Mudasir Bashir vs Government Of J&K And Others
2021 Latest Caselaw 161 j&K/2

                                      h475




     HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR




                                                WP (C) No.3898/2019




                                              Reserved on : 11.02.2021
                                               Pronounced on : 18.02.2021



Mudasir Bashir                                                ...Petitioner(s)

                          Through:- Mr. Shafqat Nazir, Advocate.
                   V/s

Government of J&K and others                                 ...Respondent(s)
                          Through:- Mr. B. A. Dar, Sr. AAG for R-1.
                                    Mr. Azar-ul-Amin,Advocate for R-2&3.
                                    Mr. J. A. Kawoosa, Sr. Advocate with
                                    Mr. Faheem, Advocate for R-4.
                                    Mr. Momin Khan, Advocate for R-5.


Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                  JUDGMENT

Sanjeev Kumar-J

1. In the instant petition the petitioner has essentially challenged

the vires of Rule 51-A of the Jammu and Kashmir Public Service

Commission (Business and Procedure) Rules, 1980 (hereinafter to be

referred as 'the Rules'), and has sought a direction to the respondent- Public

Service Commission to call the petitioner for medical/fitness test and

appoint him to the post of Civil Judge ( Junior Division)/Munsiff, notified in

terms of notification dated 30.05.2018.

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2. The facts which are relevant to the disposal of this petition are

that, vide reference dated 21.05.2018 issued by the Department of Law

Justice & Parliamentary Affairs ( hereinafter for short, 'the Department of

Law'), 42 posts of Civil Judge ( Junior Division)/Munsiffs were referred to

the J&K Public Service Commission for conducting selection process in

accordance with the Jammu and Kashmir Civil Services (Judicial)

Recruitment Rules, 1967 ( hereinafter for short, ' the Recruitment Rules').

The referred posts were notified by the Commission vide its notification

dated 30.05.2018. The selection process, in which the petitioner also

participated as one of the candidates, was finalized by the Commission and

communicated to the Department of Law vide letter dated 25.10.2019. One

post in Open Merit/PHC category was kept reserved pending clarification

from the indenting department regarding earmarking of slot for the

physically handicapped category candidates. In the select list for Open Merit

Category candidates issued by the Public Service Commission, the petitioner

was given over all rank of 24 with aggregate score of 580 marks. The

respondent No.5, with the same aggregate score was, however, ranked 23 rd

and, therefore, figured as a last candidate in the Open Merit Category. The

petitioner was denied selection on the ground that the tie between the

petitioner and private respondent No.5 was broken by applying Rule 51-A of

the Rules and the petitioner, having scored lesser points in the viva voce,

was placed below respondent No.5.

3. Having been ousted from the zone of consideration because of

operation of Rule 51-A of the Rules, the petitioner has filed the instant

petition throwing challenge to the vires of Rule 51-A on the ground that the

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same is arbitrary, unreasonable and in violation of Article 14 of the

Constitution of India. However, at the time of arguing the writ petition,

learned counsel appearing for the petitioner did not press the aforesaid

ground of challenge and submitted that due to later development, i.e. due to

non-joining of one of the candidates in Open Merit Category, a post of

Munsiff has fallen vacant and petitioner, being next in the order of merit, is

entitled to be selected and appointed against the post so fallen vacant.

4. Having heard learned counsel for the parties and perused the

record, we are of the view that the grievance of the petitioner can be well

taken care of and redressed in view of the later development i.e. position

emerging due to non-joining of one of the selected candidates, namely,

Nitika Mahajan. In that view of the matter, we do not propose to go into the

question of vires of Rule 51-A of the Rules, which is a provision for

breaking the tie between two candidates.

5. The position that one post in the Open Merit category has fallen

vacant due to non-joining of one of the selected candidates, namely, Nitika

Mahajan, in the pre-induction training, is not disputed either by Mr. B. A.

Dar, learned Sr. AAG appearing for the Department of Law or by Mr. Azar-

ul-Amin, learned counsel for the Public Service Commission. There was,

however, some difference of opinion as to how, in such situation, the

respondents ought to act.

6. In view of the admitted position, one post of Munsiff in the

Open Merit Category has fallen vacant as the selected candidate, namely,

Nitika Mahajan, who was selected, despite notice failed to join the pre-

induction training in the State Judicial Academy and, consequently, her

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name was not recommended for appointment by the High Court. In that view

of the matter, the petitioner having merit equal to the candidate selected in

the Open Merit i.e. respondent No.5, cannot be denied selection and

appointment. Ordinarily the Public Service Commission should have

prepared a Wait List to meet such contingency but non-framing of the wait

list by the Public Service Commission cannot deprive the petitioner of his

right to be considered and appointed as Munsiff being a candidate next in the

order of merit.

7. Indisputably, the recruitment to the post of Munsiff is governed

by Recruitment Rules of 1967 and as per the scheme of the Rules, an indent

for filling up the vacant posts of Munsiffs in the subordinate judiciary is

required to be issued by the Department of Law. The selection is conducted

by the Public Service Commission and, accordingly, the select list is sent to

the Department of Law. With the approval of the High Court, the candidates

selected are made to undergo pre-induction training in the State Judicial

Academy. On successful completion of training in the Judicial Academy, the

High Court recommends the names of the selected candidates for formal

appointment to the Government. Going by the clear scheme of the Rules, in

the instant case it is for the Department of Law to call for the name of the

candidate next in merit from the J&K Public Service Commission and

forward it to the High Court. The High Court, after approving the selection

of the petitioner shall make the requisite recommendations to the

Department of Law for issuance of the formal order of appointment.

8. The plea of Mr. B. A. Dar, learned Sr. AAG, appearing for the

Department of Law, that the name of the petitioner should be called from the

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J&K Public Service Commission by the High Court, goes against the

scheme of the Rules and, therefore, not tenable.

9. For the foregoing reasons, we dispose of this writ petition by

providing as under:-

(i) That the Department of Law, within two weeks from the date of

receipt of this order, shall write a formal communication to the

J&K Public Service Commission for forwarding the name of

the petitioner, who is next in order of merit, with its

recommendation to appoint him against the post that has fallen

vacant due to non-appointment of Nitika Mahajn, a candidate

selected in the Open Merit Category;

(ii) The Public Service Commission shall arrange to conduct the

medical test of the petitioner, as envisaged under the

Recruitment Rules and, accordingly, if found fit, shall make

recommendations to the Department of Law for appointment of

the petitioner.

(iii) The Department of Law, on receipt of recommendations from

the J&K Public Service Commission, shall forward it to the

High Court for approval within two weeks after its receipt from

the Public Service Commission.

(iv) The High Court shall consider the matter and make appropriate

recommendations to the Government in the Department of Law

as soon as possible for appointment of the petitioner. We,

however, leave it to the High Court to devise a way to impart

the pre-induction training to the petitioner, if required.

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(v) The Government shall issue the formal order of appointment of

the petitioner as Munsiff within four weeks from the date of

receipt of recommendations from the High Court.

10. The writ petition is, accordingly, disposed of.

                                   (Vinod Chatterji Koul)           (Sanjeev Kumar)
                                               Judge                         Judge

Srinagar.
 18.02.2021
Anil Raina, Addl. Registrar/Secy

                                    Whether the order is speaking : Yes/No
                                    Whether the order is reportable: Yes/No