Nazir Ahmad Ganai vs State of J&K

Mr. Muzaffar Hussain Attar, J. (Oral) - Respondent No. 3 stands appointed in December, 1999 as Assistant House Keeper in the pay scale

of 2000-3400 (pre-revised) in the Hospitality and protocol Department against the available vacancy. It is stated at bar by learned counsel for the

petitioner that respondent no. 3 was moved from one department to another department and again at present, she is posted in the Hospitality and

Protocol Department.

The petitioner is aggrieved of the appointment of respondent no. 3 on the ground that he is a graduate and is also having Diploma in House

keeping to his credit. The case of the petitioner set up in the writ petition is that he filed SWP NO: 1040/1997 which was disposed of by the Court

and respondents were directed to consider the petitioner for being appointed on the post of Assistant House keeper.

The grievance of the petitioner in this petition is that without advertising the post of Assistant House Keeper, respondent no. 3 was appointed.

Learned counsel for the petitioner submitted that the petitioner has been appointed as Field Operator in the Fisheries Department. Learned

counsel further submitted that since the petitioner is equipped with the Diploma in House Keeping, his services would require to be utilized in the

department of Hospitality and Protocol.

True it is that the petitioner has been pursuing legal remedy right from the year 1997. It is further true that without advertising the post of

Assistant House Keeper, respondent no. 3 has been appointed on the said post.

The issue which arise is that in which manner the equities between the parties can be balanced at this distant of time viz almost 16 years from the

date respondent no. 3 has been appointed. The justice has to be administered in accordance with laws. Laws are made for the benefit of the

society and also the individuals.

The laws cannot shackle the justice hand and foot. The justice is to be administered in a manner which ensures that harsh results are not

produced and injustice is not done to any of the parties.

The justice, as is held by the Division Bench of this Court, in Case titled J&K BOPEE and Ors v. Sunanadni Sharma and Ors. reported in

AIR 2014. J&K 45, in itself is a supreme law. Relevant para is taken note of :-

.... The Constitutional Court is duty bound to uphold the merit of a meritorious candidate and is further duty bound to ensure that justice is meted

out and wrong done is remedied. True, it is that justice is to be done in accordance with the law. The justice, however, in itself is a supreme law

and cannot become subservient to an interpretation of a law which may result meeting out harsh injustice to a person...

The Division Bench of this Court in case titled Joginder Kour v. Union of India and Ors. reported in 2012 (4) JKJ 1131 (HC) has

observed as under:-

Amongst others, in beauty, and hazard of human life, lies its unpredictability . Sometimes, the human life projects and poses most complex

problems for their solution. In the scheme of nature, it is the human life, which occupies the central position. Through the evolutionary process,

besides other things which are available in this universe, the human life has to be shaped up so as to enable it to illuminate its surroundings. With the

progress of time, civil societies have come into existence which is governed by rule of law. The laws whether fundamental, primary or subordinate

legislations, are all brought into existence for the welfare of the human being. The laws are, thus, to be interpreted in a manner, which work for the

advantage of the human being. Everything which one faces in the life, cannot be foreseen. The life, when it poses some complex problems for

which no existing solution is available, then, an honest effort has to be made to retrieve a person from such a situation. The life, at times, becomes

unpredictable and the laws for such a situation, thus, would not be available on the statute book.

The case on hand is one such rare and exceptional case where the laws, as they are, have created more problems than solving the same for the

appellant. This court is duty bound to meet out justice to the appellant. Justice, however, has to be done in accordance with the laws. When the

consequences of an action based on existing laws are bound to produce harsh results, then the concept 'justice according to the laws', has to be

tailored and fashioned in a manner which would produce most equitable and just results...

The Division Bench of this Court in yet another case titled Owais Mehmood v. State and Ors. passed in LPA. No. 09/2015 decided on

3rd July, 2015 has spelt out the contours and power of the justice.

.... Justice is overawing, over imposing and overwhelming feature of life. Justice transcends all manmade barriers. It denudes injustice of all its

lethal effect. Justice essentially is an all pervasive legal force; its administration is guided by rules of nature, and is tempered with compassion...

The respondent no. 3 stands appointed in the year, 1999. Her appointment has remained undisturbed for almost 16 years now. Even after

throwing challenge to her appointment, the same has not been interjected by the Court by issuance of interim orders.

Even after filing of writ petition, she has been allowed to continue. Had the appointment of respondent no. 3 been stayed, probably she might

have chosen to seek employment somewhere else. The very fact that her appointment was not stayed, was sufficient for her, to entertain the

reasonable belief that her appointment will be maintained having not been found, at first instance, at the time of issuance of notice motion to be

illegal which would require for staying the same. The respondent no. 3 has been thus prevented from securing employment somewhere else. Now

at this distance of time, she will not be in a position to secure employment somewhere else and by this time she must have already crossed the

upper age limit for securing employment somewhere else.

In the aforesaid fact situation, equity an essential component of justice would require for protecting the appointment of the respondent no. 3.

However, on the same yard stick, the petitioner's right would also require to be protected and enforced. The petitioner is graduate and has

Diploma in House Keeping, his services can be best utilized in the Hospitality and Protocol Department. Since he is already in the Government

employment, it will not be difficult for the Competent Authority to appoint him by way of transfer in the Hospitality and Protocol Department. This

is the only method which can be adopted in securing the interests of justice for both petitioner as well as respondent no. 3.

For the above stated reasons, this writ petition along with the connected CMP(s) is disposed of in the following manner :

Appointment of respondent no 3 shall remain undisturbed.

Respondent No. 1 is directed to appoint the petitioner by way of transfer in the Hospitality and Protocol Department on a post of which he is

possessed of requisite qualification.

Respondent no. 1 to consider and pass appropriate orders within four weeks from the date copy of this order is served.

The petitioner shall be also paid an amount of Rs. 20,000/- as costs.

Disposed of as above.