Samvit Dhar vs State Of Jammu & Kashmir And Ors

Vide Advertisement Notification No. 01 of 2012 dated 19.07.2012, the J&K Service Selection Board notified various posts for selection under Hon'ble Prime Minister's special package for Kashmiri migrants. The posts notified included 03 posts of Lab Assistants (Health Department Divisional Cadre Kashmir) which was enlisted as item No. 57 in the notification. The petitioner participated in the selection process as general category candidate.

The Board issued the select list in which the petitioner was placed in the waiting list of open merit category as the sole candidate. The candidates, who appeared in the select list are Vishal Koul and Ashwani Kumar Pandita. The candidature of third candidate in the open merit was, however, withheld and the post kept unfilled pending clarification from the competent authority with regard to consideration or otherwise of diploma in Medical Laboratory Technology from the State Board of Technical Education. As a matter of fact and is otherwise apparent from the select list, the recommendation of the petitioner made as a wait list candidate too was withheld by the Board pending production of bona-fide and relevance of diploma certificate and trade. It appears that subsequently, the petitioner submitted the requisite documents requisitioned from him and his candidature as Serial No. 1 under wait list candidate of open merit category was released. This is evident from the communication of the Secretary J&K Service Selection Board issued vide his No. SSB/Secy/145/2017/2475-78 dated 08.03.2018. So far as the third post in the open merit category which was kept unfilled pending clarification with regard to the qualification of Diploma MLT from State Board of Technical Education is concerned, it is seen that the matter was taken by Department of Health with J&K SSB for intimating the latest status as is evident from the communication of the Under Secretary to the Government Health and Medical Education Department issued vide his No. HD/NG/162/2017-PF dated 19.07.2018.

It is submitted by the learned counsel for the petitioner that since there was no selection made against the third post and, accordingly, the petitioner being in the next in the order of merit should have been selected against the aforesaid slot and should not have been pushed down to the waiting list. He claims to have filed an application to respondent No. 3 in this regard requesting him to operate the waiting list and issue appointment order in favour of the petitioner. It is further seen that on the application of the petitioner, respondent No. 3 vide his communication No. Est-4/NG-342/758 dated 17.07.2018 sought necessary instructions and authority to operate the wait list to fill up the third post which has remained vacant due to non-selection of an eligible candidate.

The short grievance as projected by the petitioner in this petition is that once no eligible candidate is available to be selected against the third post in the open merit category, the petitioner being in the next in the order of merit is entitled to be selected and appointed as Laboratory Assistant.

Having heard learned counsel for the petitioner and perused the record, I am of the view that keeping this petition pending for getting response from the respondents would be of no use particularly having regard to the order which this Court proposes to pass in this petition.

There is no denial of the fact that 03 posts of Laboratory Assistants had been advertised by the J&K Service Selection Board for selection and only 02 candidates were selected in the open merit category. The third post was kept unfilled for want of clarification with regard to consideration or otherwise of the qualification of Diploma in MLT from State Board of Technical Education. It is also not in dispute that candidate next in the order of merit is the petitioner, who has been placed at Serial No. 1 in the wait list rather he is only candidate in the wait list of open merit category. If no candidate having better merit than the petitioner is eligible as per the qualification prescribed for the post, the third post is necessarily required to be filled up by appointing the petitioner. However, from the perusal of record, it is not discernible as to whether a final decision by the competent authority has been taken with regard to the eligibility or otherwise of the candidates possessing qualification of Diploma in MLT from State Board of Technical Education. There is one response to the query made under J&K RTI Act placed on record by the petitioner which indicates that as per the opinion of J&K State Paramedical Council, the students, who have passed Laboratory Technician Course from J&K State Board of Technical Education do not undergo the same course as is prescribed by the J&K Paramedical Council and, therefore, cannot be treated at par.

Be that as it may, the fact remains that the competent authority, i.e Respondent No. 1 has to take a decision in the matter. Depending upon the decision of respondent No. 1, it has to be decided by J&K Service Selection Board as to whether the third post which has remained unfilled can be supplied by appointing an eligible candidate having merit higher than the petitioner but, if there is found none, the petitioner cannot be denied the appointment against the leftover post in the open merit category.

In view of the aforesaid, this petition, at this stage, is disposed of by providing as under:-

(i) Respondent No. 1, within a period of four weeks from the date of receipt of copy of this order, shall take a final decision with regard to the eligibility of the candidates who have obtained/passed Medical Laboratory Technology course from the State Board of Technical Education for appointment to the post of Laboratory Assistant advertised vide notification No. 01 of 2012 dated 19.07.2012 under Hon'ble Prime Minister's special package for Kashmiri migrants.

(ii) The decision aforesaid shall be conveyed to the J&K Service Selection Board within two weeks thereafter.

(iii) Depending upon the decision of respondent No. 1, the J&K Service Selection Board shall take a final call with regard to filling up of third post of Laboratory Assistant which has remained unfilled due to dispute with regard to the eligibility of the candidates possessing diploma in MLT from State Board of Technical Education.

In case there is an eligible candidate intervening the petitioner (wait list candidates) and Ashwani Kumar Pandita (who figures at Serial No. 02 in the select list), the requisite recommendations in his favour shall be made.

However, if no eligible candidate having higher merit than the petitioner is available to fill up the third post of Laboratory Assistant which has remained unfilled, the name of the petitioner which is next in the order of merit, shall be recommended forthwith and in any case within two weeks from the date of receipt of decision of respondent No. 1.

Disposed of in the above terms.