RAJ KUMAR vs STATE OF JAMMU & KASHMIR AND OTHERS

The facts as enumerated in the case set up by the petitioner are that vide advertisement dated 29.04.1997, applications were invited for various

posts including the posts of Laboratory Assistants in District Cadre, Rajouri. One post each was reserved for the Scheduled Caste and Scheduled

Tribe categories and the qualification prescribed for the said posts was Matric with diploma in Laboratory Assistant Course from SMF (State Medical

Faculty) or any other recognized institute. The petitioner being eligible also applied for the post of Laboratory Assistant under the Scheduled Caste

category in the District Cadre, Rajouri. The petitioner was called for the interview on 05.01.1998 and thereafter a select list was issued wherein the

petitioner name was figured at S.No. 2 in the said list and his qualification was also mentioned as „Matric/Diploma in Lab Assistant‟. In the month

of August, 1998, when the petitioner approached the office of the Director, Health Services, Jammu, he was orally informed to produce the original

certificates and when the petitioner again went to the same office with the original documents, he was informed that since he had undergone his

diploma from outside the State of J&K and not from the SMF, so he cannot be appointed against the post in question. The petitioner further

approached to Director, Health Services, Jammu with his grievance that since he had been duly selected in the selection process and in the

advertisement notice, requisite qualification as matric with Diploma in Laboratory Assistant Course from SMF or any other recognized institute, as

such there was no reason for denying him the appointment on the ground that he had not undergone his diploma from SMF.

Further, the respondents brought to the notice of the petitioner that the case of another candidate, namely, Miss Anjana Sidder, who had also been

selected as a Laboratory Assistant by the Services Selection Board in the year 1994 and also undergone Diploma in Medical Laboratory Technology

from outside the State from the same institute, from which the petitioner had completed his diploma, was pending consideration with the Government,

and accordingly advised him to wait for the decision in this matter and also assured him that whatever decision would be taken by the authority in that

case would apply in his case too. When the petitioner came to know that the aforementioned candidate, namely, Miss Anjana Sidder, was appointed as

Laboratory Assistant in the District Cadre, Rajouri vide order dated 02.09.2003, he again approached to Director, Health Services, Jammu but he did

not pay any heed to his request, which forced the petitioner to file the instant writ petition, seeking direction to the respondents particularly, respondent

No. 2 i.e. Director Health Services, Jammu to appoint the petitioner pursuant to his selection made by the respondent No. 3â€"J&K Services Selection

Board for the post in question.

Objections on behalf of the respondent Nos. 1 & 2 stand filed, wherein it is stated that for the post of Laboratory Assistant, it is mandatory that the

candidate should have passed Diploma in Laboratory Assistant training Course by J&K State Medical Faculty, whereas the petitioner has obtained the

diploma from the institute, which is not recognized by the J&K State Medical Faculty. It is further submitted that the selection made by the Board is

only recommendatory in nature and does not create any indefeasible right to the selected candidate for getting appointment.Â

Objections also stand filed on behalf of respondent No. 3 â€" J&K Services Selection Board, wherein it is stated that the name of the petitioner was

recommended to respondent Nos. 1 & 2 for appointment against the post of Laboratory Assistant, District Cadre Rajouri under S. C. Category. It is

further submitted that the Services Selection Board is only an agency for recruiting eligible candidates as per the requirement of different Government

Departments and have no role whatsoever in issuing appointment letters as prayed in the writ petition.Â

The requisite qualification prescribed for the post of Laboratory Assistant was Matric with Diploma in Laboratory Assistant Course from State

Medical Faculty or any other recognized institute, whereas the petitioner has obtained his certificate from the “Queens Institute of Para Medicals

& Paramedical Education Society (both societies are registered under Govt. Registered ER. 123/84). It is admitted that the petitioner has been

selected for the post in question, however, the specific stand taken by the respondents is that the diploma obtained by the petitioner is from a non-

recognized Institute.Â

It is pertinent to mention here that one Anjana Sidder possess diploma in Laboratory Assistant from the same Institute, from where petitioner has

obtained, has applied for the post of Laboratory Assistant in the year 1994. On non-consideration of her case by the respondents, she approached this

Court by filing SWP No.64/1995 seeking a direction to the respondents to issue appointment order for the post of Laboratory Assistant, wherein this

Court after putting the respondents to notice as ad interim direction, directed the respondents to consider the petitioner for appointment in terms of the

selection made by J&K Services Selection Board. Subsequently, while complying with the said direction, respondents had issued selection/appointment

order in favour of said Anjana Sidder. Therefore, on the strength of case set up in the petition, petitioner seeks parity at par with above named

similarly situated person who possess diploma from the same Institute.Â

In support of the contention, learned counsel for the petitioner relied upon the judgment reported as 2003 KLJ 246 in case titled as “Rajinder

Parsad V/s State of J&K and othersâ€​.

Heard learned counsel for the parties.

Admittedly, the petitioner was selected for the post of Laboratory Assistant, however, his selection is subject to fulfillment and verification of the

documents. The precise and the only objection of the official respondents is that the diploma possessed by the petitioner is issued by non recognized

Institute, therefore, according to them, in terms of the notification as well as rules, petitioner lack in requisite qualification of diploma.Â

It is averred that one Anjana Sidder, who also possessed diploma issued from the same Institute, had filed writ petition for not considering her

appointment for the post of Laboratory Assistant, subsequently, the writ petition filed by her was disposed of in view of issuance of appointment order

dated 13.11.1998 issued by the respondents while complying with the interim direction dated 17.04.1995 passed in the writ petition filed by the said

Anjana Sidder, however, the petition was not decided on its merits. The specific stand taken by the respondents No. 1 and 2, in their counter affidavit,

in the present petition is that petitioner‟s case was considered on the basis of documents submitted by him and subsequently, rejected by the Director

Health Services. However, the petitioner has chosen not to challenge the rejection order.

The Apex Court of the country in case titled as “S. Renuka and Ors. Vs. State of A.P and anotherâ€, reported as AIR 2002 Supreme Court

1523, has observed at paragraph No.8 as under:-

“8. It is settled law that no right accrues to a person merely because a person is selected and his or her name is put on a panel. The Petitioners

have no right to claim an appointment. Even otherwise, the selection was contrary to the rules in force at that time. There could not be 100%

reservation for women. Also the reservation policy had not been adhered to. The posts which are created are posts of District and Sessions Judges,

Grade II. There is no separate posts of Judges of Family Courts and Mahila Courts. Thus the Petitioners could not be appointed as Judges of Family

Courts and Mahila Courts in ex-cadre posts even provisionally. This would amount to creation of Excadre posts not sanctioned by the Government.

No fault can be found with the High Court being in favour of not appointing the Petitionersâ€​.

A similar view has also been taken in case titled as “State of Orissa Vs. Raj Kishore Nanda†reported as (2010) 6 SCC 777 by observing that

appearance of name of a candidate in a select list does not give right of appointment.Â

It is held in case titled as “Ekta Shakti Foundation Vs. Govt. Of Nct of Delhiâ€​, by the Apex Court that:-Â

“The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner.

When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the

same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to

claim similar benefits. In this regard this Court in Gursharan Singh & Ors. v. NDMC & Ors., 1996 (2) SCC 459 held that citizens have assumed

wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some

persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of

writ petition filed in the High Court. The Court observed:

Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such

claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order

for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being

just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.

Petitioner, instead of challenging the rejection order, has opted to file the present writ petition seeking a direction to the respondents, particularly,

respondent No.2 to appoint him in pursuance of his selection made by respondent No.3. On this count, the petitioner is not entitled for grant of relief as

projected in the petition. Even otherwise, the relief sought by the petitioner at par with one Anjana Sidder is not sustainable as this Court has not

decided the petition filed by the said Anjana Sidder on its merits and the respondents had considered her case simply under the garb of interim

direction. It is also well settled law that one wrong cannot be taken as ground for committing another wrong.

Viewed thus, once the challenge has not been thrown to the rejection order, the writ cannot be issued against the respondents, therefore, the

petitioner fails to make out a case. In the result, this writ petition is dismissed along with connected MPs, being devoid of merits.