Romesh Kumar vs D/o Forests Ut Of Jammu & Kashmir on 31 December 2024

1. Mohinder Singh & Ors. …Applicants (Advocate: - Mr. Abhinav Sharma Sr. Advocate with Saba Atiq) Versus

1. State of Jammu and Kashmir & Ors. …Respondents (Advocate:- Mr. Sudesh Magotra, AAG & Mr. Faheem Shokat Butt)

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Transferred Application No.5705/2021

Romesh Kumar …Applicant (Advocate: - Mr. Abhinav Sharma Sr. Advocate with Saba Atiq) Versus

1. State of Jammu and Kashmir & Ors. …Respondents (Advocate:- Mr. Sudesh Magotra, AAG & Mr. Faheem Shokat Butt)

O R D E R ( FINAL)

(Delivered by Hon’ble Mr. Rajinder Singh Dogra, Member-J)

1. After the reorganization of State of Jammu and Kashmir into Union Territory of Jammu & Kashmir and Ladakh and in view of Notification No.G.S.R. 267(E) dated 29.04.2020 read with Notification No.G.S.R. 317(E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training), the jurisdiction to adjudicate upon the lis regarding service disputes of the employees of U.T of J&K and Ladakh was conferred upon this Tribunal and while considering the said facts, the records of

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aforesaid writ petitions bearing SWP No.2617/2012 and SWP No.3082/2015 were ordered to be transferred by the Hon’ble High Court to this Tribunal on 12.04.2021 and upon receiving the record the said writ petitions are re-numbered as Transferred Application No.5807/2021 and Transferred Application No.5705/2021. Both the Transferred Applications were taken together by this Tribunal for the final adjudication

2. The applicants had initially approached the Hon’ble High Court of Jammu & Kashmir at Jammu by filing two separate writ petitions bearing SWP No.2617/2012 titled Mohinder Singh & Ors V/s State of J&K & Ors. and SWP No.3082/2015 titled Romesh Kumar V/s State of J&K & Ors. seeking following relief: - SWP No.2617/2012

(i) Writ of certiorari seeking quashing of Govt. Order No.296- FST of 2012 dated 30.07.2012 and selection/appointment of private respondents No.05 to 155 being illegal, arbitrary and contrary to the direction of Hon’ble Division Bench dated 26.04.2006 passed in LPA No.55/2005.

(ii) Writ of mandamus commanding the respondents to appoint the petitioners as Forest Protection Force Guards in District Doda with all consequential benefits.

SWP No.3082/2015

(i) Writ of certiorari seeking quashing of Govt. Order No.296- FST of 2012 dated 30.07.2012 and selection/appointment of private respondents No.05 to 20 being illegal, arbitrary and

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contrary to the direction of Hon’ble Division Bench dated 26.04.2006 passed in LPA No.55/2005.

(ii) Writ of mandamus commanding the respondents to appoint the petitioner as Forest Protection Force Guard in District Doda with all consequential benefits.

3. In view of similar factual matrix and the controversy involved in the aforesaid matters, the same were clubbed together by the Hon’ble High Court for common adjudication.

4. Brief of the cases in nutshell taken by learned senior Counsel for the applicant reiterated in both TAs are summarized as under: - i) That the petitioner in TA 5745/2021 had applied against Advt. notice No.3 dated 24.12.1996 issued by SSRB for the post of Forest Protection Force Guard and subsequently appeared in the interview conducted by the SSRB. A special selection committee framed by SSRB, Jammu and after short listing 1714 candidates participated in further process. ii) That 1714 candidates were finally put to measurement, walk test and interview and out of 1714 candidates a select list for 158 candidates was issued on 28.04.2000. The name of the petitioner was shown in the selection list issued by SSRB, Jammu in the year 2000.

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iii) That after the publication of final select list on the complaint of one political activist an FIR No. 06/2001 at Police Station Vigilance Organization, Jammu was registered and matter was ultimately placed before the State cabinet and it was decided that barring 11 candidates appointments letters would be issued to all the candidates figuring in the final select list recommended by SSRB.

iv) That the Director Forest Protection Force, J&K Govt. Srinagar issued appointment order in favour of the petitioner vide his letter dated 24.10.2000 and petitioner was shown at S. No. 90 of the said select list.

v) That petitioner was deputed to undergo training (Arms & Ammunition) at Punjab Police Academy Phillaur and Training School Doomi, Akhnoor and was further deputed to undergo training to Soil Conservation Training School, Miran Sahib.

vi) That on the On the report of Vigilance Organization conducted in pursuance of FIR No. 6/2001 and unfortunately when the petitioner was under going a

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fresher course at Miran Sahib the Govt. of Jammu and Kashmir without any opportunity of hearing notice cancelled the selection of the petitioner along with other candidates in the year 2003 vide Govt. Order No. 08- GAD of 2003 dated 03.01.2003.

vii) That the order of the Govt. cancelling the appointment of the petitioner as well as other candidates was challenged before the Hon'ble High Court through SWP No. 384/2003 titled Mohd. Haroon Bhat & Ors. V/s State of J&K & Ors. Which were dismissed by Honble High Court.

viii) That the petitioner and other candidates filed Letters Patent Appeal against the judgment of learned single judge dated 15.04.2005 and the appeals were registered and numbered as 55/2005 along with other appeal.

ix) That The Hon'ble Division Bench while setting aside the impugned judgment of the Learned Single Judge disposed of the appeals vide judgment dated 26.04.2006 and held as:-

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“ "That state respondents shall constitute a committee comprising of Chairman, Public Service Commission, Chief Secretary, Secretary, General Administration Department and Chairman SSRB within two weeks from the receipt of this order. This Committee shall undertake a fresh exercise of examining the selection record along with any relevant contemporaneous record including the allegations made by the non-selected candidates in their writ petitions as also the report of the Vigilance Organization on date(s) to be fixed by the Committed on their own for being given a hearing by the Committee in respect of the allegations made against them and their selection. Similarly, those non- selected candidates who had filed batch of writ petitions shall also be asked to appear before the Committee on their own if they are so advised for being accorded a hearing in support of their allegations on date to be fixed by the committee and notified in a public notice. If any of the appellants laid to appear on his own on the fixed dates, the committee shall not be obliged to re- summon him/her. For any further hearing. Such authority shall, thereafter, proceed to pass appropriate orders in the matter uninfluenced by anything said or

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expressed in the orders passed between the parties and more particularly, the appellants shall execute an undertaking before this Court to abide by that decision within one week. In case the State-respondent decides to quash and selection and cancel the appointments, it shall take further necessary steps to hold a fresh selection for the post of Forest Protection Guard and complete selection process within four months from the date of decision”.

x) That Govt. in pursuance to the directions of the Hon'ble High Court in LPA No. 55/20005 and other connected appeals constituted a committee comprising of PSC Chairman, chief secretary, Principal Seçy. GAD and SSRB Chairman. The Hon'ble Division bench directed the committee to undertake a fresh exercise to examine the selection record along with any relevant contemporaneous record including the allegation made the non-selected candidates in their writ petition as also the report of the vigilance organization.

i) In compliance to aforesaid directions, a committee of four members comprising of Chairman, Public Service Commission, Chief Secretary, Commissioner/Secretary

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GAD and Chairman, Service Selection Recruitment Board was constituted by Government vide government order No.651-GAD of 2006 dated 23.05.2006. The following were the terms of reference of the committee:- “a) The committee shall undertake a fresh exercise of examining the selection record alongwith any relevant contemporaneous record including the allegations made by the non-selected candidates in their petitions.

b) The committee shall also examine the report of the Vigilance Organization.

c) The committee will accord hearing to the non- selected candidates who had filed writ petitions.

d) The committee shall thereafter proceed to pass appropriate orders in the matter uninfluenced by anything said or expressed in the orders passed between the parties till date.”

xi) That committee recommended the re-drawn selection list which was published in newspaper in Dec. 2006 in which 24 candidates including the petitioner hereinabove, who had served the department for more than 2 years and had undergone Arms training from Punjab Police Academy were ignored.

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xii) That the FIR No. 6/2001 registered at Vigilance Police Station was not challenged in court of law because as per Vigilance Commission the offence was not proved. The FIR No. 6 of 2001 has been order to be closed as not proved by the Learned Special Judge Anti Corruption Court, Jammu vide order dated 19.05.2007.

xiii) That the petitioner thereafter made a representation to Hon'ble Chief Minister. It is submitted that in pursuance to the representation under Secy. to Govt. Forest Department vide OM No. FSI/FTF/14/2007 dated 10.09.2007 requested the Financial Commissioner Home to kindly take necessary action in the matter accordingly and states as:- “"The GAD has returned the case and has observed that the department is advised to approach the Home Department so that an on spot recruitment really at Doda is arranged for recruitment / appointment as Police Constable of the ousted forest guards, forest protection force, district cadre, Jammu, as these ousted forest guards have undergone training at Punjab Police Academy Phillour including the weapon training. If the candidates are found fit otherwise the appointment,

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wherever necessary, relaxation in age can be considered”.

xiv) That applicants represented to the respondents for consideration of their appointment. The Director Forest Protection Force vide letter No.DFPF/FG/Doda/41- B/3590 dated 15.03.2007 conveyed to Special Secretary to Govt., J&K Forest Department that 49 posts of Forest Protection Guards are lying vacant because the candidates have not joined against these posts. It is further submitted that no further recruitment has been made by the respondents against the post of Forest Protection Force Guard.

xv) That Inaction on the part of respondents, compelled the applicants to invoke the writ jurisdiction of Hon’ble High Court through SWP No.1407/2009 and SWP No.2480/2010. The Hon’ble High Court after examining the stand of the respondents disposed of the writ petitions with the directions to the respondents to accord consideration to the case set up by the applicants in accordance with Rules and take a decision in the matter within eight weeks.

ii) That The official respondents passed Govt. Order No.296- FST of 2012 dated 30.07.2012 whereby claim of

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applicants has been rejected which has been assailed by applicants through the medium of aforesaid Transferred Applications.

5. Mr. Abhinav Sharrma, learned senior counsel with Ms. Saba Atiq appearing for the applicants argued that the Committee constituted on the directions of Hon’ble Division Bench in LPA No.55/2005 have not followed the verdict and directions in its right prospective and no opportunity of being heard was provided to the applicants. It is submitted that the Committee contrary to the directions of Hon’ble Division Bench invited 04 selected and ousted candidates out of all the selected and ousted candidates and who posed themselves to be the leaders of the ousted candidates and as a result of which they were selected and found place in the re-drawn list of candidates. The learned Sr. Counsel submitted that the persons who appeared before the Committee as the representatives of applicants have no authorization to represent them before the Committee. Thus the principles of natural justice have not been complied with because as per the Judgment of Hon’ble Division Bench right of hearing was to be provided to each and every candidate. Had the Committee applied its mind and right of hearing would have been provided to each and every candidate as per the Judgment

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of Hon’ble Division Bench the Committee would have not selected those candidates in the re-drawn list who have not joined at all as per the selection list of 2000. This authenticate the fact that these candidates were not physically present before the Committee but even their names figured in the re-drawn selection list. Even dead persons who have died two/five years before the date of appearance before the Committee have also been shown in the re-drawn list submitted by the Committee. The name of one of the candidate who is no more in this World but even then the Committee has placed him at S.No.18 in the fresh list of RBA namely Bhushan Singh S/o Krishan Raj R/o Goila, Thathri. In this regard the death certificate has been enclosed with the T.A (Annexure-O to T.A No.5807/2021).

6. The learned Sr. Counsel further argued that once the respondents have taken the inquiry report of Vigilance Organization as a gospel truth then there was no occasion to select 03 candidates out of those 11 eleven candidates who were pinpointed in the vigilance report for inclusion of their names in the award roll on the basis of interpolation and their appointment was specifically stop by the Government vide letter dated 23.10.2000 written to Director Forest Protection Force, Srinagar with instructions not to issue appointment order in their favour and in the same communication the approval for issuance

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of appointment letter to other selected candidates was granted and applicants were appointed in pursuance to that approval granted by the Government

7. The learned counsel appearing for applicants would further submit that the entire genesis of the matter starts from registration of FIR No.06 of 2001 by the Vigilance Organization but the said FIR has been closed and closure report has been presented before the Court of law and has been accepted by the Hon’ble Court. Since the Vigilance Organization failed to prove its case which was the reason for cancellation of the entire appointments, as such no fault can be found with respect to selection of applicants and there was no reason with the respondent to do away with the appointment of applicants.

8. The learned counsel of applicants pointed out the name of private respondents in T.A No.5705/2021 to indicate the irregularities with regard to their selection. It is stated that private respondent No.5 (Altaf Hussain) was shown selected in the first as well as second re-drawn list of 2007 figuring at S.No.58 having matric qualification with 354/850 marks i.e. 41.64% but in the award sheet his matric percentage has shown as 65.17%. Similarly one of the selected candidate namely Jai Krishan falling under ST Category is shown selected at S.No.13 in re-drawn list and in the award sheet of supplementary list

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figuring at S.No.177, whereas, the said selected candidate is having qualification of matriculation but Selection Committee has shown his qualification as 10+2 and by virtue of this qualification he has been given 02 marks of additional qualification by awarding 02 extra marks showing the grave illegality committed by the Selection Committee by not examining the selected record as per the directions passed by the Hon’ble Division Bench. One candidate namely Abdul Rehman figuring at S.No.960 of the award sheet has got actual points as 42.56 having more marks than the candidate namely Nissar Ahmed figuring at S.No.31 in the re-drawn list has got only 42.36 points and is selected whereas Abdul Rehman has got 42.56 points is not selected which is another illegality made by the Committee. There was also no justification with the Committee to select and appoint respondents with fluid in the names like Anoop Kumar S/o Krishan Dutt and Din Mohd S/o Altaf Din.

9. The learned senior counsel of applicants further argued that there are number of vacancies of Forest Protection Force Guards lying vacant with the Department and no recruitment process has been initiated by the Department to fill these vacancies, as such the applicants who have already served for more than three

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years and have undergone Arms Training can be adjusted against these posts

10. Per-contra, learned counsel for the respondent No.4 argued that on the directions of Hon’ble Division Bench the Committee was constituted vide Govt. Order No.651-GAD of 2006. The Committee informed all the concerned candidates (selected and non-selected) through a notice published in the leading newspaper of the State to present their cases before the Committee. The Committee after considering all issues and hearing all the concerned submitted its report. The recommendation of the Committee was placed before the State Cabinet. The Cabinet vide Decision No.272/16 dated 18.12.2006 agreed to implement the recommendation of the Committee and in light of the recommendations of the Committee and decision of the Cabinet, the Forest Department vide letter dated 12.01.2007 requested the Chairman Service Selection Board to send the record of the candidates to be re- appointed and the revised/ re-drawn select list of 158 candidates was forwarded by the Service Selection Board on 15.01.2007, also informing that one candidate namely Mr. Haq Nawaz Ahmed Qazi figuring in open merit category in the said list has already expired, therefore, his name should be deleted from the list. The re-drawn list received from SSB was forwarded to the

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Director, Forest Protection Force on 25.01.2007 for issuance of appointment orders. The learned counsel further argued that the Committee has complied with the directions passed by the Hon’ble Division Bench of J&K High Court and the cases of the applicant have been examined further in the Forest Department in light of the orders of the Hon’ble Court and opinion of Law, Justice & Parliamentary Affairs Department and it has been found that re-appointment of these Guards in the Department of Forest Protection Force does not merit any consideration.

11. The learned counsel appearing for private respondents submitted that the applicants have not chosen to assail the recommendations of the Committee either in the earlier writ petition or in the instant T.As, as such the instant T.As are not maintainable under law. It is further submitted that the Committee gave hearing to all the candidates on 01.07.2006 and the recommendations were made to J&K SSRB in January, 2007 for re-appointing the selected candidates and during the intervening period of seven months applicants have not said anything regarding non-adoption of principle of natural justice and it is only when they did not find their names in the re-drawn selection list they start making hue and cry. The learned counsel further submitted that pursuant to directions of Hon’ble Division Bench passed in LPA No.55/2005 alongwith

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connected matters, the applicants have submitted their undertaking before the Registrar Judicial of the Hon’ble High Court wherein they have undertaken that they shall abide by the decision of the Committee and now they cannot turn around merely due to fact that they did not find favour with the Committee. It is further argued that the T.As for the prayer of quashing the appointment of private respondents is not maintainable because the applicants have not chosen to assail their appointments in earlier four writ petitions bearing SWP No.1407/2009, SWP No.2480/2010, SWP No.2873/ 2010 & SWP No.2977/2010 wherein the only prayer of the applicants was seeking direction upon the respondents to reconsider their case for appointment as Forest Protection Force Guards against the available vacancies conveyed by Director, Forest Protection Force to Special Secretary to Govt. J&K Forest Department vide communication No.DFPF/FG/Doda/41-B/3590 dated 15.03.2007 and the Hon’ble High Court vide its order dated 22.10.2010, 14.12.2010 and 24.12.2010 disposed of aforesaid writ petitions. Thus the applicants cannot now assail the selection and appointment of private respondents when such prayer was available to them in the year 2010 and they have not chosen to assail the selection and appointment of private respondents and in subsequent writ petition they are legally

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barred to do so. Moreover, the private respondents were re- appointed in the year 2007 and the present T.As are filed in the year 2012 and 2015, thus clearly barred by delay and latches. The learned counsel relied upon Judgment of the Hon’ble Supreme Court reported as 2003 AIR (Supreme Court) 718 wherein the Hon’ble Court held that the prayer which was available at the earlier proceedings but not raised would be barred by the principle of constructive res-judicata when validity and legality of earlier proceedings/order has not been questioned and attained finality. In another Judgment of Hon’ble Supreme Court reported as 1973 AIR (Supreme Court) 1406 it is held that wherein an earlier petition the point has not been pressed and must be deemed to have been given up. Principle of constructive res-judicata applies in subsequent proceedings.

12. The learned counsel appearing for private respondents would further submit that even if the marks given to some candidates for their wrong qualification will be deducted, still they will be in the selection list and the applicants cannot be in the selection list as their merit are very low. It is further argued that since the private respondents are working from last 17 years and most of them are approaching the age of superannuation, as such they cannot be ousted at this stage.

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13. The respondent No.4 i.e. J&K Service Selection Board has filed the counter affidavit in T.A No.5807/2021 and submitted same argument mentioned above.

14. Heard the learned counsels appearing for the parties and Perused the record.

15. So far the challenge to selection and appointment of private respondents, we are of considered opinion that their appointment cannot be challenged by the applicants after prolonged delay of 05 & 07 years. The private respondents were appointed in the year 2007 and the instant T.As have been filed in the year 2012 and 2015. In this regard we are in complete agreement with the arguments advanced by the learned counsel of private respondents. We hold that the applicants have not thrown challenge to appointments of private respondents when they approached the Hon’ble High Court in the year 2010 and, therefore, they cannot assail the selection and appointment of private respondents in subsequent petitions and the same is clearly barred by principles of constructive res-judicata. Otherwise also the private respondents are working from last 17 years and most of them are in their fiftees, as such the equity also demands that their appointments cannot be disturbed at this stage. In Gujarat State Dy. Executive Engineers Associates V/s State of Gujarat, 1994 Supp (2) SCC 591 the Hon’ble

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Supreme Court recorded a finding that appointments given under the wait list were not in accordance with law. It, however, refused to set aside such appointments in view of length of service (five years and more). In Buddhi Nath Chaudhary V/s Abahi Kumar (2001) 3 SCC 328 the Hon’ble Supreme Court held the appointments improper but did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. The Supreme Court held that ‘we have extended equitable considerations to such selected candidates who have worked on the post for a long period’.

16. We cannot lost sight of the fact that nothing has been brought before us to counter the arguments of applicants that the principle of natural justice has not been followed by the Committee constituted on the directions of Hon’ble High Court. No record has been shown to us to suggest that the Committee has given hearing to all the candidates on 01.07.2006 when the Committee met at Batote. The right of hearing to the selected/non-selected candidates was one of the fundamental basis for re-drawing the selection list as directed by the Hon’ble High Court, the violation of which would vitiate the process. In absence of any record we have no other option except to accept this preposition as argued by learned counsel appearing for the

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applicants. We also noticed glaring irregularities made by the Committee as pointed out by the learned counsel of applicants. Even some persons are selected whose selection and appointment has been stopped by the Government pursuant to vigilance report and in the re-drawn selection list three of such persons found their place. It is also pointed to us that the qualification of some of the selected candidates have been wrongly shown as 10+2 instead of matric and in this way they got additional points. This shows non-application of mind by the Committee. There is also substance in the arguments of applicants that the entire premise is based upon FIR No.06/2001 registered by Vigilance Organization which was based upon complaint of large scale interpolation of marks by using fluid in the award sheet and based upon such report the entire selection and appointment of the year 2000 has been cancelled but the said FIR has been closed as not proved and the closure report has been accepted by the Court of Learned Special Judge Anti- Corruption, Jammu on 19.05.2007 which has been placed on record as Annexure-E to the T.A No.5087/2021. Thus the assertion of applicants that the tempering in the marks sheet is not proved has some substance. It is also brought to our notice that no new Recruitment has been taken place and number of vacancies are lying vacant in the Department due to non-joining

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of candidates who were selected in the re-drawn selection list and appointed in the year 2007.

17. The Hon’ble Supreme Court of India in case titled Tridip Kumar Dingal & Ors V/s State of West Bengal & Ors 2009

(1) SCC 768 considered the matter of equitable relief in view of passage of long time and instead disturbing the appointed candidates who have acquired experience, directions were issued for appointment of appellants in that case also.

18. For what has been observed, considered and analyzed hereinabove and the foregoing reasons, the T.A. succeeds and thus allowed and Order impugned bearing Govt. Order No.296- FST of 2012 dated 30.07.2012 is set aside. Respondents are further directed to appoint the applicants as forest protection force guards in Doda District against the available vacancies which are presently lying vacant. The applicants would be entitled to all the consequential benefits including notionally & seniority from the date their juniors/ counterparts were appointed. It is made clear that applicants will not be entitled for any back wages.

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19. The entire exercise is directed to be undertaken and completed within a period of eight weeks from the date of receipt of certified copy of the order.

20. No Order as to cost.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) MEMBER (A) MEMBER (J)

AK/PS/PK/RP/VS