Jammu & Kashmir High Court
Nisha Sharma vs State & Ors on 26 April, 2011
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 523 OF 2009 Nisha Sharma Petitioners State & Ors Respondent !Mr. Rahil Raja, Advocate.. ^Mr. Jagdish Parihar, AAG Mr. Justice J. P. Singh. Date: 26.04.2011 :J U D G M E N T:
Responding to the Jammu and Kashmir Services Selection Boards Advertisement Notice No. 7 of 1995 dated 12th October, 2005 inviting applications from eligible candidates for selection against 84 posts of Teachers in District Kathua, the petitioner-Nisha Sharma, holding B.Sc, B.Ed with additional qualification of M.Ed, sought her consideration for selection against one of the posts. She was not, however, selected, and aggrieved thereby she approached this Court by her Writ Petition SWP No. 686/97.
The petitioner was found to have been denied selection wrongly, in that, she was not allowed weightage for possessing the additional qualification of M.Ed to which she was entitled in terms of the criteria fixed by the Board for the selection of candidates. Thus, finding her merit more than the last selected 2 candidate, a direction was issued to the Jammu and Kashmir Sub-ordinate Service Recruitment Board to consider her for selection allowing her additional weightage for M.Ed and forward its recommendations to the appointing Authority for her appointment as Teacher within a period of two months. The directions having not been complied with by the respondents, the petitioner again approached this Court by her Contempt Petition COA (SWP) No. 145-7/2001. In view of the observations made by the Court in the petitioners Contempt Petition, the State-respondents, ultimately issued orders for petitioners appointment as Teacher in the year 2003.
The petitioner has again approached this Court seeking retrospective effect to her appointment as Teacher ordered vide Chief Education Officer, Kathuas Order No. CEOK/6241-45 dated August 08, 2003 with all consequential benefits of seniority, pay fixation and arrears of salary. Besides questioning the maintainability of the petitioners Writ Petition, the State-respondents have contested her entitlement to retrospective appointment saying that it was impermissible under rules to permit her retrospective appointment with consequential service benefits. I have considered the submissions of learned counsel for the parties.
3From the admitted facts of the case, it appears that though entitled to it on the basis of her merit and for no fault of her, the petitioner was denied selection and appointment, when persons lower in merit were selected and engaged as Teachers.
The petitioners claim to retrospective appointment and other service benefits, as admissible under rules governing the service, cannot, therefore, be denied consideration merely on the ground of delay and laches because such a plea may not be available to a welfare State which is enjoined under law to afford equal treatment to persons situated similarly. The petitioner, situated similarly with those appointed in the year 1997, was thus entitled to consideration of her claim to retrospective benefits.
Learned State Counsels plea that the petitioners Claim was barred by delay and laches is, therefore, found untenable. However, as the petitioner is not stated to have sought respondents consideration to have her Claim considered in accordance with the rules governing the field and has straightway approached the Court seeking directions against the respondents to allow her retrospective appointment and other service benefits, so her Claim as projected in the Petition cannot be considered for its grant, unless it was examined, in the first instance, by her employer, the State Government.
4This Petition is, therefore, disposed of with a direction to the State-respondents to consider the petitioners Claim to retrospective appointment and service benefits for passing appropriate orders in this respect as warranted under rules governing the service, within a period of two months. (J. P. Singh) Judge Jammu:
26.04.2011 Pawan Chopra