Kavita Devi 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 her matriculation (10th) examination in the year 2000 and Higher Secondary (12th) examination in the year 2002 from J&K Board of School Education. The petitioner has completed her Graduation in the year 2007 from University of Jammu and post graduation in the year 2009 from HMB Garwal University, Uttarakhand. The petitioner has also done B.Ed in the year 2011 from University of Jammu and M.Ed in year 2014 from Maharishi Dayanand University, Rohtak Haryana.

It is submitted that, in response to the advertisement notice issued by respondent No. 2 vide Order No. DSEJ/RET/4811-17 dated 29.06.2004, published in the local daily, inviting applications from eligible candidates for various posts, including the posts of RET Teachers in Upper Primary Middle School Thangriot, Zone Lower Hathal, Tehsil Sunderbani, District Rajouri, the petitioner, being fully qualified and fulfilling all the requisite eligibility criteria, applied for the said post before respondent No. 4 within the prescribed time. Pursuant thereto, a panel for engagement of RET Teachers was prepared, wherein the petitioner was placed at Serial No. 3 against the three advertised posts, whereas the private respondent was placed at Serial No. 4, in respect of Upper Primary Middle School Thangriot, Zone Lower Hathal, Tehsil Sunderbani. Thereafter, respondent No. 4 prepared the merit list dated 30.04.2005, wherein the petitioner was again placed at Serial No. 3. The said merit list was finalized after a lapse of more than ten months from the last date prescribed for submission of applications, and, upon such finalization, the only formality remaining was the issuance of the engagement order in favour of the petitioner.

It is alleged that respondents No. 3 and 4, in connivance with the private respondent, instead of issuing the engagement order in favour of the petitioner, entertained an application purportedly submitted by the private respondent on 23.09.2004, notwithstanding the fact that the same was submitted after the expiry of the prescribed period for submission of applications. Respondent No. 3, vide endorsement thereon, directed respondent No. 4 to consider the said application. It is further alleged that, pursuant thereto, verification of the private respondent's marks was obtained from the Joint Secretary (Certificates), respondent No. 5, vide communication dated 18.05.2005, in response to respondent No. 4's letter dated 02.05.2005. The verification reflected that the private respondent had secured 292 marks in the Bi-annual Examination, 2003, without disclosing the date of examination or result. It is contended that, if such marks were available in 2003, there was no explanation as to why the same were neither disclosed nor relied upon when applications were invited in 2004. According to the petitioner, the subsequent production and verification of the said marks were intended to facilitate the illegal engagement of the private respondent.

It is further the case of the petitioner that, instead of issuing the engagement order in her favour, respondents No. 2 to 4 engaged the private respondent as RET Teacher vide order dated 03.08.2005. Despite repeated oral and written representations, the grievance of the petitioner was not considered. The petitioner thereafter sought information under the RTI Act through applications dated 14.10.2013, 03.01.2014 and 17.05.2016, but was furnished incomplete and illegible information, particularly with regard to the documents of the private respondent. Respondent No. 4, vide letter dated 07.11.2015, also admitted that incomplete information had been supplied. The petitioner, having failed to obtain the requisite information, preferred an appeal before the competent authority under the RTI Act, but no effective action was taken.

It is further the case of the petitioner that, being compelled to pursue the matter from one authority to another, she preferred a second appeal before the Chief Information Commissioner vide representation dated 22.09.2016, pursuant to the deficiency notice dated 11.01.2016. Despite furnishing the documents sought by the concerned authority, the requisite information was not supplied to the petitioner and no effective action was taken. The petitioner also approached the State Vigilance Organization vide representation dated 28.03.2016, with a copy to the State Accountability Commission, but no action was taken on her complaint.

It is submitted that the advertisement notice was published on 29.06.2004, prescribing 15 days' time for submission of applications, which expired on 14.07.2004. The petitioner contends that, after the expiry of the prescribed period, no application or additional document could have been entertained. The Village Panel was subsequently prepared and the Merit List was finalized on 30.04.2005, wherein the petitioner was placed at Serial No. 3, above the private respondent at Serial No. 4, against three available posts. In these circumstances, the subsequent consideration of the private respondent's purported application dated 23.09.2004, coupled with the endorsement of respondent No. 3 dated 24.09.2004, as alleged by the petitioner, raises a serious question regarding the legality and genuineness of the process. If the said application and endorsement were genuine and available at the relevant time, there is no explanation as to why they remained unacted upon for several months, nor why the private respondent did not pursue his claim before the competent authority at the appropriate stage. The subsequent reliance upon the alleged marks of 292 obtained in the Bi-annual Examination, 2003, and their verification in May 2005, as alleged by the petitioner, further casts serious doubt upon the fairness of the selection process. The petitioner, being higher in merit and placed at Serial No. 3 against the three available posts, was entitled to consideration for engagement. The engagement of the private respondent, therefore, is alleged to be the result of manipulation and an arbitrary and fraudulent departure from the prescribed selection process and is liable to be quashed.

Heard learned counsel for the petitioner and perused the record. Also heard Mr. Raman Sharma, learned AAG for the official respondents.

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”, 2026 INSC 439 has passed a judgment in which the Hon'ble Apex Court while dealing with the petition preferred by the Union Territory of J&K, has been pleased to issue the following directions:

Before adverting to the applicability of the aforesaid judgment to the present case, it is necessary to notice the nature of the relief claimed by the petitioner. The petitioner seeks quashing of the engagement of private respondent No. 9 and, as a consequential relief, seeks consideration of her own claim for engagement as a Rehbar-e-Taleem Teacher in Government Middle School, Thangriot, Zone Lower Hathal, Tehsil Sunderbani, District Rajouri.

Even assuming, for the sake of argument, that the petitioner were to succeed in establishing any infirmity in the consideration of the private respondent, the same, by itself, cannot result in a direction for her appointment at this stage. The relief sought by the petitioner would necessarily require this Court to reopen the selection process undertaken under the erstwhile ReT Scheme and to unsettle the selection which stood concluded years ago. More importantly, the petitioner does not form part of the prepared select panel in respect whereof any subsisting right of engagement can be recognised in terms of the judgment of the Hon'ble Supreme Court in Union Territory of Jammu and Kashmir & Ors. v. Saba Wani. Any direction at this stage for her appointment would, therefore, have the effect of creating a fresh right of appointment under a Scheme which has since been closed.

The benefit of the directions issued by the Hon'ble Supreme Court in Saba Wani is confined to candidates who were part of the prepared select panels and whose entitlement to engagement flowed from such panels. At the same time, the Hon'ble Supreme Court has categorically clarified that the judgment shall not be construed as reviving the ReT Scheme for any purpose whatsoever or as creating or conferring any right upon candidates who were not part of a prepared select panel.

In the present case, the petitioner cannot claim the benefit of the aforesaid directions merely on the basis of her assertion that she was placed at Serial No. 3 in an earlier village/merit panel. The relief claimed by her is not founded upon an existing and operative right arising from a prepared select panel, but would require this Court, at this stage, to revisit the selection process, examine the legality of the engagement made in favour of private respondent No. 9 and, thereafter, direct consideration of the petitioner's engagement in his place. Such an exercise would clearly travel beyond the limited protection extended by the Hon'ble Supreme Court in Saba Wani and would, in effect, amount to reopening a concluded selection process under the erstwhile ReT Scheme which is not permissible in the light of the rider imposed by the Hon'ble Apex Court in case mentioned supra with particular reference to Clause (i) of para 25 of the operative part of the judgment as the petitioner is admittedly not figuring in the select panel.

In view of the above, grant of such relief would have the effect of creating a fresh right of appointment and reopening the engagement process under a Scheme which stands closed, contrary to the express clarification issued by the Hon'ble Supreme Court in Saba Wani.

Accordingly, in the light of the subsequent development in law and the directions issued by the Hon'ble Supreme Court in Union Territory of Jammu and Kashmir & Ors. v. Saba Wani, the instant petition has been rendered infructuous and the relief of engagement sought by the petitioner cannot be acceded thereto at this stage, as the same will tantamount to reviving the RET Scheme which if be done will be in direct conflict with the directions issued by the Hon'ble Apex Court.

The writ petition, therefore, does not survive for consideration and is accordingly dismissed.

Consequently, all pending applications, if any, shall also stand disposed of. Interim directions, if any, shall stand vacated.