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2013 DIGILAW 518 (JK)

Mudasira Salam v. State Of J&K

2013-09-06

DHIRAJ SINGH THAKUR

body2013
1. Pursuant to advertisement notice dated 29th of July, 2008, the petitioner and private respondent No, 5 applied for consideration for engagement as Rehbar-e-Taleem Teacher. 2. The selection process resulted in the engagement inter alia of private respondent No. 5, ignoring the petitioner herein. The order of engagement of private respondent No. 5 was issued on 10th of June, 2009. The petitioner filed the petition on 24th of March, 2011, challenging the selection of private respondent No. 5. 3. The basis of challenge in the writ petition is that the petitioner was more meritorious than the private respondent No. 5 and that the private respondent No. 5 had been given extra weightage in the selection process for her M.A degree in Education contrary to Govt. Order No. 1503-Edu of 2003 dated 01-10-2003. 4. It would be beneficial to reproduce the said Govt. order here-in-below: Government of Jammu and Kashmir Civil Sectt. Education Department Subject:- Guidelines/norms for selection as Rehbar-e-Taleem--reg. Govt. Order No: 1503-Edu of 2003 Dated: 01-10-2003 Continuation to Govt. Order No. 396-Edu-2000 dated 28-04-2000, it is hereby clarified that:- 1. Beyond 10 plus two, the first academically reckonable qualification is a graduate degree like (for instance) B.A, B.Sc., B.Com. etc. 2. In view of (1) above, the intermediate classes like B.A., B.Sc., B. Com (Part I or II) will not get any extra weightage in working out the comparative merit of candidates even as exams of such classes are conducted by the University of Kashmir/Jammu. 3. M.A. (Education) and M.Ed would be equivalent degrees, in academic terms. (Candidates with M.A Education or M.Ed are, as per the Recruitment Rules, equally eligible for appointment/promotion as +2 lecturers). 4. B.Ed/M.ed practically carry a professional edge vis-a-vis an (academic) P.G Degree. Extra weightage be allowed, therefore, to B.Ed/M.Ed consistent with its role and relevance in the teaching learning process. 5. C.P.Ed., B.P. Ed and M.P. Ed are job-specific requirements (for physical Education slots). A candidate with C.P.Ed will be eligible for R-e-T only if he/she has passed 10+2. Likewise, a candidate with B.P. Ed/M.P. Ed will be treated as well as graduate degree in equal discipline provided he/she has passed 10+2 ----the minimum requirement prescribed under norms/rules for appointment as R-e-T teacher (save in respect of the Third Teacher for Primary Schools, for which the minimum requirement is graduation). 6. Likewise, a candidate with B.P. Ed/M.P. Ed will be treated as well as graduate degree in equal discipline provided he/she has passed 10+2 ----the minimum requirement prescribed under norms/rules for appointment as R-e-T teacher (save in respect of the Third Teacher for Primary Schools, for which the minimum requirement is graduation). 6. Graduates on other disciplines like (for instance) Agriculture, Engineering, I.T, Ayurveda/Unanifsystems) Pharmacy, Law, Management Etc. will be at par with any other graduate degree. By order of the Government of Jammu and Kashmir. .............................." 5. Learned counsel for the petitioner stated that the petitioner was possessing the qualification of B.A., B.Ed as against the qualification of M.A. (Education) of private respondent No. 5. The counsel for the petitioner urged that in terms of Govt. Order 1503-Edu of 2003 aforementioned, while M.A (Education) and M.Ed would be considered to be equivalent in academic terms, extra weightage was permissible only to B.Ed and M.Ed degrees as they carried a professional edge vis-a-vis academic P.G. degrees. 6. On that basis, the learned counsel contended that the petitioner was ignored on the basis of undue weightage having been given to M.A (Education) possessed by private respondent No. 5. 7. Mr. S.A. Naik, learned AAG, appearing for the official respondents submitted that the selection had been made on the basis of a letter addressed to the Chief Education Officer, Kupwara, dated 18.3.2008. Contents of the aforementioned letter dated 18th of March, 2008, are reproduced here-in-below:- "Enclosed please find a copy of application which was received in the public hearing today. If comparative merit is required to be determined between M.A Education and B.A., B.Ed., M.A. Edu will naturally reckon superior to B.A., B.Ed because:- Both of them are graduates. One of them is Bachelor's in Education and the other Master's in Education. It should not need any further explanation that Master's is necessarily superior to a Bachelor's degree. M.Ed and M.A Education have since been certified (by the University of Kashmir) as equivalent PG degrees." 8. To support and buttress his case, learned counsel appearing for private respondent no. 5 placed reliance upon various judgments of the Apex Court as rendered in the case of Mohd. M.Ed and M.A Education have since been certified (by the University of Kashmir) as equivalent PG degrees." 8. To support and buttress his case, learned counsel appearing for private respondent no. 5 placed reliance upon various judgments of the Apex Court as rendered in the case of Mohd. Siddiq Ali v. High Court of A.P through Registrar, (2005) 13 SCC 207 , R & M Trust v. Koramangala Residents Vigilance Group & ors, (2005) 3 SCC 91 and Chairman, U.P. Jal Nigam & anr v. Jaswant Singh & anr, AIR 2007 SC 924. 9. Heard learned counsel for the parties and perused the record. 10. It is not in dispute that the Govt. Order No. 1503-Edu of 2003 governed the issue of grant of weightage to professional degrees like B.Ed and M.Ed and envisages extra weightage in regard to those degrees. It is also not in dispute that M.A (Education) was held to be equivalent to M.Ed course for academic purposes only and did not envisage grant of additional weightage to M.A (Education) being higher qualification than a B.Ed course. 11. Private respondent No. 5 certainly would not be entitled to a higher weightage for her M.A (Education) course, entitling her to better merit than the petitioner or those who figured above in the merit list. 12. The question that has to be seen is whether this court should exercise its extraordinary jurisdiction which is hit by the principle of delay and laches. The order of engagement, which is sought to be challenged by the petitioner in the present case was issued on 10th of June, 2009 and the petition was filed on 24th of March, 2011. 13. The learned counsel for the petitioner tried to justify the delay by attributing ignorance to the petitioner regarding the private respondent No. 5, not possessing the qualification of B.Ed. It was suggested that the petitioner was all along under the impression that private respondent No. 5, was also possessing the qualification of B.Ed and she has been selected because of the said qualification. It was also suggested that the Chief Education Officer, Ganderbal, had not disclosed or made public the information with regard to the qualification of private respondent No. 5. It was also suggested that the Chief Education Officer, Ganderbal, had not disclosed or made public the information with regard to the qualification of private respondent No. 5. Finally, according to the learned counsel, an application under Right to Information Act was filed by the petitioner in the office of respondent No. 4, i.e., Zonal Education Officer, Tulmulla, seeking information regarding the qualification of the private respondent No. 5. It was only after having acquired information regarding the qualification of the private respondent No. 5, that the present petition had been filed. 14. The story projected by the petitioner with a view to overcome the difficulty of delay and laches does not inspire confidence. Nothing prevented the petitioner from obtaining the necessary information as regards the qualification of the selected private respondent No. 5, in June, 2009, itself when the Chief Education Officer, Ganderbal, had prepared the panel pursuant to which private respondent No. 5, came to be engaged as ReT. There is no justification as to why the petitioner took no action in the matter in 2009 itself to verify the correct facts and correct material details regarding the qualification of private respondent No. 5. 15. In Ramchandra Shankar Deodhar v. State of Maharashtra & ors, (1974) 1 SCC 317 , the Apex court held that there was no inviolable rule whenever there was delay, the court must necessarily refuse to entertain the petition under Article 226. The question was one of discretion to be exercised in the facts and circumstances of each case. Delay and laches was not a rule of law but a rule of practice based on sound and proper exercise of discretion. 16. Another principle that was laid down by the Apex Court and followed in R & M Trust v. Koramangala Residents Vigilance Group & ors, (2005) 3 SCC 91 was that delay would be an important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution, if the same had resulted in creation of third party interest. 17. 16. Another principle that was laid down by the Apex Court and followed in R & M Trust v. Koramangala Residents Vigilance Group & ors, (2005) 3 SCC 91 was that delay would be an important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution, if the same had resulted in creation of third party interest. 17. The third principle as regards delay and laches can be noticed in the judgment of the Apex Court in the case of State of M.P. v. Bhailal Bhai, AIR 1964 SC 1006 , which stated that the maximum period fixed by the legislature for grant of relief in a civil suit would ordinarily be reasonable standard for fixing the period to determine delay in seeking remedy under Article 226. The Apex court observed in the said case as under: "The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable." 18. However, it does not lay down, as a matter of principle, that in every case, where a petition is filed within the period, which is otherwise prescribed for filing a civil suit for a particular relief, the court must, as a matter of rule, accept the petition and exercise jurisdiction under Article 226. Reference in this regard can be made to the case of Ramana Dayaram Shetty v. International Airports Authority of India, AIR 1979 SC 1628 , where even five months delay was considered to be fatal. Reference in this regard can be made to the case of Ramana Dayaram Shetty v. International Airports Authority of India, AIR 1979 SC 1628 , where even five months delay was considered to be fatal. The Apex Court in the said judgment observed as follows: "Moreover, the writ petition was filed by the appellant more than five months after the acceptance of the tender of respondent 4 and during this period, Respondent 4 incurred considerable expenditure aggregating to about Rs 1,25,000 in making arrangements for putting up the restaurant and the snack bars and in fact set up the snack bars and started running the same. It would now be most iniquitous to set aside the contracts of Respondent 4 at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of Respondent 4 but the appellant allowed a period of over five months to elapse during which Respondent 4 altered their position. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of our discretion under Article 226 of the Constitution." 19. Similar was the view taken by the Apex Court in Ashok Kumar Mishra v. Collector, Raipur, AIR 1980 SC 112 . 20. Applying the aforementioned principles of law to the facts and circumstances of the present case, it will be seen that after the selection and engagement of private respondent No. 5, not a murmur had been made by the petitioner against the process of selection on the grounds, which were otherwise available to her. The selection process had commenced by the issuance of notification in the year 2008, resulting finally in the selection and engagement of the petitioner in June 2009. 21. The private respondent No. 5 has been working continuously on the post for which she was selected, for a period of almost one year and 9 months till the petitioner decided to file the present petition. Continuance of private respondent No. 5, against the post for which she was selected itself creates a legitimate expectation in her mind of certainty of tenure and permanence. The respondent No. 5, continues to work against the said post even today. Continuance of private respondent No. 5, against the post for which she was selected itself creates a legitimate expectation in her mind of certainty of tenure and permanence. The respondent No. 5, continues to work against the said post even today. Important rights, therefore, have accrued to her on account of delay in filing the present petition. In fact, by not challenging the appointment of private respondent No. 5, in time, the petitioner acquiesced in the appointment of the respondent No. 5, and cannot now be permitted to question the same at this belated stage. 22. For the reasons mentioned here-in-above, the petition being barred by delay and laches, is dismissed without any order as to costs.