Surakha Bhan vs Union of India

Vide the advertisement notice No. FI4/92KVS (RP.11) dated 26th of June 1992 the Kendriya Vidyalaya Sagathan invited the application for

recruitment to the posts of teachers of different categories. The essential qualifications for PGT candidates was prescribed as atleast second

classmasters degree with the minimum of 45% of marks in the subject concerned. This advertisement notice also sought offers for appointment as

Primary Teachers with the essential qualification prescribed in the advertisement. The notice contained the instructions part as well which besides

other things provided that incomplete applications shall be rejected and the candidates who are called for interview will be paid to and fro second

class train/bus fare as provided by the Rules. The notification annexure Pl, did not prescribe*the requirement of any diploma/degree or experience

in the NCC/Sports.

In response to the advertisement notice the petitioner also applied and she was called vide annexure P2 dated 18th of June 1993 to appear for

interview for the post of Primary Teacher at Jammu on 17th of July 1993.

It is pleaded by the petitioner that she had applied for appointment not only as the Primary Teacher but also for the post of Trained Graduate

Teacher and PostGraduate Teacher in Hindi. Her form was accepted by the respondents and she was called for the interview vide annexure P2. It

is complained that in pursuance to the interview call she presented herself before the Selection Committee on 17th of July 1993 at Jammu but she

was not interviewed for reasons not disclosed. The petitioner challanges the selection process on the ground that having issued the interview call for

the post of Primary Teacher, she was not interviewed ostensibly for no reasons or no cause and thereby herrights guaranteed by Article 14 and 16

of the Constitution of India have been violated. The action of the respondents in not intervening her despite call, is labelled as arbitrary, improper

and without any legal basis, sufficient to vitiate the selection process.

Writ of mandamus is sought so as to command the respondents to interview her for the post of Primary Teacher and then consider her for

appointment against the post in anyone of the schools of the Kendriya Vidyalaya Sangathan. Quashment of the selection process and the release of

select list is also sought.

At the motion stage the court made the direction that one post of Primary Teacher shall not be. filled up by the Sangathan till orders from this

court. Respondents were required to file objections. They filed the objections on 10th of August 1994 whereafter the writ petition was on

consideration and after hearing admitted to hearing vide the order dated 8th of September 1994.

Despite opportunities having been afforded the counter affidavit has not been filed within the time allowed. There is therefore no counter,

Nonfiling of the counter attaches significance to the pleas taken in the writ petition (Reliance ADR 1995 J and K 77).

It was therefore to be assumed that the averments in the writ petition being not controverted same have to be accepted as true and correct..

The matter of fact is that the petitioner had the requisite qualification for being considered for appointment as PG/TG or Primary Teacher in any

of the schools of the Sangathan. She was as a matter of fact called for the interview vide annexure P1 issued by respondent Assistant

Commissioner. Her uncontroverted plea is that she presented

herself for being interviewed at the stated spot, date and time but she was not interviewed for reasons not disclosed. The petitioner had thus the

constitutional right to be considered for selection for the said appointment though she had no a right of appointment as such. Denial of right of

consideration for appointment when the candidate fulfills the prerequisite for such consideration amounts to violation of the fundamental right

guaranteed under Article 14 and 16 of the Constitution of India.

No reasons have been disclosed by filing the counter as to what had prevented the respondents from interviewing the petitioner so as to be

considered for appointment as Primary Teacher. Objections filed at the preadmission stage, though not on affidavit, try to create the impression

that the petitioner was not interviewed because she had not furnished necessary certificates whereon she could have been put to interview. The

certificates required as per the objections were in respect of her activities in NCC/Sports fields. The perusal of the advertisement notice in

reference shows that the petitioner was not required to furnish the certificates/ testimonials of her NCC/Sports activities. It thus appears that a fake

ground to support the denial of right of consideration, has been projected in a bid to resist the petition.

Be that as it is, having called the petitioner for interview in terms of the advertisement notice it was obligatory on the part of the respondents to

have interviewed her and considered her for appointment as a Primary Teacher in the Sangathan. This right of hers has been violated. She had the

legal right to be considered for appointment and the respondents whereunder legal obligation to interview her and consider her for the said

appointment as was sought. The right has been denied and the obligation has not been discharged, so the petitioner is entitled to the writ of

mandamus.

11.The selection process must have since been concluded and the selected candidates must have by now been working on the posts to which they

stood appointed but the matter of fact is that one post of Primary Teacher as reserved in terms of the court's order dated 9th 'of September 1993

is still available. The petitioner prays that she is now entitled to be appointed against the post of Primary Teacher and the appointment should take

effect from the date it was reserved. Reliance is sought to be placed on the cases reported as Basanti Kumari and Others Vs. State and Others

SLJ 1991 J and K 232 and State of J and K Vs. Basanti Kumari and Others SLJ 1992 J and K 341 to canvass that the court has competence to

issue directions for making the appointment when the nonappointment to the post involves denial of constitutional rights.

The facts and circumstances of the case prompt to make the direction for the appointment of the petitioner as a Primary Teacher in the

Sangathan. The petitioner was eligible to be appointed to the said post. She had duly applied for the post and she was after being found fit to be

considered for that appointment called for the interview by the selection committee. For no reasons whatsoever she was not interviewed and thus

the right of consideration for the appointment was denied .to her. This is the violation of her constitutional right. No reasons are there not to direct

her appointment as a Primary Teadber for which she had applied, moreso when one post of the said class of teacher stands reserved.

For the reasons said above this petition is allowed with the direction to respondents Nos. 1 to 3 to appoint the petitioner as Primary Teacher in

the said Sangathan against the available post that has been reserved. The appointment shall take effect restrospectively that is from the date

appointment in lieu of the interviews held in persuance to the advertisement were made. The monetary benefits will however flow in favour of the

petitioner prospectively that is the date she joins under the order of appointment which be issued, within three weeks from the date the copy of the

order is served.