LPASW/140/2018 of NASEEMA BANO Vs ISHRAT BANO AND ORS. (EDUCATION DEPARTMENT) on 31 December 2020

JUDGMENT

Sanjeev Kumar „J‟

1) This intra-Court appeal filed under Clause 12 of the Letters Patent is directed against the judgment dated 9[th] of August, 2018, passed in SWP No.1070/2015 titled „Naseema Bano vs. State & others‟.

2) With a view to appreciating the grounds of challenge urged by the appellant, it is necessary to state few material facts as were projected by the appellant in her writ petition.

3) Zonal Education Officer, Tangdar, (ZEO), vide Advertisement Notice No.ZEOT/8092 dated 05.03.2014, invited applications from the eligible candidates hailing from revenue village Shamaspora for supplying one vacancy of ReT under „ST‟ category in UPS Shamaspora. This was followed by a corrigendum issued on 8[th] of March, 2014, whereby the vacancy was stated to be under ST/RBA category. It appears that because of Model Code of Conduct that was to remain in force till 17[th] of May, 2014, the Advertisement Notice issued was kept in abeyance. This was done by the ZEO vide corrigendum No.ZEOT/9012 dated 12.03.2014. Later on, another Advertisement Notice bearing No.ZEOT/9518-23 dated 23.07.2014 was issued for supplying the vacancy of ReT in UPS, Shamaspora. The vacancy was stated to have become available due to retirement of a Teacher and was to be filled up under SC/ST/RBA category.

4) The appellant having done her B. A. from the University of Kashmir and being a candidate belonging to socially and educationally backward class, claims to have responded to the aforesaid Advertisement Notification. It is the case of the appellant that her name was duly recommended by the Village Education Committee and was considered along with respondent No.1 herein. However, in view of better merit, the appellant was placed at serial No.1 of the select panel. The appellant claims that her candidature was recommended to the competent authority for appointment as ReT in UPS, Shamaspora. The grievance of the appellant as projected in the writ petition was that though the appellant was entitled to be engaged but to her utter surprise, the ZEO issued engagement order in favour of respondent No.1 for the reasons best known to him. Feeling aggrieved, the appellant filed SWP No.1070/2015, claiming following reliefs:

(A)By issuance of Writ of Certiorari, order bearing No/ZEOT/RT/687-88 dated 18.04.2015 (Annexure-K) appointment order in favour of respondent No5 be quashed; No/ZEOT/RT/687-88 dated 18.04.2015 (Annexure-K) appointment order in favour of respondent No5 be quashed; (B)By issuance of Writ of Mandamus, official respondents be directed to issue appointment order in favour of petitioner as per recommendations of panel made vide Annexure-D; respondents be directed to issue appointment order in favour of petitioner as per recommendations of panel made vide Annexure-D;

(C)By issuance of Writ of Mandamus, respondents be directed/commanded to give effect to the service of petitioner w.e.f. the date respondent No.5 was appointed; directed/commanded to give effect to the service of petitioner w.e.f. the date respondent No.5 was appointed; (D)By issuance of Writ of Mandamus, an enquiry be ordered against the respondent No.4 for appointing respondent No.5 illegally and on extraneous considerations. ordered against the respondent No.4 for appointing respondent No.5 illegally and on extraneous considerations.

Conclusion

5) The writ petition was contested by Chief Education Officer, Kupwara, and Zonal Education Officer, Tangdar. No reply affidavit on behalf of Director, School Education, Kashmir, was filed. The writ petition was contested by the aforesaid officials, primarily, on the ground that the appellant had not applied for the post in question and had rather submitted here application form for appointment to the post of ReT in another school in Revenue Village Shamaspora i.e. PS Khuri Maidan. It was pleaded by the official respondents that not only the appellant had applied for PS Khuri Maidan but she was also recommended for such engagement. The whole thrust of the objections filed by the official respondents was that the appellant had applied only for the post of ReT in PS Khuri Maidan Shamaspora and had made it to the select on the basis of her merit. Her claim against the post of ReT in UPS Shamaspora was, however, refuted on the ground that she had never applied for the said post.

6) The Writ Court after considering the rival contentions and finding that the writ petition involved adjudication of complicated disputed questions of fact agreed with the stand of the official respondents and dismissed the claim of the appellant for the post of ReT in UPS Shamaspora and directed the official respondents to take the selection process with reference to the post of ReT in PS Khuri Maidan to its logical conclusion. It is this order of the Writ Court, the appellant is aggrieved of and is before us in this appeal.

7) Having heard learned counsel for the parties and perused the record on the file as also the original record produced by Mr. N. H. Shah, Sr. AAG, we are of the firm opinion that the view taken by the learned Single Judge that the writ petition involves complicated disputed questions of fact for adjudication is correct view in the facts and circumstances of the case with which no fault could be found.

8) From perusal of the record produced by Mr. N. H. Shah, Sr. AAG, we have found that the selection process initiated by the official respondents for supplying the vacancies of ReT, one each in UPS Shamaspora and PS Khuri Maidan is badly messed up. It is not clear from the record as to how many application forms in all were received by the ZEO, Tangdar in respect of PS Khuri Maidan and UPS Shamaspora. Despite our best efforts we could not even find the MOHAMMAD ALTAF BHAT2020.12.31 13:08application form, if any, submitted by the respondent No.1 though I attest to the accuracy andintegrity of this document there is one application form submitted by the appellant for PS Khuri Maidan in which she appears to have been considered along with two other candidates and ultimately recommended for selection on the basis of her better merit.

9) What little that emerges from the record is that the appellant has submitted her application form for PS Khuri Maidan Shamaspora but that fact has been concealed by the appellant in the writ petition. The total case set up by the appellant in the writ petition is that she had applied for the post of ReT in UPS Shamaspora, for which she had been duly recommended by the Village Education Committee and was figuring at serial No.1 of the merit panel. Interestingly, the merit panels placed on record by the appellant are unsigned typed copies and are not found in the record produced by the official respondents. In that view of the matter, it is hard to believe the case set up by the appellant.

10) We have already observed that though there is mess of things created by the official respondents in so far as the selection in question is concerned, yet the benefit of such mess cannot be granted to the appellant who, because of suppression of material fact from this Court, has disentitled herself to the exercise of equitable jurisdiction vested in this Court. Otherwise also, as is noted by the Writ Court, the appellant too has been recommended for selection as ReT in PS Khuri Maidan, which is a school located in the same Revenue Village Shamaspora and, therefore, no serious prejudice has been caused to her.

11) For all these reasons, we are not inclined to interfere with the judgment of the Writ Court. This appeal is, thus, found to be without any merit and is, accordingly, dismissed.

12) Record be returned back to Mr. N. H. Shah, Sr. AAG.

(Rajnesh Oswal) Judge

(Sanjeev Kumar) Judge

Srinagar 31.12.2020“Bhat Altaf, PS”

Whether the order is speaking: Whether the order is reportable:

Yes/NoYes/No