Jammu & Kashmir High Court
Dated: 10Th Of February vs Union Territory Of Jk & Ors on 10 February, 2021
Serial No. 106
Admission Cause List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPA No.85/2020
CM No. 4294/2020
Dated: 10th of February, 2021.
Manu Kapoor
.....Appellant(s)
Through: -
Mr Ashish Sharma, Advocate.
V/s
Union Territory of JK & Ors.
.....Respondent(s)
Through: -
Mr Ravinder Gupta, AAG for R-1 & 3
Mr Ayjaz Lone, Dy. AG for R-2
Mr S. H. Rather, Advocate for R-4.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Puneet Gupta, Judge.
(JUDGMENT)
{Per Magrey; J (Oral)}:
01. This intra Court appeal, filed by respondent No.101 in the Writ
petition/ appellant herein, is directed against the judgment dated 24th of
November, 2020, passed by the learned Single Judge in WP(C)
No.15474/2020, whereby the petition of the Writ petitioner/ respondent No.4
herein stands disposed of on the following terms:
".....
After having waited for almost three months, I have been left with
no option, but to dispose of this petition by providing as under:
(i) Respondent No.2 shall ascertain the cut off merit for short-
listing prepared with reference to Notification No.06/2013.
(ii) If respondent No.2 finds that the short-listing merit of the
petitioner with reference to Notification No.05/2013 is equal to or higher
than the merit of the candidate last shortlisted in reference to
Advertisement Notification No.06/2013, it will determine the merit of the
petitioner in terms of the common selection criteria adopted for both the
selections.
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
LPA No. 85/2020
CM No. 4294/2020
(iii) In case it is found that the merit of the petitioner with
reference to Advertisement Notification No.06/2013 is higher than the
merit of the candidate last selected pursuant to aforesaid Notification, the
name of the petitioner shall be forwarded to respondent No.1 for
appointment.
(iv) The appointment, to be offered to the petitioner, shall be
against the vacancy reserved vide interim order dated 02.03.2015 passed
in this petition.
(v) The petitioner, if found entitled to selection in reference to
Advertisement Notification No.06/2013 shall be appointed retrospectively
with effect from the date the candidates selected pursuant to the
Notification No. 06/2013 were appointed.
(vi) The retrospective appointment of the petitioner shall be
notional in nature and would qualify for pecuniary and other benefits
prospectively with effect from the date of issuance of appointment order.
The aforesaid exercise shall be conducted by the Service Selection
Board with a period of two months from the date copy of this order is
made available to it."
02. The brief facts leading to the filing of the instant appeal, as
come to the fore from the perusal of the pleadings on record, are that the
Jammu and Kashmir Service Selection Board-respondent No.2, vide
advertisement notification Nos. 05 of 2013 dated 2nd of March, 2013 and 06
of 2013 dated 10th of May, 2013, invited applications for the posts of
Teachers in District Cadre Poonch. The Writ petitioner/ respondent No.4
herein claimed to have responded to both the aforesaid notifications by
submitting her application forms to respondent No.2 against proper receipts/
acknowledgements. It is stated that the respondent No.2 conducted common
selection process for the posts put to advertisement in terms of the aforesaid
two notifications, however, the candidates were separately shortlisted in
relation to each notification. The Writ petitioner/ respondent No.4 herein
appears to have been shortlisted with reference to notification No.05/2013
only, wherein, later on, she could not make the grade because of her lower
merit vis-à-vis the candidate last selected in the selection process carried out
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
LPA No. 85/2020
CM No. 4294/2020
pursuant to notification No.05 of 2013. The Writ petitioner/ respondent No.4
herein claims to have obtained overall merit of 59.5169 points and,
accordingly, placed in the wait list of the open merit category at S. No.5
against notification No.05 of 2013. The Writ petitioner/ respondent No.4
herein, claimed before the Writ Court, that she, after comparing her merit
indicated in the waiting list (OM category) in relation to notification No.05
of 2013, found that on the basis of her merit, she was entitled to be
shortlisted even in relation to advertisement notification No.06 of 2013, but
had not been shortlisted by the respondents arbitrarily, despite representation
made by the Writ petitioner/ respondent No.4 in this behalf. This, as stated,
compelled the Writ petitioner/ respondent No.4 herein to file the aforesaid
writ petition before the Writ Court. The learned Single Judge, in terms of the
impugned judgment, disposed of the petition filed by the Writ petitioner/
respondent No.4 herein with the observations as reproduced in Paragraph
No.1 of this judgment hereinabove. It is this judgment that has been assailed
before this Court by the appellant/ respondent No.101 in the Writ petition.
03. We have heard the learned counsel for the parties, gone through
the pleadings on record and have considered the matter.
04. From the perusal of the pleadings placed alongside the file, it
appears that after the filing of the petition by the Writ petitioner/ respondent
No.4 herein, one more petition was filed by one Ms Manu Kapoor/ appellant
herein, which was heard and decided by the learned Single Judge in terms of
judgment dated 24th of June, 2020, i.e., the same date on which the petition
of the Writ petitioner/ respondent No.4 herein was decided. In the said
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
LPA No. 85/2020
CM No. 4294/2020
petition, the case of the appellant before the learned Single Judge was that
since the respondent No.4 herein had not applied pursuant to advertisement
notification No.06/2013, she had no right or interest in stalling one post that
has fallen vacant due to non-joining of a candidate selected pursuant to
advertisement notification No.06/2013. The learned Single Judge, however,
in the Writ petition filed by the respondent No.4 herein, i.e., SWP No.
623/2015, while disposing of the same, came to the conclusion that given the
stance taken by the respondent No.2, it had no other option but to believe the
petitioner therein/ respondent No.4 herein that she had submitted two
separate application forms in response to advertisement notification Nos. 05
of 2013 and 06/2013. Having concluded so, the learned Single Judge
observed that in case the respondent No.4 herein/ petitioner in SWP
No.623/2015 makes the grade, she would be entitled to be appointed against
the post reserved pursuant to interim order dated 2nd of March, 2015 passed
in SWP No.623/2015 and, in the event, in view of her merit, the respondent
No.4 herein/ petitioner in SWP No.623/2015 does not make the grade and is
not selected/ appointed against the reserved post, the case of the appellant
herein, if she is next in the order of merit, shall be considered against the
aforesaid post. In short, the learned Single Judge, having found the
respondent No.4 herein/ petitioner in SWP No.623/2015 to have applied in
reference to advertisement notification No. 06/2013, kept the consideration
of the case of the appellant herein subject to consideration of the case of the
respondent No.4 herein/ petitioner in SWP No.623/2015 on the basis of her
merit position.
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
LPA No. 85/2020
CM No. 4294/2020
05. The pleadings on record bring it to the fore that the learned
Single Judge, prior to passing the judgment, in terms of order dated 4 th of
October, 2016, had directed the respondent No.2-Service Selection Board to
file affidavit and in compliance thereof, the Affidavit was filed by the Board
through its Administrative Officer, stating therein that for both the
notifications, one common test was conducted, but short-listing of the
candidates was done notification-wise/ item-wise on the basis of cut-off
marks secured by the candidates in each of the Notification. It was also
stated by the Board that the respondent No.4 herein/ Writ petitioner was
shortlisted for one Notification only, i.e., 05 of 2013 on the basis of her
merit and, therefore, was not considered for another Notification, i.e., 06 of
2013. Besides, it was also clarified in the Affidavit that the Writ petitioner/
respondent No.4 herein, in view of her merit position, was shortlisted only in
reference to Notification No.05 of 2013 and not with reference to
Notification No.06 of 2013, as such, she was only interviewed for the post
notified vide Notification No.05 of 2013, but because of her lower merit vis-
à-vis the merit of the candidate last selected in the open merit, she could not
make it to the select list.
06. Apart from the above, it is also axiomatic from the pleadings
that the learned Single Judge, in view of the stand of the Board that they
had not received any application form with reference to Advertisement
Notification No. 06 of 2013, directed the respondent No.2 to file yet another
Affidavit to disclose as to who had submitted the application form
No.539565, which is the number indicated in the receipt issued by
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
LPA No. 85/2020
CM No. 4294/2020
respondent No.2 acknowledging receipt of form from the Writ petitioner/
appellant qua Advertisement Notification No. 06 of 2013. In compliance, the
respondent Board, even though filed affidavit, but could not give satisfactory
reply therein and the specific query as to who had submitted the application
form No. 539565 remained unanswered. Thus, it is more than evident from
the above factual discourse, more specifically the fact that the Board was not
able to specifically deny the claim of the respondent No.4 that she had
submitted application forms separately for both the notifications, that the
learned Single Judge rightly came to the indisputable conclusion that the
Writ petitioner/ respondent No.4 herein had, in fact, submitted two separate
application forms in response to the Advertisement Notification No.05 of
2013 and Notification No. 06 of 2013. The acknowledgement slip issued by
the respondent No.2, as available on the records of the file, bears number
and the date of the Notification, name of the applicant and specific serial
number, which acknowledgement slip has not been specifically denied to
have been issued by the respondent No.2, either before the learned Single
Judge or before this Court. It is not in dispute that the selection process for
both Notifications was common and that the petitioner was shortlisted for
interview under Notification No. 05 of 2013, but, she however, could not
make it to the select list because of her inferior merit vis-à-vis the candidate
last selected in the open merit. The overall merit position of the petitioner in
the selection process made pursuant to Advertisement Notification No. 05 of
2013 is 59.5169, which remained undisputed. The appellant herein has not
been able to place anything on record which would show that the findings
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
LPA No. 85/2020
CM No. 4294/2020
rendered by the learned Single Judge in the impugned judgment were
perverse or erroneous.
07. The afore being the position, we are unable to find any illegality
or perversity in the impugned judgment passed by the learned Single Judge
as would warrant its interference from this Court.
08. Accordingly, this appeal fails and shall stand dismissed as such,
alongwith the connected CM(s). Interim directions, if any, subsisting as on
date, shall stand vacated.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
JAMMU
February 10th, 2021
"TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
