Nirmla Kumari vs Union Of India And Ors

Thakur, J

The present Letters Patent Appeal has been preferred against the judgment and order dated 24.12.2019 passed by the learned single judge in SWP

No. 161/2004.

Briefly stated the material facts are as under:-

The petitioner and one Pooja Rani (respondent No. 7 herein) among others applied for the post of RET in Govt. Primary School, Bhambaran. The

said respondent came to be appointed on the basis of merit as RET teacher on 16.01.2004. It is not denied that the said respondent has since been

regularized as a regular teacher after completion of five years of service as RET and is currently discharging her duties in the department of

Education. Cause of action is stated to have accrued to the appellant, as is apparent from the averments made in the petition, wherein it was alleged

that after joining the duty at Government Primary School, Bhambaran, the said respondent was absent from duty on account of the fact that she was

doing her B.Ed Course in Calliope College of Education as a regular candidate. A legal notice is also stated to have been served on the official

respondents for cancellation of her appointment with a request for appointment of the petitioner, as her name figured at Serial No. 2 in the panel so

prepared. Failure to elicit any response from the official respondents is stated to have given the cause of action to the petitioner (appellant herein) to

file the writ petition, which was disposed of vide judgment and order dated 24.12.2019 , impugned in the present Letters Patent Appeal. The Writ

Court held that the RET scheme had since been closed and that even if the post held by the private respondent was to fall vacant, the same would be

filled up only in a selection process conducted by the J&K Service Selection Recruitment Board.

It was held that the panel got exhausted when the respondent No. 7 was appointed and, therefore, the appellant would not get any preference on

account of her placement at serial No. 2 in the said panel. The Writ Court also left it open to the official respondents to proceed against the private

respondent, if the allegations leveled were found to be correct and if she had remained unauthorizedly absent, thereby violating the J&K Civil Services

(Classification, control and Appeal) Rules, 1956. The petition was consequently dismissed.

Learned counsel for the appellant urged that the view expressed by the Writ Court was legally erroneous inasmuch as, the life of the panel survived

for a period of six months even from the date of appointment and if for any reason, the candidate even after joining, resigned or was ousted from

service, the next candidate in merit could have been considered for appointment and, therefore, the view expressed by the writ court that the panel

exhausted the moment respondent No. 7 came to be appointed was legally erroneous.

Mr. Ravinder Gupta, learned AAG supported the view expressed by the learned counsel for the appellant only to the limited extent that life of the

panel did survive for a period of six months and that in case, respondent No. 7 had resigned or was ousted from service, then the appellant could

certainly be considered, but since that has not happened in the present case and the RET scheme has since been closed, the appellant cannot not at all,

seek the benefit only on the basis of fact that her name figured at serial No. 2 in the panel.

We have heard learned counsel for the parties.

We are of the opinion that although there are allegations leveled against the private respondent No. 7 that she had remained unauthorizedly absent

and was simultaneously undergoing B.Ed course in a private college, yet the same has not been substantiated in any inquiry proceedings and in the

meantime, the said respondent has even been regularized as a regular teacher. Therefore, the petitioner, at this stage, cannot claim that the panel be

made to operate and in case, the private respondent No. 7 is ousted from service, the same be filled up by appointing the petitioner (appellant herein)

because, in any case, the life of the panel could not have been extended beyond a period of six months and, therefore, no benefit could ever flow to

the appellant as on date. Moreover, even the scheme of appointing RET has since been closed and, therefore, no such direction granting relief could

be issued.

Having said that, the next question arises is to whether the private respondent No. 7 had remained unauthorizedly absent and whether any action

requires to be taken against her and whether there was any concealment by her that she was undergoing a B.Ed Course simultaneously while working

as RET teacher in Primary School, Bhambram. While the writ court has left it open to the official respondents to proceed against the private

respondent No. 7, on that account, we feel that it is too late in the day to permit any inquiry at this stage especially when the petitioner put in more

than seventeen years as a teacher and has changed her position and status in life. If the allegations against her are proved to be correct at this stage

after more than seventeen years, it would bring in untold misery to not only the private respondents, but also the family, which might be dependent on

her. All this without any direct benefits flowing to the appellant herein.

For the reasons mentioned above, we do not find any merit in the present appeal. The order with regard to conduct of an inquiry shall stand

modified to the extent of the observations made hereinabove.

Disposed of accordingly along with connected CM(s).