Jammu & Kashmir High Court
State & Anr. vs Sushma Sharma & Ors. on 7 December, 2017
Bench: Ramalingam Sudhakar, M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No.201/2017 & MP No.01/2017
Date of order: 07.12.2017
State & Anr. V. Sushma Sharma & Ors.
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge,
Hon'ble Mr. Justice M. K. Hanjura, Judge
Appearing counsel:
For Petitioner(s) : Mr. Ravinder Gupta, AAG.
For respondent (s) : None.
i) Whether approved for reporting in : Yes/No
Law Journals etc.
ii) Whether approved for publication : Yes/No
in Press
Per M. K. Hanjura-J
1. The appellants before us are aggrieved by and dissatisfied with the judgment and order dated 09.12.2016 passed by a Single Bench of this Court in SWP No.2011/2013 connected with MP No.2947/2013 whereby and whereunder the appellants have been directed to accord the benefit of notional seniority to the respondents herein, with effect from the date when the other candidates, who responded to the advertisement notice No.6 issued in the year 1996 were given seniority, with a further direction that the aforesaid notional seniority, which may be granted to the respondents shall be taken into account by the appellants for the purposes of the fixation of pay as well as the benefits of promotion.
2. The facts as these emerge from the file are that in response to an advertisement notice issued by the Jammu and Kashmir Service Selection Recruitment Board (JKSSRB) for the post of Teachers in Jammu District, LPASW No.201/2017 Page 1 of 4 the respondents submitted their application forms. Admittedly, the respondents are Graduates and some of them hold Post-Graduation Degrees and all of them have B.Ed. Degrees to their credit. The minimum qualification prescribed for the post in question was of that the incumbent should have passed 10+2 examination. The appellants accorded 50% weightage to the marks obtained by the candidates in 12 th Class examination under 10+2 system. The respondents being more meritorious were not selected as against the said posts. They knocked at the door of this Court and filed SWP No.1615/1995, which was dismissed on 15.05.1998. Being aggrieved by the decision of the learned Single Judge, the respondents assailed the judgment dated 15.05.1998 in the Letters Patent Appeal bearing LPA No.364/1999. The said LPA came to be decided on 18.10.1999, in which the criteria laid down by the appellants for awarding more weightage to the candidates, who have passed 12 th Class examination under 10+2 system was held to be unreasonable. As a corollary to this judgment of the Division Bench, the Jammu and Kashmir Service Selection Recruitment Board reframed the criteria and re- determined the merit of the respondents herein who had applied in response to the advertisement notice issued in the year 1999. The merit of the respondents herein was considered with reference to the candidates who had applied in response to the advertisement notice issued in the year 1998. The respondents herein yet again approached this Court and filed a writ petition bearing SWP No.2052/2004, which came to be decided on 31.12.2007 with a direction to the respondents in that writ petition to re-examine the merit of the petitioners with reference to the candidates, who had participated in the selection process pursuant to the advertisement notice issued in the year 1996. This judgment and order of the learned Single Judge was assailed in an LPA, which was dismissed on 10.12.2010, as a consequence of which, the case of the respondents herein was LPASW No.201/2017 Page 2 of 4 re-assessed and re-evaluated with reference to the candidates, who had applied in pursuance of the advertisement notice issued in the year 1996 and the respondents were appointed by the Education Department. 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.
LPASW No.201/2017 Page 3 of 44. The learned Additional Advocate General has relied upon the law laid down in the cases of the State of Karnatka & 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.
6. In view of the above, the Letters Patent Appeal filed against the judgment and order dated 09.12.2016 is devoid of any merit, as a corollary to which, it stands dismissed.
Accordingly, the LPA is dismissed along with connected MP(s).
(M. K. Hanjura) (Ramalingam Sudhakar)
Judge Judge
Jammu
07.12.2017
Surinder
LPASW No.201/2017 Page 4 of 4