Manzoor Ahmad Bandh vs State and Others

Bashir A. Kirmani, J.—Claiming to have applied for being appointed as RT in newly created Government School of Banderpora in response

to advertisement notice No. 5720-DSEK of 2003 dated 13.12,03 publicized through concerned Chief Education Officer vide his no,

CEO/PUL/SSA/1133-45 dated 16.02.2004 the petitioner complains that even though submitted in time on 4.3.2004 while the cut of date was

10th March 2004 the concerned ZEO i.e. respondent No. 4 refused to entertain his application on the ground that he was already engaged as

educational volunteer in NGS Centre Banderpora, whereupon he presented the application to concerned CEO i.e. respondent No. 3 against

receipt No. 9571 dated 4.3.2004 which was marked by him to ZEO concerned with a direction for his enlistment in the panel of candidates, who

instead of complying it brought the matter to notice of Director (second respondent) informing him about petitioner's prior engagement as

educational volunteer and the subsequent receipt of his application as endorsed by CEO on 11th March, 2004, in response whereto Director

informed the CEO that the panel once drawn up could not be changed after expiry of the last date for receipt of applications, as result whereof the

petitioner was left out of the panel. Aggrieved thereby, he seeks issuance of direction against respondents for his inclusion in the RT panel already

prepared aforesaid. Grounds pleaded are that he being the most meritorious candidate available in the locality should have been selected which

was not done due to concerned ZEO's refusal to receive his application on the pretext of his having been already engaged as educational volunteer

which directly violates his rights.

In their reply official respondents 1 to 4 have among other things pleaded that the school in question was sanctioned for concerned village under

Serva Shiksha Abhiyan Scheme"" (SSAS) and in order to fill up the available vacancy of teachers, applications were sought from eligible

candidates by ZEO concerned with last date of receipt of applications fixed as 10.03.2004, and the panel prepared out of candidates who applied

before the ZEO in time. In his separate reply the private respondent No. 5 has inter alia maintained that petitioner was rightly left out of

consideration because he was already engaged as educational volunteer and had not applied for the post of RT in question before cut of date

prescribed for the same. During course of their submissions the learned Counsel appearing for parties have reiterated the contents of their

pleadings as summarized above.

I have heard learned Counsel and considered the matter. The essence of controversy involved in the instant case is, as to whether or not,

petitioner did as a matter of fact apply for his engagement against one of the vacancies available in newly created school as aforesaid within the cut

of date. While respondents maintain that he did not, the petitioner contends that he did, but concerned ZEO refused acceptance of his application

whereafter he approached the CEO who received the same on 4th Match, 2004 against receipt No. 9571, copy whereof has been appended with

the writ petition. This fact is not denied by respondents also, and in order to get rid thereof the concerned ZEO who has signed the reply on behalf

of the official respondents has pleaded that applications were required to be presented to and received by concerned ZEO and not by any other

officer. For saying so, reliance has been placed on the advertisement notice purporting to have been issued by him asking candidates to submit

their applications before 10th March, 2004 in ZEO's office Tahab. So, in view of the contention projected the question would be whether the

presentation of application by petitioner before CEO within cut off date after refusal of concerned ZEO to receive the same would in effect mean

non submission of the application within time. In this behalf it may be appropriate to mention that under his communication No. ZEO/T/04/27-28

dated 19.04.2004 addressed by concerned ZEO to Director School Education, Kashmir whereunder he has admitted that petitioner approached

his officer for engagement as RT in newly sanctioned Primary School but the office did not receive his application whereupon he approached the

CEO who directed his enlistment as a candidate even though, he has already been appointed as educational volunteer in E.G.S centre Banderpora

vide CEO's order No. 529-40 dated 25.11.2003 etc.

In view of this communication the petitioner's claim of having approached the ZEO with his application for appointment as RT in the Primary

School concerned and the ZEO's refusal to accept the same is almost admitted. Obviously therefore, the petitioner had no option but to approach

the CEO concerned who as per the official receipt received his application dt. 4th March 2004 and endorsed the same to the concerned ZEO on

10th March, 2004 which is admitted by ZEO as having been received on 11th March 2004 and hence in his opinion beyond the cut of date.

Plainly and without unnecessarily hair splitting the conduct of concerned ZEO in refusing petitioner's application was not proper. So, when the

petitioner after ZEO's refusal to receive his application approached the concerned CEO, it was the most natural thing for him to do, and in the

circumstances would certainly amount to presentation of the application before competent authority within time, especially when the same was

marked to the concerned ZEO by the CEO on 10th March 2004. Why he did not mark it to ZEO before that, would be best known to him, but

petitioner cannot be condemned to suffer on that count, nor could it be open to concerned ZEO to refuse the application while within time, and

then object to receive of the same on the ground of being beyond time. This, to say the least, reflects sheer malafides on part of concerned ZEO

who appears to have been at pains to justify petitioner's ouster from candidature on the pretext of having applied beyond the cut of date while he

himself was responsible for pushing him beyond the cut off time. That the Director respondent No. 2 ultimately agreed with the logic of ZEO and

thereby precipitated petitioner's ouster from candidature as aforesaid, is simply deplorable, and certainly not in keeping with the sense of fairness

that should ordinarily be manifest at such a high administrative level. The conclusion, therefore, on this aspect is that in given circumstances as

cataloged above and sufficiently borne out by the official communication on record, the petitioner is deemed to have applied for the post of RT

well in time.

Before proceeding further, however, it would be appropriate to observe that materials on record suggest that some of the candidates who had

applied for the post had appended such academic certificates with their applications which were later found to be fake/fraud on verification. But

incidentally no action seems to have been taken on that aspect of the matter, which simply reflects a tendency of an almost criminal omission on

part of all the officer to whose notice it came. Perusal of certain civil court orders available on record suggests that selection process initiated in the

matter has also suffered interference by local MLA as also certain protestation of local youth. All these features taken together appear to have

effected the whole selection process due to which apparently all the circumstances cataloged above fountained up as undesirable offshoots.

In totality of circumstances therefore, the writ petition is disposed of with following directions:

(a) That selection process purporting to have been initiated in the matter by concerned ZED being infected with un-explained discrepancies is

quashed in its entirety with a direction for its re-initiation and completion before 31st of May, 2006 with full opportunity to all educated and eligible

candidates to participate therein.

(e) The officer who has been the ZEO concerned in March 2004, if continuing in the office till date, shall not be associated with the process of

selection as aforesaid. Instead the selection process be conducted by the CEO.

(f) The CEO shall within two weeks from now have criminal cases registered against the candidate(s) alleged of having produced fake/fraudulent

certificates along with their application forms during course of selection and pursue the investigation till its completion.

(g) The civil litigation going on in the matter, if any, shall stand concluded in terms of this judgement and the concerned Presiding Officer shall

immediately record follow up orders accordingly.

(h) For assuring compliance hereof, copies of this order be communicated to Div. Commissioner; Deputy Commissioner concerned; Director

School Education besides all concerned officers,

The matter stands accordingly disposed of along with all connected CMP(s).