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2015 DIGILAW 423 (JK)

Gulshan Ahmad Bhat v. State of J&K

2015-08-19

BANSI LAL BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J. 1. The case of the petitioner is that an advertisement notice came to be issued by the respondent No. 4, Zonal Education Officer, Nihalpora, whereby applications were invited from eligible candidates for engagement of two teachers under SSA Scheme in Government Primary School, Gaznavi Colony, Dangerpora, on Rehbar-e-Taleem pattern. It is stated that Respondent No. 4 framed a panel of the meritorious candidates in consultation with the Village Level Committee, wherein the petitioner was shown at serial number three. It is further stated that the two candidates figuring at S. Nos. 1 & 2 of the panel were tentatively selected as Teachers against the posts in question. It is stated that one candidate namely Mohammad Ashraf Pala figuring at S. No. 6 in the panel filed SWP No. 689/2012 before this Court, due to which the selection/appointment got delayed and was not finalized till 07.09.2012. It is stated that the Court modified the interim direction therein by providing that tentative selection of respondent No. 7 shall remain subject to outcome of writ petition (SWP No. 689/2012). It is further stated that the respondents issued engagement order in favour of one candidate only figuring at S. No. 1 in the panel. It is further stated that the writ petitioner of SWP No. 689/2012 filed application for withdrawal of the writ petition which was allowed and the writ petition was dismissed as withdrawn on 07.08.2013. It is further stated that respondent No. 4 for ulterior motives slept over the matter and left out the petitioner when in fact the candidate figuring at S. No. 2 in the panel was appointed as Patwari. It is the case of the petitioner that he represented to the respondents including the Deputy Commissioner, Baramulla, but to no avail, leaving the petitioner to invoke the writ jurisdiction of this court by medium of SWP No. 290/2014, which came to be disposed of on 19.02.2014 by directing the respondents to consider the claim of the petitioner for engagement against the post of Ret under rules and pass consideration order. It is stated that the respondents passed the consideration order without application of mind and rejected the claim of the petitioner. The grievance of the petitioner is that the respondent No. 4 re-advertised the post for ulterior motives to deprive the petitioner to reap the fruits of selection already made. It is stated that the respondents passed the consideration order without application of mind and rejected the claim of the petitioner. The grievance of the petitioner is that the respondent No. 4 re-advertised the post for ulterior motives to deprive the petitioner to reap the fruits of selection already made. The main ground of the petitioner is that the respondents could not finalize the selection due to pendency of litigation till 07.08.2014, and the respondents were duty bound to operate the panel within six months from the date writ petition (SWP No. 689/2012) was dismissed as withdrawn and petitioner cannot be said to have faulted due to pendency of the aforesaid writ petition. The petitioner is aggrieved of the consideration order passed by respondent No. 4 as also re-advertisement of the post for engagement of teacher under SSA Scheme in Primary School, Gaznavi and seeks its quashment by medium of the writ petition in hand. On consideration of the matter on 03.06.2014, this Court while displaying indulgence, provided that process initiated for filling up of the post of Ret in Gaznavi Colony, Dangerpora, shall be continued but not finalized until further orders from this Court and the petitioner shall be at liberty to participate in the process which shall be without prejudice to his rights. 2. Respondents have filed the reply and resisted the averments made in the memo of writ petition. They have pleaded that 2nd meritorious candidate did not approach/represent for his engagement as Ret on the slot he has applied for and that the panel for selection as Ret remains valid for six months only in terms of Government Order No. 503-Edu of 2010 dated 10.06.2010, therefore, were unable to operate the selection already made. It is further pleaded that the case of the petitioner could not be considered because he filed the writ petition as an afterthought and subsequent to expiry of six months when the panel stood already expired. It is further pleaded that in terms of fresh advertisement notice, four candidates have filed their applications for the post in question and the panel has been submitted to the Chief Education Officer, Baramulla, vide communication dated 03.06.2014, and the selection process has not been finalized as yet. 3. The petitioner in opposition contended that the earlier selection process was halted due to pendency of the litigation and no fault could be attributed to the petitioner. 3. The petitioner in opposition contended that the earlier selection process was halted due to pendency of the litigation and no fault could be attributed to the petitioner. Moreso, the respondent No. 4 has slept over the matter and rejected the claim of the petitioner for ulterior motives and the consideration order passed by the respondent No. 4 violated the Articles 14 and 16 of the Constitution. 4. I have heard learned counsel for the parties and considered the matter. From perusal of the order passed by this Court in SWP No. 290/2014 filed by the petitioner earlier it is revealed that second candidate was selected/appointed and after having joined the post, left the job and joined in the Revenue Department as Patwari, meaning thereby that the selection process which commenced with the issuance of the advertisement notice had come to an end with the appointment of the two candidates and filling up of the two posts. Law is settled that if any of the candidate after joining against a post pursuant to a selection process leaves the job on which he had been appointed, the resultant vacancy that occurs by reason of resignation of the concerned appointee has to be re-advertised and that the wait list cannot be operated for filling up of such vacancy even if the wait list is still operative. In this view of the matter, the petitioner does not have a case for entitlement to appointment on the post. This petition, therefore, is liable to be dismissed. 5. In view of the above, this petition is dismissed alongwith CMP. However, it is provided that if the petitioner has participated in the fresh selection process as has been ordered in terms of order dated 03.06.2014 passed by this Court in the writ petition at hand and is found to have made the grade, he shall be considered for engagement in accordance with the rules governing the field. Disposed of along with CMP.