Jammu & Kashmir High Court
Surinder Kour vs State And Others on 19 July, 2017
Author: B. S. Walia
Bench: B. S. Walia
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SWP No. 2960 of 2013, MP No.4308/2013
Date of order:19.07.2017
Surinder Kour Vs. State and ors
Coram:
Hon'ble Mr. Justice B. S. Walia, Judge
Appearing counsel:
For Petitioner (s) : Mr. Rahil Raja Advocate.
For Respondent(s) : Mr. Ravinder Gupta AAG.
i) Whether approved for reporting
in Press/Media : Yes/No
ii) Whether to be reported in
Digest/Journal : Yes/No
______________________________________________________ Oral:
1 Petitioner applied for the post of ReT for Government Primary School Nanoti in response to advertisement Annexure A dated 14.06.2010. Pursuant to the selection process, petitioner figured at S.No.2 of the select panel on the village level basis.
However, the panel in question was not forwarded by respondent No.4 to respondent No.3 as objections had been filed by one Harmeet Singh to the select panel on the ground that it was Government Order 288 Edu of 2009 dated 08.04.2009 which was applicable and the same had not been applied. In view of the objections filed by the said Harmeet Singh, the then ZEO proceeded to frame the panel as per Government Order No. 288 Edu of 2009 dated 08.04.2009 whereupon the petitioner approached the Deputy Commissioner Reasi who appointed an Enquiry Officer. The Enquiry Officer gave a report that aforesaid Government Order was not applicable for selection to the post of SWP 2960 OF 2013 Page 1 of 10 ReT for Government Primary School Nanoti. The aforementioned enquiry report was forwarded by the office of Deputy Commissioner Reasi to respondent Nos. 3 and 4 on 01.04.2010. However, respondent Nos. 3 and 4 did not act upon the said report. Resultantly, the petitioner was not appointed leading to the filing of SWP No.995/2010 by the petitioner and candidate at S.No.1 in the select list.
2 Amarjeet Kour and Jasbir Kour, who were also candidates for the post of ReT for Government Primary School Nanoti, on the other hand, filed SWP No.1266/2010 on the grounds on which objections had been filed by Harmeet Singh. This Court vide order dated 20.05.2010 in SWP No.1266 of 2010 granted stay against the recommendations of the enquiry officer. Eventually SWP No.1266/2010 was dismissed while SWP No. 995/2010 was also disposed of vide order dated 20.02.2013. Relevant extract of order dated 20.02.2013 in SWP No.1266/2010 and SWP No. 995/2010 is reproduced hereunder:
"Admittedly, respondent 7 and 8 are more meritorious having qualification of M.A., B.Ed. at their credit. In terms of the advertisement notice, the selection was to be made at village level basis. It would be appropriate to reproduce first paragraph of the advertisement notice herein.
"In pursuance to Government Order No.597 Edu of 2003 dated 02.06.2003 village wise fresh application on prescribed format are invited from the permanent residence of J&K State for the engagement of Ret Teachers at village level and in case of TAC/NAC at ward level under SSA application shall be submitted to the Zones under proper receipt within 15 days from the date of publication of the advertisement notice in the newspaper. In case the last date for the receipt of application form comes to be on holiday, the next working day will be the last day of receipt of application"
It would be relevant to mention here that the petitioners have not placed on record copy of advertisement notice. SWP 2960 OF 2013 Page 2 of 10
It is worthwhile to mention here that the Additional Deputy Commissioner also discussed the definition of Village in its report dated 27.03.2010.
In the given circumstances, no case for admission is made out. Accordingly, the writ petition is dismissed in limine along with connected CMPs. Interim direction stands vacated.
SWP No.995/2010 accordingly stands disposed of. 3 Relevant extract of prayer in SWP No.995/2010 is reproduced here under:
"In view of the submissions made hereinabove, it is therefore prayed that this Hon'ble Court may be pleased to issue the following writs:
i. Writ, order or direction in the nature of Writ of Mandamus commanding upon the respondents to immediately and forthwith issue formal letters of engagement in favour of petitioners for their engagement as ReTs in newly opened Government Primary School Nanoti of village Bharkh Tehsil and District Reasi on the basis of panel duly approved by village Education Committee (Annexure E) ii. II. Writ, order or direction in the nature of Writ of Mandamus commanding upon the respondent No.4 not to tamper with or review the already approved panel (Annexure E) and redraw the fresh panel by illegally resorting to provisions of Government Order No.288 Edu of 2009 dated 8th April 2009 which ahs no application to the selection in question iii. Any other writ, order or direction which this Hon'ble Court may deed fit and proper in the facts and circumstances of the case may also be granted in favour of the petitioners and against the respondents along with costs of the petition."
4 At this stage, it needs mention here that during the pendency of the aforementioned writ petitions, SWP 2960 OF 2013 Page 3 of 10 appointments qua posts for other schools advertised vide Advertisement Annexure A had been made in July 2010. 5 The petitioner herein did not amend SWP No.995/2010 in order to seek retrospective appointment i.e w.e.f the date candidates who had applied in response to the same advertisement had been appointed as ReT in other schools. In the aforementioned background, prayer of the petitioner in the instant writ petition is that her appointment as ReT which was given pursuant to order of this Court dated 20.02.2013 in SWP No.995 of 2010 be modified retrospectively w.e.f the date, the candidates who had applied in response to the same advertisement had been appointed as ReT in other schools.
6 The petitioners claim has been vehemently opposed by learned counsel for the respondents, who has placed reliance upon a judgment of this Court dated 22.07.2016 in SWP No.204/2016. Relevant extract of aforesaid judgment is reproduced here under:
"5. ....................... Learned AAG states that the matter is in fact covered by a decision of the Division Bench of this Court dated 23.02.2016 in LPASWP No. 87/2015 and order dated
07.06.2016 in SWP No. 1245/2010. Relevant extract of the decision of this Court in LPASW No. 87/2015 is reproduced hereunder:
"1 xxx 2. 3. It is a fact that the respondent has not prayed for retrospective appointment in the earlier proceedings. A similar issue was considered by Hon'ble Supreme Court in SWP (Civil) No. 9415-9416/2008 and by judgment dated 02.05.2011, in respect of ReT, Hon'ble Supreme Court directed to consider the appointment of the SWP 2960 OF 2013 Page 4 of 10 petitioner as ReT w.e.f. the date of judgment of Writ Court. Hon'ble the Supreme Court further ordered that the said appointment should be without monetary benefits. However, for regularization, the said period was directed to be taken into consideration.
In this case, judgment of the Writ Court in the earlier proceedings was rendered on 22.02.2007, therefore, the order passed by the Writ Court granting appointment w.e.f. 22.09.2003 stands modified to the effect that the appointment of the petitioner shall be treated from the date of judgment notionally i.e. from 22.02.2007 for the purposes of getting regularization. However, he is entitled to get pecuniary benefits only from the date of joining of the post."
6. Learned AAG has also relied on the decision of this Court in SWP No. 1245/2010. Relevant extract of the same is reproduced hereunder :
The only question arising in this writ petition, thus, is whether retrospective effect to the engagement of the petitioner from the date when Romesh Kumar was engaged can be granted or not. The fact situation of the case covered under LPA(SW)No.87/2015 disposed of by the learned Division Bench vide judgment dated 23.02.2016 is identical to the fact situation of the case on hand. Respondent of that case was given appointment pursuant to and in compliance with the judgment dated 22.02.2007 rendered by the learned writ court in an earlier writ petition, SWP No. 1297/2004, filed by him. In that writ petition the petitioner had not prayed for retrospective appointment. Appointment order was issued in his favour on 17.7.2013. The respondent filed another writ petition, SWP No.2546/2013, in which learned Single Judge vide order dated 19.12.2014 issued direction to the respondents therein to treat the petitioner as having been appointed/engaged as ReT in Government Primary School, Jangwal w.e.f 22.09.2003 though notionally, that is, with effect from the date when Ms. Janko Devi was engaged whose appointment subsequently was found to be illegal and an outcome of fraud. In LPA filed by the respondents, learned Division Bench, while relying upon Hon'ble Supreme Court judgment dated 02.05.2011 in SLP (Civil) 9415-9416/2008, modified the order passed by the learned Single Judge to the effect that the appointment of respondent shall be treated from the date of judgment notionally, that is, from 22.02.2007, for the purposes of getting regularization. It is apt to quote paragraphs-3, 4 of the judgment dated 23.02.2016:
"3. It is a fact that the respondent has not prayed for retrospective appointment in the earlier proceedings. A similar issue was considered by Hon'ble the Supreme Court in SLP (Civil) No.9415-9416/2008 and by judgment dated 02.05.2011, in respect of RET. Hon'ble the Supreme Court directed to consider the appointment of the petitioner as RET w.e.f the date of judgment of writ Court. Hon'ble the Supreme Court SWP 2960 OF 2013 Page 5 of 10 further ordered that the said appointment should be without monetary benefits. However, for regularization, the said period was directed to be taken into consideration.
In this case, judgment of the writ Court in the earlier proceedings was rendered on 22.02.2007, therefore, the order passed by the writ court granting appointment w.e.f 22.09.2003 stands modified to the effect that the appointment of the petitioner shall be treated from the date of judgment notionally i.e. from 22.02.2007 for the purposes of getting regularization. However, he is entitled to get pecuniary benefits only from the date of joining the post."
Judgment dated 22.2.2006 rendered by this court in the earlier writ petition filed by the petitioner would show that retrospective engagement as ReT neither was claimed by the petitioner nor ordered by the Court. Retrospective effect to his engagement, therefore, in view of the aforementioned judgment of learned Division Bench, can be accorded only from the date of judgment, that is, 22.2.2006 and from no date prior thereto, not even the date when the candidate figuring at merit position no.4, Ramesh Kumar, was engaged in P.S. Mohalla Bakerwan-II.
The Division Bench judgment in Dolly Kumari's case dated 3.12.1998 (supra) relied upon by the learned counsel for the petitioner does not apply in the facts situation of this case. In that case the basic writ petition filed by the petitioner therein was dismissed by the learned Single Judge as case set up by the respondents therein was that her name did not figure in the select list. In appeal, the learned Division Bench on examination of the selection record, however, found that she figured at serial no.49 in the merit list and, therefore, while issuing direction for her appointment also directed the respondents to give her seniority from the date other candidates selected with her were appointed taking into consideration her placement in the merit list. The retrospective effect to the appointment of the petitioner in effect was given in the basic writ petition though at LPA stage and not in a subsequent writ petition as is the position in the case on hand.
10. (The) Sanjay Dhar's case relied upon by the learned counsel for the petitioner is authority on the proposition whether in such cases retrospective appointment should be allowed or not. It, however, has no relevance to the proposition, whether such a benefit can be allowed in a subsequent writ petition when it was not sought or granted in the earlier petition.
7. Learned counsel for the petitioner states that the writ petition can be disposed of by directing respondent No. 2 to consider the claim of the petitioner for appointment to the post of ReT w.e.f. 04.08.2011 i.e. the date when the other candidates who had competed in the selection process for the posts of ReTs along with the petitioner pursuant to Advertisement Notice dated 13.6.2010 issued by respondent SWP 2960 OF 2013 Page 6 of 10 No. 3 came to be appointed and the claim of the petitioner for appointment as ReT w.e.f. 04.8.2011 be decided by respondent No. 2 by passing a speaking order.
8. The petitioner had objected to the empanelment of respondent No. 2 on the ground that he was actually and physically residing in a different hamlet i.e. Upper Tandar, therefore, was not entitled for consideration and appointment against the said post. Objections filed by the petitioner were not decided, whereupon the petitioner invoked the jurisdiction of this Court by way of SWP No. 310/2011, in which interim order dated 15.02.2011 was passed staying the selection process. Subsequently, the petitioner filed CMA No. 1778/2012 in SWP No. 310/2011 for disposal of the writ petition on the basis of the report Annexure C dated 11.05.2012 submitted by the ZEO, Marwah. The same was disposed of vide order dated 12.06.2012 with a direction that the pendency of the writ petition would not come in the way of the respondents considering the case of petitioner in terms of communication Annexure C dated 11.05.2012 addressed by the ZEO, Marwah to CEO, Kishtwar. Pursuant thereto, the official respondents engaged the petitioner as ReT in Primary School, Lower Tander vide Annexure-E dated 17.06.2013.
9. However, grievance of the petitioner in the instant writ petition is that it was due to the negligence and connivance of the then ZEO Marwah who inserted the name of Mohd. Arshad Khanday i.e. respondent No. 2 over and above the petitioner in the panel that the engagement of the petitioner as ReT got delayed and had there been no litigation, the petitioner would have been engaged as ReT in 2011 itself ; that the petitioner's engagement as ReT was withheld due to the reasons mentioned above for which the petitioner contested a long drawn litigation, resultantly the petitioner got engaged as ReT in the year 2013 vide order Annexure E dated 17.06.2013 and the process of her engagement got delayed from 04.08.2011 i.e. the date when the other candidates who had competed in selection process of Rets along with the petitioner, came to be appointed.
10. That in the circumstances the case of the petitioner is covered by the judgments relied upon by the Learned AAG and not the judgment relied upon by the learned counsel for the petitioner since the relief which has been sought by the petitioner in the instant writ petition was not granted by the learned writ court in SWP No. 310/2011.
11. In the light of the position noted above the petitioner is only entitled to be appointed w.e.f. the date of decision of SWP No. 310/2011 i.e. 12.06.2012 in the light of judgments relied upon by learned AAG. Accordingly, respondents are directed to treat the appointment of the petitioner for all intents and purposes w.e.f. 12.06.2012 i.e. date of decision of SWP No. 310/2011 except for the purpose of grant of monetary benefits. Necessary orders be issued reflecting SWP 2960 OF 2013 Page 7 of 10 aforementioned date of appointment within four weeks from the date certified copy of the order is submitted to the respondents.
Writ petition along with connected MP stands disposed of in the aforementioned terms".
6 Learned counsel for the petitioner has tried to distinguish the aforementioned judgment by contending that, in fact, at the time of filing of SWP No.995 of 2010, cause of action to make prayer for appointment to the post of ReT w.e.f the date candidates who had applied in response to the same advertisement had been appointed as ReT in other schools had not arisen since the writ petition was filed in April 2010, while appointment of candidates as ReT in other schools in response to the same advertisement was made in July 2010. The same has been controverted by learned AAG by contending that nothing prevented the petitioner from moving an application for amendment praying for appointment instead of forthwith, retrospectively w.e.f the date the other candidates who had applied in response to the same advertisement had been appointed as ReT in other schools.
7 I find merit in the submissions made by learned AAG. The case in hand is squarely covered by the decision of Hon'ble Division Bench of this Court in LPASW No.87 of 2015 in which while taking note of the fact that the SWP 2960 OF 2013 Page 8 of 10 selected candidates had not prayed for retrospective appointment in the earlier proceedings, the Hon'ble Divison Bench modified the order passed by the Writ Court and ordered that the appointments of the petitioner would be treated w.e.f the date of judgment notionally for the purpose of getting regularization, but for the purpose of grant of pecuniary benefits w.e.f the date of joining of the post. Likewise in SWP No.1245 of 2010, learned writ Court while taking note of the fact that the petitioner therein was given appointment pursuant to and in compliance with the judgment of the High Court in an earlier writ petition noted that the petitioner had not prayed for retrospective appointment therein where after petitioner therein filed another writ petition in which order was passed by the Writ Court directing retrospective appointment w.e.f the date when the other candidate was engaged was challenged and was subsequently found to be illegal. However, learned Division Bench while relying upon a decision of Hon'ble Supreme Court dated 02.05.2011 in SLP No.9415-9416/2008 modified the order passed by the Writ Court to the effect that appointment of the respondents therein would be treated notionally w.e.f the date of the judgment. Same is the position in the instant case. The petitioner herein had filed SWP No.995/2010 and had prayed for issuance of a writ of SWP 2960 OF 2013 Page 9 of 10 mandamus commanding the respondents to immediately and forthwith issue formal order of engagement. The petitioner neither had sought retrospective appointment nor was any application moved for amending the said writ petition.
8 The petitioner came to be appointed pursuant to the decision of this Court in SWP No.995/2010. In view thereof, the prayer in this petition seeking directions to the respondents to appoint the petitioner retrospectively w.e.f the date candidates who had applied in response to the same advertisement had been appointed as ReT in other schools is not maintainable. Accordingly, finding no merit in the plea of the petitioner, the writ petition is dismissed. No order as to costs.
(B. S. Walia) Judge Jammu 19.07.2017 Sanjeev SWP 2960 OF 2013 Page 10 of 10