OMKAR NATH KAUL Vs. STATE OF J&K
LAWS(J&K)-1986-9-5
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 26,1986

Omkar Nath Kaul Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) DURING the pendency of this writ petition Articles 14 and 19 of the Constitution of India were suspended by Presidential order whereby Emergency was declared in India. Therefore, petitioners had moved an application that they would like to amend the petition to delete some grounds based on Articles 14 and 19. However, during the pendency of this petition, the Presidential order declaring Emergency was revoked. Therefore, petitioners had prayed for amendment of the writ petition so as to claim the relief on the grounds of violation of Arts. 14 and 19 of the Constitution of India. The same was permitted on 6.5.1977. The case had become ripe for hearing in 1978 and since then this case could not be heard for one reason or the other. Ultimately the case was heard on 31.7.1986 and Mr. RA Jan Govt. Advocate appeared for the Advocate General.
(2.) PETITIONERS seem to challenge the order contained in Annexure -IV whereby respondents to 491 have been promoted to gazetted cadre in the Education Department and a writ of mandamus is a also sought against respondent No. 1 to consider the petitioners on the basis of their merit and seniority for promotion to the Gazetted Cadre in the Education Department. Petitioners are serving in the Education Department and their necessary service particulars are given in Annexure -l to this petition. At the relevant time they were working as teachers in the grade of 340 -700. It is averred that in the Education Department promotions used to be made on considerations other than merit -cum -seniority. Mostly sectarian and communal considerations would influence the authorities in promoting the teachers. The result was that previous selections were challenged in the Supreme Court of India. On three occasions three writ petitions came to be filed in the Supreme Court. The first was T. N. Tickoo Vs. State and others thereafter M.L Waza Vs. State and ors. and last was Janki Prasad Parimoo and others Vs. State of J&K and others. All these petitions are said to have been decided. These writ petitions were allowed and selections quashed by the Supreme Court of India. In Janki Prasad Parimoos case guidelines were laid down for respondent No. 1 as to how the selection in the gazetted cadre of the Education Department amongst the eligible teachers should be made. It is contended that even after this judgment, the respondent No. 1 did not refrain from making malafide and illegal promotions which were made on communal basis and various tactics were used by the respondent No. 1 to make the ineligible persons eligible. Respondent No. 1s functionaries would delete adverse remarks of the selected candidates and make rules at the last minute to make the respondents eligible for selected candidates and make rules at the last minute to make the respondents eligible for selection. False figures about the results of the petitioners were made to defeat their claim. Performance of respondents 5 to 481 was inflated, so as to give them benefit. This has made the selection arbitrary. Invariably all the Muslim candidates who had entered the qualifying grade from 1963 to 1965 were selected on communal basis by indirect and illegal methods and by exercise of colourable power of the respondent No. 1 and its functionaries. In Janki Prasad Parimoos case one expert had stated in his affidavit that the selections were not fair, therefore interview was abolished in the present case. The interview was held by the Supreme court as the proper method for Juding the merit. The abolition of the interview has enabled the respondent No. 1 to do whatever it pleased. A post of Education Commissioner is said to do whatever it pleased. A post of Education Commissioner is said to have been created for overhauling the Education department and one Shri R. C. Raina, a senior officer was chosen for this appointment. Though the teachers had initially felt satisfied on this arrangement, but when the process of selection was initiated, he did not take part in the said process and is said to have left after participating for sometime the deliberation of the Committee which is stated to have prepared the final list for selection of the candidates for promotion to the gazetted cadre of the Education Department. It is suggested that Shri R. C. Raina was not allowed to participate in this process. Service particulars of respondents 5 to 4g1 are detailed out in Annexure VI to the writ petition. In the impugned order it is also stated that suitability alone was considered and not the merit -cum -seniority. This is said to have been done in violation of the Supreme Court judgments. No interview or consideration is held by the Public Service Commission. Comparative merit and seniority of candidates was not considered. One member of the public Service Commission was coopted with selection committee. Respondent No. 4 was included and respondent No. 3 excluded from the said committee. The recommendations made were arbitrary as this body had acted as an instrument of respondent No. 1 and did not follow any criteria in making the Selection. The body for making the selection was not legally constituted did not consider the candidates in accordance with rules and norms. Therefore the final selection made on the basis of the recommendations of this committee is nullity. The consequences of Janki Parimoos judgment were, that the respondents who were parties to that petition were reverted from the gazetted cadre non -Gazetted cadre and designated as Headmasters incharge of the schools. But strangely enough continued to be incharge of the schools and when they were asked to submit their results, the said respondents concocted the same on their own and placed it on higher side and thus became instrumental in judging their own merit by themselves and the committee appointed for selection acted on the figures submitted by the respondents were incorrect. The respondents were not on teaching jobs. They were heads of institutions and never took classes. As a rule, therefore, they could not submit results in their own favour and concoct the same and this could not form the basis of the selection. In this manner by the ingenious method, therefore, directions of the Supreme Court were defeated by the respondents. The selection of the respondents therefore, is said to be nullity, violative of principles of natural justice. It is further submitted that some of the respondents among the selected candidates at the relevant time were working as T.E Os and continued to be so three years prior to the selection. The job of the TEOs was not a teaching job therefore these respondents could not be considered on the basis of results and their assessment of merit and suitability has been adjudged arbitrarily. Different standards were applied for selecting the candidates for promotion in the impugned order in the absence of interview and the petitioners were discriminated against. Some specific instances have been given by the petitioners to indicate that there has been no fair assessment of the merit and suitability of the respondents. These instances are contained in para 15 of the writ petition. Eleven of the respondents have been mentioned in whose favour promotion orders along with other respondents were issued and whose merit was assessed by applying methods which arbitrary and based on concocted figures of results.
(3.) IT is further stated that the intention of the respondent No. 1 has been to circumvent the directions given by the Supreme Court in Janki Prasad Parimoos case. Selection of the candidates was made in Janki Prasad Parimooa case on communal and sectarian considerations which was set aside by the Supreme Court after laying down the guidelines. Petitioners have again been discriminated by abuse of power on the part of the respondent No 1 and its functionaries and even possessed of the merit and suitability, they have been excluded from selection and their rights therefore are violated. Petitioners contend that they are victims of the continued process of illegal discrimination and colourable exercise of power by respondent No. 1. The impugned order is said to be violative of Articles 14,16 and 19 of the Constitution of India. The petitioners challenge the selection among others on the following grounds. That the interview was abolished contrary to the directions of the Supreme Court petitioners have been supersede the impugned order is not a speaking one as it is against the principle laida Lal Chand Pragals case by the Full Bench of this court; that there has been direct violation of section 133 of the Constitution of Jammu & Kashmir in making the selections under the impugned order : That the public service commission did not function, but surrendered its powers in favour of the Departmental Promotion Committee which is no entity. Respondent No. 1 has acted arbitrarily and has not applied its mind. The respondents having been reverted under the Supreme Court orders could not be selected in preference to the petitioners, because these respondents have no teaching experience. That there was no uniform standard of criteria adopted by V by respondent No. 1 for selecting the candidates. Different standards have been applied to different candidates in making the assessment of merit even TEOs who had no teaching experience had been selected. Undue advantage was granted to respondents 5 to 481 because at the last minute adverse remarks were deleted from their service books The respondent have inferior merit as against the petitioners and they could not be selected if this method was not used. Selection is unfair which has deprived the petitioners of their right It has been violative of rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. The merit and seniority of the petitioners has been disregarded. The selection has been based on communal end sectarian considerations, the e was no impartial assessment of merit and suitability.;


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