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2011 DIGILAW 501 (JK)

Kanchan Devi v. S. S. Kapur and Ors.

2011-09-21

MUZAFFAR HUSSAIN ATTAR

body2011
JUDGMENT Hon'ble Mr. Justice Muzaffar Hussain Attar, Judge 1. In terms of court order dt. 10th of Oct 96, respondents 1 to 4 were directed to consider the case of petitioner for appointment to the post of teacher in district Doda in any ensuing selection on the basis of eligibility as prescribed in the advertisement notice No. 4 of 1989 dt. 12th of June 89. 2. Mr Shukla, learned counsel, appearing for respondent-Service Selection Board, submitted that the eligibility for the post of teacher was changed in the year 1992 and the basic qualification was provided as 10+2. Learned counsel also submitted that the selection process for making selection of suitable candidates for being appointed on the post of teacher was initiated in the year 2005. It is further submitted that in view of the change of eligibility criteria, the criteria for making the selection was also changed. It is submitted that in the year 1989, the basic educational qualification for the post of teacher was matriculation. The marks allocated for the said qualification were 75, 5 marks were for additional qualification and 20 marks were fixed for viva-voce. It is submitted that in view of the subsequent change in the eligibility qualification, the criteria for selection was also changed. Learned counsel submitted that in the selection process of 2005, petitioner was considered but could not be recommended for appointment. It is submitted that the merit of the petitioner was evaluated in terms of criteria as was prescribed in the year 1989, but she could not recommended for being appointed on the post of teacher in-as-much-as she had secured less marks than the last cut-off merit which was fixed in the selection process of 2005. It is submitted that a consideration order has been passed, which has not been challenged by the petitioner. 3. Mrs Neeru Goswami, learned Dy.AG, submitted that the appointment order could not be issued in favour of the petitioner as no recommendation was made in her favour by the respondent Board. 4. The direction of the court dt. 10th of Oct 96, was clear and specific. Petitioner was to be considered on the basis of eligibility as prescribed in the advertisement notice No.4 of 1989 dt. 12th of June 89. 4. The direction of the court dt. 10th of Oct 96, was clear and specific. Petitioner was to be considered on the basis of eligibility as prescribed in the advertisement notice No.4 of 1989 dt. 12th of June 89. Admittedly, a different criterion was prescribed by the Selection Board in the year 1989 for making selection of suitable candidates for being appointed on the post of teacher. Though, the petitioner was to be considered in the ensuing selection process, but her merit was to be adjudged on the basis of eligibility which was prescribed in the advertisement notice of the year 1989 which would also include the criteria fixed in the said notification. Even though, the merit of the petitioner has been evaluated on the basis of criteria, which was fixed in the year 1989, but she has not been recommended for being appointed because her merit has been compared with the merit secured by the last selected candidate in the selection process of 2005, which could not have been done. The selection process of 2005, was admittedly, conducted on a different eligibility qualification and different criteria. Petitioner, infact, constituted a single class in itself and after adjudging her merit, she was to be recommended for being appointed on the post of teacher. Comparing her merit with the candidates who participated in the selection process of 2005 on a different eligibility qualification and different criteria was not the mandate contained in the judgment dt. 10th of Oct 96. Otherwise also, it does not stand to reason that how the merit of the candidates could be compared when the same is adjudged on the basis of different eligibility qualification and different criteria. The consideration order which has been passed has the effect of whittling down the judgment dt. 10th of Oct 96. The court judgment has remained un-implemented. The petition was filed by the petitioner in the year 1991 and was decided in the year 1996. One more contempt petition filed by the petitioner was disposed of on the undertaking of counsel for the respondents that the judgment passed by the court would be implemented. 5. Like all other democratic institutions, the institution of judiciary also survives on the faith of the people. This faith can be maintained and preserved only when orders/judgments of the courts are implemented. 5. Like all other democratic institutions, the institution of judiciary also survives on the faith of the people. This faith can be maintained and preserved only when orders/judgments of the courts are implemented. In our constitutional scheme, it is the fundamental duty of the executive to implement the orders/judgments of the court when they have attained finality. 6. Prima-facie, it appears that the judgment passed by this court dt. 10th of Oct 96 has been violated with impunity. Rule is required to be framed against the respondents. However, in the interest of justice, last opportunity is granted to the respondents to implement the judgment dt. 10th of Oct 96, in view of the observations made in this order. The respondents to comply the judgment aforementioned and file compliance report within a period of one week from today. In the event, the judgment is not implemented and the compliance report is not filed, the Chairman of the Service Selection Recruitment Board as also Commissioner/Secretary to Government, Education Department shall appear in person on the next date of hearing. List on 30th of Sept 2011. 7. Registry to provide a copy of this order to the counsel for the respondents today itself.