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2018 DIGILAW 320 (JK)

Mubashir Ahmad Ganie v. State of JK

2018-05-18

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : 1. Since a common question of law and fact is involved in all these connected petitions, therefore, same are proposed to be decided by way of a common order. 2. In order to appreciate the controversy involved in the matter in the right perspective, it shall be advantageous to reproduce the relevant facts which, briefly stated, are that in partial modification of advertisement Notice No.ZEO/A/3203-4/12 dated 24th of January, 2012, issued by the Zonal Education Achabal, applications were invited for the two posts of RET’s to be engaged in the newly opened Primary School, Usmania Mohalla, Sunsuma, in terms of fresh advertisement Notice bearing No.ZEO/A4003-9/12 dated 26th of March, 2012. The petitioner in SWP Nos. 2103/2016 & 642/2017 (Mubashir Ahmad Ganai) and petitioner in SWP No.643/2017 (Rubiya Jan), alongwith other eligible candidates, applied against the said posts. On completing of the selection process, the Zonal Education Officer, Achabal, prepared a panel of three candidates, wherein the petitioner in SWP Nos. 2103/2016 & 642/2017 (Mubashir Ahmad Ganai) and petitioner in SWP No.643/2017 (Rubiya Jan), figured at S. No. 1 & 3 respectively and one Tariq Ahmad Mir was figuring at S. No.2. Accordingly, in terms of order dated 19th of August, 2013, the two candidates figuring at S. Nos. 1 and 2 got selected and appointed, however, one of the selected candidates, namely, Mubasir Ahmad Ganai (petitioner in SWP Nos. 2103/2016 & 642/2017) did not join his duties, as a result, the petitioner in SWP No.643/2017, namely, Rubiya Jan, who figured at S. No.3 in the panel so prepared, approached the respondents to engage her against the post, which has fallen vacant due to the non-joining of the said Mubashir Ahmad Ganai (petitioner in SWP Nos. 2103/2016 & 643/2017). It is stated that the selection of Mubashir Ahmad Ganai (petitioner in SWP Nos. 2103/2016 & 643/2017) got approved by the Chief Education Officer, Anantnag in terms of order dated 26th of July, 2013, subject to the condition that individual engagement order will be issued by the Zonal Education Officer, as required under rules. The said Mubashir Ahmad Ganai, as stated, had submitted his joining report before the Zonal Education Officer, Achabal, on 16th of August, 2013, however, as per him, no order of engagement was issued by the Zonal Education Officer. The said Mubashir Ahmad Ganai, as stated, had submitted his joining report before the Zonal Education Officer, Achabal, on 16th of August, 2013, however, as per him, no order of engagement was issued by the Zonal Education Officer. It is submitted that the said Mubashir Ahmad Ganai persuaded the Zonal Education Officer for the issuance of engagement order as also for the release of honorarium, but, he having failed to do so, therefore, was compelled to file SWP No.2103/2016 for seeking the following reliefs: “A. Mandamus, commanding the respondent no.4 to issue individual engagement order in favour of petitioner for the post of ReT in Primary School Usmaniya Mohalla Sunsuma on the basis of selection list without any further delay. B. Mandamus, commanding the Respondents to give effect to his service and also release of salary with effect from 16-08-2013 i.e. date of joining till date without any further delay.” 03. A Co-ordinate Bench of this Court, in terms of order passed on 28th of December, 2016, while disposing of the said writ petition filed by the said Mubashir Ahmad Ganai, directed the Zonal Education Officer, Achabal, Anantnag, to consider the claim of the petitioner for issuance of formal engagement order in view of order dated 26th of July, 2013, by a speaking order. Being aggrieved of the said decision, Ms Rubiya Jan (petitioner in SWP No.643/2017), challenged the same before the Division Bench of this Court. The Division Bench, in terms of order dated 15th of March, 2017, passed the following order: “…..Order passed by the writ Court in SWP No.2103/2016 is set aside and writ petition shall be considered afresh. Applicant is impleaded as party respondent in writ petition, who shall file objections within two weeks and writ petition shall be listed for consideration after four weeks. However, keeping in view of rejection order passed by the official respondents, respondent No.1 is at liberty to challenge the order by seeking appropriate remedy if so advised.” 04. Thereafter, the Zonal Education Officer, Achabal, in compliance of the order passed by this Court in the writ petition filed by Mubashir Ahmad Ganai (petitioner in SWP Nos. 2103/2016 & SWP No.642/2017), considered his claim and rejected the same, which is the subject matter of the writ petition bearing SWP No.642/2017. 05. Mr Mohammad Younis, the learned counsel for Mubashir Ahmad Ganai (petitioner in SWP Nos. 2103/2016 & SWP No.642/2017), considered his claim and rejected the same, which is the subject matter of the writ petition bearing SWP No.642/2017. 05. Mr Mohammad Younis, the learned counsel for Mubashir Ahmad Ganai (petitioner in SWP Nos. 2103/2016 & 642/2017), submits that the respondent Zonal Education Officer, Achabal, in order to shower illegal benefit on Rubiya Jan (petitioner in SWP No.643/2017), had shown his order of appointment as having been issued in the year 2013 without due service on the petitioner. The learned counsel further submits that the petitioner only came to know about the issuance of his appointment order when he himself laid a motion for the same under the provisions of the Right to Information Act. 06. Mr M. A. Qayoom, the learned counsel for Rubiya Jan (petitioner in SWP No.643/2017), submits that the said Mubashir Ahmad Ganai (petitioner in SWP Nos. 2103/2016 & 642/2017), by suppression of material facts, obtained an exparte order from this Court which was, subsequently, reversed by a Division Bench of this Court. The learned counsel has further proceeded to state that the issue, which is the subject matter of the lis, stands already finalized and decided by this Court in SWP No.1621/2015 vide order dated 7th of May, 2016, filed by Rubiya Jan (petitioner in SWP No.643/2017), which decision, as per the learned counsel, has not been challenged by any party thus far and has, as such, attained finality. It has been pleaded that the Court, in the aforesaid decision dated 7th of May, 2016, has returned findings on almost all the issues while disposing of the earlier writ petition filed by Rubiya Jan (petitioner in SWP No.64//2017), the operative portion whereof reads as under: “In the above backdrop, the writ petition is allowed and respondents by writ of mandamus are directed to consider the case of petitioner for engagement as ReT in newly opened Primary School, Usmaina Mohalla Sunsuma, on the basis of the panel drawn and having figured at serial No.3. Consideration shall be effected and decision taken within a period of one month from the date copy of the order is served upon respondents.” 07. Consideration shall be effected and decision taken within a period of one month from the date copy of the order is served upon respondents.” 07. Mr Qayoom, the learned counsel for Rubiya Jan (petitioner in SWP No.643/2017), submits that the Zonal Education Officer, Achabal, has, by sheer abuse of his powers and in violation of the judgment passed by this Court passed in favour of Rubiya Jan (petitioner in SWP No.643/2017), rejected her claim in terms of order bearing No.ZEO/Ach/Lit/227/16 dated 2nd of June, 2016, which is under challenge in the present writ petition filed by the said Rubiya Jan (petitioner in SWP No.643/2017). 08. The order dated 2nd of June, 2016, issued by the Zonal Education Officer, Achabal, besides being contemptuous on the part of the said authority, is apparently, not in tune with the directions passed by this Court in SWP No. 1621/2015 dated 7th of May, 2016. The respondents have not interpreted the aforesaid judgment delivered by this Court in the right perspective. No cogent reasons have been given by the respondents in the order aforesaid, whereby the claim of Rubiya Jan (petitioner in SWP No.643/2017), who was figuring at S. No.3 in the panel prepared by them, has been rejected. 09. Having regard to the above factual position, the writ petition bearing SWP No.643/2017, shall stand allowed, as a corollary to which, the impugned order bearing No. ZEO/ACH/Lit/227/16 dated 2nd of June, 2016 issued by the Zonal Education Officer, Achabal, is quashed with a further direction to the respondents to accord fresh consideration to the case of Rubiya Jan (petitioner in SWP No.643/2017) for her engagement as ReT in newly opened Primary School, Usmania Mohalla, Sunsuma, on the basis of the panel prepared by them, wherein she figures at S. No.3 as also the order dated 7th of May, 2016 passed by this Court in SWP No. 1621/2015 and pass fresh orders in respect thereto within a period of one month from the date the certified copy of this order is made available to them. 10. In view of the order passed in SWP No.643/2017, the writ petitions bearing SWP Nos. 10. In view of the order passed in SWP No.643/2017, the writ petitions bearing SWP Nos. 2103/2016 and 642/2017, are found to be devoid of any merit, in view of the fact that the petitioner therein, namely, Mubashir Ahmad Ganai, has not challenged the order dated 7th of May, 2016, passed by this Court in favour of Rubiya Jan (petitioner in SWP No.643/2017). They entail dismissal and, as such, are dismissed alongwith all connected MPs. 11. Registry to place a copy of this order on each file.