2021 by the Registry of this Tribunal.

The present matter was filed before the Hon’ble High Court seeking following relief: -

a) Petition under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu & Kashmir for the issuance of an appropriate writ, direction ог order for quashing the appointment and selection list of the candidates for different posts and categories of class-IV in Government Medical College and its Associated Hospitals, Jammu to the extent it pertains to the respondent Nc.4. pursuant to which, he has been selected to be appointed as Cook in RBA category vide DIP/J-5114/14, Dated 16-10-2014 advertised vide notice No. AHJ/NG/3300-06 dated 28-01- 2013.

b) Further writ, direction or order of appropriate nature commanding the respondents to consider the petitioner for his appointment to the post of Cook in RBA category vide DIP/J-5114/14, Dated 16-10-2014 in the face of the weightage points obtained by him in his academic qualifications and 10 years experience in relevant line and consequently appoint him against the said post.

c) Further writ, direction or order of appropriate nature restraining the respondents from making appointment of respondent No.4 to the post of Cook in RBA category vide DIP/J- 5114/14, Dated 16-10-2014 advertised vide notice No. AHJ/NG/3300-06 dated 28-01-2013 on the basis of the provisional list of the RBA candidates for the post of cook impugned in the present writ petition.

d) Such other additional or alternate relief which this Hon'ble Court may deem fit in the facts & circumstances of the case.

The facts of the case as pleaded by the petitioner in his pleadings are as follows: -

a) The present Transfer Application arises out of SWP No. 414/2015, which was initially filed before the Hon’ble High Court of Jammu & Kashmir at Jammu and, upon reorganisation of jurisdiction, stood transferred and registered as T.A. No.8135/2021 before this Tribunal.

b) The applicant claims to be a permanent resident of the erstwhile State of Jammu & Kashmir and a citizen of India, asserting entitlement to the protection of legal, constitutional, and fundamental rights guaranteed under Part III of the Constitution of India. He, therefore, claims locus to maintain the present proceedings.

c) The grievance of the applicant originates from Advertisement Notice No. AHJ/NG/3300-06 dated 28.01.2013, issued by respondent No. 2, inviting applications for filling up Class-IV posts in Government Medical College, Jammu and its Associated Hospitals. As per the advertisement, a total of twelve posts of Junior Cook/Cook were notified. The eligibility condition prescribed therein required the candidates to possess Matric qualification along with ten years’ experience in the relevant line.

d) The applicant asserts that he possesses the requisite Matric qualification and claims to have adequate experience in the field of cooking. On the strength of such qualification and experience, he applied for selection to the post of Cook under the Reserved Backward Area (RBA) category, enclosing his educational certificates, experience certificates, category certificate, and other requisite documents in the prescribed manner.

e) Pursuant to the selection process, a provisional select list for Class-IV posts of Lineman/Cook/Cleaner was issued vide Notification No. DIP/J-5114/14 dated 16.10.2014. Upon publication of the provisional list in the Daily Excelsior dated 17.10.2014, the applicant noticed, to his dismay, that his name did not figure in the provisional list for the post of Cook under the RBA category, whereas respondent No. 4 was provisionally selected.

f) The applicant alleges that respondent No. 4 was selected despite being lower in merit. According to the applicant, he had secured 200 marks out of 500 in Matriculation, whereas respondent No. 4 had secured only 171 marks. The provisional list invited objections within fifteen days of its publication.

g) Aggrieved thereby, the applicant submitted a representation dated 20.10.2014 objecting to his non-selection and asserting that he was more meritorious and fully eligible. However, no response was communicated to him. The applicant thereafter issued a legal notice through counsel, alleging that the respondents were allowing candidates to join in a clandestine manner without issuing the final select list.

h) The applicant challenges the provisional selection primarily on the grounds that the selection was required to be made purely on academic merit as per Government Order No. 353-HME of 2013 dated 19.06.2013; that he was more meritorious than the selected candidate; that the respondents acted arbitrarily and discriminatorily in violation of Articles 14 and 16 of the Constitution; that reservation norms were not properly followed; and that the entire selection process was vitiated by arbitrariness, non-application of mind, and favouritism. On these assertions, the applicant seeks quashing of the provisional selection and consideration of his case for appointment.

The respondents have filed their reply statement wherein they have averred as follows: -

a) The respondents, while filing their reply, have categorically denied all allegations of illegality, arbitrariness, and violation of constitutional rights, and have asserted that no legal, statutory, or fundamental right of the applicant has been infringed so as to warrant interference by this Tribunal.

b) It is stated that as per Advertisement Notice No. AHJ/NG/3300-06 dated 28.01.2013, the essential eligibility condition for appointment to the post of Cook was Matric qualification coupled with ten years’ experience in the relevant line. The respondents assert that eligibility had to be satisfied strictly as on the cut-off date and on the basis of documents submitted along with the application form.

c) According to the respondents, at the time of submission of his application, the applicant had enclosed only two experience certificates—one issued by AFCONS Tunnel Project dated 14.04.2011 certifying experience from 09.03.2010 to14.04.2011 (one year), and another issued by Slathia Restaurant dated 01.06.1999 certifying experience of five years. Thus, as per the official record, the applicant possessed only six years of experience at the relevant time and did not fulfil the mandatory requirement of ten years’ experience.

d) The respondents further contend that the applicant has, with mala fide intent, annexed additional experience certificates along with the writ petition to project more than ten years’ experience, which certificates were never submitted at the time of application and, therefore, cannot be considered for determining eligibility.

e) It is further averred that the provisional select list was prepared strictly in accordance with the notified eligibility criteria, roster points, and applicable rules. Respondent No. 4, who was selected under the RBA category, possessed higher educational qualification, namely 10+2, and fulfilled the requirement of ten years’ experience, and was, therefore, rightly selected.

f) With regard to the objections filed by the applicant, it is stated that the same were duly considered by the Selection Committee. Upon verification of the application form and the documents submitted by the applicant at the relevant time, it was found that he lacked the requisite experience, and accordingly, his objections were disposed of.

g) The respondents have also clarified that the final select list for Class-IV posts was issued vide Notification No. AHJ/2015/C-IV/3198-3202 dated 12.01.2015 and was duly published in local newspapers and on the official website. It is reiterated that the selection was conducted in a transparent and fair manner, strictly in accordance with the advertisement notice, SROs, and applicable government orders.

h) The allegations of arbitrariness, discrimination, nepotism, and violation of Articles 14, 16, and 21 of the Constitution are specifically denied. It is asserted that the applicant was afforded equal opportunity but was not selected solely on account of ineligibility due to insufficient experience.

i) On these grounds, the respondents have prayed for dismissal of the Transfer Application as being devoid of merit.

Heard learned counsel for the parties and perused the material available on record.

The present Transfer Application arises out of SWP No. 414/2015, originally filed before the Hon’ble High Court of Jammu & Kashmir at Jammu, which upon transfer of jurisdiction has been registered as T.A. No. 8135/2021 before this Tribunal.

The applicant has questioned the selection made pursuant to Advertisement Notice No. AHJ/NG/3300-06 dated 28.01.2013, whereby Class-IV posts, including the post of Cook, were notified for Government Medical College, Jammu and its Associated Hospitals. The challenge is essentially to the non-selection of the applicant under the RBA category and the consequential selection and appointment of respondent No. 4.

At the outset, it is to be noticed that the advertisement prescribed Matric qualification coupled with ten years’ experience in the relevant line as the eligibility condition. The applicant claims that he was fully eligible, more meritorious, and that his exclusion was arbitrary, whereas the respondents contend that the applicant did not possess the requisite ten years’ experience as on the cut-off date and, therefore, was rightly excluded from consideration.

The record reveals that the provisional select list was issued on 16.10.2014 and objections were invited. The applicant did file objections, which, according to the respondents, were examined and rejected on the ground of insufficiency of experience. A final select list was thereafter issued on 12.01.2015 and appointments were made.

However, what assumes significance in the present case is not merely the inter se merit comparison between the applicant and respondent No. 4, but the overall manner in which the selection has been defended and the admitted factual position emerging from the record.

It is an admitted position that twelve posts of Cook were advertised. The respondents have not placed on record any clear material to demonstrate that all advertised posts stood duly filled strictly in accordance with the notified criteria and roster, nor is there any categorical assertion that no vacancy under the relevant category remained unfilled. On the contrary, the pleadings indicate that the selection involved multiple categories, waiting lists, and adjustments, without a transparent category-wise break-up being clearly disclosed.

Further, while the respondents have argued that the applicant lacked the requisite experience at the time of submission of the application form, it is equally evident that the applicant did possess substantial experience in the relevant line and was not lacking in basic eligibility in terms of educational qualification. The dispute, therefore, is not of complete ineligibility but of sufficiency of experience, which has been interpreted strictly against the applicant.

This Tribunal is conscious of the settled position that eligibility conditions must ordinarily be satisfied as on the cut-off date and that courts should be slow to interfere with selections. At the same time, it is equally well settled that where the selection process discloses procedural opacity, lack of clarity regarding vacancy position, or where an eligible candidate has been excluded in a manner that results in manifest unfairness, the Tribunal is not powerless to mould the relief so as to advance substantive justice without unsettling completed appointments.

In the present case, respondent No. 4 has already been appointed and has been working for a considerable period. Interference with his appointment at this belated stage would neither be equitable nor serve the ends of justice, particularly when no allegation of fraud or misrepresentation has been conclusively established against him.

However, the applicant cannot be left remediless merely on account of the passage of time, especially when the record does not conclusively establish that no post remained available and when the selection process itself suffers from lack of transparency regarding utilisation of advertised vacancies.

This Tribunal is of the considered view that the interests of justice would be adequately met by granting relief to the applicant against an available vacancy, without disturbing the appointment of respondent No. 4. Such a course would balance equity, protect settled appointments, and remedy the grievance of the applicant, who has been litigating since 2014.

Accordingly, the Transfer Application is allowed with the following directions:

a) The respondents are directed to consider and appoint the applicant to the post of Cook against an available vacancy arising out of Advertisement Notice No. AHJ/NG/3300-06 dated 28.01.2013, if such vacancy has not already been validly filled.

b) In the event no such vacancy is presently available due to administrative adjustments, the respondents shall adjust the applicant against the next available vacancy in the same cadre and category, without disturbing the appointment of respondent No. 4 or any other similarly situated appointee.

c) The applicant shall be entitled to notional seniority from the date his immediate junior was appointed, but no back wages shall be payable. Actual monetary benefits shall accrue only from the date of his joining pursuant to this order.

d) The entire exercise shall be completed within a period of three months from the date of receipt of a copy of this judgment.

The Transfer Application is allowed in the above terms. No order as to costs.