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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohd. Magrey, J.
Gulafroz Khan and Ors. - Appellants
Vs.
State of J&K and Ors. - Respondents
SWP No. 832/2016
Decided On : 14-10-2016
The petitioners sought writ of certiorari to quash a communication cancelling the select list for the post of Junior Legal Assistant and mandamus to command the respondents to issue appointment orders in their favor. The State Legal Services Authority had amended its regulations to withdraw the posts from the Service Selection Board (SSB) and refer them to its own Recruitment Board. The SSB ignored the withdrawal and completed the selection process. The court held that the amendment to the regulations did not entitle the Authority to withdraw the posts after the selection process had commenced. The court also found that the SSB was not legally obliged to close the recruitment process as requested by the Authority. The court further held that the cancellation of the select list on the ground of non-conformity with the Divisional Level Selection Committee was not justified, as there was no divisional level officer in the Legal Services Authority and the SSB could not be directed to conduct a denovo process of interviews. The selections made by the SSB were saved on the principles of justice, equity, and good conscience. The court quashed the impugned communication and directed the Authority to issue appointment orders to the petitioners, but declined the prayer for retrospective appointment.
Ali Mohd. Magrey, J.
1. The petitioners, five in number, have filed this petition seeking writ of certiorari to quash the letter, bearing No. SLSA/Estt/RB/08/2015/1476-79 dated 21.4.2016, whereby respondent No. 2 informed respondent No. 3 that the Select list of candidates for the post of Junior Legal Assistant, State Legal Services Authority, formulated and issued by the SSRB vide No. SSB/Secy/2015/16309-15 dated 16.12.2015 and transmitted to the State Legal Services Authority for issuance of orders in favour of the selectees, stood cancelled on the grounds mentioned therein. The petitioners have also prayed for mandamus to command the respondents to issue orders of appointment in their favour against the posts in question advertised vide notice No. 03/2012 dated 28.12.2012, to give them all the benefits of such appointment retrospectively and not to re-advertise the posts.
2. Before giving a description of the petitioners' claim and the grounds it is founded on, I deem it appropriate to give some semblance of the genesis of the matter.
3. The State Legal Services Authority (hereafter, the Legal Services Authority) is the creation of the Statute, namely, the Jammu and Kashmir Legal Services Authorities Act, 1997 (hereafter, the 1997 Act). The Act also creates some other Legal Services Committees/Authorities at the High Court level, District level and Tehsil level. Whereas various provisions of the Act provide for appointment of officers and employees of these Authorities/Committees, Section 27 thereof confers a power on the Legal Services Authority to make regulations not inconsistent with the provisions of the Act and the rules made thereunder to provide for all matters for which provision is necessary or expedient for the purposes of giving effect to the provisions of the 1997 Act.
4. In exercise of the powers under Section 27 of the 1997 Act, the Legal Services Authority made and promulgated the Jammu and Kashmir State Legal Services Authority Regulations, 1998 (hereinafter, the 1998 Regulations). Regulation 27 of the 1998 Regulations defines the word "Service" to mean the J & K Legal Services Authorities/ Committees Service. Regulation 28 thereof prescribes the method of recruitment. Regulation 29(1) of the 1998 Regulations prescribes that there shall be a Recruitment Board for making selection of the person to be appointed to the service of the Authority/ Committees. Regulation 29(2) provides that the Board shall consist of a Chairman and such number of persons as members as may be prescribed and nominated by the Chief Justice from time to time. Regulation 29(3) says that the Executive Chairman of the State Legal Services Authority shall be the Ex-officio Chairman of the Board. Regulation 29(4) provides that the Board shall adopt the method for making recruitment from time to time as it may think fit and as may be necessary for each such selection. Regulation 29(5) provides that the Authorities/Committees (created under the 1997 Act) shall refer all the vacancies to the aforesaid Board for making recruitment and that appointments to be made by the authorities shall be from the merit list prepared by such Board.
5. As seen above, Clauses (1) to (5) of Regulation 29 of the 1998 Regulations are complete and compact insofar as the object underlying the Regulation is concerned.
6. However, notwithstanding the above, the Legal Services Authority by notification No. 01 of 2012 dated 27.04.2012 inserted clause (6) after clause (5) in Regulation 29 of the 1998 Regulations which read as under:
"(6) Notwithstanding anything contained in clauses (1) to (5), the posts in the service which are to be filled up by direct recruitment shall be referred to the Jammu and Kashmir Service Selection Board for selection."
7. After insertion of the above clause (6) in Regulation 29 of the 1998 Regulations, the Legal Services Authority through its Additional Secretary's, sent a requisition of direct recruitment under the cover of communication
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