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2009 DIGILAW 417 (JK)

Bashir Ahmad Sheikh v. State Of J. &K.

2009-08-26

MUZAFFAR HUSSAIN ATTAR

body2009
1. In this writ petition, order no. DG-YSS/8715-21 dated 27th of August, 1998 passed by Director General, Youth Services and Sports, J&K, Srinagar, is called in question. 2. An advertisement notice was issued for making selection/appointment to the post of Physical Education Teachers District Budgam. Petitioner being eligible also sought consideration for being selected and appointed to the post of Physical Education Teacher. After undergoing the process of selection, petitioner was recommended by J&K Service Selection Board for being appointed as Physical Education Teacher along with other selected candidates. Petitioner vide order no. DYSS/EStt/Apptt/2099-2106 dated 16th of March, 1998 issued by Directorate of Youth Services and Sports, M.A. Stadium, Jammu, was appointed on regular/temporary basis against the available post of Physical Education Teacher in District Budgam. Petitioner being in possession of B.P. Ed. Certificate was ordered to work in the pay scale of Rs. 1200-2040. The appointment order did not provide the conditions that the appointment order of the petitioner will be subject to character and antecedents verification. The clause second of the appointment order provided that appointment order of the petitioner will be subject to verification of qualification (academic/technical) certificates. The communication of SSP, District Budgam addressed to Inspector General of Police, CID J&K Srinagar bearing No. CS/OB/9327 dated 19th of November, 1997 reveals that there is nothing adverse against the petitioner in the local police records. It was further informed that political affiliation and other details can be had from CID organization. Further case of the petitioner is that he being appointed and selected was allowed to join on 17th of March 1998 in the office of Youth Service and Sports, Budgam. It is thereafter the impugned order came to be passed. This court vide order dated 2nd of September, 1998, while issuing notice directing that till next date petitioner shall be allowed to continue. Interim direction has been continued thereafter. It is submitted at the bar that in view of the court order petitioner continues to be in the service of the respondents as on date. It is further submitted that petitioner in view of meritorious service has been promoted and appointed to the post of Physical Education Teacher, vide order No. DG-YSS8715-21 dated 28th of August, 1998 issued by respondent no.2. 3. Heard learned counsel for petitioner. Considered the matter. 4. It is further submitted that petitioner in view of meritorious service has been promoted and appointed to the post of Physical Education Teacher, vide order No. DG-YSS8715-21 dated 28th of August, 1998 issued by respondent no.2. 3. Heard learned counsel for petitioner. Considered the matter. 4. The ground on which order of appointment of petitioner was cancelled was that the character and antecedent certificate was managed and manipulated by the petitioner in connivance with some unscrupulous elements fraudulently. Perusal of the impugned order reveals that nothing adverse has come in respect of the character and antecedent of the petitioner. 5. Petitioner after having undergone selection process on the basis of his merit recommended by the J&K Service Selection Board was appointed as Physical Education Teacher. The petitioner thereafter joined services. The right vested in the petitioner to hold the post of Physical Education Teacher and could be deprived of the same by following the procedure established by law. 6. On the allegations of the securing appointment by producing allegedly fake character and antecedent certificate, a duty was cast on the respondents to initiate enquiry against petitioner and give him opportunity of being heard. Even if no regular enquiry was required to be conducted still before passing the impugned order, it was duty cast upon the respondents to issue show cause notice to the petitioner, so as to allow him opportunity to explain his position. 7. The pleadings of the parties as also the material placed on the records of writ petition does not show that any show cause notice was issued to the petitioner against purported cancellation of the appointment order. The principles of natural justice constitute soul of Articles 14 and 16 of the Constitution are thus violated and infringed by the respondents. 8. The impugned order deserves to be quashed on this score alone. However, one more facet of this case is that some persons who were selected along with petitioner as Physical Education Teacher and against whom adverse reports were given by the Police Department were still appointed details thereof have been given in rejoinder affidavit of the petitioner. 9. 8. The impugned order deserves to be quashed on this score alone. However, one more facet of this case is that some persons who were selected along with petitioner as Physical Education Teacher and against whom adverse reports were given by the Police Department were still appointed details thereof have been given in rejoinder affidavit of the petitioner. 9. In the rejoinder affidavit, it is specifically pleaded two persons namely Ghulam Nabi War S/o Abdul Razaq R/o Adina Nabal Budgam and Mohammad Akram Bhat S/o Abdul Gaffar Bhat R/o Dharmuna Budgam who also came to be selected and appointed along with the petitioner and figured at Serial No. 7 and 16 respectively in the selection list, having adverse character and antecedent reports have been now promoted to the next higher post as well. 10. It is not stated in the objections by the respondents that after continuing in service anything adverse is reported against petitioner. The impugned order, in the facts and circumstances of this case, is rendered illegal and is accordingly quashed. However, the quashment of the impugned order would not prevent the competent authority to initiate enquiry against the petitioner, if they so choose. 11. Disposed of along with all connected CMP(s).