Qamar Rayees Khan vs State of JandK and Others

Mohammad Yaqoob Mir, J.

With the consensus of learned counsel for the parties, petition taken up for final disposal at its admission stage.

Heard and Considered.

Admit.

Case set up by the petitioner is that vide advertisement notice No. 12-PSC of 2006 dated 28.12.2006, issued by J & K Public Service

Commission (for brevity 'PSC'), applications were invited for filling up various posts which include 44 posts of Lecturer Computer Application

who were to be adjusted in the Degree Colleges of Higher Education Department. The requisite number of candidates vis-a-vis respective

categories were selected and appointed. Two candidates did not join, as a result whereof, Deputy Secretary to Govt. Higher Education

Department vide communication No. Edu-Coll/Coord.-746/2011 dated 16.05.2012, addressed to the Secretary, PSC, has conveyed that from

amongst 43 candidates two candidates, namely, Rumaan Bashir and Kaisar Javed, have not joined the concerned Colleges. The said posts have

remained unfilled, therefore, recommend two candidates, one from open and another from RBA category, from the wait list available with the PSC

so that left out vacancies are filled. The respondent PSC has not acted on such request, which prompted the petitioner to file the instant petition.

Respondents No. 2 and 3 have filed their reply wherein it is stated that Rule 51 of the Jammu & Kashmir Public Service Commission (Business

and Procedure) Rules, 1980 has been substituted vide notification No. PSC/EX/11/44 dated 30th March, 2011. Clause (v) prescribes procedure

for determination of suitability of the candidates for appointment, both under open and reserved category. In view of this development, the

communication dated 16.05.2012 could not be acted upon because the candidates in the wait list do not satisfy the requirement.

It is further stated in the reply that the earlier selection for the posts of Lecturer Computer Application in Higher Education Department was

cancelled ab initio vide order No. 172-PSC of 2011 dated 20th May, 2011, therefore, fresh process of selection was initiated which attracts

applicability of the substituted Rule as notified in the month of March, 2011.

Learned counsel for the petitioner would submit that the process of selection, in fact, has been set in motion with the issuance of advertisement

notice in the year 2006. Based on that advertisement notice, the selection as was made has been cancelled but again selection process continued

on the basis of said notification from amongst the candidates who possessed requisite qualification and eligibility in accordance with the terms and

conditions of the said advertisement notice of 2006.

The substituted Rule 51 has a prospective effect which position is supported by the note as appended to the notification providing for

substitution of Rule 51. The said note reads as under:

Note: This shall come into force with immediate effect but shall not apply to the selections for which process has been initiated by the Commission

before the notification of the amended rule. Such selections shall be regulated in terms of conditions prescribed in the relevant

advertisement/notification/notice for the post"".

Contention of the learned counsel appearing for PSC, that since fresh selection has been made, therefore, substituted Rule would apply, is

misplaced. The position of notification of the year 2006 and the selection based thereon has to be governed by the earlier rule as was in vogue at

the relevant point of time.

According to learned counsel for the respondent No. 1, it is PSC who has to take decision and to make recommendations and only then

respondent No. 1 has to proceed further in accordance with law.

This petition is disposed of with the following directions:

(I) Respondents No. 2 and 3 shall accord consideration to the request as made vide communication dated 16th May, 2012 and thereafter to take

measures for recommending two candidates as required in terms of the said communication in accordance with earlier rules as were in vogue prior

to March, 2011.

(II) On receipt of recommendations, whatever made in response to the communication dated 16th May, 2012, respondent No. 1 shall take the

final decision with reasonable dispatch.

Disposed of as above along with connected CMP.