STATE OF J&K Vs. PAWAN KUMAR GUPTA

JUDGEMENT

(1.) THIS appeal is directed against Writ Court judgment dated 6.9.2004, allowing respondents writ petition, SWP No. 99/2003, and directing appellant to consider the respondent for appointment against the post of Lecturer of Bio -Chemistry in Health and Medical Education Department, un -influenced by the refusal of Public Service Commission to extend the validity period of the select panel.

(2.) THE appeal raises an important issue, viz. whether an Open Merit candidate could be considered and appointed against a reserved Scheduled Tribe category post in the facts and circumstances of the case.

(3.) THE matter is embroiled in the jungle of facts. The Public Service Commission issued Notification No. 4 -PSC of 1998 dated 31st March, 1998, inviting applications for two posts of Lecturers in Bio -Chemistry in Health and Medical Education Department, one in the Open Merit Category and the other in Scheduled Tribe Category. Respondent was a candidate for the post in Open Merit Category and one Shaista Goni in the Scheduled Tribe Category. The Commission completed the selection process and issued a select list on 21.10.1999, recommending one Subhiya Majid for the post in Open Merit category and placing the respondent at serial No. 1 in the wait list of this category. Consequently appointment was made for the advertised one post in Open Merit category, but no recommendation was made by the Commission for the Scheduled Tribe category post because of some pending litigation launched by the contender Shaista Goni. This post, thus, remained unfilled and is at the centre of controversy, with respondent, though an open merit category candidate, laying claim on this post on the strength of rule 11(2) of the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979.