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2018 DIGILAW 601 (JK)

Mohd. Shakeel v. State of J&K

2018-08-03

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

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JUDGMENT : D.S. Thakur, J. 1. An advertisement, notice dated 31.07.2012 came to be issued inviting applications from eligible candidates for filling up the posts of ReTs inter alia for Primary School Old Thanna. The said notice specifically prescribed that the selection would be at village level and in case of TAC/NAC at ward level. Old Thanna admittedly is a ward, which before the delimitation in 2010 was declared as Ward No. 7. After the delimitation, the said ward came to be numbered as Ward No. 13. 2. The petitioner/respondent No. 5 herein and the appellant both applied pursuant to the aforesaid notification and their names figured in the panel prepared. As against one post of ReT, the appellant figured at Sr. No. 2 and the petitioner/respondent No. 5 herein figured at Sr. No. 1 in the said panel. It appears that the in the interregnum, the appellant herein acquired further qualification. 3. Apprehending that the appellant would succeed in having the post re-advertised, with a view to take advantage of her higher qualification, the respondent No. 5 herein filed SWP bearing No.2500/2013, wherein following reliefs were claimed:- 1. Writ of prohibition, prohibiting the official respondents not to re-advertise the one post of ReT in School EGS to Primary School situated W. No. 7/13 Old Thanna Mandi without any reason and only with mala fide intention to give benefit to respondent No. 5 who is low meritorious to petitioner is illegal, arbitrary and against the law. 2. Writ of mandamus commanding the respondents to complete the selection process for the one post of ReT in school EGS to Primary School situated at W. No. 7/13 Old Thanna Mandi Primary School old Thanna Mandi as selection made on habitation basis in the panel under Notification No. CEOR/SSA/UPS/EU to RET/2012-13/12972-82 dated 31.07.2012. 3. Writ of mandamus commanding the respondents to select and appoint to the petitioner for the post of ReT Teacher in school EGS to Primary School situated at W. No.7/13 Old Thanna Mandi. 4. Any other writ, order or direction which this Hon’ble court may deem fit and proper in the facts and circumstances of the case may also be issued in favour of the petitioner and against the respondents. 4. 4. Any other writ, order or direction which this Hon’ble court may deem fit and proper in the facts and circumstances of the case may also be issued in favour of the petitioner and against the respondents. 4. The Writ Court by virtue of judgment and order dated 17.04.2018 disposed of the writ petition with a direction to the respondents to conclude the selection process, initiated pursuant to the advertisement notice dated 31.07.2012 within a fixed time frame. It is against this order that the instant appeal has been preferred. 5. Learned counsel for the petitioner urged that the date when the petition was finally disposed of, it was disposed of with the consent of only the counsel for the official respondents. It is further urged that when the matter was listed on 17.04.2018, name of the counsel for the appellant, who is counsel for respondent No. 5 in the writ petition, did not figure at all in the cause list and, therefore, the absence of the counsel for the appellant at the time when the matter was taken up for final disposal was not deliberate. 6. On merits, it was urged that the writ petition was premature, inasmuch as there was no move by the official respondents to re-advertise the post earlier advertized vide advertisement notice dated 31.07.2012 and thus the petition could not have been disposed of with a direction to the respondents to take the process of selection to its logical conclusion. Even otherwise, it was urged that liberty ought to have been given to the official respondents to re-advertise the post, in case they deemed it necessary, keeping in view the fact that the advertisement notice earlier issued on 31.07.2012 was with regard to Ward No. 7 when in effect the same ought to have been for Ward No. 13. 7. Heard learned counsel for the parties. 8. While it is true that the writ petition ought to have been disposed of in the presence of the counsel for the appellant, who figured as a respondent No. 5 in the writ petition, yet we have heard the learned counsel for the appellant on the main merits as well at length. 7. Heard learned counsel for the parties. 8. While it is true that the writ petition ought to have been disposed of in the presence of the counsel for the appellant, who figured as a respondent No. 5 in the writ petition, yet we have heard the learned counsel for the appellant on the main merits as well at length. From the facts, as they emerge from the perusal of the records and those which were urged at the time of hearing, admittedly both the appellant and the private respondent had responded to the advertisement notice dated 31.07.2012. A panel stood prepared, wherein the names of the private respondent No. 5 and appellant herein also figured at Sr. No. 1 and 2 respectively. Notification dated 31.07.2012 did not mention any wards at all, yet both the appellant as also the private respondent No. 5 herein responded. Both are residents of Ward No. 7, which is re-numbered as Ward No. 13. None of the two, i.e., the appellant and the private respondent No. 5 felt aggrieved of the notification dated 31.07.2012. 9. It is not the case of the official respondents that they ever desired to re-advertise the post, as there existed no reason to re-advertise the post. The only logical direction that could have been passed in the facts and circumstances of the present case was that the process of selection earlier issued be taken to its logical conclusion. While the appellant may have acquired higher qualification in the interregnum, during the process of finalization of the selection pursuant to notification dated 31.07.2012 and while he may have desired a re-advertisement of the one post advertised earlier yet having elected to respond to the notification earlier and having not challenged the same on the issue of re-numbering of the wards, we feel that the appellant is not at all a person aggrieved. The direction issued by the learned Single Judge is innocuous. 10. We cannot persuade ourselves to take a view different from the one taken by the learned Writ Court. The appeal is found to be without any merit and is, accordingly, dismissed along with connected IA.