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2018 DIGILAW 331 (JK)

Rifat Ara v. State of JK

2018-05-23

M.K.HANJURA

body2018
JUDGMENT : 1. In an earlier round of litigation, the petitioner filed a writ petition before this Court (bearing SWP No.1293/2002) against the respondent State, challenging the selection of respondent No.5 therein, namely, Nuzhar Ara, on the grounds that both she and the respondent No.5 belonged to the handicapped category. She had a better merit and qualification as compared to the respondent No.5 and her claim has not been given any consideration by the respondents. The aforesaid petition came to be decided and determined by an order dated 5th of August, 2008, of this Court, the relevant excerpts of which are reproduced herein below, verbatim et literatim: “On these grounds I found due merit in the present petition which is hereby allowed. Since the selection has been made in the year 1999, I feel that it will not be just and proper to disturb the selection and appointment of respondent No.5. I accordingly direct the respondents to consider the case of the petitioner and appoint her against one of the vacant posts of teachers in the department. Petition allowed. Order accordingly.” 2. By order bearing No.319-DSEK of 2016 dated 9th of March, 2016, the respondents accorded sanction to the appointment of the petitioner and directed the Chief Education Officer, Baramulla, to adjust the petitioner as a teacher, after verifying all the certificates/ documents of the petitioner. 3. In the present petition, the petitioner has stated that she had a superior merit as compared to respondent No.5 in the earlier petition, named, Nuzhat Ara. She (Nuzhat Ara) was appointed in the year 2002. The acts of omission and commission on the part of the respondents in declining appointment to the petitioner at the appropriate time is arbitrary and capricious. She had the right to be appointed in the year 2002 itself, as she had a superior merit as compared to respondent No.5/Nuzhar Ara. She was appointed in her place by playing fraud and mischief. She had the right to be appointed in the year 2002 itself, as she had a superior merit as compared to respondent No.5/Nuzhar Ara. She was appointed in her place by playing fraud and mischief. On these grounds, the petitioner has implored for the grant of the following relief(s) in her favour: “Writ, order or direction in the nature of Mandamus commanding the respondents to issue orders of appointment of the petitioner from the date appointment was made in favour of private respondent, Nuzhat Ara, and/or in the alternative, from the date of delivery of judgment by the Hon’ble Court on 05-08-2008, with further direction to pay the arrears of salary to the petitioner available to her as general line teacher in the relevant grade less by the amount received by her as contractual appointee. Directions are also prayed for directing the respondents to fix the seniority of the petitioner and consider her for promotion alongwith those who have been appointed in 2002.” 4. Heard and considered. 5. The respondents, despite availing umpteen opportunities, have failed to file the counter affidavit, meaning thereby, that they have not joined any issue with the petitioner. It is a settled principle of the law of pleadings that the averments set up by the petitioner are expected to be specifically denied by the replying party. If there is no specific denial, then such an averment is deemed to have been admitted by the other side. In the present case, it is evident that the averments set up in the writ petition, which were relevant and material to the case, have not been rebutted by the State. It was expected of the respondents to reply all the averments specifically and make a proper reference to the records relevant to the case. Since the respondents have omitted to do so and have failed to specifically deny the averments made by the petitioner, therefore, the petitioner has been able to make out a case for interference. 6. Looking at the merits of the petition, this Court, by its order dated 5th of August, 2008, passed in the earlier petition bearing SWP No.1293/2002 filed by the petitioner (paragraph No.8) directed as under: “8. I find due force in petition, on an another ground too. Admittedly the petitioner is a graduate but while assessing her merit, vis-à-vis the other candidates her qualification as 10+2 has been taken into consideration. I find due force in petition, on an another ground too. Admittedly the petitioner is a graduate but while assessing her merit, vis-à-vis the other candidates her qualification as 10+2 has been taken into consideration. This would show that no weightage has been given to the petitioner for her higher qualification. Annexure F is a notification issued by the respondents bearing No. SSRB/PA/Secy/826/2001 dated: 2.3.2001. The notification prescribes the criteria which the SSRB has recast, for making selection of the teachers. This specifically provides that 10 points were prescribed for 1st. Div: Graduation, 6 points for second Div and 4 points for 3rd Div. This weightage should have been given for the graduate qualification possessed by the petitioner. This has not been done as only her 10+2 qualification has been considered and given weightage, as such I find that the respondents have not, while making the selection applied the criteria fixed by the Board.” 7. The petitioner has been divested of the right to appointment by appointing Nuzhat Ara to the post of teacher, when the petitioner had a better claim over the said post. Once the Court found that the petitioner is entitled to appointment to the post of teacher and the order so passed has neither been assailed nor challenged before any higher forum, what can be said, under these circumstances, is that it has assumed finality and, therefore, it had to be implemented as a matter of course from the date the judgment was delivered by this Court, i.e. 5th of August, 2008. The respondents, therefore, could not appoint the petitioner on any date after the date of the delivery of the judgment. 8. Viewed in the context of what has been said and done above, the petition of the petitioner is allowed and the respondents shall appoint the petitioner as a teacher w.e.f. the date of the delivery of the judgment of this Court, i.e. the 5th of August, 2008. They shall also pay the arrears of salary available to the petitioner as a ‘General Line Teacher’ in the relevant grade less by the amount received by her as a contractual appointee. The seniority of the petitioner shall also be reckoned and calculated from the date of the aforesaid judgment. 9. Writ petition disposed of as above.