Kamal Singh vs State of J&K & Ors.

The petitioner through the medium of instant petition has sought the following reliefs:

The facts in brief are that the petitioner passed the Higher Secondary Part-II Examination from the J&K State Board of School Education and thereafter obtained a Bachelor of Arts degree in the year 2009, securing 703 out of 1650 marks.

It is submitted that the respondent No. 3 issued Advertisement Notice dated 10.10.2012 inviting applications for engagement of Rehbar-e-Taleem (ReT) Teachers in various Government schools of District Reasi, including one post each for Government Primary School, Silly and Government Primary School, Surwah, both of which had been upgraded from EGS Schools. The petitioner, being fully eligible, applied for the said posts along with all requisite testimonials, including a valid RBA certificate. The private respondents 5 to 9 also applied for the aforesaid posts. The petitioner alleges that the higher educational qualifications relied upon by the said respondents are either not recognized or have been obtained in violation of the prescribed eligibility norms as he has obtained copies of their academic records under the Right to Information Act and form part of the record.

It is alleged that respondent No. 5 (Abdul Jabbar) pursued and completed M.A. (Urdu) and M.A. (History) courses from Maulana Azad National Urdu University (MANUU) before completing his B.A. degree, rendering the chronology of his academic qualifications inherently inconsistent. It is further alleged that he simultaneously pursued multiple diploma courses during the same academic period, making the claimed qualifications doubtful and warranting verification. The respondent No. 6 (Javed Iqbal) claims equivalence of the Adeeb-e-Kamil qualification obtained from Jamia Urdu, Aligarh with a Bachelor's Degree and, on that basis, admission to the M.A. (Urdu) programme at MANUU. The petitioner contends that the said qualification is neither recognized by the competent authorities nor legally equivalent to a Bachelor's Degree, thereby rendering his higher qualification invalid. Similar objections have been raised against respondent No. 7 (Shamas Din), who claims that Fazil Urdu awarded by Jamia Urdu, Kashmir is equivalent to Graduation and formed the basis for his admission to the M.A. programme at MANUU. According to the petitioner, neither the said qualification nor the subsequent M.A. degree possesses valid recognition in law. The respondent No. 8 (Abdul Shakoor) is alleged to have secured admission to the B.A programme at MANUU before passing the Higher Secondary Examination, thereby making the claimed qualification academically impossible. Likewise, respondent No. 9 (Mohd. Ikhlaq) is alleged to have appeared in the BCA programme before qualifying the Higher Secondary Examination and to have obtained the qualification through an unauthorized study centre. The petitioner asserts that these qualifications are invalid and liable to be ignored. The petitioner contends that respondents 5 to 9 were nevertheless treated as eligible and included in the select panel despite the alleged irregularities in their educational qualifications. It is, accordingly, pleaded that their selection and empanelment are arbitrary, illegal and contrary to the applicable rules, and therefore liable to be quashed.

Reply on behalf of the official respondents has been filed by Mr. Suneel Malhotra, learned GA wherein it has been contended that the petitioner has not come to the Court with clean hands and has deliberately suppressed/ misrepresented material facts, as such, not entitled to be granted any equitable relief.

Mr. Malhotra, learned GA further submits that the issue involved in the instant petition has already been considered by this Court in several cases and it has been held that once the scheme has been closed, no direction can be sought for appointment under a scheme which is no more in vogue. Otherwise also the law is well settled that till the person is not formally appointed against a post and he/she joins the post, he does not have any vested right against the post and merely by issuance of the advertisement notification and the participation in the selection process does not confer any indefeasible right for appointment, as such there exists no room for the further operation/continuation of the RET Scheme for the appointment of RET teachers in the Union Territory of J&K. In view of the same, the writ petition filed by the petitioner has become infructuous as the petitioner cannot seek a direction to the respondents to compel them to perpetuate the RET Scheme in Union Territory of J&K for various reasons enumerated hereinabove, as such, the writ petition in the peculiar facts and circumstances and the legal position merits dismissal.

Objections have been filed by Mr. Mumtaz Choudhary, learned counsel appearing on behalf of private respondents Nos. 5 and 6. It is submitted that respondent No. 5 obtained admission to the M.A. (History) programme in December, 2009 and successfully completed the course in October, 2011. It is further submitted that the Diploma in Computer Education and Multilingual D.T.P., completed by respondent No. 5 in October, 2010, was awarded by the National Council for Promotion of Urdu Language, which is not a university, and such diploma courses can be pursued simultaneously with a regular university course. He further submits that both diplomas relate to the same programme and, therefore, bear a common serial number.

It is further submitted that respondent No. 5 passed the Matriculation Examination in 2002 and the Higher Secondary (10+2) Examination in 2005–06 from the J&K Board of School Education. Thereafter, he enrolled in the B.A. programme at Maulana Azad National Urdu University (MANUU), a Central University established under an Act of Parliament. Owing to domestic circumstances, he could not complete the B.A. course and, in the meantime, obtained the Fazil-i-Urdu qualification from Jamia Urdu, Kashmir during the academic session 2006–07. According to the respondents, the said qualification is recognized by MANUU for admission to its M.A. (Urdu) programme, on the basis of which respondent No. 5 secured admission and completed the said course.

Learned counsel has further relied upon communication dated 02.09.2003 issued by the University Grants Commission to the Registrar, MANUU, clarifying that MANUU, having been established by an Act of Parliament, enjoys the same status as any other Central University. With regard to respondent No. 6, it is submitted that he had also obtained the Fazil qualification from Jamia Urdu, Kashmir and was validly admitted to the M.A. (Urdu) programme at MANUU on the strength thereof. It is, therefore, contended that the educational qualifications possessed by respondents Nos. 5 and 6 are valid and duly recognized Lastly the learned counsel prayed that the writ petition filed by the petitioner may kindly be dismissed with exemplary costs.

Record further reveals that this Court vide order dated 15.10.2015 while entertaining the instant matter, by way of ad-interim direction, has passed the following direction:

Heard learned counsel for the petitioner and perused the record. Also heard Mr. Suneel Malhotra, learned GA as well as Mr. Mumtaz Choudhary, learned counsel appearing for the private respondents 5 and 6.

During pendency of the aforesaid writ petition, the Hon'ble Apex Court in case titled "Union Territory of Jammu and Kashmir & Ors vs Saba Wani" has passed a judgment in which the Hon'ble Apex Court while dealing with the petition preferred by the Union Territory of J&K & Ors., has been pleased to issue the following directions":

Before adverting to the binding effect of the aforesaid judgment on the claim of the petitioner, it is pertinent to notice the nature of the relief sought in the present petition. The petitioner seeks quashing of the selection of private respondents Nos. 5 and 6 and the inclusion of private respondents Nos. 7 to 9 in the select panel and, consequently, seeks a direction for his own selection and appointment against one of the posts of Rehbar-e-Taleem Teacher in Government Primary School, Silly or Government Primary School, Surwah. The challenge of the petitioner is primarily founded upon the alleged lack of recognition or validity of the educational qualifications possessed by the private respondents. The private respondents, however, have specifically disputed the said allegations and have placed on record material in support of the validity and recognition of their qualifications. Thus, the relief sought by the petitioner would necessarily require examination of the disputed claims relating to the eligibility and qualifications of the candidates who were selected and empanelled, followed by a fresh exercise for determining the petitioner's entitlement to selection and appointment under the erstwhile ReT Scheme.

Even assuming, for the sake of argument, that the petitioner were to succeed in establishing any infirmity in the qualifications or eligibility of the private respondents, the same by itself cannot result in a direction for his appointment at this stage. Acceptance of the petitioner's prayer would necessarily entail disturbing the prepared select panel, reopening the selection process and creating a fresh right of selection and appointment in favour of the petitioner, who admittedly does not figure in the select panel. The ad-interim direction passed by this Court during the pendency of the petition also cannot be construed as conferring any substantive or vested right of appointment upon the petitioner. Such interim protection was intended only to preserve the position during the pendency of the proceedings and cannot be treated as a basis for reviving the erstwhile ReT Scheme after its closure. More importantly, in view of the latest judgment of the Hon'ble Supreme Court in "Union Territory of Jammu and Kashmir & Ors. v. Saba Wani", no direction can now be issued which would have the effect of reopening the selection process or creating a fresh right of appointment in favour of a candidate who was not part of the prepared select panel. Any such direction would, therefore, amount to reviving the closed ReT Scheme and would run contrary to the express directions issued by the Hon'ble Supreme Court.

Admittedly, the petitioner does not figure in the select panel. Therefore, in view of the directions issued by the Hon'ble Supreme Court in "Union Territory of Jammu and Kashmir & Ors. v. Saba Wani", referred to hereinabove, the petitioner cannot claim any right to appointment under the erstwhile ReT Scheme. The directions issued by the Hon'ble Supreme Court are confined to the candidates whose names figure in the prepared select panels and do not create or confer any right upon a candidate who was not part of such select panel. Consequently, no relief can be granted to the petitioner at this stage.

In addition, the Hon'ble Apex Court has also made it clear that the candidates so appointed as per the directions (a) and (b) from the select panel under the RET scheme are directed to acquire minimum qualification prescribed under NCTE regulations and notifications including the qualified TET within three years and three attempts from the date of their engagements/appointments. As such, the directions (a) to (j) referred hereinabove, shall be applicable strictly in favour of those candidates whose names figured in the select panel and admittedly in the instant case, the petitioner nowhere figures in the select panel, as such, no relief can be granted to the petitioner at this stage.

Therefore, in the light of the judgment passed by the Hon'ble Apex Court, the instant petition has been rendered infructuous and accordingly, same is dismissed as the relief prayed for by the petitioner at this stage cannot be acceded thereto as the same will tantamount to reviving the RET Scheme which if be done will be direct conflict with the directions issued by the Hon'ble Apex Court.

Thus, viewed from any angle, the writ petition, in the light of the aforesaid development and the law laid down by the Hon'ble Apex Court, is dismissed. However, dismissal of the instant writ petition shall not come in the way of the petitioner to agitate his cause before appropriate forum, if so advised.

Interim direction, if any, shall stand vacated.