Monty Kangotra vs TRANSPORT on 31 December 2024

O R D E R

Per Hon’ble Mr. Rajinder S Dogra, Member (J)

1. The fact of the case in a nutshell is that respondent No.3 vide advertisement notice No.01 of 2013 dated 16.2.2013, advertised 07 posts of Motor Vehicle Inspector, Divisional Cadre, Jammu in Respondent No.1 department out of which 04 were in the Open Merit category and 01 was in the ST category whereas, the other 02 were in the RBA and SC category respectively. In the same advertisement notice, some posts were advertised in Kashmir Province as well and number of posts advertised in the Kashmir Province were 08. The applicant applied for selection in Jammu Province as the post of Motor Vehicle Inspector is a Divisional Cadre post and the candidate belonging to the Jammu Division could apply in Jammu Division only. The selection process was conducted and the applicants participated but the selection list was not finalized. The applicants approached the Hon’ble High Court in SWP No. 624/2016 wherein the Hon’ble High Court directed the respondents to produce the result of the selection process pertaining to Jammu Province. So far as the Kashmir Province is concerned, the select list was finalized and appointments were also made in 2017. In the meantime, the respondents have issued another advertisement notice No. 04 of 2020 dated 16.12.2020 whereby the posts of Motor Vehicle Inspector both in Jammu Province as well as Kashmir

Province have been advertised. The SWP filed by the applicants before the Hon’ble High Court came to be transferred to CAT, Jammu Bench and renumbered as TA 1729/2020 and this Tribunal allowed the said TA vide order dated 20.7.2021 directing the respondents to consider the applicants for selection to the post of Motor Vehicle Inspector. Since the order passed by this Tribunal in TA 1729/2020 was not implemented by the respondents, the applicants went for CP 150/2022 which is still pending before this Tribunal. The selection process initiated pursuant to Advertisement Notice No. 04 of 2020 has been stayed by Hon’ble High Court of J&K vide interim order dated 3.11.2021. The said writ petition was dismissed by Hon’ble High Court vide order dated 16.8.2022. After dismissal of the said writ petition, the respondents initiated the process of selection in pursuance of the Advertisement Notice No. 04 of 2020 dated 16.12.2020. The respondents have already conducted the written examination and the result has also been declared vide notification dated 5.9.2022. The official Respondent service selection Board has filed its reply in O.A. No. 61/1347/2022 and has placed on record a copy of the order passed by respondent no.3 bearing order No. 309 SSB of 2022 dated 21.11.2022 stating that compliance to the judgement passed by this Hon'ble tribunal in TA No. 61/1729/2020 on

20.07.2021, the case of the applicants has been considered and rejected.

2. Hence the applicant has approached this Tribunal in the OA No. 1347 of 2022 seeking the following relief : i) Allow the instant application of the applicant along with costs; ii) Set aside the Advisement Notice No. 04 of 2020 dated 16.12.2020 to the extent the posts of Motor Vehicle Inspectors in the Motor Vehicle Department both in the Divisional Cadre Jammu and Divisional Cadre Kashmir, have been advertised; iii) Direct the respondents to not to finalize the select list of the Motor Vehicle Inspectors in pursuance to Advertisement Notice No. 04 of 2020 dated 16.12.2020 till such time, the selection process of Motor Vehicle Inspectors in Divisional Cadre Jammu as was initiated in pursuance to Advertisement Notice No. 01 of 2013 dated 16.2.2013 is finalized; iv) Any other relief which this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case may also be granted in favor of the applicants and against the respondents.

3. And their after being aggrieved of order dated 21.11.2022 applicants have filed OA 237 of 2023 seeking following relief:

i) costs. Allow the instant application of the applicants along with

ii) Quash the order No. 309 SSB of 2022 dated 21.11.2022 whereby case of the applicants for declaration of the result of the selection process and also for considering their cases for appointment as directed by this Hon'ble Tribunal vide its judgement dated 20.07.2021 passed in the 61/1729/2020, has been rejected.

iii) Direct the respondents to declare the result of the applicants which has been kept in the sealed covers against the post of Motor Vehicle Inspectors, Divisional Cadre Jammu advertised vide Advertisement Notification No. 01 of 2013 dated 16.02.2013.

4. The respondents have filed their reply stating that the claim of the applicants had been considered and rejected in the light of the direction passed by this Tribunal dated 6.9.2022 in TA 1729/2020. It is also submitted by the respondents that the J&K Services Selection board advertised various posts including the post of Motor Vehicle Inspector, Transport Department Divisional Cadre Jammu pursuant to advertisement notification No. 01 of 2013 dated 16.2.2013 and initiated the selection process and conducted the written examination for the aforesaid posts. In the meantime, a number of writ petitions were filed before the Hon’ble High Court. The case of the applicants was transferred to this Tribunal and re-numbered as TA 1729/2020 and disposed of vide order dated 20.7.2021 wherein this Tribunal held as under: “Accordingly, it is held that the qualification possessed by the applicants is similar to the qualification prescribed for Kashmir Division and accordingly, the respondents are directed to declare the result of the applicants and based on their result, consider the applicants for selection to the post of Motor Vehicle Inspector, Jammu Division, With the above direction, the TA is disposed of. No order as to costs.

While implementing the above order of this Tribunal, on perusal of the selection records pertaining to the post of Motor Vehicle Inspector advertised vide Notification No. 01 of 2013 under Item

No. 48 Divisional Cadre Jammu, it appeared that number of Service Writ Petitions have been filed before the Hon’ble High Court by the candidates who had applied for the said posts and obtained the interim direction for restraining the Board from declaring the result of the applicants. The result in respect of the posts in question has not been finalized so far and as such the selection process could not be completed. In the meantime GAD vide letter dated 12.4.2022 conveyed the Administrative Counsel Decision No. 1/1/2022 dated 29.1.2022 to the J&K Service Selection Board which provides as under : “All posts referred to J&K PSC/SSB prior to 31.10.2019 for which selections have not been finalized till date, as also the posts in which there are litigations and the cases are pending in the Hon’ble Courts, shall be deemed to have been withdrawn.”

The selection process therefore could not be concluded for the reasons stated above and after the Administrative Counsel Decision No. 1/1/2022 dated 29.1.2022, the posts for which selections have not been finalized are deemed to have been withdrawn. In view of the above, the respondents have prayed for dismissal of the present OA being devoid of any merit.

3. Learned Senior counsel for applicant filed the rejoinder and stated that respondents cannot be permitted to defeat the process of law by issuing administrative orders and withdrawing posts on selective basis where selection has been concluded for the Kashmir Division with respect to the same advertisement notice for the same posts. It is settled position of law that the vested or

accrued rights cannot be taken away or interfered with even by retrospective legislation except under exceptional circumstances and that too, when taking away of the accrued and vested right is not found violative of Article 14 and 16 of the Constitution. Further he submitted that it is not permissible for the Executive to apply such executive orders or circulars with retrospective effect, that too, when such retrospective effect has the effect of taking away the accrued and the vested rights and such action of the Executive, besides being without competence would also be hit by Article 14 and 16 of the Constitution.

4. Applicant counsel submitted that it is no longer res-integra that the decision of quasi-judicial Authorities like the Tribunal which are headed by a retired or sitting judge of the High Court are binding on the Executive and cannot be overruled or overturned by the Executive Authority by issuing Government order or executive instruction as has been held by Hon’ble Apex Court in Union of India Vs K.M. Sankarappa, (A (2001) 1 SCC 582).

5. Hon’ble Apex court in Union of India Vs K.M. Sankarappa has held as: “ 7. We are unable to accept the submission of the learned counsel. The Government has chosen to establish a quasi-judicial body which has been given the powers, inter alia, to decide the effect of the film on the public. Once a quasi-judicial body like the Appellate Tribunal, consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the Executive and the Government is concerned. To permit the

Executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi-judicial Board. It would amount to subjecting the decision of a quasi-judicial body to the scrutiny of the Executive. Under our Constitution the position is reverse. The Executive has to obey judicial orders. Thus, section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The Legislature may, in certain cases, overrule or nullify the judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the Executive or the Legislature cannot set at naught a judicial order. The Executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consists of experts and decides matters quasi- judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may apply to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal.

8. We fail to understand the apprehension expressed by the learned counsel that there may be a law-and-order situation. Once an Expert Body has considered the impact of the film on the public and has cleared the film, it is no excuse to say that there may be a law-and-order situation. It is for the concerned State Government to see that the law and order is maintained. In any democratic society there are bound to be divergent views. Merely because a small section of the society has a different view, from that as taken by the Tribunal, and choose to express their views by unlawful means would be no ground for the Executive to review or revise a decision of the Tribunal. In such a case, the clear duty of the Government is to ensure that law and order is maintained by taking appropriate actions against persons who choose to breach the law.”

6. Heard learned counsel for both the parties and perused the materials on record.

7. After hearing the rival arguments advanced by the learned counsel for both the parties, OA is allowed and the impugned order No. 309 SSB of 2022 dated 21.11.2022 is quashed qua the declaration of the result of the selection process with regard to the applicants. Respondents are directed to declare the result of the applicants and proceed further with the selection process. The entire exercise be completed within 03 months from the date of receipt of the copy of this order. There shall be no order as to costs.

(PRAGYA SAHAY SAKSENA) (RAJINDER SINGH DOGRA)

MEMBER (A) MEMBER (J)

Indrani/PPS