Ruqaya Jabeen and Another vs State of Jammu & Kashmir and Others

Mansoor Ahmad Mir, J.—It appears that advertisement notice No. 4 dated 19.04.1990 came to be issued by respondent No. 2-J&K

State Subordinate Service Recruitment Board, inviting applications for the post of teachers in terms of annexure-P1. Petitioners participated in

selection process but were not selected-appointed which constrained the petitioner to file writ petition in the year 1993.

Grievance of the petitioner is that Government vide order bearing No. 325/Edu of 1985 dated 16.07.1985 accorded sanction to reserve 3%

posts of teachers in each District for Instructors of Non-Formal Education-P5 and petitioners were eligible in terms of the said Government order

for appointment but were not appointed. The selection was made after two years. The private respondents who came to be appointed in the

category of Instructors of Non-Formal Education were not eligible. No preferential right could be claimed by any person on the basis of seniority

in terms of the said Government order. Respondents have also not acted in terms of the Government order, thereby deprived the petitioners from

their legitimate rights. They have also challenged the method of selection and the way interview was conducted. The selection was made after two

years from the date of advertisement.

Petitioners have prayed that selection of respondents 6 to 9 be quashed and petitioners be appointed.

Official respondents have resisted the petition on the grounds that selection process was conducted in terms of the Recruitment Rules of 1979

and selection and appointment came to be made in accordance with the merit and rules governing the field. All the meritorious candidates stand

appointed against the direct recruitment posts and all the instructors who were eligible in terms of Government order No. 325/Edu of 1985,

referred hereinabove, competed in the selection process and posts reserved for Adult Education came to be filled up as per the merit. The

petitioners could not qualify and cannot now make a U-turn by pleading that the selection process was bad and was not conducted in terms of the

rules applicable because of the fact that petitioners have participated in the selection process. Further, they have stated that the criteria laid down

for filling up the posts of teachers in terms of the advertise-merit notice came to be challenged before this Court and Division Bench of this Court

upheld the same. Further, respondents have stated that respondents 6 to 9 were eligible.

Petitioners competed in the selection process and could not be selected. They could not challenge the selection process after participating in the

selection process. Once they participated in the selection process, they could not thereafter challenge the process on the ground that selection was

not made in accordance with the rules and interview was conducted in a huff. They are estopped from challenging the selection process on that

count.

The contention of petitioners that there was a delay in completion of the selection process and it vitiated the selection process is not correct.

Division Bench of this Court in case titled Taskeena Fazil v. University of Kashmir and Ors. reported in 1998 SLJ 1 has also taken the same view.

It is profitable to reproduce para-24 of the said judgment herein, which read as under:

Similarly, we find no substance in the next contention of the Appellant that selection so made would not be proper after a long lapse of time,

since post in question was advertised long back. True it may be that selections should be made with in a reasonable time, but no hard and fast rule

can be laid down in this behalf, since selections get delayed for variety of reasons. Learned Counsel for the University has explained that on

account of serious disturbed conditions in the State, Selections to various posts in the University as well as other Departments of State Government

got delayed. Equally, untenable is the plea that in view of announcement of elections for the state, this selection could not be made for the reason

stated by the respondents in the preceding para of this Judgment.

Petitioners could not show how the selection of private respondents is bad. They have not produced anything on the file not to speak of proof.

Thus, this ground also fails. Petitioners in one breath challenge the selection process and in second breath they seek their appointment in terms of

the selection process.

Petitioners have virtually attributed malafides to the selection committee but they have not arrayed the said respondents as parties by name nor

specifically pleaded the malafides. It is also beaten law of the land that malafides cannot be attributed to selection committee. Division Bench of this

Court in case titled Taskeena Fazil v. University of Kashmir (supra) has observed as under:

Narration of facts from reply by the university and respondent plainly demonstrates that selection process is not actuated by mala fides. By

notification dated August 23, 1996, interviews fixed from August 25, 1996 were postponed. Since it was not possible for candidates to reach for

the same on account of blockade of National Highway from Srinagar. For the subjects of Distance Education and Geography, the interviews were

postponed as candidates had not arrived. These interviews were fixed during after-lunch Session. Whereas the interviews for post of Reader in

Iqbal Institute were fixed during pre-lunch Session and candidates had arrived for the purpose. Interviews were fixed at Delhi being a Central

Place, easily accessible to every one including the experts. Candidates are paid TA/DA for the interviews and there is no complaint, and the

contention that it was fixed where to facilitate the Selection of respondent-6 at the instance of the Ministers is hardly convincing. Therefore, mala

fides cannot be attributed to the Selection Committee for holding this interview and postponing the others. Allegation of influence by the two

Ministers has been strongly resisted not only by the University, but also by the rcspondent-6.

Having glance of the above discussion, the writ petition merit to be dismissed which is accordingly dismissed along with all connected CMP(s).

Interim direction, if any, shall stand vacated.