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2015 DIGILAW 11 (JK)

Priti Gupta v. State

2015-02-05

TASHI RABSTAN

body2015
JUDGMENT : Tashi Rabstan, J.:- 1. Since this SWP and Contempt Petition No. 260/2013 pertain to common matter, these are taken together for disposal. The case of the petitioner as per the averments made in the petition is that vide Advertisement Notice No. 07 of 2010 dated 12.11.2010, the applications were invited by the State-respondents for different posts including the posts of Teachers (Education Department) against Item No. 697, Cadre Kathua. The petitioner also being eligible, applied against RBA category. After interview she came to be selected and her name figured at S. No. 36 under RBA category in the Provisional Select List of Teachers, District Cadre Kathua, but was not allowed to join on the ground that she was not holding a valid RBA certificate at the time of joining, i.e., 30.04.2013. It is further contended that RBA certificate was issued in favour of the petitioner on 02.02.2008, which was valid for a period of five years, i.e., upto 02.02.2013. It is further contended that the said certificate was valid on the date when the petitioner applied for the post of Teacher and even at the time when she was selected, but the appointment order was issued after some time, which was not fault of the petitioner. The petitioner being a lady had to get married, therefore, RBA certificate could not be renewed. Otherwise also, there was no legal requirement for renewal of RBA certificate once the petitioner was in possession of valid RBA certificate on the date when eligibility of the petitioner was to be reckoned. It further averred that respondent No. 3 vide impugned communication No. CEOK/3052-53 dated 15.04.2013 addressed to respondent No. 4 with reference to appointment order dated 10.04.2013 of petitioner had directed respondent No. 4 that petitioner be not allowed to join under Order dated 10.04.2013 without production of valid certificate (RBA). It further averred that respondent No. 3 vide impugned communication No. CEOK/3052-53 dated 15.04.2013 addressed to respondent No. 4 with reference to appointment order dated 10.04.2013 of petitioner had directed respondent No. 4 that petitioner be not allowed to join under Order dated 10.04.2013 without production of valid certificate (RBA). Hence, this writ petition seeking following relief to:- (a) allow the present writ petition; (b) quash communication No. CEOK/3052-53 dated 15.04.2013 by the medium of which respondent No. 3 has directed respondent No. 4, not to allow the petitioner to join as Teacher in Government Middle School, Katli, Tehsil Billawar, District Kathua; (c) command and direct the respondents to allow the petitioner to join as General Line Teacher Government Middle School Katli, Tehsil Billawar, District Kathua, pursuant to her appointment Order No. CEOK/2200-05 dated 10.04.2013; and (d) Any other relief, which this Hon'ble Court may deem fit; or proper in the facts and circumstances of the case, may be granted in favour of the petitioner and against the respondents. 2. This petition came up for consideration before the Court on 14.05.2013 and this Court was pleased to stay the communication No. CEOK/3052-53 dated 15.04.2013. Order of the Court dated 14.05.2013 was served upon the respondents, but despite that petitioner was not allowed to join. Being aggrieved, she filed contempt petition bearing COA(S) No. 260/2013. 3. Respondents have filed objections to the main petition as well as statement of facts to the contempt petition on 29.07.2013. It is relevant to notice Paragraph No. 4 of the preliminary objections filed to writ petition as under:- "4. That the petitioner's case for appointment as of Teacher has been recommended by the J & K Service Selection Board in RBA category. The RBA certificate has been issued by the Tehsildar Billawar vide No. 599-601 BCG dated 02.02.2008, the backward certificate has been on form 'X' to SRO 294 dated 21.10.2005 [2005 (4) JKS 112-JK]. On the said certificate it has been clearly mentioned that it remained valid for a period of 5 years from the issue of the certificate. The RBA certificate has been issued by the Tehsildar Billawar vide No. 599-601 BCG dated 02.02.2008, the backward certificate has been on form 'X' to SRO 294 dated 21.10.2005 [2005 (4) JKS 112-JK]. On the said certificate it has been clearly mentioned that it remained valid for a period of 5 years from the issue of the certificate. It is pertinent to mention here that Circular No. 26-GAD of 2006 dated 08.09.2006 clearly indicates that the certificates issued under SRO 126 and SRO 294 are to be accepted in terms of Rules 34 and Rule 34 clearly indicates that the certificate issued under these rules shall be remained valid for a period of 5 years. The Government of Jammu and Kashmir, Education Department has also made clear this vide its letter No. Edu-1/285/2012 dated 26.09.2012. Copy enclosed as Annexure-R1. The order for appointment in favour of the petitioner has been issued by the Chief Education Officer, Kathua. The petitioner did not join till 29.04.2013. The Chief Education Officer, Kathua vide letter No. CEOK/3052-53 dated 15.04.2013 directed the answering respondent not to allow the petitioner to join without production of valid category certificate. The petitioner aggrieved with the communication letter dated 15.04.2013 approached Hon'ble High Court and Hon'ble High Court was pleased to issue interim direction as under:- "In the meanwhile, subject to objections from the other side and till next date before the Bench, operation of impugned Order No. CEOK/3052-53 dated 15.04.2013 is kept in abeyance provided the same has not already been acted upon." This order has been issued by the Hon'ble Court on 15.05.2013. The petitioner has not been allowed to join as teacher as the order which has been kept abeyance by the Hon'ble High Court, has already been acted upon. The conditions for a valid certificate, the order has been issued vide Circular No. 26-GAD of 2006 dated 08.09.2006 and further by Administrative Department vide letter No. Edu-1/285/2012 dated 26.09.2012." 4. In the statement of facts filed in the contempt petition, the respondents have reiterated the stand taken in the objections filed to the main writ petition. 5. Heard learned counsel for the parties and perused the record. 6. In the statement of facts filed in the contempt petition, the respondents have reiterated the stand taken in the objections filed to the main writ petition. 5. Heard learned counsel for the parties and perused the record. 6. It is not in dispute that the Advertisement Notice pursuant to which petitioner had applied, i.e., Advertisement Notice No. 07 of 2010 was issued on 12.11.2010 and the category certificate of the petitioner certifying that the petitioner belongs to RBA category, was issued on 02.02.2008, therefore, was valid for a period of five years, i.e., upto 2nd of February, 2013. As such, the same was valid at the time when the petitioner applied for the post of Teacher in District Kathua. Even at the time of issuance of the Select List, i.e. on 04.09.2012, in which the petitioner was duly selected, the category certificate of the petitioner was valid. The Jammu and Kashmir Service Selection Recruitment Board after publication of the Selection List recommended the name of the petitioner for selection to the Education Department vide its communication bearing No. SSB/Sel/Secy/013/294-296 dated 11.01.2013 and at that point of time as well, the RBA certificate was valid. 7. It is settled proposition of law that the eligibility is to be seen and determined on the last date of submission of the application form and for that matter after making selection the authorities consume considerable time in issuing the order of appointment, the same would not disentitle a duly selected and appointed candidate like the petitioner, the right to join against the post. 8. There is another aspect of the matter that the petitioner after her selection was duty appointed by respondent No. 3 as Teacher in District Kathua vide Order bearing No. CEOK/2200-05 dated 10.04.2013 and was adjusted in Govt. Middle School, Katli, Educational Zone, Malhar against a vacant post. However, in terms of impugned communication bearing No. CEOK/3052-53 dated 15.04.2013 addressed by respondent No. 3 to respondent No. 4, it was conveyed that the petitioner be not allowed to join pursuant to her order of appointment without production of valid category certificate. Middle School, Katli, Educational Zone, Malhar against a vacant post. However, in terms of impugned communication bearing No. CEOK/3052-53 dated 15.04.2013 addressed by respondent No. 3 to respondent No. 4, it was conveyed that the petitioner be not allowed to join pursuant to her order of appointment without production of valid category certificate. The respondents in their objections while supporting the aforesaid action have relied upon a Circular bearing No. 26-GAD of 2006 dated 08.09.2006 issued by General Administration Department, whereby and whereunder all the Recruiting Agencies were impressed upon not to insist on production of Certificate under SRO 294 of 2005 in respect of the candidates belonging to SC & ST categories, if the candidates are able to produce such certificates already issued by the competent authority under the earlier SRO, i.e., SRO 126 of 1994, to ensure that no avoidable inconvenience is caused to the candidates belonging to SC & ST categories, who had already obtained category certificates under SRO 126 of 1994. The aforesaid circular is of no relevance in case of the petitioner, inasmuch as, the category certificate, which was submitted by the petitioner at the time of submission of her application form was already issued to the petitioner under SRO 294 dated 21.10.2005, as such, the aforesaid circular has no applicability to deny the right to the petitioner to join against the post of Teacher in District Kathua pursuant to her selection. 9. The counsel for the petitioner has relied upon law laid down by the Apex Court in case titled "Commissioner, Karnataka Housing Board v. C. Muddaiah" reported in AIR 2007 SC 3100 , in which it is held that the Court, in a given case, may hold that the person was willing to work, but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the authority to grant him all benefits considering as if he had worked. It therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of law. 10. The Court may in the circumstances, direct the authority to grant him all benefits considering as if he had worked. It therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of law. 10. In this backdrop, the writ petition succeeds and the communication impugned bearing No. CEOK/3052 dated 15.04.2013 is quashed and respondents 3 and 4, in particular, respondent No. 4 (ZEO, Zone Malhar) is directed to allow the petitioner to join as Teacher in Government Middle School, Katli Zone, Malhar within four weeks where the petitioner was adjusted by respondent No. 3 in the order of appointment. 11. Since the petitioner despite her appointment and adjustment in a particular School was denied her right to discharge her duties as Teacher w.e.f. 10.04.2013 and particularly when the impugned communication was stayed by this Court vide order dated 14.05.2013, therefore, the petitioner cannot be denied the salary, which the petitioner could have received had she been allowed to join. Accordingly, respondents 2 to 4 shall consider the release of the salary in favour of petitioner w.e.f. 10.04..2013 Let needful be done by the respondents within a period of four weeks from the date copy of the order is served upon them. Disposed of as above along with connected CMA(s). COA(S) No. 260/2013. In view of the disposal of the main petition, contempt proceedings are also dropped. Rule, if any issued, is here by discharged.