Serial No. 1
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 1422/2023
Union Territory of J&K and Anr. Appellant/Petitioner(s)
…
Through: Mr. Abdul Rashid Malik, Sr. AAG with
Mr. Mohd Younis Hafiz, Advocate
Vs.
Salma Hassan ...Respondent(s)
Through: Mr. Bhat Fayaz, Advocate
CORAM:
.
HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
PUNEET GUPTA, JUDGE
HON’BLE MR. JUSTICE
ORDER(ORAL)
31.10.2024
1. The petitioners, led by Union Territory of Jammu and Kashmir,
invoke the extraordinary jurisdiction vested in this Court under Article 226 of
th
the Constitution of India to quash an order and judgment dated 24 June, 2022,
passed by Central Administrative Trib
unal, Srinagar, (“the Tribunal”) in TA No.
4760/2020 (SWP No. 2250/2014), titled
“Salma Hassan v/s Union Territory
, whereby the Tribunal while allowing the
Jammu and Kashmir and others”
writ petition, has directed the petitioners herein to consider the respondent No. 1
in the Physically Handicapped Category (PHC) and place her name at
appropriate position in the select list as per her merit.
2. Briefly stated the facts leading to the filing of this writ petition,
as are gatherable from the judgment impugned, are that Jammu and Kashmir
Service Selection Board issued three advertisement notifications, including
notification No. 05 of 2013, for filling up the posts of teacher in various districts
of Kashmir valley. The posts of teacher borne on District Cadre Shopian figured
as item No. 470 in the notification. The Respondent No. 1 herein appears to
WP(C) 1422/2023 Page No. 1 of 5
have applied in all the three notifications, including Notification No. 05 of 2013,
but in the latter notification, as is revealed by the official records, the respondent
No. 1 had sought consideration under the Open Merit Category.
3. Be that as it may, the Jammu and Kashmir Service Selection
Board, concluded the selection process and published the select list for the posts
of teacher for District Cadre Shopian. In reference to advertisement notification
No. 05 of 2013, Respondents No. 2 and 3 figured at serial Nos. 12 and 36 in the
select list, selected under the RBA/HCH and OM/HCV categories, respectively.
The Respondent No. 2 was shown to have obtained 49.0150merit points,
whereas Respondent No. 3 was shown to have obtained 55.9607 merit points.
The selection of Respondents 2 and 3 was with a rider that recommendation of
appointment shall be subject to production and verification of genuineness of
Physically Handicapped Certificates.
4. The Respondent No. 1 who had applied under the Open Merit
Category, did not make it to the selection list due to her inferior merit viz-a-viz
the candidate last selected in the Open Merit Category. The claim of the
respondent No. 1 was that she was also entitled to be considered under the
HCV(Handicapped) category as well. The Respondent No. 1 filed SWP No.
2250/2014 before this Court, which on coming into force of the Jammu and
Kashmir Reorganization Act, 2019, came to be transferred to the Tribunal and
registered there as TA No. 4760/2020.
5. In the writ petition, which was transferred to the Tribunal, the
Respondent No. 1 claimed that Respondent No. 2 who figured at serial No. 12
on the select list, was having inferior merit compared to her, as she had been
awarded 55.59 points by the Board. With regard to the respondent No. 3, it was
contended by the respondent No. 1 that though respondent No. 3 had been
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selected under HCV category with merit higher than respondent No. 1, yet she
failed to produce the requisite category certificate and, therefore, the respondent
No. 1 who was candidate next in the order of merit should have been considered
against the said vacancy.
6. The writ petition was opposed by the Jammu and Kashmir
Service Selection Board, who in their reply affidavit took a categoric stand that
Respondent No. 1 had not sought consideration under the Physically
Handicapped Category in reference to the advertisement notification in question
rd th
and that there is a decision taken by the Board in its 73 meeting held on 27
January, 2011, chaired by the then chairman, that the candidates who do not
mark the relevant field of OMR application form, their application form shall be
liable to be rejected. The Tribunal after hearing the parties and perusal of the
material on record, found merit in the submissions made on behalf of the
Respondent No. 1 and allowed the TA with the directions as we have referred to
hereinabove.
7. Having heard learned counsel for the parties and perused the
material on record, we are of the considered view that the Respondent No. 1 (the
petitioner before the Tribunal), who has admittedly not applied under the
Physically Handicapped Category is not entitled to be considered against the
post, if any, left vacant in the said category. We have gone through the original
record produced by Mr. Abdul Rashid Malik, learned Senior AAG, a perusal
whereof shows that so far as the application form of Respondent No. 1 in
reference to advertisement notification No. 05 of 2013 is concerned, she has
sought consideration under the Open Merit Category. In reference to Clause 12
Column No. 1, she has categorically said NO to the question posed whether
“ ”
you have got 40% and above disability. It is because of this reason the
Respondent No. 1 was accorded consideration by the Board under the Open
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Merit Category. There is no dispute on facts that the Respondent No. 1 has not
made the grade under Open Merit Category, because of her inferior merit viz-a-
viz the candidates last selected in the Open Merit Category. Since the
Respondent No. 1 has not sought consideration under the category of Physically
Handicapped (visual), as such, there is no question of issuing a mandamus to the
Service Selection Board to accord her consideration under the said category.
The legal position in this regard is well settled.
8. The Tribunal has not adverted to this aspect of the matter and
has fallen in an error in holding that the category certificate subsequently
produced can also be taken into consideration and the Respondent No. 1 can be
offered the appointment against the vacancy which is left free due to non-
completion of requisite formalities/production of category certificate by the
Respondent No. 3. The reliance placed by the Tribunal on the Division Bench
judgment of this Court in LPA No. 62/2019 titled Jammu and Kashmir
“
Service Selection Board and Another Vs. Naseer Ahmad Tantrary and Ors.
” is
totally misplaced, as the controversy in the aforesaid case was entirely different.
It also needs to be clarified that the instant case is not a case of omission by the
candidate to fill up the particular field, but is a case where the candidate has
made an informed choice and sought consideration under the Open Merit
Category by declaring that she does not have the requisite disability of 40%.
9. Viewed from any angle, we do not find the judgment passed by
the Tribunal in conformity with the Law. The Tribunal has not understood the
controversy in right perspective and has fallen in error in holding the
Respondent No. 1 entitled to selection. The impugned judgment passed by the
Tribunal is set aside.
WP(C) 1422/2023 Page No. 4 of 5
10. As is the case projected before us, one of the candidates i.e.,
Respondent No. 3 has failed to produce the category certificate and has not been
appointed. The learned Senior Additional Advocate General appearing for the
petitioners submits that in the absence of a waiting list prepared for the
horizontal categories, the said vacancy has not been supplied. Mr. Mohd
Younis, Law Officer in the office of Jammu and Kashmir Service Selection
Board Srinagar, submits that may be the vacancy which remained unfilled due
to non-appointment of Respondent No. 3 has been filled up in the subsequent
selections. He submits that he cannot not make any statement in this regard.
11. Having regard to the facts and circumstances and taking it as a
peculiar case where the Respondent No. 3 has for some reasons which are not
forthcoming from the record has omitted to seek the benefit of a reserved
category of Handicapped despite the fact that she was possessing such
certificate and had sought such considerations with reference to other two
notifications, we deem it appropriate to direct the petitioners to sympathetically
consider the Respondent No. 1 against the post that has fallen vacant due to non-
appointment of Respondent No. 3 provided the said vacancy is still available
and there is no other legal impediment. We make it clear, that this direction
shall not be taken as a mandamus and has been issued with the hope and trust
that petitioners will show human face and address the plight of a physically
handicapped girl who has missed the bus under unfortunate circumstances.
12. Disposed of.
(PUNEET GUPTA) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
31.10.2024
Mir Arif
“ ”
Whether the order is reportable? Yes/No
MIR ARIF MANZOOR
I attest to the accuracy and
authenticity of this document
08.11.24
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