Susheel Kumar Aima vs State of Jammu & Kashmir and Others

Gh. Hasnain Massodi, Judge

The petitioner joined Public Works Department of the State Government as Junior Engineer in June 1979. The Department, thereafter, referred

30 posts of Assistant Engineer (Civil) to J&K Public Service Commission for selection of suitable candidates against the referred posts. The

Commission advertised said posts and the petitioner as an inservice candidate responded to advertisement notice. The Commission, after

completion of selection process, forwarded a list of 30 selected candidates for appointment against advertised posts. The Commission also

forwarded to the respondents a Waiting List of 17 candidates in order of merit. Though the petitioner did not find place in the select list of 30

candidates, yet he was able to make it to the Waiting List. The petitioner figures at S.No. 04 in order of merit in the Waiting List.

Petitioner's grievance is that the Waiting List was selectively operated by respondents and the petitioner without any justifiable cause left out and

not appointed as Assistant Engineer against the available post. It is pleaded that the candidates at S.No. 6, 12 & 14, far below the petitioner in

order of merit in waiting list, were appointed as Assistant Engineers with effect from the date the Select List was made operational. The petitioner

against the above factual backdrop seeks following reliefs:

i). revise and thereby finalize the seniority of the Assistant Engineers in accordance with the Government Order No: 297-Works of 2002 dated

20.6.2002 wherein the petitioner has been shown at S.No. 4 and thus being the exercise initiated by Government Order No. 297-Works of 2002

dated 20.6.2002 to its logical and treat the petitioner as having been appointed as Assistant Engineer from the date the persons who figure below

the petitioner in the Wait List of Assistant Engineers prepared by Public Service Commission in response to the advertisement notice issued earlier;

and

ii). show the petitioner properly in order of seniority over and above the persons who figure below the petitioner in the wait list of Assistant

Engineers prepared by Public Service Commission in accordance with the contemplations of Government Order No: 297-Works of 2002 dated

20.2.2002.

The respondents, in their reply while admitting almost all the factual averments made in the petition, plead that the candidates in the Waiting List

at S.No. 6, 12, & 14, were appointed as Assistant Engineers either in compliance of court order or on their filing representations for such

appointments. Shri G.M.Bhat at S.No. 12 in the order of merit, in the Waiting List, is said to have been appointed in compliance of the Court

order in SWP No. 1043/1999, vide Government Order No. 41-Hyd of 1999 dated 3rd March 1999 whereas S/Shri P.B.Gandhi and Babu

Hussain, who figure at S.No. 6 & 14 in the order of merit in Waiting List, are said to have filed representations for their appointment as Assistant

Engineers and the respondents felt persuaded to appoint the representationists. It is pleaded that the petitioner was promoted in the year 1987 as

Assistant Engineer at his own turn and that the Government vide order No. 297-Works of 2002 dated 20th June 2002, proposed to revise

seniority of the Assistant Engineers, named in the said order and that the petitioner figures at S.No. 04 in the said List. The respondents' case is

that the petitioner did not file any objection to the Government order dated 20th June 2002 and that the petitioner, in view of his failure to file

objections to the Government order in question, is stripped of any right to maintain writ petition. It is further pleaded that the petitioner cannot be

given seniority with effect from 1983 when the petitioner was not born on the cadre of Assistant Engineer as such course would be in conflict with

the law laid down in the Suraj Prakash Gupta's case.

Heard and considered.

The respondents, in their reply to the writ petition, as already pointed out, have admitted almost all the averments made in the petition. It stands

admitted that the petitioner like other Junior Engineers responded to the advertisement notice issued by Public Service Commission to select

candidates for 30 posts of Assistant Engineers referred to it by the Public Works Department. It is also admitted that the Public Service

Commission in the year 1982-83 forwarded list of 47 candidates -- 30 in the Select List and 17 in the Wait List, to the Public Works Department.

It is pertinent to point out that 17 candidates in the Waiting List were already working as Junior Engineers on the date selection was made by

Public Service Commission. It appears that the select list was operated in 1982-83 though the Waiting List was not operated/utilized.

The respondents thereafter either in compliance of court order or on the representations made by some of the candidates in Waiting List,

appointed a few candidates in the Waiting List as Assistant Engineers. It needs to be emphasized that Waiting List was made in the order of merit.

The petitioner thus had superior right to be considered for appointment against available vacancy as compared with S/Shri Ghulam Mohammad

Bhat, P.B. Gandhi, and Babu Hussain, who admittedly figure much below petitioner in the Waiting List. The record available on the file reveals that

three other candidates in the Waiting List, belonging to SC/ST category were also promoted and on 20th of June 2002 occupied the position of

Executive Engineers in the Department. The respondents, in case vacancies were available to be filled up from the candidates in the Waiting List,

were required and expected to operate Waiting List in the order of merit and not selectively as has been done by the respondents. The Public

Service Commission, while forwarding list of 47 candidates, included in the Select List and Waiting List took into account performance of the

candidates in written and oral examination and the list was prepared strictly in accordance with merit. Selection of the candidates in the Waiting

List was not made by the Commission contingent upon their resorting to litigation or making representation to the respondents.

The respondents cannot come up with a plea that as petitioner at a higher place in the Waiting List, was under duty to resort to litigation or make a

representation and his having not chosen either of the courses was to be left out and in his place a candidate who had resorted to litigation or made

a representation, appointed. It was duty of the respondents to appoint the petitioner on his turn against the available vacancy of Assistant Engineer

without pushing the petitioner to litigation or expecting him to make a representation. The respondents cannot justify their action -- discriminatory in

character on the ground that the petitioner did not file a writ petition or make a representation to the respondents and thus was not to be appointed

as Assistant Engineer. The respondents, by ignoring the petitioner for appointment as Assistant Engineer, have violated his fundamental rights

guaranteed under Article 14 and 16 Constitution of India. Argument advanced by learned counsel for respondents that ""equality rule"" does not

envisage that person who has not qualified for appointment, can still claim such appointment merely on the basis that some other person not

qualified has been appointed and that the petitioner cannot claim appointment because some other candidates appearing in the Waiting List were

appointed in violation of rules, is wide off the mark and does not extend any help to the respondents' case. Reliance on law laid down in State of

Punjab and others v. Tara Singh Shahi (1996, SCALE (3) 716) is also misplaced. The argument is made oblivious to the fact situation in the

present case. It is nobody's case that S/Shri Puran Bharat Gandhi, G.M. Bhat and Baboo Hussain Sheikh were not eligible for their appointment as

Assistant Engineers. It is admitted case of the parties that the petitioner and S/Shri Puran Bharat Gandhi, G.M. Bhat and Baboo Hussain Sheikh

were all working as Junior Engineers when they decided to participate in the selection process for the post of Assistant Engineer.

The principle that one wrong does not justify other wrong is not at all attracted in the present case. It is a case of clear violation of Article 14

and 16, Constitution of India. The respondents, by operating Waiting List selectively, have in effect disregarded the recommendations made by the

Public Service Commission and in the process violated Section 133 of Jammu and Kashmir Constitution.

The respondents, conscious of discriminatory treatment meted out to the petitioner as also to S/Shri A.K. Koul, Lalita Dhar, Sham Lal Kapoor,

who figure at S.No. 1 to 3, in the order of merit in the Waiting List, issued Government Order No. 297-Works of 2002 dated 20th June 2002,

whereby the seniority of the petitioner and other candidates appearing in the Waiting List, higher in the order of merit to the candidates, in respect

of whom the Waiting List was made operational, is proposed to be revised and the tentative seniority list finalized. The process initiated appears to

have not been taken to its logical end and seniority not revised and finalized as proposed in the Government Order. The respondents seek to

wriggle out of their obligation to finalize seniority on the lines mapped out in the aforesaid Government Order, pleading that the failure of petitioner

to file objections to the proposed revised Tentative Seniority List, contributed to delay in finalization of Seniority List. The plea raised by the

respondents is bereft of any merit. The respondents fail to notice that objections were sought only from such of the candidates, who were affected

by proposed revision of seniority. The Government Order No. 297-Works of 2002 dated 20th June 2002, having initiated process to set right

grievance of the petitioner and other meritorious candidates, the petitioner was not affected by the proposed Seniority List and his failure to submit

any objections cannot be used as a pretext/excuse by the respondents to avoid taking the process initiated to its logical conclusion.

The plea of laches raised by the respondents in their reply does not sound convincing. It appears that the petitioner has been representing to the

respondents against discriminatory treatment meted out to him ever since Waiting List was operated selectively and the candidates, far inferior to

the petitioner in the merit, were appointed as Assistant Engineers. Government Order No. 297-Works of 2002 dated 20th June 2002 makes

mention of representations made by the petitioner and it is in wake of the representations so made that process for revising seniority has been

initiated. The petitioner cannot be penalized for indifference and apathy shown by the respondents in setting right his grievances and visited with any

adverse consequences. If the petitioner as a disciplined employee decided to approach the respondents instead of resorting to litigation and

expected the respondent No. 1 as a model employer to address his grievance, the right course for the respondents is to set right the grievances

voiced by the petitioner and not to punish the petitioner for his sense of discipline.

For the reasons discussed, the writ petition is allowed and the respondents directed to take the process initiated vide Government Order No.

297-Works of 2002 dated 20th June 2002 to its logical end and finalize seniority of the petitioner and other officers, included in the Tentative

Revised Seniority List, as provided under aforesaid Government Order. The respondents shall as far as possible complete the process within 12

weeks.