Afshan Anjum Baba & Ors vs Union Territory Of Jk & Ors
2021 Latest Caselaw 1030 j&K/2

                                                                         Serial No.23
                                                                     Supplementary-1 List


        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR


                               WP(C) No. 1757/2021
                                CM No. 5856/2021
                        Caveat Nos. 1008/2021 & 1009/2021



Afshan Anjum Baba & Ors.
                                                                ... Petitioner(s)
                                    Through: -
                    Mr Salman Khursheed, Senior Advocate with
                    Mr Shah Faisal & Ms Asifa Rashid, Advocate.
                                        V/s
Union Territory of JK & Ors.
                                                              ... Respondent(s)

Through: -

Mr Sajjad Ashraf Mir, Government Advocate for R-1 & 2;

Mr M. Y. Bhat, Senior Advocate with Mr R. A. Bhat, Advocate for R-3;

Mr Jahangir Iqbal Ganai, Senior Advocate with Mr Murfad Naseem, Advocate for Caveators in Caveat No.1008/2021; and Mr Altaf Haqani, Senior Advocate with Mr Shakir Haqani, Advocate for Caveator in Caveat No. 1009/2021.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge. Hon'ble Mr Justice Vinod Chatterji Koul, Judge.

(ORDER) 09.09.2021 Per Magrey, J (Oral):

01. By medium of the instant Petition, the Petitioners have assailed

the validity of Judgment dated 12th of July, 2021, as passed by the Central

Administrative Tribunal, Jammu (hereinafter referred to as 'the Tribunal') in

TA No. 62/5610/2020 filed by the Petitioners, whereby the Tribunal has

directed as under:

WP(C) No. 1757/2021; CM No. 5856/2021 Caveat Nos. 1008/2021 & 1009/2021

".....

33. In view of the discussions herein above, the TA is disposed of with the following directions:

1) The Select List i.e. Annexure-B to Communication No. PSC/Exam/RO/Grade-I/ Territorial/2018 dated 20.09.2019 (Annexure-I) includes the names of the persons inclusive of respondents No. 6 to 14 who are to figure in the Walk Test and Medical Examination. So, PSC (Respondent No.3) shall in the first instance conduct the exercise of height measurement, if not conducted as on date;

2) Conduct the tests mentioned in the advertisement notice;

3) Thereafter prepare the final select list of candidates who fulfil all the eligibility criteria mentioned in the advertisement notice;

4) Follow the procedure for bringing the selection procedure to its conclusion.

Let this exercise be completed within three months from the date of this order. Respondents would do well to ensure that the final list does not contain the name of candidates who do not fulfil the eligibility criteria, as per rules and conditions of advertisement notice. TA is accordingly disposed of. No costs."

Besides, the Petitioners have also called in question the mandate

of SRO 359 of 1970 dated 24th of July, 1970 to the extent of prescribing the

criterion of height of 5 feet 6 inch as being violative of their rights guaranteed

under the Constitution. That apart, the Petitioners, by a 'Writ of Mandamus',

are also seeking a direction in the name of the Respondent-Public Service

Commission to forward the Selection List dated 20th of September, 2019 of

the Petitioners to the Respondent-Department for making appointment of the

Petitioners against the post of Range Officers, Grade-I.

WP(C) No. 1757/2021; CM No. 5856/2021 Caveat Nos. 1008/2021 & 1009/2021

02. Mr Salman Khursheed, the learned Senior Counsel, appearing on

behalf of the Petitioners through Virtual mode, submitted that the Petitioners,

while putting forth their case before the Tribunal with the support of pleadings

on record, had raised the following issues:

a) Whether the Jammu and Kashmir Forest (Gazetted) Service Recruitment Rules, 1970 are Gender discriminatory in nature;

b) Whether the Jammu and Kashmir Forest (Gazetted) Service Recruitment Rules, 1970 could be applied selectively to the Selection made in terms of Advertisement Notification No. PSC/Exam/2018/19 dated 15th of March, 2018;

c) Whether non-qualification of criteria of height as prescribed in terms of the Jammu & Kashmir Forest (Gazetted) Service Recruitment Rules, 1970, would render the dispensation of service as ineffective against the post of Range Officer, Grade-I;

d) Whether the Selection Body is permitted to change the stand after making the selections in respect of any post;

e) Whether the Rule having not been followed consciously during the previous selections can be invoked for debarring/ declaring the Petitioners as ineligible to complete for the Post in question; and

f) Whether the candidate after participating in the process of selection is estopped under law to challenge the Rule as being violative of fundamental rights.

It is contended that the Tribunal, while passing the impugned

Judgment, has not appreciated the contentions raised by the Petitioners in their

OA qua the aforesaid issues in their true and correct perspective, thereby

resulting in violation of the rights guaranteed to the Petitioners under the

Constitution. It is pleaded that the rule making power vested with the

Legislation is to be exercised within the circumference of the Constitutional

scheme enshrined in the Constitution and that the said power cannot be WP(C) No. 1757/2021; CM No. 5856/2021 Caveat Nos. 1008/2021 & 1009/2021

allowed to be exercised in a manner to qualify to be unreasonable and of the

nature of perpetuating the inequality on the basis of physical standard-the

stand of height. The learned Senior Counsel proceeded to contend that the

Tribunal, while dealing with the issue of challenge thrown to the rules by the

Petitioners in their OA, has left the said aspect of the matter on a premise that

the adjudication of constitutional validity of a Rule cannot be undertaken by

the Tribunal and that, in such circumstances, the Tribunal, instead of directing

the Respondents to complete the process of selection by strictly adhering to

the rules, ought to have referred the same to this Court and seized its hands

from the adjudication of the case of the Petitioners.

03. M/s Jahangir Iqbal Ganai and Altaf Haqani, the learned Senior

Counsel, appearing for the Caveators in Caveat Nos. 1008/2021 and

1009/2021, respectively, would submit that some candidates, being aggrieved

of the notification issued by the Respondent-Public Service Commission in

relation to the process of selection in question, had filed Writ Petitions which

Petitions came to be transferred to the Tribunal and, subsequently, allowed by

the Tribunal, however, such Order/s of the Tribunal is/ are not challenged by

the Petitioners and, as such, in such circumstances, as per the learned Senior

Counsels, the relief prayed for by the Petitioners in this Petition cannot be

granted in their favour with the application of the mandate of principle of res

judicata. In support of this contention, the learned Senior Counsel have

referred to and relied upon the judgment of law rendered by the Supreme WP(C) No. 1757/2021; CM No. 5856/2021 Caveat Nos. 1008/2021 & 1009/2021

Court in case titled 'K. H. Siraj v. High Court of Kerela & Ors., (2006) 6

Supreme Court Cases 395'.

04. Having heard the learned appearing Counsel for the parties, we,

prima facie, find force in the submissions made by the learned Senior Counsel

representing the Petitioners. That being so, we are included to show

indulgence. Insofar as the objection raised by the learned Senior Counsel

representing the Caveators, we are satisfied that the issues raised in the

Petition in hand qua challenge to the recruitment rules, as underlined

hereinabove in this Order, need decision from this Court, therefore, the said

objection raised by the Caveators would be taken care of at the time of final

disposal of the Petition.

05. Notice to the Respondents in the main Petition as well as in the

connected CM.

06. Notice accepted by Mr Sajad Ashraf Mir, the learned

Government Advocate on behalf of Respondents 1 and 2; and Mr M. Y. Bhat,

the learned Senior Counsel, for Respondent No.3. They shall file Objections

by the next date of hearing, with copy in advance to the other side.

07. As prayed for, the Caveators in Caveat Nos. 1008/2021 and

1009/2021 shall be at liberty to file appropriate motion(s) for seeking WP(C) No. 1757/2021; CM No. 5856/2021 Caveat Nos. 1008/2021 & 1009/2021

impleadment as parties, if they so choose. Both Caveats shall stand

discharged, accordingly.

08. List on 28th of September, 2021.

09. Meanwhile, subject to Objections from the other side and till the

next date of hearing before the Bench, the operation of the impugned Order

dated 12th of July, 2021 passed by the Tribunal in TA No. 62/5610/2020 shall

remain stayed with further direction to the Respondents not to finalize the

selection in question.

                                 (Vinod Chatterji Koul)                (Ali Mohammad Magrey)
                                           Judge                                Judge
           SRINAGAR
           September 9th, 2021
           "TAHIR"




TAHIR MANZOOR BHAT
2021.09.09 16:06
I attest to the accuracy and
integrity of this document