PERVAIZ AHMAD MAGREY Vs. JK SSRB AND ORS

JUDGEMENT

(1.) The order dated 18th of November, 2016 of the writ Court, passed in SWP No. 1698/2006 has been assailed by the medium of this LPA on the premise, inter alia, that the learned writ Court, while passing the impugned order, has erred in law, inasmuch as, the same has been passed in absence of the appellant writ petitioner. Learned counsel for the appellant writ petitioner states that during the months of July, 2016 upto the end of December, 2016, the valley of Kashmir was engulfed in an unparalleled and unprecedented state of affairs. There were continuous periods of hartals and Bandhs called by different Organizations. Learned counsel submits that the appellant hails from village Tral, which was the nerve centre of the unrest, was paralyzed due to the fact that the public transport was off the roads and the movement of the people from one place to the other was impossible. Learned counsel further submits that this very fact was fully covered by the local and national media. Learned counsel further states that, keeping the aforesaid situation in mind, the learned Single Judge was required to hear the appellant before dismissing the writ petition.

(2.) It has further been pleaded in the appeal that the impugned judgement is contrary to the facts of the case. The appellant had pleaded in the petition that the respondent No. 3 had been selected in the State cadre in the Open Merit category as also in the Divisional cadre under reserved category of RBA, even though he had not applied in either of the two cadres. The respondent Nos. 4 and 5 has been selected in the Open Merit category in the State cadre, when neither of them were short-listed nor were they called for the interview in terms of the notice attached to the writ petition. Even though the respondent Nos. 7 and 8 has been selected in the district cadre Kupwara and State cadre in the Open Merit category, yet neither of them had qualified the screening test and did not figure in the interview notification available on record. The judgement has been passed on the contention, set out by the respondents 1 &2 in their objections, that the appellant writ petitioner has failed to reach the cut off merit, and therefore, he had no case for the appointment of Driver in comparison to the respondents 3 to 8, who are shown to have obtained higher merit than him. This contention, according to the learned counsel for the appellant, is irrelevant, as the selection of the said respondents was contrary to the terms of the advertisement notice itself. Learned counsel further submits that the impugned judgement, has been passed on the grounds, which are not relevant to the subject matter of the lis, and it deserves to be set aside. The learned writ Court ought to have considered the grounds raised by the appellant writ petitioner in the petition and the rejoinder affidavit, particularly when such grounds had not been rebutted or controverted on the face of the repeated directions of the learned writ Court on multiple occasions directing the respodnents 1& 2 to produce the record, pertaining to the selection of the respondent Nos. 3 to 8 before the Court for perusal. Learned counsel states further that since the official respondents did not abide by the directions of the learned writ court to produce the relevant record, the learned Single Judge ought to have drawn the presumption in favour of the appellant and ought to have allowed the writ petition, quashing the selection of respondents 3 to 8. In the end the appellant has prayed that the appeal be allowed and the impugned order dated 18th November, 2016, of the learned Single Judge, be set aside.

(3.) Heard and considered. The record relevant to the case has also been produced and perused by us.