UT of J&K & Anr. vs Abhimanyu Pratap Singh Jamwal & Ors.

Per: Rahul Bharti-J

A writ petition SWP No. 2091/2009 came to be filed before this Court by a writ petitioner – Abhimanyu Pratap Singh Jamwal on 10.11.2009 who now figures as a respondent No. 1 in writ petition WP(C) No. 2796/2022 and as a respondent No. 11 in WP(C) No. 2225/2023. Two writ petitions WP(C) No. 2796/2022 and WP(C) No. 2225/2023 are under adjudication before us.

The cause of action which drove the writ petitioner -Abhimanyu Pratap Singh Jamwal to petition this Court with said SWP No. 2091/2009 was his non-selection as an open merit (OM) candidate to the post of Naib Tehsildar for which the writ petitioner – Abhimanyu Pratap Singh Jamwal had come to apply in response to an advertisement notice No. 01 of 2002 dated 26.04.2002 issued by the J&K Services Selection Board, one of two writ petitioners of WP(C) No. 2796/2022.

The factual backdrop in which the institution of said writ petition SWP No. 2091/2009 by the writ petitioner - Abhimanyu Pratap Singh Jamwal came to take place needs to be set out.

The J&K Services Selection Board had come out with an advertisement notice No. 01 of 2002 dated 26.04.2002 for carrying out the recruitment to 52 posts of Naib Tehsildar in J&K Subordinate Revenue (Subordinate) Service. Breakup of advertised 52 posts of Naib Tehsildars was as under:-

The writ petitioner- Abhimanyu Pratap Singh Jamwal is said to have responded to this particular advertisement notice No. 01 of 2002 which was not followed by conduct of any selection process till 2005 when another advertisement notice No. 09 of 2005 dated 14.12.2005 came to be issued by the J&K Services Selection Board for recruitment for 39 posts of Naib Tehsildar with the following breakup:-

Thus, there came to be two advertisements in pipeline for recruitment to the posts of 52 & 30 posts of Naib Tehsildars.

Both the advertisements of 2002 & 2005 remained on hold without any selection process getting initiated beyond the advertisement and submission of application forms by the eligible candidates.

In the year 2008, the J&K Services Selection Board again came up with a third advertisement notice No. 04 of 2008 dated 26.05.2008 meant for recruitment to 20 posts of Naib Tehsildars with the following breakup:-

For every subsequent advertisement notice, situation was saved for the candidates who had applied to the preceding advertisement.

The selection criteria applied by the J&K Services Selection Board for carrying out the selection of candidates for the aforesaid pool of 111 number of posts of Naib Tehsildars was in the form of a Written Test – 12 points & Viva-voce – 15 points aggregating to 135 points.

It was in the year 2008 that the final outcome of the selection process came to be declared with selection list being forwarded by the J&K Services Selection Board to the indenting Revenue Department, vide communication No.SSB/Sel/Secy/ 09/3415-21 dated 09.10.2008.

The writ petitioner - Abhimanyu Pratap Singh Jamwal was shown to have secured 94.33 marks (83 marks in written and 11.33 marks in interview) on the basis thereof he came to be placed in the Waiting List at serial number 7 by reference to Open Merit (OM) category vis-à-vis advertisement notice No. 01 of 2002 dated 26.04.2002.

It is by reference to said outcome that the institution of writ petition SWP No. 2091/2009 came to take place in this Court, whereby the writ petitioner- Abhimanyu Pratap Singh Jamwal, came to challenge the criteria adopted in framing of the Waiting List and sought a writ of mandamus unto the J&K Services Selection Board to reframe the Waiting List by giving more weightage to the marks obtained in the written examination and consequently seeking quashment of selection and appointment of two candidates, namely, Jahangir Hussain & Manzoor Ahmed Mir both bearing as handicap status in the Open Merit (OM) category and also seeking the quashment of selection and appointment of Om Raj Sombria & Virender Kumar under Resident of Backward Area (RBA) & Actual Line of Control (ALC) categories on account of being beneficiaries of Jahangir Hussain & Manzoor Ahmed Mir, otherwise being RBA & ALC candidates, getting selected as reserved handicap candidates for two posts appropriated out of pool of Open Merit (OM).

The writ petitioner - Abhimanyu Pratap Singh Jamwal finally sought a writ of mandamus unto the J&K Services Selection Board as well as to the Govt. of State of Jammu & Kashmir, as it was then, to select and appoint the petitioner against one of two posts to be vacated by Jahangir Hussain & Manzoor Ahmed Mir who were meant to be shown selected under RBA & ALC category via horizontal reservation of Handicap category in replacement of Om Raj Sombria & Virender Kumar in said two reserved categories.

The premise on which the writ petitioner - Abhimanyu Pratap Singh Jamwal put forth his claim for the aforesaid effect and relief in his favour was that against all the three advertisement notifications, he was eligible for consideration by reference to Open Merit category posts numbering 26, 22 & 11 by reference to the advertisement notification years 2002, 2005 & 2008. The cut-off marks applied by the J&K Services Selection Board with respect to the advertisement notification of 2002 was 94.61 by reference to which the writ petitioner-Abhimanyu Pratap Singh Jamwal was shown to be in the Wait List with score of 94.33 marks with six candidates ahead of him shown in the Wait List in the following manner.

One of the candidates, namely, Harpreet Singh was shown to be in the Wait List by reference to the advertisement notification No. 01 of 2002 at serial number 1 whereas in the Wait List in the year 2005 was shown at serial number 2 with his score of 94.67 marks as against the cut-off marks of 95 for the advertisement of the year 2005 and also of the year 2008.

The writ petitioner- Abhimanyu Pratap Singh Jamwal’s grievance was also relatable to the selected and appointed candidates, namely, Jahangir Hussain & Manzoor Ahmed Mir who were selected in Open Merit category against Handicap Category, although said two persons were supposed to have been selected under Line of Actual Control (ALC) and Resident of Back Area (RBA) category by horizontal reservation prescribed under SRO-294 of 2005 dated 21.10.2005 whereby horizontal reservation in recruitment in public service came to be provided in the State of Jammu & Kashmir, as it was then.

It was pleaded by the writ petitioner - Abhimanyu Pratap Singh Jamwal that in the event of Jahangir Hussain & Manzoor Ahmed Mir being relocated by horizontal reservation reference in Line of Actual Control (ALC) and Resident of Backward Area (RBA) category instead of consuming two posts in Open Merit (OM) category, Om Raj Sombria & Virender Kumar were supposed to be dislodged in terms of their selection and appointment quo two posts viz. the aforesaid two reserved categories of RBA & ALC.

The writ petitioner – Abhimanyu Pratap Singh Jamwal reckons that in re-alignment for selection and recruitment to 29 posts, only 27 candidates were to be reckoned to have been selected and appointed leaving two posts vacant against which the petitioner was to be considered for selection and appointment.

The writ petitioner-Abhimanyu Pratap Singh Jamwal pleaded that the Wait List candidates for the Open Merit category for the year 2002 was changed to be shown in the final Wait List, instead of the earlier drawn Wait List, which is as under:-

At the time of institution of the writ petition SWP No. 2091/2009, the writ petitioner – Abhimanyu Pratap Singh Jamwal had impleaded eight respondents to his said writ petition with Harpreet Singh as being the last respondent No. 8.

The writ petitioner - Abhimanyu Pratap Singh Jamwal came forward with CM No. 3799/2010 filed on 23.11.2010 thereby seeking impleadment of four respondents, namely, Jahangir Hussain, Manzoor Ahmed Mir, Om Raj Sombria & Virender Kumar as the respondents No. 9 to 12 and corresponding incorporation of the paragraphs in the writ petition in the context of to be impleaded four respondents.

In terms of an order dated 04.05.2011, the writ petitioner - Abhimanyu Pratap Singh Jamwal was allowed to amend his writ petition in terms of amendment as solicited in CM No. 3799/2010 and that led to the entertainment of amended writ petition which otherwise stood submitted along with CM No. 3799/2010 on 23.11.2010.

Reply to the amended writ petition from the end of the J&K Services Selection Board, which was figuring as the respondent No. 2 in the writ petition, came to be filed on 30.05.2011.

In response to the reply/objections so filed by the J&K Services Selection Board, the writ petitioner - Abhimanyu Pratap Singh Jamwal came forward with a rejoinder on 02.04.2012.

By virtue of an application IA No. 1/2019 filed on 06.03.2019, the writ petitioner- Abhimanyu Pratap Singh Jamwal came to seek permission for placing on record the documents referred to be relevant to the adjudication of the matter.

While the writ petition was pending adjudication before this court, the J&K Re-organization Act, 2019 came to intervene in terms whereof the jurisdiction of the Central Administrative Tribunal came to be extended in the Union Territory of Jammu & Kashmir in terms of G.S.R. 267(E) dated 29.04.2020 read with notification No. G.S.R 317(E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training) which resulted in transferring of the writ petition SWP No. 2091/2009 from the file of the High Court of Jammu & Kashmir and Ladakh to the Central Administrative Tribunal (CAT), Jammu Bench whereat in terms of an order dated 09.11.2020 the writ petition was re-numbered as T.A. 61/8767/2020.

It is said matter transformed from the writ petition to be a petition before the Central Administrative Tribunal (CAT), Jammu Bench which came to be adjudicated by the Central Administrative Tribunal, Jammu Bench in terms of its judgment dated 23.11.2011 in terms whereof the Central Administrative Tribunal (CAT), Jammu Bench came to declare the selection and appointment of Om Raj Sombria & Virender Kumar, who figured as respondents No. 11 & 12 in SWP No. 2091/2009, as illegal and, accordingly, quashed while re-directing the selection and appointment of the candidates, namely, Jahangir Hussain & Manzoor Ahmed Mir, who figured as respondents No. 8 & 9 in SWP No. 2091/2009, to be in place of to be ousted two candidates/appointees, namely, Om Raj Sombria & Virender Kumar, and consequently re-drawing of the Wait List by placing the writ petitioner - Abhimanyu Pratap Singh Jamwal at serial number 4 in the Wait List Open Merit (OM) for the advertisement notification No. 01 of 2002 and on that basis to appoint the writ petitioner- Abhimanyu Pratap Singh Jamwal to the post of Naib Tehsildar notwithstanding the age bar which had come to set in because of long pendency of the matter till its final adjudication taking place in terms of judgment dated 23.11.2021.

It is against aforesaid adjudication of the Central Administrative Tribunal (CAT), Jammu Bench that first of the two writ petitions i.e. WP(C) No. 2796/2022 came to be preferred by two petitioners, namely, J&K Services Selection Board and the UT of Jammu & Kashmir. This writ petition WP(C) No. 2796/2022 was filed on 22.11.2022.

Later on writ, petition WP(C) No. 2225/2023 came to be preferred by the two petitioners, namely, Om Raj Sombria & Virender Kumar being to be affected selectees and appointees in terms of judgment dated 23.11.2022 of the Central Administrative Tribunal, Jammu Bench.

In the aforesaid two writ petitions, the original writ petitioner - Abhimanyu Pratap Singh Jamwal, figuring as the respondent No. 1 & respondent No. 11 respectively but for the sake of easy reference it is referred as the original writ petitioner in order to ward off confusion whereas the two writ petitioners i.e. Om Raj Sombria & Virender Kumar of writ petition WP(C) No. 2225/2023 to be referred as the respondents No. 11 & 12 of original SWP No. 2091/2009.

In WP(C) No. 2796/2022, two writ petitioners – J&K Services Selection Board & the UT of Jammu & Kashmir are questioning the judgment dated 23.11.2021 of the Central Administrative Tribunal (CAT), Jammu Bench on the grounds that two posts reserved for Handicap Category by reference to advertisement notice No. 01 of 2002 dated 26.04.2002 were required to be filled form the pool of posts in the Open Merit (OM) category in view of selection of RBA & ALC category candidates and those being the respondent No. 8 – Jahangir Hussain and the respondent No. 9- Manzoor Ahmed Mir in WP(C) No.2796/2022 getting selected under RBA & ALC category with Handicap Category tag as well.

The writ petitioners of WP(C) No.2796/2022 submit that there was no material before the Central Administrative Tribunal (CAT), Jammu Bench to fetch and record a finding that two posts reserved for Handicap Category were taken out of Open Merit (OM) category posts in the backdrop of the fact that in the advertisement notice No. 01 of 2002 dated 26.04.2002 for the Handicap Category, two posts were advertized for which a separate select list was issued for said two posts to which the respondent No. 8 – Jahangir Hussain and the respondent No. 9 – Manzoor Ahmed Mir of writ petition – WP(C) No. 2796/2022 got selected and, therefore, the respondent No. 1 – Abhimanyu Pratap Singh Jamwal, (the writ petitioner in SWP No. 2091/2009) being an Open Merit (OM) category candidate, could not have any grievance against the selection and appointment of two candidates belonging to Handicap Category, but this aspect was overlooked and not considered by the Central Administrative Tribunal (CAT), Jammu Bench.

It is pleaded that the Central Administrative Tribunal (CAT), Jammu Bench erred in its appreciation with respect to SRO-387 dated 01.12.2008 providing that in the event of a tie between/ amongst selectees order of merit to be determined in accordance with highest marks secured in viva-voce and also providing other contingencies related to the merit of competing candidates being found in a state of tie.

The two writ petitioners of WP(C) No. 2796/2022 are, thus, defending to say that the respondent No. 1 – Abhimanyu Pratap Singh Jamwal (the writ petitioner in SWP No. 2091/2009) was not subjected to any arbitrary or discriminatory treatment on the part of the petitioner No. 1 – J&K Services Selection Board in the matter of his placement at serial number 7 in the Wait List with respect to Open Merit (OM) category.

It is pleaded that the judgment of this Court in LPA(SW) No. 183/2016 titled “Shahid Nazir Vs State of J&K and others” was distinguishable to be not applicable to the case of the respondent No. 1-Abhimanyu Pratap Singh Jamwal (the writ petitioner in SWP No. 2091/2009) for the reason being that at the time of origin of the case of Shahid Nazir, the petitioner No. 1 – J&K Services Selection Board had come forward with J&K Services Selection Board (Business & Procedure) Regulations, 2013.

The two writ petitioners, namely, Om Raj Sombria & Virender Kumar of writ petition WP(C) No. 2225/2023 have come forward to salvage their selection and appointment setting out the grounds of challenge in para 12 of their writ petition.

The two writ petitioners of WP(C) No. 2225/2023 are coming forward to say that the Central Administrative Tribunal (CAT), Jammu Bench erred in its understanding and reasoning with respect to the advertisement notice No. 01 of 2002 dated 26.04.2002 which clearly provided that the two posts advertized under Handicap Category were not meant to be belonging to Open Merit (OM) category and that is the reasoning that they were advertized under the head ‘HC Category” and, therefore, there was no occasion for the Central Administrative Tribunal (CAT), Jammu Bench to hold that the writ respondents No. 9 – Jahangir Hussain and 10 – Manzoor Ahmed Mir in WP(C) No. 2225/2022 ought to have been accommodated as Handicap Category candidates by reference to their respective category of and in RBA & ALC pool so as to exclude the two petitioners – Om Raj Sombria & Virender Kumar of WP(C) No. 2225/2022 from their respective positions in said two categories of RBA & ALC on the basis whereof the two petitioners came to be selected and appointed.

The two writ petitioners – Om Raj Sombria & Virender Kumar of WP(C) No. 2225/2022 submit that SRO-294 was not in picture by reference to the advertisement notice No. 01 of 2002 dated 26.04.2002 and, therefore, its principle of horizontal reservation could not have been applied.

When this Court examines the impugned judgment dated 23.11.2021 of the Central Administrative Tribunal (CAT), Jammu Bench what comes out is that the action and stand of the writ petitioner No. 1 – J&K Services Selection Board of WP(C) No. 2796/2022 in consuming two posts from One Merit (OM) category for the accommodation of the writ respondents No. 8 – Jahangir Hussain & No. 9 – Manzoor Ahmed Mir in WP(C) No. 2796/2022, who are the writ respondents No. 9 & 10 in WP(C) No. 2225/2023 as being legally and constitutionally invalid on the reasoning that two candidates should have been placed by reference to their Handicap Category status in ALC & RBA category at the cost of two petitioners in WP(C) No. 2225/2023, namely, Om Raj Sombria & Virender Kumar, notwithstanding the fact that the merits of the two petitioners – Om Raj Sombria & Virender Kumar in figuring in the select list under RBA & ALC category being higher than that of the writ respondents No. 8 – Jahangir Hussain & No. 9 - Manzoor Hussain in WP(C) No. 2796/2022 and as respondents No. 9 & 10 in WP(C) No. 2225/2023.

The Central Administrative Tribunal (CAT), Jammu Bench has come up with a finding that the writ respondents No. 8 – Jahangir Hussain & No. 9 – Manzoor Ahmed Mir of WP(C) No. 2796/2022 and as the writ respondents No. 9 & 10 in WP(C) No. 2225/2023, as being the handicapped candidates as well, were wrongly placed and adjusted against Open Merit (OM) category whereas they should have been placed in ALC & RBA category to the exclusion of two petitioners, namely, Om Raj Sombria & Virender Kumar of WP(C) No. 2225/2023 and, therefore, the selection and appointment of two petitioners –Om Raj Sombria & Virender Kumar of WP(C) No. 2225/2023 being unwarranted was declared to be quashed. We do not find any error of judgment to this effect on the part of the Central Administrative Tribunal (CAT), Jammu Bench.

The respondent No. 1-Abhimanyu Pratap Singh Jamwal in WP(C) No. 2796/2022 (the writ petitioner in SWP No. 2091/2009) was relocated in the wait list of Open Merit (OM) category from serial number 7 to 4 by reference to advertisement notice No. 01 of 2002 dated 26.04.2002.

The respondent No. 1 – Abhimanyu Pratap Singh Jamwal (the writ petitioner of SWP No. 2091/2009) in his reply/objections to WP(C) No. 2796/2022 has defended the adjudication of the Central Administrative Tribunal (CAT), Jammu Bench by stating that the adjudication is in accordance with the facts and circumstances of the case as the two petitioners of WP(C) No. 2796/2022 have no locus-standi to assail the judgment dated 23.11.2021 of the Central Administrative Tribunal (CAT), Jammu Bench.

The writ respondent No. 1 – Abhimanyu Pratap Singh Jamwal in his reply/objections states that two posts of Naib Tehsildar from Open Merit (OM) category were made available to Jahangir Hussain & Manzoor Ahmed Mir, both of being handicapped status persons who were required to be adjusted in their respective reserved category of RBA & ALC, to the exclusion of Om Raj Sombria & Virender Kumar, the two petitioners of WP(C) No. 2225/2023 and in case the same would have been done, then Open Merit (OM) posts would have been 29 in number instead of 27.

The writ respondent No. 1 – Abhimanyu Pratap Singh Jamwal in his reply/objections has submitted that his grievance in the writ petition SWP No. 2091/2009 which later on came to be T.A. 61/8767/2020 before the Central Administrative Tribunal (CAT), Jammu Bench, had arisen out of erroneous application of SRO-387 dated 01.12.2008 dealing with the situation of tie of candidates in terms of their comparative merit. In the event of weightage being given to the marks in the written test, then the writ respondent No. 1 – Abhimanyu Pratap Singh Jamwal would have been relocated to serial number 4 in the wait list category of candidates instead of figuring at serial number 7.

On principle, we are in agreement with the case of the writ petitioner – Abhimanyu Pratap Singh Jamwal in SWP No. 2091/2009 and also in agreement with the judgment of the Central Administrative Tribunal (CAT), Jammu Bench but we find one blind spot, which cannot admit of an escape of our attention and consideration, in the adjudication of the Central Administrative Tribunal (CAT), Jammu Bench which is by relocation of the writ petitioner – Abhimanyu Pratap Singh Jamwal’s position at serial number 4 of the Wait List Open Merit (OM) relatable to advertisement notice No. 01 of 2002 dated 26.04.2002, how could there be a direction for holding the writ petitioner- Abhimanyu Pratap Singh Jamwal to be in the final select list, be it at serial number 28 and/or 29 in the Open Merit (OM) list, when there are three Wait List candidates ahead of the writ petitioner – Abhimanyu Pratap Singh Jamwal. The Central Administrative Tribunal (CAT), Jammu Bench has no where come up with a finding that Wait List candidates three in number at serial numbers 1, 2 & 3 have been inducted in the operation of Wait List and next immediate is the petitioner – Abhimanyu Pratap Singh Jamwal as being at serial number 4.

It is here we find that the adjudication of the Central Administrative Tribunal (CAT), Jammu Bench has gone off the mark rendering it to that extent amenable to correction and is, accordingly, corrected by directing the two petitioners in WP(C) No. 2796/2022 i.e. J&K Services Selection Board & the Union Territory of Jammu & Kashmir through its Revenue Department to operate the Wait List Open Merit (OM) by its merit position and in case of non-availability/non-option of the higher Wait List placed candidates by reference to the writ petitioner – Abhimanyu Pratap Singh Jamwal’s placement at serial number 4, then to declare the writ petitioner – Abhimanyu Pratap Singh Jamwal as selected against one of two posts of Open Merit (OM) category in addition to advertised 27 Open Merit (OM) posts, and effect the appointment of the writ petitioner- Abhimanyu Pratap Singh Jamwal accordingly, with notional benefits as envisaged by the judgment of the Central Administrative Tribunal (CAT), Jammu Bench but without disturbing the selection and appointment of the two petitioners, namely, Om Raj Sombria & Virender Kumar of WP(C) No. 2225/2023 by reference to their respective category.

In the event of the petitioner being entitled to be selected and appointed because of operation of the Wait List, then in case the post/s of 2002 is/are not available, then to appropriate any vacant post of Naib Tehsildar of any successive year/s and appoint the writ petitioner- Abhimanyu Pratap Singh Jamwal accordingly.

Needful compliance to be done at the end of the two petitioners i.e. J&K Services Selection Board & the Union Territory of Jammu & Kashmir through its Revenue Department within a period of three months from the date of passing of this judgment.

Both the writ petitions are, accordingly, disposed of.