AIJAZ MUZAFAR RUNGA Vs. STATE

JUDGEMENT

(1.) The case of petitioner briefly put is that being eligible he responded to Notification No. 1 of 2008 dated 01.1.2008 issued by Deputy Commissioner, Badgam inviting applications for filling up of vacancies of Dental Surgeons in District Badgam on contractual basis. Selection panel was drawn up when selection process was complete. Petitioner figured at serial No. 5. However, he was not engaged, as he was found overage. Despite making representations to Government to the effect that similarly situated candidates have been considered, petitioner was not engaged. He, alongwith another candidate, approached this Court by filing S.W.P. No. 1738/2009. The writ petition was disposed of by issuing a writ of mandamus directing respondents to consider the claim of writ petitioners for according relaxation in upper age limit at par with similarly circumstanced persons and in the event of such relaxation being accorded, consider the writ petitioners for being appointed on contractual basis. Since no consideration was accorded to the case of petitioner herein, he filed contempt petition No. 478/2011 in which respondents filed statement of facts together with Government Order No. 12-GAD of 2012 dated 3.1.2012. It was pleaded by respondents that consideration had been accorded to the case of petitioner in light of aforesaid Government Order. Feeling aggrieved of aforesaid Government Order, petitioner has filed instant writ petition assailing the same as being arbitrary, illegal and violative of constitutional guarantees. Respondents 1 and 2, in their reply, pleaded that Deputy Commissioner, Badgam had initially forwarded a select list of 31 candidates for appointment on contractual basis as Dental Surgeons. However, only 26 names were forwarded to Health and Medical Education Department for issuance of orders of engagement. Petitioner did not figure in the list of 26 candidates recommended for engagement on the ground that five candidates including the petitioner had crossed upper age limit for entering into government service. Deputy Commissioner, Badgam was asked to explain position. He reported that five over-aged candidates had made it to the selection list by virtue of their superior position in inter se merit (basic merit + performance in viva voce). The matter was taken up with Health and Medical Education Department which recommended relaxation of upper age bar in favour of these candidates. However, Government did not find any merit for considering grant of relaxation in their upper age bar as they were neither exceptionally qualified nor outstanding candidates as mandated by Government Order No. 1500 GAD of 2000 dated 21.12.2000. Petitioner and another candidate filed S.W.P. No. 1738/2009 before this Court which was decided in their favour. Respondents were directed to consider and take decision on the claim of writ petitioners for relaxation of upper age bar and consequent appointment on contractual basis. The case was examined and consideration accorded to the case of instant petitioner. However, no new ground/justification was found which could warrant any change in the decision taken by Government. It is further pleaded that the petitioner was not similarly situated with those candidates in whose favour age relaxation was considered and granted. It is pointed out that in earlier cases relaxation granted was approximately for three years but in case of petitioner, relaxation required was exceeding six years as on 01.1.2012. It is further pleaded that after the enactment of Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, there is complete ban on contractual appointments. Respondents further pleaded that competent authority has already granted relaxation in upper age bar by 2 years, 4 months and 10 days in favour of petitioner for his contractual appointment as Dental Surgeon in District Kargil. He availed the said benefit and again applied in District Badgam where he secured a superior position in inter se merit. However, relaxation in upper age was not approved by the competent authority and the same has been rejected. In regard to respondent-4, it is pleaded that no relaxation had been sought by the selection/appointing authority in his case and no such relaxation was granted to respondent-4. It is vehemently denied that any relaxation was granted in upper age bar for six years. It is denied that the petitioner was similarly placed with those candidates in whose favour age relaxation was considered.

(2.) Respondents-1 and 2 have filed supplementary affidavit in support of their reply giving details of cases in which relaxation has been granted in upper age limit in respect of seven candidates (Dental Surgeons) belonging to different districts. It is deposed on oath that latest consideration to the case of petitioner has been accorded in the year 2012 but relaxation has not been agreed to as it involved relaxation of 6 years, 4 months and 10 days as on 01.1.2012.

(3.) Heard and considered.