Jammu & Kashmir High Court - Srinagar Bench
Wali Mohammad Mir vs State Of J&K And Ors on 1 May, 2010
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 170 of 2009 Wali Mohammad Mir Petitioners State of J&K and ors Respondents !Mr. Molvi Aijaz, Advocate ^Mr. J. A. Kawoosa, Advocate Honble Mr. Justice Hakim Imtiyaz Hussain, Judge Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 01/05/2010 :J U D G M E N T:
Sarva Shiksha Abhiyan Scheme (for short SSA) is launched by the Central Government and has been operationalised through out the length and breadth of the Country. Education Guarantee Scheme (for short EGS) is begotten from the SSA.
Education Guarantee Centres were created and process for selection and engagement of Education Volunteers (for short EVs) was initiated by the State Government resulting in selection and engagement of EVs in accordance with the criterion laid for the said purpose. The EGS has been wound up and consequently opening of EGS Centres was banned which resulted in stopping the process of selection/engagements of EVs. This information was notified and circulated by the State Project Director, SSA, J&K State vide his No. Edu/SPD/SSA/32/2006/11260-73 dated 02.03.2006. The cause for filing of the writ petition and this LPA is traceable to issuance of advertisement notification by the Zonal Education Officer, Khumriyal on 16.11.2005 which was published in a daily newspaper on 18.11.2005. Through this advertisement notification applications were invited for engagement of EVs for different centres including Lone Mohalla Warnow. Tentative selection list was also published in which the private respondent was tentatively selected as EV. Prayer was made in the writ petition for issuance of a writ of certiorari for quashing the tentative selection list so far it pertains to the private respondent and it was also prayed that by issuance of a writ of mandamus respondents 1 to 4 be directed to select and appoint the appellant on the post of EV in place of private respondent.
Grievance projected by the appellant in the writ petition was that though possessed of superior merit than that of selected candidate he was not selected on the ground that he was not resident of the area. The appellant filed an application which was marked by the Chief Education Officer, Kupwara to the Zonal Education Officer, Khumriyal on 17.02.2006 asking the said authority to entertain the complaint of the appellant on the grounds mentioned in the newspaper provided candidate had applied within the cut off date. The official respondents in the objections have stated that the appellant had not applied within the cut off date. The Court directed for conducting of an inquiry and the Chief Education Officer, Kupwara submitted his report, which has been brought on the writ record, in which it is provided that because of cancellation of the PRC of the appellant the Zonal Education Officer could not consider his application for engagement as EV. The report further reveals that when the process of selection was underway the State Project Director, SSA, J&K vide his communication dated 02.03.2006 informed that the opening of the EGS centres is banned and also provided for stopping the process of engagement of EVs. It was also brought on record through this report that all the notifications issued were cancelled and the panel submitted of EGS Centre Lone Mohalla Ophan Warnow was also cancelled, so no EV was engaged.
The writ court in this fact situation dismissed the writ petition holding same to have been rendered infructuous. The LPA is filed on almost identical pleadings as that taken up in the writ petition viz that the appellant was possessed of superior merit than that of private respondent and that he was resident of the area where the EGS Centre was located, so was eligible for being considered for being selected and engaged but was wrongly denied consideration.
Heard learned counsel for the parties. Considered the matter. Learned counsel for the appellant submitted that even after the banning of EGS Centres some persons have been engaged as EVs. The learned counsel, thus, submitted that appellant cannot be discriminated against by not engaging him as EV being possessed of superior merit than that of private respondent.
Mr. J.A.Kawoosa, learned AAG appearing for the State submitted that in view of the ban imposed on opening of EGS Centres no engagement of EVs could be made. Learned counsel, thus, submitted that in this factual and legal backdrop the writ petition has been rendered infructuous.
The selection process in accordance with the mandate of Article 14 and 16 of the constitution of India is to be initiated when any post under the Government or any post, though not forming part of service under the Government but having all the trappings of a post under the Government, is required to be filled up. Selection process is to be initiated for making engagement of the suitable and meritorious candidates. The selection/recruitment process has, thus, reference to availability of post/position and decision of the Government to fill up the same. If the Government/employer takes a decision not to fill up the post, Court in normal circumstances cannot direct the said authority to fill up the said post. It is for the Government/employer to find out its requirements and accordingly take decision whether to fill up the post or not to fill up the post. The situation becomes completely different when a post is available in a scheme and the scheme itself is wound up and/or decision is taken by the Government/competent authority not to open new centres under the scheme. The matter purely falls in administrative realm and the Court will not normally intervene in such decisions unless it is shown that the decision is result of mala fide/colourable exercise of powers or violates any of rights guaranteed under Part III of constitution of India. The legal position is clear that in a scheme when the opening up of the Centres is banned and posts are not available, no direction can be issued to select/engage a person, even if process of selection was initiated. Initiation of process of selection does not clothe any eligible person with a right in law to seek direction for bringing the said selection process to its conclusion, though in extra ordinary circumstances, Courts may intervene to uphold the constitution and the law. Opening of EGS Centres have been banned and the process of selection initiated having been withdrawn and panels/tentative selection lists having been cancelled, no direction can be issued for selection/engagement of a person. The writ petition, in these circumstances, would not survive.
The argument of the learned counsel for the appellant that some persons have been selected/engaged even after ban is not the case set up in the writ petition and no such cause has been pleaded even in the memorandum of appeal. In writs the Courts normally consider and decide same on the basis of pleadings of the parties. This is the normal course adopted by courts of law. An oral submission based on an alleged fact is not being entertained as that has potential of violating the procedural proprietary as also the right of the opposite party who in such circumstances would be condemned unheard. The oral submissions bringing facts to the notice of the case in ordinary circumstances cannot thus be entertained. The appellant has not pleaded as to who were the persons who were engaged as EVs after the ban was imposed. Such submissions cannot be entertained same being not countenanced in law. Assuming that such engagements are made, as alleged by the appellant, after banning of the centres, those will not be the proper engagements. Article 14 and 16 of the Constitution are rooted in positive grounds and cannot be enforced to achieve negative ends, no direction can thus be issued even on this count.
It is thus held that after banning the EGS Centres no right is vested in any candidate who had responded to the advertisement notification or even if he was tentatively selected to seek a direction for his engagement as EV.
For the above stated reasons this appeal being meritless is accordingly dismissed.
(Muzaffar Hussain Attar) (Hakim Imtiyaz Hussain)
Judge Judge
Srinagar
01.05.2010
Sarveeda