Mohd Yousaf vs D/o Election Ut Of J&k on 31 December 2024

O R D E R

(Per: Mrs. Pragya Sahay Saksena, Administrative Member)

SWP No. 1018 of 2018 has been filed by the petitioner (Applicant) in the Hon’ble High Court of Jammu and Kashmir at Jammu. Thereafter, in terms of Section 29 of the Central Administrative Tribunals Act and in view of the Notification No. G.S.R. 317 (E) dated 28.05.2020 issued by the Central Government under Section 5(7) of the CAT Act, the record of Service Writ Petition No. 1018 of 2018 was ordered to be transferred by the Hon'ble J&K High Court at Jammu to this Tribunal on 22.07.2020 and renumbered as Transferred Application No. 3284 of 2020 (in short T.A.). Thereafter, an application was moved by the applicant for making some changes in the T.A., which was allowed.

2. Facts of the case as per modified T.A. are that the applicant applied in time with relevant documents for the post of Drawing Instructor in Technical Education Department under Scheduled Tribe Category in response to Advertisement Notice No. 6 of 2013 dated 10.05.2013. The Respondents issued Roll No. 1123621317 to the applicant under Open category. The applicant appeared in the written examination on 27.02.2018 with the same roll number. 2.1 It is further averred in the T.A. that applicant submitted a representation on 06.02.2018 to Respondents for placing him in Scheduled Tribe Category but the applicant has not been shown in ST category. Hence, aggrieved by the same, SWP No. 471 of 2018 was

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filed by the applicant before Hon’ble J&K High Court and the Hon’ble High Court disposed of the SWP with the direction to Respondents to treat the said writ petition as representation. Thereafter, vide order dated 30.11.2021, the Respondents rejected the claim of the applicant on the ground that the application form of the applicant was tampered with. It is also averred that the applicant was the only candidate belonging to the ST category and since the application of the applicant was in the custody of the Selection Board, the Respondents cannot blame the applicant for tampering of the record. The Respondents did not want to fill the ST category post with a ST candidate rather they wanted to fill it with general/ Open category candidate. It is also mentioned in the modified T.A. that the case of the applicant is squarely covered with the judgment of the Hon’ble Supreme Court titled ‘Ram Kumar Gijroya Vs. Delhi Subordinate Service Selection Board and another’ reported as 2016 (4) SCC 754.

3. Aggrieved by the order dated 30.11.2021, the following relief has been sought:-

(i) Certiorari: Quashing the order No. 349 SSB of 2021 dated 30.11.2021 being illegal, arbitrary, malafide, against the facts and law and concocted.

(ii) Certiorari: quashing the provisional short list for counselling and documents verification of the candidates as per the merit acquired in the written test for which CBT was held from 27.02.2018 issued vide Notice No. SSB/Secy/Set/2018/4960-64 dated 09.05.2018 by the

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respondents J&K SSRB being illegal, arbitrary, mala fide, discriminatory, contrary to the rules and is in violation of Articles 14 and 16 of the Constitution of India and also taking away the fundamental rights of the petitioner. And may also quashing the condition incorporated in the Notification No.6 of 2013 dated 10.05.2013 to the extent of 65% marks for the ST category for the post of Drawing Instructor in the Technical Education Department being illegal, arbitrary, malafide, discriminatory, contrary to the rules and law and also quashing the provisional short list of candidates called for counselling and documents verification vide above said notice. May also quashing the Roll No. slip issued vide No. 1123621317 to the petitioner to the extent of treating the petitioner in open category instead ST category for the post of Drawing Instructor in the Technical Education Department.

(iii) Mandamus: commanding the respondents to select and appoint the petitioner as Drawing Instructor in the J&K Technical Education Department Division Cadre Jammu in view of advertisement Notice dated 10.05.2013 under ST category retrospectively with all emoluments of service and may treat the petitioner being belonging to ST category for the above said post and may consider the case of the petitioner in view of the Supreme Court Judgment mentioned supra.

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(iv) Mandamus: commanding the respondents to call and permit the petitioner for counselling and documents verification as per the merit acquired in written test for which CBT was held from 27.02.2018 along with ST category candidates in view of Notice dated 09.05.2018 issued by the J&K SSRB and may treat the petitioner as belonging to ST Category for the post of Drawing Instructor in the Technical Education Deptt. Divisional Cadre Jammu in view of the Full Bench Judgment passed in case titled Competent Authority Examination J&K Vs Mahesh Kumar and another LPA (OW) 27/1994 decided on 28.04.2016. With further prayer commanding the respondents to select and appoint the petitioner as Drawing Instructor in the Technical Education Deptt. Divisional Cadre Jammu in view of the Advertisement Notice No. 6 of 203 dated 10.05.2013 under ST category.

(v) Mandamus: commanding the respondents to select and appoint the petitioner as Drawing Instructor in the Technical Education Deptt. Divisional Cadre Jammu in view of the Advertisement Notice No. 6 of 2013 dated 10.05.2013 under ST category and also commanding the respondents to relax the percentage of marks for the petitioner as considered earlier.

(vi) Mandamus : commanding the respondents not to treat the petitioner in open category and may treat him in

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ST category candidate and consider him for counselling and documents verification as per Notice No. SSB/Secy/Set/2018/4960-64 dated 09.05.2018 by the respondents J&K SSRB and not to appoint any other candidate against the post of Drawing Instructor in the Technical Education Deptt. Divisional Cadre Jammu and keep one post reserve under ST category of Drawing Instructor in the Technical Education Deptt. Divisional Cadre Jammu for the petitioner.

(vii) Prohibition: prohibiting the respondents from filling the post of Drawing Instructor in Technical Education Deptt. Divisional Cadre Jammu in view of Notification No.6 of 2013 dated 10.05.2013 advertised and keep reserve from ST category candidates.

4. Respondents, through their written submission have submitted that Jammu & Kashmir Service Selection Board (JKSSB) advertised various posts including the post of Drawing Instructor, Technical Education Department Divisional Cadre Jammu vide Advertisement Notice No. 06 of 2013 dated 10.05.2013 with total vacancies of 10 with breakup of 6 in OM, 2 in RBA and one each in SC and ST. After completion of selection process, the selection list was finalized and forwarded vide letter dated 09.01.2019 by JKSSB to the Indenting Department, wherein one post under ST category remained unfilled due to non-availability of eligible candidate.

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4.1. In the meantime, the applicant filed a writ petition before the Hon’ble J&K High Court that he applied under ST category but the Respondents considered him under Open Merit category. The Hon’ble High Court disposed of the writ petition with the direction to the Respondents to consider the claim of the petitioner by treating the writ petition as representation and take a decision thereon, strictly under rules.

4.2. It is further submitted that vide communication No. SSB/Sel/Secy/2018/M-05/18 dated 28.09.2018, the JKSSB referred the matter to the Director Forensic Science Laboratory J&K to verify whether OMR sheet of the applicant had been tampered with, particularly with regard to entry relating to the reserved category. The Forensic Science Laboratory vide Report No. FSL-175-DOC dated 17.10.2018 informed SSB that original OMR Sheet of this case has been examined with the help of all available scientific aides like illuminated magnifiers, stereo zoom microscope and UV light arrangements and following opinion has been arrived at as “examination of Red enclosed question category column in OMR Sheet stamped and marked as Q-1 under illuminated magnifiers, stereo zoom microscope and UV light arrangements reveals that Tampering/Obliteration has been observed in Category Column; the existing English letters S and T have been written later on over the successfully deciphered English letters O and M. Further, examination reveals that filled bubble in OM column of category item has been erased later on by using Physical/Chemical eraser.

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Examination of red enclosed questioned qualification column in Matric of OMR Sheet stamped and marked as Q-2 under illuminated magnifiers, stereo zoom microscope and UV light arrangements reveals that Tampering/Obliteration has been observed in qualification column of Matric; the existing digit 6 at units place; digit 2 at tens place and digit 2 at hundreds place in the marks obtained column has been written later on over the successfully deciphered digit 0 at units place; digit 0 at tens place and digit 5 at hundreds place. Further, examination reveals that the existing digit 0 at units place, digit 0 at tens place and digit 5 at hundreds place in the maximum marks column has been written later on over the successfully deciphered digit 6 at units place, digit 2 at tens place and digit 2 at hundreds place. No tampering/Obliteration has been observed in the percentage of marks column". A copy of the FSL report is placed on record. 4.3 It is further submitted that this report of FSL was considered by the J&K Services Selection Board in its 183rd Board meeting held on 24.06.2021, in compliance to the direction of the Hon’ble High Court of Jammu and as per recruitment rules in vogue, and considering the glaring discrepancies in the OMR sheet in the category column of the application form of the applicant, it was decided to treat the applicant under Open Merit category and his claim for being considered as Scheduled Tribe candidate was rejected. It is also submitted that selection process for the post of Drawing Instructor, Technical Education Department Divisional Cadre Jammu has been completed

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and the selection list has been forwarded to the Indenting Department.

5. Heard learned counsel for the applicant and the learned A.A.G. appearing for the Respondents and perused the records.

6. In the present case, the application form of the applicant has been examined by the Forensic Science Laboratory, J&K and their report shows that there is tampering of the application form of the applicant with regard to category of the candidate.

7. Since the main issue to be considered is whether the benefit of ST category is available to the applicant, the same cannot be granted to him in view of the clear report of the Forensic Science Laboratory to the effect that the application form of the applicant has been found to be tampered with by them especially with regard to ‘category classification’. Hence, the benefit of a tampered record cannot go to the applicant. Further, the applicant was issued admit card with Roll No. 1123621317 in Open Merit category and the applicant appeared with the same in the written examination. He approached the Court after the examination was over and not immediately after he noticed same and before appearing in the examination.

8. The applicant has claimed that his case is covered by the judgment of the Hon’ble Supreme Court in the case titled Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and another reported as 2016 (4) SCC 754. However, the facts of this case are different from that of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and another, wherein the

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Hon’ble Court held that the OBC certificate issued and submitted after the cut off date does not make the petitioner ineligible for appointment to the post. In contrast to that, in the present case, the application form has been found to be tampered with by the Forensic Science Laboratory J&K after detailed examination with latest equipments especially with regard to category classification.

9. In view of the observations made above, the Transferred Application is dismissed.

10. No order as to costs.

(Pragya Sahay Saksena)

(Rajinder Singh Dogra) Administrative Member

Judicial Member Poojasoni…