SHAHEENA HASSAN Vs. STATE
LAWS(J&K)-2006-7-14
HIGH COURT OF JAMMU AND KASHMIR
Decided on July 26,2006

Shaheena Hassan Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) CLAIMING to have applied and been empanelled for appointment as Rehbar -i -Taleem in Primary School of Village Boniyar Uri, and figuring as such at no.2 with one Showket Ahmed Mir at serial no. 1, a non local dis -carded by authorities and as such entitled to appointment, the petitioner who thus headed the panel which did not include anybody from the village where the school was located as none therefrom was eligible to apply when the post was advertised, pleads that her case was duly forwarded by concerned District Dev. Commissioner to respondent no.3, the CEO under his communication no. DCB/PS/MF/6673 dated 29.05.2004 who processed the case and forwarded it to the Chairman under his communication no. ESH/RT/7597 dated 17.06.2004 and also sought instructions from respondent no.2, the Director vide communication no. 11122 dated 19.07.2004, who asked him to act on the panel and thus petitioner was fully entitled to formal appointment, but instead of that respondent no.5, the District Development Commissioner wrote a communication to Secretary of Administrative department that one Nadeem Latief Mir, the respondent no.6 a native, who had not applied when the post was originally advertised because of being in -eligible had now become eligible after around two years of the original advertisement, and as such being from the village where school was located could be considered for engagement as R.T instead of petitioner. Complaining that said communication was against the law and provisions of scheme and as such not maintainable, the petitioner seeks quashment thereof along with issuance of mandamus upon respondents for her appointment as R.T under SSA in Primary School of Village Pakhalan Zone Boniyar.
(2.) IN their reply, the official respondents 1 to 5 have among other things stated that none of petitioners right is violated. Admitting her claim as empanelled candidate at serial no.2 and thereby entitled to appointment because of in -eligibility of candidate at no.1 they have further pleaded that under instructions conveyed by Administrative department in response to District Dev. Commissioners communication under his no. Edu -1 -260/04 dated 9.12.2004, the 6th respondent as being a native of the concerned Village was entitled for appointment as RT in the said school. In his separate reply the 6th respondent has also pleaded on similar lines with an addition that after issuance of formal appointment letter in his favour the petition in present form would become infructuous because the same has not been challenged by the writ petitioner etc. During course of arguments learned counsel appearing for rival sides have reiterated their pleadings with reference to respective annexures.
(3.) I have heard learned counsel and considered the matter. With agreement of learned counsel the matter is being taken up for final disposal at this stage, as all facts/circumstances of the case are clear alongwith respective stand of parties. Facts are all admitted. That a new school was opened in Village Pakhalan of Boniyar Zone, Uri, for which respondents issued an advertisement and sought candidature for appointment of RT in response whereto petitioner also applied and was empanelled at serial no. 2 with one Showket Ahmed figuring at serial no.1, who was found to be ineligible as not being a native of the village where school was located as also that consequent thereupon the petitioner as being at serial no.2 in the panel became most eligible as haling from the adjacent village in same 'Halqa and as such her case for appointment of RT was processed right up to the level of Director Education. But after quite some time the respondent no.6 came into lime light and his claim that he being a native of the village where school was located and having requisite qualification was best suited for appointment as RT was accepted by the authorities and he appointed as such, with the result that petitioner who till then was the most prospective candidate was automatically pushed out of consideration zone. Along with that back drop what is further admitted by all parties concerned is that at the time of initial advertisement seeking candidature for RT post in question, only petitioner and others applied, while respondent no.6 not being eligible and did not apply at all. He attained requisite qualification after about a year of earlier advertisement and was accordingly considered without cancellation of previous selection process or issuance of fresh one for the said post. In other words therefore, the candidates selected in the earlier panel were totally dis -carded without any reason whatsoever, and respondent no.6 who had not even applied was appointed against the available RT post in the said school without having participated in any formal selection process. This on face of the scheme and the circumstances as aforesaid is totally arbitrary. Assuming that the petitioner even after due empanelment was not due for appointment for some reason or other, that would naturally bring the candidates down below her in the panel within zone of consideration, one by one. Would none be found to be eligible for appointment then the whole process would required to be cancelled and the post advertised a -fresh. Nothing of the sort was done. Instead, and quite brazenly the post of RT to which she had qualified has been snatched out of petitioners teeth and offered to respondent no.6 on a platter without its being re -advertised for fulfillment through regular selection process.;


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