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2009 DIGILAW 586 (JK)

Hilal Ahmad Chack v. State Of J. &K.

2009-11-25

MUZAFFAR HUSSAIN ATTAR

body2009
1. Petitioner claims to be engaged as ReT by Zonal Education Officer, Boniyar, Uri, in upgraded Middle School, Chotali, Uri vide Order No. 497-501 dated 21.12.2004. 2. A complaint was filed by private respondent before the Honble Minister for Consumer Affairs and Public Distribution, in which it was projected that complainant being possessed of superior merit than that of petitioner, the engaged candidate, his engagement as ReT is bad and illegal. On the said complaint respondent no. 4 (Zonal Education Officer) passed order No. ZEOB/38 dated 14.01.2005, wherein and whereunder petitioner was informed that he has been disengaged from service w.e.f 13.01.2005, on the ground that complaint has been lodged against him. It is this order which is challenged in this writ petition. 3. Respondent no. 4 has filed counter affidavit in support of objections. Paragraph 1 and 2 of the counter affidavit are reproduced as under: "1. That a complaint came to be filed before the then Honble Minister for Consumer Affairs and Public Distribution, wherein, it was alleged that the engagement of petitioner superceded another candidate namely Nusrat Jabeen who was having comparatively superior merit and in view of the complaint pending enquiry an order came to be issued by the then Chief Education Officer bearing No. 36363-64 dated 13.1.2005, whereby pending enquiry the selection of the petitioner made vide order dated 11.12.2004 was rescinded. In compliance to the said order the office of Respondent no. 4 issued the impugned order whereby the petitioner was disengaged w.e.f. from 13.1.2005. 2. That the post against which the petitioner was engaged was put to advertisement vide notice dated 28-10-04 and the cut of date for receipt of the application forms was fixed as on 17.11.2004 and in response to that the petitioner as well as complaint namely Nusrat Jabeen had applied. The complainant could not produce the present residence certificate/State subject, as such, her application form was accepted provisionally by the then Zonal Education Officer Boniyar with the condition that she ;will produce the said document by or before 23.12.2004, the complainant failed to produce the requisite documents which resulted in submitting the penal of petitioner for approval and the said panel came to be approved by the competent authority on 11.12.2004 and consequent thereto the petitioner came to be engaged as Rehbar-e-Taleem for Middle School Chotali. It is further submitted here that it was observed by the then Chief Education Officer that the then Zonal Education Officer should have waited for some time and informed the candidate to furnish the documents within some specific period and as in , the present case it was not done, same has deprived the complainant of her merit." Heard learned counsel for parties. Considered the matter. 4. Learned counsel for petitioner submitted that though respondent no. 5 possessed superior merit than that of the petitioner and responded to the advertisement notification, but she could not produce the residential certificate, along with application even within the extended time. It is argued that her claim was not rightly considered and petitioner who was next in merit was selected and engaged as ReT. Learned counsel further submitted that on the said complaint, engagement order of the petitioner has been cancelled without putting him on notice. He further submitted that petitioner has been deprived of the post of ReT as after five years of service, he was entitled for being absorbed as general line teacher. He further submitted that the consequences of the impugned order are not only deprivation for the post of ReT but also consideration for absorption of the general line Teachers as well. He further submitted that impugned order is rendered bad in law. 5. Learned counsel for respondents submitted that complaint was filed by respondent no.5 against selection of petitioner on the ground that she possessed superior merit and on the said complaint enquiry was ordered to be conducted and during the pendency of enquiry, order impugned has been passed. 6. A candidate who responds to an advertisement notification, if satisfies, the requirement of advertisement notification gets vested right in him/her for being selected/considered for being engaged to the advertised post. If a candidate responds to the notification, he/she is duty bound in law to support the application with the testimonials required thereof in the advertisement notification. 7. A person who belongs to a particular area which forms the zone of consideration for making selection and engagement, gets a right to seek selection if responds to advertisement notification. 8. A person who may not be in a position to produce the certificate showing his/her residence, may not debar the authorities to consider the claim for being selected and engaged. 9. 8. A person who may not be in a position to produce the certificate showing his/her residence, may not debar the authorities to consider the claim for being selected and engaged. 9. Certificate is only an evidence to show that a person belongs to a particular place. Factum of belonging to a particular place cannot be denied to a candidate merely by non production of certificate. The said certificate can be asked to be produced at a later point of time as well. 10. The official respondents were duty bound in law to consider the claim of respondent no.5 as well which they have failed to do. If the private respondent, admittedly, is resident of village Badian, Boniyar, the non production of certificate of residence would not disentitle her to seek consideration. She should have been considered and asked to produce the certificate and on failure production of the certificate, the appointment could be declined to her. 11. Be that as it may, official respondents have bungled in this matter, in as much as, at the one hand they have denied right of consideration to respondent no.5 and on the other hand after the engagement of the petitioner, they disengaged him on a complaint without even putting him on notice. 12. Admittedly, petitioner was not engaged by practicing fraud on the authorities. The engagement was result of selection process, therefore, he could not have been disengaged in the manner in which it has been done in this case. Before disengaging him, official respondents were duty bound in law to comply with the principle of natural justice by issuing show cause notice to him. No such notice is issued. 13. The impugned order on the face of it is rendered illegal. 14. This petition is, accordingly, allowed. The impugned order No. ZEOB/38 dated 14.01.2005 passed by Zonal Education Officer, Boniyar is quashed. Respondents are directed to consider the matter in its entirety in view of the observations made in this order and pass appropriate orders thereof. In the process of enquiry, petitioner shall also be associated. Official respondents to pass appropriate orders within a period of two months from the date copy of this order is served on them.