RANJANA SHARMA vs STATE OF JAMMU & KASHMIR & ORS

Through the medium of this writ petition, the petitioner is seeking quashing of Order No.ZEO/SSA/1102-05 dated 01.01.2005 issued on 31.03.2005

by the Zonal Education Officer, Lakhanpur, Kathua, respondent No.4 herein, whereby one Sunita Devi, respondent 5 herein, came to be appointed as

Rehbar-e-Taleem Teacher in Government Middle School Choi, Village Tridwan, Lakhanpur Zone, District Kathua. The petitioner is also seeking a

direction to respondents to appoint her against the said post having higher merit than respondent No.5.

The facts as projected in the writ petition are that pursuant to Advertisement Notice No.DSEJ/RET/4811-17 dated 29.06.2004 issued by Director

School Education, Jammu, respondent No.2 herein, petitioner as well as respondent No.5 applied for their appointment against the post of Rehbar-

eTaleem Teacher in Government Middle School Choi, Village Tridwan, Lakhanpur Zone, District Kathua. It is averred that one of the conditions of

said advertisement notice was that the applications were to be submitted to the concerned Zonal Education Officers of the respective zone under

proper receipt within 15 days of appearance of advertisement. Further, it is averred that though petitioner as well as respondent No.5 both were

graduates, yet petitioner was having much higher merit than respondent No.5. It is averred that after the expiry of 15 days, i.e., 14.07.2004,

respondent No.4 though prepared the panel for appointment against the said post, however, during the selection process respondent No.4 in order to

accord undue favour to respondent No.5, allowed her to place on record her B.Ed. marks sheet dated 07.10.2004, which itself reveals that the same

came to be acquired much after the last date of expiry of submission of application forms for the post-in-question. Thus, it is averred that respondent

No.4 while considering the qualification of B.Ed. of respondent No.5 selected her for the post-in-question and, accordingly, appointment Order

No.ZEO/SSA/1102-05 dated 01.01.2005 came to be issued on 31.03.2005. It is averred that feeling aggrieved, the petitioner submitted two separate

objections/representations to Director School Education, Jammu, however, respondent No.2 failed to take any appropriate action in the matter. Hence,

the present writ petition.

Objections have been filed on behalf of respondents. In the objections filed on behalf of official respondents 1 to 4, it is averred that respondent

No.5 came to be selected as Rehbar-e-Taleem Teacher in Middle School Choi, Village Tridwan on the basis of her having higher qualification of B.A.

than that of petitioner herein. Further, it is averred that Director School Education, Jammu vide Communication No.DSEJ/NG/SSA/10472-77 dated

12.10.2004 had clarified to all the Chief Education Officers of Jammu/Kathua that the applicants, who had applied earlier before the issuance of

Notification No.DSEJ/1872-79 dated 27.08.2004, be also included in the panels and the panels be updated accordingly. Thus, it is averred that

respondent No.4 in compliance to said communication dated 12.10.2004 updated the panel and included the qualification of respondent No.5 after the

cut-of date; thus she came to be selected having higher merit than that of petitioner.

In the objections filed on behalf of respondent No.5, it is averred that in view of her qualification of B.Ed., she was having higher merit than that of

petitioner herein. Further, it is averred that respondent No.5 was having the qualification of B.Ed. before finalization of the panel, so her qualification

of B.Ed. was rightly entertained by the then Zonal Education Officer.

I have heard learned counsel appearing for the parties, considered their rival contentions, perused the original record produced as well as the writ

record.

The question arises for consideration is: whether the petitioner had higher merit than respondent No.5 herein at the time of submission of application

forms and whether the qualification of B.Ed. acquired by respondent No.5 after the cut-off date for submission of application forms had rightly been

entertained by the concerned Zonal Education Officer or not.

In the objections filed on 31.05.2010, respondents 1 to 4 have specifically taken a stand in the preliminary objections that respondent No.5 had

higher qualification of B.A. than that of petitioner, relevant portion whereof is reproduced as under:

 “Preliminary objections:- ……. The Respondent No.5 was selected as RET at Middle School Choi Village Tridwan on the ground that the

Respondent No.5 had a higher qualification of B.A. than that of the petitioner. …….â€​

However, a perusal of original record, so produced, clearly reveals that at the time of submission of application forms for the post-in-question, the

petitioner and respondent No.5 both were having same qualification, i.e., 10+2 and graduation, yet obviously the petitioner was having higher merit

than that of respondent No.5. The petitioner was having 46.33% marks in 10+2 and 54.90% marks in Graduation, whereas respondent No.5 was

having 48.50% marks in 10+2 and 43.45% marks in Graduation. Even, respondent No.5 has admitted this position in paragraph-2 of preliminary

objections filed by her; meaning thereby respondents 1 to 4 have made a wrong statement in the objections, that too supported by an affidavit, for

which they are liable to be dealt with committing the offence of purgery.

Further, Advertisement Notice No.DSEJ/RET/4811-17 dated 29.06.2004 clearly stipulated that the applications were to be submitted to the

concerned Zonal Education Officers of the respective zone under proper receipt within 15 days of appearance of advertisement; meaning thereby any

qualification acquired by a candidate after the last date of submission of application forms was not to be taken into consideration.

A three Judge Bench of the Apex Court in Ashok Kumar Sharma vs. Chander Shekhar, (1997) 4 SCC 18, has held that where applications are

called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference

to that date and that date alone. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all.

An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound

by such representation. It cannot act contrary to it. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the

interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, an

impermissible justification. The minority opinion in the 1993 decision in Ashok Kumar Sharma case that the 33 respondents, who were not qualified on

the date of submission of the application but had acquired the requisite qualification before the date of interview, could not have been allowed to

appear for interview, was right.â€​

In U.P. Public Service Commission, U.P., Allahabad and Anr. v. Alpana, (1994) 2 SCC 723, the Apex Court has held that eligibility conditions

should be examined as on the last date for receipt of applications by the Commission. That too was a case where the result of a candidate was

declared subsequent to the last date of submission of the applications. This Court held that as the result does not relate back to the date of examination

and eligibility of the candidate is to be considered on the last date of submission of applications, therefore, a candidate, whose result has not been

declared upto the last date of submission of applications, would not be eligible.

Thus, the legal proposition that emerges from the settled position of law, as enumerated above, is that the result of examination does not relate

back to the date of examination and a person would possess qualification only on the date of declaration of the result. Therefore, granting any benefit

to respondent No.5 herein on the basis of B.Ed. qualification, which certainly she acquired much after the last date of submission of application forms

for the post-in-question, would be violative of doctrine of equality, a backbone of the fundamental rights under the Constitution.

Thus, it is crystal clear that the petitioner had higher merit than respondent No.5 herein at the time of submission of application forms and that the

qualification of B.Ed. acquired by respondent No.5 after the cut-off date for submission of application forms had wrongly been entertained by the

concerned Zonal Education Officer for giving undue benefit to her.

The next contention of respondents 1 to 4 is that Director School Education, Jammu vide Communication No.DSEJ/NG/SSA/10472-77 dated

12.10.2004 had clarified to all the Chief Education Officers of Jammu/Kathua that the applicants, who had applied earlier before the issuance of

Notification No.DSEJ/1872-79 dated 27.08.2004, be also included in the panels and the panels be updated accordingly. Thus, the stand of respondents

1 to 4 is that since respondent No.5 passed B.Ed. examination on 07.10.2004 and the said communication came to be issued on 12.10.2004, i.e., after

the declaration of B.Ed. result of respondent No.5, therefore in compliance to communication dated 12.10.2004, the B.Ed. qualification of respondent

No.5 came to be included after the cut-off-date and, accordingly, the panel was updated.

I do not find any merit in this contention of learned counsel for respondents 1 to 4 in view of settled position of law laid down by the Apex Court

(supra). Further, if there is some significance in Communication dated 12.10.2004 (supra), even then B.Ed. qualification of respondent No.5 had

wrongly been included in the panel. To elaborate the reasoning, it would be appropriate to reproduce hereunder the relevant portion of Communication

No.DSEJ/NG/SSA/10472-77 dated 12.10.2004 issued by Director School Education, Jammu:

 “It has been noticed that some Zonal Education Officers are confused as to whether the applications received before the issuance of last

notification vide this office No.DSEJ/1872-79 dated 27.08.2004 have to be included in the panel or not.

 It is, therefore, clarified that the applicants who had applied earlier before the issuance of said notification should also be included in the panel and

the panel should be updated without any further confusion.â€​

In this communication it has clearly been mentioned that the panels were to be updated with respect to only such applicants who had applied

earlier before the issuance of Notification No.DSEJ/1872-79 dated 27.08.2004; meaning thereby if the qualification was to be added, the same was to

be added in respect of such applicants who had acquired the same before the issuance of notification dated 27.08.2004 (supra) and not after that, and

the panels were to be updated accordingly. In the present case, it is the admitted case of respondents 1 to 4 that respondent No.5 acquired the

qualification of B.Ed. only on 07.10.2004, i.e., even much after the issuance of notification dated 27.08.2004, therefore, even the said notification does

not apply to the case of respondent No.5. Here, the respondents have intentionally tried to give a wrong impression that since communication was

issued on 12.10.2004, therefore, B.Ed. qualification of respondent No.5 came to be added, which actually she acquired on 07.10.2004. This is nothing,

but an arbitrary exercise of powers on the part of respondents 1 to 4, more particularly the then Zonal Education Officer, Lakhanpur.

Further, as per Advertisement Notice dated 29.06.2004, the applications for the post-in-question were to be submitted within 15 days of its

appearance, i.e., by or before the expiry of 15 days, i.e., 14.07.2004. The original application form of respondent No.5 reveals that she submitted her

application on 12.07.2004. As per own admission of respondents 1 to 4, respondent No.5 acquired the qualification of B.Ed. on 07.10.2004. However,

a perusal of original application form of respondent No.5 reveals that there is also an entry of her B.Ed. qualification. Once respondent No.5 submitted

her form on 12.07.2004 and the last date of submission of application forms was 14.07.2004, then how B.Ed. qualification of respondent No.5 came to

be written on her application form, which she certainly acquired on 12.07.2004; meaning thereby respondent No.5 tampered the original form in

connivance with respondent No.4, thus I find force in the contention of learned counsel for petitioner that respondent No.5 was being given undue

favour by the then Zonal Education Officer, Lakhanpur. It is also averred by the petitioner that after the declaration of result, she made two separate

objections/representations to Director School Education, Jammu but no action was taken in the matter. However, respondent No.2 has not specifically

denied this fact in the objections; meaning thereby respondents did not intend to appoint a genuine candidate against the post-inquestion, rather their

concern was only to appoint respondent No.5 by whatever means.

Thus, there is no obligation on the court to protect an illegal appointment.

However, keeping in view the fact that respondent No.5 came to be engaged in March, 2005 and as it has been brought to my notice during the

course of arguments that her services as General Line Teacher have already been regularized in the year 2010 after completion of five years of her

engagement as Rehbar-e-Taleem Teacher, therefore, it would not be feasible to disturb the appointment of respondent No.5 at this stage as she has

been serving the department for the last about 13 years. However, in order to advance the cause of justice and not to defeat the rights of petitioner

herein, respondent No.4 is directed to issue appointment order in favour of petitioner also against the post of General Line Teacher with all

consequential benefits minus monetary benefits on the same analogy of respondent No.5, whereby she first came to be appointed as Rehbar-e-Taleem

Teacher and thereafter regularized as General Line Teacher. Respondent No.2 is also directed to fix the seniority of petitioner over and above

respondent No.5. Respondents 1 & 2 are also directed that if there is no post of General Line Teacher available as on date in the said school, they are

directed to create supernumerary post for the petitioner and appoint her against the said post. Let this exercise be completed positively within a period

of eight weeks from today.

Before parting, it would be relevant to mention here that since respondent No.5 came to be appointed illegally by the then Zonal Education Officer,

Lakhanpur ignoring the genuine claim of petitioner, therefore, in the given circumstances, the then Zonal Education Officer, Lakhanpur, who issued the

appointment order of respondent No.5, is burdened with costs of rupees fifty thousands (Rs.50,000/-), to be deposited by him in the Registry of this

Court within a period of eight weeks from today. On deposit, the same shall be released in favour of petitioner after proper verification and

identification. Concerned Drawing and Disbursing Officer is directed not the release the salary of the then Zonal Education Officer, Lakhanpur,

wherever and on which post he is posted, till he produces the receipt of depositing the amount of fifty thousand in the Registry of this Court. If the

then Zonal Education Officer, Lakhanpur, has already been retired, it is directed not to release his pension till he deposits the amount of fifty thousand

in the Registry of this Court.

Registry is directed to return the record against proper receipt.

Disposed of along with connected miscellaneous petition(s).