Zakir Hussain vs State Of J&K And Others

Wasim Sadiq Nargal, J

BRIEF FACTS:

The facts giving rise to the filing of the present petition are briefly summarized as under:

The case set by the petitioner is that respondents issued advertisement notice No.DDCK/02 of 2008 dated 05.03.2008 inviting applications for the post of Gram Rozgar Sewak Panchayat Qaderna-A Block Marwah under NREGA and the petitioner being eligible applied for the same along with other candidates. The respondents after scrutiny vide notice No.DDCK/NREGA/ GRS/3014/2009-10 dated 03.12.2009 issued short list of the candidates. The petitioner accordingly along with other candidates appeared in the written as well as viva test and obtained 34.50 points and figured at Sr. No.2 in the merit list. The claim projected by the petitioner is that he should have been shown at Sr. No.1 in the said merit list as the candidate figuring at Sr. No.1 had obtained just 28.50 points. It is the further case of the petitioner that respondents issued engagement Order No.DDCK/06 of 2010 dated 15.02.2010 engaging other candidates and the petitioner was excluded despite having higher merit. Accordingly, feeling aggrieved of the said action of the respondents, petitioner served a legal notice upon the respondents calling upon them to recall the order and appointed/engage him in place of one Ghulam Rasool Sheikh S/o Bhadur Sheikh figuring at sr.no.1 in the said list having obtained only 28.50 points.

It is further pleaded that thereafter respondents issued an order No. DDCK/NREGA/117-23 dated 3.7.2010 whereby he was engaged as Suporting Staff (Gram Rozgar Sewak) in Block Marwah. It is stated that the Assistant Commissioner Development, Kishtwar, issued a communication vide No. ACDK/MGNREGA/2010-11/1792-99 dated 21.08.2010 directing the Block Development Officer to disengage the supporting staff/ GRS engaged under MGNREGA without proper selection with immediate effect. The petitioner claims that he has been selected through a proper selection process and has been paid salary for the months of August, September and October, 2010, however, from November, 2010, the petitioner has not been paid the salary on account of directions of the Assistant Commissioner Development, Kishtwar (supra). The petitioner submits that no order of dis-engagement has been issued in his favour, however, he is not being allowed to work and his salary has also not been released in his favour from November, 2010. The said action of the respondents is being challenged by the petitioner through the medium of the present writ petition and praying for quashing the order No.ACDK/MGNERGA/2010-11/1792-99 dated 21.08.2010 issued by the Assistant Development Commissioner, Kishtwar, and directing the respondents to allow the petitioner to continue on the post of Gram Rozgar Sewak with further direction to release the salary in his favour with effect from November, 2010.

It is pertinent to mention here that during the pendency of the writ petition, the same was transferred to CAT, Jammu Bench, vide order dated 15th June, 2020 in terms of Notification No. G.S.R. 267(E) dated 29th April, 2020 read with Notification No. G. S.R. 317(E) dated 28th May, 2020, issued by the Ministry of Personnnel, Public Grievances and Pensions (Department of Personnel and Training). However, by virtue of order dated 22nd February, 2021, the CAT, Jammu Bench, returned the writ petition to this Court by holding that since the case pertains to MNREGA and MNREGA has not been brought within the jurisdiction of the Tribunal by a notification to be issued by the Central Government under Sec. 14(2) of the Administrative Tribunal Act, 1985, the Tribunal cannot assumed jurisdiction in respect of any service matter pertaining to the MNREGA under the Act.

In response to the writ petition, respondents filed reply and have clearly stated that the petitioner figured at sr.no.1, as per academic merit points. However, after calculating the academic merit, viva test of the candidates was conducted and in the final merit list the petitioner figured at sr.no.2 and thus, there was no reason for the respondents to consider the petitioner for his engagement as Gram Rozgar Sevak under MGNREGA. The petitioner by placing the incomplete merit list before the Court has tried to mislead the Court. It is further submitted that the petitioner is entitled for selection against the category of Gram Rozgar Sevak as he had obtained only 45.75 points out of 100 points while as the selected candidate has obtained 46 points out of 100 points. Thus, the candidate having higher merit was considered for engagement and was accordingly engaged as Gram Rozgar Sevak.

The further stand of the respondents is that during the month of July, 2010, after receiving the recommendations of the Hon’ble Minister for Rural Development Department and Panchayat Raj, the petitioner along with some other candidates was engaged for a brief period purely on need basis as supporting staff and not as Gram Rozgar Sevak in order to cater the pace and progress of work in Block Marwah. These engagements were made with the sole purpose of achieving the set out targets under the scheme within the stipulated time period. It is further stated that after finalization and completion of works, candidates engaged including the petitioner purely on need basis for a brief spell of period were disengaged due to the non-availability of funds. The order issued by the Assistant Commissioner Development, Kishtwar, regarding disengagement of the candidates engaged without proper selection procedure is in due consonance to the provisions of law and in accordance with the provisions of MGNREGA guidelines as the said order were made purely on need basis wherein all such terms and conditions have been stipulated. The further stand of the respondents is that petitioner was never engaged as Gram Rozgar Sevak through normal selection process as he failed to make the grade in the selection process conducted and his claim for engagement as Grame Rozgar Sevak in Panchayat Qaderna (B) Block Marwah cannot be entertained as already Ghulam Rasool S/o Sh. Bhadur Sheikh R/o Qaderna Marwah ranking at sr.no.1 in the final selection list is working as Grame Rozgar Sevak. Finally, the respondents have prayed for dismissal of the writ petition.

Legal Analysis:

Heard Mrs. Surinder Kour, learned senior counsel, assisted by Ms. Manpreet Kour, Advocate, for the petitioner and Mr. R. S. Jamwal, learned AAG, for the respondents.

Admit. On coming up for consideration before the court, the Court from the very beginning asked the respondents to produce the record which they failed to do and finally the record was produced before this Court on 7th July, 2022 and the learned counsel for the respondents was directed to retain the record and produce the same before the court on the next date of hearing.

Perusal of the record reveals that petitioner has not come to this Court with clean hands and has suppressed the material facts with a view to mislead this Court. On perusal of the original record, it is manifestly clear that the petitioner figure at sr. no.2 in the merit list and as such cannot claim to be engaged to the post against which one Ghulam Rasool Sheikh, who obtained

46 points while as the petitioner had obtained 45.75 points in the selection process. The said Ghulam Rasool Sheikh, has not been impleaded as party respondent to the writ petition. From the perusal of the record and the pleadings of the parties it is apparent that the petitioner has concealed the material fact i.e., his interview score and tried to mislead this Court by bringing on record the merit list which does not indicate the marks obtained by him and the selected candidate in the interview. The petitioner by virtue of Annexure-A has tried to mislead this court by pleading that same is the merit list of the applicants who applied in Block Marwah Panchayat Qaderna-B when in fact the said list is the merit position computed on the basis of academic merit in which the marks obtained in the interview have not been included. From the perusal of the original record which has been produced by the respondents before this Court, the petitioner has secured 45.75 points out of 100 points which includes the 34 points obtained in the academic merit and 11.25 points in the interview, whereas, Ghulam Rasool Sheikh—selected candidate had secured 46 points out of 100 points which include 28.50 points in the academic merit and 17.50 points in the interview and rightly so the said candidate stood selected being higher in the merit viz-a-viz the petitioner.

When the aforesaid fact was brought to the notice of the Court by the respondents while filing reply and producing the record, the petitioner with a malafide intention tried to change the complexion of the case by projecting that the petitioner has not challenged the appointment of selected candidate but a challenge has been thrown that his services cannot be disengaged as the post against which he has been engaged was lying vacant. The stand which was earlier taken in the present writ petition was changed by the petitioner by taking a U-turn when the actual marks and merit position was conveyed by the respondents. The continuous change of submissions by the petitioner clearly prove beyond any shadow of doubt that petitioner has not come before the Court with clean hands and has tried to mislead this Court by suppressing the material facts. It was incumbent on the part of the petitioner to have come before the Court with clean hands by projecting the true and actual facts. In M/s Prestige Lights Ltd. v. State Bank of India :” (2007) 8 SCC 449, the Apex Court has held as under:

“35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.”

In Amar Singh v. Union of India : (2011) 7 SCC 69, the Apex Court has observed as under:

“57. In one of the most celebrated cases upholding this principle, in the Court of Appeal in R. v.Kensington Income Tax Commissioner {1917 (1) K.B.486} Lord Justice Scrutton formulated as under:

"…..and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- facts, now law. He must not misstate the law if he can help it - the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement."

It is one of the fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings and especially when it contains a prayer for injunction. A prayer for injunction, which is an equitable remedy, must be governed by principles of `uberrima fide'.”

It is settled preposition of law that mere participation in the interview does not confer any right upon the petitioner. Therefore, it can be safely concluded that despite participating in the selection and there was a vacancy no vested right is conferred on the petitioner on the said post. In Shankarsan Dash v. Union of India : (1991) 3 SCC 47, the Apex Court held as under:

“7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.”

Adverting to the other issue as projected in the writ petition, wherein the petitioner has called in question that impugned order dated 21.08.2010 by virtue of which a direction has been issued by the Assistant Commissioner Development, Kishtwar to the Block Development Officer, Marwah, to disengage the supporting staff/ GRS engaged under MGNREGA without proper selection with immediate effect. It is pertinent to mention that engagement of the petitioner was made pursuant to the recommendation of the then Minister for Rural Development, Law and Parliamentary Affairs, and the petitioner was engaged purely on need basis for a requisite period or till the availability of funds under Management Cost of National Employment Guarantee Scheme whichever is earlier subject to the following terms and conditions:

“1. The arrangement shall be purely need based and linked inextricably to the availability of funds under Management Cost under NREGA.

The appointees shall not be entitled to any preferential claim for regular appointment under normal process of selection.

The appointee shall not be entitled to any other allowance or monetary benefits, whatsoever.

The appointment shall be subject to review of performance from time to time and can be dispensed with before the expiry of the period in case of unsatisfactory performance/ non requirement of service prior to any notice.

The performance of the candidate shall be monitored by the Block Development Officer concerned and reported to the controlling heads on monthly basis.”

The aforesaid order reveal that the same was issued pursuant to the direction of the then Minister for Rural Development, Law and Parliamentary Affairs, without conducting any selection process and the said order was purely on need basis for a requisite period or till the availability of funds. The order clearly stipulates that the petitioner was engaged as a supporting staff in block Marwah under NREGA purely on need basis and linked inextricably to the availability of funds under the Management Cost under NREGA. The condition clearly stipulate that arrangement was purely on need basis and appointee was having no right whatsoever of preferential claim of seeking regular employment and will depend upon the availability of the funds. The petitioner accepted the said order with his eyes open and was aware of the fact that it was on need basis, therefore, petitioner by no stretch can be appointed on the said post as a matter of right or seek continuance.

Since the aforesaid order of engagement was issued in favour of the petitioner without initiating any proper selection process, a direction was subsequently issued to dis-engage the supporting staff for the reason that the same were engaged without proper selection failing which it was made clear to the Block Development Office that the responsibility will lie on his shoulders in case said staff is not dis-engaged immediately. Pursuant to the aforesaid direction coupled with the fact that the same was engaged without following any proper selection process, no fault can be attributed to the respondents to dis-contiue/ disengage the petitioner. As the said arrangement was purely need based arrangement for a requisite period or till the availability of the funds subject to the riders imposed in the order of engagement dated 3rd July, 2010. Since the said engagement has been made without conducting the due selection process and as such the same can’t sustain the test of law nor it can infuse any right in the petitioner to continue as a matter of right. Thus, the challenge of the petitioner to the order of disengagement on the strength of illegal order dated 3rd July, 2010 falls flat and the writ petition which is devoid of any merit and is not maintainable being misconceived.

Even otherwise, the present writ petition is also not maintainable for the reason that the petitioner has failed to array the selected/engaged candidate, namely, Ghulam Rasool Sheikh, as party respondent against whom the petitioner has projected the grievance and in absence of said Ghulam Rasool Sheikh, who was figuring at sr. no.1, being a necessary party, the present writ petition is not maintainable on technical grounds.

Conclusion:

Since the petitioner has not come before the Court with clean hands as he has suppressed the material facts, the present writ petition which is misconceived is not maintainable and same is dismissed along with all connected applications for the reasons stated hereinabove.

Record produced by Mr. R. S. Jamwal, AAG, be returned to him against proper receipt by the Registry.