Abdul Rashid Sofi vs General Insurance and Ors.

The petitioner namely, Abdul Rashid Sofi through the medium of this petition has invoked the writ jurisdiction of the court which is vested under

Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir. Respondent had advertised the post of

marketing trainees in the cadre of development officers Grade2 from amongst the General Insurance Agents, Marketing Agents and Rural

representatives. The eligibility criteria for the candidates was to possess three years experience as General Insurance Agent and Rural

Representative. The minimum age limit was prescribed 21 years and the maximum limit was of 30 years. In terms of clause 5.1 of the said

advertisement notice, respondent had the power to relax upper age limit. SubClause(S) of the above stated clause 5.1 provided that the upper age

limit for schedule caste/schedule tribes was relaxable by five years. In terms of subclause(c) of clause 7 of the said advertisement notice the

candidates having passed the written test, were required to be called for personal interview.

The petitoner is a graduate of the Kashmir University and possessed six years experience as ""Insurance Agent"". He was eligible to apply in

consequence to the said advertisement notice. The petitioner in the ""prescribed form of application"" had shown his category as""schedule caste"". His

age limit was relaxed and was allowed to appear in the written test under roll No. 170007. The petitioner qualified in the written test and thereafter

appeared in the ""vivavoce test"" and his name figured in the list of provisionally selected candidates. The petitioner had submitted certificate bearing

No. 1071/80/87 dated. 31.12.1987 issued by the Dy. Commissioner, Srinagar wherein it was stated that he belonged to backward class. The

petitioner had also made an application wherein he had specifically stated that in the State of Jammu and Kashmir amongst the Muslim community

there was no category of the society amongst muslim were categorised as ""backwards"" in terms of J&K Backward Order, 1956. According to

him, on the basi of the certificate of Backward class he was able to get his upper age limit relaxed. He came to know after persuing objections filed

the respondent No.1 in writ petition titled Bashir Ahmad Shah Vs. Regional Insurance Corporation of India and Ors. That he (petitioner herein)

was not entitled for the benefit of reservation. This observation of respondent No.1 has been challenged on the following grounds:

i. After becoming select against a post of Marketing Trainee, the petitioner acquired right to be appointed and posted against a suitable post.

Respondent unilaterally and without affording the petitioner any opportunity of being heard has deleted his name. This is a serious transgression on

the petitioner's fundamental right guaranteed under Article 14 and 16 of the Constitution of India.

ii. Respondent had relaxed the age limit of the petitoner on the basis of the documents furnished by him. All these documents had the common

substratum that the petitioner belonged to backward community of muslims of Kashmir valley. Respondent did not apply its mind to this aspect of

the case but in a casual and mechanical manner rejected his selection.

Relief in the nature of writ of mandamus is sought for quashing the order of the respondent whereby his name has been deleted from the list of

selected candidates. Further, a direction is sought to the effect that respondent should issue formal orders for the appointment of the petitioner on

the basis of the selection so made.

The respondent in its objections has pleaded that no violation of any fundamental right of the petitioner has been done. It is averred that in terms

of the notification in question, the appointment of the candidates as Marketing trainees was sought not on the basis of reservation for backward

classes candidates but on the basis of schedule caste candidates. The petitioner in his ""application form"" had shown his eligibility under reserved

category as belonging to schedule case and on this qualification he was summoned to appear in the written test and vivavoce. The petitioner was

provisionally selected but his final selection was to be made on his submitting the certificate of schedule caste in original along with other

testimonials. The petitioner instead of producing the required certificate and testimonials produced ""backward class certificate along with

testimonials that amongst

the muslim of Kashmir there is no class as schedule case but some economically weak sections of the society have legally been declared as

backward classes and the petitioner is a member of one of such class. As per terms and conditions of the notification in question there was no

reservation for backward classes so the respondent was within its rights to delete his name amongst the list of provisionally selected candidates. A

mistaken view taken by the respondent does not entitle the petitioner to claim the post to which he is not eligible on merits.

I have considered the respective contentions of the counsel for the parties and perused the record.

In the form of application, the petitioner had shown his category as ""schedule caste"" though actually he belonged to backward class. Item (4) of

this form contains the categories which make a candidate legible for applying and there is no category of ""backward class"" which figures therein.

The petitioner got his age relaxed in the written test as well as viva voce test. The case of the petitioner is that on the basis of testimonials produced

by him which unambiguously showed him as a member of ""backward class"" he got his age relaxed but this assertion runs contrary to the texure of

the advertisement notice wherein backward class in not a recognised category. Respondent has contended that on mistaken identity the embargo

of age was relaxed. Consequently, the name of the petitioner had found a place in the provisional list. The final list was yet to be prepared after

verification of the original record. The respondent became aware of the mischief being played and in order to redress the wrong the name of the

petitioner was struck out. By merely getting his name inserted in the provisional list of successful candidates the petitioner was not clothed with a

legal right to be placed in the final list and get himself appointed and posted against a post. He was still undergoing the process of consideration and

selection was yet in the embryo. Even if he was finally selected mere inclusion in the select list would not have given him an indefeasible right to

appointment. It was open to the employer respondent to examine the select list carefully and to reach its own conclusion regarding the suitability

and merits of the candidates and publish the names of only those candidates who are found suitable. This aspect has been dealt with by a

Constitution Bench of the Apex Court in Shankarsan Dash Vs. Union of India (1991) 3 SCC 47. The following observations of the court are

apposite:

It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful

candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily, the notification merely amounts to an

invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless, the relevant

recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the state has the

licence of acting in any arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. And if the

vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test and

no discrimination can be permitted."" 7 Now, adverting to the facts of the present case it is found that the petitioner had acquired no legal right to

ask the respondent to appoint him as a marketing Trainee in the grade of Development Officer Grade2 or to provide him any post in terms of the

advertisement notice in question.

In the result, there is no legal force in this petiton which is accordingly dismissed.