Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: On the issue of whether wait list candidates can be considered for filling up vacancies caused due to resignation of appointed candidates, the Division Bench of Pankaj Mithal, CJ., and Moksha Khajuria Kazmi, J., observed that “a select/waiting list prepared may remain operative and valid for a period of one year, but that would only be for a limited purpose of appointing the selected/wait list candidates on the vacancies which remains unfilled due to non-joining of the selected candidate for one reason or the other.”

Facts and legal trajectory of the case: The Jammu and Kashmir Service Selection Board had issued an Advertisement notification on 30-12-2014, inviting applications for the position of Junior Engineers (Civil), in which the respondents had applied. As per the selection list notified on 29-04-2016, the respondents were placed in the waiting list. The selected candidates were appointed on 25-05-2016, but when two selected candidates failed to join, two other waitlist candidates were appointed as replacements.

Subsequently, when other selected candidates resigned to pursue their selection as Assistant Engineers in terms of the same advertisement; the respondents claimed appointment for these vacancies, since they were on the waitlist.

Furthermore, they filed a writ petition, seeking relief to keep the select list operational for one year, so that they can join as Junior Engineers when any other selected candidates resign. This writ petition was allowed by the learned Single Judge of the High Court. The Selection Board challenged this decision before the Division Bench of the High Court.

Issues: The main issue before the Court was whether on the resignation of appointed candidates, the vacancy that arises would be a fresh vacancy or would be the same vacancy as advertised which can be filled up from the select panel or the wait list?

Analysis and findings:

The Court perused the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010, R. 14(7), to answer the primary question. It was noted that the provision is divided into two parts wherein “the first part provides for preparation of a select/wait list which will remain operative for a year for consideration of the names of wait list candidates against drop out vacancies; and the second part lays down that the selection committee shall not recommend any wait list candidate for any future vacancy or any vacancy caused due to resignation of any selected candidate after he was appointed”.

It was observed that R. 14(7) clearly states in a mandatory form that the selection committee shall not maintain or recommend any select or waiting list candidate for any future vacancy or any vacancy caused on account of resignation by any selected candidate who gets appointed. “The language of the provision is clear enough to establish that no candidate from the select list or waiting list shall be appointed on any vacancy which is caused due to resignation of a selected candidate joining the post”. In support of this view the Court discussed several cases, namely, Shankarsan Dash v. Union of India, (1991) 3 SCC 47; Manoj Manu v. Union of India, (2013) 12 SCC 171.

Conclusively, the Division Bench held that the Single Judge had erred in law in allowing the writ petition and directing the respondents to operate the waiting list even against the vacant posts caused by resignation of the candidates. The previous order was set aside and the petition was dismissed.

[State of JK v. Danish Zia Bhat, 2022 SCC OnLine J&K 513, decided on: 27-06-2022]

Advocates who appeared in this case :

D.C. Raina, AG with M. A. Chashoo, AAG and Sajad Ashraf, GA, Advocate, for the Appellants;

Z.A. Shah, Sr. Adv. with A. Hanan, Advocate, for the Respondents.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Apprehension of harassment and violence at the hands of their relatives, led a young couple to knock on the doors of the Court. The bench of M.A. Chowdhary, J., while perusing the facts and the fears presented by the petitioners, made some profound observations vis-a-vis two adults consensually marrying. The Court stated that, Arts. 19 and 21 of the Constitution duly recognises the right of two consenting adults entering into wedlock. “Consent of family or community or clan is not necessary once two adult individuals agree to enter into wedlock and their consent has to be piously given primacy. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and values it stands for”.

As per the facts, the petitioners claiming to be majors, contracted marriage out of their free will and started living as husband and wife. The said marriage was contracted as per Muslim personal laws and traditions. Upon developing a fear for their safety and life, the petitioners approached the Court seeking protection and security cover from their relatives.

Upon examining the prayer, the Court observed that Right to Marry has sanction of the Constitution, therefore it needs to be protected and it cannot succumb to conception of class honour or group thinking and that the Constitutional Courts should act as a watchful sentinel to guard the right to liberty of an individual, as dignified existence has an inseparable association with liberty. “Life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person“. Noting that choice is an inextricable part of dignity, thus no one should be allowed to interfere with the fulfilment of an individual’s choice. “When two adults marry out of their volition, they choose their path… and it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation”.

With the aforementioned observations, the Court directed the respondents to provide adequate security cover to petitioners and act in accordance with the law laid down by the Supreme Court in Lata Singh v. State of U. P. (2006) 5 SCC 475, and Shakti Vahini v. Union of India, (2018) 7 SCC 192. The Court also directed the respondents to verify petitioners’ claims vis-a-vis their age and proper solemnization of marriage. The Court also clarified that the observations made in the instant petition do not authenticate the petitioners’ marriage, as the same is dependent on fulfilment of requisites as envisaged under prevalent laws.

[Sugra Fatima v. Union Territory of J&K, 2022 SCC OnLine J&K 472, decided on 14-06-2022]

For the petitioners: Asma Rashid, Advocate

For the respondents: Insha Rashid, GA

*Sucheta Sarkar, Editorial Assistant has reported this brief.

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: The Division Bench of Pankaj Mithal, CJ, and Sanjay Dhar, J., asked Jammu and Kashmir government if there exist any law to regulate news portals in the Union Territory and whether there exist any provisions to keep a check on circulation of fake news.

The instant Public Interest Litigation was filed to raise the concern of mushrooming growth of news agencies on social media especially the news portals which were involved in circulating fake news. It was alleged by the petitioner that in the Union Territory, several news portals like Kashmir News, Kashmir Voice, Kashmir Breaking News, News Kashmir 24/7, Kashmir Business Hub and Bol Kashmir etc. were operating freely without any registration or license from any authority and those news portals were not under supervision and control of any authority whatsoever.

In the light of the aforesaid averments, the Bench asked upon the government of J&K to file a report pointing out the provisions of law under which such news portals if at all were required to be registered or licensed and if so, whether the abovementioned news portals were running with due permission in accordance with law and whether any agency was examining the contents of the news circulated by these news portals. The period of one month was granted to the government for compliance.[Jammu and Kashmir Peoples Forum v. UT of J&K, WP (C) PIL No. 10 of 2021, decided on 30-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner/s: Shafqat Nazir, Adv. with Shabir Ahmad Bhat, Adv.

For the State: D. C. Raina, AG with Sajad Ashraf, GA.