Sarfaraz Maqbool Bhat vs State and Others

Muzaffar Hussain Attar, J.—Petitioner, in the year 2009, responded to the Notification of Service Selection Board (SSB) and sought

consideration for being selected/appointed on the post of teacher as a handicapped category candidate. Petitioner along with other candidates was

selected by the respondent-Selection Board for being appointed on the post of teacher. The respondent-Selection Board vide Communication

dated 20th May, 2009 made recommendations for appointing the selected candidates on the post of teachers in District Baramulla. The petitioner

could not be appointed, because one Naseema Bashir filed SWP. No. 182/2009 challenging the selection of the petitioner. The post, on which,

the petitioner was recommended to be appointed, was not filled up because of the Court orders. The petitioner also filed writ petition bearing

SWP. No. 1006/2009. Both the writ petitions were considered together by the Court and the Court vide its Order dated 10th June, 2011

dismissed the writ petition of Naseema Bashir and in the writ petition of present petitioner, respondents were directed to proceed in the matter.

Naseema Bashir challenged the judgment of the Writ Court in the Letters Patent Appeal. The Letters Patent Bench directed for maintenance of

status-quo in respect of appointment of the petitioner. The Letters Patent Appeal was dismissed on 23rd August, 2012 The respondent-Selection

Board made recommendations in favour of the petitioner on 26th July, 2011. The petitioner was appointed on the post of teacher vide Order No.

1638-DSEK of 2011 dated 20th August, 2011 issued by Director School Education, Kashmir.

In this writ petition, it is prayed by the petitioner that respondents be directed to give retrospective effect to the appointment of the petitioner and

give him all service benefits viz. salary, increments and seniority from the date the other candidates were selected alongwith the petitioner and were

thereafter appointed in the year 2009.

The petitioner, admittedly, was selected on the basis of his merit for being appointed on the post of teacher alongwith other competing

candidates way back in the year 2009 by the respondent-Selection Board. The petitioners selection could not fructify in issuance of appointment

order because same was interjected by the orders passed in SWP. No. 182/2009 filed by Naseema Bashir. The writ petition as also Letters

Patent Appeal, as already stated, were dismissed and thereafter the appointment order was issued in favour of the petitioner in the year 2011.

The dismissal of the writ petition as also Letters Patent Appeal would there was no merit in the claim of the Naseema Bashir and without any

fault of petitioner, he was deprived of the benefits of selection process which was undertaken by the respondent-Selection Board. Had writ

petition not been filed by Naseema Bashir, which ultimately was dismissed, the petitioner would have also been appointed on the post of teacher in

the year 2009. The petitioner in the facts of this case, has been denuded of legal right of being appointed on the post of teacher in the year 2009

along with other selected candidates. The petitioner has been deprived of monitory benefits which the other candidates have received after being

appointed on the posts of teachers. The delay in appointing the petitioner was not because of any of his faults. In the interests of justice and on

equitable grounds, the petitioner has to be given respite and some benefits in law have to be given to him.

The petitioner has not worked as teacher from the year 2009, when other persons selected along with him were appointed. Since he has not

worked as teacher, he is not entitled to monitory benefits, but he would be entitled to other service benefits. The petitioner has to be treated

notionally appointed from the date other candidates were selected and appointed in the year 2009 and consequently the seniority is to be reckoned

from the date 2009. He, however, shall have to figure at bottom of the seniority list of that year.

For the above stated reasons this writ petition is disposed of alongwith connected I.A.s and it is provided that petitioner shall be deemed to be

notionally appointed on the post of teacher in the year 2009 when other selected candidates were appointed. However, petitioner will not be

entitled to monitory benefits. The seniority of the petitioner, however, shall be fixed from the date other selected candidates were appointed in the

year 2009 and he will figure at bottom of the seniority list of that year. Disposed of in the above terms.