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2010 DIGILAW 143 (JK)

J&K S. S. R. B. v. Anju Choudhary

2010-03-18

BARIN GHOSH, MANSOOR AHMAD MIR

body2010
1. Heard learned counsel for the parties on the application for condonation of delay. Being satisfied with the reasons furnished for the delay in preferring the appeal, we allow the application for condonation of delay and direct registration of appeal, if not already registered. 2. Admit. By consent of the parties, the appeal is taken up for hearing. Heard learned counsel for the parties. Perused the materials on record. 3. On May 29, 1991, an advertisement was published seeking response from the candidates to supply 143 vacancies of teachers in the District of Udhampur. Writ petitioners, nine in number, responded to the said advertisement. Selection pursuant to the said advertisement was made in the year 1993, when none of the petitioners came in the merit list prepared on conclusion of the selection. 4. In the writ petition, it was contended that posts in question were district cadre posts and that in respect of each of the posts, each eligible candidate could respond and, accordingly, for each post the competition was in between each eligible candidate responding to the advertisement. It was contended that, instead of keeping the competition open in between each such respondee, the competition was narrowed down by making selection on the basis of Block level response. Writ petition was dismissed whereupon writ petitioner no. 2 alone took the matter before the Division Bench. The Division Bench, while setting aside the order of dismissal, remitted the writ petition, but confined it to writ petitioner no. 2 only. Ultimately, the writ petition was heard and decided in 2008, when by the judgment and order under appeal, the Writ Court allowed the writ petition and directed the respondents to determine the merit position of petitioner no. 2 on district wise basis, with a further direction that, if the writ petitioner comes within the merit zone, to appoint her in an available post without disturbing selection of others. 5. In the appeal, preferred by the selection authority, it is being contended that it has already recommended 143 persons against 143 posts and, in terms of the mandate of law, it cannot make recommendation in excess of the advertised vacancies. 5. In the appeal, preferred by the selection authority, it is being contended that it has already recommended 143 persons against 143 posts and, in terms of the mandate of law, it cannot make recommendation in excess of the advertised vacancies. It was contended that having regard to the nature of the case, the Court, while directing re-determination of merit position of the petitioner on district wise basis, ought to have had authorised the appellant to cancel recommendation of one of those recommendees, whose recommendation may be interfered with in the event petitioner no. 2 succeeds on district wise merit. 6. It must be kept in mind that selection stood completed in the year 1993. Since 1993, the recommendees on being appointed have discharged their duties as teachers. In the process in the last 17 years, they have not only set down their goal but have also acquired status in life. Selection on Block wise basis was not the fault of the selectees, but was the fault of selectors. Though a person has been selected through a faulty mechanism but he has acquired the benefits thereof for almost 17 years, at the same time, in the matter of such selection he had no role to play, he should not, in the interest of justice, be affected by a Judicial Review Court. 7. That being the situation, the Court did not disturb the selection already made. It only directed the appellant to make a further recommendation in the event it is found by the appellant that petitioner no. 2 was a victim of a faulty selection adopted by the appellant. After such recommendation is made, it would be the obligation of the State, for whose benefit such selection had been made, to find out an available vacancy and, if such vacancy is available, to appoint petitioner no. 2 to supply the same. In law and on facts, therefore, the judgment and order under appeal is not interferable. 8. Appeal, thus, fails and the same is dismissed.