Dr. Shiekh Zahoor Ahmad And Anr vs State Of J&K And Others

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.