Case: RAKESH BAKSHI Vs. THE STATE OF JAMMU AND KASHMIR

appellants appointment was, though, dismissed by a Single Judge, in appeal the Division Bench set aside the appointment of the appellants which in turn was set aside by Hon?ble Court. It is thereafter that the Writ Petition filed by the present writ petitioner which was filed in 2001 came to be taken up and dismissed by the Learned Single Judge and allowed by the Division Bench. In between, almost two decades, rolled by with the appellant?s continuing to work and the writ petitioner remaining unselected.10. There is no argument pressed by the learned counsel that in law, the decision of Division Bench is wrong in that the appellants were not holding the requisite qualification as on the cut-off date and the selection and appointment is bad in law. But the only point raised is having regard to the efflux of time and having regard to the equities, in the matter including the result of the earlier litigation, the three selections held after 1997, appellants not applying thereunder having been selected under the impugned selection and appellant having become age barred and still further, the claim of the writ petitioner for appointment being meritless having regard to the Low Marks scored by him, the services of the appellants should not be dispensed with.11. Having regard to the case law cited by the appellant i.e. Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another; 1997 (4) SCC 18 , the facts may be noticed. On 01.07.1997, an advertisement was published for the post of Junior Engineers (Elect) Grade II in the State of Jammu and Kashmir. 33 persons had not passed BE Civil Examination before the last date and their results were declared after the cut-off date. They came to be interviewed, pursuant to instructions and they were selected. This came to be challenged. The Writ Petition was dismissed. No appeal was filed against the order. However, another Writ Petition came to be filed questioning the selection of 33 respondents on the very same grounds. The Writ Petition was dismissed. However, the Division Bench took the view that the 33 respondents could not have been allowed to compete for the post as they did not possess the requisite qualification. The appointment of the 33 persons was not set aside and they were ordered to be treated as junior to those selected candidates who were fully qualified on the prescribed date. In other words, the candidates who were not qualified on the prescribed date were to be treated as junior en block to the fully qualified selected candidates. The 33 respondents appealed before this Court. The majority held that permitting the 33 candidates to appear for the interview was not impermissible. The other learned Judge, however, took the view that the 33 candidates should not have been allowed to appear. Even then, however, the learned Single Judge agreed with the majority that the seniority of the 33 candidates need not be disturbed in the particular facts and circumstances. The result was that three learned Judges allowed the appeal preferred by the 33 respondents and set aside the judgment of the Division Bench. The original writ petitioners filed for Review. The judgment rendered in the review is the reported judgment. The Court found that the majority judgment was unsustainable in law. It is reiterated that the person who clears the prescribed qualification after the cut-off date cannot be considered qualified and their applications ought to have been rejected.12. Thereafter, in paragraph 8, the Court addresses the question relating to the relief to be granted in the review applications. The learned Counsel for the 33 respondents in the review petition who were the appellants before this Court inter alia pointed out the dismissal of the earlier writ petition and that the said order had become final. Even the later writ petitioners (filed by four candidates), it was pointed out, had not sued in a representative capacity. Other aspects including that the 33 persons had completed 13 years, was pointed out. The Court held as follows: -?Having given our anxious and earnest consideration to the question and keeping in view the fact that we are sitting in review jurisdiction and that this particular aspect is a matter lying within the discretion of the Court, we do not think it appropriate to interfere with the unanimous opinion of the three learned Judges of this Court on this aspect. It is true that the Division Bench of the High Court had granted the relief not only to the four review petitioners/writ petitioners but to all the candidates falling in that category yet we cannot ignore the fact that even Sahai, J. who agreed with the review petitioners on the first issue, thought it just and proper not to disturb the inter-se seniority between these two groups of selected candidates. The said seniority was determined by the selecting Authority. Though certain allegations are made with respect to the fairness of the process of selection, that issue is not open in these review applications nor was it gone into by this court in the civil appeals.?13. Having heard learned Counsel for the parties, we are inclined to grant relief to the appellants against their being ousted after serving for nearly two decades. We are not for a moment doubting the correctness of the reasoning of the Division Bench in this case, that eligibility of the candidates must be decided with reference to the qualification possessed as on the cut-off date and the qualification acquired later in point of time cannot make a candidate eligible. However, having regard to the facts obtaining in this case, which we have set out and also the manner in which this Court has decided the matter culminating in 1997 (4) SCC 18 the interests of justice would require the interference with the judgment of the Division bench. We particularly note that as far as the writ petitioner is concerned more than the efflux of time, the fact is that he cannot possibly secure selection.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]10. There is no argument pressed by the learned counsel that in law, the decision of Division Bench is wrong in that the appellants were not holding the requisite qualification as on the cut-off date and the selection and appointment is bad in law. But the only point raised is having regard to the efflux of time and having regard to the equities, in the matter including the result of the earlier litigation, the three selections held after 1997, appellants not applying thereunder having been selected under the impugned selection and appellant having become age barred and still further, the claim of the writ petitioner for appointment being meritless having regard to the Low Marks scored by him, the services of the appellants should not be dispensed with.Having heard learned Counsel for the parties, we are inclined to grant relief to the appellants against their being ousted after serving for nearly two decades. We are not for a moment doubting the correctness of the reasoning of the Division Bench in this case, that eligibility of the candidates must be decided with reference to the qualification possessed as on the cut-off date and the qualification acquired later in point of time cannot make a candidate eligible. However, having regard to the facts obtaining in this case, which we have set out and also the manner in which this Court has decided the matter culminating in 1997 (4) SCC 18   the interests of justice would require the interference with the judgment of the Division bench. We particularly note that as far as the writ petitioner is concerned more than the efflux of time, the fact is that he cannot possibly secure selection.