AI Structured Summary
Not yet generated for this judgment
Judgment
Sanjeev Kumar, J
This appeal filed under Clause 12 of the Letters Patent of this Court is directed against order and judgment dated 05.10.2016 passed by the learned
Single Judge (the Writ Court) in SWP No. 1935/2014 titled Dr. Mir Abdul Wahid v. State of J&K and others, whereby the writ petition of respondent
No.4 ( hereinafter ‘the writ petitioner’) has been allowed and communication bearing No. Policy 18701/2013/558-59 dated 24.03.2013 as also
the tentative seniority list issued vide Circular dated 20.06.2014, insofar as it relates to the writ petitioner, has been quashed and the respondent No.2
has been directed to give all service benefits including seniority to the writ petitioner on the post of Assistant Professor, Surgical Oncology with effect
from 14.12.2010. The writ petitioner, however, has been denied the monitory benefits from 14.12.2010 till he actually joined the post. The appellant,
who was not party respondent before the Writ Court, is before us by the leave of this Court granted vide order dated 27.09.2017.
Before we proceed to appreciate the grounds of challenge urged by the appellant, it would be necessary to advert to material facts leading to filing
of this appeal.
The respondent No.2, vide advertisement notice No. 04 of 2009 dated 25.06.2009 invited applications for filling up various posts including two posts
of Assistant professor in Surgical Oncology; one in Open Merit category; and another in Resident of Backward Area (RBA) category. The writ
petitioner fulfilled all the eligibility qualifications and accordingly responded to the advertisement for the post under RBA category. The application of
the writ petitioner was entertained by the respondent No.2 and upon screening the application and qualifications of the writ petitioner, the respondent
No.2 vide its letter dated 20.04.2010 informed the writ petitioner that he had not been found eligible on account of teaching/research experience. The
writ petitioner contested the objection raised by the respondent No.2 and informed the respondents that he was fulfilling the requisite experience and
to verify that, they can seek clarification from All India Institute of Medical Sciences (AIIMS), New Delhi. When the respondent No.2 showed no
response to the representation of the writ petitioner, he himself approached AIIMS as well as Medical Council of India, and, in response thereto, both
the AIIMS as well as MCI informed the writ petitioner vide letters dated 21.05.2010 that the writ petitioner fulfilled the requisite experience and
qualification for the post. With the aforesaid communications of AIIMS and MCI, the writ petitioner approached the respondent No.2 with a request
to entertain his candidature. Finding no response from respondent No.2, the writ petitioner filed SWP No. 1065/2010. A Single Bench of this Court
vide interim order dated 23.07.2010 directed the respondent No.2 to conduct the interview of the writ petitioner on his own risk and responsibility with
a further direction that result of the writ petitioner will not be declared until further orders. The interim order aforesaid, though served upon the
respondents, was not complied with and consequently the writ petitioner was not intervierwed. Feeling constrained by the conduct of respondent No.2,
the writ petitioner filed contempt petition No. 216/2010 for initiating contempt proceedings against the respondents. A Bench, hearing the contempt
petition, vide its order dated 04.11.2010 directed the respondent not to fill up one post until the disposal of the writ petition.
In view of the above, the respondent No.2 conducted the interviews for the post in the Open Merit category and after seeking clarification from the
Writ Court, that the order dated 04.11.2010 was only confined to the post under RBA category, filled up the open category post of Assistant
Professor, Surgical Oncology, but kept the post under RBA category unfilled.
The writ petition, SWP No. 1065/2010 came to be disposed of by the learned Single Judge vide order dated 04.07.2012. The writ petition was
allowed by the Writ Court and the communication dated 20.04.2010, whereby the writ petitioner had been communicated his ineligibility quo
experience, was quashed. Writ of mandamus was also issued to the respondent No.2 to allow the writ petitioner to participate in the selection process
for the advertised post of Assistant professor, Surgical Oncology and consider him for appointment against the post if found to be most meritorious of
all the candidates under RBA category.
In compliance to the aforesaid judgment, the respondents called the writ petitioner before the Selection Committee for interview and upon interview
recommended the writ petitioner for the aforesaid post. Pursuant to the recommendations of the Selection Committee, the writ petitioner was
appointed as Assistant Professor, Surgical Oncology vide Government Order No. 65-SKIMS of 2013 dated 21.08.2013. The writ petitioner
accordingly joined the service in compliance to the order of his appointment.
Since the order of appointment of the writ petitioner had not made any mention about the effect to be given to his appointment, he, accordingly, filed
a representation before the respondents to fix his seniority along with Dr. Altaf Gowhar Haji, who had been appointed against the post Assistant
Professor, Surgical Oncology in the open merit category. The representation came to be considered by respondent No.2 and vide letter dated
24.03.2014 the writ petitioner was informed that as per rules, the seniority has to be fixed with reference to the date of appointment to a post and,
accordingly, the seniority of the writ petitioner would be fixed on the basis of merit obtained by him in the interview in the year 2013. Subsequently the
respondents issued the tentative seniority list of Assistant professors as on 01.06.2014 vide Circular dated 20.06.2014 and showed the writ petitioner at
serial No.4 with his date of appointment as 21.08.2013.
Feeling aggrieved by the rejection of his representation in terms of the impugned communication dated 24.03.2014 and consequent fixation of his
seniority by Circular dated 20.06.2014, the writ petitioner filed SWP No. 1935/2014, which has been allowed by the Writ Court in terms of the order
and judgment impugned in this appeal.
The appellant is aggrieved and challenges the impugned judgment, inter alia, on the following grounds:-
(a) That the judgment of the Writ Court whereby the impugned tentative seniority list, insofar as it relates the writ petitioner has been quashed, is not
sustainable in law for the reason that it has adversely affected the seniority position of the appellant without providing him an opportunity of being
heard.
(b) That the Writ Court failed to appreciate that the writ petitioner had abandoned his right, if any vested in him, by virtue of judgment dated
04.07.2012 when he applied afresh in compliance to the subsequent advertisement notice issued by the respondents on 10.01.2012.
(c) That the seniority position could not have been disturbed by the Writ Court without affected persons being parties before the Writ Court. The
appellant claims that he has been condemned unheard by the Writ Court.
Having heard the learned counsel for the parties and perused the record, we are of the view that the Writ Court judgment, insofar as it quashes
communication dated 24.03.2014 and declares the writ petitioner having been appointed with effect from 14.12.2010, is founded on sound reasoning
and, therefore, does not call for any interference by this Court.
Undisputedly, the writ petitioner had responded to the advertisement notice dated 25.06.2009 and had sought consideration against the post of
Assistant Professor Surgical Oncology in RBA category. The candidature of the writ petitioner was rejected by respondent No.2 on the ground that
he did not fulfil the requisite teaching/research experience. Aggrieved by the rejection of his candidature, the writ petitioner filed SWP No. 1065/2010
in which the learned Single Bench of this Court, vide order dated 23.07.2010 directed the respondent No.2 to conduct the interview of the writ
petitioner for the post, albeit on his own risk and responsibility. The respondent No.2 disobeyed the order of the learned Single Judge which
constrained the writ petitioner to file a Contempt Petition. In the Contempt Petition, the Court, on the basis of statement made by learned counsel
appearing for the respondent No.2, vide order dated 04.11.2010 disposed of the Contempt Petition by providing that one post of Assistant professor,
Surgical Oncology would not be fill up by the respondents. The order dated 04.11.2010 was later on clarified by the Single Bench by providing that the
same shall remain confined to the post under RBA category only. This is how one post of Assistant professor, Surgical Oncology under RBA
category notified for selection vide advertisement notice dated 25.06.2009 remained unfilled and subject to orders to be passed in SWP No.
1065/2010.
It appears that while the aforesaid writ petition was pending consideration before the Writ Court, the respondent No.2 vide advertisement notice
No. 01 of 2012 dated 10.01.2012 invited applications, inter alia, for one post of Assistant professor, Surgical Oncology, without mentioning the
category under which the post was proposed to be filled up. While the selection process pursuant to advertisement notice dated 10.01.2012 was
underway, SWP No. 1065/2010 came to be disposed of by the Writ Court on 04.07.2012. Not only the writ petitioner was held eligible for the post
notified vide notification of 2009 but he was allowed to participate in the selection process for the post under RBA category. The Writ Court also
directed the respondent No.2 to consider the writ petitioner for appointment against the post, if found to be meritorious of all the candidates under
RBA category, having regard to his academic record, experience and performance. Pursuant to order dated 04.07.2012, whereby the writ petition of
the writ petitioner was allowed, the writ petitioner was interviewed by the Apical Selection Committee and was recommended for appointment.
Pursuant to the recommendations made by the Apical Selection Committee, the writ petitioner was appointed along with the appellant as Assistant
professor, Surgical Oncology, in terms of order dated 21.08.2013. There is no doubt that appellant was placed at serial No. 11 whereas the writ
petitioner was placed at serial No. 13 of the order of appointment dated 21.08.2013.
The dispute raised before the Writ Court by the writ petitioner was that since his appointment was against the post notified vide advertisement
notice dated 25.06.2009, and, therefore, he was entitled to appointment from the date Dr. Altaf Gowhar Haji was appointed against the post in the
Open Merit category. The plea of the respondents, that writ petitioner was considered along with the appellant in the fresh selection process initiated
vide advertisement notice dated 10.01.2012 has been appropriately rejected by the Writ Court. Accepting the plea of respondent No.2 as was
projected by it before the Writ Court and is being pressed into service before us also would be tantamount to putting premium on the contumacious
conduct exhibited by it by disobeying the directions passed by the Writ Court. In the first place, there was absolutely no justification not to interview
the writ petitioner when there was a clear direction, though interim, by the Writ Court to that extent, providing only that participation of the writ
petitioner in the interview would be on his own risk and responsibility. The respondent No.2, unabashedly, disregarded the directions of the Court and
interviewed other candidates for the notified post of Assistant professor, Surgical Oncology but not the writ petitioner. When the matter was brought
to the notice of the Court by way of a Contempt Petition filed by the writ petitioner, the respondent No.2 was quick to cover up their misdemeanour
and made a statement in the Contempt Petition that they will keep one post of Assistant professor, Surgical Oncology unfilled until the disposal of the
writ petition. Later on the Court also clarified that the order reserving one post shall be confined to post notified under RBA category in
Advertisement notice dated 25.06.2009 only. This is how one post of Assistant professor, Surgical Oncology in the open merit category came to be
filled up by appointment of Dr. Altaf Gowhar Haji.
It is interesting to note that the writ petitioner succeeded in SWP No. 1065/2010. The Writ Court, while allowing the writ petition and holding the
writ petitioner eligible to participate in the selection process for the advertised post of Assistant professor, Surgical Oncology, also directed the
respondent No.2 to allow the writ petitioner to participate in the selection process for the post under RBA category. The respondent No.2 was
expected to faithfully comply with the judgment and interview the writ petitioner for the post kept reserved under RBA category and consider him for
appointment against the post if found to be most meritorious of all the candidates in the said category, having regard to his academic record,
experience and performance in the selection process.
As noticed above, while the aforesaid writ petition was pending consideration before the Single Bench, the respondent No.2 had issued another
advertisement bearing No. 01 of 2012 dated 10.01.2012, notifying one post of Assistant professor, Surgical Oncology for selection. It clearly transpires
that while conducting the interview for the aforesaid post notified in terms of advertisement notice dated 10.01.2012, the respondent No.2 also
conducted the interview of the writ petitioner. The appellant came to be selected and appointed against the post notified pursuant to advertisement
notice No. 01 of 2012 dated 10.01.2012, whereas the writ petitioner, who was interviewed in compliance to the judgment of the Writ Court, came to
be selected and appointed against the post of Assistant professor, Surgical Oncology which was notified in terms of advertisement notice of 2009 and
had been kept reserved during the pendency of SWP No. 1065/2010. That being the clear position, there should not have been any quarrel with regard
to the effect to be given to the appointment of the writ petitioner. He was clearly entitled to be appointed with effect from the date Dr. Altaf Gowhar
Haji was appointed against the open merit category against the post of Assistant professor, Surgical Oncology advertised vide advertisement
notification of 2009. The writ petitioner was denied consideration along with Dr. Altaf Gowhar Haji on an inherently false premise that he was not
eligible for the post. The writ petitioner had to approach the Writ Court to seek declaration of his eligibility. The Writ Court found merit in the plea of
the writ petitioner and, accordingly, held him eligible in all respects to participate in the process of selection for the post notified vide advertisement
notice of 2009.
That being the position, there is hardly any justification in the plea of the respondent No.2 that the writ petitioner having been considered along with
the appellant, who had participated in the selection process initiated vide advertisement notice No. 01 of 2012 dated 10.01.2012, was entitled to
prospective appointment i.e. from the date the appellant was appointed. The Writ Court has very correctly analyzed the factual as well as legal
position and has come to the conclusion that the appointment of the writ petitioner from the retrospective date cannot be denied only for the reason
that the writ petitioner was erroneously not considered for the selection process initiated in the year 2009 and was not even considered after the Court
intervened in the matter. We are in complete agreement with the view taken by the Writ Court and reiterate that taking any other view in the matter
would be tantamount to putting premium on the contumacious conduct exhibited by respondent No.2 all along. As a matter of fact, we find that the
reply affidavit filed by the respondent No.2 before the Writ Court was not only factually incorrect and misleading but was also contemptuous in
nature. The Writ Court has not taken cognizance of the conduct of respondent No.2 and felt satisfied by allowing the writ petition. We also do not
intend to go into that aspect but we will definitely place on record our strong disapproval of the conduct of respondent No.2 which is a public body
enjoined to deal with the citizens in a fair, just and equitable manner.
We, however, cannot brush aside the plea of the appellant, though technical, in the facts and circumstances of the case that the Circular notifying
tentative seniority list could not have been interfered with by the Writ Court without affording an opportunity of hearing to the appellant who was
adversely affected by such interference. The judgment of Apex Court in V. V. Joseph and ors v. Union of India, AIR 1993 SC 299, relied upon by
Mr. Qayoom is rendered in different factual context and, therefore, not fully applicable.
Before we close, there is another aspect which was highlighted by the learned counsel for the appellant that the writ petitioner by responding to
the subsequent advertisement notice has abandoned his right of participation in the selection process initiated in the year 2009 against the reserved
post in terms of the judgment passed in SWP No. 1065/2010. Though in the rejoinder affidavit filed by the petitioner before the Writ Court, the writ
petitioner has denied having responded to the subsequent advertisement notice, yet we find that even if the writ petitioner is found to have applied for
the post in pursuance to advertisement notice of 2012, he cannot be said to have waived his right which came to be vested in him by the judgment of
the Writ Court rendered in SWP No. 1065/2010.
For all these reasons we are not inclined to take a view contrary to the view taken by the Writ Court. However, we modify the judgment of the
Writ Court in the following manner:-
(i) That the communication bearing No. Policy 18701/2013/558-59 dated 24.03.2013 shall stand quashed.
(ii) The writ petitioner shall be deemed to have been appointed as Assistant professor in the Discipline of Surgical Oncology under RBA category with
effect from 14.12.2010, on which date Dr. Altaf Gowhar Haji was appointed on the said post pursuant to the selection process initiated vide
advertisement notice No. 04 of 2009 dated 25.06.2009.
(iii) That the appointment of the writ petitioner with effect from 14.12.2010 till he actually joined the post pursuant to his order of appointment shall be
notional and would not entitle him to any monitory benefits.
(iv) The writ petitioner, however, shall be entitled to all service benefits minus monitory benefits including his consideration for being
appointed/promoted on the next higher post by reckoning his seniority from 14.12.2010.
(v) That respondent No.2 shall refix the seniority of the writ petitioner in the category of Assistant professor, Surgical Oncology after providing an
opportunity of being heard to the affected persons including the appellant.
(vi) The exercise with regard to re-fixing the seniority of the writ petitioner viz-a-viz the appellant and others shall be completed within a period of four
weeks from the date of judgment and till such re-fixation, the seniority list, tentative or final, shall not be acted upon for any purpose whatsoever.
With the aforesaid slight modifications, the judgment of the Writ Court is upheld and the appeal is disposed of accordingly.