Jammu, Sep 25: In LPA No. 70/2021 titled Shahnawaz Ahmed Sheikh V/s 1. UT of J&K Through Secretary, Govt. Of J&K, Social Welfare Department & ors after hearing a DB of HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE ordered as:-
1. This intra-court appeal „by leave‟ is directed against judgment dated 08.03.2018 passed by the learned Single Judge of this Court [“the Writ Court”] in SWP No. 44/2012 titled „Meenakshi Jasrotia v. State of Jammu and Kashmir and Ors.‟ whereby the Writ Court has quashed advertisement Notification No. 02 of 2011 dated 28.12.2011.
2. Before we consider the grounds of challenge urged by learned counsel appearing for the appellant, we deem it appropriate to give brief resume of the factual antecedents leading up to the filing of this appeal.
3. Vide advertisement notification No. 01 of 2009 dated 24.01.2009, one post of Case Reader under open merit category in the Social Welfare Department, Divisional cadre Jammu, was notified for selection. Respondent No.4, who was placed in the wait-list issued by the Service Selection Board after competing in the selection process, felt aggrieved by the selection of another candidate, namely, Jyoti Sharma, who was the lone candidate selected for the post of the Case Reader notified in terms of the aforesaid advertisement notification.
4. Respondent No. 4 filed SWP N o. 1136/ 2011 in which she inter alia challenged the selection of Jyoti Sharma. The writ petition was entertained by the Writ Court and while issuing notice to the respondents, it was provided that the selection of Jyoti Sharma against the notified vacancy of Case Reader shall remain in abeyance.
While the aforesaid writ petition was pending adjudication before the Writ Court, the Jammu and Kashmir Service Selection Board withdrew the post for which selection had been initiated in terms of advertisement notification No .01 of 2009 and re-notified the same by issuing LPA No. 70/2021 advertisement notification no. 02 of 2011 dated 28.12.2011.
This action was purportedly taken by the respondent-J&K Service Selection Board in view of the coming into force of J&K Civil Services Decentralization and Recruitment Act, 2010. Respondent No. 4, who was contesting for the post in question in SWP No. 1136/2011, filed another petition i.e. SWP 44/2012 and challenged the fresh advertisement notification issued in the year 2011.
This writ petition too was entertained by the Writ Court and vide order dated 17.01.2012, the Writ Court directed that impugned advertisement notice qua item No. 169 shall not be acted upon till next date before the Bench.
5. While both the petitions filed by respondent No.4 were pending adjudication and interim directions were in operation, the Jammu and Kashmir Service Selection Board, in ignorance of interim directions dated 17.01.2012 passed in SWP No. 44/2012, proceeded with the selection process and completed the same with the selection of appellant herein.
The select list, containing the name of the appellant, was forwarded to the Department of Social Welfare Department vide letter No. SSB/Sel./Secy./2017/1877-83 dated 09.02.2017.
6. It seems that the recommendations of the Service Selection Board for the post in question were accepted by the Department of Social Welfare and the appellant came to be appointed vide order No. 479-DSWJ of 2017 dated 30.03.2017.
The appellant has since completed his probation and has been confirmed on the said post.
7. Be that as it may, the fact remains that the selection pursuant to the advertisement notification no. 02 of 2011 was conducted in violation of the interim directions passed by the Writ Court in SWP No. 44/2012. Both the writ petitions came up for consideration before the Writ Court and the Writ Court vide its order and judgment dated 08.03.2018 disposed of both the petitions filed by Respondent No. 4 herein. SWP No. 1136/2011 was disposed of with a direction to the Service Selection Board to examine the claim of respondent No.4 [ “writ petition therein”] for appointment to the post of Case Reader in case she was found to be more meritorious than the selected candidate, namely, Jyoti Sharma.
SWP No. 44/2012 too was disposed of by the same order quashing the advertisement notification No. 02 of 2011 dated 28.12.2011 in pursuance whereof the appellant had been selected and appointed. This is how the appellant after seeking leave from this Court has filed the instant Letter Patent Appeal and has called in question order dated 08.03.2018 passed in SWP No. 44/2012.
8. The impugned judgment is assailed by the appellant primarily on the ground that the advertisement notification no. 02 of 2011 has been quashed by the Writ Court without arraying the appellant as party respondent in the said writ petition and without affording him an opportunity of being heard.
9. It is contented by Mr. Aditya Gupta, learned counsel appearing for the appellant that the mistake, if any, has been committed by the J&K Service Selection Board in proceedings with the selection process despite there being interim directions not to go ahead with the selection and, therefore, the appellant, who was a bonafide candidate in the said selection and emerged as successful candidate, cannot be blamed or punished for such mistake, if any, committed by the J&K Service Selection Board. He argues that the appellant was not aware of the pendency of the litigation launched by respondent No. 4 as the appellant was not arrayed as party respondent in SWP No. 44/2012 wherein the advertisement notification No. 02 of 20111 was called in question by respondent No.
10. Per contra, Mr. Raman Sharma, learned AAG appearing for the J&K Service Selection Board submits that the selection made pursuant to the advertisement notification No. 02 of 2011, wherein the appellant emerged as successful candidate and was later appointed, is nullity in the eye of law having been conducted in violation of order of this Court. He, therefore, submits that the appellant cannot be permitted to draw benefit out of the selection which is nonexistent and a nullity.
11. Mr. Nitin Bhasin, learned counsel appearing for respondent No. 4 submits that in terms of the judgment passed in SWP No. 1136/2011, respondent No. 4 being the more meritorious candidate in the selection for the post of Case Reader is entitled to be selected in place of Jyoti Sharma. 12. Having regard to the peculiar fact situation presented by this appeal before us, we had, vide our order dated 08.05.2023, directed the Department of Social Welfare to apprise the Court about the availability of the post of Case Reader so that both the appellants as well as respondent No. 4 could be accommodated.
15. Before we proceed further in the matter, we deem it appropriate to accept this contention of learned Senior Additional Advocate General appearing for the Social Welfare Department and provide that the words “the Case Reader” wherever appearing, whether in the advertisement notifications, the select list or the appointment orders, shall be read as “the Case Worker”. This is, however, without any change in the pay scale attached to the post.
19. We could have easily upheld the judgment of the Writ Court by saying that the entire selection process followed by the appointment of the appellant was in violation of the interim directions passed by the Writ Court and, therefore, nonest in the eye of law, however, having regard to the fact that the appellant was not privy or party to the selection process which was undertaken by the J&K Service Selection Board in ignorance of and in violation of the interim directions passed by the Writ Court and that he has been continuing on the post for the last more than six years after having been validly selected and appointed against the post, we refrain from doing so.
20. Instead, we take an equitable view in the matter. We are of the considered opinion that having regard to the peculiar facts of this case, ends of justice would be served by providing as under:-
(I) That since 02 posts of Case Worker are available in the Jammu Division. One was notified for selection in terms of advertisement notification No. 01 of 2009 against which the claim of Meenakshi Jasrotia is required to be considered in terms of judgment dated 08.03.2013 passed in SWP No. 1136/2011, as such, we provide and direct that the J&K Service Selection Board shall consider the claim of Meenakshi Jasrotia for her selection against the first post of Case Reader under open merit category in the Divisional cadre, Jammu provided she is found more meritorious than Jyoti Sharma whose name had figured in the provisional select list.
The J&K Service Selection Board shall do well to consider the claim in terms of the judgment of the Writ Court and make appropriate recommendations to the Department of Social Welfare. In case, respondent No. 4, namely, Meenakshi Jasrotia is found more meritorious and entitle to selection and is consequently recommended by the J&K Service Selection Board, the Department of Social Welfare shall issue the order of appointment in her favour, shall be appointed.
(II) So far as the appellant herein is concerned, we provide that he shall be deemed to have been selected against the second post of Case Worker available to the Jammu Division w.e.f. 30.03.2017 which shall be deemed to have been notified in terms of advertisement notification No. 02 of 2011 dated 28.12.2011.
Consequently, the selection and appointment of the appellant shall remain intact.
The judgment of the Writ Court quashing the advertisement notification No. 02 of 2011 dated 28.12.2011, is, accordingly, set aside. LPA No. 70/2021 10 20. With a view to do complete justice in the matter, we further provide that in the seniority of the Case Workers of Divisional cadre, Jammu, the respondent No. 4, namely, Meenakshi Jasrotia, if ultimately selected and appointed, shall rank senior to the appellant.
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