Talib Hussain Dar vs State

Ali Mohd. Magrey, J.—Vide advertisement notice bearing notification No. 06 of 2008 dated 28.05.2008, respondent No. 2 invited

applications inter alia for filling up posts of Physical Education Teachers (PETs) in District, Srinagar. In terms of the said advertisement notice the

respondent No. 2 as well prescribed the qualification as a matter of eligibility as under:

Matric with Certificate course in Physical Education Preference being given to those who have a good sports career or graduates with outstanding

sports career with basic course in skiing and mountaineering.

Besides prescribing the Minimum and Maximum Age requirements of the candidates respectively as 18 years and 37 years as on 01.01.2008, the

advertisement notice also notified, that in the case of candidates already in Government services/contractual employees the maximum age limit shall

be 40 years. The relevant condition as stipulated in the advertisement notice regarding maximum Age limit of the in-service candidates being

relevant is extracted as under:

40 years in case of candidates already in Government service/contractual employees

In terms of condition-V(b), the Advertisement also prescribe that the in-service candidates/contractual employees shall prepare a photocopy of

the application form and route the same through proper channel. It was also prescribed that in the event of the candidates to route the application

through proper channel his eligibility shall be assessed, as if he is not an in-service candidate. The relevant condition in this behalf mentioned in the

advertisement notice is extracted as under:

The in-service candidates/contractual employees shall prepare a photocopy of the application form and route the photocopied application form

through proper channel viz the concerned Head of the Department while as the original application form duly filled in shall be delivered or

dispatched by post in the same manner as applicable to other candidates. In the event of failure of the candidate to route the application through

proper channel his/her eligibility shall be assessed as if he/she is not an in service candidate to the office of Administrative Officer, Service Selection

Board of the concerned Division, Dy Director, Employment of the District within 10 days after the last date of the application form.

The petitioner being fully eligible and possessed with the prescribed qualifications, states to have applied before the respondent No. 2 in the

prescribed format in response to the advertisement notice (supra) well within the last cut-off date submitting all certificates as mentioned

hereinabove. Since as on 01.01.2008, on the basis of his date of birth being as 10.08.1969, the petitioner was more than maximum age limit of 37

years as prescribed for Open Merit Candidates, therefore, availing the benefit of being contractual employee as also the statutory safeguard

provided under SRO 255 of 2003 [Refer 2003 (1) JKS JK-189], the petitioner submitted a photocopy of the application form along with the

aforesaid certificates before his immediate Administrative Authority i.e. District Youth Services, Sports Officer, Srinagar for being forwarded to

respondent No. 2. It is submitted that petitioner's said application form along with the applications of other contractual appointees was forwarded

by the District Youth Services and Sports Officer to the Dy. Director, Youth Services & Sports, Srinagar vide communication No.

DYSSO/Sgr/2257 dated 09.06.2008, having learned reliably both from the office of respondent No. 2 as also respondent No. 3 that his

application form along with other similar candidates duly completed in all respects was forwarded by the office of respondent No. 3 to respondent

No. 2 vide No. DG/YSS/Cenl/3433-3448 dated 21.08.2008 under the subject ""submission of application forms for the posts of P.E.Ts working

on contractual basis"".

It is submitted that the petitioner also learned from the office of respondent No. 2 that having received the said communication alongwith the

application forms on 21.08.2008 and the concerned officer in the office of respondent No. 2 referred the same for appropriate disposal under

Table No. 1482 dated 21.08.2008.

It is further submitted that in recognition of petitioner's eligibility, he in terms of a notification issued by respondent No. 2 and published in the

local news paper ""Greater Kashmir"" in its issue dated 19.09.2008, was invited for appearance in interview before the selection committee on 25th

Sept. 2008 with his Roll No. as 460705.

It is also submitted that the notification specifically provided that only such candidates shall be allowed to appear in the interview who are within

the age and possessed the prescribed qualifications. The notification also mentioned that in case of any deficiency with reference to eligibility, the

candidate shall not be allowed to appear in the interview.

Petitioner further submits that he appeared before the selection committee for interview on 25.09.2008 and performed well and at the time of his

interview no deficiency of whatsoever nature in the matter of his eligibility was pointed out by the respondent No. 2.

It is submitted that based on the interview, the respondent issued a provisional select list of the candidates for District Cadre Srinagar. The said

provisional select list was published by the respondents in the local news paper ""Greater Kashmir"" in its issue dated 02-03-2010. Surprised to

notice that his name was not included in the provisional select list, the petitioner immediately approached the office of respondent No. 2. On

verification it was found by him that based on his academic/technical qualifications as also his performance, the petitioner had secured a merit

position of 44.20 marks in the Open Merit Category. It was also found by him that the last candidate provisionally selected in the Open Merit

Category had secured 40.94 marks. The petitioner, accordingly, made representation before respondent No. 2, in this behalf, a letter has also

been written by respondent No. 3 to respondent No. 2 vide his No. DYSS/Esst/1965-96 dated 02-06-2010, requesting the respondent No. 2 to

accord consideration to the appointment of the petitioner under the provisions of SRO 255 dated 05-08-2003.

It is submitted that, despite of the aforesaid objections filed by the petitioner and without according due consideration thereto, the respondent

No. 2 forwarded a select list to respondent No. 1 vide a communication No. SSB/Sel/Secy/(PET)/010/1792-97 dated 31-05-2010. In terms of

the said select list, the petitioner has been completely excluded. On the contrary the respondent No. 4-16 have been included amongst selected

candidates even though they have obtained far less merit viz-a-viz the petitioner. The said select list has been approved by the respondents leading

to issuance of an order of appointment, inter alia, in favour of respondents 4-22. This has been done on the basis of a merit list forwarded by

respondent Board vide letter No SSB/Sel/Secy/(PET)/010/1792-97 dated 31-05-2010. The respondents have consequently issued order No.

25-DYSS/Esst of 2010 dated 29-07-2010. Feeling aggrieved of the aforesaid impugned order the petitioner challenged the same on the following

amongst other grounds, which are taken in the alternative and without prejudice to each other:

i) the impugned order 25-DYSS/ESTT of 2010 dated 29.07.2010 based on the aforesaid selection so far as it denies the benefit of appointment

to the petitioner and orders the appointment of respondents 4-22 in the post of Physical Education Teacher is patently unfair and unjustified,

causing serious infringement to the petitioner's fundamental rights as guaranteed under Article 14 & 16 of constitution. As has been stated in detail

hereinabove, the petitioner on the basis of the qualifications prescribed by the advertisement notice was and is fully eligible, possessed of the

qualifications prescribed. Based on his engagement on contractual appointment basis in the post of Physical Education Teacher, the petitioner was

and is also entitled to be treated as in-service candidate and thus within the prescribed age of 40 years as on 01-01-2008. It was on that basis and

adhering to the stipulations made in the advertisement notice that the petitioner besides directly applying to the respondent No. 2, also submitted a

Photostat copy of the application form dully complete in all respects along with all his testimonials to the office of respondents No. 3, who having

already received the petitioners application from the office of District Youth Services & Sports officer, Srinagar vide No. DYSSo/Sgr/2257 dated

09.06.2008, forwarded the same along with other similar application to respondent No. 2 under his communication bearing No.

DG/YSS/Cenl/3433-3448 dated 21-08-2008. As stated above, having received the said communication of respondent No. 3, the respondent

No. 2 on the same date referred the petitioner's application to the concerned under Table No. 1482. Accordingly, the petitioner was shortlisted

and invited for interview vide notification No. 06 of 2008 dated 28.05.2008 which was followed by conduct of his interview by the Selection

Committee on 25-09-2008. It is opposite to reiterate that at the time of conduct of his interview by the respondent No. 2, the petitioner was not at

all pointed out of any shortcoming or defect or deficiency in his candidature. It is admitted case that petitioner has secured an aggregate marks of

44.20 in the selection, with the following break-up:-

It is submitted that in presence of the said fact position, it is not under law open for the respondents to deny the benefit of appointment to the

petitioner to the post of Physical Education Teacher and instead select and appoint respondents 4-22 despite of having secured less merit viz-a-viz

the petitioner, the denial of selection/appointment in favour of the petitioner is obviously unfair and arbitrary, smacking of a treatment antithetic to

the norms of fair play. The impugned order to the aforesaid extent is liable to be set aside on this ground alone.

ii) the impugned selection/appointment to the aforesaid extent and denial of appointment of the petitioner is also violative of Article 14 & 16 of

constitution in that the petitioner has been subjected to invidious discrimination without any reason, rhyme or justification.

iii) the impugned selection/appointment to the aforesaid extent and denial of appointment to the petitioner is all well contrary to the terms of the

advertisement notice. As stated above, the advertisement notice, inter alia, laid down the conditions of eligibility of in-service candidate (contractual

appointees) as a matter of age at 40 years as on 01-01-2008. The advertisement as well prescribed the specific mode to be followed by the

candidates in submission of application form. It is reiterated that same very mode was followed by the petitioner in letter and spirit while submitting

his application form both directly to respondent No. 2 as also a photocopy in the office of Head of the Department (respondent No. 3). The

petitioner's application was duly forwarded by respondent No. 3 to respondent No. 2 and it was as such that the petitioner was interviewed as an

inservice candidate leading to his merit position as 44.20 marks. The respondents while issuing the impugned order and completing the selection

have obviously disregarded the said stipulations of the advertisement in an arbitrary and unfair manner.

iv) the impugned selection/appointment to the aforesaid extent is also unjust and unfair, violative of Article 14 & 16 of constitution in as much as the

respondents appear to have proceeded in the matter in a mechanical manner and have failed to apply their mind to the relevant facts and

circumstances of the case. They have not at all considered that the petitioner was an in-service candidate with his application duly forwarded by

respondent No. 3.

v) the impugned selection/appointment to the aforesaid extent is also without jurisdiction. The respondents have acted in a manner which is

contrary to the conditions of the advertisement notice as also the mandate of law.

vi) the impugned selection/appointment to the aforesaid extent is also violative of well established rules and principles of law and natural justice,

equity, good conscious and fair play. The petitioner has been condemned behind his back.

vii) the impugned selection/appointment to the aforesaid extent is also bases on legal malice in that the petitioner has been denied his appointment

to the post of Physical Education Teacher without any lawful excuse. The course adopted by the respondents is not at all bonafide but appears to

be designed to pave way for the selection/appointment of the respondents 4-22.

On notice respondent No. 2 has filed reply, denied the averments made in the writ petition being factually incorrect and legally unsustainable.

The respondent has also resisted the claim of the petitioner with reference to his ineligibility on account of over age and having not received the

application form as being in-service candidate through proper channel before cutoff date.

Respondent No. 3 has also denied the entitlement of petitioner with reference to claim, however he admits that the contention raised by

petitioner of having forwarded his application form through proper channel well before the last cutoff date.

In order to settle the issue raised for determination as to whether the petitioner's application was duly forwarded by the department to the

Board within cutoff date, this court in terms of order passed on 15.03.2011 directed respondent No. 3 to submit better pleadings in the shape of

supplementary affidavit. It is also provided in the order that respondents shall inform the court whether petitioner applied to the department, if so,

whether is application is duly being forwarded to the Board as stated by the petitioner in the present petition.

Respondent No. 3 has filed affidavit wherein he admits the contention raised by the petitioner in the following manner:

It is respectfully submitted that the deponent (Director Youth Services and Sports) has already forwarded the case of the petitioner through

proper channel to Service Selection Board vide this office letter No. DYSS/Estt/1695-96 dated 02.06.2010 while before the last date of filing of

application.

During pendency of the writ petition, the Court has examined the petitioner's application form produced by the respondents 1 & 2, and it was

found that noting thereon indicates that J&K Youth Services and Sports Board is aware about the petitioner's status as that of contractual

employee. It was also noticed that respondent No. 3 i.e. Director General Youth Services and Sports had forwarded the petitioner's application

form to the J&K Service Selection Board for selection as departmental candidate and accordingly vide order dated 10.04.2012 directed the

Secretary J&K Service Selection Board to file affidavit within a week's time indicating as to whether or not any post of Physical Education

Teacher was still available with the Board for selection.

In compliance of order passed on 10.04.2012, respondent No. 2 has filed supplementary affidavit submitting the breakup of 102 posts of

P.E.Ts, District Cadre Srinagar, advertised vide advertisement notice No. 03 of 2006 dated 28.12.2006 and 6 of 2008 dated 28.05.2008 against

Item No. 14 and 03 respectively. In the affidavit the Board has submitted that all the posts referred to were filled up and recommended to the

Indenting Department, however, sixteen posts remained unfilled due to non availability of eligible candidates belonging to reserved category.

Heard learned counsel for the parties. Considered the matter and perused the available records.

Main issue raised for determination and registered by this Court in terms of order passed on 15.03.2011 is as under:

whether the petitioner's application was duly forwarded by the department to the Board within the cutoff date

Respondent No. 3 in his reply as also in personal affidavit has admitted that the application form of the petitioner has been submitted to the

J&K Service Selection Board, Srinagar before cutoff date and the Board has also not specifically replied the contention raised in the writ petition

with reference to the submission of application form through proper channel, therefore, undoubtedly the claim of the petitioner is admitted as the

contention raised by the petitioner is correct and petitioner has applied within time as in-service candidate, therefore rightly allowed to compete the

process of selection.

Now the only question remains as to what relief the petitioner is entitled to in the given circumstances, the answer is readily available with

reference to the admission of J&K Service Selection Board that petitioner has on competing selection process and on proper assessment of his

merit has obtained 44.20 with the following break up:

Merit of the petitioner remained as under:

The respondent Board has also submitted that the last selected candidate in Open Merit category has secured 40.94 marks, therefore, the

petitioner has obtained the merit within the cutoff of selected candidate.

The petitioner has established his right for selection and for consideration of his appointment in view of his merit position, therefore, this Court

has to work out an option for grant of relief.

Obviously the petitioner having secured 44.20 marks as against 40.94 marks of the last selected candidate, therefore, one option is to quash

the selection of the last selected candidate and directed the selection and appointment of petitioner against that post, but since the last selected

candidate has been appointed in the year 2010, therefore has rendered about four years service, so it will not be appropriate to quash the selection

and appointment of the said respondent.

Ld. counsel for petitioner has placed on record photocopy of communication no DYSS/RTI/1221-22 dated 10.05.2012, contents whereof

reveals that Public Information Officer Youth Services and Sports has informed the petitioner regarding availability of posts of Physical Education

Teachers in District Srinagar. The communication is taken on record. Sufficient number of posts being available with the Youth Services and

Sports in District Srinagar, therefore, it will be appropriate to direct the respondents to utilize one post for appointment of petitioner.

The exclusion of petitioner from selection without any legal and objective justification has visited him with civil consequences and his

fundamental right guaranteed under Art. 14 and 16 of the Constitution has been violated. The Court is under a legal obligation to protect the legal

interest of petitioner who is still working on contractual basis as Physical Education Teacher. Petitioner is not at fault and cannot be allowed to

suffer irreparable injury.

This view is fortified in case reported in SLJ 1991/232 : JKJ Soft JKJ/10454 titled Basanti Kumari and ors v. State and ors as also judgment

dated 07.10.2013 passed in SWP No. 431/2011 titled Rifat Khalida v. State and ors by High Court of J&K.

In these circumstances, I do not propose to quash the selection/appointment of respondent but at the same time cannot ignore the fact that the

fundamental right of the petitioner has been violated by depriving him of the right to be selected/appointed as Physical Education Teacher. A right

stands vested in the petitioner to seek direction of this Court for enforcement of his fundamental right enshrined under Art. 16 of the Constitution.

I therefore, allow the petition to the extent that the petitioner shall be selected/appointed as Physical Education Teacher in District Srinagar

against an available vacancy without disturbing the selection/appointment of respondent-Physical Education Teachers. Disposed of along with all

connected CMPs, without any costs. Record be returned to the learned counsel for respondents.