Rakesh Kumar vs State and Others

Virender Singh, J.—Appellant-writ Petitioner (hereinafter to be referred to as writ Petitioner only) was selected as Teaching Guide in Govt.

Primary School, Deeing, Tehsil Nowshera, District Rajouri vide order No. ZEO/D 1160-98 dated 24-1-2004. He consequently joined the said

school. A complaint was moved by Respondent No. 5 against him, alleging therein that he possessed lesser percentage of marks in graduation as

compared to him (Respondent No. 5). Ultimately, Director, School Education, Jammu (Respondent No. 2) vide order No. DSEJ/RET/23469

dated 4-3-2004 cancelled the selection of the writ Petitioner, which was questioned by him through the medium of writ petition bearing SWP No.

486 of 2004. During the pendency of the lis, operation of the order of cancellation of selection of the writ Petitioner was stayed. The writ petition

ultimately stands dismissed vide impugned judgment dated October 15, 2009 mainly on the ground that the writ Petitioner was admittedly having

less percentage of marks in graduation as compared to that of private Respondent No. 5 and, therefore, the order of cancellation of selection

passed by Respondent No. 2 does not suffer from any fault. Aggrieved of the said Judgment/ order, the writ Petitioner is once again before us

through the instant Letters Patent Appeal, which is at admission stage.

Heard Mr. Sethi, learned Senior Advocate assisted by Ms. Veenu Gupta, Mrs. Goswami appearing for Respondent Nos. 1 to 4 and Ms.

Shivani Jalali for private Respondent No. 5. Memo of appeal, impugned judgment and the Writ Court record have also been perused by us.

Mr. Sethi submits that the writ Petitioner was not only B.A., but also possessing the degree of B. Ed., which is a professional course for

teachers and as such, the case of the writ Petitioner was considered as per the guidelines issued by the government and ultimately, he came to be

selected in January, 2004. He then submits that may be at the time of submission of application form for the post, the writ Petitioner was having

compartment in B. Ed (Urdu subject), but subsequently, he was declared passed. He had otherwise cleared the said compartment before he was

appointed. Strengthening his arguments, Mr. Sethi then submits that Select Panel/Committee had considered the qualification of the writ Petitioner

as B.A., B. Ed whereas, the private Respondent was simply a graduate and, therefore, the Select Panel took the professional qualification of the

writ Petitioner into account and issued the order of appointment in his favour. He then submits that on a false and frivolous complaint of the private

Respondent, the appointment of the writ Petitioner was cancelled.

Mr. Sethi then submits that if at all Respondent No. 2 had to cancel the earlier order of appointment, he should have afforded an opportunity to

the writ Petitioner to project his grievance before passing the said order. Omission to issue notice of hearing to the writ Petitioner has, thus,

violated the principles of Natural Justice, which in turn caused grave prejudice to the writ Petitioner. On this score also, the order of cancellation,

questioned by the writ Petitioner, is not sustainable and this fact has not been considered by the learned Writ Court in its right perspective.

Mr. Sethi lastly submits that the case of the writ Petitioner is ripe for considering him as General Line Teacher as he has already put in more than

five years as R-e-T teacher and as such, falls in that zone of consideration. His ousting at this stage would spoil his entire career.

Per contra, Ms. Shivani Jalali appearing for the private Respondent submits that right from day one, the complainant was alleging that the

appointment is illegal and an undue favour has been shown to the writ Petitioner because of his father, who was then Zonal Education Officer. She

then submits that on 17th of Feb. 2004, a communication was addressed to Chief Education Officer, Rajouri by Directorate School Education,

Jammu, asking him to take appropriate action under rules, who submitted his report (Annexure R-3) that the writ Petitioner had completed his B.

Ed, compartment after the date of selection. Ms. Jalali then submits that thereafter Director School Education, Jammu directed Chief Education

Officer, Rajouri to cancel the selection of the writ Petitioner and ordered vide annexure R-5 to issue appointment letter in favour of the private

Respondent, but the said order could not be issued because of the currency of Model Code of Conduct, Chief Education Officer, Rajouri as such

vide communication dated 12th of March, 2004 (Annexure R-6) directed Zonal Education Officer, Dandesar (Respondent No. 4 in the main writ

petition) to issue the engagement order in favour of the private Respondent after expiry of the Code of Conduct. The learned Counsel then submits

that Zonal Education Officer was none else but the father of the writ Petitioner, who slept over the matter and did not issue the engagement order

in favour of the private Respondent and in the meantime, the writ Petitioner knocked at. the door of Writ Court in which by way of interim relief,

operation of letter No. DSEJ/RET/23469 dated 4th of March, 2004 came to be stayed. According to learned Counsel, father of the writ

Petitioner being in the Education Department had been manoeuvering all the affairs whereas, the private Respondent, who admittedly being more

meritorious than the writ Petitioner on the basis of the merit obtained by him in graduation and entitled to a preferential right of being selected in

place of the writ Petitioner way back in January, 2004 was deprived of his due.

Mrs. Goswami supports the stand taken by the private Respondent.

Admitted position before us is that the merit of the writ Petitioner in graduation was lower to that of private Respondent as the writ Petitioner

had secured 43.5% marks whereas private Respondent has secured 48.9% marks. Another admitted position before us is that at the time of

preparation of the panel, the writ Petitioner had not acquired the qualification of graduation in Education (B. Ed) as he was having compartment in

B. Ed. As per the material placed before the Writ Court, the correction/amendment in his B. Ed examination 2003 was made on January 8,2004

whereas, the Panel for selection was prepared in October, 2003.

It is scaled legal position that the qualification of a candidate, which he possesses on the last date of submitting application form has to be

considered for selecuon/appointment and not any other qualification which the candidate ac-quires later on. Subsequent qualification can be taken

into account, if Rules or Advertisement so permit. Admittedly, this was not the position in the case at hand. When the writ Petitioner applied for the

post of Teaching Guide for Govt. Primary School, Deeing, Tehsil Nowshera, District Rajouri, he was graduate only and so was the position of the

private Respondent. May be the writ Petitioner had appeared in B. Ed but was failing on account of compartment (Urdu language), which was

cleared by him subsequently on 8th of January, 2004. As per the select list prepared in furtherance to the selection process, admittedly, the writ

Petitioner was figuring at serial No. 5 with marks 719/1650 and the private Respondent figuring at serial No. 3 with marks 807/1650. No doubt,

the appointment order was issued in favour of the writ Petitioner on 24-1-2004 but that by itself would not be a ground to hold that when the writ

Petitioner applied for the post, he was B.A., B. Ed, and, therefore, having edge over the private Respondent. The educational qualification

acquired on the last date of receipt of application is to be considered and not the subsequent attainment of qualification.

Viewed thus, the appointment of the writ Petitioner was unjustified from its inception whereas he has enjoyed the fruits of his illegal

appointment for long seven years that too to the disadvantage to the private Respondent, who should have been selected at his place in January,

2004 itself.

The other argument advanced by Mr. Sethi that the order of cancellation is in violation of principles of natural justice does not appeal to us. In

case captioned M.C. Mehta Vs. Union of India (UOI) and Others, , it is held that it is not always necessary for the court to strike down an order

merely because it has been passed against a Petitioner in breach of principles of natural justice. If on the admitted or undisputed factual position,

only one conclusion is possible and permissible, the court need not issue a writ merely because there is a violation of principles of natural justice. In

the case at hand same is the position as the appointment made in favour of the writ Petitioner was bad in its inception and, therefore, he possibly

could not develop his case better than what was borne out from the record. Thus, there is no violation of principles of natural justice.

As a sequel to the aforesaid discussion, we do not find any fault in the impugned order/Judgment rendered by the learned Writ Court on any

count calling for our interference. Resultantly, the instant appeal stands dismissed along with CMP(s), if any. The official Respondents are directed

to appoint the private Respondent as Teaching Guide in Govt. Primary School, Deeing, Tehsil Nowshera, District Rajouri from the date when the

writ Petitioner came to be appointed, so that all consequential reliefs flow towards him, but for the monetary benefits. An early action is expected

in this case, lest it calls for a stern action by the court.

Keeping in view the peculiar features of the case that the Appellant-writ Petitioner has been disengaged after rendering about seven years of

service as R-e-T, the official Respondents will be at liberty to consider the case of the Appellant-writ Petitioner for his suitable adjustment, may be

as an exceptional case, if they so choose and the rules permit.