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2018 DIGILAW 633 (JK)

Hamid Ullah v. Manzoor Ahmed

2018-08-14

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

body2018
JUDGMENT : D. S. Thakur, J. 1. The instant Letters Patent Appeal has been preferred against the judgment and order dated 16.11.2017, passed in SWP No. 2344/215. 2. Briefly stated, the material facts are as under:- 3. A petition came to be filed, challenging the tentative panel prepared by the official respondents for the selection and engagement of ReT Teacher in Government High School, Bagla, Zone Ghat Bagla, pursuant to advertisement notice dated 19.08.2014. 4. The case set up by the petitioner in the writ petition was that the petitioner could not apply for the post in question, so advertised, inasmuch as, he had no knowledge of the advertisement dated 19.08.2014, because the advertisement notice was not given wide publicity as per the norms and guidelines prescribed. It was stated that the petitioner got the knowledge about the advertisement notice only after the cut-off date. 5. The petitioner’s case was that as per the norms and guidelines for advertising the post, the notice was required to be routed through the Directorate of Information for wide publicity in the newspapers, in order to enable all eligible candidates to apply for the post in question. Government order No. 671/GAD of 2007 dated 08.06.2007 was relied upon in this Regard. 6. A reference to the said Government order would show that the same envisages that all government departments, public sector undertakings and autonomous bodies under the Government would not issue any official advertisements directly to the press/media and that the same should invariably be routed through the Directorate of Information. Failure on the part of such bodies to adhere to the instructions was to be viewed seriously as per the said government order. 7. The case of the petitioner was that the advertisement was published only in one newspaper, i.e., “Daily Udan” and the same was not was published through the Directorate of Information and hence it was urged that since the said newspaper did not have wide circulation in Village Bagla, therefore, the petitioner was prevented from applying for the post in question. It was in those circumstances prayed that the panel prepared by the official respondents be quashed by issuance of a writ of certiorari. 8. The Writ Court by virtue of the judgment and order impugned allowed the writ petition and quashed the process of selection. It was in those circumstances prayed that the panel prepared by the official respondents be quashed by issuance of a writ of certiorari. 8. The Writ Court by virtue of the judgment and order impugned allowed the writ petition and quashed the process of selection. A direction was issued to re-advertise the aforesaid posts in the manner as prescribed in the case of Akhtar Rashid Mir & anr. V/s State & ors, 2014(4) JKJ 58 (HC). While placing reliance upon the aforementioned judgment, the Writ Court held that notice was published only in one newspaper, whereas as per the Akhtar Rashid Mir’s case, the same had to be published in three leading daily newspapers. 9. It was held that there was no material to demonstrate that the newspaper “Daily Udan” had wide circulation in District Doda and hence the Writ Court proceeded to hold that the advertisement notice was in violation of the guidelines issued by the Government vide order dated 08.06.2007. 10. Learned counsel for the appellant urged before us that the view expressed by the Writ Court was erroneous in law. It was urged that the judgment relied upon by the Writ Court in Akhtar Rashid Mir did not at all lay down the proposition that an advertisement had to be published in three daily newspapers having wide circulation. However, learned counsel admitted that the advertisement was to be routed only through the Directorate of Information, which according to him was done in the present case. 11. Mr. Ravinder Gupta, learned AAG appearing on behalf of the official respondents however, supported the view of the appellant and stated that the advertisement infact had been routed through the Directorate of Information and it was only pursuant to that that the advertisement notice was published. 12. It was further urged by Mr. Gupta that the conditions prescribed in Government order dated 08.06.2007 were complied with substantially, as the same had been routed through the Directorate of Information and that it was never the requirement to publish the newspapers in three newspapers. It was thus urged that the view expressed by the Writ Court was erroneous in law. To the same effect was the argument of Mr. Vivek Sharma, Advocate, appearing on behalf of the private respondent. 13. Heard learned counsel for the parties. 14. It was thus urged that the view expressed by the Writ Court was erroneous in law. To the same effect was the argument of Mr. Vivek Sharma, Advocate, appearing on behalf of the private respondent. 13. Heard learned counsel for the parties. 14. We are in agreement with the argument of the learned counsel appearing for the appellant to a limited extent that the judgment relied upon by the Writ Court in Akhtar Rashid Mir’s case did no lay down the proposition that the advertisement in question had to be necessarily published in three newspapers, with a view to make it a valid publication. All that was said in the aforementioned judgment was that the advertisement should be routed through the Directorate of Information. In the present case, it appears that the advertisement was infact routed through the Directorate of Information, as is contained in the communication dated 19.08.2014, issued by the Chief Education Officer, Doda, which was handed over by the learned counsel for the appellant during the course of arguments in the open Court and taken on record. What is stated in the aforementioned communication is as follows:- “Office of the Chief Education Officer Doda To The District Information Officer, Doda. No:- CEO/D/RET/1805-13 Dated 19.08.2014. Subject:- Publication of advertisement notification. Sir, Kindly refer to the subject cited above. In this connection, you are requested to Publish the Notification for engagement of RET teacher in HS Bagla of Zone Ghat of District Doda in atleast three leading Daily newspapers especially Daily Excelsior, Kashmir Time, Udaan and Kashmir Uzma. Yours faithfully, sd/- Chief Education Officer Doda” This communication was in accord with the advertisement notice dated 19.08.2014, which required publication of the advertisement in three daily newspapers. 15. It thus appears that while the judgment in Akhtar Rashid Mir’s case might not have specifically enjoined the authorities to publish the advertisement in atleast three newspapers, the Chief Education Officer, Doda did write to the Chief Information Officer, Doda to publish the same in three newspapers, which admittedly was not done in the present case. 16. The purpose of publishing an advertisement notice in newspaper having wide circulation in the State has more elaborately been discussed in a judgment rendered by a Division Bench of this Court in case titled “Asha Rani V/s State o J&K and others” passed in LPASW No. 119/2017 decided on 04.08.2017. 16. The purpose of publishing an advertisement notice in newspaper having wide circulation in the State has more elaborately been discussed in a judgment rendered by a Division Bench of this Court in case titled “Asha Rani V/s State o J&K and others” passed in LPASW No. 119/2017 decided on 04.08.2017. In the said judgment, it was clearly held that by publishing the advertisement in a newspaper having wide circulation, all eligible candidates get a fair opportunity to notice that there exists an opportunity for them to apply against such an advertised vacancy, if they are otherwise eligible. It was further held that an attempt to publish an advertisement notice in a newspaper having limited circulation is fraught with serious consequence of infringing the rights of all eligible candidates, who may otherwise be eligible for competing for those posts, but are prevented or deprived of an opportunity only because the posts so advertised were never noticed by them. It was held that such an attempt would be termed as clandestine and surreptitious and violative of a candidate’s fundamental right of ‘Equality of Opportunity’ in matters of public employment enshrined under Article 16 of the Constitution of India. 17. In paragraph 13 of the aforementioned judgment, what was held by the Division Bench is reproduced hereunder for facility of reference:- “13. It is common knowledge that thousands of newspapers are published daily, most of them having practically no readership and if the advertisements were to be published in such newspapers for oblique motives for benefitting a select few, who have exclusive knowledge about such a publication, the same would be highly unfair and unjust.” 18. In the present case, advertisement notice was published in the newspaper “Daily Udaan”. The case of the petitioner before the Writ Court that the said paper did not have wide circulation. While the case of the appellant before us is that the areas where the post was advertised, newspaper “Daily Udaan” has wide circulation, may on the face of it be appealing, yet it common knowledge that it is not always that all eligible candidates would be present in the village for all times to receive a copy of the newspaper having wide circulation in the area. There may be circumstances where the candidates, who may otherwise be eligible may not be available in the village on account of their higher studies or personal occupations, for which it becomes incumbent that the advertisement notice be also published in a newspaper having wide circulation in the State. 19. Having considered the entire matter, we are of the opinion that the advertisement notice published only in a newspaper, i.e., “Daily Udaan” was not sufficient and it was even contrary to the communication dated 19.08.2014, addressed by the Chief Education Officer, Doda and advertisement dated 19.08.2014, which mandatorily required the publication of the same in atleast three daily newspapers. 20. In that view of the matter this appeal is found to be without any merit and is, accordingly, dismissed along with connected IA.