Ara vs State and Others

F.M. Ibrahim Kalifulla, Acting Chief Justice

This appeal is directed against the order of the learned Single judge dated 26-02-2009 passed in SWP No. 776/2008.

There was an Advertisement Notice dated 07-05-2007 calling for applications for the replacement of one Rehbar-e-Taleem in Primary School

Ardpora (Kandiwara) from the eligible candidates of the revenue village Kandiwara having qualification 10+2 or above.

Among the various applicants, Riyaz Ahmad Bhat, Muzaffar Zaman Mir and the appellant Masarat Jan apart from one Rifat Jan came to be

considered and their names came to be arrayed in the list according to their merits. However, it is stated that Muzaffar Zaman Mir was tentatively

selected for being appointed in the replacement vacancy for the Primary School, Ardpora at Kandiwara.

Be that as it may, there was a subsequent advertisement notice for the posts of ReT in upgraded Girls Middle School Kandiwara. There were

two posts. Mr. Muzaffar Zaman Mir stated to have staked his claim for the said post also and his name was found in the 1st place in the tentative

list apart from the other candidates. There was a notification issued on 31-03-2008 for the posts of ReT in Primary School, Ardpora where

Muzaffar Zaman Mir came to be ultimately short listed. However, Mr. Muzaffar Zaman Mir sent a letter of withdrawal dated 04-04-2008 in his

own hand writing, making it clear that he is withdrawing from the tentative selection of ReT in Ardpora with the hope that his claim for appointment

to the post of ReT at Girls Middle School, Kandiwara will be made in his favour. Having regard to such a categoric stand made by the said

Muzaffar Zaman in his letter dated 04-04-2008, his name came to be dropped.

As far as the Girls Middle School, Kandiwara was concerned, two other candidates, by name, Asmat Jan and Mumtaza Akhter were selected

and by notification dated 13-09-2008, the tentative select list was also announced. It is common ground that those two candidates came to be

ultimately appointed in the said posts at Girls Middle School, Kandiwara.

In the above stated background, the present appellant who was 2nd in the tentative list who was next to Muzaffar Zaman for the replacement

post of ReT in Primary School, Ardpora came forward with the present writ petition (SWP No. 776/2008) seeking for issuance of Mandamus to

consider her for appointment to the replacement post of ReT in Primary School, Ardpora Kandiwara and for issuance of necessary orders of

appointment. It will have to be slated that at the time when the said writ petition was filed, the position was that Mr. Muzaffar Zaman Mir submitted

his letter of withdrawal dated 04-04-2008 for the post of ReT in Primary School, Ardpora which remained unfilled, while the two posts at Girls

Middle School, Kandiwara were already filled up.

By the impugned order, the learned Single Judge issued a direction to the respondents to the effect that the official respondents are free to offer

appointment to Shri Muzaffar Zaman Mir, who figured at S.No. 2 in the select list and in case, he failed to turn up or refuse the appointment, the

said post can be offered to the appellant for appointment.

The learned Single Judge, while issuing the said direction, observed that merely because Mr. Muzaffar Zaman Mir applied for another post in

terms of the subsequent notification, it cannot be held that the same would work as an impediment for him for being considered for the appointment

in terms of the already finalized select list in respect of the post of Primary School, Ardpora.

One other factor which has now surfaced in the course of submission is that Mr. Muzaffar Zaman Mir subsequently applied for the post in

Primary school, Sochal Mundoo where there were two vacancies notified. There again the name of Muzaffar Zaman has been notified in the select

list dated 13-07-2011. It is also slated that the said select list is subject matter of challenge in some other writ petitions.

In the above stated background when we consider the grievances of the appellant as projected in the writ petition as well as in this appeal, we

are of the view that the appellant's claim deserves to be considered in her favour for more than one reason. In the first place, for the post of ReT

by way of replacement at Primary School Ardpora, the appellant's name was 2nd in the select list i.e. next to Muzaffar Zaman. Indisputably,

Muzaffar Zaman in his withdrawal letter dated 04-04-2008 expressed in uncertain terms that he was not interested in the said post since he was

higher qualified and therefore, his claim for the post of Girls Middle School Kandiwara would be more suitable befitting his qualification and that

the school at Ardpora is one kilometer away from his village and therefore, he wanted to withdraw his choice of selection for that post.

After 04-04-2008, though the said Muzaffar Zaman was not considered for one of the two posts at Girls Middle School, Kandiwara

advertised in the notification dated 13-09-2008, there was no challenge made by him for getting back his appointment in the post of Primary

School, Ardpora. Therefore, it will have to be held that Mr. Muzaffar Zaman on second thoughts wanted to renew his claim for the Primary School

Ardpora, inasmuch as his aspiration for one of the two posts in the Girls Middle School, Kandiwara did not fructify. Unfortunately, the above said

position relating to the desire of Muzaffar Zaman more for the post at Girls Middle School Kandiwara was not brought to the notice of the learned

Single Judge, who was apparently persuaded to pass the impugned order directing the official respondents to make one more offer to Muzaffar

Zaman Mir. We are, therefore, of the view that such a perception which weighed with the learned Single Judge cannot work against the interest of

the appellant who was very keen to accept the post of Primary School Ardpora right from the beginning when her name appeared in the tentative

select list where her name was next to Muzaffar Zaman. When once Muzaffar Zaman Mir expressed his inclination not to accept the 7 post of

Primary School Ardpora, choice of the appointment for the said post should have been given to the appellant. That apart, the subsequent selection

of Muzaffar Zaman Mir for one of the posts of Primary School, Sochal Milndoo as per the notification dated 30-07-2011 also make the position

more favourable for the appellant being considered for the post of Primary School, Ardpora.

As far as the submission that the present selection of Muzaffar Zaman for the post of Primary School, Sochal Mundoo is being challenged, it is

a matter which Muzaffar Zaman Mir will have to face and work out on its own merits. On that score, the post of ReT in Primary School Ardpora

cannot remain unfilled any longer in public interest. Therefore, the process of selection for the post of ReT in Primary School Ardpora having been

finalized as early as in the year 2008 should be concluded and the claim of the appellant should be approved and the appointment in her favour

should be made in the interest of the public as well after satisfying all the other statutory requirements.

The appeal stands allowed and the official respondents shall pass appropriate orders relating to the appointment for the post of ReT in Primary

School Ardpora expeditiously, preferably within a period of one month from the date of receipt of copy of

The Appeal stands disposed of along with connected.