BALKEES FATIMA vs DEPARTMENT OF SPORTS on 31 December 2025

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP No.2535/2016 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.250/2022 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court seeking following relief: - a) Writ of certiorari for quashing the select list issued by respondent No. 4 to the extent of selection and appointment of private respondents and also in respect of placements of respondents shown in the waiting list of RBA category ignoring the petitioner. b) Writ of mandamus directing the official respondents to select and appoint the petitioner as Physical Education Teacher, district cadre Rajouri from the date of issuance of select list and provide all the consequential service and monetary benefits, which stand provided to private respondents. c) Writ of mandamus directing the official respondents to consider the representations of the petitioner. d) Also for issuance of any other writ, order, direction or command, which the hon'ble court deems proper as per the circumstances of the case, in favour of the petitioner and against the respondents.

3. The facts of the case as pleaded by the petitioner in her pleadings are as follows: - by HARSHIT YADAV HARSHIT YADAV

:: 5 :: TA 250/2022

a) The present Transfer Application arises out of SWP No. 2535/2016, originally instituted before the Hon’ble High Court of Jammu & Kashmir at Jammu, which upon constitution of this Tribunal stood transferred and registered as T.A. No. 250/2022. b) The applicant, Ms. Balkees Fatima, is a permanent resident of the erstwhile State of Jammu & Kashmir and a citizen of India. She claims entitlement to consideration for public employment in accordance with Articles 14 and 16 of the Constitution of India and the statutory recruitment framework governing subordinate services in the State/UT. c) The applicant possesses the requisite academic and professional qualifications for appointment to the post of Physical Education Teacher (PET). She passed Matriculation in 1987 and 10+2 in 1990 from the J&K State Board of School Education and thereafter successfully completed the Certificate Course in Physical Education (CP.Ed.) in the year 1992 from the Directorate of Sports and Youth Services, Pune.

by HARSHIT YADAV HARSHIT YADAV

:: 6 :: TA 250/2022

d) In response to Advertisement Notification No. 03 of 2006 dated 28.12.2006 issued for recruitment of Physical Education Teachers for District Cadre Rajouri, the applicant applied under the Open Merit category, as at that time she had not been issued an RBA certificate. Subsequently, owing to the realization that the eligibility qualification had been wrongly prescribed as 10+2 with CP.Ed., the said advertisement was superseded and a fresh Advertisement Notification No. 06 of 2008 dated 28.05.2008 was issued, revising the eligibility to Matric with CP.Ed. e) By the time the fresh advertisement of 2008 was issued, the applicant had obtained a valid RBA certificate from the competent authority. Accordingly, she submitted her candidature under the RBA category. Though the advertisement stipulated that candidates who had applied earlier need not reapply, the applicant nonetheless ensured compliance by submitting her application afresh under the correct category. f) Consequent upon the 2008 advertisement, a list of candidates shortlisted for interview was published in local newspapers on by HARSHIT YADAV HARSHIT YADAV

:: 7 :: TA 250/2022

10.09.2008, wherein the applicant’s name appeared. She participated in the interview and asserts that she satisfactorily answered all questions put to her by the Selection Committee. g) Thereafter, a select list was issued by the J&K Subordinate Services Selection Board (SSSB), District Rajouri, wherein the applicant’s name did not figure, despite several candidates with allegedly lower merit having been selected. The applicant contends that she secured a total of 28.64 marks (15.64 academic/professional + 13 viva voce), whereas the cut-off merit for the RBA category was only 23.27 marks. h) The applicant alleges arbitrariness in the conduct of viva voce, asserting that the interview process lacked transparency, as neither questions nor answers were recorded, nor was any electronic or mechanical method adopted to ensure fairness in awarding marks. i) It is further pleaded that several selected candidates did not join after issuance of appointment orders, resulting in multiple vacancies remaining unfilled across different categories, including RBA. Additionally, promotions of existing Physical by HARSHIT YADAV HARSHIT YADAV

:: 8 :: TA 250/2022

Education Teachers to the post of Physical Education Masters created further vacancies. According to the applicant, a substantial number of posts remained vacant over the years due to the failure of the authorities to annually refer vacancies to the Selection Board as mandated under the J&K Subordinate Services Recruitment Rules, 1992. j) The applicant also raised serious allegations regarding the genuineness of CP.Ed. qualifications held by some selected candidates, claiming that certain certificates were fraudulent and obtained without actual training, warranting an enquiry into the selection process. k) Repeated representations made by the applicant to the official respondents seeking reconsideration of her candidature under the RBA category, and against available vacancies, allegedly evoked no response. She further alleges irregular appointments from the waiting list and inclusion of candidates lacking requisite professional qualifications. l) Aggrieved by continued inaction and denial of consideration despite being more meritorious, the applicant approached the by HARSHIT YADAV HARSHIT YADAV

:: 9 :: TA 250/2022

Hon’ble High Court (now this Tribunal) seeking quashing of the impugned select list to the extent of her exclusion and for a direction to appoint her as Physical Education Teacher with all consequential benefits.

4. The respondents have filed their reply statement wherein they have averred as follows: - a) The respondents submit at the outset that the present Transfer Application is misconceived, legally untenable, and devoid of merit. No statutory, constitutional, or legal right of the applicant has been infringed so as to warrant interference by this Tribunal. b) It is contended that the applicant has not approached the Tribunal with clean hands and has indulged in suppression of material facts and misrepresentation, rendering the application liable to dismissal in limine. c) The respondents assert that the determination of comparative merit, particularly allocation of marks in viva voce, lies exclusively within the domain of the duly constituted Selection Board. A candidate who voluntarily participates in the selection by HARSHIT YADAV HARSHIT YADAV

:: 10 :: TA 250/2022

process cannot subsequently challenge the outcome merely because she has been unsuccessful. It is well settled that courts and tribunals do not sit as appellate authorities over selections conducted by expert bodies. d) The applicant is stated to lack locus standi to assail the selection, especially when no mala fides, bias, or violation of statutory rules has been substantiated. e) The answering respondents submit that they are merely the appointing/intending department and their role in the recruitment process is confined to indenting vacancies and issuing appointment orders to candidates duly recommended by the J&K Subordinate Services Selection Board, an independent recruiting agency. f) The selection to the post of Physical Education Teacher for District Rajouri was conducted entirely by the Selection Board in accordance with the applicable rules and procedure. The applicant did not figure in the select list prepared on the basis of merit, and therefore no recommendation was made in her favour.

by HARSHIT YADAV HARSHIT YADAV

:: 11 :: TA 250/2022

g) The respondents categorically deny allegations of arbitrariness, discrimination, or illegality in the selection process. The marks awarded to candidates, including viva voce marks, were determined by the competent Selection Committee, and the applicant has failed to demonstrate any violation of law or procedure. h) Allegations regarding non-joining of selected candidates, existence of vacancies, or alleged irregular appointments from the waiting list are stated to be misconceived and irrelevant to the applicant’s claim, as no vested right accrues merely on the basis of vacancies. i) The respondents further deny all allegations relating to fraudulent qualifications of selected candidates, terming the same as vague, baseless, and unsupported by any cogent material. j) It is reiterated that the applicant has not been denied consideration arbitrarily and that the present application is an attempt to reopen a concluded selection process after an inordinate lapse of time.

by HARSHIT YADAV HARSHIT YADAV

:: 12 :: TA 250/2022

k) In view of the above submissions, the respondents most respectfully pray that the Transfer Application be dismissed with costs, as being devoid of merit and substance.

5. Heard learned counsel for the parties and perused the material available on record.

6. The present Transfer Application arises out of SWP No. 2535/2016 which was pending before the Hon’ble High Court of Jammu & Kashmir at Jammu and on constitution of this Tribunal came to be transferred and registered as T.A. No. 250/2022. The applicant has questioned her exclusion from selection to the post of Physical Education Teacher, District Cadre Rajouri, pursuant to Advertisement Notification No. 06 of 2008, asserting that despite being fully eligible and more meritorious than several selected candidates, she was ignored without any lawful justification.

7. The applicant is not in dispute to be possessing the requisite academic and professional qualifications. She acquired Certificate Course in Physical Education (CP.Ed.) as early as in the year 1992 and thereafter remained eligible for appointment to the post in question. Initially, in response to Advertisement Notification No. 03 of 2006, by HARSHIT YADAV HARSHIT YADAV

:: 13 :: TA 250/2022

she applied under Open Merit category as she had not then obtained an RBA certificate. Subsequently, the said advertisement was corrected and superseded by Advertisement Notification No. 06 of 2008, whereby the eligibility qualification was rectified. By the time the fresh advertisement was issued, the applicant had obtained a valid RBA certificate and accordingly submitted her candidature under the RBA category. She was called for interview and admittedly participated in the selection process.

8. It is the specific case of the applicant that as per the information supplied by the respondents themselves, she secured 28.64 marks, whereas the cut-off merit for the RBA category was 23.27 marks. Despite this, her name did not figure either in the select list or in the waiting list, whereas several candidates with lesser merit came to be selected. It has also been pleaded that a number of selected candidates did not join, vacancies continued to remain available, and appointments were later made from the waiting list, yet the applicant was not considered. The applicant further asserts that repeated representations made by her for reconsideration of her case under the RBA category were never decided.

by HARSHIT YADAV HARSHIT YADAV

:: 14 :: TA 250/2022

9. The respondents, while not disputing the eligibility of the applicant or her participation in the selection process, have taken the stand that the selection was conducted by an independent recruiting agency and that the Tribunal cannot sit in appeal over the award of marks, particularly in viva-voce. It is also pleaded that mere existence of vacancies does not confer any right of appointment and that the applicant has no vested right to claim selection.

10. This Tribunal has given thoughtful consideration to the rival submissions and has carefully examined the record. It is well settled that a candidate does not acquire an indefeasible right to appointment merely by participating in a selection process. However, it is equally well settled that every eligible candidate has a constitutional right to fair, transparent and non-arbitrary consideration in public employment. The right under Articles 14 and 16 of the Constitution is not a right to appointment, but a right to be considered in a lawful and reasonable manner.

11. In the present case, the record reveals that the applicant was fully eligible, applied under the correct category, and was interviewed. The respondents have not been able to place on record any cogent or by HARSHIT YADAV HARSHIT YADAV

:: 15 :: TA 250/2022

convincing explanation as to why the applicant, despite having higher merit than the cut-off prescribed for RBA category, was not considered for selection. The plea that the Selection Board is an independent body cannot be accepted as a complete answer to a specific grievance of arbitrariness, particularly when the employer is under a constitutional obligation to ensure that selections made for public posts do not result in manifest injustice.

12. This Tribunal is conscious of the limitations on judicial review in matters relating to selection and viva-voce. At the same time, judicial restraint cannot extend to a situation where higher merit is ignored without any explanation and the grievance of the candidate remains unanswered for years together. The facts on record clearly indicate that vacancies existed, some selected candidates did not join, and appointments were made subsequently. While vacancies alone do not create a right, continued availability of posts coupled with higher merit certainly creates a legitimate expectation of fair consideration, which cannot be defeated by silence or inaction.

13. At the same time, this Tribunal is equally mindful that the selection process in question is old and that the rights of third parties who have by HARSHIT YADAV HARSHIT YADAV

:: 16 :: TA 250/2022

already been appointed cannot be unsettled at this stage. The ends of justice would, therefore, be met by granting a balanced relief which redresses the grievance of the applicant without disturbing appointments already made.

14. In view of the above discussion, this Tribunal is of the considered opinion that the non-consideration of the applicant under the RBA category, despite her higher merit, is arbitrary and violative of Articles 14 and 16 of the Constitution of India. The applicant, therefore, deserves relief.

15. Accordingly, the Transfer Application is allowed. The official respondents are directed to reconsider the case of the applicant for appointment to the post of Physical Education Teacher, District Cadre Rajouri, under the RBA category, strictly on the basis of her merit as it stood at the relevant time and against any available vacancy, including vacancies arising due to non-joining or otherwise, without disturbing the appointments already made. In case vacancy is not available a supernumerary post may be created for the purpose. In the event the applicant is found entitled upon such reconsideration, she shall be appointed with notional seniority from the date her immediate by HARSHIT YADAV HARSHIT YADAV

:: 17 :: TA 250/2022

junior was appointed, however, monetary benefits shall accrue only prospectively from the date of her actual joining. The entire exercise shall be completed within a period of three months from the date of receipt of a certified copy of this judgment.

16. No order as to costs.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member

Judicial Member

/harshit/

by HARSHIT YADAV HARSHIT YADAV