Jatinder Singh vs State Of Jammu & Kashmir And Ors

This Letters patent appeal (LPA) has been preferred against the judgment and order dated 22.04.2016 passed by the learned Single Judge in SWP no. 832/2016.

Briefly stated the material facts are as under:

The Petitioner-appellant herein was one of the candidates who had found his name at Serial No. 2 in the merit panel prepared for the post of Rehbar-e-Taleem (R-e-T) in the Math Stream in Upper Primary School, Channi Tanna, Zone Jourian. One Chanchala Kumari was placed at Serial No. 1 in the select list who came to be appointed as R-e-T in the year 2010. Subsequently, it transpired that the 10+2 certificate submitted by the said Chanchala Kumari at the time of seeking consideration for appointment was forged. It also appears that a case came to be registered with the Crime Branch, Jammu in that regard in the year 2015. The said Chanchala Kumari on sensing trouble accordingly submitted a resignation in August, 2014.

It appears that a representation came to be filed by the petitioner-appellant herein before the official respondents seeking consideration for appointment in view of the fact that the appointed candidate had since resigned.

Failing to elicit any favourable response, the petitioner-appellant herein filed the aforementioned writ petition before the writ Court, which by virtue of order dated 22.04.2016 impugned in the present LPA, dismissed the same.

The basis of dismissal of the writ petition was that a period of close to seven years had elapsed since the advertisement and six years since the appointment of Chanchalla Kumari in whose place the petitioner was seeking to get appointed. It was also held that the select list was valid for a period of six months only from the date of issuance of engagement order and, therefore, it was held that the petitioner had no right. Simultaneously the writ Court appears to have issued directions that the respondents would carry out a fresh selection for the post of R-e-T for the said Zone, Jourian and that the appellant herein would also be allowed to compete for the selection irrespective of whether he had crossed the age bar.

Learned counsel for the petitioner-appellant herein states that the writ Court proceeded to dismiss the writ petition on the ground of delay without appreciating that the simple relief that had been sought by the petitioner before the Court was one of consideration by the concerned authorities.

Mr. Ravinder Gupta, learned AAG appearing for the official respondents, on the other hand, supported and reiterated the view expressed by the writ Court on the ground of delay and laches. It was stated that even after having made a representation before the official respondents in the year 2016, the appellant herein had kept quiet for a period of more than one year and had filed the writ petition in the year 2016.

Heard learned counsel for the parties.

Admittedly, the name of the appellant had figured at Serial No. 2 in the tentative panel. It is also admitted that Chanchala Kumari whose name figured at Serial No. 1 in the panel had obtained her appointment on the basis of a fraudulent 10+2 certificate. Had the fraud been detected by the official respondents at the very initial stage of the selection process and had the official respondents been diligent enough to scrutinize the certificates to determine the eligibility of candidates correctly, the petitioner-appellant herein would have certainly been appointed. Failure on the part of the official respondents to determine the eligibility of the candidates in whose favour the appointment order were proposed to be issued had adversely affected the right of the petitioner-appellant herein.

Learned counsel for the petitioner-appellant herein, however, states that in case the post vacated by Ms. Chanchala Kumari upon resignation, remained unfilled, then the necessary consequence ought to have been to fill up the same by considering the appellant herein who was next in the merit panel.

The petition filed by the appellant has been dismissed by the writ Court on the ground of delay and laches. It is settled law that the principle of delay and laches is not followed by the Courts as a matter of rule. The principle of delay and laches does not apply with the same rigour as the law of limitation rather the said principle is invoked with a view to deny relief to such of the parties as are found to be indolent or have been found to be wanting in responding quickly to enforce their legal rights.

In the present case, however, that does not appear to be so. Petitioner-appellant herein could not have been expected to know in the year 2010 when the appointment was offered to Ms. Chanchala Kumari that the certificate submitted by her to prove her eligibility were fraudulently obtained and was fake. The issue was highlighted only when the FIR was registered in September, 2015 preceded by her resignation in August, 2014.

It appears that a representation too had been filed by the appellant before the concerned authorities. Considering the entire sequence of events, it cannot be said that the petitioner-appellant herein was not diligent in following his case for consideration for appointment.

It needs to be highlighted that the petitioner-appellant herein had succeeded in finding his name in the merit panel at Serial No. 2 which may be the only opportunity which he may get in his life time to get appointment against the post of R-e-T.

Learned counsel for the petitioner-appellant herein states that the appellant is still unemployed and has crossed the age bar also. Had the official respondents been diligent enough in scrutinizing the certificates of the selected candidates, the appellant would certainly have been appointed. Appellant, therefore, cannot be made to suffer for the failure of the official respondents. Appellant would, thus, certainly have a better right to seek appointment against the post so vacated by Chanchala Kumari.

This we say especially in view of the fact that the post so vacated cannot now be filled up by fresh advertisement because the State Government in principle has taken a policy decision to give up the R-e-T Scheme vide Government Order No. 919-Edu of 2018 dated 16.11.2018 under which the appointments were made in the past.

Since there are no competing interest of any other candidate as against the appellant's interest, we deem it appropriate, in the facts and circumstances of this case, to set aside the order passed by the writ Court and issue a direction to the official respondents to consider the case of the petitioner-appellant herein for appointment against the one post vacated by Ms. Chanchala Kumari keeping in view the fact that his name figured in the merit panel. While considering the case of the appellant, it will be deemed that the life of the merit panel still survives. In addition to this, the fact that the R-e-T Scheme has since been closed, shall also not be a bar to accord such a consideration.

Let a decision be taken within a period of six weeks from the date a copy of this order is served upon the respondents.

With the aforementioned directions, the appeal stands disposed of.