SHIVNANDAN SINGH Vs. STATE
LAWS(J&K)-1993-12-8
HIGH COURT OF JAMMU AND KASHMIR
Decided on December 10,1993

SHIVNANDAN SINGH Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.)THE petitioner is a Class -IV employee and was working as an orderly in the office of the Divisional Youth Services and Sports Office in Jammu. He graduated while in service and then worked his way for being deputed to undergo B.P.Ed course at the Physical Education College, Gandergal. His case was first recommended by the Divisional Sports Officer to the Director of Youth Services and Sports vide communication dated 30.1.1993 and then to the Commissioner/ Secretary, Education Deptt, by his letter dated 30.3.1993. This recommendation seems to have been accepted culminating in Government Order No. 1194 - Edu of 1993 dated 30.4.1993 under which study leave was granted to him for undergoing B.P.Ed. Course. He joined at the college pursuant thereto, paid the fee and was granted provisional admission. While he was still trying to find his feet, his study leave was cancelled by Government Order No. 1338 -Edu of 1993 dated 31.5.1993, consequently cancelling his deputation to the course also. He feels aggrieved and has challenged this order primarily on the ground that it has been passed at his back without any notice to him and inviolation of the principles of natural justice. It is submitted that he is eligible to undergo the course and there is no provision in the rules to cancel the study leave once it is granted.
(2.)OBJECTIONS have been filed by the respondents supported by an affidavit sworn by the Principal of the training college. No affidavit has been filed by any functionary of the Government to justify the order impugned. The stand taken is that since the petitioner is a Class -IV employee, he was neither entitled to grant of study leave nor eligible to undergo the course. He was also not selected by the Director of Youth Services, who alone was competent to select and depute in service candidates for training course. It is submitted that the study leave could be granted to him only by the General Deptt. (tri) on the recommendation of the administrative department and with the sanction of the Finance Deptt - in terms of Rule 73 of the Study Leave Rules of 1979 it is also pointed out that the candidates for B.P.Ed, training course are selected by the direct selection for which notification was issued on 24.12.1992 inviting applications from the candidates. In addition in service candidates are selected by the Director, Youth Services and Sports and deputed for the course keeping in view their qualifications and length of service. The select list, of these candidates is prepared on the recommendation of the respective Distt/Divisional Youth Services & Sports Officers.Since the petitioner does not figure in the select list of Director wherein only physical teachers have been deputed for training course, he has no right to be admitted to the course on the basis of Government Order No. 1185 of 1993.
(3.)I have heard learned counsel for the parties.
Admittedly, there are no rules prescribing any procedure/guidelines/criteria and eligibility for selection of inservice candidates. In case of candidates applying for direct selection the eligibility prescribed is that they should be graduates and should have minimum sports career of having represented the University/State in Junior/Senior nationals in any recognised sports discipline and should also be under 32 years of age and so on. Therefore, it is not possible to hold that the petitioner is not eligible for the course being an orderly when no rule, order or notification requires that the inservice candidate for the B.P.Ed course must be a physical education teacher first. It is not denied that he is a graduate. He has also participated in some national sports events. That way he fits the bill as an inservice candidate unless respondents show some rule or order under which he was required to be a physical education teacher first. Since they have not shown anything on this count, petitioners eligibility cannot be questioned.



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