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2013 DIGILAW 268 (JK)

Tehseen Masood v. State & Ors.

2013-05-02

TASHI RABSTAN

body2013
1. The dispute in both the petitions relates to non-consideration of B.Ed qualification of the petitioner for her selection against the post of Teacher pursuant to Advertisement Notice No. 07 of 2010 dated 12.11.2010. 2. In terms of Advertisement Notice No. 07 of 2010 dated 12.11.2010, respondent-Board advertised different posts including the posts of Teachers in the School Education Department for District Cadre Jammu. The last date for submission of the application form was 21.12.2010. The petitioner being eligible also applied for the said post. The breakup of the posts of Teachers in terms of the aforesaid Notification is as under:- i) Open Merit :346 ii) SC :49 iii) ST :61 iv) RBA :122 v) ALC :17 vi) OSC :13 Total :608 And the criteria for selection to the post of teacher was as under:- Name of the post Prescribed qualification Criteria Teacher 10+2 preference will be given to the candidates having higher qualification and those having passed B.Ed/M.Ed and diploma ETT/NTT i) 10+2:25 points (on prorate basis) ii) Graduation: 10 points (on prorate basis) iii) ETT/NTT: 05 points (on prorate basis) iv) B.Ed: 15 points (on prorate basis) v) Post graduate: 10 points (on prorate basis) vi) M.Ed : 10 points(on prorate basis) vii) M.Phil: 02 points (across the board) viii) Ph.D after M.Phil: 03 points (across the board) or Ph.D (direct without M.Phil) 05 points (across the Board) ix) Viva voice : 20 points Total: 100 points 3. It is contended that respondents vide Notification No. SSB/Sel/Secy/1802-13 dated 24.03.2011 short-listed the candidates for the purpose of interview in which name of the petitioner did not figure. The last cut of points in the open merit category was 34.46 points, whereas the petitioner was entitled to 40.55 but despite that she was not shortlisted for the interview. On enquiring, she came to know that due to her sheer inadvertence, she could not add her B.Ed, qualification, in the application form, accordingly, approached the respondent-Board along with B.Ed, marks sheet dated 18.05.2010 and requested for giving due weightage to her B.Ed, qualification. The respondent-Board, however, did not entertain her B.Ed, qualification, which constrained her to approach this Court by way of writ petition (SWF No. 681/2011). This Court vide order dated 05.04.2011, while issuing notice to the respondents, also directed them to conduct the interview of the petitioner for the post of Teacher in District Jammu. The respondent-Board, however, did not entertain her B.Ed, qualification, which constrained her to approach this Court by way of writ petition (SWF No. 681/2011). This Court vide order dated 05.04.2011, while issuing notice to the respondents, also directed them to conduct the interview of the petitioner for the post of Teacher in District Jammu. Accordingly, interview of the petitioner was conducted. Respondents thereafter issued provisional select list of Teachers of District Cadre, Jammu. 4. It is contended that the petitioner though was allowed to appear in the interview, but the respondents did not consider her for the post in question, therefore, she could not find her name in the select list. She again filed writ petition (SWP No. 85/2012) in hand seeking a direction to the respondents to quash the selection of private respondent and also for restraining the official respondents not to make appointment of private respondent, with a direction to declare her result and appoint her if she has obtained more marks than that of private respondent No. 6. 5. This Court vide order dated 18.01.2012 directed the respondents to keep vacant one post of teacher District Cadre, Jammu under open merit category. 6. It is contended that petitioner's academic merit comes 40.44 points adding 17.50 points in the interview, she is bound to make a higher merit than the last selected candidate in the open category i.e. respondent No. 6. It is also contended that the petitioner cannot be deprived of the benefit of B.Ed, qualification, which she had obtained before the date of issuance of Advertisement Notice dated 12.11.2010. 7. Respondent-Board has filed the reply stating therein that the petitioner did not disclose the qualification of B.Ed, at the time of submission of application form and evaluation of her merit was done on the basis of information provided by her in the application form. As such, the petitioner cannot seek consideration of the qualification, which she had not even claimed to possess in the application form. It was clearly mentioned in the Advertisement Notification in clause III(ix) that the candidates are advised to be extremely careful while filling the application form. The petitioner herself was negligent in filling her application form, and as such, is not entitled to any concession at this stage. It was clearly mentioned in the Advertisement Notification in clause III(ix) that the candidates are advised to be extremely careful while filling the application form. The petitioner herself was negligent in filling her application form, and as such, is not entitled to any concession at this stage. That apart, the respondent-Board conducted an extra ordinary meeting to discuss various issues relating to the posts advertised vide Advertisement Notification No. 07 of 2010 dated 12.11.2010 and amongst others, following decision was taken which finds place at point No. 11 (iv) of the Minutes of 73rd Board Meeting held on 27.01.2011:- "iv. In case the candidate has not mentioned the marks of any qualification in the prescribed field of OMR application form, the benefit of the same shall not be given to the candidate." It is also relevant to reproduce paras Nos. 6,7 and 8 of the reply herein:- "6. That the contents of para No. 6 of the petition pertain to the issuance of short listing notification issued by the answering respondents, as such, are not denied being matter of record. The petitioner was considered on the basis of information supplied by her in her application form and could not be short listed on account of her inferior merit. 7. That the contents of para No. 7 of the petition so far as these pertain to the selection criteria adopted for making the selection in question, are not denied being matter of record. The petitioner as per her own admission as made in this para did not mention her B.Ed, qualification in her application form; same as such could not have been taken into consideration by the answering respondents. Even if rest of the contents of the para are taken to be correct, the B.Ed, qualification certificate was for the first time submitted by the petitioner on 25th March, 2011 i.e. more than three months after the last date fixed for the submission of application forms. It may also be submitted here at the cost of repetition that the specific decision in this regard was taken by the respondent-Board in its extra ordinary Board meeting held on 27th January, 2011 wherein it was decided that in case of candidates, who have not mentioned the marks of any qualification in the prescribed field of OMR application form, the benefit of the same shall not be given to the candidates." 8. That in reply to contents of para No. 8 of the petition, it is submitted that nothing prevented the petitioner from mentioning/claiming her B.Ed, qualification in her application form. It was owing to the mistake committed by the petitioner herself while filing the application form that the qualification of B.Ed, was not mentioned in the application form. The answering respondents evaluated the candidature of the candidates responding to the advertisement notification on the basis of the information supplied to the answering respondents by the candidates in their respective application forms and the answering respondents are sans any other source for coming to the conclusion whether or not a particular qualification is possessed by a candidate or not or the answering respondents are to consider the qualification which the candidate himself/herself has not claimed to possess. Further, a specific decision taken by the respondent-Board in this regard has already been mentioned hereinabove." 8. Respondents produced the result of the petitioner in a sealed cover, which on opening revealed that the petitioner has obtained 50.45 points whereas the last cut of point under open merit category was 57.602 points. On this, learned senior counsel for the petitioner apprehended that the respondents might not have given due weightage to the B.Ed, qualification of the petitioner and thus ventured to file supplementary affidavit. 9. On the basis of the result so produced, the petitioner filed the supplementary affidavit, para 2 whereof is reproduced hereunder:- 2. That the admitted position is that the petitioner had her B.Ed, qualification as on 18.05.2010. As per the marks sheet of B.Ed, examination of the petitioner placed as Annexure-C at page No.18 of the writ petition being SWP No. 85/2012 and at page No. 16 in SWP No. 681/2011, she had secured 563 marks out of 1000 and the merit on the prorate basis comes to 8.44. But to the dismay of the petitioner, despite the orders passed by the Hon'ble Court, the result sheet produced by the respondents on 09.04.2013 did not reflect the B.Ed, points attained by the petitioner. Consequently, she has shown to have secured 50.45 points and accordingly it came below the last selected candidate. When the matter came up before the Hon'ble Court on 09.04.2013, the petitioner had clearly insisted that the respondents had not given the due weightage to the B.Ed, qualification of the petitioner. Consequently, she has shown to have secured 50.45 points and accordingly it came below the last selected candidate. When the matter came up before the Hon'ble Court on 09.04.2013, the petitioner had clearly insisted that the respondents had not given the due weightage to the B.Ed, qualification of the petitioner. This has been recorded by the Hon'ble Court on 09.04.2013 which is reproduced as under- "Result as directed has been produced by the respondents in a sealed cover, which on opening reveals that petitioner has obtained 50.45 points whereas last cut of point under open merit category is 57.602 points. It is made part of the file. On the other hand, learned Senior counsel for the petitioner insisted that he is not satisfied with the points awarded by the respondents on the ground that the respondents have not given due weightage to the B.Ed, qualification of the petitioner. Be listed again for consideration in the next available regular cause list." Admittedly, no weightage has been given to the marks obtained by the petitioner in the B.Ed, qualification. Given due weightage to the marks obtained by the petitioner in B.Ed, certificate on the pro-rate basis, the petitioner is entitled to 8.44 points out of 15 points reserved for B.Ed, qualification. Calculating thus, the petitioner's merit comes to 58.89 points. This is higher than the last candidate selected in the open merit category which is admitted 57.602 points. Failure on the part of the respondents to give weightage to trie B.Ed, qualification of the petitioner, entitles the petitioner a direction from the Hon'ble Court for the respondents to add 8.44 points of the B.Ed, qualification in the 50.45 points indicated in the points obtained by the petitioner. A copy of the merit' sheet of the petitioner in pursuance to the directions produced before the Hon'ble Court on 09.04.2013 in the sealed cover and opened in the Hon'ble Court. This is written in the record of the Hon'ble Court. The respondents, therefore, deserve to be directed to reckon 8.44 points of the B.Ed, qualification of the petitioner on pro-rate basis for the purpose of determining her merit position, selection and appointment" 10. Heard learned counsel for the parties and perused the records. 11. The facts are not in dispute that petitioner applied pursuant to Advertisement Notice dated 12.11.2010 and had not claimed B.Ed, qualification. Heard learned counsel for the parties and perused the records. 11. The facts are not in dispute that petitioner applied pursuant to Advertisement Notice dated 12.11.2010 and had not claimed B.Ed, qualification. She was therefore, not shortlisted due to inferior merit, however, she claims to have acquired the B.Ed, qualification on 18.05.2010 much before the advertisement of the posts. It is contended by the respondent-Board that since the petitioner had not made the mention of B .Ed. qualification at the time of submission of application form, as such, was not entitled to count on the said qualification. In rebuttal, learned counsel for the petitioner contends that due to an oversight she did not make mention of B.Ed, qualification, but she had obtained the said qualification much before the issuance of Advertisement Notice, and as such, her B.Ed, qualification could not have been ignored by respondent-Board. 12. There can be no dispute with the proposition that a candidate must possess the requisite qualification on the cut off date as indicated in the Advertisement Notice inviting applications. The controversy in the instant case is that petitioner could not produce her B.Ed, certificate at the time of submission of application form, therefore, could not be taken into consideration while short-listing of the candidates, who were called for interview. It is admitted that the petitioner had her B.Ed, qualification as on 18.05.2010 and submitted the same on 25.03.2011 much before the interview process was started. This fact is admitted by the respondents also. Admittedly, no weightage has been given to the marks obtained by the petitioner in the B.Ed, qualification on the ground that she had not claimed such qualification in the application form. It was the mistake committed by the petitioner herself while filling up and submitting the application form. It is only when the petitioner did not find herself in the short listing, she approached this Court and the Court vide order dated 05.04.2011 directed the respondents to conduct the interview of the petitioner. Needless to say that such consideration did not vest any right in the petitioner and claim her selection. 13. Learned counsel for the petitioner insisted that this was a human error for which the petitioner should not be penalized for this. The proverbs "To err is human, to forgive is divine" was also pressed in service by petitioner. 14. Needless to say that such consideration did not vest any right in the petitioner and claim her selection. 13. Learned counsel for the petitioner insisted that this was a human error for which the petitioner should not be penalized for this. The proverbs "To err is human, to forgive is divine" was also pressed in service by petitioner. 14. On the other hand, learned counsel for the respondents also relied on a judgment passed by the Apex Court in case titled J&K Public Service Commission v. Israr Ahmad and others passed in Civil Appeal No. 198 of 2005 (arising out of SLP(c) No. 4360 of 2003 to buttress his submissions. The controversy in the said case was that learned Single Judge dismissed the writ petition by holding that petitioner was not entitled to the benefit of reservation by virtue of SRO 126 of 1994 as he had not indicated in his application form that he was entitled to such benefit. He challenged the same by way of LPA and Division Bench held that petitioner in fact possessed the eligibility for being considered in the reserved category even before the date of advertisement and he submitted his proof only later and that by itself did not disentitle him from claiming the benefit of reservation. LPA was allowed and the direction to treat him under the reserved category was issued. Being aggrieved of said order of the Division Bench, Public Service Commission challenged the same by way of SLP, and Hon'ble Apex Court set aside the order passed by the Division Bench. What is held in the said judgment by the Apex Court is reproduced as under-beamed counsel for the Commission submits that as the last date for submitting the application was 16th March, 1999 and the respondent did not produce the certificate claiming reservation nor did he indicate in the application that he belongs to that category. It was submitted that several other applications of similar nature were rejected by the Commission and the respondent's application also was treated alike and the Division Bench erred in coming to the conclusion that he was entitled to get reservation. It was submitted that several other applications of similar nature were rejected by the Commission and the respondent's application also was treated alike and the Division Bench erred in coming to the conclusion that he was entitled to get reservation. Counsel for the respondent on the other hand pointed out that thought he first respondent did not avail the benefit of reservation then he submitted the application for the preliminary examination he had submitted the application for the main examination in which he had clearly shown that he was entitled to get reservation as per SRO 126 of 1994 dated 20th June, 1994 and he had also produced the certificate along with the application for the main examination. It is submitted that he had claimed the reservation for the main examination and he should have been treated as reserved candidate in the main examination. We have considered the rival contentions advanced by both the parties. The contention of the first respondent cannot be accepted as he has not applied for the selection as a candidate entitled to get reservation. He did not produce any certificate along with his application. The fact that he has not availed the benefit for the preliminary examination itself is sufficient to treat him as a candidate not entitled to get reservation. He passed the preliminary examination as a general candidate and at the subsequent stage of the main examination he cannot avail the reservation on the ground that he was successful in getting the required certificate only at a later stage. The nature and status of the candidate who was applied for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the statvis and make fresh claim. The Division Bench was not correct in holding that as a candidate he had also had the qualification and the production of the certificate at a later stage would make him entitled to seek reservation. Therefore, we set aside the judgment of the Division Bench and allow the appeal. No costs." 15. The Division Bench was not correct in holding that as a candidate he had also had the qualification and the production of the certificate at a later stage would make him entitled to seek reservation. Therefore, we set aside the judgment of the Division Bench and allow the appeal. No costs." 15. In the aforementioned judgment, it is clearly envisaged that the candidate, who had not claimed the benefit of reservation in his application form was not entitled to claim consideration under reserved category on the ground that he possessed the category status but obtained the certificate later on, though, during the currency of selection process. 16. Viewed the controversy in the light of law laid down by Hon'ble Apex Court in the aforementioned case, the petition is found to be without merit and the same is, accordingly dismissed along with all connected CMA(s). No order as to costs.