Jammu, Dec 25: In Transfer Application No. 8049/2021 titled Waseem Raja represented by Advocate: - Mr. F.A. Natnoo Versus 1.State of J&K through, Commissioner/Secretary to Government, Revenue Department & ors represented by Advocate:- Mr. Rajesh Thapa, ld. AAG, Mr. Hunar Gupta, DAG after hearing DB of CAT ordered as under:-
Per: - Rajinder Singh Dogra, Judicial Member
1. The SWP No. 65/2017 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No/8049/2021 by the Registry of this Tribunal. 2. The present matter was filed before the Hon’ble High Court seeking following relief:
- a) Allow this writ petition of the petitioner. b) Writ of Certiorari; quashing order No. 01- SSB of 2016 dated 03-01-2017 issued by respondent No. 2 which has the effect of cancelation of the selection of the petitioner as Driver against which post the petitioner on being duly selected has been appointed and having duly joined on 31-10-2016. c) Writ of Mandamus; Commanding the respondents to allow the petitioner to discharge his duties as driver as having duly been selected and appointed and working as such since October, 2016. d) Writ of prohibition; restraining the respondents from taking any action disadvantageous to the service interest of the petitioner. e) Any other writ, order, command or directions which this Hon’ble Court may deem just and proper in the given facts and circumstances of the case may also be passed in favour of petitioner and against the respondents.”
The facts of the case as pleaded by the petitioner in his pleadings are as follows:
- a) The present Transfer Application arises out of SWP No. 65/2017, which stood transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu to this Tribunal and was registered as T.A. No. 8049/2021.
The applicant, Waseem Raja, claims to be aggrieved by the cancellation of his selection and appointment to the post of Driver in the Revenue Department, District Cadre Doda, by the Jammu and Kashmir Services Selection Board. b) The applicant asserts that he is a permanent resident of the erstwhile State of Jammu and Kashmir and a citizen of India, entitled to all legal, fundamental and statutory rights guaranteed under the Constitution. It is his case that pursuant to Advertisement Notification No. 06 of 2015 issued by the J&K Services Selection Board for recruitment to the post of Driver in the Revenue Department, District Cadre Doda, he applied for selection, claiming eligibility in terms of the prescribed qualification, namely “Matric pass with Hill Driving Licence.” c) According to the applicant, he successfully participated in the selection process, including the driving test and interview, and was placed at Serial No. 1 in the waiting list under the Open Merit category.
It is pleaded that though his recommendation was initially shown as “withheld” on the ground of clarification regarding the date of endorsement on his driving licence, the applicant submitted his licence to the Board, which reflected an LMV endorsement made in the year 2007. Upon such verification, the applicant claims that the respondents were satisfied with his eligibility. d) Subsequently, vide Order No. FC(Adm-Misc)13/016 dated 27.10.2016 issued by the Financial Commissioner (Revenue), J&K, the applicant was appointed as Driver.
In pursuance thereof, he joined the post on 31.10.2016 and continued to discharge his duties. e) The applicant contends that despite having been duly selected, appointed, and having joined service, the Services Selection Board, long after completion of the selection process and issuance of appointment order by the competent authority, issued Order No. 01-SSB of 2016 dated 03.01.2017, whereby his selection was cancelled on the basis of a communication received from the ARTO, Doda, relating to the endorsement on his driving licence. f) It is the applicant’s categorical case that once the selection culminated into appointment, the Services Selection Board became functus officio and had no authority to revisit the matter or cancel his selection, particularly without issuing any notice or affording him an opportunity of hearing.
He further asserts that the impugned cancellation order is arbitrary, illegal, violative of principles of natural justice, and offends Articles 14 and 16 of the Constitution of India. The applicant also argues that under the Motor Vehicles Act, 1988 and the Rules framed thereunder, there is no distinction between hill and plain driving licences and that driving licences issued after enforcement of the new Act are valid throughout India. g) On these premises, the applicant has sought quashment of the impugned order dated 03.01.2017 and a direction to permit him to continue discharging his duties as Driver with all consequential benefits
4. The respondents have filed their reply statement wherein they have averred as follows: - a) The respondents, upon notice, filed a reply contesting the Transfer Application and raising preliminary objections as well as submissions on merits. At the outset, the respondents deny all averments made in the application which are not specifically admitted and submit that the applicant has no enforceable right warranting interference by this Tribunal. b) It is pleaded that no cause of action has accrued to the applicant, as his selection was rightly cancelled strictly in accordance with the terms and conditions of the advertisement notification and applicable recruitment rules. T
he respondents contend that the applicant has approached the Tribunal with unclean hands by suppressing material facts and attempting to mislead the Court, and on this ground alone, the Transfer Application deserves dismissal. c) On merits, it is stated that the Jammu and Kashmir Services Selection Board advertised the post of Driver (Revenue Department), District Cadre Doda, under Item No. 482 of Advertisement Notification No. 06 of 2015.
The essential qualification for the post was explicitly notified as “Matric pass with Hill Driving Licence,” and it was further stipulated that candidates must possess the prescribed qualifications on or before the last date for submission of online application forms, which was 18.09.2015. d) The respondents admit that the applicant applied for the said post and was placed at Serial No. 1 in the waiting list under the Open Merit category.
However, it is asserted that subsequent verification conducted by the Board revealed that the applicant did not possess the requisite driving licence qualification as on the cut-off date.
In this regard, reliance is placed upon the communication received from the ARTO, Doda, vide letter No. ARTO/D/2016/966 dated 24.10.2016, wherein it was clarified that the applicant’s driving licence bearing No. JK-06-2006- 0027931 dated 10.11.2006 carried the endorsement for Heavy Goods Vehicle only with effect from 12.12.2015, i.e., much after the date of notification and the last date for submission of applications. e) The respondents submit that since the applicant was not in possession of the requisite driving licence endorsement on the relevant cut-off date, he was ineligible for selection to the post of Driver.
It is emphasised that the advertisement notification clearly mandated possession of prescribed qualifications by the last date of application and that the applicant cannot derive any benefit from his own ineligibility. f) The respondents further contend that mere participation in the selection process, inclusion in the merit or waiting list, or even issuance of an appointment order does not create any vested right in favour of a candidate who is otherwise ineligible under the rules.
The Services Selection Board, being a statutory body, is duty-bound to ensure that selections are made strictly in accordance with the recruitment rules and eligibility conditions, and any selection found to be contrary thereto is liable to be corrected. g) It is further pleaded that the cancellation of the applicant’s selection was neither arbitrary nor illegal but was a necessary consequence of verification of eligibility conditions. The respondents deny any violation of Articles 14 or 16 of the Constitution and maintain that the action taken was fair, transparent, and in consonance with law. h) On these grounds, the respondents pray that the Transfer Application, being devoid of merit, be dismissed in the interest of justice 5. Heard learned counsel for the parties and perused the material available on record.
6. The present Transfer Application is a transferred writ petition (SWP No. 65/2017) received from the Hon’ble High Court of Jammu & Kashmir at Jammu and registered as T.A. No. 8049/2021.
The applicant calls in question Order No. 01-SSB of 2016 dated 03.01.2017 issued by respondent No.2 (J&K Services Selection Board), whereby his selection for the post of Driver (Revenue Department), District Cadre Doda, came to be cancelled.
The applicant seeks quashment of the said order and consequential reliefs.
7. The pleaded facts, shorn of unnecessary detail, are that respondent No.2 advertised the post of Driver under Advertisement Notification No. 06 of 2015 prescribing, inter alia, the qualification “Matric pass with Hill Driving Licence.” The applicant applied, participated in the selection process, and came to be placed at Serial No.1 in the waiting list.
It is the applicant’s case that after clarification regarding endorsement date, his recommendation was released; appointment order dated 27.10.2016 was issued by the competent authority; and he joined on 31.10.2016.
Subsequently, by the impugned order dated 03.01.2017, respondent No.2 cancelled his selection citing verification from ARTO, Doda, regarding the date of endorsement on his driving licence.
8. The respondents, in their reply, contend that as per the ARTO communication (letter dated 24.10.2016), the applicant’s licence carried the relevant endorsement only w.e.f. 12.12.2015, whereas the cut-off date for possessing requisite qualification was the last date of submission of online application i.e. 18.09.2015, and therefore the applicant did not possess the requisite qualification on the cut-off date; hence his selection was cancelled.
9. Points for determination Whether the impugned cancellation order is vitiated for want of jurisdiction/procedure and violation of natural justice; and If so, what relief can be moulded where eligibility is disputed and the respondents assert non-possession of requisite licence endorsement on the cut-off date. 10. It is a settled proposition that eligibility conditions in a recruitment process are ordinarily required to be satisfied as on the cut-off date prescribed in the advertisement, and a candidate who does not possess the essential qualification on the cut-off date cannot claim appointment as a matter of right. Equally well-settled is the principle that inclusion in a waiting list/selection list does not by itself create an indefeasible right to appointment.
These principles apply with full vigour in matters where the prescribed qualification includes a statutory/technical requirement such as a licence/endorsement.
11. At the same time, cancellation of selection/appointment which visits a candidate with civil consequences must conform to minimum standards of fairness and due process. Even where the employer/selection body proposes to act on an adverse verification report, the affected person is entitled to know the adverse material, to receive a reasonable opportunity to rebut the same, and to have a reasoned decision rendered. An action taken behind the back of the affected person, without notice and hearing, ordinarily stands vitiated.
12. Tested on the above touchstone, the impugned order cannot be sustained in its present form. The record as placed indicates that the cancellation was founded upon an adverse verification from ARTO, Doda, but there is nothing to show that prior to issuance of Order No. 01-SSB of 2016 dated 03.01.2017, the applicant was served with a :: 12 :: TA 8049/2021 show-cause notice, supplied the material relied upon, or afforded an opportunity of personal hearing/representation. The action has thus been taken in breach of the principles of natural justice.
13. Further, the nature of the dispute shows that what is being relied upon is a technical and determinative fact—namely, whether the applicant possessed the requisite endorsement/valid licence as on the cut-off date. Such a determination, particularly when it results in withdrawal of a benefit already extended, must be made by following a transparent procedure, recording reasons, and addressing the applicant’s explanation, if any.
14. However—crucially—the Tribunal cannot, in the face of the respondents’ specific plea and the ARTO report referred to by them, grant a blanket direction of restoration/appointment merely because the cancellation order suffers from procedural infirmity. Where the foundational eligibility itself is seriously disputed on the cut-off date, the proper course is to set aside the defective order and direct the competent authority to undertake a lawful verification/enquiry and pass a speaking order.
15. In that view of the matter, the ends of justice would be met by quashing the impugned order and remitting the matter for a time- bound, strictly lawful enquiry/verification confined to the issue of cut- off date eligibility, particularly the licence/endorsement requirement, after affording due opportunity to the applicant and after recording clear reasons.
16. Accordingly, the Transfer Application is disposed of in the following terms:
a) Order No. 01-SSB of 2016 dated 03.01.2017 is quashed on the ground of violation of principles of natural justice and for having been passed without following a fair procedure.
b) The matter is remitted to the competent authority (respondents) to examine the applicant’s eligibility strictly with reference to the cut-off date stipulated in Advertisement Notification No. 06 of 2015, particularly whether the applicant possessed the requisite valid licence/endorsement as on the last date of submission of online applications.
c) For the above purpose, the respondents shall: issue a show-cause notice to the applicant; supply the material relied upon (including the relevant ARTO verification/report); : afford the applicant a reasonable opportunity to file reply and produce supporting material; if necessary, conduct a proper enquiry/verification from the competent licensing authority; and thereafter pass a reasoned speaking order recording clear findings and reasons.
d) The above exercise shall be concluded within a period of three (06) months from the date a copy of this judgment is served upon the respondents.
e) Only if on such enquiry/verification the applicant is found to have possessed the requisite valid licence/endorsement, the respondents shall take consequential action to restore/continue/appoint him with such service consequences as may follow in law.
If he is found not eligible as on the cut-off date, no appointment/restoration shall be granted and the cancellation shall stand confirmed by a reasoned order. No order as to costs.
(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member Judicial Member
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