STATE OF J&K Vs. PAWAN KUMAR GUPTA
LAWS(J&K)-2006-4-25
HIGH COURT OF JAMMU AND KASHMIR
Decided on April 25,2006

STATE OF JANDK Appellant
VERSUS
PAWAN KUMAR GUPTA Respondents

JUDGEMENT

KHAN, J. - (1.) THIS appeal is directed against Writ Court judgment dated 6.9.2004, allowing respondents writ petition, SWP No. 99/2003, and directing appellant to consider the respondent for appointment against the post of Lecturer of Bio -Chemistry in Health and Medical Education Department, un -influenced by the refusal of Public Service Commission to extend the validity period of the select panel.
(2.) THE appeal raises an important issue, viz. whether an Open Merit candidate could be considered and appointed against a reserved Scheduled Tribe category post in the facts and circumstances of the case.
(3.) THE matter is embroiled in the jungle of facts. The Public Service Commission issued Notification No. 4 -PSC of 1998 dated 31st March, 1998, inviting applications for two posts of Lecturers in Bio -Chemistry in Health and Medical Education Department, one in the Open Merit Category and the other in Scheduled Tribe Category. Respondent was a candidate for the post in Open Merit Category and one Shaista Goni in the Scheduled Tribe Category. The Commission completed the selection process and issued a select list on 21.10.1999, recommending one Subhiya Majid for the post in Open Merit category and placing the respondent at serial No. 1 in the wait list of this category. Consequently appointment was made for the advertised one post in Open Merit category, but no recommendation was made by the Commission for the Scheduled Tribe category post because of some pending litigation launched by the contender Shaista Goni. This post, thus, remained unfilled and is at the centre of controversy, with respondent, though an open merit category candidate, laying claim on this post on the strength of rule 11(2) of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979. It emerges that when this post remained stuck in the Commission, the Medical Education department requested the Commission vide communication -dated 3.12.1999 for lifting the restriction on this post so that the next candidate on the select panel could be appointed against the available vacancy in the interest of patient care as well as teaching of students undergoing training in the Medical College. The Commission replied to this communication and wrote back to say that the petition of Shaista Goni had been finally decided and her result showed that she was not suitable for appointment even by relaxed standards and that the Administrative department could now take necessary action for filling up the post under rules.;


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