State vs Veena Devi

Mr. B.S. Walia, J. - This Letters Patent Appeal is directed against the judgment dated 23.07.2002 passed by the learned Single Judge in

SWP No. 633/2000 in case titled as Veena Devi v. State and others wherein respondent No. 1 i.e. petitioner, being higher in merit than one

Swarn Kanta was held entitled to issuance of letter of appointment as also to all consequential benefits including monetary benefits with effect from

the date of judgment in SWP No. 69/97 i.e. 31.03.1998.

Brief facts of the case necessary for adjudication of the controversy involved in the instant appeal are that a requisition was made by the

Education Department to the Jammu and Kashmir Services Selection Board (hereinafter to be referred to as the 'Board') for selection of teachers

in Udhampur District against 450 vacancies. The Board after assessing the eligibility, suitability, performance and merit of each and every

competing candidate, forwarded a select list of 412 candidates vide communication No. SSB/SS/131/3, dated 24.09.1993. Where after another

list of 34 plus 4 candidates was forwarded vide communication dated 31.01.1995 and 01.02.1995 respectively for ex-servicemen, scheduled

tribes, part time instructors and handicapped persons.

Ms. Swarn Kanta, one of the competing candidates on not finding her name in the select list, challenged the legality of the selection by way of

SWP No. 1274/1994 on the ground that being a scheduled caste category candidate and figuring at S. No. 1 of the waiting list, she ought to have

been selected as one Chanchala Devi having been selected under the scheduled caste category at S. No. 15 in the select list had died even before

the issuance of appointment order, therefore, the said vacancy being reserved for scheduled caste candidate ought to have been reconsidered with

a view to provide her an opportunity for being selected.

SWP No. 1274/1994 was disposed of vide judgment dated 20.11.1995. However, petitioner therein i.e. Swarn Kanta not being satisfied with

the judgment dated 20.11.1995 challenged the legality of the same by way of LPA No. 6/1996 which was disposed of with the following

directions:

We are of the view that the appellant, not only being a person having merit since she had secured 46% marks, but also being a person

representing the community of schedule caste, is standing next to Veena Devi (herein respondent No. 1). Since Veena Devi has secured 47% i.e.

1% mark more than secured by the appellant Swarn Kanta and that Veena Devi did not challenged the selection made by the Board nor did she

make any grievance of such a selection, it is not known whether even today she is in need of the job, the Court will consider the case of person

who are knocking the door of the Court of Law. Therefore, we allow this appeal and the order of the learned Single Judge dated 20.11.1995

made in SWP No. 1274/1994 is set aside. Direction is issued to J&K Subordinate Services recruitment Board to recommend the case of the

appellant for appointment as a teacher to respondent No. 1 within a period of six weeks.

In view of the directions dated 11.11.1996 issued by the Hon'ble Division Bench in LPA (SW) No. 6/1996, the Board vide letter No.

SSB/SS/2868/97, dated 08.01.1997 recommended Swarn Kanta for issuance of appointment order to the Commissioner/Secretary to

Government, Education Department. Consequentially, C.E.O Udhampur being the appointing authority issued appointment order under No. E-

11/29129-33, dated 25.03.1997 whereupon Ms. Swarn Kanta was appointed as teacher in the grade of Rs. 950-1500 temporarily in Primary

School Simbal Choha (zone).

That after the appointment of Swarn Kanta as referred to above, one Veena Devi i.e. respondent No. 1 filed SWP No. 69/1997 praying for

issuance of directions for consideration of her case for appointment as teacher and for staying the appointment of Swarn Kanta i.e. respondent No.

6 in the said writ petition. The said writ petition was disposed of vide order dated 31.03.1998. In compliance to the order dated 31.03.1998

passed in the aforesaid writ petition, case of respondent No. 1 was considered and rejected because of non-availability of a post under the

scheduled caste category pursuant to notification No. 3 of 1991 dated 25.05.1991. Thereafter respondent No. 1 i.e. Veena Devi filed SWP No.

633/2000 but without impleading Swarn Kanta as respondent. The Learned Single Judge vide order/judgment Annexure A dated 23.07.2002

allowed the writ petition by directing the appellants to issue letter of appointment to respondent No. 1 with all consequential benefits including

monetary benefits with effect from 31.03.1998 when the judgment was given by this Court in SWP No. 69/97.

Learned counsel for the appellants argued that the findings of the learned Single Judge were contrary to the record, that there was only one list

of selected candidates and no waiting list was prepared. Learned counsel contended that respondent No. 1 had approached the court more than

four years after the issuance of the select list on 30.12.1993. On the hand, the issue in question already adjudicated by the Hon'ble Division Bench

in LPA No. 6/1996 on 11.11.1996 and that, giving a direction to appoint a candidate beyond a sanctioned post was not permissible under law

and the post in question under the scheduled caste category already stood filled up pursuant to the directions of the Hon'ble Division Bench.

Learned counsel further contended that the learned Single Judge while passing the judgment had not taken into account that while giving the

direction for issuance of appointment letter to Ms. Swarn Kanta, the Hon'ble Division Bench had considered that Veena Devi had secured more

marks than Swarn Kanta leading to the observations that ""Veena Devi did not challenge the selection made by the Board nor did she make any

grievance of such a selection, it is not known whether even today she is in need of the job, the Court will consider the case of person who are

knocking the doors of the Court of Law.

Learned counsel for the appellants contended that the impugned judgment passed by the learned Single Judge was contrary to the judgment

dated 11.11.1996 passed by the Hon'ble Division Bench in LPA No. 6/1996 and that issuance of directions by the learned Single Judge amounted

to adding something to the judgment passed by the Hon'ble Division Bench in LPA No. 6/1996. Learned counsel further contended that the

learned Single Judge had held that the fact that one candidate was above the petitioner (Veena Devi) should have been brought to the notice of the

Hon'ble Division Bench but perusal of decision dated 11.11.1996 in LPA No. 6/96 revealed that the Hon'ble Division Bench was aware of the

fact that respondent No. 1 was higher in merit than Swarn Kanta. Learned counsel contended that the learned Single Judge had not taken into

account that respondent No. 1 had not challenged the appointment of Swam Kanta who was appointed pursuant to the directions of the Hon'ble

Division Bench against the available vacancy of scheduled caste category, besides respondent No. 1 had concealed material facts from the Court

in SWP No. 633/2000 and also not impleaded Swarn Kanta as a respondent therein, therefore it was evident that respondent No. 1 had not

approached the Court with clean hands and suppressed material facts. Learned counsel contended that had respondent No. 1 brought correct

facts to the notice of the learned Single Judge, the decision would have been otherwise.

Learned counsel for respondent No. 1, on the other hand, stated that admittedly respondent No. 1 was higher in merit than Swarn Kanta,

therefore, in terms of decision of the Hon'ble Supreme Court in Dr. Santosh Kumari v. Union of India and others, reported as (1995) 1

Supreme Court Cases 269 appointment ought to have been made as per merit irrespective of who had approached the Court as the matter was

one of principle and not dependent upon who approached the Court.

We have heard learned counsel for the parties and considered the matter. For the reasons recorded hereunder, we are of the considered view

that the Letters Patent Appeal has to be allowed and the impugned judgment set aside.

Case of respondent No. 1 as set up in SWP No. 633/2000 was that the select list was published on 30th December 1993, that her real sister

Chanchal Devi was one of the candidates who was selected, but that she had expired in July 1993 i.e. before the issuance of select list, that one

Swarn Kanta in the circumstances had filed a writ petition stating that she was in the waiting list, therefore, ought to have been appointed.

Eventually, the Hon'ble Division Bench in LPASW No. 6/1996 while taking note of respondent No. 1 being more meritorious than Swarn Kanta

but not having approached the Court nor challenged the selection nor made any grievance in respect thereto and it also not being known whether

even as on date she was in need of the job, considered the case of Swarn Kanta who had approached the Court, allowed her appeal, set aside the

order of the learned Single Judge dated 20.11.1995 and directed the Board to recommend the case of Swarn Kanta for appointment as teacher

within a period of six weeks.

Perusal of position as noted above reveals that respondent No. 1 could not be said to be oblivious of her rights in view of death of her sister

Chanchla Devi in July 1993 i.e. prior to the publication of the select list on 30.12.1993. Therefore, respondent No. 1 ought to have approached

this Court for appropriate relief in 1993 itself or shortly thereafter. However, she did not choose to make any grievance in respect thereto, rather

chose to maintain a stoic silence and it was only after the decision of the Hon'ble Division Bench dated 11.11.1996, in LPA No. 6/96 and issuance

of appoint-ment order to Swarn Kanta in January 1997 that respondent No. 1 awoke from her deep slumber and filed SWP No. 69/1997.

However the same was disposed of vide order dated 31.03.1998 with the directions to consider the case of Veena Devi, petitioner therein i.e.

respondent No. 1 in the instant LPA for appointment. However, vide order dated 06.12.1999, the claim of respondent No. 1 for appointment as

teacher was rejected leading to filing of SWP No. 633/2000.

To our mind, SWP No. 633/2000 ought to have been dismissed at the threshold by the learned Single Judge in view of the inordinate delay in

respondent No. 1 approaching the Court in 1997 particularly when respondent No. 1 was aware of the ground reality of the selection of her sister

Chanchla Devi in December 1993 as also of the said Chanchla Devi having died prior thereto in July 1993. Not only were the directions in

LPASW No. 6/96 not challenged by respondent No. 1 nor was Swarn Kanta impleaded as respondent by respondent No. 1/petitioner, in SWP

No. 633/2000, no vacancy is available for adjusting respondent No. 1, besides the claim of respondent No. 1 is hit by delay and laches. Hon'ble

Supreme Court in case titled as Ghulam Rasool Lone v. State of J&K reported as (2009) 15 SCC 32 : 2009 (3) JKJ 19 [SC] refused to

intervene in a case involving promotion of a junior of the petitioner therein on account of delay in the petitioner therein approaching the Court and

that too only after the case of another junior to the petitioner having been allowed. Relevant extract of the aforesaid judgment is reproduced

hereunder:

Promotion of Hamiddulah Dar was effected in the year 1987. Abdul Rashid Rather filed his writ petition immediately after the promotion was

granted. He, therefore, was not guilty of any delay in ventilating his grievances.

It will bear repetition to state that the petitioner waited till Abdul Rashid Rather was in fact promoted. He did not consider it necessary either to

join him or to file a separate writ petition immediately thereafter, although even according to him, Abdul Rashid Rather was junior to him. The

Division Bench, therefore, in our opinion rightly opined that the petitioner was sitting on the fence.

If at this late juncture the petitioner is directed to be promoted to the post of Sub-Inspector even above Abdul Rashid Rather, the seniority of

those who had been promoted in the meantime or have been directly recruited would be affected. The State would also have to pay the back

wages to him which would be a drainage of public funds. Whereas an employee cannot be denied his promotion in terms of the rules, the same

cannot be granted out of the way as a result whereof the rights of third parties are affected. The aspect of public interest as also the general

administration must, therefore, be kept in mind while granting equitable relief.

Besides, the findings of the learned Single Judge ""this fact that one candidate was above the petitioner should have been brought to the notice

of Hon'ble Division Bench, however, this was not done"" are contrary to the record and the same is evident from the observations of the Hon'ble

Division Bench in LPASW No. 6/1996 wherein it was noticed that Veena Devi had secured 47% marks i.e. 1% more marks than those secured

by the appellant Swarn Kanta and that Veena Devi had not challenged the selection made by the Board nor had made any grievance in respect

thereto nor it being known whether even as on date she was in need of the job, therefore the Hon'ble Division Bench decided to consider the case

of Swarn Kanta who had knocked at the doors of the Court of law. Thus, it is clear that the finding of the learned Single Judge of it not having

been brought to the notice of the Hon'ble Division Bench of Veena Devi having more marks than Swarn Kanta is contrary to the factual position as

borne out from order dated 11.11.1996 in LPASW No. 6/1996. Ms. Swarn Kanta was appointed pursuant to the directions of the Hon'ble

Division Bench against the available vacancy of scheduled caste category. Neither Ms. Swam Lata was impleaded as a respondent in SWP No.

633/2000 nor respondent No. 1 challenged order dated 11.11.1996 nor challenged the appointment of Swarn Kanta made pursuant thereto.

In the absence of any challenge to the order/judgment dated 11.11.1996, the claim of respondent No. 1 is legally unsustainable. It is the

categorical stand of the appellants that in the circumstances as also non availability of any vacancy of scheduled caste category against which

respondent No. 1 seeks appointment, no appointment can be offered to respondent No. 1 particularly when no challenge was thrown to the

order/judgment dated 11.11.1996.

A perusal of order i.e. Annexure E dated 06.12.1999 issued by the Commissioner/Secretary Education Department whereby the claim of

respondent No. 1 for appointment as teacher was rejected reveals that SWP No. 1274/1994 was dismissed while directing the Board to ascertain

from the record whether the dead candidate Chanchla Devi who figured at S. No. 15 of the Reasi block was selected in the SC category and

whether the petitioner i.e. Swarn Kanta had laid any claim under the said category and whether she figured at S. No. 1 of the waiting list and in

case it was so found, then the Board was directed to pass appropriate orders on the representation of the petitioner i.e. Swarn Kanta. Aforesaid

Swarn Kanta filed LPASW No. 6/1996 which was disposed of vide order/judgment dated 11.11.1996 by the Hon'ble Division Bench by taking

note of the higher merit of Veena Devi in the scheduled caste category as also non agitation of grievance if any by Veena Devi to her non selection,

therefore, in the circumstances the Court being inclined to consider the case of Swarn Kanta who had approached the Court of Law.

In the light of position as noticed in the preceding paragraphs, the judgment relied upon by learned counsel would not come to the rescue of

respondent No. 1. In the circumstances, the appeal is allowed and the impugned judgment passed by the learned Single Judge dated 23.07.2002

in SWP No. 633/2000 is set aside and SWP No. 633/2000 is dismissed while leaving the parties to bear their own costs.

Letters Patent Appeal is allowed in the aforementioned terms.