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2010 DIGILAW 474 (JK)

Chanchal Kumari v. State

2010-08-26

Sunil Hali

body2010
1. The controversy involved in both these writ petitions relates to the appointment of RET teaching guides in Govt. Primary School, Morchapur, Tehsil Bishnah. As the facts and the law point involved in these writ petitions are similar, therefore, the same are being disposed of by this common order. 2. The brief facts as enumerated in the writ petitions are as under:- SWP No.1012/2005 In this writ petition, the grievance of the petitioner-Chanchal Kumari is that vide notification issued in the year 2002, applications were invited from eligible candidates for appointment to the post of teaching guide under RET scheme in Govt. Primary School Morchapur, Tehsil Bishnah. The petitioner applied for the said post as she satisfied the eligibility set out in the said notification. However, it seems that no selection was made by the respondents in pursuance to the notification issued in the year 2002. Thereafter, in the year 2003, another notification came to be issued by the Chief Education Officer, Jammu by virtue of which, again applications were invited for appointment to the post of teaching guide under RET scheme in Govt. Primary School Morchapur, Tehsil Bishnah. This notification however, contained the following conditions: - "The candidates who have already applied in response to our early notifications in a particular village, they need not apply afresh." 3. It is also prescribed in the said notification that the minimum and maximum age limit of the candidates was to be considered on the 1st day of January, 2003. On that date, the petitioner had crossed the upper age limit. The petitioner has questioned the subsequent notification before this Court and sought a direction for considering the age of the petitioner as on 01.01.2002, when she applied pursuant to the earlier notification and was within the prescribed age as on the cut-off date. This Court-vide its order dated 07.04.2005 passed in SWP No.2301/2003 directed the respondents to accord consideration to the petitioner for selection as teaching guide under RET scheme or any other scheme as has been notified for engagement of teachers in Village Morchapur, Tehsil Bishnah considering her eligible as having applied pursuant to the notification issued in the year 2002. Even though the selection of private respondent-Rakesh Kumar was not set aside, however, the direction was issued to accord consideration to the petitioner for selection as teaching guide under RET scheme. 4. Even though the selection of private respondent-Rakesh Kumar was not set aside, however, the direction was issued to accord consideration to the petitioner for selection as teaching guide under RET scheme. 4. Against order of learned Single Judge dated 07.04.2005 passed in SWP No.2301/2003, Letters Patent Appeal is stated to have been filed by private respondent-Rakesh Kumar before this Court. During the pendency of the appeal, it seems that the official respondents passed an order disengaging private respondent-Rakesh Kumar from services. Faced with this situation, learned Division Bench of this Court did not address itself to the controversy raised in the Letters Patent Appeal and it was left open to the appellant-private respondent to question the order of his dis-engagement. Letters Patent Appeal was, accordingly, dismissed vide order dated 23.03.2006. 5. In pursuance to direction dated 07.04.2005 passed by the learned Single Judge, the Chief Education Officer, Jammu issued an order No.CEOJ/12389-90 dated 06.06.2005, whereby the petitioner came to be engaged as 3rd teacher under RET scheme in Govt. Primary School, Morchapur and the private respondent-Rakesh Kumar was ousted from service. This order was subsequently stayed by the Director School Education, Jammu vide its communication dated 08.07.2005. It is this order which has been questioned by the petitioner in the present writ petition. It is important to note that order impugned has been stayed by this Court vide order dated 25.07.2005. 6. The grievance of the petitioner-Chanchal Kumari in this writ petition is that in pursuance to the directions issued by this court, she was appointed as 3rd Teacher under RET scheme in Govt. Primary School, Morchapur and ousting of private respondent-Rakesh vide order dated 06.06.2005 was inevitable and subsequent stay of this order by the Director School Education, Jammu vide order dated 08.07.2005 was uncalled for and was in contravention to the direction passed by this Court in SWP No.2301/2003. Her contention is that this issue has been settled by this Court in SWP No.2301/2003 by holding that the petitioner-Chanchal was eligible to apply for the said post, as the cut-off date for determining the age was 01.01.2002 when earlier notification was issued and the petitioner had applied for the same. 7. Her contention is that this issue has been settled by this Court in SWP No.2301/2003 by holding that the petitioner-Chanchal was eligible to apply for the said post, as the cut-off date for determining the age was 01.01.2002 when earlier notification was issued and the petitioner had applied for the same. 7. The respondents have filed objections wherein it is stated that the appointment to the post of teaching guide under RET scheme was made in favour of the petitioner, however, the same was stayed in order to ascertain as to whether any notice was issued to the private respondent-Rakesh Kumar before issuance of order of his disengagement. Till clarification was obtained, the order of appointment of the petitioner was stayed by the Director School Education, Jammu. SWP No.834/2005. In this writ petition, the grievance of the petitioner-Rakesh Kumar is that private respondent-Chanchal Kumari was over age at the time when notification of 2003 was issued. His contention is that after learned Single Judge issued direction in SWP No.2301/2003 vide order dated 07.05.2005 to consider the case of the private respondent, the same was diluted by learned Division Bench in its order dated 23.03.2006 in which an option was given to the petitioner to question his dis-engagement order. The judgment of learned Single Judge passed in SWP No.2301/2003 was modified and the petitioner was given an option to question the order of his disengagement. His further contention is that there was no direction issued by the learned Single Judge to disengage the petitioner, despite that order of his disengagement has been issued by the official respondents. On the other hand, the stand of the official respondents is that issue with regard to eligibility of private respondent-Chanchal Kumari was settled by this Court in SWP No.2301/2003 and the learned Single Judge while dealing with this question held that respondent no.6’s application form was accepted on 01.01.2002 and on that date she was eligible. It was further stated that in view of the judgment passed by this Court referred to above, her eligibility was to be determined w.e.f. 01.01.2002 when her application form was accepted and the eligibility could not have been determined from 2003 as notification clearly makes mention that the candidates who had applied earlier need not to apply again. It was further stated that in view of the judgment passed by this Court referred to above, her eligibility was to be determined w.e.f. 01.01.2002 when her application form was accepted and the eligibility could not have been determined from 2003 as notification clearly makes mention that the candidates who had applied earlier need not to apply again. Since direction was issued by the learned Single Judge to appoint private respondent-Chanchal Kumari but as there was no post against which she could be adjusted except the one which was occupied by the petitioner-Rakesh Kumar, therefore, Rakesh Kumar came to be ousted from service. Further, it is admitted case of the parties that the private respondent-Chanchal Kumari had better merit than the petitioner-Rakesh Kumar. 8. I have heard learned counsel for the parties and perused the record. 9. The issue with respect to the eligibility of the petitioner-Chanchal Kumari was concluded by this Court in SWP No.2301/2003 vide order 07.05.2005. This court very clearly held that the eligibility of petitioner-Chanchal Kumari had to be determined w.e.f. 01.01.2002 when the earlier notification was issued. The said order was challenged by private respondent-Rakesh Kumar in a Letters Patent Appeal. The learned Division Bench of this Court also did not address itself to the merits of the controversy involved in view of the fact that Rakesh Kumar-private respondent had already challenged his disengagement in a separate writ petition. The appeal was, accordingly, dismissed with liberty to private respondent-Rakesh Kumar to pursue his cause in the pending writ petition. 10. It is admitted case of the parties that the petitioner-Chanchal Kumari was having better merit than the private respondent-Rakesh Kumar. It was only in pursuance to the direction of this court that she was engaged as RET teacher. The order impugned dated 08.07.2005 issued by the Director School Education, Jammu in staying appointment of the petitioner- Chanchal Kumari was uncalled for and not in consonance with the judgment passed by this Court in SWP 2301/2003. 11. In view of the above, I, allow SWP No 1102/2005 and set aside order No DSEJ/RET/7703 dated 08.07.2005 passed by the Director School Education, Jammu. The petitioner-Chanchal Kumari is held entitled to receive her remuneration from the date of her engagement as teaching guide, if not already released in her favour. Disposed of along with connected CMP(s). 12. 11. In view of the above, I, allow SWP No 1102/2005 and set aside order No DSEJ/RET/7703 dated 08.07.2005 passed by the Director School Education, Jammu. The petitioner-Chanchal Kumari is held entitled to receive her remuneration from the date of her engagement as teaching guide, if not already released in her favour. Disposed of along with connected CMP(s). 12. In view of the above discussion, I find no force in SWP No.834/2005, the same is, accordingly, dismissed along with connected CMP(s).