Jammu & Kashmir High Court – Srinagar Bench
Altaf Hussain Lone Aged 38 Years vs Union Territory Of J&K Through on 7 July, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
LPA No. 223/2023
Reserved on: 01-07-2025
Pronounced on:07.07.2025
1. Altaf Hussain Lone Aged 38 years
S/O Abdul Rehman Lone,
R/O Ratnipora, Shopian.
2. Mudasir Ahmad Naikoo Aged 32 years,
S/O Gh. Mohammad Naikoo
R/O Losedenow Shopian..
3. Mohammad Rafiq Dar Aged 34 years
S/O Gh. Ahmad Dar,
R/O Panjura Shopian.
...Appellant(S)
Through: - Mr. Tariq M. Shah, Advocate.
Vs.
1. Union Territory of J&K through
Financial Commissioner Health & Medical Education Department,
J&K, Civil Secretariat Jammu/ Srinagar.
2. Mission Director, National Health Mission,
J&K, Jammu/ Srinagar.
3. District Development Commissioner
(Chairman District Health Society), Shopian.
4. Chief Medical Officer (Vice Chairman, District health Society)
Shopian.
...RESPONDENT(S)
Through:- Mr. Waseem Gul, GA.
Arif Hameed
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LPA 223/2023
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE SANJAY PARIHAR, JUDGE.
JUDGMENT
Sanjeev Kumar J:
1. This Letters Patent Appeal has been filed by the appellants challenging
an order and judgment dated 24-08-2023 passed by the learned Single Judge
[‘the Writ Court’] whereby the writ petition, WP (C) No. 768/2020 titled
Altaf Hussain Lone and ors v. UT of J&K and ors, has been dismissed.
Factual Matrix:
2. Vide notification No. CMO/Spn/NCD/19/56-58 dated 12th of June,
2019 read with No. NHRM/DMU/Spn/19/132-134, issued by the Chief
Medical Officer, Shopian, (respondent No. 4 herein) applications were
invited for filling up various posts on contractual hiring basis, which included
the post of Programme Manager, Psychiatric Nurse and Clinical
Psychologist. Following was the eligibility criteria prescribed in the
advertisement notification:
Category Requisite Qualification
Clinical Psychologist M. Phill in Clinical Psychology or MA/MSc
in Psychology/ Clinical Psychology with
three months training in clinical
Psychology.
Psychiatric Nurse General Nurse + Diploma in Psychiatric
Nursing Or General Nurse with 1 month
training in Psychiatric Nursing.
Programme manager MPH/MBA-HCa/ Master of Health
Administration or Graduate with Public Health
Certificate eg. Pg Diploma in Health Care
AdministrationArif Hameed
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3. After receiving application forms from the eligible candidates,
including the appellants, who claimed to be eligible for the aforesaid posts,
the respondent No.4 issued notice dated 03-07-2019 calling upon all the
candidates, who had applied in terms of advertisement notification dated 12-
06-2019, to appear in the screening test which was notified to be held on 16-
07-2019. It seems that the screening test was conducted on 16-07-2019 and
the select list was issued by the respondent No.4 on 31-07-2019 wherein the
names of the appellants figured as selected candidates against the posts of
Programme Manager, Psychiatric Nurse and Clinical Psychologist
respectively.
5. The selection process was resented to by various aggrieved candidates
on the ground that the selected candidates were not qualified and were not
holding the qualifications as were required for the posts under the
advertisement notification. The respondents started receiving complaints
from different quarters with regard to the illegalities displayed during the
selection process. The complaints were received by the Chairman DHS
Shopian, which, subsequently, were referred to the Additional Deputy
Commissioner, Shopian for conducting enquiry/preliminary enquiry into the
matter. On submission of preliminary enquiry report by the Additional
Deputy Commissioner, Shopian, the Chairman DHS, Shopian, constituted a
Committee vide its order dated 13-09-2019 to be headed by the Additional
District Development Commissioner, Shopian to conduct a fact finding
enquiry into the matter. The enquiry report prepared by the Committee was
Arif Hameed
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submitted to the Chairman DHS, Shopian, who accepted the report insofar as
the posts of Programme Manager, Psychiatric Nurse, Clinical Psychologist
and Psychiatric Social Worker were concerned and, accordingly the selection
against the aforesaid posts was declared as null and void and, as a result
thereof, the select list quashed.
6. Feeling aggrieved, the appellants, who had found place in the select
list, challenged the scrapping of selection process in WP(C) No.768/2020
which has been dismissed by the Writ Court in terms of the order and
judgment impugned in this appeal.
7. The appellants are aggrieved of and have assailed the impugned
judgment of the writ Court inter alia on the ground that the writ Court has
failed to appreciate that the impugned order was passed without hearing the
appellants, for a right had vested in the appellants with their placement in the
select list, and that passing the order impugned without giving opportunity of
hearing to the appellants was violative of the principles of natural justice.
That the respondents, while passing the order of treating the selection
process as null and void, had not assigned any valid and cogent reasons,
inasmuch as, the appellants, who had participated in the selection process and
made the grade for their selection, could not have been deprived of their right
of appointment against the advertised posts.
8. Per contra, the learned counsel appearing for the respondents would
submit that the writ Court has taken note of all the contentions raised by the
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appellants before it and has rightly arrived at a conclusion that the decision to
quash the selection with respect to four category of posts, was legally perfect.
9. Having heard learned counsel for the parties and perused the material
on record, we are of the considered view that the judgment passed by the writ
Court does not suffer from any legal infirmity calling for interference by us
in this appeal.
10. It is trite law that mere participation of a candidate in the selection
process does not give him an indefeasible right to be appointed. The
appointing authority as also the selection body is well within its power to
abandon the selection process at any stage even if the select list has been
issued, however, the same can only be done for good reasons. The reasons
for abandoning the selection process ought not to be arbitrary and must be
justified on the touch stone of Articles 14 and 16 of the Constitution of India.
11. The Hon’ble Supreme Court has examined the question when the
entire selection process should be struck down in case of irregularity in
umpteen number of cases. In Sachin Kumar v. Delhi Subordinate Service
Selection Board, 2021(4) SCC 631 it has been laid down that for
determining as to whether the examination process is vitiated by
irregularities, it is necessary to hold an indepth fact-finding enquiry. The
fact-finding enquiry must examine with regard to the irregularities alleged
were systematic enough to undermine the sanctity of the process. In the cases
where the selection process is vitiated by fraud or large scale irregularities
challenging severally the credibility and the legitimacy of the process, the
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employer is left with no option but to cancel the entire process. There may be
situations where it is possible to separate the chuff from the grain and in such
situations there is hardly any justification to cancel the entire selection
process impacting adversely upon the legitimate candidates. The idea to save
the selection process by separating the tainted from the untainted participants
is to ensure that the innocent should not suffer for the acts of some
wrongdoers.
12. In the case of Inderpreet Singh Kahlon v. State of Punjab, 2006
(11) SCC 356, the Hon’ble Supreme Court laid down three principles to be
adhered to while taking a decision to cancel the selection process. Firstly,
there must be satisfaction regarding the sufficiency of the material collected
so as to enable the employer to conclude that the selection process was
tainted. Secondly, to determine whether the illegalities committed go to the
root of the matter and vitiate the selection process, such situations are to be
based on a reasoned and thorough investigation conducted in a fair and
transparent manner and, thirdly, there must be sufficient material to support
the conclusion that the majority of the appointments were part of the
fraudulent purpose or that the system itself was corrupt.
13. In the case of Chairman of Indian Railway Recruitment Board v. K
Shyam Kumar, 2010 (6) SCC 614, the decision of the Railway Recruitment
Board to cancel the examination and conduct the re-test on the grounds of
malpractices involving mass copying, leakage of question paper and
impersonation, etc. was struck down by the High Court. The Hon’ble
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Supreme Court reversed the judgment of the High Court and upheld the
decision of the Railway Recruitment Board to cancel the examination on the
ground that the material on record proved widespread illegalities and
malpractices in the written test. It was held that the ultimate object of fair
selection was eluded by mass copying, impersonation and question paper
leakage, etc.
14. From the case law on the subject, following principles can be culled
out:-
(i) A candidate has no legal right to appointment merely by being
selected. The State may decide not to fill up vacancies or scrape the
selection process provided the decision is bona fide.
(ii) The selection process can be scrapped if it is tainted by fraud and
malpractices going to the root of selection.
(iii) The selection process can also be scrapped if it is vitiated by large
scale illegalities rendering the entire selection process stillborn viz.,
application of criteria which is illegal, arbitrary or unconstitutional.
(iv) The decision to scrape selection process must be bona fide and not
arbitrary, discriminatory and based on no adverse material.
(v) Where it is possible to sift the grain from chaff, the tainted
candidates must be segregated from the untainted ones, the resort to
scrapping the entire selection process be avoided.
(vi) The process can also be scraped if it is required for bona fide public
interest or if the administrative agencies so require. So long as
power to cancel is exercised fairly, rationally and in good faith, the
courts would be loath to interfere.
(vii) The decision to scrape the selection process shall be bonafide only
if the same is based upon established relevant material sufficient
enough to ward off arbitrariness.
Arif Hameed
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15. It is submitted that the decision of the respondents was not arbitrary
but was based upon the proper exercise conducted by it to find out the
veracity of the allegations made in the complaints received by the Chairman,
DHS, Shopian. With a view to dig out the truth, a proper enquiry Committee
was constituted and it was only on the basis of the recommendations of the
Committee a bona fide decision was taken to cancel the selection process so
that a fresh selection process is set in motion which is just, fair and
transparent.
16. When we examine the case on hand in the light of legal position
adumbrated hereinabove, we find that the decision of the respondents
impugned before the writ Court was taken on the basis of illegalities in the
selection process pointed out by the enquiry Committee. To examine the
issue in right perspective, it is necessary to set out the recommendations of
the enquiry Committee herein below:
“1. The selection committee violated all the norms of
advertisement notification, notified qualification and
selection criteria issued by the Health and Medical
Education Department with regard to the posts of
Programme Manager, Clinical Psychologists, Psychiatric
Social Worker, Psychiatric Nurse, wherein all the
candidates were found not eligible in the merit list and
subsequently declaring them eligible and selecting them in
the final selection list, is not justified and needs quashment.
2. Ignoring meritorious candidates having requisite
qualification for the post of Jr. Staff Nurse, as out of the
fifteen applications only two applications were submittedArif Hameed
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with all requisite documents, thus all other thirteen
applications should have been either rejected or should
have been provisionally allowed. But unfortunately, only
two applications out of thirteen incomplete applications,
were found rejected, which poses serious doubts on the
selection process and the yardstick put in place for the
selection. As such the meritorious candidates namely Rifat
Jan D/o Farooq Aamd Dat and Junaid Yaqoob S/o Mohd
Yaqoob were left out intentionally, as like other candidates
in the merit list they should have been provisionally
selected like other candidates.
3. In case of FMPHW selected candidates shall be
categorized as provisionally selected subject to the
condition of submission of their deficient documents within
a prescribed period, otherwise her candidature shall be
cancelled.
4. The selection of the candidate, of MMPHW and
Audiologist the candidates continue to be in the selection
zone as per their eligibility criteria and qualification.”
17. From reading of the recommendations made by the enquiry
Committee, it clearly transpires that the basis for cancellation of the selection
process for the aforesaid four category of posts initiated vide Advertisement
Notification dated 12-06-2019, were the irregularities pointed out in the
enquiry report. The enquiry Committee found the following irregularities in
the selection process, namely:
(i) That the selection committee has violated all the norms of
advertisement notification, notified qualification and
Arif Hameed
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selection criteria issued by the Health and Medical
Education Department with regard to the posts of
Programme Manager, Clinical Psychologists, Psychiatric
Social Worker, Psychiatric Nurse, wherein all the
candidates were found not eligible in the merit list but
subsequently they were declared eligible and were
selected in the final select list;
(ii) That while ignoring meritorious candidates having
requisite qualification for the post of Jr. Staff Nurse, two
candidates were intentionally left out and their
application forms were rejected despite the fact that they
were having the requisite qualification. On the other
hand, thirteen incomplete applications were accepted
which poses serious doubts on the selection process and
the yardstick put in place for the selection.
18. From the reading of the report of the enquiry Committee, pointing out
various irregularities in the selection process, it is abundantly clear that there
were irregularities and illegalities committed by the selection Committee by
selecting the candidates who were not qualified as per the advertisement
notification, which illegality goes to the root of the selection process.
19. Viewed from any angle, the material before the respondents was
sufficient to take a bona fide decision to scrape the selection process, more
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particularly, when the select list prepared was yet to be acted upon and no
right had vested in the candidates by merely figuring in the select list.
20. Be that as it may, two wrongs cannot make one right. On facts and on
examination of the record we have found that the decision to rescind the
selection process in question was bona fide and aimed at ensuring fair
selection process. The respondents have not acted arbitrarily and have based
their decision on an exercise undertaken by them through a duly constituted
fact finding enquiry Committee. It is on the basis of the recommendations
made by the Enquiry Committee and taking over all view of the matter, an
informed decision was taken by the respondents to scrape the selection
process.
21. For the foregoing reasons, we find no merit in this appeal and the same
is, accordingly, dismissed.
22.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
SRINAGAR:
07.07.2025
Anil Raina, Addl. Registrar/Secy
Whether the order is reportable: Yes
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