Jammu & Kashmir High Court
Man Mohan And Ors. And 5 Other Connected ... vs State And Ors. on 7 November, 2017
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SWP No.126/2014, MP No.971/2014, MP No.1/2017, MP No.154/2017
c/w
SWP No.1272/2016, MP No.01/2016
SWP No.1024/2014, MP No.1353/2017
SWP No.124/2014, MP Nos.941/2015, 940/2015, 969/2014, 152/2014, 4792/2014
SWP No.428/2014, MP Nos.2/2017, 1/2017, 603/2014, 3/2017
SWP 445/2014, MP Nos.1/2017 & 636/2014
Date of order:07.11.2017
Man Mohan And Ors. Vs. State and Ors.
& 5 other connected petitions.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Appearing counsel:
For Petitioner/Appellant(s) : Mr. D C Raina, Sr. Advocate with Mr. Anuj Dewan
Raina, Advocate and Mr. Mezr ali Khan, Advocate.
Mr.Sachin Sharma, Advocate.
Mrs. S Kour, Sr. Advocate with
Ms. Vandana Kumari, Adv.
For respondent (s) : Mr. Ravinder Gupta, AAG
Mr. Suneel Malhotra, Adv Mr. M I Sherkhan, Advocate Mr. K L Pandita, Advocate.
Mr. Anwar Choudhary,Advocate.
Mr. Sudershan Sharma, Advocate.
Mr. Suresh Subash Singh Chandel, Advocate.
Since common questions of law and facts arise for consideration in this bunch of writ petitions, they were heard analogously and are being decided by this common order. For the facility of reference, facts from SWP No. 1272/2016 are being referred to.
2. The petitioner Nos.1 and 2 are graduates and they obtained a degree of B.Ed also. Both the petitioners belong to socially and educationally backward class and are residents of backward area, namely Village Dhar Sakari which is notified as a backward area. The petitioners have been granted RBA certificates by the competent authority. An advertisement notification dated 04.10.2013 was issued by the Chief Education Officer, SWP No.126/2014, MP No.971/2014, MP No.1/2017, MP No.154/2017 c/w SWP No.1272/2016, MP No.01/2016 SWP No.1024/2014, MP No.1353/2017 SWP No.124/2014, MP Nos.941/2015, 940/2015, 969/2014, 152/2014, 4792/2014 SWP No.428/2014, MP Nos.2/2017, 1/2017, 603/2014, 3/2017 SWP 445/2014, MP Nos.1/2017 & 636/2014 Page 1 of 9 Rajouri by which various posts of ReTs for District Rajouri including the village Dhar Sakari were advertised, the particulars of which read as under:
" In pursuance of Govt. Order No.635-Edu of 2010 dated 04.08.2010 and Govt. Order No.522-Edu of 2013 dated 08.05.2013, applications are invited from the permanent residents of J&K State, Rajouri Distt. only for the engagement of Rehbar-e-Taleem teachers in the following schools of different Zones of the District for filling up of regular vacancies of teachers in socially and educationally Backward areas ALC/RBA identified under J&K reservation rules for a period of two years. Only eligible Candidates from the revenue village and village where the school is actually functioning can apply. In case the school is functioning in predominantly inhabited by SC/ST population, only the candidates belonging to these categories and possessing the prescribed qualification shall be considered for engagement of Rehbar-e-Taleem. However, where habitations in a Revenue Village are Scattered, the eligible only shall be considered vide Govt. Order No. 288-Edu of 2009 dated 08-04-2009 wherever applicable. Application shall be submitted to the days of appearance of the advertisement notice."
3. The petitioners participated in the aforesaid process of selection and were declared successful. The Zonal Education Officer, Peeri issued a provisional select list in which names of the petitioners who were selected in the process of selection also figured in. However, instead of providing appointment to the petitioners, the official respondents have appointed respondents 5 to 10 on the post of ReTs on the ground that in case the school is functioning in predominantly inhabited by SC/ST population, only candidates belonging to the SC/ST category are eligible to apply. Thus, the respondents 5 to 10 even though lower in merit than the petitioners were appointed against the post of ReTs. In the aforesaid factual background, the petitioners have filed the writ petition in which the petitioners have sought the quashment of impugned select list dated 08.01.2014 by which respondents 5 to 10 have been selected as ReT Teachers. The petitioners also seek quashment of advertisement notice dated 04.10.2013 to the extent it contains the impugned stipulation which permits only candidates belonging to SC/ST population and possessing SWP No.126/2014, MP No.971/2014, MP No.1/2017, MP No.154/2017 c/w SWP No.1272/2016, MP No.01/2016 SWP No.1024/2014, MP No.1353/2017 SWP No.124/2014, MP Nos.941/2015, 940/2015, 969/2014, 152/2014, 4792/2014 SWP No.428/2014, MP Nos.2/2017, 1/2017, 603/2014, 3/2017 SWP 445/2014, MP Nos.1/2017 & 636/2014 Page 2 of 9 prescribed qualification for consideration for engagement of ReT Teachers in case the schools are situated in an area which is predominantly inhabited by SC/ST population. The petitioners have further sought a direction to respondents to conduct the selection process in accordance with merit and suitability of candidates and to consider the case of the petitioners.
4. Learned senior counsel for the petitioners submitted that the impugned condition in the advertisement notice that only eligible candidates from revenue village and villages where the schools are functioning can apply and in case the school is functioning in predominantly inhabited by SC/ST population, only the candidates belonging to the aforesaid category and possessing the requisite qualification shall be considered for engagement as ReTs is inconsistent with the Government order dated 04.08.2010 read with Government Order dated 08.05.2013 as well as Government Order dated 08.04.2009. It is further submitted that the aforesaid condition in fact amounts to 100 per cent reservation which is impermissible in law. Learned Senior Counsel for the petitioners has referred to a Division Bench decision in LPASW No.73/2016 and has submitted that the appeal has been disposed of with the direction that since the applications have been invited for filling up the posts in question based in Government Order No.635-Edu of 2010 dated 04.08.2010, the selection is to be finalized for the posts in question without reference to the qualification dated 26.12.2013 and the respondents have been directed to finalize the process within six weeks. It is further submitted that the aforesaid decision has no application to the obtaining factual matrix of the case. Learned Senior Counsel has also referred to the decision rendered by Single Judge in SWP No.458/2014 dated 11.11.2016 in which it has been held that 100 per cent reservation in SWP No.126/2014, MP No.971/2014, MP No.1/2017, MP No.154/2017 c/w SWP No.1272/2016, MP No.01/2016 SWP No.1024/2014, MP No.1353/2017 SWP No.124/2014, MP Nos.941/2015, 940/2015, 969/2014, 152/2014, 4792/2014 SWP No.428/2014, MP Nos.2/2017, 1/2017, 603/2014, 3/2017 SWP 445/2014, MP Nos.1/2017 & 636/2014 Page 3 of 9 favour of particular class or community would offend the constitutional bar contained in Article 16(1) of the Constitution of India.
5. In support of his submissions, learned Senior Counsel has also referred to the decisions of the Supreme Court in the case of State of Karnataka and Ors. V. K. Govindappa and anr., 2008 (16) SCR 457; Puneet Gulati and ors. Vs. State of Kerala and Ors,. 2011 AIR (SCW) 507.
6. On the other hand, learned AAG for the official respondents has submitted that the advertisement notice was issued on 04.10.2013 whereas the clarification has been issued on 26.12.2013, therefore, the clarification does not operate retrospectively and therefore does not apply to the advertisement which is subject matter of the writ petition. Learned AAG has placed reliance on judgment of this Court in LPASW No.73/2016 dated 27.01.2017 as well as order dated 01.08.2017 in support of his submissions. It is further submitted by learned AAG that the petitioners are bound by the terms and conditions of the advertisement. On the other hand, learned counsel for the respondents 5 to 10 has submitted that 100 per cent reservation has also been provided in case all the candidates belonging to RBA category as well as ALC category and since the petitioners belonging to RBA Category, therefore, they should not be given the benefit in the instant recruitment process. Mr. K L Pandita, learned counsel for the respondents 6 and 7 in SWP No.124/2014 has submitted that an enquiry was conducted in which the village in question was found to be mainly inhabited by the candidates belonging to SC/ST category and once the petitioners have participated in the process of recruitment, they cannot be permitted to turn around and challenge the same. In support of aforesaid submission, reference has been made to the decision of the Supreme Court in the case Madras Institute of Development Studies and Ors. V. K SWP No.126/2014, MP No.971/2014, MP No.1/2017, MP No.154/2017 c/w SWP No.1272/2016, MP No.01/2016 SWP No.1024/2014, MP No.1353/2017 SWP No.124/2014, MP Nos.941/2015, 940/2015, 969/2014, 152/2014, 4792/2014 SWP No.428/2014, MP Nos.2/2017, 1/2017, 603/2014, 3/2017 SWP 445/2014, MP Nos.1/2017 & 636/2014 Page 4 of 9 Sivasubramaniyan & Ors, 2016 (1) SCC 454; Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 (Supp.1) SCC 285.
7. I have considered the submissions made by learned counsel for the parties and have perused the record. The facts are not in dispute that the petitioners are admittedly more meritorious than the private respondents. The question arises for consideration in this bunch of writ petitions is with regard to interpretation of the various Government orders issued from time to time and whether it is permissible to provide 100 per cent reservation for candidates belonging to a particular category. In order to appreciate the aforesaid aspect of the matter, it is necessary to refer to the relevant extract of the advertisement which reads as under:
"Only eligible Candidates from the revenue village and village where the school is actually functioning can apply. In case the school is functioning in predominantly inhabited by SC/ST population, only the candidates belonging to these categories and possessing the prescribed qualification shall be considered for engagement of Rehbar-e-Taleem. However, where habitations in a Revenue Village are Scattered, the eligible only shall be considered vide Govt. Order No. 288-Edu of 2009 dated 08-04-2009 wherever applicable. Application shall be submitted to the days of appearance of the advertisement notice."
8. The Government Order No.635-Edu of 2010 dated 01.08.2010 reads as under:
"Sanction is hereby accorded to the filling-up of regular vacancies of teachers in Socially and Educationally Backward Areas and in areas near Line of Actual Control identified under the J&K Reservation Rules on the pattern of Rehbar-e-Taleem Scheme prospectively for a period of two years in the first instance; provided that in case of the habitations predominantly inhabited by SC/ST population, only the candidates belonging to these categories, and possessing the prescribed qualification, shall be considered for selection as Rehbar-e-Taleem."
Thereafter, the State Government issued an order dated 08.05.2013 which reads as under:
SWP No.126/2014, MP No.971/2014, MP No.1/2017, MP No.154/2017 c/w SWP No.1272/2016, MP No.01/2016 SWP No.1024/2014, MP No.1353/2017 SWP No.124/2014, MP Nos.941/2015, 940/2015, 969/2014, 152/2014, 4792/2014 SWP No.428/2014, MP Nos.2/2017, 1/2017, 603/2014, 3/2017 SWP 445/2014, MP Nos.1/2017 & 636/2014 Page 5 of 9 "In partial modification of Government Order No. 635-Edu of 2010 dated 04.08.2010 sanction is hereby accorded to the extension invalidity of Special Dispensation for the recruitment of teachers on the R-e-T pattern in Socially and Educational Backward Areas and in the areas near the Actual Line of Control identified under the Reservation Rules retrospectively w.e.f. 01.08.2012 till date and prospectively for a period of two years w.e.f. 03.05.2013.
By Order of the Government of Jammu and Kashmir."
9. In pursuance of the order dated 22.11.2013 passed in SWP No.1794/2013, the State Government issued another order bearing No.1034-Edu of 2013 dated 26.12.2013 which reads as under:
"Now therefore, it is hereby ordered that the following clarification shall add to Government Order No. 522-Edu of 2013 dated 08.05.2013. That Special Dispensation for recruitment of teachers on the R-e-T pattern is Socially and Educational Backward Areas and in the Areas near the Line of Control identified under the J&K Reservation Rules shall be applicable to all those eligible candidates who so ever actually residing in the area holding bona fide PRC at the time of engagement/appointment consistent with the norms/guidelines laid down from time to time under the scheme in vogue.
By Order of the Government of Jammu and Kashmir."
10. Thus from perusal of the clauses of the advertisement as well as various government orders quoted supra and in particular the Government Order No.1034-Edu of 2013 dated 26.12.2013, it is evident that the State Government was conscious of the fact that even in respect of the village which is predominantly inhabited by SC/ST population, 100 per cent reservation to particular category cannot be provided and therefore, the Government order dated 26.12.2013 was issued by which it was made clear that all candidates holding valid PRC for a particular village would be considered eligible for consideration. It is pertinent to note that 100 per cent reservation in favour of particular class or community is violative of the constitutional mandate contained in Article 16(1) of the Constitution of SWP No.126/2014, MP No.971/2014, MP No.1/2017, MP No.154/2017 c/w SWP No.1272/2016, MP No.01/2016 SWP No.1024/2014, MP No.1353/2017 SWP No.124/2014, MP Nos.941/2015, 940/2015, 969/2014, 152/2014, 4792/2014 SWP No.428/2014, MP Nos.2/2017, 1/2017, 603/2014, 3/2017 SWP 445/2014, MP Nos.1/2017 & 636/2014 Page 6 of 9 India. See: State of Karnataka and Ors. V. K. Govindappa and anr., 2008 (16) SCR 457; Puneet Gulati and ors. Vs. State of Kerala and Ors,. 2011 AIR (SCW) 507.
11. Admittedly, the petitioners are more meritorious that the private respondents. However, they have been ousted merely on the ground that under the terms and conditions of the advertisement, only the candidates from the revenue village and villages where the school is actually functioning can apply and in case the school is functioning in predominantly inhabited by SC/ST population, the only candidates belonging to those categories and possessing the prescribed qualification shall be considered. It is further submitted that the aforesaid condition mentioned in the advertisement notification is contrary to the Government Order dated 26.12.2013 and therefore, cannot be sustained in the eye of law.
12. So far as contention made by learned counsel for the respondents that the petitioners are bound by the terms and conditions of the advertisement is concerned, the same has no application to the fact situation of the case as the impugned condition in the advertisement is contrary to the Government Order dated 26.12.2013. Similarly, the submissions that the since the petitioners have participated in the process of selection and therefore they cannot be permitted to challenge the same only is required to be stated to be rejected as the petitioners were declared successful candidates and not the ones who were declared unsuccessful. The decision relied upon by the learned counsel for the respondents in the case of Madras Institute of Development Studies and Ors. V. K Sivasubramaniyan & Ors, 2016 (1) SCC 454; Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 (Supp.1) SCC 285 have no application as the aforesaid decisions deal with SWP No.126/2014, MP No.971/2014, MP No.1/2017, MP No.154/2017 c/w SWP No.1272/2016, MP No.01/2016 SWP No.1024/2014, MP No.1353/2017 SWP No.124/2014, MP Nos.941/2015, 940/2015, 969/2014, 152/2014, 4792/2014 SWP No.428/2014, MP Nos.2/2017, 1/2017, 603/2014, 3/2017 SWP 445/2014, MP Nos.1/2017 & 636/2014 Page 7 of 9 the cases which pertains to challenge of process of selection at the instance of unsuccessful candidates. The State Government itself realizing even in an area which is predominantly inhabited by SC/ST population, it is not permissible to provide reservation to the extent of 100 per cent has issued an order dated 26.12.2013.
13. So far as decision relied by learned AAG in the case of LPASW No. 73/2016 is concerned, the same has been passed on the ground that since the applications were invited for filling up of the posts in question of Government Order No. 635-Edu of 2010 dated 04.08.2010, the selection has to be finalized without reference to the clarification dated 26.12.2013. In the aforesaid decision, the Division Bench has not considered the question whether or not clarification would apply retrospectively. It is well settled in law that the clarificatory amendment relates back to the enactment of the provision. See: Sarvan Kumar v. Madan Lal Aggarwal, (2003) 4 SCC 147; CIT V. Vatika Township (P) Ltd, (2015) 1 SCC 1. Therefore, the submission that the notification dated 26.12.2013 has no retrospective application also does not deserves acceptance. So far as decision by the Division bench in LPASW No. 135/2015 is concerned, the same has been passed on the basis of order passed in LPASW No.73/2016 and has been disposed of with the direction to the respondents to take a decision in the matter in the light of observations made in order passed in LPASW No.73/2016. The Division Bench in PERLP No.3/2014 c/w CDLSW No.36/2014, LPASW No. 45/2014, has held that respondents are bound by the advertisement notice and are expected to act, accordingly the aforesaid decision is also of no assistance to the respondents in the fact situation of the case as the advertisement notice is contrary to the Government Order dated 23.12.2013.
SWP No.126/2014, MP No.971/2014, MP No.1/2017, MP No.154/2017 c/w SWP No.1272/2016, MP No.01/2016 SWP No.1024/2014, MP No.1353/2017 SWP No.124/2014, MP Nos.941/2015, 940/2015, 969/2014, 152/2014, 4792/2014 SWP No.428/2014, MP Nos.2/2017, 1/2017, 603/2014, 3/2017 SWP 445/2014, MP Nos.1/2017 & 636/2014 Page 8 of 9
14. In view of preceding analysis, the impugned condition contained in the notification dated 04.10.2013 in so far as it is in contravention of the Government Order dated 26.12.2013 is concerned is hereby quashed. The selection panel in so far it contains the names of private respondents is hereby quashed and respondents are directed to issue letter of appointment to the post of ReT Teachers in favour of the petitioners. In the result, the writ petitions are allowed.
(Alok Aradhe) Judge Jammu 07.11.2017 Raj Kumar SWP No.126/2014, MP No.971/2014, MP No.1/2017, MP No.154/2017 c/w SWP No.1272/2016, MP No.01/2016 SWP No.1024/2014, MP No.1353/2017 SWP No.124/2014, MP Nos.941/2015, 940/2015, 969/2014, 152/2014, 4792/2014 SWP No.428/2014, MP Nos.2/2017, 1/2017, 603/2014, 3/2017 SWP 445/2014, MP Nos.1/2017 & 636/2014 Page 9 of 9