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2012 DIGILAW 126 (JK)

Shamus-ul-Nisa v. State & Ors.

2012-03-28

HASNAIN MASSODI

body2012
1. The State Government on 30th November, 2002, sanctioned two ReT posts/positions in Primary School under Sarva Shiksha Abhiyan Scheme at Wagaypora, Pombay, Education Zone, H.C. Gam. The Zonal Education Officer without notifying availability of ReT vacancies/positions in the newly sanctioned School, got prepared a panel on 29th October, 2003, comprising of a single candidate namely Mudassar Ahmed Dar S/o Tariq Ahmed Dar, R/o Pombay — respondent No. 6 in the petitions on hand, having 10+2 qualification with 257 marks out of 600 marks to his credit against one of the vacancies/positions available in the School. The Zonal Education Officer informed the higher ups in the department that no other candidate was eligible for the available vacancies. The respondent No. 6 was, accordingly, engaged as ReT against one of the available posts on 28.01.2004. 2. The petitioner on 17th February, 2004, approached Deputy Commissioner, Anantnag, with an application that as one of ReT vacancies was left unfilled, the Zonal Education Officer be directed to submit a panel of eligible candidates of the village for the engagement as ReT against the second ReT vacancy available in the School. The Additional Deputy Commissioner on 17th February, 2004, itself endorsed the petitioner's application to Zonal Education Officer, H.C. Gam directing him to prepare the panel and furnish the same to Chief Education Officer of the District. The Village Level Committee in its meeting held on 20th February, 2004 presided by Head Master, Government Primary School, Pombay, Zone H.C. Gam prepared the panel comprising of the petitioner, as no other candidate with requisite qualification was available in the village. 3. The Zonal Education Officer, H.C. Gam-respondent No. 4 in the petitions vide ZEO/HCJ/156/04 dated 15.05.2004 informed the Chief Education Officer, Anantnag that only the petitioner was eligible for engagement as ReT in Primary School, Pombay, on the date the School was sanctioned/opened. The respondent No. 4 further informed the Chief Education Officer, Anantnag, that another panel was prepared on 9th March, 2004 as the panel prepared on 20th February, 2004 was not acted upon because of his absence on leave. The Officer requested the Chief Education Officer to consider the petitioner for engagement against the available vacancy. The stand was reiterated in another Communication dated 14th June, 2004. The Chief Education Officer, Anantnag, vide CEO/AO/ReT dated 25th June, 2004, submitted the matter detailing all the background facts to the Director School Education. 4. The Officer requested the Chief Education Officer to consider the petitioner for engagement against the available vacancy. The stand was reiterated in another Communication dated 14th June, 2004. The Chief Education Officer, Anantnag, vide CEO/AO/ReT dated 25th June, 2004, submitted the matter detailing all the background facts to the Director School Education. 4. The petitioner on 30th June, 2004, filed a writ petition registered as SWP No.982/2004, questioning engagement of Mudassar Ahmed Dar — respondent no.6 in the writ petition as ReT in Primary School, Wagaypora, Pombay, vide order No.ZEO/HC-9/04/859-61 dated 28th January, 2004. The petitioner also sought quashment of third panel dated 9th March, 2004 prepared by the respondent no.4 as also direction to the respondents to issue appointment/engagement order as ReT in favour of the petitioner. The petitioner's case was that after the ReT posts/School under Sarva Shiksha Abhiyan Scheme was sanctioned at Wagaypora, Pombay, the availability of two ReT position was not notified and the respondent no.4 without giving the matter due publicity, arbitrarily engaged/appointed respondent no.6 against the available vacancy notwithstanding the fact that the petitioner was eligible and available and the respondent No. 6 had lower merit as compared to that of the Petitioner. The writ Court on 1st July, 2004 directed the respondents to consider the petitioner for engagement as ReT under Sarva Shiksha Abhiyan Scheme in Government Primary School, Pombay, if otherwise found eligible for the post. The respondents, in the meantime, acted upon the third panel prepared on 9th March, 2004 and vide No. CEO/A/04/SSA/3RD/14317/18/04 dated 06.12.2004, appointed Nusrat Jahan- respondent no.7 in the writ petition, against the second ReT position available in the Primary School, Pombay. The petitioner, in the circumstances, was constrained to file another writ petition on 18.12.2004, registered as SWP No.1652/2004. The petitioner sought quashment of order No. CEO/A/04/SSA/3RD/14317/18/04 dated 06.12.2004, whereby the respondent no.7 was engaged as ReT against the second position available in the Primary School, Pombay and also sought a direction to the respondents to issue appointment/engagement order in her favour. The petitioner sought quashment of order No. CEO/A/04/SSA/3RD/14317/18/04 dated 06.12.2004, whereby the respondent no.7 was engaged as ReT against the second position available in the Primary School, Pombay and also sought a direction to the respondents to issue appointment/engagement order in her favour. The petitioner's case was that she was the only candidate fulfilling the eligibility criteria for the engagement as ReT available when sanction was accorded to ReT posts/School at Wagaypora, Pombay; that the respondent no.6 was erroneously shown to be the only eligible candidate, when the first panel dated 29th October, 2003 was prepared by the respondent no.4; that the petitioner was only available eligible candidate on 17th February, 2004, when process was initiated for engagement of second position of ReT in the Primary School, Pombay and that the respondent no.7 not being eligible at the time of initiation of selection process on 17th February, 2004 and preparation of second panel on 20th February, 2004, could not be considered much less appointed/engaged against the available position. 5. The respondents except respondent no.7 chose not to file any reply in SWP No.982/2004, wherein engagement of respondent no.6 was questioned and so questioned was the third panel prepared on 9th March, 2004. The respondent no.7 in her reply insisted that she after acquiring 10+2 qualification duly applied for the second ReT position in Primary School, Pombay on 20th February, 2004 and was rightly empanelled in the panel dated 9th March, 2004. The respondents 1 to 5 in their reply to the second writ petition maintained that none of the rights of the petitioner were infringed. The respondents 1 to 4 while admitting that the respondent no.6 was the only candidate empanelled on 29th October, 2003, pleaded that the second panel prepared on 20th February, 2004 was prepared by the Village Level Committee in presence of the Head Master of the local School, when the Zonal Education Officer was on leave and, thus, could not be acted upon. The respondents 1 to 4 insisted that the panel dated 9th March, 2004 was duly constituted and as the respondent no.7 figured at serial No.1 in the panel, had merit higher than that of the petitioner, was engaged against second ReT position even in the Primary School in question. The respondents 1 to 4 insisted that the panel dated 9th March, 2004 was duly constituted and as the respondent no.7 figured at serial No.1 in the panel, had merit higher than that of the petitioner, was engaged against second ReT position even in the Primary School in question. The respondents 6 and 7 have taken an identical stand and pleaded that as the petitioner did not file objections to the panel dated 29th October, 2003, and was inferior in merit to respondent no.7, she had no right to be engaged as ReT against either of the vacancies and no cause to question their appointment. 6. I have gone through the pleadings and have heard learned counsel for the parties. 7. The petitioner, as must be evident by now, base is her claim set up in the writ petitions on hand, on following two grounds. i) That after two posts/positions of R-e-Ts were sanctioned under SAC Scheme in Primary School Wagaypora Pombay, Education Zone Kulgam, the respondents 3 and 4 failed to advertise the posts so that the petitioner who was the only other eligible candidate of the locality would participate in the selection process and the two most meritorious of the eligible candidates were engaged against the available posts; that as the available ReT positions were not advertised, the petitioner though eligible on the date the posts were sanctioned and also the date the panel was prepared for one of the posts comprising of Respondent No.6, was kept out of the selection process. ii) That when the petitioner in February 2004 came to know about the sanction of the aforestated posts and that one of the posts was still un-filled, the petitioner approached the concerned authorities for preparation of panel for the 2nd posts and on the date the selection process was initiated for the 2nd R-e-T position, the petitioner was the only eligible candidate and was accordingly empanelled by the Village Level Committee on 20.2.2004 presided over by its Chairman — Headmaster, Primary School, Wagaypora, Pombay; that the Respondent No.7 had neither applied for the available position nor was eligible on the date the selection process was initiated and concluded; and that the petitioner in the circumstances was to be engaged against the available R-e-T position in Primary Sechool Primary School, Wagaypora, Pombay. 8. 8. Though the respondents have made bald denial of the case set up by the petitioner, yet the record made available by the respondents substantiates both the grounds set out in the writ petitions. Perusal of record reveals that the Z.E.O, H.C.Gam - respondent No.4, and the local Village Level Committee did not notify the availability of ReT positions in Primary School, Wagaypora, Pombay after the positions were sanctioned on 30.11.2002 and did not afford opportunity to all the eligible candidates of the village to apply for the available positions. The Respondent No.4 instead in an arbitrary manner prepared a panel comprising of a single candidate — Respondent No.6. It is important to note that the petitioner had acquired 10+2 qualification with 49.33 % (296/600) marks on 31st May, 1996 and was eligible for the available vacancy. The respondent No.6 though also eligible, had 42.9% (257/600) marks in 10+2 examination and was inferior in merit, to the petitioner. The petitioner in the circumstances, would have been selected against one of the vacancies, had the respondents given due publicity to the availability of the vacancies so that the petitioner who on the date of initiation of the selection process was only other eligible candidate for the available vacancy would participate in the selection process. The Enquiry report submitted by the Dy. Chief Education Officer, Anantnag on 27.7.2004 to the Chief Education Officer reinforces the petitioner's claim. 9. It is pertinent to point out that the Chief Education Officer Anantnag on receipt of complaints regarding preparation of panel of ReTs for Primary School, Wagaypora, Pombay vide Order No.5247-50/04 dated 6.7.2004, ordered an enquiry into the matter and appointed Dy. Chief Education Officer, Anantnag as the Enquiry Officer. It would be appropriate to extract following from the enquiry report: "That pursuant to the sanction for opening of the P/S (SSA) at Wagay Pora of village Pambay (zone H.C.Gam), a Panel had been framed by VEC and authenticated/countersigned by the then ZEO HC Gam, Mr. Ab. Rahman Shiekh, on 29.10.03. The panel ought to have been drawn up as follows in order of the merit. S. No Name of candidate DOB R/O Qualif. M. Obtain D of P 1 Shamas-ul-Nissa 10.6.71 Pambay 10+2 296/600 31.05.96 2 Mudassir Ahmad 10.3.83 Pambay 10+2 257/600 27.10.01 But the then ZEO, HC Gam (Mr. Ab. Rahman Shiekh, on 29.10.03. The panel ought to have been drawn up as follows in order of the merit. S. No Name of candidate DOB R/O Qualif. M. Obtain D of P 1 Shamas-ul-Nissa 10.6.71 Pambay 10+2 296/600 31.05.96 2 Mudassir Ahmad 10.3.83 Pambay 10+2 257/600 27.10.01 But the then ZEO, HC Gam (Mr. Ab Rehman Shiekh) who has recently retired on superannuation had chosen to enlist only Mudassir Ahmad Dar, leaving of Shamus-ul-Nissa while the ZEO has filled down a misleading certificate on the Panel that there was no eligible candidate available in the village other than Mudassir Ahmad Dar, Resultantly (Residently), Mudassir Ahmad Dar, has been selected for engagement as R.T and Shamas-ul-Nissa has been left out which goes (regards) to the discredits of the then ZEO HC Gam." 10. It is important to note that though the availability of the posts was not notified before the panel dated 29.10.2003 was prepared by the Village Level Committee, yet it is admitted case of the petitioner that she and Respondent No.6 were only eligible candidates on the date panel was prepared. The petitioner in the circumstances can not question engagement of Respondent No.6, as even if the petitioner was considered against the available vacancy and allowed to participate in the selection process, the respondent No.6 in any case would have been rightfully engaged against the 2nd vacancy available in the School. 11. The petitioner, the circumstances, on acquiring knowledge about the availability of one of the two sanctioned R-e-T positions in Primary School, Wagaypora, Pambay, rightly decided to lay claim to the available vacancy instead of questioning the engagement of Respondent No.6 against one of the vacancies. The petitioner, as is evident from Annexure — A to the writ petition and admitted by the respondents in their reply, approached the Dy. Commissioner Anantnag with the request to initiate selection process for the 2nd ReT vacancy in the Primary School, Wagay Pora Pambay. The Additional Dy. Commissioner Anantnag on 17.2.2004 itself asked the respondent No.4 — ZEO HC Gam to prepare the panel and furnish the same to the Chief Education Officer. The selection process was set into motion on 17.2.2004 itself and on 20.2.2004 the local Village Level Committee presided over by Headmaster, Primary School, Pombay- Chairman of Village Level Committee, met and prepared a panel comprising of the petitioner. The selection process was set into motion on 17.2.2004 itself and on 20.2.2004 the local Village Level Committee presided over by Headmaster, Primary School, Pombay- Chairman of Village Level Committee, met and prepared a panel comprising of the petitioner. The Village Level Committee further certified that no other candidate on the date panel was prepared was eligible for the available vacancy. The panel though not countersigned by Respondent No.4 who was on long leave till 25.2.2004 was forwarded to Chief Education Officer, Anantnag. The respondent No.4 when he joined after availing leave on 25.2.2004 got another panel prepared on 09.03.2004 comprising of the petitioner and Respondent No.7. It is admitted case of the parties Trial the Respondent No.7 was not eligible for the ReT vacancy on the date two ReT posts were sanctioned, on the date selection process was initiated and the panel dated 29.10.2003 prepared or when the selection process for 2nd ReT post was initiated on 17.2.2002 and the panel prepared on 20.2.2004. The petitioner thus was the only candidate to be accorded consideration for engagement against 2nd R-e-T post in the Primary School, Wagaypora, Pombay. The Respondent No.7 neither having applied for the post and nor eligible on the date the selection process was initiated and concluded, could not have been considered much less engaged against the available vacancy of 2nd R-e-T in the said Primary School. The argument that as Respondent No.4 had not counter signed the panel prepared by the Village Level Committee under the Chairmanship of Headmaster, Primary School, Wagaypora, Pombay on 20.2.2004 was not acted upon as it did not bear counter signature of the respondent No.4 does not sound convincing nor does it belie petitioner's stand. 12. In view of panel duly prepared by the Village Level Committee on 20.2.2004 there was no occasion for the respondent No.4 to reopen the matter and draw a fresh panel on 9.3.2004. It would be apt, once again, to turn to the Enquiry Report submitted by Dy. Chief Education Officer, Anantnag. The report reads as under: "On 17.2.2004 Shamas-ul-Nissa approached Dy. Commissioner, Anantnag with the prayer that she may be engaged as 2nd Teacher (on R.T. Pattern) in the said SSA P/S Pombay instead of Challenging and objecting to the selection of Mudassir Ahmad Dar. Chief Education Officer, Anantnag. The report reads as under: "On 17.2.2004 Shamas-ul-Nissa approached Dy. Commissioner, Anantnag with the prayer that she may be engaged as 2nd Teacher (on R.T. Pattern) in the said SSA P/S Pombay instead of Challenging and objecting to the selection of Mudassir Ahmad Dar. Subsequently the VEO has drawn up a panel on 20.2.2004, but it has not been countersigned by the then ZEO HV Gam (Mr. Ab. Rehman Shiekh) because he had proceeded on leave for performing Haj upto 25.2.2004. However, the panel has been submitted to CEO Anantnag. The panel includes only Shamas-ul-Nissa, the facts as are follows. S.No. Name of candidate DOB R/0 Qualif. M. Obtain D of Pass 1 Shamas-ul-Nissa D/Gh. Mohi-ud-Din 10.6.71 Pambay 10+2 296/600 13.5.1996 Co-incidentally, one Nusrat Jan D/o Hafizula Shah passed her 10+2 Exam. On 20.02.2004. It can be safely said that the Drawing up of the Panel is a fait — accompli. Hafizullah F/o Nusrat Jan managed to get another Panel drawn up afresh by the ZEO HC Gam on 9.3.2004. The records speak that a meeting of VEC for the purpose of engaging an R.T has held on 5.3.2004 under the Chairmanship of Headmaster P/S Pambay but the signatures of Headmaster (Chairman) are bearing the date of 9.3.2004. The Enquiry Officer has further opined. "However, all the formalities had been fulfilled on 20.2.2004 regarding the panel which included only Shamas-ul-Nissa. He has recommended through these letters that Shamas-ul-Nissa may be considered to be engaged as R T who is deserving it is manifestly clear that Shamas-ul-Nissa w/o Javid Iqbal has been wronged against, Twice formerly, she has not been included in the First Panel due to suppression of facts by the VEC. Subsequently she has been enlisted as a lone candidate in the next panel, but the panel, has been kept hanging for want of ZEO's countersigned. It is amplified that the panel is not to be termed as unsigned panel. We opine that it is duly signed by the VEC, however it is not countersigned by the ZEO as he was not available. We opine that Shams-ul-Nissa w/o Javid Iqbal R/o Pambay ought to have been selected as R. T on 29.10.2003. The formulation of Panel is controversial and questionable ab-initio. However, the ZEO's office has submitted the next panel which includes only Shams-ul-Nissa is duly signed by the VEC. We opine that Shams-ul-Nissa w/o Javid Iqbal R/o Pambay ought to have been selected as R. T on 29.10.2003. The formulation of Panel is controversial and questionable ab-initio. However, the ZEO's office has submitted the next panel which includes only Shams-ul-Nissa is duly signed by the VEC. It matters little if the panel was not countersigned by the ZEO who was on long leave." 13. The Respondent No.4 after he prepared the impugned panel dated 9.3.2004 vide his letter Nos. 156/04 dated 15.5.2004,334/04 dated 14.6.2004 addressed to the Respondent No.3 has admitted that the petitioner was the only eligible candidate and that he had not processed her case because he had proceeded on leave up to 25.2.2004 and recommended that the petitioner be considered to be engaged as R-e-T against the available vacancy 14. From the above discussion, it emerges that panel dated 20.2.2004 prepared by the Village Level Committee wherein the petitioner was empanelled as the only candidate for the available ReT vacancy was duly prepared and ought to have been acted upon without going for fresh exercise to include a candidate who was not eligible on the crucial dates viz. the date vacancies were sanctioned, the selection process initiated and 1st. Panel dated 22.10.2003 prepared and the date the selection process for the 2nd ReT was initiated i.e. 17.02.2004 and concluded viz 20.02.2004. The panel prepared on 9.3.2004 as pointed out in the Enquiry Report prepared by Dy. Chief Education Officer, Anantnag was unwarranted, illegal and without jurisdiction and could not have been made use of to select and engage respondent No.7 more so when illegalities were writ large on the process undertaken by the respondent No.4 after on his joining on 25.2.2004 after availing long leave as in detail pointed out by the Enquiry Officer in the Enquiry Report dated 27.7.2004 and received by the Chief Education Officer on the said date. 15. For the reasons discussed the panel prepared for 2nd vacancy of ReT in Primary School, Wagaypora, Pombay on 9.3.2004 and the action taken pursuant to the panel including selection and engagement of respondent No.7 as 2nd ReT in Primary School, Wagaypora, Pombay, do not stand legal scrutiny and are set aside. The respondents are directed to engage the petitioner against the vacancy of 2nd ReT in Primary School, Wagaypora, Pombay. The writ petitions are accordingly disposed of.