Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 186 (JK)

Nuzhat Jan v. State Of J&K

2014-04-29

DHIRAJ SINGH THAKUR

body2014
1. The present Civil First Miscellaneous Appeal has been preferred against the judgment and order dated 24.08.2012 passed by the Principal District Judge, Shopian, whereby the application filed by the plaintiff, appellant herein, under Order 39 Rule 1 and 2, has been dismissed. 2. With a view to understand the controversy in its correct perspective, it becomes necessary to notice, briefly, the material facts. Applications were invited from eligible candidates for engagement as ReTs for upgraded Primary School, inter alia, for Malik Mohalla, Shopian. The eligibility condition prescribed in the said notification dated 01.09.2009 was that the candidate should be possessed of a minimum qualification of 10+2 with Science/ Math subjects, as the case may be. Both the plaintiff, appellant herein, as also the as also the defendant No.5, respondent No.5 herein, applied for the same. At this stage it is necessary to reflect their academic qualifications: Plaintiff/appellant Graduation (Arts), M.A. Urdu, B. Ed. and M.Ed, from Bhartiya Shiksha Parishad, U.P. Respondent No.5/ Defendant No.5. B.Sc. & M.Ed, from Kashmir University. The official respondents on the basis of the material before it tentatively selected the appellant and reflected her name in the select list dated 23.12.2009. This was, however, subsequently withdrawn and a fresh select list was published on 17.10.2010, wherein the name of the appellant was not shown for engagement as third teacher in Primary School, Malik Mohalla, Shopian. Aggrieved of this action, a civil suit for declaration and injunction was filed by the appellant in the court of learned Principal District Judge, Shopian, along with an application under Order 39 Rule 1 & 2 seeking a restraint order against the official respondents, restraining them from issuing any appointment order in favour of any of the candidates as ReT in Primary School, Malik Mohalla, Shopian. An order of status-quo was issued by the trial court dated 25.10.2010. Subsequently written statement and objections were filed by respondent No.5, highlighting therein the fact that the M.A. Degree obtained by the appellant herein from Bhartiya Shiksha Parishad, U.P., was not recognized by the University Grants Commission (UGC) and, therefore, the State Government was not recognizing the degrees obtained from the said University for academic/ employment purposes in the State and thus, the M.Ed, qualification obtained by the plaintiff could not be taken into consideration while evaluating the merit. 3. 3. It is not denied by the learned counsel, appearing for the respondent No.5, that in case credit is given to the appellant for M. Ed. Degree obtained by her from the aforesaid University, she would be more meritorious than respondent no.5. 4. The trial court by virtue of impugned judgment and order dismissed the application for grant of interim relief filed by the plaintiff, appellant herein, on the ground, inter alia, that the M. Ed. Degree obtained by her from Bhartiya Shiksha Parishad, U.P. was neither recognized by UGC nor by the Government of Jammu & Kashmir and hence, it held that the plaintiff did not have any prima facie case in her favour. 5. Learned counsel for appellant urged before this court that the court below had not dealt with the issue properly. He urged that the court below had failed to notice the judgment rendered by this court in SWP No. 1657/2009 dated 06.11.2009 wherein a similar candidate who was possessed of a degree issued by Bhartiya Shiksha Parishad, U.P., had been directed to be considered for appointment as Teacher on the analogy of similarly situate other candidates, earlier appointed by the State who were possessed of similar degrees from the said University. Reference was also made by the learned counsel to an order dated 22.12.2009 issued by the office of Chief Education Officer, Anantnag, appointing similarly situate candidates with similar degree from the aforesaid University. It is, however, pertinent to mention here that said order was passed in compliance of and towards the implementation of the order passed by the court dated 06.11.2009. It was further urged that the communication dated 27.03.2010 issued by the Director School Education, Kashmir, reflecting the decision of the Administrative Department dated 24.02.2010 holding the degree awarded by the Bhartiya Shiksha Parishad, Lucknow, as not valid for employment purpose, was stayed in SWP No.371/2010 as also followed in SWP No.1247/2010. It was thus, stated that the court below could not have come to the conclusion that there was no prima facie case in favour of the plaintiff when the said order of the Government itself has been stayed by the court in writ proceedings filed by some other petitioners. It was thus, stated that the court below could not have come to the conclusion that there was no prima facie case in favour of the plaintiff when the said order of the Government itself has been stayed by the court in writ proceedings filed by some other petitioners. It would, however, be relevant to reproduce the contents of the letter dated 24.02.2010 issued by the Administrative Department, as reflected in the communication dated 27.03.2010 issued by the Director School Education, Kashmir, which reads as under: "Bartiya Shiksha Parishad Lucknow UP is not a recognized University by the UGC. Therefore, the degrees awarded/ being awarded by this University are not recognized and valid for any academic/ employment purpose." 6. Learned counsel for the appellant, however, submitted that the issue with regard to the validity of the said degrees is, in any case, pending before a Division Bench of this court and, therefore, the court below could not have summarily rejected the application for interim injunction filed by the plaintiff/ appellant. 7. The present Civil First Miscellaneous Appeal has been vehemently opposed by the counsel for the respondents. 8. Heard the counsel for the parties. 9. The entire emphasis of the counsel for the appellant while questioning the judgment and order impugned was to the effect that the court below had not considered the effect of; (a) the judgment and order passed by a Single Bench of this court in SWP No.1657/2009 wherein a direction had been given to the official respondents to consider the case of the petitioner therein, possessed of a degree from Bhartiya Shiksha Parishad, U.P., as good on the analogy of engagements offered to similarly situate other persons; (b) action of the official respondents in complying with the judgment and order and offering employment to the petitioners figuring in SWP No.1657/2009; (c) order passed by the writ court in SWP No.1247/2010 staying the communication dated 27.03.2010; (d) pendency of the issue before Division Bench of this court regarding the validity of the degrees issued by Bhartiya Shiksha Parishad, U.P. 10. The emphasis was that failure to notice all the aforementioned facts amounts to failure on the part of the trial court to exercise its jurisdiction properly. 11. The emphasis was that failure to notice all the aforementioned facts amounts to failure on the part of the trial court to exercise its jurisdiction properly. 11. In the light of the aforementioned grounds urged, it will be seen that the plaintiff/ appellant has neither challenged the decision of the Government as contained in communication dated 27.03.2010 nor has she placed on record any material which would prima facie show that the degrees awarded by Bhartiya Shiksha Parishad, U.P. have been recognized by the UGC. Pendency of the issue with regard to validity of the degrees issued by the said University before a Division Bench of this court by itself does not create a prima facie case in favour of the appellant/ plaintiff. Equally so a direction issued in SWP No.1657/2009 does not operate as a judgment in rem benefit whereof could flow to the plaintiff/ appellant in a civil suit filed by her. In any case, as was pointed out by the counsel for respondent No.5, the directions issued in SWP No. 1657/2009 were exparte without any notice having been issued to the official respondents which subsequently came to be complied with. However, what is important to note here is that the fact that aforementioned order was passed on 06.11.2009 whereas the communication issued by the Director School Education, Kashmir, is dated 27.03.2010 and thus, is subsequent in point of time. 12. The scope of interference in such matters by the appellate court, while exercising powers of appeal under Order 43, is no longer res Integra. The Apex Court in Wander Ltd. & Anr. v. Antox India P. Ltd., 1990 (Supp) SCC 727 held as under: "14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) "...These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton `....the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'." The appellate judgment does not seem to defer to this principle." 13. This principle continues to be followed in subsequent decisions, the latest being Mohd. Mehtab Khan & others v. Khushnuma Ibrahim Khan & Ors, 2013(9) SCC 221 . 14. Testing the facts of the present case on the touchstone of the principles of law (supra) it would be seen that there is no perversity in the order impugned nor has the same been passed arbitrarily or capriciously. The court below exercised its discretion in refusing the interim relief on the basis of the decision of the Government. Not to recognize the degrees of Bhartiya Shiksha Parishad, U.P., for academic or employment purposes. The said decision has not been quashed or set-aside. This court in its appellate jurisdiction cannot substitute its views with those of the trial court which in the facts of the case are correct and proper. 15. For the reasons mentioned above, the appeal is found to be without merit and is, accordingly, dismissed.