Jammu & Kashmir High Court
J&K Public Service Commission vs Dr. Rajeev Gupta on 2 April, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 05.03.2024.
Pronounced on : 02.04.2025.
Case:- RP No. 87/2022 in
WP(C) No. 802/2022
J&K Public Service Commission
Through its Secretary,
Resham Ghar Colony, Jammu.
.....Petitioner
Through: Mr. F. A. Natnoo, Advocate
Vs
1. Dr. Rajeev Gupta,
S/o Mohan Lal Gupta,
R/o H. No. 160, Basant Vihar, Ext. Sec-3, Trikuta Nagar, Jammu.
Tehsil and District, Jammu.
....Respondent
2. U.T. of Jammu & Kashmir
Through Commissioner Secretary to Government
Health & Medical Education Department,
Civil Secretariat,
Jammu.
3. Dr. Atul Sharma, Professor, Deptt. of Medical Oncology,
AIIMS, New Delhi.
4. Dr. S. P. Kataria, Consultant and HOD,
Medical Oncology Deptt.
Safdarjung Hospital, New Delhi.
5. Mohd. Hussain Mir,
S/o Gh. Qadir Mir,
R/o Dalwatch Gagasund Doru, Anantnag.
..... Proforma - Respondents
Through:
HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
Coram:
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
2 RP No. 87/2022 in
WP(C) No. 802/2022
JUDGMENT
Rahul Bharti – J
01. Heard learned counsel for the petitioner – Jammu &
Kashmir Public Service Commission (“J&K PSC” in short).
02. The petitioner-J&K PSC came to prefer a writ petition
WP(C) No. 802/2022 thereby seeking judicial review of a judgment
dated 03.02.2022 passed by the Central Administrative Tribunal,
CAT, Jammu Bench, Jammu in T. A. No. 61/6606/2020 titled “Dr.
Rajeev Gupta Vs State of J&K and Others” and thereby sought
quashment of said judgment.
03. Vide its said judgment dated 03.02.2022, the Central
Administrative Tribunal, CAT, Jammu Bench, Jammu while
allowing a petition filed by Dr. Rajeev Gupta-the respondent No. 1
herein, came to set aside selection of Dr. Mohd Hussain Mir- the
proforma respondent No. 5 herein, as Lecturer Super Specialty
(Medical Oncology), Govt. Medical College & Hospital, Jammu and
simultaneously directed the petitioner-J&K PSC as well as the State
of Jammu & Kashmir to consider the candidature of the respondent
No. 1 – Dr. Rajeev Gupta for the post of Lecturer, Super Specialty
(Medical Oncology), Govt. Medical College & Hospital, Jammu.
04. Against said judgment dated 03.02.2022, the proforma
respondent No. 5 – Dr. Mohd. Hussain Mir, whose selection and
3 RP No. 87/2022 in
WP(C) No. 802/2022
prospective appointment suffered negation on account of the effect
of the said judgment, chose not to challenge it by any mode much
less by filing a writ petition. Even the Govt. of Jammu & Kashmir,
which figured as the respondent No. 1 in the case before the Central
Administrative Tribunal, CAT, Jammu Bench, Jammu, had chosen
not to challenge said judgment dated 03.02.2022 of the Central
Administrative Tribunal, CAT, Jammu Bench, Jammu.
05. It is the petitioner – J&K PSC, purportedly acting through
its Secretary, which came forward with the institution of a writ
petition WP(C) No.802/2022 thereby seeking quashment of
judgment dated 03.02.2022 of the Central Administrative Tribunal,
CAT, Jammu Bench, Jammu.
06. Said writ petition came to be heard by this Bench and the
same came to be dismissed in limine by virtue of a judgment dated
05.05.2022 holding the lack of locus-standi of the petitioner – J&K
PSC to feel aggrieved of said judgment dated 03.02.2022 of the
Central Administrative Tribunal, CAT, Jammu Bench, Jammu so as
to challenge it in the manner as it was intended to be challenged in
the context of the averments made in the writ petition.
07. This Court dealt with the very maintainability of the writ
petition so filed by the petitioner – J&K PSC in the light of the fact
that Dr. Mohd. Hussain Mir, whose selection and recommendation
4 RP No. 87/2022 in
WP(C) No. 802/2022
for appointment was set aside did not come forward to salvage his
impugned and quashed selection and recommendation for
prospective appointment.
08. By reference to the averments as made in the writ petition
sounding as if Dr. Mohd. Hussain Mir was the writ petitioner, we
had come to observe that there was no elementary level pleading as
to the locus-standi of the petitioner – J&K PSC in assailing the said
judgment of the Central Administrative Tribunal, CAT Jammu
Bench, Jammu which was not affecting or meaning to affect any
legal/statutory/constitutional right and status of the petitioner –
J&K PSC or for that matter involving no interpretation of any
rule/regulation governing the working and functioning of the
petitioner – J&K PSC in carrying out the selection process which
resulted in the challenged selection of Dr. Mohd. Hussain Mir.
09. It is against said judgment dated 05.05.2022 that the
petitioner- J&K PSC came forward with the institution of present
review petition filed on 07.06.2022 by coming up with the repeat of
the averments as made in the writ petition with addition of new
averments which otherwise were not there in the writ petition.
10. In its review petition, the petitioner – J&K PSC is meaning
to defend the selection of Dr. Mohd. Hussain Mir when he himself
never felt aggrieved of upsetting of his selection by the judgment
5 RP No. 87/2022 in
WP(C) No. 802/2022
dated 03.02.2022 of the Central Administrative Tribunal, CAT
Jammu Bench, Jammu.
11. In the review petition, the petitioner – J&K PSC is meaning
to plead that the institution of the writ petition by the petitioner –
J&K PSC against judgment dated 03.02.2022 of the Central
Administrative Tribunal, CAT, Jammu Bench, Jammu was on the
basis of a communication No. PSC/LIT/153/2018/P-1 dated
15.02.2022 which was passed on but not pleaded and annexed with
the writ petition itself during the course of hearing of the matter in
the writ petition so as to show that there was an approval granted
by the competent authority of the petitioner- J&K PSC for filing the
writ petition.
12. In the review petition, the review is being sought on the
following grounds:-
i. Because admittedly the petitioner-Commission is a
creation of Article 315 of the Constitution of India and
being a Constitutional body has been entrusted with the
task of selection of various gazetted posts in the state of
J&K (now UT) and being aggrieved of the judgment dated
03-02-2022 passed by the Hon’ble Central Administrative
Bench whereby the selection made by the petitioner-
Commission was directed to be set aside, has invoked the
extraordinary writ jurisdiction of this Hon’ble Court with
specific averment regarding the status/locus standi of the
petitioner-Commission in very opening paragraph i.e.
para-1 of the writ petition. However, this Hon’ble Court
due to some miscommunication has observed as if no
averment in the writ petition regarding the locus standi of
6 RP No. 87/2022 in
WP(C) No. 802/2022the Petitioner-Commission for filing the writ petition has
been taken. lt is thus submitted that the judgment under
review to the extent of this observation thus runs contrary
to the averments of Para-1 of the writ petition, as such
there being mistake apparent on the face of the record, the
judgment is thus required to be reviewed.
ii. That the selections are made by the Commission as a
constitutional body and not by the experts in their private
capacity. The experts involved in the process, no doubt
being eminent in their field, after becoming part of the
interview panel, the selections made become that of the
Commission and not of the experts. So the Commission
has every right and authority to defend its
decisions/selections which includes filing and defending of
court cases involving such decisions /selections.
iii. That while selecting the experts, the Commission ensures
that only those who are eminent in the field are selected.
Same has been done in the instant case as well. The
experts cannot be supposed to defend the cases for
selections made by the Commission as it is the
Commission which has to defend the selections. Moreover,
if the experts would have to appear before the Hon’ble
Courts to defend the selections made then no expert
would ever want to become part of the selection process.
iv. Because the judgment under review more particularly
observation as reproduced above to the extent of filling of
writ petition without any approval also requires to be
reviewed as in presence of the approval of the competent
authority of the petitioner-Commission on due
consideration, which fact was brought to the knowledge of
this -.,Hon’ble Court by referring to communication dated
15-02-2022 during the course of submissions/hearing,
however the same has also escaped consideration of this
Hon’ble Court, the judgment under review to this extent is
also required to be reviewed.
v. That in the facts and circumstances of the case, it is
submitted that the present case falls within the ambit of
Order 47 Rule 1 of the Civil Procedure Code read with
Rule 65 of the High Court Rules.
7 RP No. 87/2022 in
WP(C) No. 802/2022
vi. That there is an error apparent on the face of the record
for the reason that the petitioner had in para 01 of the
writ petition stated as under:
“That the petitioner being a constitutional
body entrusted with the job of making
selection to the various Gazetted posts of the
Union Territory of Jammu and Kashmir as
such is competent to invoke the extra ordinary
writ Jurisdiction of this Hon’ble Court”
The Hon’ble Court while deciding the case with regard to
the locus has observed in para 15, 17 and 25 (quoted
above) that no averment has been made as to the locus of
the petitioner which is ‘not correct. The petitioner being a
constitutional autonomous body has a locus to sue and be
sued of its own in its own capacity.
vii. That in addition to the averments made above, the
petitioner otherwise has sufficient reason in terms of order
47 rule 1 of the CPC for filing the instant petition.
viii. That it was submitted that the judgment dated
03.02.2022 of the Hon’ble Tribunal requires to be set
aside because on the one hand the Hon’ble Tribunal has
held that there was likelihood of bias and on the other
hand has plainly directed to select the respondent no. 1.
That even for the sake of arguments, it is assumed that
there was some bias then the Tribunal could have directed
to re-conduct the interview but could not have directed to
select the respondent no. 1 in any case.
ix. Because even otherwise, as per the records, the competent
authority of the Commission, as per the Business Rules,
has accorded approval for filing of writ petition on due
consideration of the case. However, the sad fact i.e. the
name of the approving authority could not be brought to
the notice of this Hon’ble Court as learned counsel was
not aware about the decision taking authority at the time
of consideration of the matter at its threshold on
preliminary issues/query raised by this Hon’ble court.
Therefore judgment impugned is required to be reviewed.
8 RP No. 87/2022 in
WP(C) No. 802/2022
x. Because the petitioner-Commission being a selecting
authority has undertaken the selection process with the
assistance of experts and was party respondent in the writ
petition (TA bearing No. 660912020 on transfer to CAT)
through its Hon’ble Chairman as well Secretary, as such
being selecting body and party respondent was within its
right to challenge the outcome of the lis. However, this
aspect of the matter though apparent on the face of the
record has not been considered in as much as appreciated
by this Hon’ble Court, as such the judgment is required to
be reviewed on this ground as well.
xi. That the view taken by the Hon’ble Court in the instant
case would leave the Judgment dated 03.02.2022 passed
by CAT undisturbed which would have serious and
unwarranted consequences as such the Hon’ble Court
may kindly take a holistic view in the matter and review
the judgment impugned.
xii. That it was alleged by the respondent no. 1 in his basic
writ petition that one of the experts (respondent No. 3) was
a faculty in the AIIMS Delhi and another expert
(respondent No. 4) is also a Consultant and HoD in
Safdarjung Hospital Delhi. That AIIMS being one of the
premier medical institutes of the country, there are
thousands of students studying and researching there and
that there are 100s of faculty members. The fact that an
expert is a faculty in the institute wherein the aspiring
candidate studies cannot by itself mean that the expert
cannot be an examiner. lnfact, in the present case, the
selected candidate has only done his Post DM fellowship
from AIIMS which is a research course and neither of the
experts was a supervisor/guide of the selected candidate.
Besides in order for an expert to be disabled from the
panel, he must have a direct and non illusionary relation
with the shortlisted aspirant. The relation cannot be too
remote because then most of the experts would be
disabled especially in the fields like the instant one
(Medical oncology) where there are already limited number
of experts in the country. The respondent no.1 has tried to
assign his own under performance on the experts. Had he
been honest in his allegations then he could have agitated
9 RP No. 87/2022 in
WP(C) No. 802/2022
the matter right after the interview, instead he waited for
the results, took a calculated chance then after being
unsuccessful, he as an afterthought after around 05
months concocts a story and alleges he was malafidely
failed. The Tribunal has not considered the said fact at all
and that this Hon’ble Court could have considered the
same only after entertaining the petition but due to the
order impugned, an order which is against the law as well
as the facts could be finalized. Therefore, when
substantial justice and Technicalities are against each
other, then it is always the substantial justice that
prevails.
xiii. That the petitioner has been able to make out the case
which otherwise requires adjudication in terms of O-47 R-
1 by taking into account the cumulative view of the case.
xiv. That in view of the above facts and circumstances the
judgment under review suffers from error apparent on the
face of record, therefore, deserves to be reviewed to the
extent submitted hereinabove.
xv. That other grounds shall be submitted at the time of
hearing with kind permission of the Hon’ble Court.
11. A bare perusal of the grounds of challenge on the basis of
which the review petition is being sought would show that in
meaning to seek review, the petitioner-J&K PSC is, in fact, missing
wood for the trees, in the sense that this Court in dismissing the
writ petition came to attend its attention to a very prominent fact
that Dr. Mohd. Hussain Mir, whose selection being challenged by
Dr. Rajeev Gupta before the Central Administrative Tribunal, CAT,
Jammu Bench, Jammu never felt bothered to question said
judgment adverse against him meaning thereby a latent admission
on his part that in the viva-voce where he came to score over the
10 RP No. 87/2022 in
WP(C) No. 802/2022
respondent No. 1 – Dr. Rajeev Gupta a favour was done to him on
which count the Central Administrative Tribunal, CAT Jammu
Bench, Jammu came to hold the selection of Dr. Mohd. Hussain Mir
as an outcome of bias operating in his favour because of presence of
Dr. Atul Sharma in the interview committee born out from the fact
that Dr. Mohd. Hussain Mir happened to be the student of Dr. Atul
Sharma.
12. The tone and tenor of the grounds of review petition is as if
this Court dismissed the writ petition solely on the ground that
institution of the writ petition was without any prior and proper
decision the part of the petitioner-J&KPSC as a constitutional body
to challenge the judgment of the Central Administrative Tribunal,
CAT, Jammu Bench, Jammu for carrying forward which the
Secretary of the time had come forward with the institution of the
writ petition.
13. Even in the review petition, by reference to purported
communication No.PSC/LIT/153/2018/P-1 dated 15.02.2022
addressed by the Assistant Law Officer of the petitioner – J&K PSC
to Sh. F. A. Natnoo, Standing Counsel for the petitioner-J&K PSC,
there is no mention therein as to vide which minutes of meeting the
so referred approval of the competent authority for filing the writ
petition against judgment dated 03.02.2022 of the Central
Administrative Tribunal, CAT, Jammu Bench, Jammu was taken.
11 RP No. 87/2022 in
WP(C) No. 802/2022
Said communication No. PSC/LIT/153/2018/P-1 dated 15.02.2022
by the Assistant Law Officer of the petitioner- J&K PSC to the
Standing Counsel for the petitioner – J&K PSC could not be and
cannot be taken by a constitutional court to be bearing the decision
of a constitutional body to file a writ petition against an adjudication
made in a selection related matter.
14. In view of the aforesaid, we, therefore, find that under the
guise of writ petition, the petitioner-J&K PSC in fact is seeking to re-
agitate the matter forming subject matter of the writ petition. We,
therefore, held the petition as misconceived and dismiss it.
(RAHUL BHARTI) (SINDHU SHARMA)
JUDGE JUDGE
JAMMU
02.04.2025
Muneesh
Whether the judgment is speaking: Yes / No
Whether the judgment is reportable : Yes / No
Muneesh Sharma
2025.04.02 15:06
I attest to the accuracy and
integrity of this document
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