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2012 DIGILAW 612 (JK)

Gous-un-Nisa v. State & Ors.

2012-09-28

MANSOOR AHMAD MIR

body2012
By the medium of this writ petition, the petitioner is seeking to quash the panel framed for making recommendation of candidates for selection against the two posts of Rehbar-e-Taleem Teachers in Middle School Hoom, Village Kakowthal, Baramulla, with a direction to the official respondents to frame fresh panel, on the grounds taken in the writ petition. 2. It is averred in the writ petition that Primary School, Hoom, Village Kakowthal, Baramulla was upgraded to Middle School in the year 2008. Thereafter, an advertisement notice came to be published by respondent no.4 in a daily newspaper, Srinagar Times, of its issue 18.07.2008, inviting applications from eligible candidates having 10+2 qualification and above for filling up two posts of Rehbar-e-Taleem Teachers in the upgraded Middle School, Hoom. After examining the applications, a panel was framed. Petitioner is aggrieved of the framing of panel and tentative selection of respondent no.6 on the ground that respondent no.6 is neither having science or math background, nor belongs to the said habitat. 3. Respondents 1 to 4 and 6 have filed objections resisting the writ petition. While controverting the stance of the writ petitioner, it is contended that respondent no.6 along with other eligible candidates applied for the said post in the upgraded Middle School, Hoom. After examining the applications, a panel was framed. Writ petitioner figured at Sr. No.4 in the said panel. Showkat Ahmad Sofi, respondent no.6 herein, figured at Sr. No.3 in the said panel. He invoked the jurisdiction of this Court by the medium of writ petition, SWP No.346/2011. The said writ petition came to be disposed of vide judgment and order dated 04.03.2011 with a direction to the official respondents to consider the engagement of writ petitioner therein (respondent no.6 herein) against the available post of Rehbar-e-Taleem Teacher in the said School in accordance with the rules. It would be advantageous to reproduce the relevant paragraphs of the judgment herein. “In view of the averments made and arguments advanced at bar, the petition is disposed of with a direction to the respondents to consider engagement of petitioner against available post of ReT in upgraded Primary School Hoom Kakavthal in accordance with rules and having due regard to the averments made in the petition. The respondents, as far as possible, shall take a decision in the matter within four weeks from the date copy of the order is served on the respondents. The respondents, as far as possible, shall take a decision in the matter within four weeks from the date copy of the order is served on the respondents. The petitioner shall be at liberty to hand over copy of the petition along with annexures to the respondents, so as to facilitate early decision in the matter.” 4. Accordingly, a panel was prepared by the official respondents and, on the basis of relative academic merit, a tentative select list was issued by Chief Education Officer, Baramulla, wherein respondent no.6 herein was shown to have been tentatively selected. It was further provided in the notification that if any person is aggrieved of the selection of respondent no.6, he/she may file objections to the same with documentary evidence. 5. The present writ petitioner objected to the same. However, the official respondents, on examination of the objections, rejected her claim. 6. It is contended that the selection was made on revenue village basis and not on habitation basis. Neither Government order dated 24.09.2008 was applicable, nor Govt. Order dated 31.07.2009 was in existence when advertisement notice was published on 18.07.2008. Further, as per the advertisement notice, the selection was to be made on the basis of revenue village and not on habitation basis. 7. It also appears that a writ petition, OWP No.10/2009, was filed by one Syed Zubair Ahmad against Showkat Sofi, respondent no.6 herein. The said writ petition came to be disposed of vide judgment and order dated 13.03.2011 with a direction to the Deputy Commissioner, Baramulla to conduct inquiry. It would be appropriate to reproduce relevant part of the judgment herein. “This petition is disposed of and Dy. Commissioner Baramulla is directed to get the issue of residence of petitioner enquired into by Additional Dy. Commissioner. The Additional Dy. Commissioner will afford opportunity of hearing to all the competing parties and will also entertain and consider the document which parties may produce in support of their respective claims and after making an enquiry return a finding thereof. The Dy. Commissioner to get the enquiry completed within a period of one month from the date copy of the order is served. The Dy. Commissioner to forward the finding of the Enquiry Officer to concerned authorities of education department who will proceed in the matter in accordance with the Government orders occupying the field and appoint meritorious candidate within one month thereafter. The Dy. Commissioner to forward the finding of the Enquiry Officer to concerned authorities of education department who will proceed in the matter in accordance with the Government orders occupying the field and appoint meritorious candidate within one month thereafter. It is further directed the impugned communication No.3527-28/M dated 15.12.2008 be not acted upon. This direction, however, will not prevent the authority to find out the exact residence of the petitioner in the manner as directed hereinabove. The interim order passed shall stand vacated.” 8. Writ petitioner, without questioning the judgment passed by this Court (supra), has challenged the selection of respondent no.6 herein on the ground that selection was to be made on habitation basis and not on the basis of revenue village. However, Mr. Hussain, learned counsel for petitioner, while arguing, restricted his challenge only to two grounds – one, that the selection was to be made on habitation basis and not on revenue village and, second, that petitioner was more meritorious. 9. It would be appropriate to note here that, in terms of the advertisement notice, applications were invited from the candidates hailing from revenue village and not on the basis of habitation. This is borne out by the advertisement notice, the relevant part whereof is quoted hereunder. “Consequent upon the above captioned subject and reference: it is notified for the information of all eligible candidates of Revenue Villages of Kachwa Muqam, Brannar & Kakavthal, that applications are invited for the post of ReT teachers with minimum qualification as 10 plus 2 for newly upgraded Middle Schools. The applications along with below recorded testominials may be deposited in the office of undersigned within a period of (fifteen) days (15) from the date of publication of the notification in the daily news paper. No application shall be entertained after the cut of date. - Highest academic Qualification Certificate. - Matriculation/Date of Birth Certificate. - Present Residence Certificate from Village Education Committee. - Profession Certificate (if any). In case no candidate is found eligible from the concerned Revenue Villages, the selection of ReT for the aforesaid schools shall be made at panchayat halqa level. Accordingly, the candidates from the panchayat Halqa’s shall also apply against the above advertised post. However, their candidature shall be considered only when no candidates from Revenue Village are found eligible against the said posts.” 10. Accordingly, the candidates from the panchayat Halqa’s shall also apply against the above advertised post. However, their candidature shall be considered only when no candidates from Revenue Village are found eligible against the said posts.” 10. Thus, it is clearly established that, as per the terms and conditions contained in the advertisement notice, the respondents did not invite applications on habitation basis. Petitioner along with other candidates applied for the posts in question, participated in the selection process and did not raise any finger before the selection process was concluded. He challenged the selection only when he failed to make the grade, He cannot be allowed to make a U-turn at this stage when the selections have been concluded. 11. Law is settled that a candidate, who participates in the selection process, cannot question the same later on when the process is over. It is worthwhile to record here that, in terms of the advertisement notice, the candidates hailing from revenue village only had to apply. If at all the petitioner was aggrieved of the advertisement notice to that extent, he should have questioned the same at the relevant point of time. But he did not do so. Even, as on today, the petitioner has not thrown challenge to the said clause of the advertisement notice, as is evident from the prayer clause of the writ petition. 12. Now, coming to second issue raised by the petitioner that he is more meritorious than respondent no.6. 13. It would suffice to say that the petitioner has secured 46.83% marks, whereas respondent no.6 has obtained 51.33% marks. Thus, the second ground also fails. 14. Further, advertisement nowhere prescribes that the posts in question were to be filled up from the candidates having Science or Math stream, a ground taken in the writ petition, though not pressed by the learned counsel for petitioner. 15. Petitioner has made a mention of a recommendation of Village Level Committee. Though this argument was also not pressed by the learned counsel for petitioner, the same also appears to be an afterthought for the simple reason the Members of the Village Level Committee include the sister of the petitioner, who was the Incharge Head Mistress of the School, and one Sh. Peerzada Gias-ud-Din Shah, father of petitioner. 16. In the given circumstances, no case for admission is made out. Peerzada Gias-ud-Din Shah, father of petitioner. 16. In the given circumstances, no case for admission is made out. Accordingly, the writ petition is dismissed in limine along with all connected CMPs. Interim direction stands vacated.