Jammu & Kashmir High Court - Srinagar Bench
Shazia Rashid vs State Of J&K And Others on 15 July, 2021
Bench: Sanjeev Kumar, Rajnesh Oswal
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on:01.07.2021
Pronounced on: 15.07.2021
LPASW No.30/2018
IA No.1/2018
Caveat No.220/2018
Shazia Rashid ...PETITIONER(S)
Through: Mr. Ashraf Wani, Advocate
Vs.
State of J&K and others ....RESPONDENT(S)
Through: Mr. Shah Aamir, AAG for official respondents.
None for private respondent.
CORAM:HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
Sanjeev Kumar-J
1) This intra Court appeal is directed against the judgment dated 06.05.2017 passed by the learned Single Judge of this Court ("Writ Court") in SWP No.1177/2017 titled Haseena Akhter v. State of J&K and others, whereby the writ petition filed by respondent No.6 has been allowed and the empanelment of the appellant in merit list quashed.
2 LPASW No.30/2018
2) The Chief Education Officer, Pulwama vide advertisement notification No.DIPK-2806 published in daily newspaper "Greater Kashmir" in its edition dated 07.06.2013 invited application for supplying the regular vacancies of teachers on the pattern of Rehbar- e-Taleem scheme in various schools of the district, which included one vacancy in UPS, Aripal. As is evident from the notification, the vacancy notified was to be filled up from amongst the candidates, who were permanent residents of the concerned revenue village/habitation, wherein the school in question was situated, falling under the ambit of Socially and Educationally backward area as notified vide SRO 294 of 2005 dated 21.10.2005. However, in case the habitation/village was predominantly inhabited by SC/ST population, only candidates belonging to these categories and possessing prescribed qualification were to be considered.The last date for submission of application forms, in terms of the advertisement notification (supra), was 17.06.2013. However, in terms of subsequent notification dated 18.06.2013, the last date for submission of application forms was extended upto to 21.06.2013.
3) The appellant and respondent No.6, both holding requisite qualifications and being otherwise eligible, submitted their applications and sought consideration for the post of teacher notified for UPS, Aripal. It appears that some of the candidates, who were not possessing RBA certificates or were otherwise not fulfilling the 3 LPASW No.30/2018 requisite eligibility for obtaining such certificates, were not allowed to submit their applications. They approached the higher authorities for intervention in the matter. It is claimed that the Additional Secretary to Government, School Education Department issued a statement published in daily newspaper "Kashmir Uzma" on 21.06.2013, wherein it was stated that the Additional Secretary to Govt., Department of School Education had assured all such candidates, who were not possessing RBA certificates that they will be considered without insisting for submission of RBA certificates.
Be that as it may, the fact remains that the Chief Education Officer, Pulwama vide his communication bearing No.CEO/Pul/635- Lit-13/77-75 dated 21.06.2013 clarified that submission of RBA certificate by the candidates residing in the area declared as backward area under the reservation rules was not mandatory for seeking consideration for the posts notified to be filled up on ReT pattern in Socially and Educationally backward areas. With the issuance of aforesaid communication, the appellant and few others were also considered and on the basis of the merit, the appellant came to be placed in the select panel.
4) Feeling aggrieved by the empanelment of the appellant, respondent No.6 filed SWP No.1177/2013 and challenged the empanelment of appellant herein primarily on the ground that the communication of the Chief Education Officer dated 21.06.2013 was 4 LPASW No.30/2018 tantamount to changing the eligibility criteria midway and, therefore, was not permissible in law. It was submitted before the Writ Court that had the impugned communication not issued by the Chief Education Officer and the only candidates, who were possessing certificates of RBA concerned, respondent No.6 being higher in merit would have been selected. It was, thus, the primary contention of respondent No.6 before the Writ Court that consideration of the candidates, who, though, belonged to the village concerned but were not possessing RBA certificate because of their ineligibility to get such certificate, was not inconsonance with the terms and conditions of the advertisement notification and, therefore, an exercise bad in the eye of law.
5) The writ petition was opposed by the official respondents and in their objections filed to the maintainability of the writ petition, it was contended that amongst others, one post of teacher on R-e-T pattern was required to be filled in UPS, Aripal situated in a Socially and Educationally backward village in terms of Government Order No.522-Edu of 2013 dated 08.05.2013. Accordingly, advertisement notification was issued by the Chief Education Officer, Pulwama. In as many as eight applications, though, some were without RBA certificates, were received conditionally from the candidates till cutoff date. However, pursuant to the subsequent notification received from administrative department, the production of RBA certificate was 5 LPASW No.30/2018 declared not mandatory and, accordingly, all applications, which were earlier conditionally received, were entertained and considered.
6) The appellant, who was subsequently impleaded in the writ petition also feled her objections. The writ petition was considered by the Writ Court and was dismissed vide order dated 03.12.2015. On appeal, the judgment of the Writ Court was set aside and the matter was remanded back. The writ petition was considered again by the Writ Court and vide judgment dated 06.05.2017, it was allowed and the inclusion of the appellant in the merit panel was set aside with a direction to the authorities concerned to consider only seven candidates excluding appellant, who had applied upto the cutoff date mentioned in the original advertisement notification. The appellant herein preferred a review petition before the Writ Court, but the same too was dismissed in terms of order dated 21.12.2017. It is these two orders i.e. order dated 06.05.2017 allowing the writ petition and order passed in review petition dated 21.12.2017, the appellant is aggrieved of and is before us in this appeal under Clause 12 of the letters patent.
7) The impugned orders have been assailed by the appellant on the following grounds: -
i) The Writ Court has not correctly appreciated the fact that holding of RBA certificate for seeking consideration under R-e-T scheme and the government orders issued on 6 LPASW No.30/2018 the subject was not mandatory and that the candidates belonging to the socially and educationally backward village where the school was situated, were eligible to be selected and engaged against the post of teacher to be filled up on R-e-T patten.
ii) The Writ Court has not correctly appreciated that the condition in the advertisement notification, which was not in consonance with the R-e-T scheme and the government orders on the subject, was non est and could not have been insisted upon.
iii) The Writ Court also erroneously held that the extension of date was only with a view to accommodate the appellant, who had failed to submit her application form alongwith RBA certificate within the cutoff date mentioned in the original notification. It is urged that neither this plea was raised by the writ petitioner in her writ petition nor the appellant had an opportunity to meet such plea. The consideration of this plea, raised for the first-time during course of the arguments, was, thus, not permissible.
iv) The judgment impugned is not sustainable, for, it is in direct conflict with the judgment rendered by a Division 7 LPASW No.30/2018 Bench of this Court in LPA No.204/2013 titled Shahida Shafi v. State and others.
v) The judgment impugned, if allowed to sustain, would uphold hundred percent reservation for RBA candidates for the post in question, which is not permissible in law and would violate Article 14, 15 and 16 of the Constitution.
8) Having heard learned counsel for the parties and perused the record, we are of the considered view that the Writ Court has not appreciated the controversy in proper perspective. The writ petition of respondent No.6 has been allowed primarily on two counts: -
a) That once process of selection was set in motion by issuance of advertisement notification laying down certain terms and conditions, the same have to be strictly adhered to and any alteration to the terms and conditions made during the course of selection would be tantamount to changing the rules of the game and, therefore, not permissible in law.
b) That there was no justification in extending the cut-off date mentioned in the original notification for submission of application forms and that the date was extended only with a view to accommodate the appellant, who for the reason that she 8 LPASW No.30/2018 was not possessing RBA certificate had failed to apply within the cut-off date originally fixed.
9) So far as the first ground which has heavily weighed with the Writ Court is concerned, suffice it to say that in terms of Govt. Order No.522-Edu of 2013 dated 08.05.2013, a special dispensation for recruitment of teachers on R-e-T pattern in socially and educationally backward area and in the areas near the Line of Control identified under the reservation rules was made applicable to all those eligible candidates actually residing in the area holding bona fide PRC at the time of engagement. There was no requirement for the candidates, who were residing in such socially and educationally backward areas where special dispensation was applicable, to possess RBA certificates also. The issue is no longer res integra. It was finally settled by the Division Bench of this Court in LPA No.204/2013 titled Shahida Shafi v. State and others, pursuant to which, the Government also issued clarification in terms of Govt. order No.1034-Edu of 2013 dated 26.12.2013. It was, thus, clarified that in special dispensation for recruitment of teachers on R-e-T pattern in socially and educationally backward areas and the areas near the line of control as identified under the J&K Reservation Rules, candidates belonging to that area, who actually reside there and holding bona fide PRC at the time of engagement, are entitled to be considered and the condition, if 9 LPASW No.30/2018 any, incorporated in the advertisement notification insisting for RBA or ALC category certificate, shall not be insisted upon.
10) In view of the aforesaid, condition in the advertisement notification that the candidates, who possess reserved category certificates (Resident of Socially and Educationally backward Area) issued by the competent authority shall only be considered was, thus, a condition which was not in consonance with the Government Order No.635-Edu of 2010 dated 04.08.2010 read with Govt. Order No.522-
Edu of 2013 dated 08.05.2013. The communication of the Chief Education Officer dated 21.06.2013, which was assailed in the writ petition by respondent No.6 was only a statement of correct legal position as obtaining from the twin government orders mentioned above.
11) The law laid down by the Division Bench in the case of Shahida Shafi (supra) and the clarificatory orders issued by the Government have set the controversy at rest. Needless to say that clarification of a provision or an order takes effect from the date theclarificatory order is issued i.e. clarification always dates back to the point of time when the provision or order sought to be clarified is actually issued. The Writ Court was, thus, not correct in its conclusion that dispensation for requirement of RBA certificate in the instant case was in violation of the terms and conditions of the advertisement 10 LPASW No.30/2018 notification or that it was tantamount to changing the rules of the game.
12) So far as finding of the Writ Court that the extension notice was issued by the Chief Education Officer concerned only to accommodate the appellant is also not supported by any reason or material. Admittedly, the writ petitioner had not raised any such plea nor had he attributed any mala fide in extending the date by few days. On the other hand, it has amply come on record that the official respondents initially declined to entertain the application forms, which were not supported with RBA certificates, obviously, relying upon a condition in this regard incorporated in the advertisement notification, but upon representation by candidates aggrieved, the administrative department sorted out the issue and permitted the candidates to submit their application forms along with PRC without insisting for RBA certificate.
13) In that view of the matter and in the fitness of things as also to afford an opportunity to such candidates also to submit their application forms, the date to submit application forms was extended. This is how the date was extended for few days to permit such candidates also to apply and seek consideration. It is misfortune of respondent No.6 that the appellant, who was subsequently permitted to apply during extended date without submitting RBA certificate, 11 LPASW No.30/2018 was found to be most meritorious. This definitely brought respondent No.6 down in merit and, therefore, this litigation.
14) We are in agreement with the learned counsel for the appellant that the Writ Court did not appreciate the controversy in right perspective and, thus, landed itself in serious error which deserves to be corrected by the Division Bench.
15) For the foregoing reasons, we find merit in this appeal and the same is, accordingly, allowed. Judgment of the Writ Court dated 06.05.2017 passed in SWP No.1177/2013 and order dated 21.12.2017 passed in Review No.16/2017 are set aside. The official respondents are directed to proceed in the matter in light of the observations made herein above.
(Rajnesh Oswal) (SanjeevKumar)
Judge Judge
Srinagar
15.07.2021
"Vinod, PS"
Whether the order is speaking: Yes
Whether the order is reportable: Yes
VINOD KUMAR
2021.07.15 16:50
I attest to the accuracy and
integrity of this document