BASHARATULLAH Vs. STATE
LAWS(J&K)-2006-11-15
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 03,2006

Basharatullah Appellant
VERSUS
STATE Respondents

JUDGEMENT

BASHIR A.KIRMANI, J. - (1.) THESE petitions seek impleadment of persons mentioned therein as petitioners. No objections have been filed by otherside till date. Accordingly all the three CMPs are allowed and the applicants added to the array of petitioners in SWP No. 94/2002. Registry to follow up. 1. The case of petitioners is that in response to advertisement notice No. 3 of 1996 and 8 of 1997 issued by respondent No. 4 for recruitment to the posts of teachers in District Pulwama, they also applied but were not selected. Aggrieved, they filed two writ petitions being SWP No. 2441 and 2467 of 1998 to challenge the select list on various grounds. Similar writ petitions were filed by other candidates, one of them being Balvander Kour whose petition captioned as 'Balvander Kour v. State and Ors.' was decided by Division bench of this court on 8.10.99 wherein the criterion adopted by respondent No. 4 in selection of teachers pursuant to advertisement notice No. 3 of 1996 and 8 of 1997 was held as being arbitrary for the reason of given un -due weight -age to 10 + 2 and lesser qualifications, against higher degrees in discipline of education. While disposing of the matter the bench held that allocations of 50 marks to 10+2 was on the higher side which operated as a detriment against all the candidates holding graduation and post graduation in the discipline of education and as such as not in conformity with Article 14 and 16 of the Constitution. The criterion was required to be re -cast; even while the selection made was however were kept in tact with the direction that petitioner's would be entitled for consideration against vacancies which were then available. After the said judgment was brought to notice of the bench hearing petitioners earlier writ petitions the same were disposed of on 20.02.2001 with directions that Chairman of the Recruitment Board shall forward the claims of petitioners on basis of minimum qualification and weightage each for higher qualification and notify their merit alter adding marks/points they got in the interview. In ease they would make the grade and reach the cut of point in open or RBA category their names be forwarded to the appointing authority for appointment within two months from receipt of copy of order. The Chairman of Board was also directed to reconsider the cases of those petitioners of SWP No. 2467/98 who were B.Sc, B.A and B. Ed. and had been left out, and those who had been dropped for want of one or two points be awarded the same in interview and if by that addition they would come to the requisite standard they be considered against the (16) vacancies available under the Schedule Tribe Category which were vacant due to government and the Recruitment Board's failure to issue fresh notification for their filling within six months. All this was required to be done within 3 months.
(2.) GRIEVANCE presently projected by petitioners is that despite aforesaid court direction the respondent -board did not act in accordance therewith and instead asked the petitioners to appear before Secretary Selection Board along with their testimonials etc for consideration of their cases by specifically constituted committee, which the petitioners did, but instead of issuing consequential orders the board issued fresh interview notification on 06.09.2001 asking petitioners to appear before Selection Committee of their Districts, which too they followed and appeared before the constituted selection committee on 17.09.2001 at degree College Pulwama. They were interviewed and all of them faired well in the interview but instead of selecting them, respondent No. 4 selected private respondent No. 7 to 45 in open merit category keeping respondents 46 to 53 on the waiting list and again left out the petitioners even though the said interview had been conducted exclusively for them in terms of the judgement aforesaid. Aggrieved thereby and the subsequent process initialed by respondents 4 to 6 for filling up posts of teachers in district Pulwama under advertisement 1 of 1999 as also select list published in 'Srinagar Times' on 05.01.2002 and a direction for their consideration in terms thereof the judgment passed in their earlier writ petitions as aforesaid. Grounds pleaded are that during pendency of earlier writ petitions respondents issued advertisement 1 of 1999 and the petitioners applied in response thereto also but again the respondents 4 to 6 did not select them despite holding excellent academic record and degrees of M.Sc, M.A, B.Sc, B. Ed and Graduation etc and as such they have been subjected to discrimination in violation of their rights. The writ petition was admitted to hearing on 3rd Oct. 2002 whereafter private respondents 7 to 53 having defaulted in appearance were proceeded against in ex -parte vide order dated 10.12.2002, with other respondents being given time to file their counter affidavit, in response whereto it appears that only respondents 1 to 3 have filed the same, but in their reply while objecting to maintainability of the petition on the ground that none of petitioner's rights was violated and after having participated in the selection process they could not challenge the same; they have also pleaded that petitioners had no right to agitate against them as their ease was mainly directed against respondents 4 to 6. During course of submissions while Mr. Qayoom has contended that respondents failed to act in accordance with judgment of this court dated 20.02.2001 as mentioned in the writ petition because under the court order they were only required to re -assess petitioners and consider them afresh under directions as passed and not to re -advertise the posts which entitles them to the relief prayed for, Mr. Ganaie appearing for otherside has contended that the department had no posts to offer to petitioners in terms of the aforesaid judgment.
(3.) I have heard learned Counsel and considered the matter. Ex -facie, the petitioners have attempted to derive cause for maintaining this writ petition from the un -challenged judgment of this court as passed in SWPs No. 2441 and 2467 of 1998. Perusal of said judgment copy whereof has been placed on record reveals that a composite direction was passed therein against respondents whereunder they were required to; first, notify the merit of petitioners on basis of minimum qualification and give weight -age of each higher qualification to them with addition of points secured by them at the interview; secondly, if they or any of them would make grade and reach the cut of point in open or RBA category then forward their names to appointing authority for appointment within a period of two months; and thirdly, in cases of graduate petitioners of SWP no. 4267 who were awarded only 1 or 2 points at the interview, add two points to each, and if after such addition they would come to the cut of level then consider against the 16 left out vacancies under Schedule Tribe Category within three months of receipt of the order. Perusal of the records however reveals that none of the directions passed was adhered to or observed by respondents in any manner whatsoever. It would be appropriate to observe that in terms of the aforesaid order the cases of petitioners were only required to be re -assessed on basis of materials available with the respondent board in accordance with contours fixed by the court order which does not appear to have been done. Instead, as per un -rebutted pleading of petitioners, the respondents issued fresh notification and interviewed petitioners along with the bunch of other candidates and again dropped them from the zone of consideration. In that view, therefore, the conclusion is that the direction of this court passed earlier as aforesaid has not been complied with by respondents subjecting petitioners to great prejudice.;


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