Mohd Jabbar 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 pursuant to Advertisement Notice No. DIP/J-8811/2014 dated 10.02.2014, Respondent No. 3 invited applications for engagement of Rehbar-e-Taleem (RET) Teachers in various schools and Education Zones of District Doda, including three posts at UPS Kudhal, Assar, Tehsil and District Doda. The petitioner, being eligible, applied for engagement against the said posts under the Social Science stream. In terms of the aforesaid advertisement, applications were initially required to be submitted within 15 days, making 25.02.2014 as the last date for submission of application forms, however, owing to unprecedented adverse weather conditions, Respondent No. 3, vide notification dated 25.02.2014, extended the last date for submission of applications up to 03.03.2014.

It is the further case of the petitioner that Respondent No. 4 received the applications up to the extended cut-off date of 03.03.2014 and thereafter prepared a tentative panel of candidates. The petitioner figured at Serial No. 5 in the said panel. Certain candidates, including those figuring at Serial Nos. 1 and 2, were rejected on the ground that they had failed to produce their B.Ed. marks cards by the prescribed cut-off date. Respondent No. 4 thereafter proceeded with the selection process and prepared the final panel for the three posts of RET Teachers at UPS Kudhal, in which the petitioner figured at Serial No. 2 under the Science stream.

The petitioner and other selected candidates awaited issuance of their appointment orders. Upon the respondents' failure to finalize the selection process for a considerable period, the petitioner, along with three other selected candidates, approached this Court by filing writ petition bearing SWP No. 1451/2014, Shameem Ahmed & Ors. v. State of J&K & Ors., seeking a direction to the respondents to conclude the selection process and issue appointment orders, however, that writ petition was disposed of vide judgment dated 06.06.2014 by directing the respondents to finalize the panels containing the names of the petitioners therein within a period of two months.

It is the specific case of the petitioner that when he approached respondent No. 4 for implementation of the judgment dated 06.06.2014, he was furnished a copy of the clarification/order dated 28.05.2014 issued by Respondent No. 3. By the said clarification, respondent No. 3 directed the concerned ZEOs, including Respondent No. 4, to undertake fresh empanelment by considering the merit of candidates, who had failed to produce their B.Ed. marks cards by the prescribed cut-off date, which was in direct conflict with the terms and conditions of the advertisement notice dated 10.02.2014.

The petitioner, being aggrieved of the impugned clarification order dated 28.05.2014, has challenged the same on the ground that impugned clarification order dated 28.05.2014 is against the very spirit of the Advertisement Notice dated 10.02.2014, which contained unequivocal terms that the qualification acquired after the cut-off date shall not be considered for making selection to the above said posts of RETs, as such, the same is required to be set aside. It is also challenged on the ground that the respondent No. 4, while preparing the final select list had rightly rejected the claim of those candidates who had failed to submit their Mark-sheets of B.Ed. qualification within the cut-off date, but the respondent No.3 in order to give undue benefit to its blue-eyed persons, has issued the impugned clarification order, thereby directing the respondent No. 4 to undertake fresh empanelment by considering the mark-sheets of higher qualification of some candidates, who had failed to submit the same within the cut-off date, as such, the same is liable to be quashed.

The official respondents, in their objections, have contended that the present writ petition involves disputed questions of fact which cannot appropriately be adjudicated upon by this Court in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution of India. It is further submitted that the results of certain candidates in the B.Ed. examination were declared on 22.02.2014, i.e. prior to both the original cut-off date of 25.02.2014 and the extended cut-off date of 03.03.2014. The said candidates obtained their B.Ed. results/marks particulars from the official website of the University, duly authenticated by the seal and signature of the Controller of Examinations. Although the ZEO, Assar, received and entertained their applications, their names were subsequently shown as rejected in the RET panel on the ground that they had not produced the original B.Ed. results/marks particulars by 03.03.2014.

The official respondents have further submitted that, since the B.Ed. results of the concerned candidates had admittedly been declared on 22.02.2014, well before the prescribed cut-off date, and the candidates had submitted duly authenticated copies of their results obtained from the University's official website, they could not legitimately be denied consideration or the weightage attached to the B.Ed. qualification merely for want of the original marks card by the cut-off date. It is, therefore, contended that the clarification issued by the competent authority directing consideration of such candidates was justified and in accordance with the conditions of the advertisement. In the aforesaid backdrop, a prayer has been made that the present writ petition deserves to be dismissed.

In their reply, private Respondents 5 and 6 have contended that the relief sought by the petitioner is misconceived both in law and on facts. It is submitted that acquiring of a qualification after the cut-off date and production of documentary proof thereof are distinct matters. The private respondents had admittedly acquired their B.Ed. qualification before the extended cut-off date of 03.03.2014 and had disclosed the same in their applications by annexing the result sheets downloaded from the official website of the University of Kashmir and duly authenticated by the Controller of Examinations. The subsequent issuance of the formal B.Ed. marks cards on 25.03.2014 and their production before Respondent No. 4 on 26.03.2014 could not alter the fact that the qualification itself had already been acquired before the cut-off date. On the basis of the material submitted, the private respondents were initially reflected at Serial Nos. 1 and 4 in the panel but were subsequently shown as “rejected” merely because the formal marks cards had been produced after 03.03.2014.

It is further submitted that such rejection was contrary to the applicable legal position, as the qualification had already been acquired and its result was available before the cut-off date. The private respondents, along with similarly situated candidates, accordingly approached respondent No. 3, who, upon consideration of the matter, issued the clarification/order dated 28.05.2014 directing fresh empanelment of candidates whose B.Ed. qualification had been acquired on or before the cut-off date. The said clarification merely ensured consideration of an already-acquired qualification and did not permit acquiring of any new qualification after the cut-off date.

It is further contended that the petitioner, being lower in merit than Respondent No. 6, Mumtaz Ali, as reflected in the tentative panel prepared by Respondent No. 4 under the relevant stream, has no vested right to prevent consideration of a candidate otherwise eligible and higher in merit. Therefore, the petitioner cannot maintain a challenge to the clarification dated 28.05.2014 merely to secure consideration over a candidate who is otherwise entitled to participate in the selection process. Lastly, they submit that the writ petition does not disclose any infringement of the petitioner's fundamental, legal or statutory rights. Since the existence of an enforceable legal right and its corresponding violation are prerequisites for invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the present petition, being devoid of any such violation, is liable to be dismissed.

The record further reveals that this Court, vide order dated 28.11.2014, while entertaining the instant matter, passed the following interim direction:

Heard learned counsel for the petitioner and perused the record. Also heard Mr. Anishwar Chatterji Koul, learned GA, as well as Mr. M. Y. Akhoon, learned counsel appearing for private respondents 5 and 6.

Mr. Achal Sharma, learned counsel appearing on behalf of the petitioner, submits that the name of the petitioner figures at Serial No.2 in the select panel of the candidates issued by the Zonal Education Officer, Assar and therefore, the petitioner has a vested right of being considered in the light of the judgment passed by the Hon’ble Apex Court in “Union Territory of Jammu and Kashmir & Ors vs. Saba Wani”, 2026 INSC 439.

The learned counsel further submits that the Hon’ble Apex Court in terms of the aforesaid judgment, while dealing with the petition preferred by the Union Territory of J&K, has been pleased to issue the following directions:

In the light of the directions issued by the Hon’ble Apex Court in Para-25 thereof, a case for indulgence is made out and accordingly, a direction is required to be issued to the respondents to accord due consideration, strictly in terms of the order/judgment passed by the Hon’ble Apex Court. In addition, it has also been brought to the notice of this Court by Mr. Achal Sharma, learned counsel for the petitioner, that the petitioner was also agitating his cause before the Hon’ble Supreme Court in SLP (Civil) No. 2123/2024, which was clubbed with SLP (Civil) No. 12210/2023, and that his name figured at Serial No. 21 in the list of petitioners. Therefore, the petitioner was actively agitating his cause before the Hon’ble Supreme Court and was also a petitioner in the aforementioned petition before the Hon’ble Apex Court. Thus, the respondents are under a legal obligation to accord consideration to the petitioner strictly in terms of the judgment passed by the Hon’ble Supreme Court.

To the contrary, Mr. Akhoon, who has appeared on behalf of respondents No. 5 and 6, submits that in the tentative panel the private respondents were figuring senior to the petitioner and they have been ousted from the final select panel by the official respondents on the ground that the private respondents could not produce the requisite certificates before the cut-off date and, therefore, they have been ousted from the consideration zone of being selected and their names have been omitted from the select panel. However, the learned counsel appearing on behalf of the private respondents further submits that the official respondents have thereafter clarified that the educational qualification and the requisite certificates can also be entertained beyond the cut-off date and in terms of the aforesaid clarification, the private respondents ought to have been placed in the select panel and their ouster is in derogation of the mandate and spirit of that clarification issued by the Government.

However, to the contrary, Mr. Achal Sharma, learned counsel appearing on behalf of the petitioner submits that this Court, by virtue of order dated 28.11.2014 in SWP No. 3323/2014, has already directed that the aforesaid clarification order No. CEO/D/RET/322-334 dated 28.05.2014 shall not be acted upon and the said order continues to be operative as on date.

Upon consideration of the pleadings, the material placed on record and the rival submissions, this Court is of the view that the petitioner had already figured in the final select panel prepared by the competent authority for the posts in question and had been pursuing his claim before the Court even prior to the judgment of the Hon’ble Supreme Court in Union Territory of Jammu and Kashmir & Ors. v. Saba Wani. The directions issued by the Hon’ble Supreme Court in the said judgment specifically protect the rights of candidates who had been placed in the select panels and were litigating their claims before a Court prior to the said judgment. The case of the petitioner, therefore, falls within the ambit of the aforesaid directions. At the same time, the relief to be granted is confined to consideration of the petitioner strictly in accordance with the directions issued by the Hon’ble Supreme Court and does not amount to creation of any independent right of appointment.

In view of the aforesaid discussion, this Court is of the considered view that the case of the petitioner is covered under the directions issued by the Hon’ble Apex Court in “Union Territory of Jammu and Kashmir & Ors vs. Saba Wani.”

Accordingly, the instant petition is allowed and the official respondents are directed to accord consideration to the case of the petitioner strictly in terms of the judgment passed by the Hon’ble Apex Court mentioned supra within a period of six weeks from the date, a copy of this order, along with the writ petition and annexures, are made available to them. The order of consideration, which is likely to be passed, be forwarded to the petitioner through registered post.

The writ petition is, accordingly, disposed of in the manner indicated above.