Jammu & Kashmir High Court - Srinagar Bench
Fayaz Ahmad Bhat vs State And Ors on 1 August, 2018
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR
Case No: SWP 1999/2016 Dated : 01st of August, 2018
FAYAZ AHMAD BHAT VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No
FOR THE PETITIONER/s : MR. M.ASHRAF WANI
FOR THE RESPONDENT/s: . MR. SHEIKH MANZOOR
(M.K.HANJURA-J) 01/ In this writ petition, the petitioner seeks the following reliefs:
a) "A writ in the nature of mandamus commanding the respondents to give effect to the appointment order from the date the order has been issued in favour of the other candidates, who stand selected and appointed in terms of notification no. 7 of 2010 dated 12.11.2010.
b) Writ in the nature of mandamus commanding the respondents to pay the salary/wages to the petitioner as are paid to other candidates and give notional increments to the petitioner.
c) Writ in the nature of mandamus commanding the respondents to place the petitioner in the seniority list at its appropriate place as if the petitioner was appointed on the date when the other candidates were appointed in terms of notification no. 7 of 2010 dated 12.11.2010.
d) Writ in the nature of mandamus commanding the respondents to pay salary from the date the recommendation has been made i.e. 11.06.2015 till the appointment order i.e. 11.8.2016 was issued by the respondents in favour of the petitioner."
02/ The petitioner claims the aforesaid reliefs on the grounds that the Service Selection Board issued an advertisement notice bearing no. 7 of 2010 dated 12.11.2010 inviting applications for the posts of teachers in different districts. By virtue of the said advertisement notice, 339 posts including 194 in the open category were advertised for district Budgam. It is pleaded that the petitioner being eligible and highly qualified with post graduation and M Phil degree to his credit applied for the post. He was called for the interview in which he faired well and was awarded 15.33 points by the interview panel. However, when the final selection list was issued, the petitioner was shown to have secured 53.88 points and no credit/additional weightage was given to the M. Phil degree, which he was holding at that moment. Aggrieved by the action of the respondent board, the petitioner submitted a detailed representation before the respondents indicating therein that no weightage/points have been awarded to the M. Phil degree, due to which he has failed to make it to the select list. As per the impugned select list, the cut of point was fixed at 55.33, while as the petitioner had secured 53.83 points. Had the petitioner been awarded 2 points for obtaining the M. Phil degree as per the rules, the petitioner would have made it to the select list. 03/ It is pleaded that the petitioner filed a representation for the redressal of his grievances, but it did not find favour with the respondents. Resultantly the SSB did not consider the objections of the petitioner. It prepared the final selection list and forwarded it to the intending department for making appointments. It is also submitted that the petitioner challenged the selection list before this court through the medium of a writ petition which came to be registered as SWP no. 1797/2012 in which the court passed an interim order in favour of the petitioner directing the reservation of the post of a teacher for him in the first instance. The writ petition was finally decided by an order dated 30.09.2013 directing the respondent board to accord consideration to the case of the petitioner in light of the M. Phil degree that he holds, in accordance with the law and ensure that additional points are awarded to the said degree of the petitioner. It was also directed that the merit, after adding the points for M. Phil Degree be worked out and if the petitioner thereafter makes the grade then necessary recommendations shall be made to the competent authority. It is submitted that the recommendations were not forwarded to the Education Department by the Board which compelled the petitioner to file a contempt petition before this court in which the SSB in compliance of the judgment dated 30.09.2013, forwarded the recommendation to the Education Department. However, the petitioner is aggrieved by the action of the respondents, who allege that his appointment cannot be been given any effect from the date the orders of appointment have been issued in favour of the other candidates. The petitioner is also aggrieved by the action of the respondents in not giving him the notional and monetary benefits as prayed for in this writ petition. The petition was admitted on 19.12.2016.
04/ In their reply/objections, the respondents have pleaded that the writ petition is not maintainable inasmuch as the claim on account of retrospective effect to the appointment of the petitioner is not admissible/permissible under any law or rules because the respondent department has made the formal appointment of the petitioner as soon as his selection was recommended by the SSB. It is pleaded that since the petitioner has not performed any duties before his formal appointment in the respondent department pursuant to the selection/recommendations made by the SSB in his favour, therefore, the respondent department cannot be asked to pay any salary or wages to him for the period he has not worked in the department. 05/ The respondents have further contended that in compliance of the court directions dated 30.09.2013, the SSB considered the representation/case of the petitioner and examined it in detail and in its 89th and 90th Board Meeting, the SSB approved the case of the petitioner and accorded 02 points for his M. Phil degree, thus changing the merit position from 53.83 to 55.83. Accordingly, the SSB vide its communication dated 11.06.2015 recommended the case of the petitioner to Administrative Department for being appointed against the post of Teacher in District Budgam with the orders to place the petitioner at appropriate position according to his merit. The Administrative Department vide its communication dated 07.8.2015 sought details from Director School Education Kashmir with regard to the appointment orders issued in favour of the selected candidates along with the status of the wait-list operated for District Budgam. Accordingly, the Administrative Department was apprised vide letter dated 30.09.2015 that out of 12 slots under the wait-list in the district cadre, only 11 slots stand utilized, thus leaving only one slot vacant under item no. 384 (notice no. 078 of 2010). It is further submitted that in pursuance of the communication of SSB dated 11.6.2015, the Administrative Department vide no. Edu/Legal/K/208/2012 dated 03.02.2016 advised the Director School Education, Kashmir, to implement the directions of the Hon'ble Court in letter and spirit while passing appropriate orders in favour of the petitioner against the post of Teacher in district cadre, Budgam. Accordingly, a notification vide no. Estt-III/B-Trs/67125-28 dated 22.03.2016 was published through print media whereunder the petitioner was advised to submit his undertaking/other relevant documents/papers within seven days and also with regard to his appointment as Teacher under OM category in district cadre Budgam.
06/ It is also submitted by the respondents that on the submission of all the relevant documents/undertaking by the petitioner, his case was considered and sanction was accorded by the Director School Education Kashmir to his provisional appointment as Teacher in District Budgam, against item no. 381 (notice no. 07 of 2010) vide order no. 1116-DSEK of 2016 dated 25.6.2016, with the instruction to the Chief Education Officer, Budgam, to issue formal appointment order in his favour only after the verification of all the relevant documents/certificates. Consequently, the CEO, Budgam, vide his order no. CEOB/Estt/Apptt/Trs/16/11636-38 dated 11.08.2016 issued the formal order of appointment in favour of the petitioner and he was posted in Boys High School Shogapora, district Budgam. 07/ It is further pleaded that the petitioner while accepting his formal appointment order dated 11.8.2016 has submitted an undertaking with the answering respondents wherein he has categorically stated that he is joining the department on his own risk and responsibility, meaning thereby that the petitioner has accepted the appointment order and thereafter, after joining the department as Teacher, the petitioner cannot claim that retrospective effect be given to his appointment from the date the formal appointment order has been issued in his favour with other selected candidates, who stand selected and appointed in terms of notice no. 07 of 2010 dated 12.11.2010. It is further submitted that after accepting the appointment order and joining the place of posting, the petitioner cannot dictate his terms and conditions upon the answering respondents and force them to give him undue benefits, which are not permissible for the reason that he has neither joined as Teacher along with other selected candidates nor has he worked anywhere during the said period of his claim.
08/ Heard and considered. 09/ The moot question that arises for consideration and
determination in this case is whether or not the petitioner has to be treated on the same pedestal in which the other candidates, who competed with him in the selection process and were appointed as teachers, or, to put it in other words, whether he is entitled to the service benefits from the day when the others were appointed as teachers in furtherance of the aforesaid advertisement notice. The other allied issue that also needs to be decided is whether on the face of the undertaking that the petitioner tendered before the answering respondents accepting the terms and conditions of the employment, he is precluded to raise the aforesaid plea.
10/ A Division Bench of this High Court, in a judgement authored by me, rendered in the case of State & Another vs. Sushma Sharma & others, bearing LPA(SW) No. 201/2017, decided on 07-12-2017 directed as under :
"2.................In the aforesaid background, the respondents craved the indulgence of this Court in issuing a writ of mandamus commanding the appellant No.1 to give effect to their appointment as Teachers with effect from the year 1998, when the other selectees were appointed pursuant to the Advertisement Notice No.6 of 1996, with a further relief that all the consequential benefits with effect from 1998 be accorded to them. The learned Single Judge after assessing and evaluating the material on record along with the annexures came to the following conclusion:
"In view of the preceding analysis, I deem it appropriate to dispose of the writ petition with a direction to the respondents to accord the benefit of notional seniority to the petitioners w.e.f. the date when other candidates, who responded to the advertisement notice issued in the year 1996 were given seniority. Needless to state that the aforesaid notional seniority, which may be granted to the petitioners shall be taken into account by the respondents for the purposes of fixation of pay as well as benefits of promotion."
3. The Judgment of the learned Single Judge is lucid and clear. It does not call for any interference. The respondents herein could have not been discriminated against on the face of the appointment of Anuradha on the basis of directions of the Division Bench of this Court extended vide order dated 18.10.1999 passed in LPA No.364/1999 whereby the respondent SSRB was directed to recast the criteria for evaluation of candidature of the candidates and to make the appointments. Thereafter, on the strength of the decision of the Division Bench the said Anuradha was appointed as Teacher with effect from 24.04.2003. The case of the respondents herein was treated on a different pedestal. They were deprived of the benefit of appointment without there being any fault on their part, although their case was similarly circumstanced with that of Anuradha.
4. The learned Additional Advocate General has relied upon the law laid down in the cases of the State of Karnataka & Ors. v. C. Lalitha, (2006) 2 SCC 747 and State of Uttranchal & Anr. v. Dinesh Kumar Sharma, (2006) 1 SCC 683, in carving out a case in favour of the appellants.
5. On the basis of above, the learned Single Judge held that the dictum of law laid down above, does not have any application to the facts and circumstances of the case. The law is that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme of public employment, when the appointment is in terms of the relevant rules and after a proper competition among qualified persons, there can be no discrimination between the appointees on the same set of facts. Looking at the instant appeal from the above perspective, the case of the respondents could have not been tested and treated on different scales. It had to be judged on the same standards as were evolved in the case of Smt. Anuradha."
11/ Testing the instant case on the touch stone of the law laid down above, it needs must be said that the case of the petitioner cannot be treated on a different footing as compared to the ones, who were appointed with him in pursuance of the notification supra, issued by the Government for the appointment of the teachers in District Badgam. The law is that the adherence to the rule of equality in the public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. There can be no discrimination between the appointees on the same set of facts. The petitioner did not err anywhere. It was because of a misdemeanor on the part of the respondent - Service Selection Board (SSB) that the points that he would have secured to his credit, were not evaluated and assessed in the proper perspective. The petitioner, cannot, thus, be made to suffer for the negligence, which the SSB committed in not awarding the 02 points delineated for the M.Phil. degree, which he had to his credit. Therefore, the petitioner has to be treated on the same scale in which the other appointees, appointed vide Notification No. 07 of 2010 dated 12-11-2010 have been estimated.
12/ As regards the second contention, i.e. whether the undertaking furnished by the petitioner before the answering respondents, accepting the terms and conditions of the employment, will debar him to claim the relief which he seeks. The answer to this question is provided in the judgement dated 26-06-2018 of this Court, passed by a Single Bench, (presided over by me), in SWP 502/2016 titled Dr. Syed Javid Farooq Qadri versus State of J&K, the relevant excerpts thereof are reproduced herein below word for word and letter for letter:
"28. Qua accepting and acting upon the communication no. HME/ HRM/56/2015 dated 15th October 2015, whereby it was ordered that the unauthorized period would be decided separately, undoubtedly, the petitioner accepted the terms and conditions contained in the said communication. He had, however, no real choice before him. Had he not accepted the conditions of the aforesaid communication dated 15th October 2015, he would have been the ultimate sufferer and the same would certainly have exposed him to the hazard of finding another job.
29. The learned counsel for the respondents has insisted that once petitioner has acted upon the communication No. HME/HRM/56/2015 dated 15th October 2015, by joining the services, he is estopped in law to turnaround and reagitate the matter and this Court, therefore, cannot interfere with it. It is not possible for me to equate employees with goods, which can be bought and sold. It is SWP no.502/2016 Page 24 of 26 equally not possible for me to equate a contract of employment with a mercantile transaction between two businessmen and muchless to do so when the contract of employment is between a powerful employer and a weak employee. The actions of the State and its functionaries must be inconformity with Article 14 of the Constitution. The progression of the judicial concept of Article 14 from a prohibition against discriminatory class legislation to an invalidating factor for any discriminatory or arbitrary State action has been traced in Union of India v. Tulsiram Patel (1985) SCC 398. The principles of natural justice have now come to be recognized as being a part of the Constitutional guarantee contained in Article 14. In Tulsiram Patel's case the Supreme Court said: "The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that Article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is violation of Article 14; therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in Article 12, is charged with the duty of deciding a matter."
30. Nevertheless, in the context of the unequal bargaining power of the respondent department qua the petitioner, who was desperate for salary, the condition contained in the communication no. HME/HRM/56/2015 dated 15th SWP no.502/2016 Page 25 of 26 October 2015, qua deciding the unauthorized absence separately, through unequal bargaining power is nothing but an unconscionable covenant, forced by the respondent State on a person (petitioner) who hardly had any strength to resist the might of the respondent department. In fact, the petitioner had practically no choice in the matter and had to relinquish his claim for the period he underwent DNB Course. This type of covenant cannot be said to be right or reasonable and amounts to unconscionable contract, as has been held by the Supreme Court in the case of Central Inland Water Transport Corp. Ltd. V. Brojo Nath Ganguly (supra). The act of the respondents not granting and giving him the same benefit as has been bestowed to similarly situated person, namely, Dr Mohammad Younis, violates the Constitutional rights guaranteed to the petitioner. It is not only in cases to which Article 14 applies that the rules of natural justice come into play. As pointed out in Tulsiram Patel's case (supra), "The principles of natural justice are not the creation of Article 14. Article 14 is not their begetter but their constitutional guardian." That case has traced in some detail the genesis and development of the concept of the principles of natural justice and of the audi alteram partem rule. They apply in diverse situations and not only to cases of State action. As pointed out by O. Chinnappa Reddy, J., in Swadeshi Cotton Mills v. Union of India AIR 1981 SC 818, they are implicit in every decision-making function, whether judicial or SWP no.502/2016 Page 26 of 26 quasi-judicial or administrative. Indubitably, in certain circumstances the principles of natural justice can be modified and, in exceptional cases, can even be excluded as pointed out in Tulsiram Patel's case (supra).
31. Taking the foregoing discussion, observations and reasons together, the writ petition is allowed. The respondents are directed to treat the period undergone in training as on deputation as has been done in case of Dr Mohammad Younis vide Government Order no.812-HME of 2015 dated 18th December 2015 and give the petitioner all the service benefits for the said period, to which he is entitled to."
13/ The law laid down above provides that the inequal bargaining power is nothing but a unconscionable covenant forced by the respondents on a person (petitioner), who hardly had any strength to fight the might of the department. The petitioner had no choice in the matter and had to relinquish his claim for the period intervening between the date of the appointment of other candidates, similarly circumstanced with him.
14/ The cumulative effect of all that has been said and done above is that the petition of the petitioner is allowed with the direction to the respondents to accord the benefit of notional seniority to the petitioner with effect from the date when the other candidates, who responded to the Advertisement Notice No. 7 issued in the year 2010, were given seniority. The aforesaid notional seniority shall be taken into account by the respondents for the purposes of the fixation of pay as well as for the benefits of promotion.
15/ The petition is, accordingly, disposed of along with connected IAs.
TARIQ Mota SRINAGAR.
01-08-2018 (M.K.HANJURA)
JUDGE