GH RASOOL SHEIKH Vs. STATE OF J&K
LAWS(J&K)-1999-3-17
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 01,1999

Gh Rasool Sheikh Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) STATE Recruitment Board advertised the posts of Junior Engineers Civil in June, 1982, petitioners alongwith others applied. They were selected on test/interview by the recruitment Board alongwith other candidates. The Government on the recommendation of the recruitment board appointed 54 candidates in the first instance vide order No.36 of 1984 on 17 -1 -1984 and another 96 candidates including the petitioners vide order No. 633 of 1984 on 5 -9 -1984. Petitioners are figuring at Sr. No.73 and 79 on the select list. Initially petitioners believed that the seniority given to them on the select/appointment list was as per their respective merit, but latter on they came to know that all the candidates from Sr. No.45 to 82 have earned same merit/marks, namely 100.
(2.) CONSIDERING their age, they should have figured at Sr. No.46 and 47 of the select/merit list. They have been wrongly placed at Serial No.73 -and 79 on the merit list/selection list. The list was kept confidential and petitioners had no access to it. It was only in October, 1994, that they came to know about this position through some other two candidates who are litigating with the respondents. Keeping the list confidential, was a malafide exercise with a view to give benefit to those who influenced the selection committee, in the seniority list issued by the Department Vide No.42 of 92 dated 11 -2 -1992 based as it is on the above merit/ selection list, other selectors/appointees have been shown senior to the petitioners, though having regard to the age of the appointees petitioners, should have figured higher up in seniority -placement. The petitioners in any case should have figured at Sr.No.46 and 47 of the seniority list instead of issuing the appointment orders in two instalments with a gap of over 7 1/2 months, the appointment orders should have been issued in one go at one and the same time after the seniority of the petitioners was shown at Sr.No.46 and 47. If the seniority had to be fixed with reference to acquisition of B.E. Degree qualification, the minimum qualification required for the post of Junior Engineer Civil, then the petitioners should have figured at serial 52 and 53 As there is an error apparent on the face of record and petitioners having failed to rectify the record, petitioners fundamental rights have been violated. The Government has illegally appointed 1st. batch of Junior Engineers in January, 84, when the petitioners were included in the second batch of engineers appointed in September, 1984. The petitioners would have been promoted had they been shown at the proper place on the merit list and seniority list. The petitioners filed representation on the subject on 28 -10 -1994 and same is still pending with the Government. On these pleaded grounds appropriate writ is prayed for correction of the selection and merit list after showing petitioners at Sr. No.46 and 47 instead at Serial 73 and 79 on the list and forgiving petitioners consequential benefits including promotion to the post of Assistant Executive Engineers from Feb. 1993 allegedly flowing from the prayed correction in merit list and the seniority list.
(3.) COUNTER has not been filed. Respondents have failed to appear and defend. I have heard the counsel for the petitioner. Mr. Z. A. Shah, submits that the candidates from Sr. No. 45 to 82 in the merit list Annexure P1 have all obtained 100 marks therefore, there was no basis or criteria to measure the intense placement of the candidates from serial 45 to 82 on the merit list. Merit position of the concerned candidates cannot be said to have been determined. Each candidate having obtained 100 marks, is equally placed merit -wise. Once the merit was equal, it was incumbent upon the respondents to draw the select list either with reference to the age of the candidates or the date of obtaining B.E. Qualification. However, neither course has been followed. The seniority list based on drawn merit list is also bad. The petitioners should have fixed placement in the merit list on the criteria of age in which case they should have figured at serial 46 and 47 and if the date of acquisition of B.E. qualification was the criteria, then they should have figured at Serial 52 and 53. As the seniority list has been prepared on the merit list framed by the Recruitment Board, respondent No.3, therefore, they have suffered in the matter of promotion too. The counsel also submits that the selection list has been prepared malafide in order to accommodate and give higher places in seniority and better service benefits to those who influenced the selection committee.;


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