Shaheena Hassan vs State and others

Claiming to have applied and been empanelled for appointment as RehbariTaleem in Primary School of Village Boniyar Uri, and figuring as such

at no.2 with one Showket Ahmed Mir at serial no. 1, a non local discarded by authorities and as such entitled to appointment, the petitioner who

thus headed the panel which did not include anybody from the village where the school was located as none there from was eligible to apply when

the post was advertised, pleads that her case was duly forwarded by concerned District Dev. Commissioner to respondent no.3,theCEO under his

communication no. DCB/ PS/MF/6673 dated 29.05.2004 who processed the case and forwarded it to the Chairman under his communication no.

ESH/RT/7597 dated 17.06.2004 and also sought instructions from respondent no.2, the Director vide communication no. 11122 dated

19.07.2004, who asked him to act on the panel and thus petitioner was fully entitled to formal appointment, but instead of that respondent no.5,

the District Development Commissioner wrote a communication to Secretary of Administrative department that one Nadeem Latief Mir, the

respondent no.6 a native, who had not applied when the post was originally advertised because of being ineligible had now become eligible after

around two years of the original advertisement, and as such being from the village where school was located could be considered for engagement

as R.T instead of petitioner. Complaining that said communication was against the law and provisions of scheme and as such not maintainable, the

petitioner seeks quashment thereof along with issuance of mandamus upon respondents for her appointment as R.T under SS A in Primary School

of Village Pakhalan Zone Boniyar.

In their reply, the official respondents 1 to 5 have among other things stated that none of petitioner's right is violated. Admitting her claim as

empanelled candidate at serial no.2 and thereby entitled to appointment because of ineligibility of candidate at no.1 they have further pleaded that

under instructions conveyed by Administrative department in response to District Dev. Commissioner's communication under his no. Edu1260/04

dated 9.12.2004, the 6th respondent as being a native of the concerned village was entitled for appointment as RT in the said school. In his

separate reply the 6th respondent has also pleaded on similar lines with an addition that after issuance of formal appointment letter in his favour the

petition in present form would become infructuous because the same has not been challenged by the writ petitioner etc. During course of arguments

learned counsel appearing for rival sides have reiterated their pleadings with reference to respective annexures.

I have heard learned counsel and considered the matter. With agreement of learned counsel the matter is being taken up for final disposal at this

stage, as al! facts/circumstances of the case are clear alongwith respective stand of parties. Facts are all admitted. That a new school was opened

in Village Pakhalan of Boniyar Zone, Uri, for which respondents issued an advertisement and sought candidature for appointment of RT in

response whereto petitioner also applied and was empanelled at serial no. 2 with one Showket Ahmed figuring at serial no. 1, who was found to

be ineligible as not being a native of the village where school was located as also that consequent thereupon the petitioner as being at serial no.2 in

the panel became most eligible as haling from the adjacent village in same 'Halqa' and as such her case for appointment of RT was processed right

up to the level of Director Education. But after quite some time the respondent no.6 came into lime light and his claim that he being a native of the

village where school was located and having requisite qualification was best suited for appointment as RT was accepted by the authorities and he

appointed as such, with the result that petitioner who till then was the most prospective candidate was automatically pushed out of consideration

zone.

Along with that back drop what is further admitted by all parties concerned is that at the time of initial advertisement seeking candidature for RT

post in question, only petitioner and others applied, while respondent no.6 not being eligible and did not apply at all. He attained requisite

qualification after about a year of earlier advertisement and was accordingly considered without cancellation of previous selection process or

issuance of fresh one for the said post. In other words therefore, the candidates selected in the earlier panel were totally discarded without any

reason whatsoever, and respondent no.6 who had not even applied was appointed against the available RT post in the said school without having

participated in any formal selection process. This on face of the scheme and the circumstances as aforesaid is totally arbitrary. Assuming that the

petitioner even after due empanelment was not due for appointment for some reason or other, that would naturally bring the candidates down

below her in the panel within zone of consideration, one by one. Would none be found to be eligible for appointment then the whole process would

required to be cancelled and the post advertised afresh. Nothing of the sort was done. Instead, and quite brazenly the post of RT to which she had

qualified has been snatched out of petitioner's teeth and offered to respondent no.6 on a platter without its being readvertised for fulfilment through

regular selection process.

The net result is that while petitioner appears to have been wrongfully deprived of her prospective appointment as RT against the available

vacancy, the 6""' respondent has been brought in from the backyard in a typically unusual manner, and most unfortunately, the whole unfair exercise

has been done at the level of senior officers like the District Dev. Commissioner and the Commissioner Secretary of the Administrative department,

who, as a matter of fact, have not only acted quite obnoxiously but have also displayed a deplorable ignorance of law, rules and the scheme

governing the matter, which they are required to account for.

Before parting however, it would be appropriate to notice 6th respondent's plea's that since petitioner had not challenged his appointment order

the writ petition could not be maintained. It would be apt to mention that at the lime of institution of writ petition, the said appointment order was

not in existence. It has come into being only on Dec. 2004 on basis of the District Dev. Commissioner's letter impugned in this writ petition and is

only a consequence thereof. Logically, therefore, it would survive only if said letter survives. If the letter goes the appointment order of 6th

respondent as being a consequence thereof would automatically collapse.

In view of what has been said above and as result thereof the District Dev. Commissioner's impugned communication no. DDCB/PS/24079

dated 28.08.2004 and the consequent appointment of 6* respondent's issued under endorsement no. ZEOB dt. 27.12.2004 are both quashed.

The respondents are directed to engage the petitioner as RT in the aforesaid school on the basis of her entitlement in accordance with the relevant

selection process undertaken at the relevant point of time. This shall however not bar lawful engagement of sixth respondent in due course.

The writ petition stands disposed of accordingly, alongwith all CMPs.

The contempt petition purporting to have been filed by petitioner against the then Commissioner Secretary to Education and others be

segregated from the petition and listed separately for further proceedings after two weeks, with notice to respondents for their personal

appearance.