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2015 DIGILAW 563 (JK)

Gulshan Ahmad Bhat v. State of J&K

2015-10-28

HASNAIN MASSODI, N.PAUL VASANTHA KUMAR

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JUDGMENT : 1. Letters Patent Appeal on hand is directed against writ court Judgment dated 19-08-2015, whereby appellant's writ petition being SWP No. 1105/2014 titled Gulshan Ahmad Bhat v. State of J&K and Others has been dismissed. The writ Court Judgment is questioned on the grounds set out in the memo of appeal. We have gone through memo of appeal, Judgment impugned as also writ record. We have heard learned counsel for the parties at length. 2. Appellant responded to Advertisement Notice No. ZEO/N/1575, dated 27th February 2012, issued by Zonal Education Officer, Nehalpora, Pattan District Baramulla-respondent No. 4 herein inviting application from eligible candidates to fill up two vacancies of Teachers under Sarva Shiksha Abhiyan (SSA) Scheme in Primary School Gaznavi Colony, Dangerpora. He participated in the selection process and figured at Serial No. 3 in the select panel prepared by the respondent. 3. The selection of candidates at Serial Nos. 1 and 2 was questioned by one Mohammad Ashraf Palla - candidate empanelled at serial No. 6, in a writ petition being SWP No. 689/2012. Though initially select list was placed in abeyance, yet on 7th July 2013, the ad-interim order was modified and official respondents given liberty to issue the appointment order in favour of the candidate at Serial No. 1. The writ Court was of the view that in any case, appellant in SWP No. 689/2012, was to claim consideration against only one post and therefore the ad-interim order was to be restricted to candidate figuring at serial No. 2 in the select list. Candidate at Serial No. 1 was accordingly appointed vide Order No. ZEO/NP/804-05, dated 01-10-2012. 4. Be that as it may, the selection process remained in abeyance to the extent of second vacancy till SWP No. 689/2012 was dismissed as withdrawn on 7th August 2013. The official respondents, however on dismissal of the writ petition and vacation of ad-interim order did not proceed with the selection process. In the meantime, the candidate figuring at Serial No. 2 was vide Order No. FC(Adm.) 19 of 2014 dated 03-02-2014, appointed as Patwari in Revenue Department. The candidate at serial No. 2 neither approached official respondents for issuance of appointment order in his favour nor did official respondents on their own issue the appointment order in his favour. In the meantime, the candidate figuring at Serial No. 2 was vide Order No. FC(Adm.) 19 of 2014 dated 03-02-2014, appointed as Patwari in Revenue Department. The candidate at serial No. 2 neither approached official respondents for issuance of appointment order in his favour nor did official respondents on their own issue the appointment order in his favour. This emboldened appellant (candidate at Serial No. 3) to file writ petition being SWP No. 290/2014, asking for a direction to respondents to issue appointment order in his favour. Her case was that she having regard to his position in the select list (Serial No. 3) deserved to be appointed once the candidate at Serial No. 2 opted out of race. The writ petition was disposed of with a direction to respondents to consider the appellant's claim for engagement against the advertised vacancy. The respondents on consideration rejected appellant's claim vide Order dated 17th April 2014, on the ground that as the panel was valid for six months it had lost force because of efflux of time and appellant therefore could not based claim of his placement in the panel. 5. The order No. ZEO/NP/194, dated 17th April 2014, was questioned in writ petition being SWP No. 1105/2014. The appellant's case was that the period of six months was to be counted from the date engagement order in favour of empanelled candidate was issued and as engagement order in favour of candidate at Serial No. 2 was not issued till his claim was considered and even till the writ petition was filed, the select panel was in force and required to be acted upon by the respondents. 6. The writ court proceeded on an erroneous assumption that the candidate at Serial No. 2 in the select panel was appointed and he after serving Department for a while put in his papers to join as Patwari in the Revenue department. It was nobody's case before the writ court that the candidate at Serial No. 2 was appointed as Teacher and he sometime after the appointment submitted his resignation. The vacancy of second Teacher therefore remained unfilled as neither candidate at Serial No. 2 approached the respondents for issuance of appointment order in his favour nor was such order issued by respondents on their own. The vacancy of second Teacher therefore remained unfilled as neither candidate at Serial No. 2 approached the respondents for issuance of appointment order in his favour nor was such order issued by respondents on their own. The conclusion drawn by the writ court that the vacancy of second Teacher was a "future vacancy" therefore is not to be accepted. 7. The Government Order No. 503-Edu of 2010, dated 10-06-2010, deals with validity of the panel framed for the selection of ReT. It provides: "The validity of panel to be drawn for the selection of ReT in any newly opened primary school/upgraded primary school shall, henceforth be six months from the date of issuance of engagement order in favour of the selected candidates." The select panel as bare look at the above would reveal is not to be counted from the date of preparation of the panel or even from the date it is notified. It is to be counted from the date of issuance of engagement order in favour of the select candidate. In case, selection process for more than one candidates is initiated, the life of the select panel is to be reckoned from the date engagement order in favour of last select candidate is issued. 8. In the present case, the matter got delayed because of litigation, the appointment order in favour of the first candidate against one of the vacancy was issued on 01-10-2012. The appointment order in favour of the selected candidate to fill up second vacancy was not issued at all. The select panel therefore did not loose its force only because the respondents slept over the matter and did not issue appointment order in favour of the selected candidate. The appellant therefore was to succeed in the writ petition and relief sought granted in her favour. The select panel because of non issuance of engagement order was in force on the date respondents were directed to accord consideration to appellant/writ petitioner's claim. This view is in tune with law laid down by Hon'ble Supreme Court in State of Jammu and Kashmir v. Satpal, 2013 SLJ SC 1. For the reasons discussed, we allow the Letters Patent Appeal and set aside writ court Judgment dated 19-08-2015. Resultantly the writ petition is allowed. This view is in tune with law laid down by Hon'ble Supreme Court in State of Jammu and Kashmir v. Satpal, 2013 SLJ SC 1. For the reasons discussed, we allow the Letters Patent Appeal and set aside writ court Judgment dated 19-08-2015. Resultantly the writ petition is allowed. The order dated 17th April 2014, impugned in writ petition is set aside and the respondents directed to issue appointment/ engagement order in favour of the appellant in accordance with Rules. Let such exercise be completed within four weeks. The re-advertisement notice, if any, issued to fill up the second vacancy and the Selection process, initiated are also set aside.