Jammu & Kashmir High Court
Dated: 10Th Of February vs Union Territory Of Jk & Ors on 10 February, 2021
Serial No. 105
Admission Cause List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPA No.84/2020
CM No. 4291/2020
Dated: 10th of February, 2021.
Manu Kapoor
.....Appellant(s)
Through: -
Mr Ashish Sharma, Advocate.
V/s
Union Territory of JK & Ors.
.....Respondent(s)
Through: -
Mr Ravinder Gupta, AAG for R-1 to 3
Mr Ayjaz Lone, Dy. AG for R-4 & 5
Mr S. H. Rather, Advocate for R-6.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr Justice Puneet Gupta, Judge.
(JUDGMENT)
{Per Magrey; J (Oral)}:
01. This intra Court appeal is directed against the judgment dated
24th of June, 2020, passed by the learned Single Judge in SWP
No.2354/2025, whereby the petition of the Writ petitioner/ appellant herein
stands disposed of on the following terms:
".....
3. Having heard learned counsel for the parties and perused the
record, I am of the considered view that in view of the judgment rendered
in SWP No.623/2015 today, this writ petition has virtually rendered
dependent upon the outcome of consideration of Nitu Sudan, who is
petitioner in SWP No.623/2015 and has been found entitled to be
considered in reference to Advertisement Notification No.06/2013. In case,
she makes the grade, she would be entitled to be appointed against the
post reserved vide interim order dated 02.03.2015 (supra). However, in
case, because of her merit, respondent No.6 does not make the grade and
is not selected and appointed against the reserved post, the case of the
petitioner herein, if she is next in the order of merit, shall be considered
against the aforesaid post. It is made clear that in case the petitioner
herein is ultimately found to be entitled to appointment, she shall be
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
LPA No. 84/2020
CM No. 4291/2020
appointed retrospectively with effect from the date, the candidates selected
pursuant to Advertisement Notification No.06/2013 were so appointed.
The retrospective appointment, however, shall be notional in nature and
would qualify for pecuniary and other benefits prospectively with effect
from the date of issuance of appointment order.
4. Since the consideration of the case of the petitioner herein
depends upon the merit of consecration of the case of Nitu Sudan,
respondent No.6 herein, as such, be undertaking according consideration
to the case of Nitu Sudan, respondent No.6 herein and completed within
one month thereafter."
02. The case of the Writ petitioner/ appellant, as projected in this
appeal and put in a nutshell, is that in response to advertisement notification
Nos. 05/2013 and 06/2013 issued by the Service Selection Board, she
submitted her application forms for the posts of Teacher for District Cadre
Poonch. The Writ petitioner/ appellant claims to have been shortlisted only
for interview for 231 posts notified in terms of Notification No. 06/2013.
Upon finalization of the process of selection, the Writ petitioner/ appellant,
on the basis of her merit, claims to have been placed in the waiting list at S.
No.4 and the respondent No.6 was placed in the waiting list with referen ce
to Notification No.05/2013. After the issuance of the select list, as stated, as
many as 18 candidates failed to join, resulting in the Chief Education
Officer, Poonch, requesting the Director, School Education, Jammu for
permitting him to operate the wait list. It is pleaded by the Writ petitioner/
appellant that notwithstanding the fact that she, being figuring at S.No.4 of
the wait list and having been cleared by respondents 1 and 2 for appointment
as Teacher against a shortfall vacancy with reference to advertisement
notification no.06/2013 and all other candidates except the petitioner having
been appointed, the petitioner was denied the appointment in view of order
dated 2nd of March, 2015 passed in SWP No.623/2015 filed by the
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
LPA No. 84/2020
CM No. 4291/2020
respondent No.6 herein, whereby one post of Teacher was kept reserved.
Feeling aggrieved, the Writ petitioner/ appellant approached the Writ Court
with SWP No.2354/2015 pleading therein that the respondent No.6, who had
not applied pursuant to advertisement notification No.06/2013, had no right
or interest in stalling the one post that has fallen vacant due to non-joining of
a selected candidate pursuant to notification No.06/2013. The learned Single
Judge, in terms of the impugned judgment, disposed of the petition filed by
the Writ petitioner/ appellant with the observations as reproduced in
Paragraph No.1 of this judgment hereinabove.
03. We have heard the learned counsel for the parties, gone through
the pleadings on record and have considered the matter.
04. From the perusal of the pleadings placed alongside the file, it
appears that prior to filing of the petition by the Writ petitioner/ appellant
herein, one more petition was filed by one Ms Nitu Sudan/ respondent No.6
herein, which was heard and decided by the learned Single Judge in terms of
judgment dated 24th of June, 2020, i.e., the same date on which the petition
of the Writ petitioner/ appellant herein was decided. The case of the Writ
petitioner/ appellant herein before the learned Single Judge was that since
the respondent No.6 had not applied pursuant to advertisement notification
No.06/2013, she had no right or interest in stalling one post that has fallen
vacant due to non-joining of a candidate selected pursuant to advertisement
notification No.06/2013. The learned Single Judge, however, in the Writ
petition filed by the respondent No.6 herein, i.e., SWP No. 623/2015, while
disposing of the same, came to the conclusion that given the stance taken by
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
LPA No. 84/2020
CM No. 4291/2020
the respondent No.2, it had no other option but to believe the petitioner
therein/ respondent No.6 herein that she had submitted two separate
application forms in response to advertisement notification Nos. 05 of 2013
and 06/2013. Having concluded so, the learned Single Judge observed that in
case the respondent No.6 herein/ petitioner in SWP No.623/2015 makes the
grade, she would be entitled to be appointed against the post reserved
pursuant to interim order dated 2nd of March, 2015 passed in SWP
No.623/2015 and, in the event, in view of her merit, the respondent No.6/
petitioner in SWP No.623/2015 does not make the grade and is not selected/
appointed against the reserved post, the case of the Writ petitioner/ appellant
herein, if she is next in the order of merit, shall be considered against the
aforesaid post. In short, the learned Single Judge, having found the
respondent No.6/ petitioner in SWP No.623/2015 to have applied in
reference to advertisement notification No. 06/2013, kept the consideration
of the case of the Writ petitioner/ appellant herein subject to consideration of
the case of the respondent No.6/ petitioner in SWP No.623/2015 on the basis
of her merit position.
05. On a careful analysis of the aforesaid facts, we feel that once
the learned Single Judge, in the petition filed by respondent No.6 herein/
petitioner in SWP No.623/2015, came to the conclusion that the respondent
No.6 herein had, in fact, applied for the posts in question in relation to
advertisement notification No.06/2013, there was no other option left for the
learned Single Judge to take the course as adopted by it in the impugned
judgment, i.e., directing for consideration of the case of the respondent No.6
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
LPA No. 84/2020
CM No. 4291/2020
herein before any such consideration is accorded to the case of the Writ
petitioner/ appellant herein on the basis of the merit position. Needless to
mention here that the Writ petitioner/ appellant has also assailed the
judgment dated 24th of June, 2020 passed by the learned Single Judge in
SWP No.623/2015 filed by the respondent No.6 herein through the medium
of a separate appeal, being LPA No. 85/2020. In this context, we do not find
any illegality or perversity in the impugned judgment passed by the learned
Single Judge as would warrant its interference from this Court.
06. Accordingly, this appeal fails and shall stand dismissed as such,
alongwith the connected CM(s). Interim directions, if any, subsisting as on
date, shall stand vacated.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
JAMMU
February 10th, 2021
"TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2021.02.10 16:00
I attest to the accuracy and
integrity of this document
