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2018 DIGILAW 128 (JK)

Ranjana Sharma v. State of J&K

2018-03-06

TASHI RABSTAN

body2018
JUDGMENT : 1. Through the medium of this writ petition, the petitioner is seeking quashing of Order No.ZEO/SSA/1102-05 dated 01.01.2005 issued on 31.03.2005 by the Zonal Education Officer, Lakhanpur, Kathua, respondent No.4 herein, whereby one Sunita Devi, respondent 5 herein, came to be appointed as Rehbar-e-Taleem Teacher in Government Middle School Choi, Village Tridwan, Lakhanpur Zone, District Kathua. The petitioner is also seeking a direction to respondents to appoint her against the said post having higher merit than respondent No.5. 2. The facts as projected in the writ petition are that pursuant to Advertisement Notice No.DSEJ/RET/4811-17 dated 29.06.2004 issued by Director School Education, Jammu, respondent No.2 herein, petitioner as well as respondent No.5 applied for their appointment against the post of Rehbar-e-Taleem Teacher in Government Middle School Choi, Village Tridwan, Lakhanpur Zone, District Kathua. It is averred that one of the conditions of said advertisement notice was that the applications were to be submitted to the concerned Zonal Education Officers of the respective zone under proper receipt within 15 days of appearance of advertisement. Further, it is averred that though petitioner as well as respondent No.5 both were graduates, yet petitioner was having much higher merit than respondent No.5. It is averred that after the expiry of 15 days, i.e., 14.07.2004, respondent No.4 though prepared the panel for appointment against the said post, however, during the selection process respondent No.4 in order to accord undue favour to respondent No.5, allowed her to place on record her B.Ed. marks sheet dated 07.10.2004, which itself reveals that the same came to be acquired much after the last date of expiry of submission of application forms for the post-in-question. Thus, it is averred that respondent No.4 while considering the qualification of B.Ed. of respondent No.5 selected her for the post-in-question and, accordingly, appointment Order No.ZEO/SSA/1102-05 dated 01.01.2005 came to be issued on 31.03.2005. It is averred that feeling aggrieved, the petitioner submitted two separate objections/representations to Director School Education, Jammu, however, respondent No.2 failed to take any appropriate action in the matter. Hence, the present writ petition. 3. Objections have been filed on behalf of respondents. In the objections filed on behalf of official respondents 1 to 4, it is averred that respondent No.5 came to be selected as Rehbar-e-Taleem Teacher in Middle School Choi, Village Tridwan on the basis of her having higher qualification of B.A. than that of petitioner herein. Hence, the present writ petition. 3. Objections have been filed on behalf of respondents. In the objections filed on behalf of official respondents 1 to 4, it is averred that respondent No.5 came to be selected as Rehbar-e-Taleem Teacher in Middle School Choi, Village Tridwan on the basis of her having higher qualification of B.A. than that of petitioner herein. Further, it is averred that Director School Education, Jammu vide Communication No.DSEJ/NG/SSA/10472-77 dated 12.10.2004 had clarified to all the Chief Education Officers of Jammu/Kathua that the applicants, who had applied earlier before the issuance of Notification No.DSEJ/1872-79 dated 27.08.2004, be also included in the panels and the panels be updated accordingly. Thus, it is averred that respondent No.4 in compliance to said communication dated 12.10.2004 updated the panel and included the qualification of respondent No.5 after the cut-of date; thus she came to be selected having higher merit than that of petitioner. 4. In the objections filed on behalf of respondent No.5, it is averred that in view of her qualification of B.Ed., she was having higher merit than that of petitioner herein. Further, it is averred that respondent No.5 was having the qualification of B.Ed. before finalization of the panel, so her qualification of B.Ed. was rightly entertained by the then Zonal Education Officer. 5. I have heard learned counsel appearing for the parties, considered their rival contentions, perused the original record produced as well as the writ record. 6. The question arises for consideration is: whether the petitioner had higher merit than respondent No.5 herein at the time of submission of application forms and whether the qualification of B.Ed. acquired by respondent No.5 after the cut-off date for submission of application forms had rightly been entertained by the concerned Zonal Education Officer or not. 7. In the objections filed on 31.05.2010, respondents 1 to 4 have specifically taken a stand in the preliminary objections that respondent No.5 had higher qualification of B.A. than that of petitioner, relevant portion whereof is reproduced as under: “Preliminary objections:- ……. The Respondent No.5 was selected as RET at Middle School Choi Village Tridwan on the ground that the Respondent No.5 had a higher qualification of B.A. than that of the petitioner. …….” 8. The Respondent No.5 was selected as RET at Middle School Choi Village Tridwan on the ground that the Respondent No.5 had a higher qualification of B.A. than that of the petitioner. …….” 8. However, a perusal of original record, so produced, clearly reveals that at the time of submission of application forms for the post-in-question, the petitioner and respondent No.5 both were having same qualification, i.e., 10+2 and graduation, yet obviously the petitioner was having higher merit than that of respondent No.5. The petitioner was having 46.33% marks in 10+2 and 54.90% marks in Graduation, whereas respondent No.5 was having 48.50% marks in 10+2 and 43.45% marks in Graduation. Even, respondent No.5 has admitted this position in paragraph-2 of preliminary objections filed by her; meaning thereby respondents 1 to 4 have made a wrong statement in the objections, that too supported by an affidavit, for which they are liable to be dealt with committing the offence of purgery. 9. Further, Advertisement Notice No.DSEJ/RET/4811-17 dated 29.06.2004 clearly stipulated that the applications were to be submitted to the concerned Zonal Education Officers of the respective zone under proper receipt within 15 days of appearance of advertisement; meaning thereby any qualification acquired by a candidate after the last date of submission of application forms was not to be taken into consideration. 10. A three Judge Bench of the Apex Court in Ashok Kumar Sharma vs. Chander Shekhar, (1997) 4 SCC 18 , has held that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, an impermissible justification. It cannot act contrary to it. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, an impermissible justification. The minority opinion in the 1993 decision in Ashok Kumar Sharma case that the 33 respondents, who were not qualified on the date of submission of the application but had acquired the requisite qualification before the date of interview, could not have been allowed to appear for interview, was right.” 11. In U.P. Public Service Commission, U.P., Allahabad and Anr. v. Alpana, (1994) 2 SCC 723 , the Apex Court has held that eligibility conditions should be examined as on the last date for receipt of applications by the Commission. That too was a case where the result of a candidate was declared subsequent to the last date of submission of the applications. This Court held that as the result does not relate back to the date of examination and eligibility of the candidate is to be considered on the last date of submission of applications, therefore, a candidate, whose result has not been declared upto the last date of submission of applications, would not be eligible. 12. Thus, the legal proposition that emerges from the settled position of law, as enumerated above, is that the result of examination does not relate back to the date of examination and a person would possess qualification only on the date of declaration of the result. Therefore, granting any benefit to respondent No.5 herein on the basis of B.Ed. qualification, which certainly she acquired much after the last date of submission of application forms for the post-in-question, would be violative of doctrine of equality, a backbone of the fundamental rights under the Constitution. 13. Thus, it is crystal clear that the petitioner had higher merit than respondent No.5 herein at the time of submission of application forms and that the qualification of B.Ed. acquired by respondent No.5 after the cut-off date for submission of application forms had wrongly been entertained by the concerned Zonal Education Officer for giving undue benefit to her. 14. 13. Thus, it is crystal clear that the petitioner had higher merit than respondent No.5 herein at the time of submission of application forms and that the qualification of B.Ed. acquired by respondent No.5 after the cut-off date for submission of application forms had wrongly been entertained by the concerned Zonal Education Officer for giving undue benefit to her. 14. The next contention of respondents 1 to 4 is that Director School Education, Jammu vide Communication No.DSEJ/NG/SSA/10472-77 dated 12.10.2004 had clarified to all the Chief Education Officers of Jammu/Kathua that the applicants, who had applied earlier before the issuance of Notification No.DSEJ/1872-79 dated 27.08.2004, be also included in the panels and the panels be updated accordingly. Thus, the stand of respondents 1 to 4 is that since respondent No.5 passed B.Ed. examination on 07.10.2004 and the said communication came to be issued on 12.10.2004, i.e., after the declaration of B.Ed. result of respondent No.5, therefore in compliance to communication dated 12.10.2004, the B.Ed. qualification of respondent No.5 came to be included after the cut-off-date and, accordingly, the panel was updated. 15. I do not find any merit in this contention of learned counsel for respondents 1 to 4 in view of settled position of law laid down by the Apex Court (supra). Further, if there is some significance in Communication dated 12.10.2004 (supra), even then B.Ed. qualification of respondent No.5 had wrongly been included in the panel. To elaborate the reasoning, it would be appropriate to reproduce hereunder the relevant portion of Communication No.DSEJ/NG/SSA/10472-77 dated 12.10.2004 issued by Director School Education, Jammu: “It has been noticed that some Zonal Education Officers are confused as to whether the applications received before the issuance of last notification vide this office No.DSEJ/1872-79 dated 27.08.2004 have to be included in the panel or not. It is, therefore, clarified that the applicants who had applied earlier before the issuance of said notification should also be included in the panel and the panel should be updated without any further confusion.” 16. It is, therefore, clarified that the applicants who had applied earlier before the issuance of said notification should also be included in the panel and the panel should be updated without any further confusion.” 16. In this communication it has clearly been mentioned that the panels were to be updated with respect to only such applicants who had applied earlier before the issuance of Notification No.DSEJ/1872-79 dated 27.08.2004; meaning thereby if the qualification was to be added, the same was to be added in respect of such applicants who had acquired the same before the issuance of notification dated 27.08.2004 (supra) and not after that, and the panels were to be updated accordingly. In the present case, it is the admitted case of respondents 1 to 4 that respondent No.5 acquired the qualification of B.Ed. only on 07.10.2004, i.e., even much after the issuance of notification dated 27.08.2004, therefore, even the said notification does not apply to the case of respondent No.5. Here, the respondents have intentionally tried to give a wrong impression that since communication was issued on 12.10.2004, therefore, B.Ed. qualification of respondent No.5 came to be added, which actually she acquired on 07.10.2004. This is nothing, but an arbitrary exercise of powers on the part of respondents 1 to 4, more particularly the then Zonal Education Officer, Lakhanpur. 17. Further, as per Advertisement Notice dated 29.06.2004, the applications for the post-in-question were to be submitted within 15 days of its appearance, i.e., by or before the expiry of 15 days, i.e., 14.07.2004. The original application form of respondent No.5 reveals that she submitted her application on 12.07.2004. As per own admission of respondents 1 to 4, respondent No.5 acquired the qualification of B.Ed. on 07.10.2004. However, a perusal of original application form of respondent No.5 reveals that there is also an entry of her B.Ed. qualification. Once respondent No.5 submitted her form on 12.07.2004 and the last date of submission of application forms was 14.07.2004, then how B.Ed. qualification of respondent No.5 came to be written on her application form, which she certainly acquired on 12.07.2004; meaning thereby respondent No.5 tampered the original form in connivance with respondent No.4, thus I find force in the contention of learned counsel for petitioner that respondent No.5 was being given undue favour by the then Zonal Education Officer, Lakhanpur. qualification of respondent No.5 came to be written on her application form, which she certainly acquired on 12.07.2004; meaning thereby respondent No.5 tampered the original form in connivance with respondent No.4, thus I find force in the contention of learned counsel for petitioner that respondent No.5 was being given undue favour by the then Zonal Education Officer, Lakhanpur. It is also averred by the petitioner that after the declaration of result, she made two separate objections/representations to Director School Education, Jammu but no action was taken in the matter. However, respondent No.2 has not specifically denied this fact in the objections; meaning thereby respondents did not intend to appoint a genuine candidate against the post-in-question, rather their concern was only to appoint respondent No.5 by whatever means. 18. Thus, there is no obligation on the court to protect an illegal appointment. However, keeping in view the fact that respondent No.5 came to be engaged in March, 2005 and as it has been brought to my notice during the course of arguments that her services as General Line Teacher have already been regularized in the year 2010 after completion of five years of her engagement as Rehbar-e-Taleem Teacher, therefore, it would not be feasible to disturb the appointment of respondent No.5 at this stage as she has been serving the department for the last about 13 years. However, in order to advance the cause of justice and not to defeat the rights of petitioner herein, respondent No.4 is directed to issue appointment order in favour of petitioner also against the post of General Line Teacher with all consequential benefits minus monetary benefits on the same analogy of respondent No.5, whereby she first came to be appointed as Rehbar-e-Taleem Teacher and thereafter regularized as General Line Teacher. Respondent No.2 is also directed to fix the seniority of petitioner over and above respondent No.5. Respondents 1 & 2 are also directed that if there is no post of General Line Teacher available as on date in the said school, they are directed to create supernumerary post for the petitioner and appoint her against the said post. Let this exercise be completed positively within a period of eight weeks from today. 19. Respondents 1 & 2 are also directed that if there is no post of General Line Teacher available as on date in the said school, they are directed to create supernumerary post for the petitioner and appoint her against the said post. Let this exercise be completed positively within a period of eight weeks from today. 19. Before parting, it would be relevant to mention here that since respondent No.5 came to be appointed illegally by the then Zonal Education Officer, Lakhanpur ignoring the genuine claim of petitioner, therefore, in the given circumstances, the then Zonal Education Officer, Lakhanpur, who issued the appointment order of respondent No.5, is burdened with costs of rupees fifty thousands (Rs.50,000/-), to be deposited by him in the Registry of this Court within a period of eight weeks from today. On deposit, the same shall be released in favour of petitioner after proper verification and identification. Concerned Drawing and Disbursing Officer is directed not the release the salary of the then Zonal Education Officer, Lakhanpur, wherever and on which post he is posted, till he produces the receipt of depositing the amount of fifty thousand in the Registry of this Court. If the then Zonal Education Officer, Lakhanpur, has already been retired, it is directed not to release his pension till he deposits the amount of fifty thousand in the Registry of this Court. 20. Registry is directed to return the record against proper receipt. 21. Disposed of along with connected miscellaneous petitions.