Prithvi Pal Singh vs J & K State Services Selection Board, Jammu

Tejinder Singh Doabia, J.—Seventeen posts of Medical Assistants were advertised by the Jammu and Kashmir Services Selection Board,

Jammu. The advertisement regarding this is said to have been published in Daily Execelsior. This is annexure `E' with the writ petition. At Sl. No.

146, against Kathua district, the number of posts which are to be filled are shown as 17. The selection process was taken in hand. Petitioner

remained unsuccessful. He challenged his nonselection. This is basically done on the ground that he had higher merit.

Respondents have filed objections.

The stand taken by them is that no doubt, 17 posts were advertised but only nine posts were meant for the general category, four were reserved

for the category of Residents of Backward Area, two posts were reserved for Scheduled Caste and two for Scheduled Tribe categories. It is

submitted that the last candidate who came in, in the open merit category obtained 57.60 points. The petitioner having got 57.32 points was not

selected. It is precisely on this basis, the petitioner has not been able to make a grade.

The learned counsel for the petitioner submits that in the advertisement notice, there was no mention of the fact that certain posts are going to be

filled from amongst the reserved categories referred to above. It is pointed out that wherever posts were meant for different categories, a specific

mention regarding this was made in the advertisement notice in response to which the petitioner had applied. Reference in this regard has been

made to serial No. 38, 39, 40, 65, 77, 98 to 116, 125 and 129 to 140 of the advertisement notice. It is accordingly submitted that wherever the

respondents wanted to make selection from different categories, a specific mention was made in the advertisement notice but in the case of

selection in question, no such mention was there in the notice. The argument which has been built up in that this could not be done later on. It is

submitted that this has not only operated to the prejudice of the petitioner but also to be prejudice of those candidates who were to seek

appointment in the capacity as candidates belonging to these reserved categories. It is also submitted that by not mentioning the different categories

in the advertisement notice for which selection was to be made, the large number of candidates who belonged to these categories were even not

able to apply for the said post. It is accordingly submitted that even if a writ of certiorari cannot be granted, a writ of quo warranto can be sought

against the appointment of respondents No. 17 to 21. It is submitted that these private respondents having been appointed against a category

which was never notified and the other candidates who belonged to these categories being deprived of this selection, the whole process is vitiated.

Another argument which has been raised is that when 17 posts were available, then there was no justification to not to fill all the posts and this is

more so, when in the original notification, no categorisation and reservation is indicated.

This learned counsel for the Board submits that it was not necessary for the Board to indicate the number of vacancies which were kept for

reserved categories. It is submitted that this has to be done as per the roster and this is implicit in every notification which is being issued by the

respondent authorities.

I am of the opinion that the stand taken by the respondents is not justified. Having not indicated the categories for which the selection was to be

made and having not mentioned that any reservation is to be made in the case of selection to the post of Medical Assistants, the Board cannot turn

around and make selection for reserved categories, the mention regarding which was not made in the advertisement notice. The argument put

forward by the petitioner that number of other candidates who belonged to the reserved categories were not able to apply as per the original

notification and were deprived of being considered for selection, has to be accepted. It has also been rightly pointed out that those candidates who

were meritorious in the open merit category have been excluded by resorting to a method of making selection from reserved categories when the

original advertisement notice did not contain any such reservation. A decision of a Division Bench of Punjab and Haryana High Court in the case of

Rameshwar Nath Moudgil v. The State of Punjab and others, 1977(1) SLR 69, is of some relevance for the disposal of this case. O. Chinnappa

Reddy, J., later Judge of the Supreme Court of India, considered the question is somewhat similar context. When the process of selection was

nearing completion, rules were amended retrospectively. An effort was made to negative the claims of the petitioner on the basis of amended rules.

The Division Bench observed that the ""effect of the rule was to nullify the entire process of selection and consideration which had gone on till then

in regard to the petitioner."" It was further observed that ""midstream, he was plucked out from the boat and thrown into the stream, as it were."" The

effort of the respondents in negating the claim in the present case is on the same footing as was noticed by the Division Bench in the

aforementioned case. Having not noticed the vacancies which were meant for the reserved categories and later on, taken a decision with a view to

keep some vacancies for reserved categories and then again not filling all the vacancies is a matter which even though strictly speaking is not falling

with the purview of colourable exercise of power, does display that the effort in the present case is the same as was undone by the Division Bench

of Punjab and Haryana High Court in the aforementioned case. In view of the above, this petition is allowed. The petitioner is held entitled to

appointment on the basis of merit obtained by him in the open merit category.

It be seen that as indicated above seventeen posts were advertised, only fourteen posts were filled by the respondents, therefore, even taking

into consideration this aspect of the matter, the petitioner can be adjusted against one post out of three which were not filled by the respondents,

but, in fact, were available with them as per the notification issued by them. It is, therefore, directed that without disturbing the selections already

made, the petitioner be adjusted against the available vacancy. Let this be done within a period of two months from the date, a copy of this order is

made available to the respondents by the petitioner.

Disposed of accordingly.