Sahireena Begum vs State

Mr. B.S. Walia, J. - Brief background of the case is that pursuant to Advertisement notice dated 13.6.2010 issued by respondent No. 3,

respondent No. 4 prepared a panel of candidates by taking into consideration Govt. Order No. 288-Kdu of 2009, dated 8.4.2009, in which the

petitioner was shown at serial No. 3 on the basis of her academic merit. So far as the candidate figuring at serial No. 2 namely Mohd. Arshad

Khanday was concerned, the petitioner objected to the empanelment of respondent No. 2 on the ground that he was actually and physically

residing in a different hamlet i.e. Upper Tandar, therefore, was not entitled for consideration and appointment against the said post. Objections filed

by the petitioner were not decided, whereupon the petitioner invoked the jurisdiction of this court by way of SWP No. 310/2011, in which interim

order dated 15.02.2011 was passed staying the selection process.

During the pendency of the aforesaid writ petition, the Zonal Education Officer, Marwah, who had prepared the panel which had been

impugned in SWP No. 310/2011, was transferred and posted as Chief Education Officer, Baramulla and his successor submitted report Annexure

C, dated 11.05.2012 stating therein that the claim of the petitioner was genuine, as aforesaid Mohd. Arshad Khanday was actually and physically

resident of Mohra Upper Tandar. Accordingly the petitioner filed CMA No. 1778/2012 in SWP No. 310/2011 and prayed for disposal of the

writ petition on the basis of the report Annexure C, dated 11.05.2012 submitted by the ZEO, Marwah. CMA No. 1778/2012 was disposed of

vide order dated 12.06.2012 with a direction that the pendency of the writ petition would not come in the way of the respondents considering the

case of petitioner in terms of communication Annexure C, dated 11.05.2012 addressed by the ZEO, Marwah to CEO, Kishtwar. Pursuant

thereto, the official respondents engaged the petitioner as ReT in Primary School, Lower Tander vide Annexure-E, dated 17.06.2013.

Grievance of the petitioner is that it was due to the negligence and connivance of the then ZEO Marwah who inserted the name of Mohd.

Arshad Khanday i.e. respondent No. 2 over and above the petitioner in the panel that the engagement of the petitioner as ReT got delayed and

had there been no litigation, the petitioner would have been engaged as ReT in 2011 itself; that the petitioner's engagement as ReT was withheld

due to the reasons mentioned above for which the petitioner contested a long drawn litigation, resultantly the petitioner got engaged as ReT in the

year 2013 vide order Annexure E, dated 17.06.2013 and the process of her engagement got delayed from 04.08.2011 i.e. the date when the

other candidates who had competed in selection process of Rets along with the petitioner, came to be appointed.

Learned counsel contends that the claim is covered in terms of order of this court Annexure G, dated 12.06.2015 in SWP No. 1809/2015.

Relevant extract of the decision relied upon is reproduced hereunder:

In view of the circumstances leading to the delay in engagement of petitioner on account of filing of SWP No. 1058/2009 by one Ms. Rajinder

Kour which was dismissed on account of her not being eligible, petitioners claim for giving retrospective effect to his engagement with effect from

28.10.2009 needs consideration. Admittedly, the delay has not been occasioned on account of any fault attributable to the petitioner.

This petition is, accordingly, disposed of by directing that the respondents shall accord due consideration to the case of petitioner for giving effect

to the engagement of petitioner w.e.f. 28.10.2009 i.e. date when the other candidates figuring in the list were engaged and the petitioner could not

be engaged on account of litigation resorted to by Ms. Rajinder Kour

Aforementioned decision is claimed to be distinguishable and not applicable to the facts of the case. Learned AAG states that the matter is in

fact covered by a decision of the Division Bench of this Court dated 23.02.2016 in LPASWP No. 87/2015 and order dated 07.06.2016 in SWP

No. 1245/2010. Relevant extract of the decision of this Court in LPASW No. 87/2015 is reproduced hereunder:

1 xxx 2.

It is a fact that the respondent has not prayed for retrospective appointment in the earlier proceedings. A similar issue was considered by

Hon'ble Supreme Court in SWP (Civil) No. 9415-9416/2008 and by judgment dated 02.05.2011, in respect of ReT, Hon'ble Supreme Court

directed to consider the appointment of the petitioner as ReT w.e.f. the date of judgment of Writ Court. Hon'ble the Supreme Court further

ordered that the said appointment should be without monetary benefits. However, for regularization, the said period was directed to be taken into

consideration.

In this case, judgment of the Writ Court in the earlier proceedings was rendered on 22.02.2007, therefore, the order passed by the Writ Court

granting appointment w.e.f. 22.09.2003 stands modified to the effect that the appointment of the petitioner shall be treated from the date of

judgment notionally i.e. from 22.02.2007 for the purposes of getting regularization. However, he is entitled to get pecuniary benefits only from the

date of joining of the post.

Learned AAG has also relied on the decision of this Court in SWP No. 1245/2010. Relevant extract of the same is reproduced hereunder:

The only question arising in this writ petition, thus, is whether retrospective effect to the engagement of the petitioner from the date when Romesh

Kumar was engaged can be granted or not. The fact situation of the case covered under LPA(SW)No. 87/2015 disposed of by the learned

Division Bench vide judgment dated 23.02.2016 is identical to the fact situation of the case on hand. Respondent of that case was given

appointment pursuant to and in compliance with the judgment dated 22.02.2007 rendered by the learned writ court in an earlier writ petition, SWP

No. 1297/2004, filed by him. In that writ petition the petitioner had not prayed for retrospective appointment. Appointment order was issued in his

favour on 17.7.2013. The respondent filed another writ petition, SWP No. 2546/2013, in which learned Single Judge vide order dated

19.12.2014 issued direction to the respondents therein to treat the petitioner as having been appointed/engaged as ReT in Government Primary

School, Jangwal w.e.f 22.09.2003 though notionally, that is, with effect from the date when Ms. Janko Devi was engaged whose appointment

subsequently was found to be illegal and an outcome of fraud. In LPA filed by the respondents, learned Division Bench, while relying upon Hon'ble

Supreme Court judgment dated 02.05.2011 in SLP (Civil) 9415-9416/2008, modified the order passed by the learned Single Judge to the effect

that the appointment of respondent shall be treated from the date of judgment notionally, that is, from 22.02.2007, for the purposes of getting

regularization. It is apt to quote paragraphs-3,4 of the judgment dated 23.02.2016:

It is a fact that the respondent has not prayed for retrospective appointment in the earlier proceedings. A similar issue was considered by

Hon'ble the Supreme Court in SLP (Civil) No. 9415-9416/2008 and by judgment dated 02.05.2011, in respect of RET. Hon'ble the Supreme

Court directed to consider the appointment of the petitioner as RET w.e.f the date of judgment of writ Court. Hon'ble the Supreme Court further

ordered that the said appointment should be Without monetary benefits. However, for regularization, the said period was directed to be taken into

consideration.

In this case, judgment of the writ Court in the earlier proceedings was rendered on 22.02.2007, therefore, the order passed by the writ court

granting appointment w.e.f 22.09.2003 stands modified to the effect that the appointment of the petitioner shall be treated from the date of

judgment notionally i.e. from 22.02.2007 for the purposes of getting regularization. However, he is entitled to get pecuniary benefits only from the

date of joining the post.

Judgment dated 22.2.2006 rendered by this court in the earlier writ petition filed by the petitioner would show that retrospective engagement as

ReT neither was claimed by the petitioner nor ordered by the Court. Retrospective effect to his engagement, therefore, in view of the

aforementioned judgment of learned Division Bench, can be accorded only from the date of judgment, that is, 22.2.2006 and from no date prior

thereto, not even the date when the candid ate figuring at merit position no. 4, Ramesh Kumar, was engaged in R.S. Mohalla Bakerwan-II.

The Division Bench judgment in Dolly Kumari's case dated 3.12.1998 (supra) relied upon by the learned counsel for the petitioner does not apply

in the facts situation of this case. In that case the basic writ petition filed by the petitioner therein was dismissed by the Learned Single Judge as

case set up by the respondents ther in was that her name did not figure in the select list. In appeal, the learned Division Bench on examination of the

selection record, however, found that she figured at serial no. 49 in the merit list and, therefore, while issuing direction for her appointment also

directed the respondents to give her seniority from the date other candidates selected with her were appointed taking into consideration her

placement in the merit list. The retrospective effect to the appointment of the petitioner in effect was given in the basic writ petition though at LPA

stage and not in a subsequent writ petition as is the position in the case on hand.

The Sanjay Dhar's case relied upon by the learned counsel for the petitioner is authority oi i the proposition whether in such cases retrospective

appointment should be allowed or not. It, however, has no relevance to the proposition, whether such a benefit can be allowed in a subsequent

writ petition when it was not sought or granted in the earlier petition.

Learned counsel for the petitioner states that the writ petition can be disposed of by directing respondent No. 2 to consider the claim of the

petitioner for appointment to the post of ReT w.e.f. 04.08.2011 i.e. the date when the other candidates who had competed in the selection

process for the posts of ReTs along with the petitioner pursuant to Advertisement Notice dated 13.6.2010 issued by respondent No. 3 came to be

appointed and the claim of the petitioner for appointment as ReT w.e.f. 04.8.2011 be decided by respondent No. 2 by passing a speaking order.

The petitioner had objected to the empanelment of respondent No. 2 on the ground that he was actually and physically residing in a different

hamlet i.e. Upper Tandar, therefore, was not entitled for consideration and appointment against the said post. Objections filed by the petitioner

were not decided, whereupon the petitioner invoked the jurisdiction of this Court byway of SWP No. 310/2011, in which interim order dated

15.02.2011 was passed staying the selection process. Subsequently, the petitioner filed CMA No. 1778/2012 in SWP No. 310/2011 for disposal

of the writ petition on the basis of the report Annexure C dated 11.05.2012 submitted by the ZEO, Marwah. The same was disposed of vide

order dated 12.06.2012 with a direction that the pendency of the writ petition would not come in the way of the respondents considering the case

of petitioner in terms of communication Annexure C dated 11.05.2012 addressed by the ZEO, Marwah to CEO, Kishtwar. Pursuant thereto, the

official respondents engaged the petitioner as ReT in Primary School, Lower Tander vide Annexure-E dated 17.06.2013.

However, grievance of the petitioner in the instant writ petition is that it was due to the negligence and connivance of the then ZEO Marwah who

inserted the name of Mohd. Arshad Khanday i.e. respondent No. 2 over and above the petitioner in the panel that the engagement of the petitioner

as ReT got delayed and had there been no litigation, the petitioner would have been engaged as ReT in 2011 itself; that the petitioner's engagement

as ReT was withheld due to the reasons mentioned above for which the petitioner contested a long drawn litigation, resultantly the petitioner got

engaged as ReT in the year 2013 vide order Annexure E dated 17.06.2013 and the process of her engagement got delayed from 04.08.2011 i.e.

the date when the other candidates who had competed in selection process of Rets along with the petitioner, came, to be appointed.

That in the circumstances the case of the petitioner is covered by the judgments relied upon by the Learned AAG and not the judgment relied

upon by the learned counsel for the petitioner since the relief which has been sought by the petitioner in the instant writ petition was not granted by

the; learned writ court in SWP No. 310/2011.

In the light of the position noted above the petitioner is only entitled to be appointed w.e.f. the date of decision of SWP No. 310/2011 i.e.

12.06.2012 in the light of judgments relied upon by learned AAG. Accordingly, respondents are directed to treat the appointment of the petitioner

for all intents and purposes w.e.f. 12.06.2012 i.e. date of decision of SWP No. 310/2011 except for the purpose of grant of monetary benefits.

Necessary orders be issued reflecting aforementioned date of appointment within four weeks from the date certified copy of the order is submitted

to the respondents.

Writ petition along with connected MP stands disposed of in the aforementioned terms.