Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 592 (JK)

Janat Begum v. State of J&K

2017-08-09

JANAK RAJ KOTWAL

body2017
1. Vacancies of teachers, among others, in District, Rajouri were advertized by the Jammu and Kashmir Service Selection Board, herein respondents 5 and 6, vide Advertisement Notice No. 3 of 1994. Ten per cent of the posts were reserved for Scheduled Tribe (ST) category. 10+2 with 50 per cent marks was prescribed as the minimum qualification for this post though candidates with graduation and above could also apply irrespective of the percentage of marks secured in 10+2 2. Petitioner applied for the aforementioned post of teacher under ST category. She claims in para 2 of the writ petition that she has passed HS Part-II (that is, 10+2) in the year 1993. In addition she is Urdu Adeeb Mahir and Adeeb Kamil. She was selected and figured at serial No. 1 under the ST category in the select list that was published in the Newspaper on 20.07.1996 (annexure-D). 3. Grievance of the petitioner in this writ petition is that the respondents did not allow her to join in spite of her due selection. The respondents raised objections that she had not obtained 40 per cent marks in her 10+2 examination. She filed writ petition in SWP No. 120/1999 before this Court, which was listed on 03.02.1999 and disposed of on the same day with directions that respondents/authorities would take notice of select list prepared by the competent authority and take further steps in this regard and that once a select list is prepared, it has to be given effect to. As the directions issued by the court were not complied with, petitioner filed contempt application No. 105/1999 in this Court. During pendency of the contempt application, respondents passed order No. 16121-27 dated 03.11.2000 (annexure-H), whereby petitioner’s case was rejected. The contempt petition was dismissed on 16.05.2002 and petitioner was given liberty to challenge the order passed by the respondents. 4. In the order dated 03.11.2000 (supra), passed by the Chief Education Officer, Rajouri, herein respondent No. 3, the view taken firstly was that the select list sent by the Service Selection Board had expired its life in terms of Rule 10 of the J&K Subordinate Services (Recruitment) Rules, 1992. In addition, this order provides that under the Jammu and Kashmir Education (Subordinate) Service Rules, 1979, minimum prescribed qualification for the post of teacher was 10+2 with 50 per cent marks in. In addition, this order provides that under the Jammu and Kashmir Education (Subordinate) Service Rules, 1979, minimum prescribed qualification for the post of teacher was 10+2 with 50 per cent marks in. The petitioner had tried to seek her selection on the basis of a fake and fraudulent marks certificate of HSS Part-II examination and was not entitled to the issuance of letter of appointment. 5. In this writ petition, petitioner primarily challenges order dated 03.11.2000 (supra). Petitioner further seeks direction to the respondents to allow her to join as teacher because of her selection and to give effect to her appointment from the date other similarly situated persons have been appointed/adjusted with all consequential relief including seniority and monetary benefit. 6. The case set up by the petitioner in para 8 of the petition is that: “…the petitioner has not annexed any certificate but the petitioner has annexed certificate of HS Part-II where it clearly shows that the petitioner has obtained 250 marks out of 600. The petitioner was selected on the ground that the petitioner has done Urdu Adeeb Mahir and Urdu Kamil, which is equivalent to 10+2 and B.A. and petitioner was selected on the basis of that, qualification…” 7. The impugned order dated 03.11.2000 is challenged by the petitioner also on the ground that when a candidate is duly selected by the selection committee, the appointing authority cannot refuse appointment on the ground that the candidate does not possess the prescribed qualification. 8. The stand of respondents 5 and 6, that is, the Service Selection Board is that the petitioner was duly considered by a selection committee and was declared selected in ST category. The list of the selected candidates was furnished to the indenting department/respondents 1 to 4. The Service Selection Board has no role to play in appointment of a selected candidate. Respondents 1 to 4, however, have not filed counter/objections to the writ petition. 9. Learned Senior Advocate, Ms. Surinder Kour, appearing on behalf of the petitioner, submitted that the petitioner had sought selection and was selected not on the basis of 10 + 2 qualification but on the basis of her qualification as Urdu Adeeb Mahir, which is equivalent to 10+2 and Urdu Adeeb Kamil, which is equivalent to B.A. In support of this contention learned counsel relied upon a communication dated 15.06.1995(annexure-E to the writ petition). Learned counsel argued further that once a candidate is duly selected by the selecting authority, the appointing authority neither can challenge the correctness of the selection on any ground whatsoever nor can deny appointment. Reliance is placed on Supreme Court judgment in State of Punjab and others v Suman Lata, 1999 (9) Supreme 320 . 10. Per contra, Mr. Ravinder Gupta, learned Additional Advocate General appearing on behalf of respondents 1 to 4 argued that in the vacancy Notification the minimum qualification was provided as 10+2 with 50 per cent marks. The petitioner having obtained less than 50 per cent marks did not possess the minimum required qualification so her selection was wrong and illegal so the indenting department could not have issued appointment order in her favour. Learned Additional Advocate General also rebutted the contention of the petitioner that she had applied on the basis of her qualification as Urdu Adeeb Mahir and Urdu Adeeb Kamil, saying that this ould not have been because no equivalent or alternative qualification was prescribed in the advertisement notice. Contextually, learned AAG argued that the qualification of Adeeb Mahir or Adeeb Kamil said to have been acquired by the petitioner has no equivalence with 10+2 or graduation in the State inasmuch as the annexure-E (supra) ex facie has no application to the petitioner’s case because the said communication, whatsoever it is, relates to such courses of Jamia Urdu Aligarh only. 11. It is not denied that the minimum qualification prescribed in the advertisement notice was 10+2 with 50 per cent marks though candidates with graduation and above could have applied irrespective of the percentage of marks secured in 10+2. The vacancy Notice did not contemplate any equivalent qualification. It is admitted by the petitioner that the marks obtained by her in the 10+2 examinations were less than 50 per cent as she secured 250 out of 600. In such a factual scenario, question about eligibility of the petitioner to apply for the post could have been raised at the time of entertaining her application form or any time during selection process. Such a question, however, did not arise inasmuch as the petitioner was selected, she figured at serial No. 1 in the select list in ST category and her name was recommended to the indenting department. 12. Such a question, however, did not arise inasmuch as the petitioner was selected, she figured at serial No. 1 in the select list in ST category and her name was recommended to the indenting department. 12. The selecting authority, that is, herein respondents 5 and 6, in their reply to this writ petition have supported the factum and correctness of the selection of the petitioner. It is stated that the petitioner was duly selected by the selection committee and the list was recommended to respondents 1 to 4, that is, the indenting department. The short question, thus, arising in this writ petition for determination is whether the indenting department could have refused appointment to the petitioner by taking the view that she did not possess the requisite qualification for the post in question. This question, however, has the direct answer in Suman Lata’s case (supra). 13. The fact situation in Suman Lata’s case is more or less identical to the fact situation of the case on hand. In that case, the advertisement was issued for the posts of Arts and Crafts teacher and Sewing teacher. The qualification for the post of Arts and Crafts teacher was matriculation with 2 years diploma in Arts and Crafts. The respondent therein applied for the post of Arts and Crafts teacher. She was interviewed and selected for the post. On her appointment she reported to her duty but the Headmaster of the school noticed that she did not have the requisite qualification to be appointed for the said post. The Headmaster reported the matter to the District Education Officer, who cancelled the selection. The Supreme Court in this case held in para 4 of the reporting: “4. When the Selection Committee which consists of persons with sufficient experience in that filed with the knowledge of job requirements and necessary qualifications in this regard having examined the qualification possessed by the respondent selected the respondent as Arts and Crafts Teacher, the District Education Officer ought not have cancelled that appointment.” 14. The legal position in the matter is clear too to entertain any doubt. The legal position in the matter is clear too to entertain any doubt. This legal position as a matter of fact was clearly indicated by this Court in the order dated 03.02.1999 (supra) in the earlier writ petition by observing that “respondents-authority would take notice of select list by competent authority and take further steps in this regard in accordance with law” and further that “once a select list is prepared, then it has to be given effect to”. By refusing the appointment to the petitioner even in spite of the order passed by this Court, the respondent No. 4 has acted illegally and not only that, even the higher authorities including the Administrative Department to whom copy each of the impugned order was sent by respondent No. 3 have failed to intervene and take corrective measure. 15. In view of the clear legal position, the refusal of appointment to the petitioner is illegal and cannot sustain. 16. For the aforementioned, this writ petition has strong merit and deserves to be granted. The petition is, therefore, allowed. By issue of a writ of certiorari impugned order dated 03.11.2000 is quashed and by issue of a further writ of mandamus respondents are directed to issue appointment order of the petitioner as General Line Teacher pursuant to her selection under Advertisement Notice No. 3 of 1994. Having regard to the facts and circumstances of the case, respondents are further directed to give notational effect to her appointment and all promotional benefits from 03.02.1999, that is, the date of decision in the earlier writ petition filed by her with, however, without any monetary benefit. Respondents 1 to 5 shall take all administrative measures including creation of supernumerary post, if necessitated, to give the notional retrospective effect to the appointment of the petitioner. Let this judgment be complied with within a period of four weeks after petitioner produces a copy of this judgment in the office of respondent No. 3. 17. Disposed of.