Abdul Rashid Khan and Another vs State and Others

Mohammad Yaqoob Mir, J.—With the consensus of learned Counsel for the parties, both the petitions are taken up for final disposal at

admission stage, as such, both petitions are admitted.

Subject matter of dispute in both the petitions pertains to filling up of one post of ReT as has become available due to resignation of one of the

appointed candidate, so this judgment will govern both the petitions.

After inviting applications for filling up two ReT posts in newly upgrade Primary School, Chekrashipora, vide notification No. ZEOB/Bpr/156-

57 dated 5.9.2008, panel came to be prepared and notified on 2.8.2009 in which two candidates, namely, Elias Maqbool Ward and Mohammad

Aslam Wani respectively figured at serial No. 1 and 2 whereas writ Petitioner Abdul Rashid Khan in the order of merit stood at serial No. 3.

Said Elias Ahmad Wani who figured at serial No. 1 also got selected as General Line Teacher as notified and published by SSRB on 22nd

January, 2009. Noticing the said development writ Petitioner Abdul Rashid Khan filed a representation before the Respondent Zonal Education

Officer claiming consideration as against the vacancy which would arise in view of selection of Elias Maqbool Wani as General Line Teacher. The

matter remained pending, in the meantime said Elias Maqbool Wani got appointed pursuant to aforesaid selection as General Line Teacher on

22.6.2009 as is clearly made mention of in the communication addressed by Respondent Zonal Education Officer to Chief Education Officer under

No. ZEOB/09/620 dated 3.7.2009. Furthermore, it is mentioned therein that Abdul Rashid Khan (writ Petitioner) figures at serial No. 3 in the list

of candidates already framed for engagement of ReT in the school at Check Reshipora.

Claim of the Writ Petitioner was that the panel prepared would remain valid for one year so the vacancy as has become available due to

resignation of Elias Maqbool Wani would now go to the Petitioner as being No. 3 in the panel in the order of merit.

Writ Petitioner Abdul Rashid Khan noticing the activities of the Respondents relatable to re-advertisement of the post filed SWP No. 256/2009.

Vide order dated 19.2.2009 recorded in the said petition, the Respondents were directed not to re-advertise the said post or fill up the same.

The process of selection and engagement of writ Petitioner Abdul Rashid Khan seem to have been initiated which was noticed by another writ

Petitioner Tahira Neelofar who filed SWP No. 1449/2009 praying therein that the post has become vacant, it shall be re-advertised so that every

eligible candidate competes for the same.

The moot point for consideration is as to ""whether the post vacated by the selected candidate Elias Maqbool Wani, is required to be re-

advertised or the candidate who in order of merit is at serial No. 3 has a right to be engaged?

The Respondent No. 2 (Director School Education) has issued a circular dated 1.12.2009, in pursuance whereof the ""panel for filling up of ReT

teacher posts for a school/schools shall be valid for one year from the date of framing of panel for considering enlisted candidates against

prospective vacancies in the school/schools"".

This circular is superseded by Government order No. 503-Edu of 2010 dated 10.6.2010, wherein it is provided: ""The validity of panel to be

drawn for the selection of ReT in any newly opened primary school/up-graded primary school shall, henceforth, be six months from the date of

issuance of engagement order in favour of the selected candidates"".

In light of said Government order it is now to be seen as to whether at the time Elias Maqbool Wani surrendered, the panel had expired or not.

The answer is that the panel was in force i.e. the said Elias Maqbool Wani on selection was appointed vide order No. ZEOB/09/460-61 dated

7.3.2009 and is stated to have been appointed as General Line Teacher on 22.6.2009. Six months time has to be counted from the date of

issuance of engagement order as ReT in favour of Elias Maqbool Wani which is 7.3.2009, so the panel would remain valid up to 7.9.2009.

Therefore, admittedly at the time Elias Maqbool Wani surrendered his post in view of his being appointed as General Line Teacher on 22.6.2009,

panel was valid as being within the prescribed period of six months. Petitioner Abdul Rashid Khan has immediately thereon represented to the

Respondents which fact is borne by the communication of Respondent Zonal Education Officer dated 3.7.2009.

The second question for consideration is as to whether merit list could be operated. According to writ Petitioner Tahira Neelofar, Petitioner

Abdul Rashid Khan figures at serial No. 8 of the panel which is correct but while assessing his merit, he is No. 3 in the list. The two posts were

advertised, on proper consideration selection was made and in the process of selection Petitioner Abdul Rashid Khan, in the order of merit, is at

serial No. 3. So when a vacancy from out of said advertised posts becomes vacant due to any situation, said vacancy has to be supplied from the

already prepared panel.

The object of validity of panel for a period of six months from the date of issuance of engagement order has an object i.e. to supply the

vacancy in case it becomes available due to resignation, death or other reasons.

Learned Counsel for the writ Petitioner Tahira Neelofar while arguing relied on the judgment Syed Imran Hussain Vs. State and Others, ,

wherein Coordinate Bench of this Court in the peculiar facts of the case has held that when one candidate surrendered the position, the post

becomes vacant, same is a fresh vacancy so has to be filled up by advertising it.

In opposition, learned Counsel for the Writ Petitioner Abdul Rashid Khan relied on the judgment captioned Surinder Singh v. State of Punjab

1997 STPL (LE) 23895 SO, wherein it has been held

but once the selected candidates join and no vacancy arises due to resignation etc. or for any other reasons within the period the list is to operate

under the rules or within reasonable period where no specific period is provided, then the candidate from the waiting list has no right to claim

appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent,

indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for

extraneous reasons.

The ratio of the judgment of the Hon'ble Apex Court squarely covers the case of the writ Petitioner Abdul Rashid Khan as detailed

hereinabove i.e. the list is in operation and within the prescribed period vacancy has become available due to the resignation/surrender by the

appointed candidate Elias Maqbool Wani, therefore, Petitioner has every right of consideration for engagement as ReT as against the vacancy

vacated by Elias Maqbool Wani.

Learned Counsel for the writ Petitioner Tahira Neelofar would further contend that in view of the communication issued by Director School

Education on 8. 8. 2009, it has been provided that filling up the prospective vacancies falling vacant due to resignation of ReT in upgraded primary

schools on the pattern i.e. as per revised norms for math or science as the case may be and the posts vacated by engaged ReT shall be filled up as

per revised norms (math/science pattern) by selecting the highest meritorious/qualified candidates amongst the math and science specified subjects.

The said communication firstly has no statutory force, secondly the vacancy became available on 7.3.2009 when the said communication was

not in force.

Re-advertisement of the post was a requirement in case panel would not have been in operation i.e. would have outlived. As clearly stated

hereinabove, the panel was operative so was to be taken into consideration while considering the engagement of writ Petitioner Abdul Rashid

Khan and it is in this backdrop perhaps the authorities concerned have notified the selection of writ Petitioner Abdul Rashid Khan as is clear from

the records. Therefore, Respondents shall proceed ahead with the selection/appointment of writ petition Petitioner Abdul Rashid Khan and shall

finalize the same strictly in accordance with rules within a period of four weeks from today.

Writ petition (SWP) No. 256/2009 of writ Petitioner Abdul Rashid Khan succeeds, shall stand disposed of whereas writ petition (SWP) No.

1449/2009 of writ Petitioner Tahira Neelofar shall stand dismissed along with connected CMP(s).