Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 129 (JK)

Anita Verma v. State Of J&K

2014-03-25

M.M.Kumar, MUZAFFAR HUSSAIN ATTAR

body2014
Muzaffar Hussain Attar, J. CDLSW No. 131/2013 1. The applicant seeks condonation of 21 days delay in filing the accompanying appeal. There is no serious objection by the non applicant. Accordingly, the delay of 21 days is condoned as sufficient reason has been disclosed in the application. 2. Application is disposed of. LPASW No. 188/2013 3. With the consensus of learned counsel for the parties, appeal is taken up for consideration on merits. 4. After the selection process for making appointment on the posts of teachers in district Jammu was over, appellant-writ petitioner filed SWP No. 1476/2009 wherein she sought quashment of Government Order No. 62-SW of 2001 dated 13.03.2001 to the extent it prescribes only PD (partially deaf)/OL (one leg) as eligible for appointment against post of teacher in the Education Department under the provisions of J&K Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1998 (for short the Act of 1998). She also prayed for issuance of direction to the respondents to consider such physically handicapped candidates who have other Orthopedic disability for appointment on the post of teacher. She also sought quashment of selection arid appointment of respondents No. 3 and 4 on the post of teachers. 5. Learned Writ Court, after hearing the learned counsel for the parties, dismissed the writ petition vide order dated 02.09.2013. It is this order which is called in question in this Letters Patent Appeal (LPA). 6. Advertisement Notice No. 01 of 2008 dated. 22.04.2008 inviting application, for different posts in district cadre Jammu was issued where under 329 posts of teachers were also notified. It was prescribed in the advertisement notice that `partially impaired' and `one leg handicapped' can seek consideration for being selected and appointed on the post of teacher under Physically Handicapped Category (PHC). The said prescription was made in view of the Government Order No. 62-SW of 2001 dated 13.03.2001. The reference to the said Government Order was also made in the advertisement notice. 7. Writ-petitioner /appellant responded to the said advertisement notification and sought consideration for being selected and appointed as teacher in District cadre Jammu. Writ petitioner-Appellant was suffering from `one arm disability' add sought consideration under Physically Handicapped Category. Her application was not entertained under the said category as Government Order No. 62-SW of 2001 dated 13.03.2001 and advertisement notice did not provide for any reservation for `one arm disability. Writ petitioner-Appellant was suffering from `one arm disability' add sought consideration under Physically Handicapped Category. Her application was not entertained under the said category as Government Order No. 62-SW of 2001 dated 13.03.2001 and advertisement notice did not provide for any reservation for `one arm disability. Writ petitioner-appellant was considered as open merit category candidate, but could not be selected as she could not make the grade. 8. Learned counsel for the writ petitioner appellant submitted that in the face of Government Order No. 62 SW of 2001 dated 13.3.2001, writ petitioner-appellant has been deprived from seeking benefit of being physically handicapped candidate and submitted that there is no rationale in excluding `one arm disability' in the said Government Order. Learned counsel submitted that Government has issued No. 231-SW of 2011 dated 22.12.2011in which benefit of reservation for the post of teacher in the education department has been extended to `blind and low vision/handicap of one arm/both legs' and the writ petitioner-appellant would be entitled to the benefit, Learned counsel accordingly prayed for allowing the appeal. 9. Writ petitioner-appellant responded to the advertisement notice No. 01 of 2008 dated 22.04.2008. She did not question the terms and conditions of the said advertisement notification which, besides other conditions provided that candidates `partially impaired' and `one leg handicapped' would be eligible to seek consideration under the handicapped category. The writ petitioner-appellant, who is suffering from `one arm disability', was not, thus, eligible to seek consideration under handicapped category on the terms and conditions of the advertisement notice. Writ petitioner-appellant, in fact responded to the said advertisement notice and participated in the selection process and after the conclusion of the selection process, she called in question Government Order No. 62-SW of 2001 dated 13.03.2001. 10. Writ petitioner-appellant is estopped both in facts and circumstances of this case and in law to challenge Government Order No. 62-SW of 2001 dated 13.03.2001 after the conclusion of the selection process and is further estopped from challenging selection and appointment of the private respondents who were selected and appointment under the handicapped category because claim of the writ Petitioner-appellant for appointment on the post of teacher was considered as open merit category candidate. The terms and conditions of the advertisement notice binds the authority who issues the same and also the candidate who seeks consideration for being selected and appointed on the post of teacher. 11. The terms and conditions of the advertisement notice binds the authority who issues the same and also the candidate who seeks consideration for being selected and appointed on the post of teacher. 11. The Hon'ble Supreme Court in case titled "Ashok Kumar Sharma and ors. v. Chander Shekhar and ors." Reported in (1997) 4 SCC 18 has specifically ruled that an advertisement notice is a representation to eligible candidates and the authority who issues the same is bound by its terms and conditions. The benefit would now flow to the writ petitioner-appellant in terms of Government Order No. 231-SW of 2011 dated 22.12.2011. The said order has prospective effect and by no stretch of imagination the writ petitioner appellant can seek benefit under the said order in a selection process which has concluded prior to its issuance. The appellant is estopped in law in seeking the relief as prayed for in the writ petition, inasmuch as, she has out of her volition participated in a selection process, which was governed and regulated by the terms and conditions of advertisement notice. 12. For our afore-recorded reasons, we hold that there is no scope for interference with the impugned judgment. The appeal is, accordingly, dismissed along with connected CMA (s).