State Of J&K Thr. ... vs Rifat Khalida D/O Habibullah Dar
2024 Latest Caselaw 96 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

State Of J&K Thr. ... vs Rifat Khalida D/O Habibullah Dar on 15 February, 2024

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

                                                                Page 1 of 5




    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR
                          LPA No. 231/2023 in
                          [SWP No. 431/2011]
   1. State of J&K thr. Commissioner/Secretary to
      Government General Administration Department,
      Civil Secretariat Jammu/ Srinagar.
   2. Commissioner/Secretary to Government, Law Department, Civil
      Secretariat Jammu/Srinagar.
                                              ... Appellant(s)
              Through:    Mr. Faheem Nisar Shah, Government Advocate.
                                      Vs
       Rifat Khalida D/O Habibullah Dar
       R/O Khunmoh, Srinagar.
                                                ... Respondent(s)
              Through:    Mr. S. A. Makroo, Sr. Advocate with
                          Ms. Rifat Khalida, Advocate.
                          Mr. Rouf Parray, Advocate.
   CORAM:
  HON'BLE MR JUSTICE ATUL SREEDHARAN, JUDGE
  HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
                              JUDGMENT

15.02.2024 (Per Moksha, J)

1. This Letters Patent Appeal, (LPA) has been filed by the appellants against the order dated 07.10.2013 (Impugned order), passed by the learned Single Judge in SWP No. 431/2011, titled Rifat Khalida v. State of J&K & Others, whereby the appellants herein were directed to accord consideration to the appointment of respondent/petitioner in the writ petition without disturbing the selection and appointment of respondent No. 5 & 6 of the writ petition.

FACTUAL MATRIX.

2. The Service Selection Recruitment Board (SSRB) vide Advertisement Notice No. 03/2007 dated 5th October, 2007, invited applications for filling-up the post of Legal Assistants. Accordingly, various candidates applied including the writ petitioner/respondent and the SSRB after initiating the process of selection completed the same and submitted the selection list in the order of merit wherein, the respondent No. 5 & 6 have been shown to have been selected amongst the selected

candidates and on the recommendations of the SSRB, appointment orders were also issued in favour of the selected candidates by the appellants.

3. The writ petitioner/respondent No. 1 herein being aggrieved of the selection list filed the writ petition (SWP No. 431/2011) and sought quashment of the selection list whereby respondent No. 5 & 6 were appointed as Legal Assistants with a further direction upon the respondents/appellants herein to select/appoint the petitioner-respondent No. 1 as Legal Assistant, pursuant to the advertisement notice No. 03 of 2007 dated 05.10.2007.

4. Reply was filed by the appellants to the writ petition and it was stated that the appointment of respondent No. 5 & 6 was made as per the recommendations made by the SSRB. Moreover, the appellants are the only recruiting agency and have no role in the selection process. The SSRB in their reply stated that respondent could only secure 62.575 points, whereas cutoff remained 62.579 points. The private respondents had secured 62.96 and 62.579 points respectively and, as such, figured over and above the respondent No. 1 and were selected.

5. The learned Single Judge after considering the writ petition and the reply filed by the respondents observed in paragraphs 11 & 12 as under:-

11. "The picture depicted makes quite clear the murkiness of the selection process. However, the selection in question is of the year 2009, and the selected candidates are enjoying the usufruct of their selection for the last four years, therefore, it would not be in the fitness of things to disturb their appointment by quashing their selection. But at the very same time, since it is abundantly clear that petitioner despite being eligible and despite having faired well in the selection process has been excluded on misty reasons, therefore, interference ins warranted and a direction, in the circumstances, is called for.

12. Accordingly, the writ petition succeeds and is allowed as such with a direction to respondents to consider the appointment of petitioner without disturbing the selection and appointment of respondents 5 & 6. It is made clear that age factor shall not come in the way of respondents while according consideration to the petitioner's case".

6. The appellants herein have challenged the order of the learned Single Judge (supra) on the ground that respondent could not make the grade and as a result she was not recommended by the SSRB. Moreover, while making a mention about the contention of respondent No. 1 that respondent No. 6 was lacking the eligibility, no finding on the eligibility criteria has been returned which would have paved way for reconsideration of the respondent No. 1. It is also stated that the contention of the appellants was that the respondent No. 1 could not make the grade as she secured less points than the cutoff points, as such, respondent No. 5 & 6 being more meritorious were recommended by the SSRB and subsequently, appointment orders were issued to them, but despite that the appellants have been directed to consider the claim of the respondent No. 1 for her appointment against the post of Legal Assistant. It is also stated by the appellants that 10 posts were advertised and all the posts have been filled-up and there being no vacancy left where in terms of the impugned judgment respondent-writ petitioner could have been considered.

7. Heard learned counsel for the parties and perused the material on record.

8. The respondent No. 1 who is appearing in person has laid emphasis with respect to relevant portion of paragraph-10 of the impugned order wherein it is reflected that;

"....with this view the respondents were asked as to whether any other post is available with them which was replied in affirmative"....

Ms. Rifat Khalida- respondent, who is herself a practicing lawyer has vehemently argued that the post was available at that time and the appellants were under an obligation to appoint her in terms of the Advertisement Notice No. 03/2007 dated 5th October, 2007. Learned counsel for the appellants has placed reliance upon paragraphs 2 to 4 of the order dated 30.10.2017, which inter alia reveals:

1. "The Advertisement notice is dated 05.10.2007 with breakup of vacancies as Open Merit 5, RBA 2, SC 1, ST 1

and ALC 1, Total 10 number of posts. According to Mr. Mohamamd Iqbal Dar, learned AAG, consequent to the selection process 10 meritorious candidates were appointed in the respective categories as detailed above.

2. It is stated by learned counsel for the appellants that there is no vacant post available against which the claim of the writ petitioner can be considered as directed by the learned Single Judge. It is, therefore, pleaded that claim of the writ petitioner-respondent No. 1 cannot be considered as there is no vacant post.

3. The statement of vacancy recorded in paragraph 10 of the judgment of the learned Single Judge is not supported by official record. In order to clarify the aforesaid position as to whether there was any vacant post on the date of decision of the learned Single Judge, Mr. M. I. Dar, learned AAG, is directed to get instructions in the matter".

9. In response to paragraph-4 of the order supra, learned counsel for the appellants states that in terms of the Advertisement Notice No. 03/2007 dated 5th October, 2007, all the 10 posts were filled-up on the recommendations of the SSRB and no post remained vacant where the respondent could have been considered for appointment in terms of the impugned order without disturbing the selection of the private respondents. It was also directed that the age factor of the respondent shall not come in the way of appellants while according consideration to her claim.

10. Learned counsel for the appellants has conceded to the extent that appellants have no objection in according consideration to the case of respondent No. 1 against the vacancy if the same was available at the time posts were advertised and selection was made. Learned counsel for the appellants has placed reliance on (2010)2 Supreme Court cases 637 and 1993 Supp (4) SCC 377.

11. The respondent No. 1 who is a practicing lawyer and is well conversant with the Court proceedings could have availed the remedy seeking implementation of the impugned judgment dated 01.10.2013. She is expected to be vigilant with respect to her rights, as it is evident from the minutes of proceedings, that judgment of the learned Single Bench had never been stayed by this Court. She has virtually wasted more than 10 years seeking

implementation of the impugned judgment dated 07.10.2013 or to challenge the impugned judgment.

12.In view of the above we modify the impugned judgment thereby directing the appellants to accord consideration to the appointment of the respondent No. 1 against the post of Legal Assistant without disturbing selection/appointment of the respondent No. 5 & 6 in the writ petition (SWP No. 431/2011) within a period of two months from the date of passing of this order, provided any vacant post of Legal Assistant in terms of the Advertisement Notice No. 03/2007 dated 5 th October, 2007 was available at the relevant point of time . It is also made clear that age factor shall not come in the way of the appellants while according consideration to the case of respondent No. 1.

13.Disposed of along with connected CM(s).

                  (MOKSHA KHAJURIA KAZMI)                          (ATUL SREEDHARAN)
                             JUDGE                                           JUDGE


SRINAGAR
15.02.2024.
Ab. Rashid, PS.



                        Whether the Judgment/order is reportable     Yes/No.