Jammu & Kashmir High Court - Srinagar Bench
Muneer Ahmad Shigan vs Sher-I-Kashmir University Of ... on 30 May, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 26.05.2025.
Pronounced on: 30.05.2025
LPA No. 158/2023
In WP(C) No. 2029/2019
MUNEER AHMAD SHIGAN
S/O: GHULAM NABI SHIGAN
R/O: KAKASARIA, KARAN NAGAR, SRINAGAR.
...APPELLANT(S)
Through: - Mr. Altaf Haqani, Sr. Advocate with
Mr. Aasif Wani, Advocate
Vs.
1. SHER-I-KASHMIR UNIVERSITY OF AGRICULTURAL SCIENCES
& TECHNOLOGY (SKAUST) THROUGH ITS VICE
CHANCELLOR, SHALIMAR, SRINAGAR.
2. REGISTRAR.
SHER-I-KASHMIR UNIVERSITY OF AGRICULTURAL
SCIENCES & TECHNOLOGY, SHALIMAR, SRINAGAR.
3. SUMAIRA SHAFI
COMPUTER PROGRAMMER, SKAUST.
4. YASIR ARFAT
COMPUTER PROGRAMMER, SKAUST.
5. NASER-UL-ISLAM
COMPUTER PROGRAMMER, SKAUST.
6. MOHD IQBAL KOUL
COMPUTER PROGRAMMER, SKAUST.
...RESPONDENT(S)
Through:- Mr. M.Y. Bhat, Sr. Advocate with
Mr. Sajid Ahmad, Advocate for R-1 and 2.
Mr. Mian Tufail, Advocate with
Mr. Mian Rouf, Advocate for R-3 to 6.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
MIR ARIF MANZOOR
I attest to the accuracy and
authenticity of this document
30.05.25
JUDGMENT
Per: Sanjeev Kumar-J:
1. This intra-court appeal by the appellant Muneer
Ahmad Shigan, is directed against an order and judgment
dated 2nd August, 2023, passed by the learned Single Judge
of this Court ["the writ Court"] in WP(C) No. 2029/2019
titled "Muneer Ahmad Shigan Vs. SKUAST and Ors."
whereby the writ Court has dismissed the petition filed by
the appellant.
2. Before we advert to the grounds of challenge urged by
Mr. Altaf Haqani, learned senior counsel appearing for the
appellant, we deem it appropriate to narrate a few facts
which are germane to the disposal of the controversy raised
in this appeal.
3. Vide Advertisement Notice No. 01 of 2004 dated 19 th
November, 2004, issued by the respondents No. 1 and 2
["the official respondents"] for the recruitment to the posts of
Computer Programmer (Training Assistant), now designated
as Programme Assistant (Computer), the appellant along
with many others including respondents 3 to 6 ["the private
respondents"] submitted their application forms. The
appellant was not amongst the candidates selected for the
notified posts.
4. Feeling aggrieved by the result of the selection, the
appellant filed SWP No. 778/2007. The writ petition was
MIR ARIF MANZOOR LPA No. 158/2023
allowed by the learned Single Judge vide order dated 29 th
November, 2014. The learned Single Judge came to the
conclusion that the entire selection conducted by the official
respondents was arbitrary and in conflict with Articles 14
and 16 of the Constitution of India. The learned Single
Judge also found the private respondents ineligible to
participate in the selection process conducted by the official
respondents for the advertised posts. Having regard to the
fact that the private respondents had been continuing in
service post their appointment for more than seven years,
the learned Single Judge did not disturb the selection and
instead granted relief to the appellant. The official
respondents were directed to appoint the appellant against
any available post of Computer Programmer (Training
Assistant) subject to completion of usual formalities etc.
5. When the judgment passed by the learned Single Judge
in SWP No. 778824/2007 was not complied with by the
official respondents, the appellant filed a contempt petition
before this Court. During the pendency of the contempt
petition, the official respondents issued Order No. 824(Est.)
of 2015 dated 24th September, 2015, appointing the
appellant as Programme Assistant (Computer) with
immediate effect. The contempt petition was disposed of by
the learned Single Judge with liberty to the appellant to
MIR ARIF MANZOOR LPA No. 158/2023
assail the order dated 24th September, 2015, supra in
accordance with law.
6. This is how the appellant filed WP(C) No. 2029/2019 to
challenge the order dated 24th September, 2015. The
appellant also prayed for a writ of mandamus commanding
the official respondents to grant retrospective effect to his
appointment w.e.f. 15th March, 2006, and fix his seniority,
over and above the private respondents.
7. This petition was contested by the official respondents.
In the reply affidavit filed by the official respondents, a clear
stand has been taken that there was no direction issued by
the learned Single Judge to grant retrospective appointment
to the appellant. It was also pleaded by the official
respondents that the appellant, having accepted the
appointment, cannot be permitted to turn around and seek
his appointment retrospectively from the date others were
selected and appointed. It was also contended by the official
respondents that the direction of the learned Single Judge
was to appoint the appellant against the available post and
the post became available only on the death of Shri. Riyaz
Ahmad Pandit, which had taken place on 15th February,
2013.
8. The writ Court having considered the rival contentions
and perused the material on record came to the conclusion
that the appellant was not entitled to retrospective
MIR ARIF MANZOOR LPA No. 158/2023
appointment nor was he entitled to have seniority over and
above the private respondents. As a result, the writ petition
was dismissed being devoid of any merit.
9. The appellant is aggrieved of and has called in question
the impugned judgment, inter alia, on the ground that the
appellant, having been found eligible by the learned Single
Judge in its judgment dated 29th November, 2014, passed in
SWP No. 778/2007, cannot be made junior to the private
respondents, who were admittedly ineligible to participate in
the selection process conducted in terms of Advertisement
Notification dated 19th November, 2004. It is thus argued
that the private respondents, whose appointment has been
held to be illegal because of their ineligibility over the post,
cannot be permitted to steal a march over appellant, who
alone was possessing the requisite qualification prescribed
for the post.
10. Reliance is placed by Mr. Altaf Haqani, learned senior
counsel appearing for the appellant on the following
judgments:-
(i) AIR 2000 SC 3238.
(ii) 2003(5) SCC 604.
(iii) SLJ 2011(1) 235.
(iv) JKJ 2013(2) 121.
(v) 2021AIR SC 4648.
11. Per contra, Mr. M.Y. Bhat, learned senior counsel
appearing for the official respondents, and Mr. Mian Tufail,
learned counsel appearing for the private respondents,
MIR ARIF MANZOOR LPA No. 158/2023
would support the judgment of the writ Court. It is thus
argued that once the learned Single Judge saved the
selection and appointments, despite holding the entire
selection process to be arbitrary, and gave appointment to
the appellant as well, the appellant and the private
respondents formed the same class and, therefore, the
seniority inter se was required to be fixed as per the merit
obtained in the selection process.
12. Having heard learned counsel for the parties and
perused the material on record, we are of the considered
opinion that the judgment passed by the writ Court is legally
perfect and the view taken by the writ Court in the given
facts and circumstances of the case, is unexceptionable. The
entire edifice of the case of the appellant rests on the true
import and understanding of judgment passed by the
learned Single Judge dated 29th November, 2014, in SWP
No. 778/2007. In the aforesaid petition, the appellant had
called in question the selection and appointment of the
private respondents on several grounds including that the
private respondents were not eligible to participate in the
selection process initiated by the official respondents in
terms of the Advertisement Notification dated 19th
November, 2004. The writ petition filed by the appellant was
contested by both, the official respondents as well as the
private respondents.
MIR ARIF MANZOOR LPA No. 158/2023
13. The learned Single Judge having considered the rival
contentions and perused the material on record came to the
conclusion that the private respondents herein were not
eligible to be appointed against the advertised posts, but
they were appointed notwithstanding their ineligibility. The
learned Single Judge also came to the conclusion that the
manner in which the selection process was conducted had
rendered it arbitrary and in conflict with Articles 14 and 16
of the Constitution of India.
14. Ordinarily, the writ Court, having found the entire
selection process vitiated in law, should have quashed the
entire selection process and directed the official respondents
to issue fresh advertisement notification. In such a
situation, neither the appellant nor the private respondents
could have been appointed. The learned Single Judge,
however, invoked its equitable jurisdiction and keeping in
view the fact that the selected/appointed candidates had
been in service for more than seven years, did not quash the
selection. To balance equities, the appellant, who was
otherwise not in the select list and, as was later found, was
at serial No. 33 in the merit list, was directed to be
appointed against the available post. It is not in dispute that
the post became available only on 15th February, 2013,
when the incumbent Riyaz Ahmad Pandit, passed away
during the pendency of the writ petition. It is against this
MIR ARIF MANZOOR LPA No. 158/2023
post the appellant was considered and vide order dated 24th
September, 2015, appointed.
15. From a reading of the entire judgment dated 29th
November, 2014, supra, particularly its concluding
Paragraph 25, it clearly transpires that the learned Single
Judge found the entire selection process vitiated being
arbitrary and in conflict with Articles 14 and 16 of the
Constitution. That being the position, the appellant was not
entitled to be appointed as a matter of right. This concession
for appointment of the appellant came to be granted by the
learned Single Judge with a view to save the appointment of
the private respondents on equitable grounds. The direction
for appointment of the appellant was clear and unequivocal.
The appointment to be offered to the appellant was to be
made against an available post. As is the emphatic case of
the official respondents that post became available only
during the pendency of the writ petition, when the
incumbent-Reyaz Ahmad Pandit passed away on 15th
February, 2013. Immediately upon the disposal of the writ
petition, the matter was considered and the appointment
was offered to the appellant vide University Order dated 24th
September, 2015.
16. We are in agreement with the learned senior counsel
appearing for the official respondents, that the appellant as
well as the private respondents are the equal beneficiaries of
MIR ARIF MANZOOR LPA No. 158/2023
the benevolence of this Court. But for the exercise of
equitable jurisdiction by the learned Single Judge, neither
the appellant nor the private respondents could have been
appointed. It is true that appellant was possessing the basic
eligibility prescribed for the post, but that alone was not
sufficient to clothe him with an absolute right of
appointment. As has been rightly found by the writ Court
after perusal of the record, that the appellant was at serial
No. 33 of the merit list, suggesting that there were many
other candidates with better merit than the appellant.
17. The appellant could get the appointment only because
the learned Single Judge did not find it appropriate to
disturb the illegal selection and appointment of the private
respondents after they had rendered more than seven years
of service. The judgment dated 29th November, 2014, was,
therefore, based on equitable considerations. The appellant
as well as the private respondents, thus, formed the same
class and were the outcome of an illegal and arbitrary
selection process conducted by the official respondents.
Once the official respondents accepted the judgment of the
learned Single Judge dated 29th November, 2014, and
offered the appointment to the appellant, the seniority of the
appellant as well as the private respondents was required to
be determined on the basis of their inter se merit, as there is
MIR ARIF MANZOOR LPA No. 158/2023
no other mode prescribed for determining the seniority of
the persons who have faced the same selection process.
18. The appellant, as is rightly held by the writ Court, is
not entitled to retrospective appointment, for the reason that
there is no such direction issued by the learned Single
Judge in its judgment dated 29th November, 2014. The
judgment relied upon by Mr. Altaf Haqani, learned senior
counsel appearing for the appellant, have been elaborately
discussed and distinguished by the writ Court, and we see
no reason or justification to take a view contrary to the one
taken by the writ Court. None of the judgments relied upon
by Mr. Altaf Haqani, learned senior counsel are relevant to
the present case, and discussing each one of these
judgments would be a mere waste of time. Despite the
vehement arguments advanced by Mr. Altaf Haqani, learned
senior counsel, we could not persuade ourselves to accept
that the appellant being eligible to hold the post was better
placed than the private respondents.
19. For the foregoing reasons, we find no merit in this
appeal and the same is, accordingly, dismissed.
(SANJAY PARIHAR) (SANJEEV KUMAR)
JUDGE JUDGE
Srinagar,
30.05.2025
"Mir Arif"
Whether the judgment is approved for reporting? Yes/No.
MIR ARIF MANZOOR LPA No. 158/2023
