Sheikh Mohd.Musharaf vs State

The posts of prosecuting officers inthe J and K police came to be advertised by respondent No.2 vide notification No: Estt/pros9/91/ 3722494

dated September, 10,1991, the petitioner three in number who are Bachelors of law and stand enrolled as Advocates since March, 1988,

September 1989 and Feb. 1988 respectively, being fully eligible, applied for the said posts. They underwent the physical measurement and were

found physically fit as per the physical standards prescribed in the advertisement notice, consequently competed in outdoor test having succeeded

in the said test were allowed to appear in the written test succeeded in the and said test also. What has brought them to the court is their failure in

the vivavoce. The case of the petitioners is that they had faired well in the vivavoce and were due for selection but selection and appointment was

denied to them with a view to allow the respondents 4 to 6 to steal a March over them and are aggrieved of rejection/appointment of respondents

4 to 6 and their non selection and through the medium of this writ petition they seek quashment of selection/appointment of respondents 4 to 6,

reassessment of the interse merit and their appointment in consequence to advertisement notice of 1991.

Writ petition has been admitted on 541994 and the respondents were provided six weeks to file counter but they failed to file the counter, time

to file the counter was extended by three weeks finally by virtue of order dated 2651994, the order reads as under;

Mr.Z.A.Qureshi,

Mr.U.K.Jalali,

The parties agree to the following course adopted in this case:

Despite expiry of time granted on 541994, last and final opportunity of three weeks is allowed to the respondents to file the counter affidavit and

petitioners to file rejoiner, if any. Right of defaulting party shall stand closed without reference to the bench and the petition shall be disposed of

without the counter or rejoinder as the case may be. The writ petition shall be listed for hearing at serial No. 1 in the hearing column in the week

commencing from 18th July, 1994."" Inspite of the fact that respondents were forewarned about the consequences of failure to file the counter

within the period stipulated by virtue of order dated 2651994 yet they were unmoved and did not choose to adhere to the terms of the said order,

however, counter was filed on 3061994 by respondents 1 to 2 only, that too without seeking extension of time. It being so the counter filed by the

respondents 1 to 3 does not deserve any consideration, however, with a view to do substantial justice between the parties I am inclined to read the

counter of the respondents in opposition to the writ petition, likewise the rejoinder. 3. The petitioners have based their challenge to the eligibility of

the respondents 4 to 6 in the light of educational qualification which has been prescribed in terms of aforementioned advertisement notice and the

relevant clause of the said notice is reproduced liereunder: ""i. Educational Qualification : Law Graduate from any recognised university with two

years minimum practice at bar."" The main thrust of the petitioners is on lack of required experience and it is their definite case that the respondents

4 to 6 do not posses the required experience. It is also specifically contended in para10 of the writ petition that the petitioners had represented

against the selection of the respondents 4 to 6 on the said ground but the respondents 1 to 3 did not chose to deal with it and in reply to para10 of

the writ petition respondents 1 to 3 have stated that no cause was available to the petitioners because they did not deserve the selection and in

respect of lack of experience it is stated that the certificates were duly authenticated by the competent authority. The reply of the respondents 1 to

3 makes it amply clear that the petitioners had undoubtedly taken this plea before the respondents but it appears that the representation was not

treated even worth the paper. Had the respondents 1 to 3 dealt with the matter the state exchequer would not have been burdened with the

litigation. Reply of respondents 1 to 3 that the certificate is issued by competent authority hints at escapism and this reply cannot lent any support to

their averment. The respondents 1 to 3 have virtually failed to rise to the occasion to enquire into the matter which was definitely within their

province moreso, when the representation had furnished sufficient cause to the respondents for enquiry and in action of the respondents 1 to 3 at

the relevant point of the time has enabled the respondents 4 to 6 to reap the fruits of selection and appointments. The averments of the petitioners

in respect of lack of requisite experience drives substantial support from the averments made in the writ petition, coupled with the documents

produced and examination of the pleading warrants indulgence of the court even to quash the selection/appointment of respondents 4 to 6 unless

there are some reasons to the contrary.

The respondents 1 to 3 have also contested the claim of the petitioners on the ground that they have failed to get the requisite merit and this plea

had been taken in paras 1 and 2 under the heading preliminary objections but the averments made are contradicted by the averment made in para

8 of the counter, wherein it is specifically stated that the selection was made in accordance with the respective merit of the candidates. I have also

perused the record which reveals that no but off point in respect of marks was fixed by the respondents 1 to 3. It is also manifestly clear from the

record that the selection has been made on the basis of comparative merit of the candidates. In this view of the matter attempt of respondents 1 to

3 to attribute nonselection of the petitioners to their failure to get the requisite merit is not well founded and crux of revelations made in the counter

indicates that the respondents 1 to 3 aim at defending the selection of respondents 4 to 6.

To appreciate the matter in its right perspective it was deemed necessary to seek information in respect of a few issues which have direct

bearing on the case in hand which are summarised as under:

a What about the permanence of respondents 4 to 6 during the period of service.

b Whether respondents 4 to 6 have undergone training at the state expense.

c Whether posts of PO's are available. Mr. Advocate General was requested to provide information in respect of the issues detailed hereinabove,

consequent upon which the court has been informed that the performance of the respondents 4 to 6 has been quite satisfactory, they have

undergone training at the state expense and availability of posts of PO's has also been confirmed.

There are certain factors which cannot be ignored by the court while adjudicating upon this petition and a few are that the selection and

appointment pertains to the year 1992 and the respondents 4 to 6 have been on the establishment of respondents 1 to 3 all these years functioning

to their satisfaction and have gained experience, coupled with the information sought from and provided to the court by the learned Advocate

General, their ouster in my opinion is not in Public interest but at the same time grievances of the petitioners also deserve redressal in view of the

fact that they had qualified all the tests as also written examination but their selection/appointment was not possible for, the respondents 4 to 6

figured higher up in merit list to the petitioners. Without going into fairness or otherwise of the respondents in respect of marks awarded n

vivavoca, it needs a mention that the petitioners had a chance of selection in case respondents 4 to 6 would not have stolen a march over them. It

is also required to be noticed that since no requisite percentage of marks was prescribed for purposes of selection, the petitioners cannot be called

failures and ?hey do fall within the consideration zone, wh.ch right was denied to them because of selection of respondents 4 to 6 It also requires to

be borne in mind that the petitioners have been prosecuting this writ petition for last several years and there is sufficient substance in the challenge

thrown to the selection/appointment of respondents 4 to 6, therefore, they are entitled to relief excepting petitioner No.2 on whose behalf us

counsel has sought withdrawal of the writ petition because of the fact that he has succeeded during the pendency of the writ petition to get a

government job,

Perusal of the record produced by the respondents 1 to3 indicates that there are some candidates who are higher in merit to the petitioners but

they are reportedly absorbed in different departments and different fields, that apart the selection has been made way back in the year 1992

moreso, they are not aggrieved of the order which is evident from the fact that they have not chosen to invoke the remedy available, so much so

during the pendency of the writ petition also they have not sought their impleadment and all these facts substantiate the 'contention bf the learned

counsel for the petitioners to the effect that all those who are higher in merit to the petitioners are seized of the jobs. Moreover it is the petitioners

only who have been vigilant in seeking redressal of their grievances therefore, they alone are entitled to the relief prayed for.

In view of the peculiar circumstances of the case some solution needs to be thrashed out so as to do substantial justice between the parties and

in my opinion this object can be achieved by inducting the petitioners 1 and 2 also into service for the reasons reflected therein above, accordingly

1 order as under: The respondents 1 to 3 shall offer the appointment at Sh. Sheikh Mohd Musharaf S/o Sheikh Ghulam Jeelani R/o Azadgunj

Baramulla and Hameeda Lone D/o Assadullah Lone R/o Khawja Gilgit Sopore, petitioners 1 and 3 respectively on the posts of prosecuting

officers in J and K Police Department forthwith on the strength of their eligibility in terms of notification bearing No. Estt/Pros9/91/3722494 date

September 10,1991 but their appointment shall take effect prospectively.

No order as to costs.