DB sets-aside judgment quashing selection processes of JEs, SIs; remands back case of writ Court

STATE TIMES NEWS

JAMMU: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Tashi Rabstan and Justice Mohammad Akram Chowdhary set-aside judgememt of writ Court whereby the Court quashed entire selection process for posts of Junior Engineer (Jal Shakti Department) and Sub-Inspectors (Home Department). DB further ordered that writ petition is restored to its original number and petition is remitted back to the Single Judge with a request to decide the matter afresh. “Writ respondents through their counsel are directed to file objections/counter to the writ petition within two weeks, thereafter, rejoinder, if any, to be filed within next week. Registry is directed to list writ petition before the Single Judge on April 5, 2023, when the Single Judge is requested to finally decide the writ petition. Till then interim direction dated December 9, 2022 shall remain in force,” the Court directed.
This significant order has been passed in an appeal filed by Jammu & Kashmir Service Selection Board (JKSSB) against judgment of writ Court.
It is worthwhile to mention here that Court on December 8, 2022 directed Govt to constitute a high-level Committee headed by not less than a retired High Court Judge to enquire into the conduct of JKSSB for the their brazen irregularities/illegalities in changing the terms/conditions of tender, also as to what weighed with them to award a contract to conduct an examination by an organization which has previously facilitated malpractices in public examinations and accordingly appropriate action be initiated against those found guilty and also allowed the petition, with observations that contract awarded by JKSSB in favour of M/s Aptech Limited pursuant to e-NIT No.19 of 2022 dated 30.09.2022 for conduct of its various examinations through computer-based tests mode is quashed. Consequently, all selection processes viz Junior Engineer-civil (Jal Shakti Department) and Sub Inspector (Home Department) held by respondent in furtherance of aforementioned ‘award of contract to conduct examinations’ were also set aside/cancelled at whatever stage they were as on date.
DB observed that facts as projected in the writ petition are that Jammu and Kashmir Service Selection Board (JKSSB) be directed not to conduct the examination through M/s Aptech Limited being a blacklisted agency. It was averred in the writ petition that earlier also, JKSSB ignoring the successful bidder, i.e., ND Info Systems Pvt Ltd gave contract to Merittract Services Pvt. Ltd, a blacklisted firm, which conducted the examinations of Junior Engineer (Civil), Jal Shakti Department, Sub Inspector (Home Department) and also Finance Account Assistants in 2022. However, due to various malpractices occurred during the examinations in various centers and leakage of papers, the said examinations were scrapped by JKSSB. The matter was investigated by Central Bureau of Investigation, which also filed a charge sheet in these matters but despite that JKSSB did not held Merittrac Services Pvt Ltd. accountable or blacklisted the firm.
DB further observed that grievance of writ petitioners is that Jammu and Kashmir Service Selection Board overlooking this big scam issued fresh tender and after manipulating certain conditions, gave tender to M/S Aptech Ltd., which also has a tainted history, has already been accused of malpractices in various examinations and has also been blacklisted previously. Fearing unfair recruitment process, the writ petitioners first approached JKSSB by filing a representation on November 4, 2022, but all in vain, which forced the writ petitioners to file WP(C) No.2580/2022 seeking to quash e-tender Notice No.19 of 2022 dated September 30, 2022 for conduct of various examinations through Computer-based Test mode in favour of M/s Aptech Ltd.
DB observed that amongst other grounds, the preliminary ground raised by the appellants is that the Single Judge on the very first date of hearing proceeded to decide the writ petition finally without granting any opportunity to the appellants to file objections to the writ petition. counsel appearing for appellants argued that they were under the impression that the arguments were being heard for the purposes of deciding the application for interim relief, as the appellants were appearing before the Writ Court in the capacity of caveators. Further, at no point of time counsel for appellants-writ respondents had made a statement that the appellants-writ respondents did not want to file reply or that the matter be decided on the basis of record only, as the matters having huge repercussions and involving public interest cannot be decided on the basis of record only or without seeking formal objections of the parties. Therefore, the judgment impugned is contrary to the settled position of law as also in conflict with the Writ Proceedings Rule, 1997.
DB observed that since it was vehemently argued by the counsel for appellants that the writ petition was heard only for the limited purpose of granting interim relief as well as for the purpose of consideration of admission of the writ petition, and that the appellants had never understood that the matter was being heard for the purpose of final consideration, also in view of the provisions of Rules 14 and 15 of the Jammu & Kashmir Writ Proceedings Rules, 1997 it was not open for the Single Judge to decide the petition finally unless initially the Court had issued Rule Nisi, we deem it proper to refer to the provisions of Rules 14 & 15 Every writ petition after it has been admitted to register shall be placed for preliminary hearing before a Division Bench to be constituted by the Chief Justice, and after its admission shall ordinarily be heard by a judge sitting alone unless the bench admitting the petition directs otherwise. Notwithstanding anything here in before contained the Chief Justice may, if he deems necessary, authorize a Judge sitting alone to hear such petition for admission. Every petition or application shall be listed in the next regular cause list. However, in case of urgency, the party may approach the court for relaxation of this period. In such case the petition shall be listed as per the direction of the Chief Justice or any other judge specifically authorized in this behalf by him.
It will be noted that both the orders, of the Single and of the Division Bench, give the respondent some relief “without admitting the petition to hearing”. It is difficult to see how enforceable orders directing the respondent to a writ petition to do certain things can be passed upon a proceeding which, in express terms, is stated to have been not admitted. DB appreciate that the writ petition itself was disposed of at the admission stage by consent of parties. At that stage rule should have been issued to the present appellants and the judgment and order should have noted that service thereof was accepted on behalf of the present appellants by counsel who was present on their behalf. The final order would have made the rule absolute. The order passed by the Single Judge would thus have been passed upon a petition which was admitted and was on the file of the High Court. The order would have been enforceable. The Division Bench, when it modified the order of the Single Judge in appeal, made no modification in this behalf. The order of the Division Bench directing the present appellants to consider the respondent’s case was also, in express terms, passed upon a writ petition that was not admitted. “It is unfortunate that lapse will have some adverse effect upon the respondent both in terms of time and in terms of costs, but the present order, in our view, requires to be passed because the courts have to observe the procedural proprieties if their orders are to be enforceable,” observed DB,” adding, “We do not express any opinion whatsoever in regard to the merits of the case of either the appellants or the respondent.”
“Therefore, in view of what has been discussed, DB, without discussing the merits of the case, deem it proper to dispose of the appeals and remit the writ petition back to the Writ Court for deciding matter afresh and accordingly, the order and judgment impugned is hereby set aside, the writ petition is restored to its original number and the writ petition is remitted back to the Single Judge with a request to decide the matter afresh. Writ respondents through their counsel are directed to file objections/counter to the writ petition within two weeks from today, thereafter, rejoinder, if any, to be filed within next one week. Registry is directed to list the writ petition before the Single Judge on April 5, 2023, when the Single Judge is requested to finally decide the writ petition. Till then interim direction dated December 9, 2022 shall remain in force,” the Court directed.