Nusrat Jan vs State of J&K & Ors.

N. Paul Vasanthakumar, C.J.—These appeal are preferred by one and the same appellant challenging the common order made in SWP Nos.

1652/2004 and 982/2004, dated 28.03.2012. In Writ Petition No. 982/2004 the 7th respondent sought quashing of order of appointment issued

in favour of 6th respondent issued on 28.01.2004 and also prayed to quash the 3rd panel dated 09.03.2004 prepared by the 4th respondent and

that directions be issued for appointment/engagement as Rehbar-e-Taleem in favour of the 7th respondent. In writ petition No. 1652/2004 the 7th

respondent in these appeals challenged the engagement of the appellant in these appeals as Rehbar-e-Taleem in Primary School Wagaypora,

Pombay issued by order dated 06.12.2004. The appointment of the 6th respondent which was challenged in SWP No.982/2004 was not quashed

and the 3rd panel dated 09.03.2004 wherein the appellant was placed at serial No. 1 and was also appointed, was quashed with a direction to the

official respondents to appoint the 7th respondent as 2nd Rehbabr-e-Taleem in Primary School, Wagaypora, Pombay. As against the dismissal of

the writ petition No. 982/2004 upholding the engagement of the 6th respondent, the 7th respondent has not preferred any appeal and the appellant

alone filed these appeals and challenged the common order.

The case of the 7th respondent before the writ Court was that the State Government by order dated 30.11.2002 sanctioned two Rehbar-e-

Taleem posts in primary school Wagaypora, Pombay, Education Zone, H.C. Gam under Sarva Shiksha Abhiyan Scheme. The Zonal Education

Officer without notifying the vacancies in the newly sanctioned school prepared a panel on 29.10.2003 comprising of a single candidate namely 6th

respondent, who was having 10+2 qualification with 257 marks out of 600 marks for one vacancy and the officer also informed the higher ups in

the department that no other candidate was eligible for the available second vacancy.

The 7th respondent having came to know about the availability of one vacancy approached the Deputy Commissioner, Anantnag on

17.02.2004 with an application, who in turn directed the Zonal Education Officer to submit a panel of eligible candidates of the village for

engagement as Rehbar-e-Taleem against the second vacancy available in the school and furnish the same to the Chief Education Officer of the

District. According to the 7th respondent, the Village Level Committee in its meeting held on 20.02.2004 prepared a panel comprising of the 7th

respondent alone as no other candidate with requisite qualification was available in the village and the Chief Education Officer was requested to

consider the engagement of the 7th respondent in terms of the panel. The appellant also submitted her application on 20.02.2004 for appointment

in the second vacancy. A fresh panel was prepared comprising the appellant as No. 1 and 7th respondent as No. 2 based on the marks possessed

by the appellant and the 7th respondent in 10+2. The said panel dated 09.03.2004 was challenged by contending that on the date when the posts

were sanctioned that was on 30.11.2002 and the date of preparation of the first panel dated 29.10.2003, the appellant was not possessing 10+2

qualification and the appellant possessed the 10+2 qualification only on 20.02.2004, therefore, the 7th respondent in the writ petition ought not to

have been empanelled and appointed. The Writ Court accepted the plea of the 7th respondent and quashed the panel dated 09.03.2004 and set

side the selection of the appellant. Having aggrieved over the same the appellant preferred these appeals contending that even though two

vacancies were available as per Government order dated 30.11.2002 under SSA scheme in the primary school, Wagaypora, Pombay, education

zone H.C. Gam, no advertisement was issued and only 6th respondent managed to apply and got selected and when the appellant came to know

about availability of the 2nd vacancy, she applied for the second vacancy on 20.02.2004 and the said application along with the application

submitted by the 7th respondent on 17.02.2004 were considered and based on the marks secured by the appellant she was selected and

appointed and the order of the Writ Court quashing the panel as well as consequential appointment is illegal as the writ petitioner namely the 7th

respondent has not applied based on the notification inviting applications and she applied like that of the appellant though three days prior to the

submission of application by the appellant and the 7th respondent, who has no right to be selected as a matter of right, has no locus standi to

challenge the panel dated 09.03.2004 and the consequential selection and appointment of the appellant.

Learned senior counsel appearing for the appellant reiterated the said contention and argued that the appellant was appointed in the year 2001

as Rehbar-e-Taleem under SSA Scheme and as of now she has been absorbed as a teacher in general line as she has rendered more than 10

years of service and now she cannot go for any other employment due to over age and by virtue of the employment given she has altered her

position and there is no illegality in her empanelment as well as consequential appointment given.

Learned counsel appearing for the 7th respondent, on the other hand, argued that when the 7th respondent applied on 17.02.2004, a panel was

drawn comprising her name only and drawing of the second panel for the second vacancy has created an embargo and therefore, learned Single

Judge was right in setting aside the panel dated 09.03.2004 and consequential selection and appointment with a direction to the official

respondents to appoint the 7th respondent as Rehbar-e-Taleem teacher in the second post.

The point in issue in these appeals is as to whether the 7th respondent. who had not applied pursuant to any advertisement issued and having

been placed in the panel based on her single application dated 17.02.2004 can claim that she alone shall be considered and the appellant shall not

be considered for the second R-e-T post, who also got her qualification on 20 02.2004.

Admittedly the official respondents have not issued any advertisement inviting applications including to the second post in the school. The 6th

respondent was empanelled as he was a qualified person available in the village and was given appointment. Though said appointment was

questioned by the 7th respondent, the same was not quashed and the 7th respondent has accepted the said order and no appeal has been filed.

Thus, the appointment of 6th respondent gets validated on the date of dismissal of the writ petition i.e. on 28.03.2012.

For the second vacancy, admittedly the appellant also applied on 20.02.2004 and on that date she was possessing the eligibility of 10+2

qualification. She was having higher marks than the 7th respondent in 10+2 examination, which is not in dispute. When the 7th respondent has

chosen to apply without inviting any application and the 2nd panel also was drawn only on 20.02.2004. Thus, she cannot contend that she alone

has to be considered for selection particularly when before her engagement the appellant also applied within three days i.e. 20.02.2004 and

authorities prepared thy 3rd panel placing the appellant as No. 1 based on the marks possessed by her and 7th respondent as No. 2 as she was

having lesser marks. In such circumstances, merely because the 7th respondent’s name was included in the 2nd panel that will not confer any

right to seek appointment.

It is settled proposition of law that mere inclusion of one’s name in the panel will not confer any right for selection and appointment, unless

and until appointment order is issued, the appointing authorities are empowered to withdraw the panel or not to act upon the panel. It is not in

dispute that in the panel dated 09.03.2004 the appellant was placed at serial No. 1 based on her merit and the same was also acted upon by giving

appointment to the appellant by order dated 06.12.2004 and she is also continuously serving in the post for over 11 years. Thus, the order of the

learned Single Judge in setting aside the panel dated 09.03.2004 and consequential selection and appointment of the appellant cannot be sustained.

Consequently writ appeal No. 29/2012 is allowed.

In view of the allowing of LPA No. 29/2012 and having regard to the fact that dismissal of the writ petition No. 982/2004 wherein the

engagement of the 6th respondent was challenged need not be gone into, hence the appellant’s right is already protected in the LPA No.

29/2012. Both the appeals are disposed of accordingly. No costs.