KHEM RAJ Vs. STATE AND ORS.

JUDGEMENT

(1.) THE grouse of the petitioner is that he being a handicapped person was entitled to be treated preferentially but has been ignored from being selected as Patwari.

(2.) PURSUANT to Advertisement Notice dated 30.4.1992, J & K Service Selection Board (hereinafter for short referred to as SSB), invited applications for selection of candidates to undergo Patwar training course in Revenue Training Institute, Jammu/Srinagar. Process of selection was not initiated till 1995 when SSB issued one more Advertisement Notice in supersession to earlier Advertisement notice of 1992 where -under again applications were invited for selection of candidates to undergo Patwar training in Revenue Training Institute, Jammu/Srinagar. In terms of the said Advertisement Notice vis -a -vis reservation it was noted that "selection will be made in terms of SRO 126 of 1994 dated 28.6.1994". Petitioner having participated could not get selected which prompted him as well as one Anoop Singh to file a petition bearing SWP No. 2002/1998, wherein it was contended mat the private respondents under RBA category have been illegally selected as the Advertisement Notice did not provide for selection of the candidates under RBA category. The said contention was not accepted as it was noticed in the judgment that in terms of the notification (Advertisement Notice) issued on 7th of March, 1995, earlier notification of 30th of April, 1992 was superseded and it was also categorically mentioned that the provisions of SRO 126 of 1994 would be taken note of. In the said judgment dated 13th of July, 2001, direction had been issued to the respondents to consider claim of petitioner No. 1 who is a handicapped person. The said consideration was not accorded in compliance to the said judgment for sometime which prompted the petitioner to file contempt petition No. 82 -C of 2002 but during the pendency of contempt proceedings, respondent No. 5, i.e. Secretary J & K Service Selection Board, Jammu, issued order dated 27.11.2002 indicating therein that in compliance to the judgment selection records were examined, the category which the petitioner claimed was not in force at the relevant point of time, therefore, petitioner was considered in open merit category who has secured 51.10 points whereas the last selected candidate in the open merit category had secured 53.40 points. Petitioner having failed to make out a grade, therefore, his claim is rejected. When this order was brought to the notice of the Court, the contempt petition was disposed of as having become infructuous, however, petitioner was left free to challenge the said order dated 27.11.2002, hence the instant petition i.e. SWP No. 462/2006. Petitioner has sought the relief of quashment of order dated 27.11.2002 and for issuance of command so as to compel the respondents to appoint him as Patwari under handicapped category.

(3.) LEARNED Counsel appearing for the respondents would contend that preferential treatment as permissible under Rule 11 of the Reservation Rules of 1994 is available only when the petitioner will make his grade and in case he along with some other candidate would have been in same position, then he had a right of preference. When he does not figure in the merit so as to be at par at least with the last candidate selected, he cannot claim preferential treatment. In support of his contention he has relied on the judgment captioned State of UP and Anr. v. OM Prakash and Ors.