Ruqaya Akber vs State of JandK

M.M. Kumar, C.J.—This appeal under Clause 12 of the Letters Patent is directed against the judgment and order dated 11.10.2013

rendered by a learned Single Judge of this Court, holding that re-advertisement for the post of Anganwari Worker from eligible female candidates

for Anganwari Centre Nowpora of ICDS Nagam did not suffer from any legal infirmity because no rights of the appellant-writ petitioner has been

violated. The view of the learned Writ Court is discernible from following paras of the judgment which are set out below in extenso:-

Contention of the petitioner is that a legal and indefeasible right had accrued to her after having applied pursuant to the advertisement notice

against the post of Anganwadi Worker for her selection, as such, action of the respondents in re-advertising the post has caused prejudice to her

rights and deprived her from the benefit of selection/appointment.

True the respondents had advertised the post in order to ensure selection of a suitable candidate on the strength of the Scheme pressed into

service, however, the respondents on examining the report of the Deputy Commissioner, Budgam decided to re-advertise the post on the ground

that the advertisement had not been published in a newspaper having wide circulation, therefore, the eligible candidates had no proper information

for responding to the advertisement notice. The ground on the basis of which respondents have re-advertised that post has substance. Had the

advertisement notice been published in a large circulated newspaper, of-course eligible candidates would have responded to, but due to poor

response to the advertisement notice only petitioner had applied, therefore, the basis for re-advertisement has strength and cannot be declared

unfair/illegal.

Submission of learned counsel for the respondents has substance, as the publication of advertisement notice was made in a lesser known

newspaper having meager circulation in the area where the post is required to be filled up.

In order to enable the eligible candidates to exercise their constitutional right to seek consideration for being selected and appointed on the

post, which right is guaranteed under Article 16 of the Constitution of India, the duty is cast on the authorities to give wide publicity to the

advertisement notice. This duty of the authorities would have obligation in according consideration to all eligible candidates for being selected and

engaged on the post, therefore, selection process is illegal for lack of proper publicity and circulation of the earlier advertisement notice.

In order to ensure that proper and wide circulation is given to the advertisement notice and people are not constrained to approach the court

even on trifle issues, respondents have rightly re-advertised the post which has not caused prejudice to the interests of the petitioner. In addition, as

per the settled law, no indefeasible right has accrued on the petitioner merely on competing in the process of selection and there is no violation of

legal, constitutional or fundamental rights by re-advertising the post. It is only in the larger interest of the candidates, who have not been provided

chance to compete in the process of selection because of poor circulation, have re-advertised the post therefore, the action of the respondents

cannot be said unfair, arbitrary or illegal. Hence the claim fails.

We have heard learned counsel for the parties at a considerable length.

Mr. M.A. Qayoom, learned counsel for the appellant, has argued that the findings recorded by the learned Single Bench with regard to poor

response to the earlier advertisement and its publication in the lesser known newspapers is erroneous per se; firstly in the other cases also only one

application has been received and therefore no recourse to re-advertisement has been followed and moreover the earlier advertisement was made

in 'Daily Kashmir Uzma', 'Kashmir Images' and 'Rising Kashmir'. According to the learned counsel, all these newspapers have wide circulation in

the area and the re-advertisement is on extraneous consideration, particularly in other similar cases the course adopted in the present case has not

been followed.

Learned counsel has further argued that the basis of decision to re-advertise the post is also suspicious because the so called complaints made

by the local residents have not been placed on record. He has insisted that on the basis of the complaints, the Deputy Commissioner, Budgam

submitted a report which has also not been placed on record. According to the learned counsel, the aforesaid documents were crucial and should

have been brought on record because they constitute basis to re-advertise the post on the ground that earlier advertisement was published in lesser

known newspapers depriving eligible candidates to apply.

Mr. Qayoom has also submitted that after appellant submitted representation, the Director had asked for submission of report on 11.09.2012

for not giving effect to the application made by the appellant-writ petitioner. Instead of submitting his report, the Child Development Project

Officer, ICDS Project Nagam on the next day re-advertised the post in 'Greater Kashmir' (Annexure-H). In that regard our attention has been

drawn to the letter dated 11.09.2012 (Annexure-C). According to the learned counsel, it is malafide exercise of power and would not stand the

judicial scrutiny.

Mr. Tariq A. Lone, learned Deputy Advocate General has, however, argued that no vested right of the appellant came into being on the basis of

filing application in response to the advertisement and the respondents are well within their rights to re-advertise the post in order to satisfy

themselves that all eligible candidates have adequate notice. According to the learned counsel, the object of issuing re-advertisement is to attract

the best one in the field to make appointment particularly a public office like Anganwari Worker. Mr. Lone has insisted that no vested right of the

appellant-writ petitioner has been infringed by issuance of re-advertisement particularly when her case would also be considered at the time of final

selection.

Having heard learned counsel for the parties and perusing the record with their able assistance, we are of the view that this appeal does not

warrant admission and is, thus, liable to be dismissed.

The basic object of any selection process to fill up a public office or a post is to ensure that best talent available should be selected and

appointed. Such a object can be achieved only if the information with regard to vacancy percolate to all eligible persons. Advertisement by a

newspaper is a handy mode of reaching out to all eligible candidates inviting application from the world at large. If in the selection process after

issuance of advertisement an employer comes to the conclusion that information has not reached to all the eligible candidates and there are

legitimate doubts then irrespective of any complaint the employer would be at liberty to adopt any further method so as to ensue that information

regarding vacant post reaches all eligible candidates. It is sine qua non that advertisement should be issued in newspaper having wide circulation

then it would answer the provisions of Article 14 and 16(1) of the Constitution of India because everybody who is eligible would be able to apply

seeking consideration for appointment. In the present case only one applicant namely appellant-petitioner came forward and applied for the post of

Anganwari Worker. It may be true that the earlier advertisement was given in three newspapers. However, the response evoked by such

advertisement resulted in receipt of one application only then the selection agency is not debarred from re-advertising the post particularly when the

earlier applicant was also to be considered. A perusal of the re-advertisement notice issued in 'Greater Kashmir' on 13.09.2012 makes the

aforesaid position clear that the candidates who have already applied in response to the earlier advertisement notice were not required to apply

again. It would be profitable to extract the re-advertisement notice dated 13.09.2012, which is set out below in extenso:-

Govt. of Jammu & Kashmir Office of the Child Development Project Officer ICDS Project Nagam Re-Advertisement Notice

Due to poor response to previous advertisement notice issued by this office vide No. CDPO/ICDS/Ngm/2012/95-99 Dated 02-04-2012, fresh

applications on the prescribed Performa are invited for the post of Anganwadi Worker from eligible female candidates on honorarium basis for

Anganwadi Centre Nowpora of ICDS Project Nagain.

ELIGIBILITY CIRTERIA:

Minimum Education Qualification should be Matric and Middle Pass (In case Matriculate Candidate is not available).

Age as on 01-01-2012 should be between 18-44 years.

The applicant must be Permanent Resident of the J&K State and should belong to the concerned location where the vacant post of AWW is

available.

If a suitable Candidate is not available in that location, the candidate shall be selected from village of which the said location is a part.

Only the Candidates residing in the concerned Location where the vacancy is available shall be eligible to apply.

The Application forms as per prescribed proforma and complete in all respects along with the attested copies of all the relevant documents should

be deposited in the Office of the Undersigned either by personal delivery or by Registered Post against proper receipt. The last date for receipt of

application form is 18-09-2012 up to 04.00 pm. The candidates who have already applied vide this office advertisement notice No:

DPO/ICDS/Ngm/2012/95-99 Dated 02-04-2012 need not to apply again.

DIPK-7428

Sd/- Child Dev. Project Officer

ICDS Project Nagam

(Member Secretary)

A perusal of the aforesaid re-advertisement notice would show that on account of poor response to previous advertisement notice issued by the

respondents fresh applications were invited in which the name of those candidates who have applied earlier would also be considered and they

were not required to apply again. We find nothing unusual in the aforesaid course adopted by respondent No. 4-Child Development Project

Officer, ICDS Project Nagam. In fact the appellant cannot argue that once she alone is the applicant she becomes entitled to be selected and

appointed because such a course may create an impression that the respondents have favoured the appellant by issuing advertisement in such

newspapers which did not reach most of the candidates and allow the appellant alone to be considered and appointed.

The argument advanced on behalf of the appellant that the findings recorded by the learned Writ Court suffers from apparent error as there is no

supporting evidence to conclude that three newspapers do not have wide circulation, would not require any serious consideration because the

objections filed by the respondents were not controverted. The other argument that the report of the Deputy Commissioner or the copies of the

complaints have not been placed on record has been adequately replied in the objections. There is no replication to the averments made by the

respondents in their objections. It would be interesting to notice the averments made in paras 4 and 5 of the objections which are in reply to paras

6 to 8 and 9 of the writ petition, which read thus:-

In reply to paras 6 to 8 of the writ petition it is submitted that since some locals had approached the Deputy Commissioner Budgam for re-

advertisement of Anganwari Post on the ground that due to lack of accessibility of newspapers only one candidate applied for the post. Therefore

for healthy competition and addressing the grievances of some aspirants the post of Anganwari Worker was put to re-advertisement. However, no

interview has so far been conducted; hence the question of selection does not arise. 5. In reply to para 9 of the petition as already submitted that

some locals had approached the Deputy Commissioner Budgam for re-advertisement of Anganwari Post. Therefore for healthy competition and

addressing the grievances of some aspirants the post of Anganwari Worker was put to re-advertisement to have a fair selection of candidates,

therefore, there is not malafide intention on the part of the respondents. It is submitted that whenever interview for the post of Anganwari Worker

for Anganwari Centre Nowpora is conducted by the Selection Committee, the claim of the petitioner will also be considered along with others on

the basis of merit and suitability.

A perusal of the aforesaid averments made in paras 4 and 5 of the objections do not leave any manner of doubt that some locals had

approached the Deputy Commissioner, Budgam for re-advertisement of the post of Anganwari Worker on the ground that due publicity has not

been given to the post and as a result only one candidate applied. It has further been clarified that no interview was conducted nor any selection

process was finalized. It was to create healthy competition and addressing grievance of some aspirants that the post was re-advertised to conduct

fair selection of candidates. Learned counsel for the appellant has made an attempt to put up a new case by casting doubts on the credibility of the

averments made in the objections. If there was anything contrary available on record with the appellant-petitioner nothing prevented her to file

additional affidavit by way of replication, failing which a presumption of truth would apply to the official version disclosed in the objections filed by

the respondents. We live in the era of information fed society. Virtually information is available on asking. The appellant-petitioner could have

sought and place any such information on record. Therefore, we do not find any substance in the contention raised on behalf of the appellant-

petitioner particularly when she would also be entitled to be considered along with other candidates, who may have applied for the post in

response to the advertisement notice. As a sequel to the above discussion, the instant appeal fails and the same is dismissed. The impugned

judgment and order dated 11.10.2013 rendered by the learned Single Judge along with re-advertisement notice dated 13.09.2012 (Annexure-H)

are upheld.