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2011 DIGILAW 740 (JK)

Mansoor Mubarak & Anr. v. State & Ors.

2011-12-30

MOHAMMAD YAQOOB MIR

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1. Vide notification No. ZEOD/2975-79 dated 15.10.2005, applications were invited from the unemployed eligible candidates for engagement as ReT/EV for up-graded Primary Schools under SSA which include PS Muqami Shaheed Mir (Upgrade) at revenue village. 2. In response thereto, only two candidates (petitioners) are shown to have applied, based on which list of the candidates for the said school has been prepared wherein only petitioners figure. Complaint has been lodged by one Abdul Lateef Nazki to the effect that for lack of publicity sufficient number of candidates have not applied. 3. Petitioners have earlier filed SWP No.919/2006 titled Mansoor Mubarak & anr v. State & ors. Same has been disposed of on 29.11.2006 wherein, it is recorded that the grievance of the petitioners is that they have been empanelled for appointment as RET teachers in Govt. Middle School, Muqam Shaheed Mir Dangerpora but were not appointed in view of objection to their selection by one Abdul Latif Nazki. On enquiry the objection of Abdul Latif Nazki was not found valid but still petitioners were not appointed. The petition was disposed of with the direction to the Director School Education to consider the matter and dispose it of f after hearing the petitioners and if required the objector also and pass appropriate orders within three weeks where-after the aggrieved party shall be at liberty to re-agitate the matter. 4. The Director School Education after considering the matter has reached to the conclusion that the posts are required to be re-advertised. In this connection communication has been addressed by Joint Director(EE) Directorate of School Education, Kashmir, to the Chief Education Officer, Baramulla, where-under he has been directed to re-advertise the available posts of RET teachers in Middle School, Muqam-e-Shaheed Mir, Dangerpora. 5. Aggrieved of the said communication present petition has been filed seeking quashment of same. The decision taken for re-advertising the posts has not been challenged. 6. According to learned counsel for the petitioners notification dated 15.10.2005 inviting applications was published in daily newspaper Alsafa in its issue dated 18.10.2005. Despite publication only two candidates i.e. petitioners applied, therefore, petitioners have no competition. The objection of the objector was without basis as the matter was properly published, further added that in terms of earlier judgment dated 29.11.2006 Director School Education was supposed to issue orders of appointment in favour of the petitioners. 7. Despite publication only two candidates i.e. petitioners applied, therefore, petitioners have no competition. The objection of the objector was without basis as the matter was properly published, further added that in terms of earlier judgment dated 29.11.2006 Director School Education was supposed to issue orders of appointment in favour of the petitioners. 7. In opposition, learned counsel for the respondents would contend that due to lack of publicity of the posts only two candidates had applied, they were not selected, simply list of the candidates was prepared. The authorities in their wisdom found it fit to re-advertise the posts so that all the desirous candidates will apply and the best out of the lot can be selected for supplying the vacancies. 8. Learned counsel Mr. Qayoom, appearing for the interveners, submitted that by preparation of the list of the candidates who had applied no indefeasible right had accrued to the petitioners for getting appointment. In support of his submission relied on the judgment captioned Shankarsan Dash v. Union of India reported in AIR 1991 SC1612. Following portion from Para 7 is relevant to be quoted:- "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons..." 9. Considered the matter in the backdrop of the facts and the circumstances and also perused the record as has been produced. 10. Petitioners cannot claim to have a vested right of appointment when they were not selected, even though one of the communications addressed by Chief Education Officer show that the petitioners were empanelled but there was no competition at all. Records as produced would indicate sufficiently that other candidates, even members of Village Level Committee had no information about the advertisement of the posts. 11. Records as produced would indicate sufficiently that other candidates, even members of Village Level Committee had no information about the advertisement of the posts. 11. From the records as produced for perusal it appears that the respondents, with all bona fides, have taken an appropriate decision to re-advertise the posts. The purpose of advertising the posts is to see that there is healthy competition and from the competition candidates with merit and best out of lot are selected for being appointed as ReT teachers. The decision of the authorities cannot be found fault with. The said decision has also not been challenged. In absence of challenge to the said decision, same cannot be annulled. Only the communication has been impugned where-under decision has been conveyed to the Chief Education Officer to re-advertise the posts. 12. When an action is taken with all bona fides, that too in the interests of all deserving, none of the rights of the petitioner, by the decision of the respondents, has been defeated. 13. For the stated reasons, petition is without any merit, as such, dismissed along with connected CMP. Respondents shall forthwith re-advertise the posts in .accordance with the decision taken, in the process petitioners shall also be at liberty to compete. 14. Record as produced by the learned counsel for the respondents be returned to him.