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2014 DIGILAW 181 (JK)

Javid Ahmad Dar v. State Of J&K

2014-04-24

ALI MOHAMMAD MAGREY

body2014
1. The petitioner has sought a writ of certiorari for quashing the selection of respondents 5 and 6 for appointment as Rahbar-e-Taleems (ReTs) in Primary School, Asthan Mohalla, Parthan, Beeruwah, got published by respondent no.3 in the local daily, Srinagar Times in its issue dated 08.11.2012, with a prayer to direct the official respondents to readvertise the two posts and no to act upon the said selection list. 2. It appears that a Primary School was sanctioned and opened under Sarva Shiksha Abhiyan Scheme in or around August, 2010 for school-less habitation Asthan Mohalla, Parthan, Revenue village Parthan, Beerwah. This is borne out by communication no. CEOB/Plg/Open/10-11/10098-10102 dated 08.11.2010 addressed by Chief Education Officer, Budgam, addressed to Zonal Education Officer, Beerwah, placed on record of this petition as annexure `A'. Pursuant to the above, the Zonal Education Officer issued notification dated 11.11.2010 inviting applications from the eligible and desirous candidates of the village Parthan for selection and appointment on two posts of ReTs for the School in question. The selection process, however, was not taken to its logical end, inasmuch as, it is stated that, one candidate was selected who, too, was not appointed. The ostensible reason for not appointing the said candidate seems to have been the pouring in of representations and objections to the select list made by eligible and desirous candidates of the village on the ground of having been given only one day's time for filing the applications. It may be pertinent to mention here that the advertisement dated 11.11.2010 had specifically fixed the last date for receipt of applications as 20.11.2010. However, the said notification dated 11.11.2010 had been actually published in the local daily on 17.11.2010. The following two days, viz., 18th and 19th November, 2010, had been holidays; therefore, the aforesaid claim of the objecting candidates. The petitioner fairly concedes that when the aforesaid notification dated 11.11.2010 was issued he was not eligible and, consequently, had not offered his candidature pursuant thereto. 3. It is stated that the aforesaid selected candidate filed a writ petition, SWP no. 26/2011 seeking certain directions. On the very date, viz., 12.01.2011, the writ petition had for the first time come up for consideration before the Court, a notification had appeared in the local daily whereby the two posts in question had been re-advertised. 3. It is stated that the aforesaid selected candidate filed a writ petition, SWP no. 26/2011 seeking certain directions. On the very date, viz., 12.01.2011, the writ petition had for the first time come up for consideration before the Court, a notification had appeared in the local daily whereby the two posts in question had been re-advertised. The paper clipping of the advertisement so issued is stated to have been produced before the Court and the Court passed an interim direction that the notification shall not be acted upon till next date of hearing before the Court. It is further stated that the interim direction dated 12.01.2011 was continued and ultimately, the writ petition was dismissed with direction to the official respondents to proceed ahead with the selection process and conclude the same in accordance with law. 4. The case of the petitioner is that when the aforesaid notification, re-advertising the two posts was issued, he sought to offer his candidature within the time prescribed therein, but his application was not entertained on account of the interim direction dated 12.01.2011 passed by the Court in SWP no.26/2011. However, after the dismissal of the said writ petition, the official respondents did not issue any further notice intimating the desirous eligible candidates that they could now submit their applications; instead on 08.11.2012 respondent no.3 issued a list of candidates, professed to have been recommended by respondent no.4, whereby private respondents 5 and 6 were shown to have been selected for their engagement as ReTs for the said Primary School. The petitioner is aggrieved of the said selection list and has filed the present writ petition for the reliefs first above mentioned. 5. It is the specific case of the petitioner that the notification re-advertising the posts in question was notified in the local daily, in its issue dated 12.01.2011. On the same date the Court by interim direction passed in SWP no.26/2011 directed it to be not acted upon. The writ petition was finally dismissed on 17.10.2012. Therefore, there was no occasion for any candidate to have responded to the advertisement notice. On behalf of the petitioner it is contended that after dismissal of the writ petition it was incumbent upon the official respondent concerned to have issued a notice intimating to the eligible and desirous candidates that they could make the applications now, but no such intimation or notice was issued. On behalf of the petitioner it is contended that after dismissal of the writ petition it was incumbent upon the official respondent concerned to have issued a notice intimating to the eligible and desirous candidates that they could make the applications now, but no such intimation or notice was issued. Thereby, it is submitted that, the precious right of the petitioner to seek consideration for such selection and engagement guaranteed under Articles 14 and 16 of the Constitution has been grossly violated. 6. The official respondents in their objections have refuted the assertion of the petitioner that his application was not entertained. It is stated that the petitioner did not apply for the post; therefore, he could not have been considered. As per the official respondents, the petitioner did not apply for the post pursuant to the re-advertisement notification for the reason that he wanted to help his brother, writ petitioner in writ petition, SWP no. 26/2011, who was against re-advertisement of the posts in question. It is further stated that it was also mentioned in the notification re-advertising the posts that those of the candidates who had responded to the earlier notification dated 11.11.2010 need not apply afresh. 7. The private respondents 5 and 6 in their objections, among other things, have averred that the process of selection pursuant to notification dated 12.01.2011 was commenced only after the Court dismissed SWP no.26/2011 and that the petitioner has willfully lapsed his chance of applying for the post. 8. I have heard learned counsel for the parties and considered the matter. 9. The facts, as narrated above, are not in dispute. It is not denied on behalf of the respondents that the notification re-advertising the two posts in question was published on 12.01.2012. It is also not denied that on the same date, i.e., 12.01.2012, the Court passed a direction in SWP no. 26/2011 that the aforesaid notification shall not be acted upon. As a necessary implication thereof, the petitioner and, as a matter of fact, other eligible candidates, desirous of offering their candidature, could not have made their applications, nor could the same have been received by the official respondents. It is not the case of the official respondents that despite the aforesaid Court direction they received the applications from the candidates. As a necessary implication thereof, the petitioner and, as a matter of fact, other eligible candidates, desirous of offering their candidature, could not have made their applications, nor could the same have been received by the official respondents. It is not the case of the official respondents that despite the aforesaid Court direction they received the applications from the candidates. It is the admitted case of the petitioner that he was not eligible when the earlier notification dated 11.11.2010 had been issued. Therefore, the contention of the respondents that there was a condition stipulated in the re-advertisement that the candidates who had responded to the earlier notification need not reply is inconsequential insofar as the petitioners right to seek consideration against the post is concerned. After the dismissal of the writ petition on 17.10.2012, in the facts and circumstances of the case, the official respondents were legally bound to issue a notice calling upon the desirous candidates to make their applications in response to the advertisement notice dated 12.01.2012, of course, relegating the eligibility clause to the date of the said re-advertisement notification. 10. The respondents have sought to take a refuge in the garb of the judgment and order dated 17.10.2012 passed by the Court in SWP no. 26/2011 whereby the official respondents had been directed that they shall be free to proceed ahead with the selection process and conclude the same in accordance with the scheme. The observation made therein that "the petitioner (therein), who has also applied pursuant to re-advertisement notice, shall be free to raise objections vis-`-vis residence or merit position of any candidates in the selection process" would not provide an excuse to the official respondents not to issue a publication notice, as aforesaid. It is not understandable how the petitioner therein could have filed his application in response to the re-advertisement notice, when he himself had sought and obtained stay with respect thereto. Anyhow, apparently, the observation of the Court seems to have been in context of the stipulation contained in the re-advertisement notice that candidates who had applied earlier need not apply afresh. Anyhow, apparently, the observation of the Court seems to have been in context of the stipulation contained in the re-advertisement notice that candidates who had applied earlier need not apply afresh. In any case, the direction of the Court that the respondents shall be free to proceed ahead with the selection process and conclude the same in accordance with the scheme would not clothe the official respondents with the power to act arbitrarily and deny an opportunity to eligible desirous candidates to file their applications in response to the re-advertisement notification. 11. Curiously, it is not disclosed by the official respondents when did they receive the applications from the five candidates, including respondents 5 and 6, they say to have responded to the re-advertisement. It is not also their case that any notice informing the candidates that stay granted by the Court had been vacated and that they could respond to the notice inviting applications. Viewed thus, the official respondents have acted in clear violation of the mandate of Articles 14 and 16 of the Constitution, inasmuch as they have deprived the petitioner of an opportunity to offer his candidature and to compete in the selection process on the basis of his qualifications and relevant factors. The official respondents seem to have acted surreptitiously and in a shoddy manner. Selections made on the basis of such process cannot withstand the judicial scrutiny, being violative of the right to consideration guaranteed to the petitioner. 12. In light of the above, this petition is allowed. The impugned selection list issued by the respondents is quashed. Respondents are directed to issue a public notice informing the eligible and desirous candidates of the village that they could make their applications, on the basis of the eligibility determinable with reference to the date of issue of the notification dated 12.01.2011, within the time that was stipulated therein, and conclude the process of selection within one month from today. 13. It needs to be borne in mind that the Primary School in question was decided to be opened in August, 2010. Almost four years have gone by till now and, seemingly, the School has yet to commence its educational activity, for the two teachers who could impart education therein to the children of the village have not yet been appointed, of course, in view of the stay granted by the Court. Almost four years have gone by till now and, seemingly, the School has yet to commence its educational activity, for the two teachers who could impart education therein to the children of the village have not yet been appointed, of course, in view of the stay granted by the Court. Nonetheless, the official respondents seem to have not taken any steps, muchless effective steps, to seek vacation of the stay order or an earlier disposal of the writ petition. Be that as it may, the delay caused makes it imperative to speed up the selection process. 14. This also disposes of the connected CMP.