DR. AIJAZ MUZAFFAR Vs. STATE OF J&K

JUDGEMENT

(1.) In this petition, the petitioner has stated that a notification bearing No. 01 of 2008 dated 1st of January, 2008, came to be issued by the Deputy Commissioner, Budgam, wherein and where under applications were invited from amongst the eligible permanent residents of the State of J &K for filing up of vacancies of Dental Surgeons in the respondent Health Department for District Budgam, on contractual basis. After the culmination of the process of selection, a list of candidates selected for the post of dental surgeons on contractual basis was prepared, wherein the petitioner figured at S. No. 5, but he was not engaged as he had crossed the prescribed age limit. Consequently, the petitioner filed a representation to the Government wherein he cites instances of the candidates in whose favour the Government had relaxed the upper age limit. When the representation, so filed, evoked no response, the petitioner along with another similarly situated person, namely, Dr. Ab. Waheed, filed a writ petition before this Court, being SWP No. 1739/2009. On consideration of the said writ petition, the same was finally disposed of by this Court in terms of the order dated 28th of February, 2011, with a direction to the respondents to consider the claim of the petitioners therein for according relaxation in the upper age limit within one month, with a further stipulation that in the event the relaxation is accorded, they shall be considered for being appointed. In pursuance of the aforesaid order of this Court, the respondent No.1 issued an order No. 12-GAD of 2012 dated 3rd of January, 2012, whereby the case of the petitioner for consideration of relaxation of his upper age limit was rejected on the ground that the petitioner does not have any exceptional qualification. Aggrieved thereby, the petitioner filed yet another writ petition, being SWP No. 1431/2012, before this Court. This writ petition, too, was disposed of by this Court vide judgment dated 10th of October, 2013, whereby the order dated 3rd of January, 2012, as passed by the respondent No.1, was quashed and the respondents were directed to issue appointment order in favour of the petitioner in accordance with the selection list prepared in respect of the notification dated 1st of January, 2008, after giving relaxation in the upper age limit. Thereafter, the respondents preferred an appeal against the said judgment which came to be registered as LPA No. 04/2014. The Division Bench, by a judgment dated 23rd of May, 2013, disposed of the said appeal by observing that the consideration accorded to the relaxation case of the petitioner has not been appropriate, therefore, his relaxation case has to be reconsidered in light of the observations made therein. In compliance with the directions issued by the Division Bench, the case of the petitioner was re-examined by the respondent No.1 and, in terms of Government order No. 992-GAD of 2014 dated 5th of September, 2014, sanction was accorded to the grant of relaxation in the upper age limit of the petitioner by two years, four months and ten days as on 1st of January, 2008. The respondent No.2 was, accordingly, asked to issue a formal appointment order in favour of the petitioner with immediate effect and, as a sequel thereto, the respondent No.2 in terms of an order No. 196-HME of 2015 dated 4th of June, 2015, accorded sanction to the temporary appointment of the petitioner as Dental Surgeon on contractual basis with immediate effect in terms of the J &K Contractual Appointment Rules notified vide SRO 255 of 2003. The petitioner, immediately, moved a representation to the Government seeking his regularisation and giving effect to his appointment w.e.f. the date when the other similarly situated persons were appointed consequent to their selection vide select list dated 25th of October, 2008, but, fate had it for him, that this representation of the petitioner did not evoke any response from the respondents. It is in this factual background that the petitioner has filed the instant writ petition seeking the grant of following relief(s) in his favour:

(2.) Heard and considered.

(3.) The writ petition has been admitted on 20th of February, 2018. However, despite availing umpteen opportunities, the respondents failed to file any Counter in the matter. It is a settled principle of the law of pleadings that the averments set up by the petitioner are expected to be specifically denied by the replying party. If there is no specific denial, then such an averment is deemed to have been admitted by the other side. In the present case, it is evident that the averments set up in the writ petition, which were relevant and material to the case, have been rebutted by the State. It was expected of the respondents to reply all the averments specifically and make a proper reference to the records relevant to the case. Since the respondents have omitted to do so and have failed to specifically deny the averments made by the petitioner, therefore, the petitioner has been able to make out a case for interference.