Jammu & Kashmir High Court - Srinagar Bench
Reserved On: 20.09.202 vs State Of Jk And Others on 23 September, 2021
HIGH COURT OF JAMMU AND KASHMIR AT
SRINAGAR
SWP no. 296/2018
CM no. 854/2020
Reserved on: 20.09.2021
Pronounced on: 23.09.2021
Waheeda Yaseen Khan
...Petitioner (s)
Through:- Mr Aijaz Ahmad Chesti, Advocate
v.
State of JK and others
...Respondents
Through:- Mr Shah Aamir, AAG
Mr M. I. Qadiri, Sr. Advocate with
Mr Ahmad Javed, Advocate
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
JUDGMENT
1. By the instant petition, petitioner seeks a writ of certiorari to the effect
that (i) Appointment order of respondent no. 10 as R-e-T teacher made in terms
of Order No. ZEO/R/RT-11/746-48 dated 28.07.2011; (ii) Enquiry issued under
No. DCV/LRA/Enquiry/2011/57-59 dated 28.4.2011, be quashed. Petitioner has
further sought a writ of Mandamus to the effect that petitioner be appointed as
R-e-T teacher being next in merit after Respondent no. 8, on the grounds taken
in the memo of petition.
2. To appreciate the issue in its proper perspective, a brief look at the events,
as they happened, is desired, thus:
3. A notification dated 11.11.2010, for appointment of two number of
Rehbar-e-Taleem Teachers for upgraded Primary School at New Colony
Ompora, Budgam, falling under Ward no. 8, issued by respondent no. 7-Zonal
Education Officer, Budgam, was responded to besides others, by the petitioner
and the respondent no. 10 by offering their candidature for the said posts. The
eligibility for the posts in question as prescribed in the Notification was 10+2 or
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above level with Mathematics and Science background aged between 18 to 37
years as on 01.01.2010. Subsequently, a panel was drawn by the Zonal
Education Officer and the petitioner is reflected at serial no. 3 therein while as
the respondent no. 10 is shown to be at serial no. 2.
4. It is further stated in the writ petition that the respondent no. 10 is hailing
from Batpora Handwara and is not a resident of the area for which the posts in
question were advertised and the respondent no. 10 by way of fraud has
managed his residential status. In that view of the matter, the petitioner, feeling
aggrieved of the inclusion of the respondent no. 10 in the panel, filed a
representation before respondent no. 3 objecting to the inclusion of respondent
no. 10 in the panel. Besides, the Welfare Committee of Government Housing
Colony Ompora, Budgam, is also stated to have objected to the inclusion of
respondent no. 10 in the panel on the same ground of not being the resident of
the area. It is further stated in the writ petition that even the PRC produced in
support of his claim by the respondent no. 10 does not show him to be the
resident of the Ward No. 8 where the posts are sanctioned but of Ompora
Village.
5. Subsequent thereto, the petitioner was constrained to file a civil suit
questioning the inclusion of respondent no. 10 in the panel.
6. Thereafter, the Assistant Commissioner, (Rev) Budgam, has vide No.
DCB/LRA/Enquiry/2011/57-59 dated 28.04.2011 returned a finding, in an
enquiry initiated on the application of the petitioner, to the effect that out of the
two candidates respondent no. 10 has the PRC of village Ompora Tehsil
Budgam while as the petitioner is having PRC of Srinagar, therefore, respondent
no. 10 deserve to be considered for selection to the ReT post.
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7. Thereafter, the interim relief application of the petitioner was rejected by
the court below by vacating the interim order dated 12.2.2011 in terms of order
dated 29.04.2011 providing therein that the tentative list challenged is not the
final list but subject to objections, therefore, the petitioner/ plaintiff ought to
have filed objections to such tentative list.
8. Thereafter, the official respondents issued an appointment order in favour
of respondent no. 10 which the petitioner came to know when a writ petition,
SWP no. 2192/2016 came to be filed by the respondent no. 10 before this Court,
and the petitioner represented/ objected to such appointment at every
administrative level but could not get justice, therefore, was constrained to file
the writ petition in hand.
9. Aggrieved of the action initiated against him as indicated hereinbefore,
the petitioner has filed this writ petition to seek the relief as reflected in the
foregoing paragraphs on the grounds, that: the appointment earned by the
respondent no. 10 is on the strength of the fraud documents as such liable to set
at naught; petitioner being meritorious and eligible to hold the post of R-e-T
teacher advertised in ward no. 10 Govt Housing Colony Ompora Budgam which
stands usurped by the respondent no. 10, therefore, the appointment order
deserves to be quashed; the appointment order in question being violative of
doctrine of legitimate expectation warrants to be quashed more so when earned
by activating fraud vis-à-vis issuance of fraud documents both in terms of PRC,
voter list and other allied documents, therefore, the appointment order in
question deserves to be quashed; the impugned appointment order is also
violative of rule of law, equity and good conscience, therefore, merits to be set
at naught
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10. Upon notice, the respondents appeared and filed their reply resisting the
claim of the petitioner.
11. The respondents 1, 2, 6, 7, 11 and 12 have filed objections to the stand of
the petitioner stating inter alia that the petitioner has raised disputed questions
of fact which cannot be gone into in a writ petition; the impugned order does not
suffer from any legal infirmity, as such the writ petition is liable to be dismissed;
that the petitioner has relinquished her right to challenge the impugned order as
she did not choose to do so while filing her earlier writ petition and the
judgment passed in the said writ petition, SWP no. 1268/2017, has earned
finality. It is further stated in the reply filed on behalf of the respondents 1, 2, 6
& 7 that petitioner had filed a writ petition, SWP no. 1268/2017 which came to
be disposed of by this Court in terms of judgment dated 15.02.2018, providing
therein that petitioner can avail the liberty to take recourse to challenge the
enquiry with regard to PRC and domicile of respondent no. 10 by way of
revision and in case he is of the opinion that the said respondent has obtained the
documents by playing fraud, he can file FIR against the said respondent before
the concerned police.
12. The respondents 11 and 12 have additionally adverted that petitioner was
ineligible for the post in question as she did not have the requisite knowledge of
Science or Math at 10+2 level which was a pre-requisite for appointment as ReT
teacher.
13. Heard learned counsel for the parties and considered the submissions
made.
14. The admitted facet of the case is delineated in the first instance hereunder,
thus:
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A post of ReT teacher was available in Upgraded School at ward
No. 8 of Government Housing Colony, Ompora, Budgam which was
notified by the official respondents. The petitioner and respondent no. 10
applied and participated in the section process that commenced
subsequently and a panel was drawn in which both petitioner and
respondent no. 10 figure at serial no. 3 and 2 respectively. Before
appointment is made against the said post, a controversy arose as regards
the residential status of the respondent no. 10 who stood at serial no. 2,
and had a preferential right of appointment. This led to filing of a
vociferous litigation which includes a civil suit filed by the petitioner
wherein the selection of respondent no. 10 came to be challenged; Writ
petition SWP no. 2192/2016 filed by the respondent no. 10 seeking
direction in the name of respondent no. 2 therein to regularize his services
as a General Line Teacher for having completed more than five years
continuous services as ReT teacher; Writ Petition, SWP no. 1268/2017
filed by the petitioner seeking a direction in the name of respondents 3
and 4 therein to hold an enquiry with regard to Permanent Resident
Certificate (PRC) and domicile of respondent no. 8 and to enquire the
veracity of the documents submitted by the respondent no. 8 (respondent
no. 10 herein) the petitioner had further prayed for a direction in the anme
of Crime Branch, Kashmir to hold an enquiry with regard to providing of
favorite documents to respondent no. 8 therein. Apart from these
petitions, the writ petition on hand as also two more petitions which have
been delinked by the order dated 20.09.2021 are also pending on the
subject.
15. The petitioner has filed a Civil Suit for declaration and permanent
injunction before the court below with the following relief:
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"In the premises, it is therefore, prayed that a decree in
the nature of declaration may be passed in favour of the
plaintiff and against the defendants declaring the plaintiff
to be entitled for appointment of RET teacher on the
basis of merit in the Govt. Middle School, Govt. Housing
colony Ompora Budgam Kashmir as being the permanent
resident of District Budgam.
A decree in the nature of mandatory injunction may be
passed in favour of the plaintiff and against the
defendants thereby commanding the defendants to issue
the appointment order of RET teacher for Govt. Middle
School Govt. Housing Colony Ompora Budgam in favour
of the plaintiff on the basis of merits as being the
permanent resident of district Budgam."
16. The petitioner has thereafter filed an amended plaint adding a following
relief clause therein:-
"A decree of mandatory injunction in favour of the
plaintiff and against the defendants thereby commanding
upon defendants 1 to 3 not to issue any order of
appointment viz RET Middle School Ompora Housing
Colony District Budgam in favour of defendant no. 4."
17. The Court below for adjudication of the matter has framed following
issues for determination:
"1. Whether the plaintiff is the Permanent Resident of
Ward No. 8 (newly colony Ompora, Budgam) and have
the eligibility to be appointed as ReT for the newely
upgraded school at Ompora Budgam in pursuance of
notification challenged in this suit?(OPP)
2. Whether the defendant no. 4 is not the permanent
resident of Ompora Colony and as such having no right
to seek appointment against the said notification? OPP
3. Whether the eligibility fixed by the Chief Education
Officer, Budgam in pursuance of the alleged notification
has been fulfilled by the plaintiff/ defendant no. 4
irrespective areas of their domicile? ( OP Parties)
4. Relief:- To what relief the parties are entitled?
18. The writ petition no. 2192/2016 filed by the respondent no. 10 seeking
regularization of his services has been disposed of by this court in terms of order
dated 31st December, 2016, with a direction to the respondent no. 2 therein to
decide the claim of the petitioner for regularization of his services as General
Line Teacher in accordance with the law and rules applicable by a speaking
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order within a period of two months from the date of receipt of certified copy of
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the order. While so ordering, it has been made clear by the court that it has not
expressed any opinion with regard to the merits of the case.
19. The Writ Petition, SWP no. 1268/2017, filed by the petitioner seeking the
relief as taken note of in the foregoing paragraphs, has been disposed of by this
Court in terms of order dated 15.02.2018 in the following terms:-
"Thus from perusal of the relief claimed by the petitioner
in the civil suit, as well as issues framed by the trial
court, it is evident that the factum of residence of
respondent no. 8 is in issue before the trial court. The
petitioner cannot be allowed to prosecute two remedies
simultaneously. It is also relevant to mention here that
enquiry with regard to PRC and domicile of respondent
no. 8 has already been held and in case the petitioner is
aggrieved of the same, he is entitled to take recourse to
challenge the same by way of revision. Needless to state
that in case the petitioner is of the opinion that
respondent no. 8 has obtained the documents by playing
fraud, the petitioner is at liberty to file first information
report against respondent no. 8 before the concerned
official which shall be dealt with in accordance with law
by concerned SHO in view of the law laid down in Lalita
Kumari v. Government of Uttar Pradesh [2014 Vol. 2
SCC 1]. The petitioner shall also be at liberty to file the
documents before the trial court, if so advised.
With the aforesaid directions, the writ petition shall stand
disposed of along with connected MP. Interim direction
shall stand vacated."
20. Now by the present writ petition which is filed by the petitioner on 19 th
February, 2018, the quashment of appointment of respondent no. 10 as R-e-T
teacher made in terms of order No. ZEO/R/RT-11/746-48 dated 28.07.2011 is
sought besides the quashment of enquiry issued in terms of Nos.
DCV/LRA/Enquiry/2011/57-59 dated 28.4.2011; 621/5A/PSB/17 dated
27.04.2017 and CEOB/17/22699-700 dated 28.09.2017; with a further prayer
that appointment order in favour of the petitioner be ordered to be issued with
effect from the date the appointment order has been issued in favour of
respondent no. 8.
21. While hearing the matter, the learned senior counsel for the respondent
no.10 made reference to case law reported as 1) 2013 (iii) SLJ 777; 2) 2000 (ii)
SLJ 574; 3) 2000 (i) SLJ 41; 4) AIR 2013 SC 487; 5) AIR 1977 SC 1112; 6)
AIR 2016 SC 3006; 7) AIR 2009 SC 571; 8) AIR 2004 Rajasthan 247; 9) AIR
1996 SC 497; 10) AIR 1999 SC 517; 11) AIR 2008 SC 1614; 12) 2010 (ii) SLJ
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580; 13) 2007 (ii) SLJ 838; 14) AIR 1990 SC 185; 15) 1989 KLJ 284; 16) 1991
SLJ 185; 17) AIR 2013 SC 487; 18) AIR 1964 SC 962; 19) AIR 1976 SC 2438
22. Given the fact that the petitioner has filed a civil suit on the subject and a
writ petition also before filing the instant writ petition, therefore, without
returning finding on all the points raised by the parties, it is thought appropriate
to first address a question as to whether; the writ petition survives consideration
for the reliefs prayed for?
23. To have the question answered one needs to appreciate the events as they
took place and the first event that comes to the fore would be the appointment of
the respondent no. 10 as ReT teacher made in the year 2011 which had to be
questioned by the petitioner under appropriate proceedings which has not been
done although a civil suit is filed by the petitioner before the competent court of
jurisdiction but that challenged the tentative selection of respondent no. 10 as
the appointment order had not been issued at that point of time. There is a copy
of the amended plaint also on records in which the petitioner had additionally
sought a restraint in the name of defendants/ respondents herein for issuing any
appointment order in favour of respondent no. 10, but there is nothing on record
to show that any restraint was ever issued by the court. However, it is quite
apparent that no appointment order had been issued until then.
24. Next event that takes place and assumes importance is the filing of writ
petition by the petitioner bearing SWP no. 1268/2017, presented on 6th July,
2017, but the petitioner did not choose to lay a challenge to the appointment of
respondent no. 10 when admittedly the appointment order was issued way
before in the year 2011 and the petitioner was quite aware of it.
25. The situation would have been different in case the petitioner had not filed
any writ petition on the subject after the issuance of the appointment order in
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favour of respondent no. 10 as in that case the court had to look at the aspect of
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delay and then go to the merits of the case, but since the petitioner has been
aware of the appointment order and had filed a writ petition on the subject
afterwards without questioning the same, the court would be required to see as
to what effect does it carry on the merits of the case in hand. Whether it amounts
to relinquishment of the right to challenge the appointment of respondent no. 10
or not?
26. Admittedly the petitioner on approaching this court in the first round of
litigation had chosen not to challenge the appointment order may be because of
pendency of the suit challenging selection of respondent no. 10, but on decision
of the writ petition, SWP no. 1268/2017, rendered on 15.2.2018, the petitioner
can by no stretch of imagination challenge the appointment as the challenge will
be governed by the decision rendered in the writ petition, SWP 1268/2017.
27. Parties are bound by the decision which is not challenged and is in force
as on date, therefore, there is no scope as far as quashment of appointment of
respondent no. 10 is concerned on whatsoever grounds unless the trial court
decides the issue regarding the factum of residence of respondent no. 10. On this
finding alone, the challenge to appointment in the instant writ petition is not
available. But the petitioner is at liberty to lay challenge to the appointment in
the pending suit on available pleadings if the law so permits.
28. In light of the above findings based on the judgment/ final order of this
court rendered in a writ petition, SWP no. 1268/2017, the petitioner's right,
depending upon the decision of the Civil Court, is reserved to further relief in
the said suit.
29. Having regard to what has been stated hereinbefore, the writ petition is
disposed of, along with all CMs, in the following manner:
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i) Writ Petition for the relief sought qua quashment of appointment of
respondent no. 10 is dismissed.
ii) Petitioner is at liberty to seek further relief in the pending civil suit
on the strength of the judgment/ final order rendered by this court
in a writ petition, SWP no. 1268/2017, if available under law.
The writ petition along with all CMs is disposed of on the above lines.
Records be returned to Mr Shah Aamir, AAG, against receipt.
It goes without saying that the court below shall adjudicate upon the
merits of the case without getting influenced by any of the observations made by
this Court while deciding the instant writ petition.
(Ali Mohammad Magrey)
Judge
SRINAGAR
23.09.2021
Amjad lone PS
Whether approved for reporting: Yes/No.
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