Union Territory Of Jk & Ors vs Mohammad Shafi Sheikh
2025 Latest Caselaw 45 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

Union Territory Of Jk & Ors vs Mohammad Shafi Sheikh on 6 May, 2025

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                                                                               Sr. No. 54
                                                                               Suppl. Cause List. 2

           IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                              AT SRINAGAR

                                                LPA No. 4/2024

         Union Territory of JK & Ors.                                   ...Petitioner(s)/Appellant(s)

         Through:            Mr. Alla-ud-din Ganai, AAG with Ms Shaila Shameem, AC

                                                      Vs.
         Mohammad Shafi Sheikh                                                        ...Respondent(s)

         Through:            Mr. T. H. Khawaja, Adv. with Mr. Imam Abdul Muiz, Adv.

         CORAM:
                          HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
                          HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
                                                  ORDER

06.05.2025 [Oral]

1. This intra-court appeal by the Union Territory of JK and two others arises out of an order and judgment dated 26 th July 2023 passed by the learned Single Judge of this Court ["Writ Court"] in SWP No. 1582/2013 whereby the Writ Court has held the respondent entitled to engagement as ReT with effect from the year 2003. Impugned judgment is assailed by the appellants on multiple grounds. However, before we advert to the grounds of challenge, it would be appropriate to take note of material facts.

2. The respondent applied for engagement against one of the two posts of Rehbar-e-Taleem (ReT) notified for BPS Khrew, Zone Pampore, in the year 2000. The petitioner was empanelled and was figuring at serial No. 2 in the order of merit.

3. It is the case of the respondent that the candidate figuring at serial No. 1 was engaged and the engagement of the respondent who was figuring at serial No. 2 was denied without any reason or justification.

4. Admittedly, he did not challenge his exclusion from the engagement against the second post of ReT in BPS Khrew, Zone Pampore. In the year 2003, two more posts of ReT became available on opening of

new school in Village Khrew. The respondent claims that in the select panel prepared to supply the aforesaid two vacancies, the respondent figured at serial No. 1 in the merit list., but he was denied engagement on the ground that he had crossed the upper age limit for entry into government service.

5. Feeling aggrieved, the respondent filed SWP No. 723/2004 which was disposed of by the learned Single Bench of this Court on 14 th October 2005 and the appellants herein were directed to consider the respondent for appointment as ReT provided the post of ReT is available in village Khrew and the respondent is eligible. Learned Single Judge clearly provided that consideration to be accorded to the respondent should be along-with other eligible candidates in accordance with rules applicable. In compliance with the order dated 14th October 2005 supra, the case of the respondent was considered and the same was rejected by a speaking order bearing No. CEO/Pul/SSA/06/166 dated 20th March 2006. The respondent was not held entitled to engagement on the basis that he was ineligible on account of having crossed the upper age limit for entry into government service.

6. In the year 2007, one post of ReT was advertised afresh on 12th October 2007. The petitioner who was aggrieved of rejection of his claim and preparation of fresh panel approached this Court again by way of SWP No. 1464/2007 and the same seems to have been disposed of with a direction to the appellants herein to consider the case of the petitioner in terms of the judgment dated 14th October 2005 passed in SWP No. 723/2004. This is how the case of the respondent came up for consideration again.

7. Having regard to the chequered history of the case and regard being had to long drawn litigation launched by the respondent, the respondent was engaged as ReT at PS Sheikh Mohalla, Khrew, Zone Pampore against the vacancy that accrued in the year 2007. The formal order of engagement of respondent was issued in the year 2009.

8. The respondent was still aggrieved and filed SWP No. 1582/2013 seeking inter-alia a direction to the appellants to treat the respondent

to have been appointed/engaged as ReT notionally w.e.f. the year 2000 i.e., when the respondent was initially empanelled. The writ petition was contested by the respondent without filing any objections. The Writ Court after having considered the matter in light of material available on record came to the conclusion that the respondent had been wrongfully denied engagement in the year 2003 and, thus, held him entitled for engagement as ReT notionally w.e.f. the year 2003. The appellants are aggrieved and, therefore, are before us in this appeal.

9. Having heard learned counsel for the parties and perused the material available on record, we are of the considered opinion that the empanelment of the respondent, if any, in the year 2003 was subject matter of challenge in SWP No. 723/2004. The Court did not accept the challenge and instead disposed of the petition vide its order dated 14th October 2005 directing the appellants herein to accord consideration to the case of the respondent if eligible for his engagement as ReT provided the post is available. Respondent was to be considered along-with other eligible candidates in accordance with the rules.

10. As noted above, the case of the petitioner was considered in light of the judgment dated 14th October 2005, but the same was rejected vide order dated 20th March 2006. The appellants approached this Court again by way of SWP No. 1464/2007 which again came to be disposed of calling upon the appellants to reconsider the case of the respondent in terms of judgment dated 14th October 2005. It may be noteworthy that, in the meanwhile, the post had been notified afresh on 12th October 2007 and it is against this post, the appellants considered the case of the respondent and provided him engagement from the year 2009. The engagement was against the vacancy that had accrued in the year 2007.

11. It is the plea of learned counsel for the respondent that since the respondent had been ignored first in the year 2000 and thereafter in the year 2003 and, therefore, he was entitled to be appointed retrospectively with effect from the year 2000/2003. We could have accepted the contention of learned counsel for the respondent provided

the learned Single Judge of this Court while disposing of SWP No. 723/2004 would have returned a finding that the respondent had indeed been ignored in the year 2000 or that he was entitled to be engaged in the year 2003. As a matter of fact, this plea of the respondent which was raised in SWP No. 723/2004 was not accepted. The Writ Court instead of allowing the writ petition and holding him entitled to engagement in the year 2000 or in the year 2003 called upon the respondent to accord consideration to the case of the respondent, that too, if he was eligible and the post under ReT scheme in the village was available. In view of the judgment dated 14 th October 2005 passed in SWP No. 723/2004, the issue could not have been reopened by the Writ Court nor the appellant could have taken a stand that somehow the respondent had not been appointed in the year 2000 and even in the year 2003. Such stand of the respondent was contrary to the records and would fly on the face of the judgment dated 14th October 2005. The respondent was considered afresh in compliance with the judgment dated 14th October 2005 and was given engagement in the year 2009 against the post of ReT which was notified for selection on 12th October 2007. Although, there is no case to provide the engagement to the respondent retrospectively, yet having regard to the facts and circumstances of the case and also taking note of the fact that the post against which the respondent has been engaged accrued on 12th October 2007, we are of the view that the respondent should be held entitled to engagement as ReT with effect from 12th October 2007 instead of 2009. This effect would only be notional and without any monetary benefit. Ordered accordingly.

12. For the foregoing reasons, the appeal is allowed and the impugned judgment passed by the Writ Court is modified to the aforesaid extent.

                                     (SANJAY PARIHAR)         (SANJEEV KUMAR)
                                               JUDGE                   JUDGE
          SRINAGAR:
          06.05.2025
          Altaf