University of Jammu Vs
T.S. Khan & Others
J U D G M E N T
Aftab Alam,J.
1.
Leave
granted.
2.
This
appeal is directed against the judgment passed by a Division Bench of the Jammu
& Kashmir High Court by which it has allowed the intra-court appeal filed by
respondent No.1, set aside the judgment and order passed by a single Judge of
the High Court dismissing his Writ Petition and directed the
appellant-University to give seniority to respondent No.1 on the post of Assistant
Registrar and to pay him the salary for that post from the date respondents 4 and
5 were appointed to the post of Assistant Registrar.
3.
The
recruitment to the post of Deputy Registrar is to be made in the ratio of 75% by
direct recruitment and 25% by promotion and for the post of Assistant Registrar
in the ratio of 50% by direct recruitment and 50% by promotion on the basis of
merit-cum-seniority from amongst eligible Section Officers and
P.A.1-cum-Stenographers in the ratio of 2:1 respectively. The appellant-University
on March 1, 1996 issued an advertisement for filling up the posts of Deputy Registrar
and Assistant Registrar by direct recruitment. The minimum qualification
prescribed for appointment as Assistant Registrar was as under:- "Assistant
Registrar A post-graduate Degree with at least 55% marks or its equivalent
grade. Other things being equal, preference may be given to candidate having knowledge
of computer applications. Note:- In service employees of the University holding
Bachelor's Degree in any discipline and fulfilling other prescribed conditions
shall be eligible to compete for appointment to the post of Assistant Deputy
Registrar."
4.
Respondent
No.1, who was an employee of the University, made applications both for the
posts of Deputy Registrar and Assistant Registrar. The Selection Committee, constituted
for the purpose, on a consideration of the merit, suitability, academic qualification,
experience and performance of the candidates in the interview prepared a select
list on May 26, 1996 in which respondent No.1 was placed at rank XIII. Respondents
4 and 5 were placed in the select list at ranks IV and V respectively. On the basis
of the select list, prepared by the Selection Committee, respondent Nos. 4 and 5
were appointed as Assistant Registrars. About two years later, respondent No.1 filed
a Writ Petition (Writ Petition No.1094 of 1998) seeking to challenge the
appointments made in pursuance of the advertisement and claiming that persons
inferior to him in qualification and merit were appointed on the two posts.
5.
The
Writ Petition was opposed by the University. The University took the stand that
under the University statute the eligibility for appointment as Assistant Registrar
for an in-service employee was that he should either be a Section Officer or
P.A.-cum-Stenographer and hold a Bachelor's degree in any discipline. It was pointed
out that respondent No.1 was neither a Section Officer nor a P.A.-cum-Steno. He
was working only as Head Assistant which post was one step lower to the post of
Section Officer in the University. It was, accordingly, submitted that respondent
No.1 was ineligible for appointment to the post of Assistant Registrar. It was further
pointed out that respondent No.1 had only 54.03% marks in the post-graduation degree
and for that reason too he was not eligible.
6.
On
a consideration of all the material facts and circumstances, a single Judge of
the High Court 5dismissed the Writ Petition by judgment and order dated May 31,
2001.
7.
Against
the judgment passed by the single Judge, respondent no.1 filed an intra-court
appeal (LPASW No.202/2001) which was allowed by the judgment and order dated April
24, 2009 by the Division Bench. The Division Bench found and held that respondent
No.1 was not eligible to be considered for the post of Deputy Registrar and, hence,
rejected his case in so far that post is concerned. Coming, however, to the post
of Assistant Registrar, the Division Bench took the view that Selection
Committee had not assigned any reason for putting respondent nos. 4 and 5 above
respondent No.1 in the select list. It seems to have called for the documents relating
to the selection process and, making its own assessment on going through the records,
made the impugned direction. In this regard, the Division Bench stated as
follows:- 6 "In the background of what we have stated, i.e. the appellant
was entitled, in terms of the notice, to be considered for appointment as Assistant
Registrar since he was holder of Bachelors Degree and an in-service employee of
the University, the appellant was entitled to compete for the post of Assistant
Registrar. The only thing that was required to be seen was whether the selection
committee assessed the merit of the appellant higher than respondent Nos.4 and 5.
We, accordingly, called for the records and the same were produced, which only suggested
preparation of a select list where the position of the appellant is below the respondents
4 and 5. No material has been produced before us to show that it is the selection
committee which upon assessment of merit of the appellant and respondent Nos. 4
and 5, found appellant was less meritorious than the respondent Nos. 4 and 5. We
wanted to know whether, apart from the select list, is there any other record which
would suggest assessment of such merit. There answer to our query was a clear no.
In the circumstances, the logical conclusion would be that there is nothing to
suggest that the merit of the appellant was assessed less better than the respondent
Nos. 4 and 5."
8.
It
appears to us that the Division Bench followed a procedure for which there is
no sanction in law. In the first place the Division Bench overlooked that according
to the statutory eligibility criterion only a Section Officer or a P.A.-cum-Stenographer
was eligible to be considered for appointment as Assistant Registrar and respondent
No.1 was a Head Assistant. Moreover, the Division Bench was in error in sitting
over the select list prepared by the Selection Committee as an Appellate
Authority and re-arranging the select list prepared by a Committee of experts on
the basis of its own valuation. The Division Bench seems to have overlooked
that while respondent Nos. 4 and 5 were at ranks IV and V in the select list, respondent
No.1 was at rank XIII and by brining him at par with respondent nos. 4 and 5,
the Division Bench clearly ignored the claims of the seven candidates who
figured in between from rank VI to XII and who were above respondent No.1.
9.
On
hearing counsel for the parties and on going through the materials on record, we
are satisfied that the impugned order passed by the Division Bench is wholly
unsustainable. It is, accordingly, set aside. The appeal is allowed but with no
order as to costs.
.......................................J.
(Aftab Alam)
.......................................J.
(R.M. Lodha)
New
Delhi;
April
8, 2011.
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