Jammu & Kashmir High Court - Srinagar Bench
Zahida Parveen vs State Of J&K And Ors on 5 October, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No. 2412 of 2014 c/w SWP No. 2406 of 2014 Zahida Parveen Petitioners State of J&K and Ors. Respondents !Mr. M. A. Qayoom, Advocate Mr. Shafqat Nazir, Advocate ^Mr. N. H. Shah, AAG. Mr. S. A. Naik, AAG. Mr. Mir Suhail, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 05/10/2015 : J U D G M E N T :
(Oral) The Respondent Service Selection Board at the request of the Education Department issued successive advertisement notification Nos 03/2012, 02/2013, 05/2013 and 06/2013 where under applications were invited from the eligible candidates for being appointed on the post of teacher in District Cadre Baramulla.
The petitioner in SWP No. 2412/2014 responded to notification no. 05/2013 and 06/2013 whereas petitioner in SWP No. 2406/2014 responded to notification no. 03/2012, 05/2013 and 06/2013.
Because of large number of candidates seeking consideration for being selected on the post of teacher, the Respondent-Board decided to conduct objective type test for short listing of the candidates. The petitioners in both the writ petitions on the basis of merit secured in objective type written test were short listed and called for interview vide notification dated 24th March, 2014. In the said notification at Para 9 the candidates were informed by the Respondent-Board that there shall be a single interview for the candidates who have been short listed for more than one Item/Notification in a particular district and the points/merit secured by him/her in the viva-voce shall be accounted for in respect of other Items/Notifications where the candidates have been short listed in that particular District. Condition No. 9 of Government Order dated 20th March, 2014 is taken note of.
It is further notified that there shall be a single interview for the candidates who have been shortlisted for more than one Item/Notification in a particular district and the points/merit secured by him/her in the viva-voce shall be accounted for in respect of other Items/notifications where the candidates have been shortlisted in that particular District. The petitioners in both the petitions were called for interview. The petitioner in SWP No. 2412/2014 was shown to have been called for interview in respect of notification No. 05/2013 and the petitioner in SWP No. 2406/2014 was called for interview in respect of notification No. 03/2012 and 05/2013.
The petitioner in the above writ petition filed representation to the Respondent-Board wherein he requested to consider his claim for being selected on the post of teachers in respect of notification No. 06/2013.
Similar is the claim made by learned counsel for the petitioner in respect of SWP No. 2412/2014.
After the candidates were interviewed, selection list was issued by the Respondent-Board in respect of individual advertisement notifications. The petitioner Zahida Parveen figured at Serial No. 27 in the waiting list and has been shown to have secured 64.3108 points. The petitioner has been shown to have secured this merit in respect of advertisement notification No. 05/2013.
Petitioners merit in terms of condition no.9 of the notification dated 20th March, 2014 has not been considered in respect of advertisement notification No. 06/2013. The last selected candidate under that notification has secured 62.9457 points.
The petitioner as already stated has not been considered for being selected against this notification. Similarly the petitioner Tanveer Rasool in second writ petition is shown to have secured 64.7715 points in respect of notification No. 03/2012 and 05/2013 but his claim has been considered only in respect of the notification Nos 03/2012 and 05/2013. He has also been not considered in respect of notification No. 06/2013.
In view of the aforesaid fact situation it is not in dispute that both the petitioners in these writ petitions have secured higher merit than the last many selected candidates in respect of notification No. 06/2013.
It is in this back drop that petitioners have filed these writ petitions.
The Respondent-Board in the reply affidavit has taken stand that the petitioners application form in respect of notification No. 06/2013 was not considered by the Board for the reason that these petitioners had not bubbled the circle in the OMR form to indicate whether the post was District Cadre or Divisional Cadre.
The issue involved in this case is whether for non- bubbling of circle in OMR form to indicate whether post of teacher is District Cadre or Divisional Cadre will result in non- consideration of the petitioners in respect of advertisement notification No. 06/2013, when on the basis of their merit and in view of the Condition No. 9 contained in notification dated 20th March, they were to be selected for being appointed on the post of teacher.
The action of the Respondent-Board in declining the petitioners claim for being selected on the post of teacher in respect of advertisement notification No. 06/2013 is illegal and arbitrary for the following reasons;
a) In the advertisement notification itself it is mentioned that the post of teacher is District Cadre post. The Annexure C-1 to C-20 of the advertisement notification No. 06/2013 dated 10th May, 2013 pertains to District Cadre post. Annexure C-3 of the advertisement notification No. 03/2013 dated 10th May, 2013 specifically referred to District Cadre Baramulla and the post of teacher in the Education Department figured at Serial No. 401 thereof.
b) The advertisement notifications itself made it clear that the post of teacher in District Baramulla is a District Cadre post. The notification for the post of teacher in District Cadre post is in accordance with J&K Civil Service Decentralization Act of 2010 and Rules of 2010.
c) The advertisement notice is a representation to the eligible candidates. The authorities who issued the notification are bound by the said representation. The advertisement notification No. 06/2013 dated 10th May, 2013 was an express representation to the candidates that they are responding to the post of teacher which is a District Cadre post.
d) In this factual and legal background there was no requirement of bubbling the circle in the OMR form to indicate that the post applied for is a District Cadre post. Such a column in respect of post of teacher in District Baramulla in the OMR form, a general type form is rendered inconsequential and otiose.
e) Both the candidates as also Respondent-Board were fully aware that the post of teacher in District Baramulla is a District Cadre post.
f) Non-entertainment/non-consideration of the OMR form in respect of advertisement notification No. 06/2013 dated 10th May, 2013 in this fact situation is rendered illegal.
g) In the fact situation of this case it would be deemed that petitioners are genuine candidates who sought consideration for being selected on the post of teachers in District Baramulla in respect of advertisement notification No. 06/2013 dated 10th May, 2013. Non-consideration of the petitioners against this notification in these circumstances is arbitrary and violative of the guarantees contained in Article 14 and 16 of the Constitution of India. In view of the admitted fact position in this case, the petitioners have secured more merit than many last selected candidates in respect of advertisement notification No. 06/2013 dated 10th May, 2013. The petitioners on the basis of their higher merit would deemed to have been selected for being appointed on the post of teachers in respect of advertisement notification No. 06/2013.
The private respondents 6 to 8 in SWP No. 2412/2014 on the basis of their merit have already been selected for being appointed on the post of teachers in respect of advertisement notification No. 06/2013. It is not in dispute that not only these respondents but some other selected candidates have also secured less merit than the petitioners. In view of the Condition No. 9 contained in notification dated 20th March, 2014 the petitioners as already stated are deemed to have been selected on the post of teacher for District Cadre Baramulla. The private respondents have not secured selection by practicing fraud on the respondents but have been selected in the selection process conducted by the Respondent-Board.
In SWP No. 2412/2014, Court directed the respondents to reserve one post of teacher in District Baramulla in respect of notification No. 06/2013 dated 10th May, 2013.
These writ petitions are disposed of in the following manner.
The petitioners are deemed to have been selected for being appointed on the post of teacher as against notification No. 06/2013 dated 10th May, 2013. The Respondent Service Selection Board is directed to make recommendations in favour of the petitioners within one week from the date copy of this order is served.
It is further provided that in case Respondent- Board does not submit recommendations in respect of petitioners in both the petitions to the Competent Authority within one week from the date copy of this order is served, then Competent Authority to the Government will be under obligation to issue appropriate orders of appointment in favour of the petitioners and also the private respondents.
(Muzaffar Hussain Attar) Judge SRINAGAR 05/10/2015 Sakeena