Commissioner/Secretary To Govt vs Unknown
2023 Latest Caselaw 172 j&K

     HIGH COURT OF JAMMU& KASHMIR AND LADAKH
                     AT JAMMU
                                                  Reserved on : 23.12.2022
                                                  Pronounced on: 07.02.2023

                                                  LPA No. 237/2019 (O&M)


 Commissioner/Secretary to Govt.                   .....Appellant(s)/Petitioner(s)
 School Education Department and
 Ors.
                       Through: Mr. Raman Sharma, AAG
                                Mr. Sunil Malhotra, learned G.A
                  vs
                                                                ..... Respondent(s)
 Ranjana Sharma


                       Through: Mr. R. K. Jain, Sr. Advocate with
                                Mr. Mohit Jain, Advocate
                                Mr. Abhinav Sharma, Sr. Advocate with
                                Ms. Supriya Gandotra, Advocate

 Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
        HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                                 JUDGEMENT

Per Oswal-J

1. The respondent No. 1 had filed the writ petition for quashing the order

dated 01.01.2005, whereby the respondent No. 2 was appointed as

Rehbar-E-Taleem in Middle School, Choi, Village Tridwan, Lakhanpur

Zone, District Kathua and also prayed for directing the appellants to

consider the claim of respondent No.1 for appointment as Rehbar-E-

Taleem, in Middle School, Choi, Village Tridwan on account of her

having higher merit than the respondent No. 2.

2. It was stated that as per the advertisement notice dated 29.06.2004, it was

obligatory for all the eligible candidates to submit their applications within

15 days from the date of advertisement notice alongwith all the

testimonials and complete the other formalities. Pursuant to the said

advertisement notice, the respondents applied for the post of Rehbar-E-

Taleem in Middle School Choi, Village Tridwan. The merit of the

respondent No.1 was higher than that of the respondent No. 2 according to

their qualification and percentage of marks obtained in the academic

examinations. The appellant No. 4 accepted the B. Ed qualification of

respondent no. 2 after the cut-off date as provided in the advertisement

notice and considered the same and in the panel placed the respondent No.

2 over and above the respondent no. 1. It was contended by the respondent

No.1 that the appellant No.4 entertained the higher qualification obtained

by the respondent No. 2 after the cut-off date in order to accord undue

benefit to the respondent No. 2 and as such the order of appointment dated

01.01.2005 was issued in her favour. The respondent No. 1 claimed to

have made two representations to the appellant No. 3 and when the said

representations did not elicit any response, the respondent No. 1 filed the

writ petition.

3. The appellants in their objections to the writ petition stated that the

respondent No. 2 was selected as Rehbar-E-Taleem at Middle School

Choi, Village Tridwan because her qualification (B.Ed) was higher than

the respondent No.1. It was also stated that the appellant No. 4 in

compliance to order number DSEJ/NG/SSA/10472-77 dated 12.10.2004

updated the panel and entertained the higher qualification after the cut-off

date and accordingly the respondent No. 2 was selected as she was having

higher merit than the respondent No. 1. It was further averred by the

appellants that respondent No. 2 had passed B. Ed on 07.10.2004, whereas

the above-mentioned order was issued on 12.10.2004.

4. The respondent No. 2 defended her selection on the ground that she was

having the qualification of B Ed prior to the finalization of panel, which

was duly considered by the members of Village Education Committee and

there was no bar in the advertisement notice for giving due weightage to

the additional qualification acquired after the expiry of the last date of the

submission of the application form.

5. The respondent No.1 filed a supplementary affidavit to the objections filed

by the appellants and respondent No.2, wherein it was stated that order

bearing No. DSEJ/NG/SSA/10472-77 dated 12.10.2004 relied upon by the

appellant No. 4 for entertaining the higher qualification of the respondent

No. 2 acquired after the cut-off date, pertained to District Udhampur,

District Rajouri, District Poonch and District Doda only and was issued in

reference to notification dated 27.08.2004 bearing No DSEJ/1872-79. The

said order was never made applicable to Kathua District. It was also stated

that the Division Bench of this Court has upheld the judgment passed in

SWP No. 1454/2003 titled "Sikandaya vs. State" decided on 28/05/2004

wherein it was held that the qualification attained after the cut-off date

cannot be made the basis for the appointment.

6. The learned writ court after perusing the record and hearing the parties

vide its judgment dated 06.03.2018, taking into consideration that the

respondent No. 2 after completion of 5 years of her engagement as

Rehbar-E-Taleem had been regularized as General Line Teacher in the

year 2010, without disturbing her appointment, directed the appellant No.

4 to issue appointment order in favour of respondent No. 1 against the post

of General Line Teacher with all consequential benefits without monetary

benefits on the analogy of respondent No. 2. The appellant No.2 was also

directed to fix the seniority of the respondent No.1 over and above the

respondent No. 2. The appellant Nos. 1 and 2 were also directed to create

supernumerary post for the respondent No. 1 and appoint her against the

said post, if there is no post of General Line Teacher available as on date

in the said school.

7. The judgment dated 06.03.2018 has been impugned by the appellants on

the grounds inter-alia that the notification issued by the respondent No. 2

bearing number DSEJ/NG/SSA/10472-77 dated 12.10.2004 categorically

provided that the application forms filled earlier were to be included in the

new panels and the panels were to be operated without any further

confusion. The B.Ed qualification of the respondent No. 2 was considered

by appellant no. 4 on the basis of the said notification. It is also stated the

respondent No. 2 was possessed of higher qualification before displaying

of the final panel and she was appointed as Rehbar-e-Taleem in the best

interest of the department. The appellants have also pleaded that the

scheme has been closed vide order dated 16.11.2018, therefore, no relief

can be granted to the respondent No.1.

8. We had heard the arguments of Mr. Sunil Malhotra, learned G.A on behalf

of appellants and the senior counsels appearing for both the respondents

on 22.09.2022 and posted the matter for 27.09.2022 to enable the parties

to furnish written submissions. The written submissions were furnished by

the appellants and respondent No.1. When the matter was listed on

23.12.2022, Mr. Raman Sharma, AAG appeared for the appellants. Mr.

Raman Sharma and Mr. Malhotra argued that the preference was required

to be given to the candidates holding B.Ed degree and further that if the

learned writ court found the engagement of respondent No. 2 bad in law,

then her engagement should have been quashed. The same arguments have

been reproduced in the written submissions by Mr. Malhotra learned

Government Advocate and additionally, it is also stated that R-e-T

Scheme has been closed in the year 2018.

9. Mr. R.K Jain, learned senior counsel appearing on behalf of respondent

No. 1 argued that order relied upon by the appellant No. 4 was not

applicable in case of District Kathua and further that because of the wrong

committed by the appellants, the respondent No.1 cannot be made to

suffer. He further argued that the closure of the scheme would have no

effect as the respondent no.1 has earned the judgment prior to the closure

of scheme.

10. Mr. Abhinav Sharma, learned senior counsel, appearing on behalf of

respondent No. 2 vehemently submitted that the arguments advanced by

Mr. Malhotra that if the engagement of the respondent No.2 was bad so

the learned writ court should have quashed the same, are contrary to the

case projected and pleaded by the appellants not only before this Court but

also before the writ court. He further submitted that the appellants had

been defending the engagement of the respondent No. 2 not only before

writ court but also in their pleadings in the form of memo of present

appeal and now the appellants cannot take u-turn and oppose the

engagement of the respondent No. 2, who has now been working for the

last 17 years with the appellants.

11. Heard and perused the record including the writ court judgment.

12. Following issues arise for consideration of this court:

A. Whether the notification bearing number DSEJ/NG/SSA/10472-

77 dated 12.10.2004 issued by the appellant No. 2 could have been

relied upon for entertaining the qualification obtained by the respondent

No.2 and whether the same was applicable for the District Kathua ?

B. Whether the qualification acquired by the respondent No. 2 after

the cut-off date could have been considered by the appellant No. 4?

C. Whether the closure of Rehbar-E-Taleem Scheme vide order No.

16.11.2018 would have any effect upon the case?

Issue No. A:

13. Whether the notification bearing number DSEJ/NG/SSA/10472-77 dated

12.10.2004 issued by the appellant no. 2 could have been relied upon for

entertaining the qualification obtained by the respondent No.2 and

whether the same was applicable for the District Kathua ?

The notification dated 12.10.2004 issued by the appellant No.2 is

reproduced as under:

" It has been noticed that some zonal education officers are confused as to whether the applications received before the issuance of last notification vide this office number DSEJ/1872-79 dated 27.08.2004 have to be included in the panel or not. It is therefore clarified that the applicants who had applied earlier before the issuance of said notification should also be included in the panel and the panel should be updated without any further confusion."

14. A plain reading of above notification would reveal that it simply meant

that the applicants who had applied earlier to the notification dated

27.08.2004 were required to be included in the panel. The respondent

No.2 admittedly acquired the qualification of B.Ed only on 07.10.2004 i.e.

after the issuance of notification dated 27.08.2004 and as such, that

qualification could not have been considered by the appellant No. 4 by

placing reliance upon the order bearing number DSEJ/NG/SSA/10472-77

dated 12.10.2004, while preparing the panel. Further, a perusal of the

notification bearing No. DSEJ/1872-79 dated 27.08.2004 reveals that the

same has been issued is respect of selection of candidates for Rehbar-e-

Taleem Teachers for Districts Poonch, Rajouri, Udhampur and Doda only

and not for District Kathua. The conclusion drawn by the learned writ

court that the order dated 12.10.2004 could not have been relied upon by

the appellants, cannot be faulted with.

Issue No. B:

15. Whether the qualification acquired by the respondent no. 2 after the cut-

off date could have been considered by the appellant No. 4?

A perusal of advertisement notice No. DSEJ/RET/4811-17 dated

29.06.2004 reveals that applications were required to be submitted to the

concerned Zonal Education Officers of the respective zones under the

proper receipt within 15 days of appearance of the advertisement. This is

admitted case of appellants and the respondent No.2 that the respondent

No.2 acquired B.Ed qualification only on 07.10.2004 i.e. after the 15 days

of appearance of the advertisement. In such scenario, the appellants could

not have entertained the higher qualification of respondent No.2 obtained

by her after the cut-off date. It would be advantageous to take note of

judgment of Hon'ble Apex Court in in Rakesh Kumar Sharma v. State

(NCT of Delhi), 2013 (11) SCC 58, where in it was held as under:

"22. It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement."

17. In Ashok Kumar Sonkar v. Union of India, (2007) 4 SCC 54, Hon'ble

Apex Court dismissed the appeal filed by the candidate, who was not

possessing requisite qualification on the cut-off date by observing as

under:

20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application."

18. Both the above judgments have been followed by Apex Court in its latest

decision in Himachal Pradesh State Electricity Board ltd. And anr. Vs.

Dharminder Singh reported in MANU/SCOR/117249/2022.

The learned writ court too has arrived at this conclusion by placing

reliance upon the two judgments of Apex Court in Ashok Kumar

Sharma vs. Chander Shekhar (1997) 4 SCC 18 and U.P Public Service

Commission vs. Alpana (1994) 2 SCC 723.

Issue No. C:

19. Whether the closure of Rehbar-E-Taleem Scheme vide order No.

16.11.2018 would have any effect upon the case?

A perusal of order dated 16.11.2018 reveals that all advertisement notices

for engagement of R-e-T teachers or panels prepared have been

cancelled/withdrawn where no engagement orders have been issued. In the

instant case, the appointment of the respondent No. 2 was impugned by

the respondent No.1 by way of writ petition filed in the year 2006.

Without examining the validity of the closure scheme, this Court is of the

considered view that the closure of the Rehbar-E-Taleem vide order dated

16.11.2018 would have no bearing upon the instant case, as in this case

the validity of appointment order was in question.

20. We have examined the judgment passed by the learned writ court and the

learned writ court has rightly come to the conclusion that the respondent

No. 1 was having more merit than the respondent No. 2 and she has not

only been deprived of a right of engagement as Rehbar-e-Taleem but also

the subsequent regularization as General Line Teacher. The appellants

cannot be heard to say that the appointment of respondent No. 2 should

have been quashed particularly when the appellants had been defending

the selection of respondent No. 2 not only before the writ court but also

before this Court. There is nothing on record that the respondent No. 2

was privy to any fraud or misrepresentation as the appellant no. 4 could

have rejected the B.Ed qualification of the respondent No.2 acquired by

her but he placed misplaced reliance upon the notification and considered

the same for preparation of panel that subsequently, led to issuance of

appointment order in her favour. We are not inclined to accept the

argument of Mr. Malhotra that judgment of writ court be modified to the

extent of quashing the appointment of the respondent No.2, more

particularly, when no challenge to that extent has been thrown to the

judgment impugned in the appeal. Otherwise also, the appellant has been

working for 17 years by now and it would be very harsh to show her a

door at this stage when she has become overage for employment under the

Union Territory. This Court deems it appropriate to take note of two

decisions of Apex Court. In Rajesh Kumar v. State of Bihar, (2013) 4

SCC 690 Hon'ble Apex Court held as under:

21. There is considerable merit in the submission of Mr Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter se merit position may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list."

21. In Tejinder Kaur v. Raj Kumari, (2009) 1 SCC 177, Apex Court further

held as under:

"13. In view of the aforesaid peculiar situation we set aside that part of the order of the High Court by which their selection was set aside. It would be inequitable to deprive them the benefits of what had been extended to them. Deficiency, if any, in not allotting proper marks as done by the authorities cannot deprive them of the benefit which they have obtained. It is not shown that they were a party to the wrong allotment of marks at the original stage. The position may have been different if that was so. That being so, their appeal is allowed. But the appellant Raj Kumari has not made the grade. Therefore, her appeal deserves to be dismissed, which we direct. There is no substance in the plea that some of the appellants in the other appeal had secured lesser marks than her. But because of the circumstances highlighted above, we feel that the analogy cannot be extended to her. The appeals are accordingly disposed of."

22. In view of above facts and circumstances, we do not find any merit in this

appeal. The appellants should have realized their mistake and resorted to

corrective measures on 29.11.2004 when the respondent No.1 brought the

error/mistake to the notice of the appellant No.2 and even when the writ

petition was filed in the year 2006 but instead they continued to defend the

wrong order of appointment and even after getting adverse judgment, they

did not realize their mistake and filed appeal thereby unnecessarily

dragging the respondent No.1 into unwarranted litigation. The litigation

may be leisure for the appellants but for a poor citizen it leads to misery

and this court can understand the agony of the respondent No.1, who has

been into litigation for the last 17 years.

23. This is a fit case which deserves dismissal with costs. The appeal is,

accordingly, dismissed with costs of Rs. 25,000/. The appellants shall

deposit the costs within the period of three months from today and the

same be subsequently released in favour of the respondent No.1.

                                 (RAJESH SEKHRI)              (RAJNESH OSWAL)
                                       JUDGE                       JUDGE

Jammu
07.02.2023
Karam Chand/Secy.
                         Whether the order is speaking:     Yes/No
                         Whether the order is reportable:   Yes/No