CAT restrain forest dept to advertise post of Range Officers under ST Category
JKUT (Jammu), September-16-2021-( JNF):- The Bench of Central Administrative Tribunal comprising Rakesh Sagar Jain (Judicial Member) and Anand Mathur (Administrative Member) restrained respondents not to advertise two ST category vacancies of Range Officer Grade-I (Territorial) Forest Department.
This order has been passed in a petition filed by Prince Ahmad Mir & Ors in which Sr. Adv Jehangir Iqbal Ganai submitted that the applicants are aggrieved of the decision of the respondent No. 2 in the nature of ” Inclusion of two candidates (respondents No. 4 and 5 herein) under Open Merit Category, who were earlier selected under Schedule Tribe (ST) Category and consequent thereto in recommendation of the respondent No. 4 and 5 for appointment for the post of Range Officer Grade-I (Territorial), in Forest, Ecology and Environment Department as conveyed to respondents No. 1 in terms of communication Bearing No. PSC/Exam/RO (F)-2018/ll dated 27.08.2021. That the Jammu and Kashmir Public Service Commission vide Notification No. PSC/Exam/67/2019 dated 20.09.2019, notified the select list of Range Officer Grade-I Forest (Territorial) in the Forest Department. The select list was subject to challenge before this Hon’ble Tribunal. On consideration, the Hon’ble Tribunal was pleased to allow the petition to the extent of challenge thrown to the selection of candidates who did not fulfill the height criteria and the Hon’ble Tribunal directed the Commission to prepare the select list of candidates who fulfill the eligibility criteria mentioned in the Advertisement Notice against the posts which would become available due to exclusion of candidates who do not possess the requisite eligibility. The selection of the respondent no. 4 and 5 herein was not disturbed. It being so, the Commission had to recommend the respondents no. 4 and 5 and against the 08 available vacancies, conduct the test and thereafter prepare the final select list of the candidates who fulfill all the eligibility criteria. The Hon’ble Tribunal has not given any liberty to the respondents to prepare a fresh select list by including the candidates, whose selection has been upheld. The fresh process of selection has to be restricted as amongst the candidates belonging to the Open Merit only. The selection to the extent it pertains to respondent No. 4 and 5 under Schedule Tribe (ST) Category cannot be revisited now. The impugned decision as such is required to be set aside. Even otherwise in case such an action is allowed, same would tantamount to the Act of Court causing prejudice to the applicants in as much had the selection of respondents no. 4 and 5 being not stayed by the Hon’ble court, they would have being appointed long back and thereto there would have been no occasion for the Commission to include them in the Open Merit Category. By including the respondent no. 4 and 5 under Open Merit Category, the applicants are being denuded of selection against the post in question on account of the issue being pending before the Hon’ble court. The action of the Commission as such is hit by the maxim of actus curia neminem gravabit, which means that the “Act of Court shall prejudice no one”. The impugned decision as such is required to be set aside. The mandate of Section 4 of J&K Reservation Act which provides that a candidate belonging to Reserve Category can be shifted to Open Merit category in case he has secured more marks then that of a candidates belonging to Open Merit Category, cannot be a continuous process. It has to end with the notification of select list. Sliding up or sliding down cannot take place after completion of the selection process. Reservation cannot be blown beyond a point. In the present case, the select list was issued by the respondent-Commission selecting the respondents NO. 4 and 5 under Schedule Tribe (ST) Category. The select list could not be acted upon as the Hon’ble High Court of J&K and Ladakh at Srinagar had stayed the selection as an interim relief. The matter was considered and the selection of respondent No. 4 and 5 was upheld. It being so, the respondents No. 4 and 5 have to be placed at same position which was in existence prior to filing of the petition challenging their selection. The respondents No. 4 and 5 admittedly on that day were selected under Schedule Tribe (ST) Category. The respondent-Commission as such by restoring their position as has been directed by this Hon’ble Tribunal have to recommend them for appointment under Schedule Tribe (ST) Category. The Respondent No. 4 and 5 cannot be at this stage selected against the vacancies which had accrued under Open Merit Category on account of the cancellation of selection in respect of the candidates under Open Merit Category by the Commission, in compliance to the order of this Hon’ble Tribunal. The impugned decision as such is required to be set aside. No prejudice would be caused to any candidate in case the respondents No. 4 and 5 are recommended against the vacancies available under Schedule Tribe (ST) Category in as much as no other candidate under Schedule Tribe (ST) Category has qualified the written test. It is submitted here that only 40 candidates qualified the Range officer Grade-I Forest (Territorial) Main Examination 2018 and were called for interview. As 05 posts were reserved for Schedule Tribe (ST) Category, only 03 candidates qualified the written test and made it to the select list. No candidate is available who can be selected under ST Category on account of inclusion of respondents NO. 4 and 5 under Open Merit Category. In this view of the matter, the impugned decision besides being illegal and unconstitutional is unjust and unfair. JNF