Zulfkar Ali vs State & Ors.

This appeal is directed against the judgment of learned Single Judge dated 26th November 2008 passed in SWP No. 1087 of 2004 titled

Zulfkar Ali

v. State & ors.

The brief facts are as under:

Posts of RehbareTaleem in Govt. High School, Gandoh were notified in the year 2003 and a select list of seven candidates was prepared in

which the petitioner figured at Sr. No. 3. The first two candidates in the list i.e Surjit Singh and Mehadi Rashid were appointed but after some time

Surjit Singh left the service as he got selected on some other job. Meanwhile, the respondents vide notification dated 12th January, 2004 invited

applications from the permanent resident candidates belonging to village Bhallesa for engagement as ReT in various newly sanctioned upgraded

schools. The petitioner along with respondent No. 5 applied and in the select list prepared by the Zonal Committee, respondent No. 4 figured at

Sr. No. 1 and the petitioner figured at Sr. No. 5. While the selection and appointment of these teachers were under consideration, the government

declared the two posts in school MPS Dhadhar reserved for ST category due to it neither the appellant nor respondent No. 4 were considered for

these posts. Thereafter, a fresh advertisement inviting applications for the Govt. High School, Gandoh and Govt. Girls Middle School Chonwary

was issued vide notification dated 10th April 2004. No candidate applied in pursuance of this notification but the respondents instead of renotifying

the posts, considered the earlier panel prepared in respect of notification dated 12th January, 2004 and appointed respondent No. 4 as ReT in

Govt. High School, Gandoh. This has been done on the basis of high merit she possesses i.e 58.3% as against the merit possessed by the appellant

i.e 46.63%.

The appellant challenged the selection and appointment of respondent No. 4 through a writ petition SWP No. 1087 of 2004, which was

considered by the learned Single Judge and dismissed vide judgement dated 26th November, 2008. It is against the said Judgement that the

present appeal has been filed.

Heard. We have considered the matter.

Learned Single Judge has dismissed writ petition of the appellant on the sole ground that out of the two candidates i.e the appellant and

respondent No. 4, admittedly respondent No. 4 is higher in merit. The learned Single Judge has observed that though a second notification was

issued on 10th April, 2004, there was no violation with the process of selection of the respondents as in any case, the respondent No. 4 is higher in

merit.

The stand taken by the official as well as the private respondents before us is the same. They submit that since out of the two candidates i.e the

petitioner and the respondent No. 4, latter has got higher merit, the respondent has rightly been selected and appointed on the post. Learned

counsels for the respondents submit that in the event of readvertisement, the situation would have remained the same and the respondent No. 4,

having better merit was entitled to get appointment.

Learned counsel for the appellant would on the other hand vehemently argue that the respondents have acted arbitrarily while making the

selection and appointment of ReT in the present case. After the respondents found that no candidate had applied in pursuance to notification dated

10th April 2004, option open was to readvertise the post instead the respondents picked up the private respondent from the earlier selection list,

which stood superceded with the issuance of notification dated 10th April, 2004. Thus appointed her on the post, which had fallen vacant due to

abandonment of service by Surjit Singh, who had been appointed as ReT teacher under the first selection process for Govt. High School, Gandoh.

On consideration of the matter, we find due force in the grounds taken in the present appeal and the submissions of learned counsel for the

appellant.

The facts are not in dispute. It is admitted by the respondents that after the selection of candidates belonging to ST category was made in

pursuance to notification dated 12th January, 2004, a fresh notification dated 10th April, 2004 was issued. Admittedly, no candidate has applied in

pursuance of the said notification. It was due to this fact that the respondents resorted to the earlier selection list prepared in pursuance to

notification dated 12th January, 2004. This in our view was not permissible at all. Once a fresh notification dated 10th April, 2004 was issued, all

the previous select lists/selection processes got superceded. The respondents could not have resorted to such lists and should not have appointed

candidates figuring in any of such lists. When the respondents found that no candidate had applied in pursuance to notification dated 10th April

2004, the proper course was to readvertise the post. The publication of notice dated 10th April 2004 was not a mere formality. When the

advertisement was issued in respect of the posts, appointment of the respondent No. 4 when she had not applied in pursuance of the advertisement

was not proper and her appointment pursuant to the advertisement notice dated 12th January 2004 and without readvertising the posts is arbitrary

and violative of Art. 16 of the Constitution. A select list or the result of a particular selection process must come to an end at some point of time. It

cannot be kept alive for years to come for making appointments. Such a list will come to an end after a particular period of time or with a fresh

advertisement. If the practice of keeping the earlier lists intact and making selection and appointments out of such lists is allowed, such a practice

would open back door entry to the service. The selection and appointment of respondent No. 4 in these circumstances is not in accordance with

the settled principles of service jurisprudence as such cannot stand. On this ground, we find the judgement and order under challenge cannot

sustain. The same is set aside. The petition of the appellant is allowed. The selection and appointment of the respondent No. 4 is quashed with the

direction to the respondents to initiate a fresh process of selection for the post in accordance with the rules and the scheme. Order accordingly.