Early Times Report
SRINAGAR, Feb 23: A Division Bench of J&K High Court Srinagar Wing comprising Justice Sanjeev Kumar and Justice Vinod Chatterji Koul directed Law Department to appoint petitioner namely Mudasir Bashir as Munsiff.
This landmark judgment has been passed in a petition filed by Mudasir Bashir challenged the vires of Rule 51-A of the Jammu and Kashmir Public Service Commission (Business and Procedure) Rules, 1980 and has sought a direction to the respondent- Public Service Commission to call the petitioner for medical/fitness test and appoint him to the post of Civil Judge (Junior Division)/Munsiff, notified in terms of notification dated 30.05.2018.
The facts which are relevant to the disposal of this petition are that one post in Open Merit/PHC category was kept reserved pending clarification from the indenting department regarding earmarking of slot for the physically handicapped category candidates. In the select list for Open Merit Category candidates issued by the Public Service Commission, the petitioner was given over all rank of 24 with aggregate score of 580 marks. The respondent No 5, with the same aggregate score was, however, ranked 23rd and, therefore, figured as a last candidate in the Open Merit Category. The petitioner was denied selection on the ground that the tie between the petitioner and private respondent No 5 was broken by applying Rule 51-A of the Rules and the petitioner, having scored lesser points in the viva voce, was placed below respondent No 5.
Division Bench after hearing both the sides and after perusal of record observed that of the view that the grievance of the petitioner can be well taken care of and redressed in view of the later development i.e. position emerging due to non-joining of one of the selected candidates, namely, Nitika Mahajan. In that view of the matter, we do not propose to go into the question of vires of Rule 51-A of the Rules, which is a provision for breaking the tie between two candidates.
DB further observed that the position that one post in the Open Merit category has fallen vacant due to non-joining of one of the selected candidates namely, Nitika Mahajan, in the pre-induction training, is not disputed either by B A Dar, Sr. AAG appearing for the Department of Law or by Azar-ul-Amin, counsel for the Public Service Commission. There was, however, some difference of opinion as to how, in such situation, the respondents ought to act.
DB further said that in view of the admitted position, one post of Munsiff in the Open Merit Category has fallen vacant, the petitioner having merit equal to the candidate selected in the Open Merit i.e. respondent No 5, cannot be denied selection and appointment. Ordinarily the Public Service Commission should have prepared a Wait List to meet such contingency but non-framing of the wait list by the Public Service Commission cannot deprive the petitioner of his right to be considered and appointed as Munsiff being a candidate next in the order of merit.
With these observations, Division Bench disposed of the petition with the direction that the Department of Law, within two weeks from the date of receipt of this order, shall write a formal communication to the J&K Public Service Commission for forwarding the name of the petitioner, who is next in order of merit, with its recommendation to appoint him against the post that has fallen vacant due to non-appointment of Nitika Mahajn, a candidate selected in the Open Merit Category. —JNF |
