Koshlya Devi vs State Of J And K And Ors.

on 3 April, 2006

Jammu High Court Jammu High Court Koshlya Devi vs State Of J And K And Ors. on 3 April, 2006 Equivalent citations: 2007 (1) JKJ 102 Author: Y Nargotra Bench: Y Nargotra JUDGMENT Y.P. Nargotra, J. 1. Government of Jammu & Kashmir vide Order No. 396-Edu of 2000 dated 28.4.2000 launched a Scheme of Rehbar-e-Taleem which envisaged appointment of teachers for making up the deficiency of staff existing in primary and middle schools of the State. Under the Scheme, the eligibility for appointment has been prescribed as follows: i. Rehbar-e-Taleem should be the permanent resident of the State. ii. He or she should belong to the village where there is assessed deficiency of staff. On the certification of VLC that no local candidate from the village is available, VLC can draw up the panel from the adjoining village. iii. He or she should possess the minimum qualification of 10+2. iv. The candidate shall as far as possible fulfil the age qualification as prescribed by the State Government. v. Due consideration shall be given by the VLC to the Scheduled Castes and Scheduled Tribes. 2. The mode of selection prescribed was that the Village Level Committee after assessing the deficiency in Primary/Middle Schools within the area of its operation, shall draw a panel of eligible qualified persons and submit the same through Zonal Education Officer to the concerned Deputy Commissioner, who along with the representative of Director School Education would make the final selection commensurate with the assessed requirement out of the panel. After such selection, the formal order of engagement shall be issued by the concerned Zonal Education Officer. The panel to be drawn up was required to be 11/2 times of the assessed requirement and in the order of merit of eligible candidates. 3. Under the aforesaid Scheme, a panel of eligible candidates was drawn up for a deficiency existing in Middle School Puneja and the same came to be submitted to Deputy Commissioner, Doda through Zonal Education Officer, Thathri, Doda. Admittedly in the panel so submitted, the name of petitioner, a female candidate, figured at Sr. No. 4 and the name of respondent No. 4, a male candidate, was at Sr. No. 5 in the order of their respective merit. It is also the admitted case of respondents that the merit of petitioner was better than respondent No. 4. 4. The Deputy Commissioner while ignoring the better merit of petitioner selected respondent No. 4 and consequently the Zonal Education Officer, Thathri vide his order dated 30.6.2000 appointed respondent No. 4 as a Rehbar-e-Taleem Teacher. It is also not being disputed that for making the selection of respondent No. 4, the Deputy Commissioner Doda had not conducted any interview of the eligible candidates for judging the comparative suitability of the candidates for appointment. 5. The petitioner being aggrieved of her non-selection, through the present writ petition filed under Section 103 of the Constitution of Jammu & Kashmir read with Article 226 of the Constitution of India seeks to challenge the legality of selection of respondent No. 4. Petitioner's case is that her merit was better than that of respondent No. 4, therefore, in his place she ought to have been selected for appointment. Respondents,
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Koshlya Devi vs State Of J And K And Ors. on 3 April, 2006

including respondent No. 4, do not dispute that the merit of petitioner was better than respondent No. 4, yet according to them the selection of respondent No. 4 is not bad in law The stand of State is that since the name of respondent No. 4 was approved by Deputy Commissioner, Doda for appointment, therefore the Zonal Education Officer was bound to issue the order of appointment in favour of respondent No. 4. The stand of respondent No. 4, however, is that as he was residing just near the school, i.e., at a distance of zero kilometers, whereas the petitioner was residing about 2 kilometers away, therefore he has been preferred by the Deputy Commissioner, Doda for selection over and above respondent No. 4. In the reply to supplementary affidavit filed by the petitioner it has also been pleaded by the petitioner that during the pendency of petitioner the services of respondent No. 4 have already been regularized vide Order No. DSEJ/ReT/reguilarization/9027-9375 dated 26.5.2005, therefore the petition of petitioner has been rendered infructuous. It has also been pleaded that respondent No. 5 has been regularized after rendering five years service in terms of the rules and thus has become permanent employee, therefore the petitioner cannot be allowed to question his selection and the equity was in his favour. 6. I have heard learned Counsel for the parties and perused the record of the case thoroughly. The Deputy Commissioner, Doda, who made the selection of respondent No. 4 though is a respondent in the writ petition, yet he has not filed any counter affidavit to place his stance before the Court. The record of Deputy Commissioner has been summoned and perused. From the perusal of the record of Deputy Commissioner, Doda, I do not find anything to indicate as to why he had preferred respondent No. 4 for selection over and above the petitioner, who was having better merit than respondent No. 4. The contention of learned Counsel for respondent No. 4 is that the Deputy Commissioner while making the final selection was required to see that final selection to be made by him should commensurate with the assessed requirement. He submits that the area where the post was existing was a militancy prone area and, therefore, the petitioner, who was a female candidate, was not suitable for appointment. According to him keeping this fact in mind the Deputy Commissioner, Doda had selected respondent No. 4 over and above the petitioner. This argument of learned Counsel for respondent No. 4 cannot be accepted being without any merit. The Deputy Commissioner could not have legally discriminated with the petitioner on the basis of sex. Even otherwise it is not the stand of Deputy Commissioner, Doda that petitioner was not suitable for appointment as a teacher in the School on account of her being a female candidate. The selection for appointment envisaged under Rehbar-e-Taleem Scheme was to be made on the basis of comparative merit of eligible candidates alone. Since the petitioner was having better merit than respondent No. 4, therefore, she possessed a legal right to be selected for the said post. The merit of respondent No. 4 being lower than the petitioner, he could not have been selected validly by the Deputy Commissioner, Doda. However, the contention of Mr. Anand, learned Counsel for respondent No. 4, is that under the scheme the Deputy Commissioner was competent to assess the suitability of candidates for appointment. The Deputy Commissioner considered both, the petitioner and respondent No. 4, and found respondent No. 4 more suitable for appointment. His decision cannot be questioned by this Court while exercising the writ jurisdiction, as, according to him, it will amount this Court sitting in appeal over the decision of Deputy Commissioner. In support of his contention, he relied upon , Dalpat Abasaheb Solunke v. B.S. Mahajan, in which the Supreme Court observed as under: It is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the instant case the University had constituted the Committee in due compliance with the relevant Statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant materials before it. Therefore setting aside the selection on the ground of the so called comparative merits of the candidates, as assessed by the Court while sitting in appeal over selection so made would not be permissible.

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Koshlya Devi vs State Of J And K And Ors. on 3 April, 2006

7. The above judgment relied upon by learned Counsel for respondent No. 4 is not applicable to the facts of present case. In the present case the Deputy Commissioner, Doda had only to make the selection from the panel. The panel was required to be made on the basis of interse merit of the candidates and as per the scheme the appointment to the post was to be made on the basis of merit alone. This apart, Deputy Commissioner Doda has not come before the Court to say that he had considered both the candidates and had found respondent No. 4 to be more suitable. Even the record of Deputy Commissioner does not disclose the reasons on the basis of which the better merit of petitioner was ignored. In the absence of such reasons it cannot be said that he had found respondent No. 4 to be more suitable for appointment. Therefore, the selection of respondent No. 4 cannot be anything less than an arbitrary selection. In the case relied upon by Mr. Anand the suitability on the basis of merit was to be adjudged by the Selection Committee and the Selection Committee had considered the respective merit of candidates before making selection for appointment. In the present case in the absence of relevant record it cannot be said that Deputy Commissioner had considered the respective merit of candidates. 8. Mr. Anand, learned Counsel for respondent No. 4 further contends that the petition of petitioner is liable to be dismissed for two reasons, first that she has challenged only selection of respondent No. 4 and not the validity of his appointment order; second, that since respondent No. 4 stands already regularized vide order dated 26.5.2005 his status has changed and he has become the permanent employee entitled to the protection under Article 311 of the Constitution of India read with Section 126 of the Constitution of Jammu & Kashmir. The regularization order not being the subject matter of challenge in the writ petition cannot be quashed at this stage. In support of the contention that in the absence of challenge to the appointment order, the petitioner cannot be allowed to maintain a challenge to the selection of respondent No. 4. Mr. Anand relies upon the case, entitled, Kunda S. Kadarn v. K.K. Somari , in which it was observed: In this view we set aside the judgment of the Division Bench of the High Court of Bombay and leave the matter at large. This means that the recommendation of the Public Service Commission will be back before the Municipal Corporation of Greater Bombay. According to law the Corporation will take its decision and thereafter in due course it will go for confirmation to the State Government. If any party is aggrieved by the appointment made it will be time enough for such aggrieved party to challenge the appointment. 9. From the aforesaid observations the legal position emerging is that it is only after the appointment is made an aggrieved party is entitled to challenge the selection and not before. It is a settled principle of law that mere selection does not confer a right of appointment to a selected candidate. In the present case the appointment has already been made, therefore the judgment relied upon by Mr. Anand will have no application. Since respondent No. 4 has already been appointed, therefore the petitioner can maintain a challenge to his selection and appointment. For maintaining such challenge it is not necessary to specifically challenge the appointment order. Once a challenge to the selection is made after appointment of a candidate, it by itself contemplates a challenge to the appointment and consequent, appointment order. Even if an order of appointment has not been challenged, it cannot affect the maintainability of writ petition to challenge the selection and appointment. As regards the regularization of respondent No. 4, the contention of learned Counsel for respondent No. 4 is without any merit for the reason that by an interim order passed in the writ petition the regularization of respondent No. 4 has already been made subject to the result of writ petition. Even otherwise the regularization of petitioner is consequent upon his selection, and if the selection goes, the regularization has also to go. In such a situation the absence of specific challenge to the regularization of respondent No. 4 cannot be fatal to the maintainability of writ petition of petitioner. The merit being the sole criteria for selection for appointment under the Scheme, the selection and consequent appointment of petitioner as Rehbar-e-Taleem Teacher cannot be sustained because of his possessing lower merit than the petitioner. Both, petitioner and respondent No. 4 have been stated in the panel to be residing within zero kilometers from the school, therefore, no preference could be given to respondent No. 4 for appointment over and above the petitioner. Even otherwise it is no ground to draw a distinction for making selection between petitioner and respondent No.
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Koshlya Devi vs State Of J And K And Ors. on 3 April, 2006

4. 10. In this view of the position the selection and appointment of respondent No. 4 as a Rehbar-e-Taleem Teacher and his consequent regularization deserves to be quashed. 11. Mr. Anand, learned Counsel for respondent No. 4 also contends that it will not equitable to throw respondent No. 4 out of the job after serving more than five years. The contention raised cannot be accepted for the reason that no equity can be invoked by respondent No. 4 in his favour when his initial appointment being arbitrary is void-ab-initio. He could not have been appointed legally over and above the petitioner. Equity when pitted against fundamental rights, it has to make way for enforcement of fundamental rights. The selection of respondent No. 4 over and above the petitioner has infringed his fundamental right of equality as guaranteed under Articles 14 & 16 of the Constitution of India. 12. For what has been stated above, the writ petition of petitioner is allowed and the selection, appointment and regularization of respondent No. 4 as Rehbar-e-Taleem Teacher under Rehbar-e-Taleem Scheme is set aside and the respondents are directed to issue appointment order in favour of petitioner. The petitioner, if by now has become overaged, the age bar will not come in her way for such appointment. Record of Deputy Commissioner, Doda has been returned to Mrs. Neeru Goswami in the open Court.

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