Avtar Krishan Pandita vs State of J&K and ors.

Tejinder Singh Doabia, J.—The facts which are not disputed are as under :

I. That the petitioner A.K. Pandita was infact appointed as Economic Investigator. This appointment was made in pursuance of an advertisement

notice issued by the respondentState on 3.4.1974.

II. That this advertisement notice made mention of the five other posts which were to be filled. At S. No. 1 the post mentioned is that of Economic

Investigator;

III. That when recommendations were made, it also contained a recommendation for appointing some persons as Extension Officers;

IV. That the post of Extension Officer was not advertised at all;

V. That this led to a writ petition being preferred in this Court. This bears No. 93/1974. In this, six persons were arrayed as private respondents.

Their names are as under :

1) Shri Abdul Rashid Bhat s/o Gh. Mohd. Bhat R/o Wact Mohalla Batmaloo, Srinagar;

2) Sh. Khursheed Ahmed S/o Ghulam Mohd. Bhat R/o Gurubazar;

3) Shri Abdul Rashid Kasnoo R/o Tral;

4) Shri Mohmmad Naseem R/o ChariSharief;

5) Sh. Avtar Kaul R/o Balbul Dankar Srinagar;

6) Sh. Hira Lal Tikoo R/o Srinagar;

VI/ That this Court was of the opinion that as no advertisement notice was issued for the post of Extension Officer, therefore, no appointment

could be made qua this office.

The petitioner has now come to this Court. The present writ petition was preferred in the year 1992. Petitioner's case is that he was appointed

as Economic Investigator, as he was selected for this post and therefore, the observations made in the judgment delivered in writ petition No.

93/1974 cannot be made to operate to his prejudice. With a view to appreciate his claim that he was appointed as Economic investigator, he

places reliance on the stand taken by other respondentsState. For facility of reference, the stand taken by the State is reproduced below ;

In the reply affidavit filed by the Convenor State Recruitment Board, the name of candidates appointed as Economic Investigators was wrongly

shown as having been appointed as Extension Officer. It is reiterated here that the posts of Economic Investigators have been properly referred to

the Recruitment Board while as the posts of Extension Officers had not been referred. The Hon'ble High Court vide its judgment dated 15.5.1976

quashed the appointment of respondents Nos. 4, 6, 7 and who were unfortunately wrongly shown as Extension Officers. The Hon'ble Judge held

that since the posts of Extension Officers were not properly advertised, therefore, the petitioners were denied the right to compete for these posts.

A review petition was filed before the same Judge praying for correction for errors that had crept in due to bonafide mistake as stated by convenor

State Recruitment Board by wrongly showing the respondents as Extension Officers whose selection without reference to State Recruitment Board

was quashed by the Hon'ble High Court. The review petition was dismissed in default on 21.8.86.

The petitioner submits that as appointment to the post of Economic Investigator was upheld, therefore, petitioner rightly came to be appointed

as Economic Investigator, therefore, the judgment in question should not operate against him.

Even though the factual stand taken by the State is in favour of the petitioner, yet in an objection has been raised that judgment to be delivered in

present writ petition i.e. SWP No 452/1992 would virtually amount to review of the order passed by this Court in the writpetition No. 93/1974. It

is submitted that petitioner should have sought review or he should have preferred an appeal against the order passed in writ petition No. 93/1974.

So far as the above argument raised by learned counsel for the State is concerned, it be seen that the present petitioner did not figure in the

array of parties in the aforementioned writ petition. Therefore, he would not be bound by the judgment given in the aforementioned writ petition.

The question as to whether the petitioner could prefer a writ petition in this regard or preferred a review petition is a matter which is no longer res

integra. The Supreme court of India in the case reported as Shivdeo Singh and Others v. State of Punjab and others, AIR 1963 SC 1909,

considered exactly a similar question. In the above case, a writ petition was preferred by one ""A"" for cancellation of order of allotment which was

passed by the Director of Rehabilitation in favour of ""B"". The High Court of Punjab decided the issue in favour of ""A"", though ""B"" was not a party

to the proceedings. Later on, ""B"" filed a writ petition under Article 226 of the Constitution. He wanted the matter to be reheard as a whole. The

High Court allowed the writ petition. This order was challenged in the Supreme Court of India. Supreme Court of India was of the view that such a

course could be adopted. A new writ petition could be preferred when the earlier order passed by the Court in the exercise of writ jurisdiction

operated to the prejudice of a person, who was not party to the earlier writ petition. It was observed that there is nothing to preclude the High

Court from exercising the power of plenary jurisdiction to prevent miscarriage of justice or to do justice. It was observed that while entertaining

these petitions, the High Court only saw to it that the principles of natural justice had been followed. Quotation from head note is reproduced

below :

On a writ petition by A for cancellation of the order of allotment passed by the Director of Rehabilitation in favour of B, the High Court cancelled

the order in favour of B though he was not a party to the proceedings. Subsequently B filed a petition under Article 226 for impleading him as a

party to A's writ petition and rehearing the whole matter. The High Court allowed the writ petition.

Held that the second writ petition by B was maintainable and the High Court had not acted without jurisdiction in reviewing its previous order at

the instance of B who was not a party to the previous writ proceedings.

There is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of

plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In entertaining B's petition the High

Court thereby did what the principles of natural justice required it to do.

The aforementioned decision squarely over the situation as has arisen in the present case. The preliminary objection raised by the State is thus

without merit.

In view of the above and keeping in view the stand taken by the respondentState, which does show that the petitioner was appointed as

Economic Investigator, his appointment as Economic Investigator is upheld.

This petition is allowed in the manner indicated above.

Petitiona allowed.