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2012 DIGILAW 730 (JK)

Talab Hussain & Ors. v. State of J&K & Ors.

2012-11-23

MOHAMMAD YAQOOB MIR

body2012
1. Vide Advertisement Notice No. 01 of 1998 dated 21.04.1998 issued by the Director School Education, Jammu, applications in the prescribed form were invited from the permanent residents of the respective districts of Jammu Division, for the post of Lab Bearer, Library Bearer, Gasman, Orderly and Safaiwalas, which were to be submitted to the respective Chief Education Officers of the districts of Jammu Division. One of the stipulations in the Advertisement Notice is that the candidate must be resident of the district in which he submits the application. 2. Vide Order No. DSEJ/901-14 dated 08.08.1998, a Committee of following Officers was constituted for conducting the interview of the candidates, who had applied for the said Class-IV posts: (a) Chief Education Officer of the concerned district; (b) Principal, DIET in the district; (c) One member from SC/ST community of the level of Principal, Higher Secondary School from the same district to be jointly nominated by the Chief Education officer and Principal, DIET of the concerned district; (d) One Officer to be nominated by the Administrative Department. 3. In District Jammu, Kathua, Udhampur, Rajouri and Poonch, in violation to the procedure prescribed for selection, appointment letters were issued by the concerned Chief Education Officers on their own assessment. 4. Noticing the same position, respondent-Director School Education, Jammu vide detailed Order dated 28.06.1999, cancelled all the appointment orders issued by the Chief Education Officers Jammu/Kathua/Udhampur/Poonch and Rajouri. Vide Government Order No. 906-Edu of 1999 dated 05.07.1999, the said Order dated 28.06.1999 was kept in abeyance. Vide another Government Order No. 309-Edu of 2000 dated 24.04.2000, the Government Order dated 05.07.1999 was withdrawn and order dated 28.06.1999 was revived. 5. A batch of writ petitions were filed All the petitions with lead case Adil Akhter Shah and others (SWP No. 961/2003) stand decided vide judgment dated 31.12.2007 wherein it was concluded that the appointment of private respondents therein was not found proper. Option was given to the official respondents either to consider the cases of the petitioners therein on the parity of the petitioners in Basharat Hussain's case, otherwise petition shall stand allowed, orders impugned in the petition shall stand quashed. 6. Option was given to the official respondents either to consider the cases of the petitioners therein on the parity of the petitioners in Basharat Hussain's case, otherwise petition shall stand allowed, orders impugned in the petition shall stand quashed. 6. LPA filed against the said judgment stand decided on 30.07.2003 wherein it was concluded that by way of a policy decision, the State Government had created 417 more posts and in those posts, by the order dated 4.4.2003, those 417 persons who were permitted to work on temporary basis by the order dated 11.04.2002 were regularized. The number of writ petitioners is less than 417, so all the petitioners can be accommodated. Therefore, no occasion to take recourse to upset the orders of the Government dated 11.04.2002 and 04.04.2003. 7. In compliance thereof, the Government Order No. 440-Edu of 2010 dated 13.05.2012 has been issued, concluding para of which reads as under:- "Now, therefore, in compliance with the Hon'ble High Court directions dated 30.07.2009, sanction is accorded to the appointment of 243 petitioners (as per list annexed as Annexure "A") against Class-IV posts in the districts of Jammu Udhampur, Doda, Rajouri, Kathua and Poonch with immediate effect." 8. The petitioners in this petition have challenged the appointment of respondents Nos. 6 to 13, who have been appointed in District Doda. 9. Learned counsel for the petitioners would contended that in response to the Advertisement Notice dated 21.04.1998, the petitioners had applied for being considered as against the posts to be filled up in District Doda, but without any selection process, respondent nos. 6 to 13 have been appointed and their appointment has to be treated as backdoor appointment, as such, to be quashed or in the alternative, respondents Nos. 1 to 5 may be directed to appoint the petitioners on the same analogy. 10. The first question, which arises for consideration is as to whether appointment of respondents Nos. 6 to 13 can be interfered with? 11. On 23.3.2005, learned counsel for the respondents 6 to 13 who had filed a writ petition (SWP No. 1476/2003) had made submissions that respondents therein had assured accord of consideration for their appointment, therefore, petition may be permitted to be withdrawn, as such, was dismissed as withdrawn and interim stay was vacated. 12. 11. On 23.3.2005, learned counsel for the respondents 6 to 13 who had filed a writ petition (SWP No. 1476/2003) had made submissions that respondents therein had assured accord of consideration for their appointment, therefore, petition may be permitted to be withdrawn, as such, was dismissed as withdrawn and interim stay was vacated. 12. The said private respondents were consequently appointed vide orders dated 21.6.2007, which are sought to be quashed in the petition on hand. The said orders dated 21.6.2007 are issued in compliance to the order of District. Development Commissioner, Doda, in terms whereof, approval was conveyed. That approval order has not been challenged. 13. Secondly in a batch of writ petitions with lead case Adil Akhter Shah and others. (SWP No.961/2003), in one of the petitions bearing SWP No. 960/2005 captioned Mohd Rafiq and others v. State and others, these private respondents were party and while deciding those batch of petitions vide judgment dated 31.12.2007, the Court has concluded as under:- "For all these reasons, I find the appointment of private respondents on consolidate pay vide Order No.556-Edu of 2002 dated 11.04.2002 and release of regular grade in their favour vide Order No. 383-Edu of 2003 dated 04.04.2003 was not proper. It was vehemently submitted by almost all the learned counsels appearing for the respondents that quashment of these orders is likely to upset the basis infrastructure of all the institutes where the respondents are working besides it will cause hardship to the respondents and their families. The respondents, according to the learned counsels, are working on the posts since 1999 and keeping in view their number, the working in the concerned schools will get disrupted with their ouster. Learned counsels for the petitioners do not have any objections provided the petitioners are also absorbed on the available post. In fact throughout the arguments they expressed their anger on the discriminatory treatment accorded to the petitioners by the respondents. They have, in this behalf referred to the cases of petitioners in SWP No. 1476 of 2003 (Basharat Hussain and others) and stated that the said petitioners had on the same grounds challenged the selection and appointment of private respondents as have been taken by the petitioners but they were offered the job while as the petitioners were not considered for the same. I, however, leave the matter to the official respondents to consider the cases of the petitioners on the parity of the petitioners in Basharat Hussain's case. In case, the Government decides to do so and the petitioners grievances are redressed the present writ petition shall be deemed to have been disposed of accordingly. The Government shall take a decision in the matter within three months from the date copy of this judgment is served on the State. In case, the Government does not take any decision in the matter within the said period or if the Government decides not to accord the said treatment to the petitioners, the petitions shall stand allowed and the orders impugned in the petitions No.556-Edu of 2002 dated 11.04.2002 and No.383-Edu of 2003 dated 04.04.2003 shall stand quashed. Petitions allowed as indicated." 14. Then in appeal filed against the said judgment, it was noticed that Basharat Hussain (private respondents) had approached this Court in SWP No. 1476 of 2003 and thereupon withdrew the writ petition, their case was considered by the State and they were appointed in District Doda, then it was concluded as under: - "In the circumstances, for all practical purposes, it must be deemed that by way of a policy decision, the State Government created 417 more posts and in those posts, by the order dated 04.04.2003 those 417 persons, who were permitted to work on temporary basis by the order dated 11.04.2002, were regularized. In consequence thereof, it must be deemed that there are still 417 posts available. The number of writ petitioners is less than 417. Accordingly, all of them can be accommodated. There will, therefore, be no occasion to take recourse to upsetting the orders of the Government dated 11.04.2002 and 04.04.2003. In the circumstances, the exercise to be undertaken in terms of the judgment and order under appeal be completed within a period of six months from today and to that extent the judgment and order under appeal is modified with clarifications. 15. While implementing the judgment, Government Order No.440-Edu of 2010 dated 13.05.2010 has been issued whereunder sanction has been accorded to the appointment of 243 petitioners in various districts of Jammu Province including District Doda in which private respondents 6 to 9 and 11to 13 have been included. 15. While implementing the judgment, Government Order No.440-Edu of 2010 dated 13.05.2010 has been issued whereunder sanction has been accorded to the appointment of 243 petitioners in various districts of Jammu Province including District Doda in which private respondents 6 to 9 and 11to 13 have been included. Neither sanction for appointment in favour of private respondents dated 21.06.2007 has been challenged nor Government Order dated 13.05.2010. The judgments rendered in abatch of petitions dated 31.12.2007 and then in appeal dated 30.07.2009 have also not been challenged, therefore, appointment of respondent nos. 6 to 13 is not now open for interference. 16. The alternate prayer of the petitioners that their position being identical to those of writ petitioners in a batch petitions with lead case Adil Akhter Shah and others (SWP No.961/2003), therefore, their entitlement to the similar treatment has relevance for consideration. After all the petitioners have been litigating from the year 2007 and their main grouse that despite having applied in pursuance to Advertisement Notice dated 21.04.1998 without being subjected to the selection process have been ignored. The position of they having applied is substantiated by the receipts, which they have placed on record, wherein it is recorded that the application forms received. It being so, respondents are required to accord consideration to the case of the petitioners in a manner, it has been accorded to the petitioners in a batch of petitions referred above. Consideration shall be accorded by following the requisite norms including eligibility as shall be required. 17. Disposed of as above along with connected CMA No. 2867/2007.