Shabir Ahmad Baba vs State of Jammu and Kashmir

Petitioners in all numbering 16 have challenged selection of teachers of the District Budgam, pursuant to advertisement notice 5 of 1998 dated

6.6.1998 (AnxPA), on the ground that the petitioners, who applied for the posts and were interviewed, were not selected inspite of their superior

qualification and merit. They fared well and are ahead of the selected candidates. The petitioners despite possessing all the proficient in teaching

their respective subjects in urdu, were not picked up and on the other hand candidates with lesser qualification and merit and many even lacking

essential qualifications, have been selected. Dropping of the petitioners and selection of the respondents 4 to 19 is discriminatory and violates the

fundamental rights guaranteed to the citizens under the Constitutions, the selected list has been prepared quite capriciously without following the

prescribed Criteria and without adhering to the essential qualifications as prescribed in Annexure PA. In fact, the selection is colourable exercise of

power and suffers from nonapplication of mind.

On these grounds, writ of certiorari to quash this selection list prepared pursuant to advertisement notice Annexure PA for District Budgam and

mandamus for commanding the respondents to include petitioners in the selection list and appoint them as Teachers, is prayed for.

The writ petition has been admitted to hearing on 21.4.1997. Respondents other than 1 to 3 State, Secretary Subordinate Service Selection

Board and District Education Officer Budgam, have been given number of opportunities to file reply, but no reply has been filed till date and the

case is being listed for hearing pursuant to the bench order dated 10101997.

In the Bench order dated 1091997, there is a reference to the judgments of this court in SWPs No. 500/37, 851/88 and 718/89, for the

petitioner's counsel claims that this case is also covered by the aforesaid judgments of the service writ petitions.

I have heard the learned counsel for the parties on all aspects of the matter. The copies of the judgments as also the record has been made

available.

The Counsel for the petitioners, Mr.Z. A. Qureshi, submits that petitioners 2, 7 and 8 alone are interested in the prosecution of the writ petition

as all other petitioner's grievances have been redressed and they have been given relief as sought in the petition.

Accordingly, this writ petition shall govern the cases of the petitioners 2, 7 and 8 namely Ghulam Ahmed Kuka,Ghulam Nabi Shah and Ghulam

Hassan Kumar, and in case of other petitioners, the writ shall be deemed to have been dismissed.

In absence of reply, the allegations and the averments of the writ petition shall be deemed to have been legally admitted. In absence of the

counter, the writ allegation and the relief which is sought for, has to be taken as uncontroverted. The challenge to the selection list and dropping of

petitioners 2, 7 and 8 has to be taken as legally bad, and vitiated by arbitrariness, malafide and colourable exercise of powers.

Perusal of the judgments of this court in SWP No,500/87, 858/88 and 718/89 reveals that the petitioners in those cases have been ruled on

adjudication as appointed to the posts of teachers in District Badgam and Barmulla. Though the court found the selection legally bad, yet refrained

from quashing and terminating the selection and appointments as the same was not found necessary and just in order to give relief to the petitioners.

Mr.Qadri, Sr.AAG, contends that in absence of declaration of appointment of teachers already made as illegal, petitioners cannot be given any

relief. In support of his argument, he has cited State of Orissa Vs. Dr.Shiva Shankar Lal Bajoria and Ors (AIR 1955 SCC 334). The argument

merits to be noted only to be rejected.

In the above case, the apex court while considering in appeal the appointment of petitioner before the Hon'ble Court by promotion to the post of

Assistant Professor of Cardiology in SAB Medical College Hospital at Cattak, the court found that the court having declined to go in the question

and refrained from declaring the appointment of the respondent of the post of Assistant Professor of Cardiology in the Medical College as illegal

and as the same direction by the High Court to authorities in the facts and circumstances of that case, to consider the claim of the petitioner to the

post of Assistant Professor was not permissible and that too when no vacant post in the discipline of cardiology was available in the college.

The facts and circumstances appearing in this petition have no parallel to those of AIR 1995 SC 334 (supra). The State has not even filed reply in

this case and there is nothing on record to negate the availability of posts or to suggest nonavailability of posts. Besides this, court has gone into the

question of illegality of the select list of teachers and found it bad, though has stopped short of terminating the select list and the appointments.

It may be noted that in SWP 718/ 89, the selection of teachers for District Budgam, selected pursuant to advertisement notice 5 of 1988 dated

661988, subject of the instant writ petition, was under challenge. The Single Bench of this court, following the judgments of SWP No.500/87 and

851/ 88, confirmed in LPA No. 1128/89 on 1151992 and against which SLP was dismissed by the Supreme Court, allowed the writ petition and

the case of writ petitioners (of SWP 718 of 89) were ruled as covered by the said decision under which writ petitioners of these two writs (SWP

No.500/87 and SWP No. 851 of 88) appointed as Teachers for District Budgam. Thus the petitioners cases is fully covered by the

aforementioned judgments.

For the aforesaid reasons, the writ petition of petitioners No. 2, 7 and 8, Ghulam Ahmed Kuka, Ghulam Nabi Shah and Ghulam Hassan

Kumar, is allowed and the respondents are issued a writ of MANDAMUS commanding the respondents to appoint these three petitioners as

teachers against the available vacancies without disturbing the selection and appointment of the respondents/teachers in the grade of Rs.9001830

(now revised) referred to in AnnexureP.A.