Mahnaz Sharief & Ors @APPELLANT@Hash State & Ors

Petitioners had applied and were selected for the post of Lectures on academic arrangement pursuant to Advertisement Notice No.GGM/Coll/933 dated 14.06.2018 for the year 2018-19 in various Government Degree College, Jammu Division. They have approached this Court seeking the following relief, „directing the respondents to consider the case of the petitioners for their appointment as per their overall merit, and they may be given an opportunity to participate/compete for the additional posts which were referred to the Selection Committee when the selection as well as postings were almost complete leading to injustice with the petitioners making them aggrieved by violating their right to participate for late referred vacancies. Petitioners submit that they had applied for the aforesaid posts and in terms of instructions for online filing of college preferences was also issued by the Nodal Principal wherein it was specifically provided that the candidates shall fill up their college preferences also and final merit list was issued for engagement of academic arrangement of teaching faculties in various subjects for Government Degree Colleges of Jammu Division during the session 2018- 19. Petitioners are, thus, aggrieved of non-allocation of colleges as per their preference and allotment of Colleges to those candidates who are less meritorious.

Petitioner No.1 being meritorious applied for subject Sociology and figured at S.No.25 with total points as 18.37 in the merit list, had been given her first preference to GDC, Poonch but was engaged on academic arrangement in GDC Mendher whereas petitioner No.2 being meritorious applied for subject Geology and figured at S.No.09 with total points as 17.79 in the merit list, had been given his first preference to GGMS College, Jammu but was engaged in GDC Kathua. Similarly, petitioner No.3 being meritorious applied for subject Computer applications and figured at S.No.34 with total points as 14.55 in the merit list, had been given his first preference to MAM College, Jammu but was allotted GDC R.S. Pura and is presently working in GDC R.S. Pura whereas petitioner No.4 being meritorious applied for subject Commerce and figured at S.No.20 with total points as 21.07 in the merit list, had been given his first preference to Commerce College, GCW Prade and GCW Gandhi Nagar but he was posted to GDC Boys Udhampur and is presently working in GDC for Boys, Udhampur and petitioner No.5 being meritorious applied for subject EVS and figured at S.No.19 with total points as 18.38 in merit the list, had been given her first preference to GDC, Rajouri but she was selected at GDC Mendhar which was the 2nd choice of petitioner No.5. Learned counsel for the petitioners submits that the notification clearly shows that offline counseling would be done only after physical counseling but thereafter the method of counseling was changed from offline to online which has resulted in blocking of seats by the students studying outside the Jammu and Kashmir State who applied pursuant to the Advertisement but never joined on the said post, due to which preferences given by meritorious candidates for allocation of Colleges was disturbed and they could not given the colleges of their choice/preference, and as such, had to join at a distant place whereas these posts, which were blocked by the candidates, could not be filled up due to non-joining of the candidates as a result, overall chaos has been created resulting in less meritorious candidates being engaged on the preference exercised by them.

Petitioners submit that Selection Committee had received the requirement for new/backlog/hidden vacancies and the petitioners may be considered against these vacancies because the newly referred vacancies did not figure for the selection when the petitioners were allotted the colleges, as such, the petitioners being more meritorious should be allowed to be posted to the College in accordance with their merit and there should be merit based postings. Petitioners are, thus, aggrieved of the list of candidates engaged during 2nd round by Nodal Principal wherein the candidates having lower merit have been given better choice, that is the first preference for engagement to College, and furthermore, no shifting has been done as per preference given by the candidates engaged in the 1st round. This, according to the petitioners, is arbitrary and discriminatory since the petitioners being more meritorious have not given colleges as per their preferences but the candidates being less merit given better choice for placement. Petitioners further state that certain vacancies which have not been advertised, the candidates being less meritorious are being engaged and are given placement in these colleges which were petitioners‟ first preferences and which have denied to them.

Learned counsel for the petitioners states that the Nodal Principal had issued an order to the Principals of all the Colleges of Jammu Division that over all requirement of vacancies should be submitted for recruitment on academic arrangement for the session 2018-2019 and thereafter, no vacancy would be entertained but despite this fact, Nodal Principal had accepted the vacancies kept-in hidden due to more admissions and had decided to fill those vacancies from candidates having lower merit ignoring the preferences of the petitioners who are more meritorious. The petitioners are aggrieved of this action on the part of the respondents in allocating the Colleges to the candidates having lower merit, and no considering them for allocation to Colleges as per their merit.

Respondents have filed their reply/objections and stated that the petitioners have participated in the selection process and having participated in the same, they cannot turn around and challenge the same. It is further submitted that the petitioners are also not entitled to any relief in view of the fact that before calling online preferences from the candidates for engagement of Lecturers/Librarians/PTI‟s and Teaching Assistant/Assistant Librarians/Assistant PTI‟s for the academic session 2018-19, the respondents have issued instructions clearly providing that there will be no shifting allowed. Instruction No.11 is as under:-

"11- After completion of the first round of on-line allocation of colleges. The candidates in the waiting panel will be adjusted against the vacancy positions, which arise due to non-joining of the selected candidates within the stipulated period. As a policy matter, there will be no shifting of already engaged candidates to these vacant positions during session 2018-19."

Respondents further state that selection was made strictly in terms of the terms & conditions notified by way of instructions to the candidates, the selection as well as appointments came to be effected by the answering respondents in the first week of August, 2018. They further submitted that the petitioners have joined their place of posting and are discharging their duties and also further submitted that due to non-joining of two candidates selected in 1st and 2nd round of counseling, these two vacancies were filled up in the 2nd round from the waiting panel and, that too, have joined their duties and are discharging their duties, therefore, any change of colleges at this time would amount to change in the terms and conditions of already notified instructions which have been acted upon. Respondents further submits that any change in College at this stage will affect the academic career of the students, since academic session has already been commenced, as such, if any shifting is allowed, the same would have adversely affect the studies of the students of their respective Colleges. They further submitted that any shifting after culmination of the process, if allowed at this juncture, would become endless process and disturb the entire chain and other candidates in all other subjects will also be affected thereby defeating the whole spirit of providing quality teachers to the students of far-flung areas, who also have an equal right of having quality education.

Learned counsel for the respondents further submits that additional vacancies have arisen due to allowing of re-opening of the admission process in two phases by the Jammu University and Cluster University, Jammu, which had granted various extensions and keeping in view of high ratio of students in various subjects, the concerned colleges have requested for additional faculties in all those subjects where such situation had arisen, as such, the process of engagement with determination of merit, conduct of 1st, 2nd & 3rd counseling has taken place and these additional vacancies are being filled up from the candidates in order of their merit in respect of discipline strictly in accordance with procedure and instructions notified, as such, the allegations made by the petitioners are without any merit. It is further stated that in view of the suggestions received from various colleges from time to time, it was decided as a matter of policy not to allow shifting of any candidate in view of non-joining of any selected candidate which was decided to be filled up from the waiting list.

Mr. Natnoo, learned AAG, has placed on record copies of various communications/suggestions received from various colleges in this behalf. Lastly, the contention of the respondents is that the petitioners had not arrayed any such selected/appointed candidate as party respondents, as such, this petition is not maintainable and required to be dismissed at the very outset.

Respondents have further stated that keeping in view the sanctioned strength of posts in various faculties in Colleges for last couple of years, engagement of faculty on academic arrangement is made, and respondent had experienced shifting of candidates/Lecturers from one institution to another has difficult for both students and institution.

It is admitted case that instructions for online filing of preferences was issued by the Nodal Principal for the Colleges and in first counseling, posts of Lecturers were filled up in accordance with the merit and the preferences of the candidates were allocated according to their merit and preference, therefore, controversy has arisen only after non-joining of the candidates to the said post, these posts were allocated to the remaining candidates. Petitioners claim that due to non-joining of the candidates in the 1st round of counseling posts at various Colleges posts remained vacant and for which preferences should have also been allocated the order of merit, as such, these posts should have been first offered to them and they should have been allowed to join and work on the said post. Since these vacant posts have been filled up from the waiting list, thus, preference of Colleges has not been allocated in accordance with merit as was done initially by the Nodal Colleges. Therefore, the petitioners‟ grievance is that they have been denied the opportunity to work on the post according to their preference.

In terms of Instruction No.11 which had been advertised by the respondents/Nodal Principal in their online applications of academic arrangements is clearly stated that as a policy matter, there will be no shifting of already engaged candidates to the waiting position during session 2018-19, and the respondents within their right to do so. The respondents/authority have also produced the record with regard to Instruction No.11 of the policy. This instruction has been issued in terms of the minutes of meeting of a Committee of Principals under the Convenership of Nodal Principals, Jammu which was held on 25.07.2018 at 10.00 a.m. in the office Chamber of the Principal GGMS College, Jammu in which a decision was taken regarding various issues of academic arrangement. Principals of various Colleges were also of the opinion that frequent changes of Lecturers, the academic suffers.

In the minutes of meeting, it was included that first the vacant positions of different subjects in Government Degree Colleges of Jammu Division which have arisen due to non-joining of the academic arrangement teachers engaged during the 1st round of allocation, shall be filled "during the 2nd and 3rd round of allocation out of the candidates in the waiting list" . It was clearly stated that there will be not shifting of already engaged candidates to these position.

Thus the only grievance of the petitioners with regard to the allocation of Colleges of their preferences would not be admissible in view of the fact of instructions which were accepted by the petitioners specifically Instruction No.11, which stated that after completion of the first round of on-line allocation of Colleges, the candidates in the waiting panel would be adjusted against the vacancy positions, which arise due to non-joining of the selected candidates. As a policy matter, there would be no shifting of already engaged candidates to these vacant positions during session 2018-19.

Petitioners having accepted this instruction while joining cannot turn around and cannot challenge the same. This has also been held in Ramesh Chandra Shah & ors. Versus Anil Joshi & ors. reported as 2013 (11) SCC 309, that "by having appeared in the written test and taken a chance to be declared successful, the private respondents would be deemed to have waived their right to challenge the advertisement or the procedure of selection". Thus, the procedure of selection having been applied equally to all the candidates and also coupled with the fact that this was on the suggestion received from the Principals of various Colleges that this instruction was added.

There is no merit in the writ petition, which is, accordingly, dismissed.

Record be returned back to learned counsel appearing on behalf of the respondents/PSC.