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| DB upholds appointment of 29 Naib Tehsildars | | | Early Times Report
Jammu, Jan 28: A Division Bench of Jammu & Kashmir High Court Comprising Chief Justice Pankaj Mithal and Justice Sanjay Dhar, upholds the appointment of 29 Naib Tehsildars.
Division Bench partly allowed the LPA filed in Jammu Bench observed that the judgment of the Writ Court dated 18.08.2018 passed in SWP No. 360/2017 to the extent it quashes the Government Order No. 158-Rev of 2016 dated 09.11.2016 and directs the official respondents to consider the appointment of the petitioners therein against the posts of Naib Tehsildars including grant of relaxation in upper age limit and to grant to them similar benefits as have been granted to the petitioners in Inamul Haq Hajjam's case, is upheld, whereas the directions made by the writ Court to the extent of placing the writ petitioners over and above 29 selected candidates (appellants herein) in the seniority list as well as the directions regarding quashment of their appointments and consequent stoppage of their salaries etc., are set aside.
The Background of the case is that the J&K Service Selection Board (hereinafter referred to as 'the Board') issued three separate Advertisement Notices on 16.04.2002, 04.05.2005 & 26.05.2008 inviting applications for a total of 111 posts of Naib-Tehsildars. The selection process culminated in making recommendation by the Board in favour of selected candidates, who were appointed to the posts of Naib-Tehsildars. The process came to be completed in the year 2009-¬10.
Division Bench after hearing battery of lawyers appearing for the both the sides observed that a bare perusal of above entry shows that it specifically mentions that in the case of Naib-Tehsildars, the minimum prescribed qualification shall be Graduate having passed Matric in Urdu as one of the subjects. The learned counsels, appearing for the selected candidates/appellants while interpreting the aforesaid SRO, it appears to us, are misreading the same.
In our opinion, there is no ambiguity in the language of the afore quoted rule. Our aforesaid opinion gets strengthened from the fact that in the cases of these selected candidates/ appellants relaxation in their qualification has been granted by the Government, which clearly shows that they were not eligible as per the Rules in vogue, as they did not possess the requisite qualification i.e., Graduate having passed Matric in Urdu as one of the subjects.
DB observed that there is, however, merit in the submission of the appellants that it was not open to the Writ Court to issue directions against the selected candidates as regards their seniority and status of their appointments without impleading them as parties to the writ petition. It is a cardinal principle of natural justice that no one should be condemned unheard.
In the instant case, the learned Writ Court while passing the impugned judgment has observed these principles in breach, inasmuch as, none of the selected candidates was a party to the proceedings before the Court.
DB further observed that apart from the above, these selected candidates (the appellants herein), upon grant of relaxation in qualification by the Government, have been working as Naib-Tehsildars since the year 2010. Thus, equity tilts heavily in their favour and in view of the discussions made in preceding paras, it would neither be appropriate nor in the interest of justice to disturb their appointments at this belated stage when they may have earned a number of increments and even promotions by now. Therefore, the impugned judgment dated 18.08.2018 to the extent it has directed that seniority of the writ petitioners be fixed over and above the 29 selected candidates (appellants herein) and that in case writ petitioners are not appointed within eight weeks, appointments of these 29 candidates (appellants herein) shall stand quashed with a consequential direction of stopping their salaries etc. is not sustainable in law, inasmuch as, these directions have been passed without hearing the affected parties.
Coming to the challenge to the aforesaid judgment dated 18.08.2018 of the Writ Court laid by the Government vide its intra Court Appeal bearing LPASW, it has not urged even a single ground justifying the rejection of cases of the writ petitioners vide Government Order dated 09.11.2016 (supra) passed by the Revenue Department of the Government, whereby claim of the writ petitioners has been rejected on the ground that their cases were not similarly situated with the cases of the petitioners in Inaam-Ul Haq's case (supra). As already noted, in Inaam-Ul Haq's case, the Writ Court, after holding that Matriculation with Urdu as one of the subjects, was an essential qualification for selection to the post of Naib-Tehsildar in terms of Notifications issued in the years 2005 and 2008, came to the conclusion that the writ petitioners in the said writ petitions being eligible could not have been ignored from selection at the altar of the candidates who were not holding the basic eligibility condition. Accordingly, a direction was issued to the respondents to consider and appoint the writ petitioners against the vacancies which stood reserved in terms of the Court order. The judgment was implemented by the Government in terms of its order dated 30.06.2016 (supra) and 20 writ petitioners came to be appointed on the posts reserved in terms of the Court orders.
DB Observed that the writ petitioners in SWP No. 360/2017, who are four in number, had, on an earlier occasion, filed writ petition bearing SWP Nos.1809/2009 and 1299/2009 challenging the select list as well as the selection process.
It was during the pendency of writ petition 1809/2009 that Inaam-Ul Haq's case came to be decided and the aforesaid writ petition came to be disposed on 11.04.2016 directing the respondents to consider the case of the petitioners in terms of the directions passed in Inaam-Ul Haq's case.
The respondent-State accorded consideration to the case of aforesaid four writ petitioners and rejected the same primarily on the grounds that the writ petitioners had challenged the selection of all the candidates and that there was no post reserved in the writ petition filed by the writ petitioners, as such, their case is different from the cases of the petitioners in Inaam-Ul Haq's case.
The reasoning given in the rejection order passed by the Government is specious, inasmuch, as merely because the petitioners had challenged the whole selection and not confined their challenge to the selection of ineligible candidates, does not make their case different from the cases of the petitioners in Inaam-Ul Haq's case. Similarly, the mere fact that no post was reserved during the pendency of the writ petition, does not make the case of aforesaid four writ petitioners different from the cases of writ petitioners that were decided in terms of the judgment dated 19.08.2015 passed in Inamul-Haq's case. The rejection order made by the Government is, in our opinion, is arbitrary and without any basis. DB observed that the same is not sustainable in law and deserves to be quashed. To this extent, we do not find any illegality in the findings of the Writ Court.
DB further observed that apart from the above, the writ petitioners of this particular case are not guilty of any delay and laches. It is not a case where the writ petitioners sat back and approached the Court after knowing the outcome of the litigation initiated by other candidates. It is a case where the writ petitioners have at the earliest in the year 2009 itself, when the selection process was yet to be finalized, approached the writ Court challenging the whole selection. The only difference is that the writ petitioners chose to file the writ petition in Jammu wing of the Court, whereas the writ petitioners, whose cases were decided in terms of the judgment in Inamul-Haq's case (supra) had filed the writ petition in Srinagar Wing of the Court. In our opinion that does not make any difference. The writ petitioners have been vigilant and alive to their rights, and they have not allowed their claims to go stale. Therefore, their cases cannot be equated with the cases of other writ petitioners who chose to approach the Court only after knowing the result of the cases of Hamidullah Dar and Inamul Haq Hajjam. The judgment of the Writ Court, therefore, to the extent it quashes the Govt. order dated 09.11.2016 and the directs the appointment of the petitioners by according them similar benefits as has been accorded to the writ petitioners in Inamul-Haq's case (supra) deserves to be upheld.
DB observed that in the light of the foregoing discussion, the aforesaid Intra-Court Appeals, and the Writ Petitions are disposed of with the directions that LPASWs No. 199/2017 and 200/2017 filed before Srinagar Wing of the Court as well as APSWP No.19/2016, SWP Nos. 2608/2015, 577/2016, 1103/2017, 1993/2017, 1876/2018,1980/2018 & SWP No. 2069/2018 filed before Jammu Wing of the Court shall stand dismissed.
DB further observed that LPASW filed in Jammu Bench that the judgment of the Writ Court dated 18.08.2018 passed in SWP No. 360/2017 to the extent it quashes the Government Order No. 158-Rev of 2016 dated 09.11.2016 and directs the official respondents to consider the appointment of the petitioners therein against the posts of Naib Tehsildars including grant of relaxation in upper age limit and to grant to them similar benefits as have been granted to the petitioners in Inamul Haq Hajjam's case, is upheld, whereas the directions made by the writ Court to the extent of placing the writ petitioners over and above 29 selected candidates (appellants herein) in the seniority list as well as the directions regarding quashment of their appointments and consequent stoppage of their salaries etc., are set aside
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