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2009 DIGILAW 445 (JK)

Bashir Ahmad Mir v. State Of J&K Ors.

2009-09-11

MUZAFFAR HUSSAIN ATTAR

body2009
1. Petitioner seeks following reliefs in this writ petition:- "It is accordingly prayed that by an appropriate writ, direction or order the rejection of case of the petitioner by the respondents on the ground of age bar be declared illegal and un-constitutional and accordingly be quashed and by an appropriate writ, direction order including one in the nature of writ of certiorari the selection/appointment of respondent No. 5 and 6 as Rehbar-e-Taleem for Primary School Mir Mohalla Hanroo be quashed and the respondents be directed to appoint the petitioner as Rehbar-e-Taleem for the said School. Any other appropriate writ, direction or order be also passed in favour of the petitioner as the Honble Court deems just and proper in the facts and circumstances of the case." 2. Petitioner seeks above reliefs on the basis of Government Order No. 971-GAD/2005 dated 5th August 2005 which is reproduced as under:- "Government Order No.971-GAD of 2005 Dated: 05.08.2005 It is hereby ordered that the following maximum age limit shall w.e.f 01.01.2005 apply in respect of posts falling under direct recruitment to Govt service in all i.e Subordinate and Gazetted Service other than those filled through combined competative examination shall continue to be governed by SRO 38 of 2005. (i) General Category Candidate: 37 years. (ii) Physically challenged: 39 years. (iii) Members of SC/ST: 40 years (iv) Candidates already in Government service/Ex-serviceman: 40 Years It is further ordered that the above dispensation shall apply to the posts advertised by the Selecting Agencies w.e.f 01.01.2005 against which the selection process has not been completed till the issuance of this order and the selection shall only be finalized after affording such candidates an opportunity to apply if they are otherwise eligible as per the relevant Recruitment Rules. The recruitment for the posts which have been advertised before 01.01.2005 shall be governed by the age applicable at the relevant point of time. The Finance Department shall make necessary amendment in the Jammu and Kashmir Civil Services Regulations as well. By order of the Government of Jammu and Kashmir. Sd:- (Leena Padha) Under Secretary to Government General Administration Department" 3. An advertisement notice issued by Z.E.O Dangiwacha was published in News paper on 9th April 2005 inviting applications from eligible candidates for engagement of Rehbar-i-Taleem and Education Volunteer under SSA Scheme in schools mentioned in the said notice. By order of the Government of Jammu and Kashmir. Sd:- (Leena Padha) Under Secretary to Government General Administration Department" 3. An advertisement notice issued by Z.E.O Dangiwacha was published in News paper on 9th April 2005 inviting applications from eligible candidates for engagement of Rehbar-i-Taleem and Education Volunteer under SSA Scheme in schools mentioned in the said notice. It was further provided that the applications shall reach to the office of ZEO Dangiwacha within ten days from the date of its publication. At serial No. No.1 of the said notification appears Village Hanroo and two posts of teachers were required to be filled up under Rehbar-i-Taleem pattern. Village Level Committee constituted under Govt. order No. 396/Edu-2000 dated 28th April 2000 was under obligation in terms of said Govt order to draw a panel comprising of eligible candidates to be one and half times more of the assessed requirement of R.T in order of merit. In terms of the Govt. order No. 396 (supra), under the head "mode of selection" it is provided that the panel drawn by Village Level Committee(hereinafter referred to V.L.C) shall be submitted by the ZEO to the concerned D.C. The D.C along with representative of Director School Education is to make the final selection commensurate with the assessed requirement. The formal order of engagement is to be issued by ZEO concerned. 4. In terms of Govt order No. 597-Edu-2003 dated 02.06.2003, the Committee for making selection/engagement of the candidates against the post(s) was ordered to comprise of Director School Education of the Province, Chief Education Officer and Principal DIET of the respective District. 5. As the post(s) under SSA scheme were ordered to be filled up on the pattern of R.T scheme notified by Govt. order No. 396 (supra), the process of selection/engagement was accordingly initiated by framing of panel by the V.L.C. The panel comprising of one and half times more number of candidates in respect of the two posts was prepared thus consisting of three candidates. Respondent No.5 on the basis of her merit figured at Sr. No.1, respondent No.6 figured at Sr. No.2 and one Amannullah Mir figuring at Sr. No. 3 of the said panel. Perusal of panel reveals that petitioner besides one Manzoor Ahmed Wani had applied for being selected/engaged as R.T in Village Hanroo, but petitioner could not be empanelled as he was found to be over age. 6. No.1, respondent No.6 figured at Sr. No.2 and one Amannullah Mir figuring at Sr. No. 3 of the said panel. Perusal of panel reveals that petitioner besides one Manzoor Ahmed Wani had applied for being selected/engaged as R.T in Village Hanroo, but petitioner could not be empanelled as he was found to be over age. 6. The record produced by Mr. Azharul Amin ld. counsel for respondents, reveals that the panel was submitted to C.E.O Baramulla vide No. Estt/ZEOD/918 dated 30th July 2005. The record further reveals that the Selection Committee comprising of Director School Education Kashmir, Chief Education officer Baramulla and Principal DIET Sopore made the selection in respect of sixteen schools which inter alia comprises Village Hanroo zone Baramulla also and accordingly approved the selection of respondents 5 and 6 for being engaged as R.Ts vide No. 36973 dated 25th August 2005. The ZEO Dangiwacha, issued engagement orders in favour of respondents 5 and 6 on 26th August 2005. The said respondents are continuing in service ever since. 7. Petitioner has filed this petition in view of the issuance of Government order No. 971 (supra). In the said Government order it was provided that maximum age limit w.e.f 1st Jan. 2005 in respect of post(s) falling under direct recruitment to Government service in all the Subordinate and Gazetted service other than those filled through competative examination in respect of general category candidates shall be 37 years. It was further provided in the said Govt order that above dispensation shall apply to the posts advertised by selection agency w.e.f 1st Jan. 2005 against which the selection process has not been completed till the issuance of said order and it was further provided that selection shall only be finalized after affording such candidates an opportunity to apply if they are otherwise eligible as per the relevant Recruitment Rules. 8. The official as well as private respondents in their reply/objections have taken a stand that before issuance of the Government Order No. 971, the selection process was complete, as such the petitioner cannot derive any benefit under the said Government order. 9. Heard learned counsel for parties. Considered the matter. 10. 8. The official as well as private respondents in their reply/objections have taken a stand that before issuance of the Government Order No. 971, the selection process was complete, as such the petitioner cannot derive any benefit under the said Government order. 9. Heard learned counsel for parties. Considered the matter. 10. Selection Committees proceedings dated 25th August 2005, culminated in selection of respondents 5 and 6, so it becomes demonstratively clear that at the time of issuance of Government Order No.971 (supra), the process of selection for selecting the candidates was not complete and said Govt order would thus apply to the facts of this case. 11. Mr. R.A. Khan ld. counsel for respondents 5 and 6 referred to and relied upon the judgment of the Honble Supreme Court in case titled A.P. Public Service Commission Hyderabad and anr v. B. Sarat Chandra and ors-respondents to show that when the panel was prepared by the V.L.C the process of selection was complete, as such, the Government order No. 971 would not apply to the facts of this case. Para 7 of the aforesaid judgment reveals that Honble Supreme Court has held that the word "selection" comprises of initiation of process by issuance of advertisement notice, the scrutiny of applications, rejection of defective applications, or elimination of ineligible candidates, conducting examination, calling for interview or viva voce and preparation of list of successful candidates. The judgment would thus show that the selection process culminates in forwarding the select list to the appointing authority. This judgment would thus help the petitioner than respondents. The ld. counsel for respondents 5 & 6 also referred to and relied upon judgments passed in cases titled Prof. A.N. Karia and ors Petitioners v. M. S. University, Baroda and ors. Respondents, reported in 1991(1) SLR 524; Rajesh Kumar Daria v. Rajasthan Public Service Commission and ors, reported in JT 2007 (10) SC 154; A.P. Public Service Commission, Hyderabad and anr. appellant v. B.Sarat. Chandra and ors.. Respondents, reported in (1190) 2 SCC 669; Miss Shainda Hasan, Appellant v. State of Uttar Pradesh and ors Respondents, reported in AIR 1990 SC 1381;M.M.C Fernandes, Section Superintendent Mormugao Port Trustpetitioner v. Mormugao Port Trust and ors.. appellant v. B.Sarat. Chandra and ors.. Respondents, reported in (1190) 2 SCC 669; Miss Shainda Hasan, Appellant v. State of Uttar Pradesh and ors Respondents, reported in AIR 1990 SC 1381;M.M.C Fernandes, Section Superintendent Mormugao Port Trustpetitioner v. Mormugao Port Trust and ors.. respondents reported in 1985(2) All India Services Law Journal 439; Ashok Kuamr Sonkar-Appellant v. Union of India and ors-Respondents, reported in 2007(2) SCT 19;State of Karnataka and ors-Appellants v. Ameerbi and ors-Respondents, reported in 2007(1) SCT 601 and Tarjit Singh and ors-petitioners v. State of Punjab and ors-Respondents, reported in 2006(1) SCT 86, in the hope that the respondents 5 and 6 having been appointed about four years back and being in continuance service on equitable considerations their appointments may not be disturbed. 12. Mr. Azharul Amin ld. counsel for respondents in his fairness submitted that the Government order No.971 has been made applicable to the selection/engagement made on the pattern of R.T. Scheme in respect of post(s) which became available under SSA Scheme. 13. The position thus emerges is that under the R.T Scheme the V.L.C has to prepare a panel of candidates which panel must comprise of candidates one and half times more than the post(s) required to be filled up. The panel is thereafter to be considered by the selection committee and composition whereof has been changed in terms of Government Order No. 597 (supra). The Selection Committee considered the panel submitted by the V.L.C through Z.E.O on 25th August 2005. Admittedly on 5th August 2005 when the Government order No. 971 (supra) was issued, the process of selection was not complete. The official respondents in such circumstances were thus required to follow the said Government order. 14. The contention of Mr. R.A. Khan ld. counsel for respondents 5 and 6 is that the process of selection becomes complete as soon as panel is prepared by V.L.C. The said argument requires to be rejected in view of the purport of R.T. Scheme and the Government orders referred to hereinabove. In the R.T. Scheme (Govt order No. 396-Edu-2000), the different stages have been indicating for making selection/engagement of Rehbar-i-Taleem. In terms of clause D (ii) under the head "Role of V.L.C", it is provided that after assessment of the requirement is made, the V.L.C shall be convened by the Z.E.O. The Qoram of V.L.C shall be four, of which three shall be non-official members. In terms of clause D (ii) under the head "Role of V.L.C", it is provided that after assessment of the requirement is made, the V.L.C shall be convened by the Z.E.O. The Qoram of V.L.C shall be four, of which three shall be non-official members. The panel so drawn up should be one half times more of the posts to be filled up, in order of merit. Under the sub head "mode of selection" at (i) it is provided that the panel drawn up by V.L.C shall be submitted through the Z.E.O to the concerned D.C. The D.C along with a representative of Director School Education will make final selection commensurate with the assessed requirement. In clause (ii) it is provided that a formal order of engagement of the R.T shall be issued by Z.E.O concerned. These clauses of scheme makes it abundantly clear that the merit panel drawn by the village level committee is not a selection list, but selection is to be made by the Committee, which is specifically provided in the said scheme and composition whereof has been changed thereafter. 15. Assuming for the sake of arguments that process of selection was complete on the date the Government order No. 971 was issued then the steps provided in the R.T Scheme itself for making selection/engagement would stand defeated. The provisions of scheme are lucid and clear. The very fact that the V.L.C is required to assess the deficiency and then prepare panel of candidates one and half times more than the assessed deficiency would have not been there and it would have been specifically provided in the scheme that the panel prepared by V.L.C is the selection panel. It does not also stand to reason as to how a panel comprising of candidates of one and half number more the vacancies available would constitute a selection panel. Selection panel has to be only of the candidates who are recommended for engagement and such panel in terms of Govt Order No. 396-Edu of 2000 cannot comprise of the candidates more than that of the available post(s). Even otherwise since mode of selection is provided under the R.T. Scheme itself and the committee is also provided who can make such selections, the argument of ld. counsel for the respondents is rendered in-consequential and merits rejection. 16. Mr. Even otherwise since mode of selection is provided under the R.T. Scheme itself and the committee is also provided who can make such selections, the argument of ld. counsel for the respondents is rendered in-consequential and merits rejection. 16. Mr. R.A. Khan ld counsel for respondents 5 and 6 further submitted that this writ petition is not maintainable as the petitioner instituted civil original suit in respect of the issues involved in this writ petition. A copy of the suit was produced at the time of hearing. In the said suit the petitioner prayed that the defendants 2 and 3 therein shall not affect any change in the panel prepared for engagement of teachers under SSA scheme. It was also prayed that petitioners name shall not be deleted from Sr.No. 1 of the said panel. The relief sought for in this writ petition are based on subsequent developments. The petitioner seeks quashment of the appointment of respondents 5 and 6 and is further seeking direction to official respondents to appoint him on one of the post of R.T. The suit filed would not thus affect the maintainability of this writ petition. 17. The important question which begs answer is as to whether in view of the prayer made and relief sought in the writ petition same can be allowed. The petitioner prays for quashment of the order rejecting his claim for being considered and selected/engaged as R.T on the ground of being over-age and further prays that same be declared illegal and un-constitutional. He further prays for issuance of appropriate writ order or direction including one in the nature of certiorari, to quash the selection of respondents 5 and 6. and respondents be directed to appoint petitioner as teacher in the said school. 18. As already stated the relief sought for in the writ petition is based on Government order No.971-GAD of 2005. Perusal of the said Government order reveals that if the selection process was not complete till issuance of the said Government order then the selection had to be finalized after affording such candidates an opportunity to apply, who would come within the age provided in the said government order. Perusal of the said Government order reveals that if the selection process was not complete till issuance of the said Government order then the selection had to be finalized after affording such candidates an opportunity to apply, who would come within the age provided in the said government order. In terms of the said government order the official respondents were required to stop the selection process if the same, was not completed on the date of issuance of government order dated 5th August 2005 and respondents were required to issue another public notice informing the candidates who would be governed by the said Government order to apply for seeking selection/engagement to the two R.T posts available in primary school Hanroo. 19. For the reasons not forthcoming it cannot be said as to why the said procedure has not been followed by the official respondents. May be that the Government order No. 971 may not have reached to the authorities before completion of selection/engagement process. 20. The only right which would flow from the Government order No. 971 (supra) is that the selection process which was not complete on 5th August 2005 was to be halted in its tracks and opportunity was to be afforded to the candidates covered by said government order to apply and seek consideration for being selected and appointed to the post(s) for which the selection process was initiated. The said government order does not provide that the candidate(s) is to be selected/appointed as that would otherwise not be permissible under law. A candidate is to be selected/appointed when he is considered alongwith all other eligible candidates for such selection/appointment. The petitioner seeks direction for his appointment. The said direction cannot be issued as that is not the mandate of the Government order and secondly it would be violative of the rights of all other similarly circumstanced persons which would be violative of constitutional guarantees available to such candidates under Article 14 and 16 of Constitution. By issuance of a direction sought for in the writ petition an illegal order would come into existence. Orders can not be issued by the courts which would give birth to illegal and unconstitutional orders. 21. The writ petition for the above stated reasons cannot be allowed and is, accordingly, dismissed along with all connected CMPs. Record be returned to ld. counsel for official respondents.