Excelsior Correspondent
Srinagar, Jan 5: Holding the residence-based restriction in recruitment process for orderly post in judiciary as unconstitutional, the Division Bench of High Court directed for interview and consideration for appointment to the post in question for the district Samba candidate.
The Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar directed the authorities to interview and consider a resident of Samba district for appointment to the post of Orderly under the Scheduled Caste category in District Cadre Baramulla.
The court has held the residence-based restriction in the recruitment process, issued by the Chief Justice Secretariat in January 2019, as unconstitutional and allowed the plea filed by aggrieved candidate who was denied participation in the interview for the post of Orderly (Class-IV) in District Baramulla despite being shortlisted.
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His interview was scheduled to be held in the office of Principal District and Session Judge Baramulla on 16 July 2019. However, he was not permitted to participate in the interview process on the ground that he belonged to District Samba and, therefore, was not eligible to apply for the post notified for Baramulla.
He challenged the refusal primarily on the ground that Clause 1 (i) (a) of the advertisement notification dated 10th of January 2019 was unconstitutional, in that, no discrimination can be practiced by the State on the ground of residence.
The High court through its Registrar General and others opposed the plea that various posts borne on different cadres of the Subordinate Courts are governed by J&K Ministerial Staff of the Subordinate Courts (Recruitment and Conditions of Service) Rules, 2016 which empowers the Chief Justice to make appointments to District cadre posts as specified in Schedule-A of the said Rules.
They submitted that a conjoint reading of Rule 2(f), 2(n) and Rule 5 and 12 of the Rules of 2016 read with Entry 19 of Schedule-A makes it clear that the Chief Justice was empowered to make appointments to the District cadre posts and regulate such selections and appointments by framing regulations providing for method of selection to a particular post.
The bench after hearing the issue involved in the matter at length declared Clause 1(i)(a) of Advertisement Notification No. 01 of 2019, which restricted eligibility to candidates belonging to the concerned district cadre as ultra vires the Constitution, by observing that discrimination in public employment on the ground of residence was impermissible unless backed by a law enacted by Parliament under Article 16(3).
The court said that participation in a selection process does not bar a candidate from challenging it where the process suffers from incurable illegality or constitutional infirmity and directed the authorities to interview Kumar and consider him for selection against the SC category post of Orderly in District Baramulla with the further direction that if found meritorious, he shall be appointed, though prospectively, within a period of two months.
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