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Judgment
ORDER
By Hon’ble Mr. Anand Mathur, Member (A)
Learned counsel for the applicant stated that in response to advertisement notification No. 3 of 2012, 6 of 2013 and 5 of 2013 for filling up the posts of Teachers in various Districts of Kashmir valley, the applicant had applied both in open as well as in the handicapped category for the reason of having Visual Handicap.
After scrutiny, the applicant was called for a written test held on 14.9.2013 and her name was shown amongst the candidates, who were declared to have qualified the written test. The applicant was shown to have been considered in the category of Physically Disabled in the category of Vision, whereas the name of the private respondent No. 4 figured at Sl. No. 2 and name of private respondent 5 did not figure in the above quoted list. The above shortlist was followed by another revised list of the candidates who were shown to have been qualified for the interview in their respective districts for the post of Teacher and the name of the applicant figured at Sl.No.219 whereas the name of private respondent No. 4 and 5 figured at Sl. No. 2 and 274.
Thereafter, a select list for the post of Teacher for the District Cadre Shopian got published showing private respondent No. 4 and 5 having been selected under handicapped category at Sl. Nos. 12 and 36 by allocating them 49.0150 points and 55.9606 points with a rider that the recommendation of appointment shall be subject to production of certificate of Handicap subject to the verification of its genuineness. Name of the applicant was omitted from the said selection list.
The applicant moved representations dated 30.6.2014 and 7.8.2014 for redressal of her grievance for getting her adjusted against the post in place of the candidate who have obtained lesser points as compared to her and the said representations were received by the authorities under receipt No. 6215 dated 30.6.2014 and 10194 dated 7.8.2014.
The main grievance of the applicant is that her genuine claim was not redressed by the respondents despite written as well as verbal requests and no response was given to her representations by the respondents.
Learned counsel for the applicant further stated that private respondent No. 5 has not opted to join till date for want of handicapped category certificate. It is also stated that private respondent No. 4 has also failed to produce handicapped category certificate. Thus, both the posts have still remained unfilled against which the applicant has genuine claim to be accommodated.
On the contrary, in the counter reply, learned counsel for respondents has stated that factum of the whole issue is the credence of particulars not filed by the applicant in the OMR. It is further submitted that looking at the protracted and multifarious litigation on the issue of OMR application form, the Board in its 73 meeting dated 27.1.2011 chaired by the then Chairman Mr. B.D. Bhagat took a policy decision on the subject matter and the same has been followed in all the selections thereon. The operative record note of the decision of the aforementioned meeting is reproduced as under:-
i.If the candidate has not marked the relevant field of OMR application form, the same is liable to be rejected.
Learned counsel for the applicant has also filed a written submission in which it is stated that the applicant had inadvertently omitted to mention the physically disabled category in the OMR application on account of which the application of the applicant under physically challenged category has not been considered. It is further stated that one candidate namely Abida Yousuf has been selected under RBA category/ handicapped who had obtained 49.018 points. Further, private respondents Abida Yousuf and Syed Mudasir Jan have not succeeded in submitting the requisite certificates on account of which their selection was withheld. The applicant was a strong contender having obtained 55.595 points whereas Abida Yousuf obtained 49.018 points and other private respondents obtained 56.96 points. However, the error erupted while filling up the OMR sheet in which the physically disabled category was not marked but a minor error should not formulate the basis for the respondents to deny the right of appointment to the applicant.
Learned counsel for the applicant also placed reliance on the Division Bench of the Hon’ble High Court judgment in LPA No. 62 of 2019 titled J&K Service Selection Board and another Vs. Naseer Ahmad Tantray and others, in which the candidates had failed to mark their B.Ed and M.Ed Certificates in their online application form on the basis of which the candidates were denied the points to which they were entitled on the strength of B.Ed and M.Ed. However, the Hon’ble High Court directed the Board to assign appropriate points to all the relevant qualifications omitted by the applicants in their online application form. The said judgment was called in question before the Hon’ble Supreme Court by SSB. The SLP was also dismissed. The operative portion of the judgment reads as under:-
“09.From the perusal of the pleadings on record and upon hearing the learned counsel for the parties, we find that the origin of the controversy lies in the format of the application form so prescribed by the Board for the selection process in question. This is so because the column relating to qualification, as appeared in the online application form, had shows B.Ed/M.Ed and the candidates, by mentioning the higher qualification of M.Ed, obviously and clearly meant that they had already obtained B.Ed qualification without which they could not have acquired the higher M.Ed qualification. In simple terms, the purpose of writing the qualification as B.Ed./M.Ed was to take care of a situation where a candidate having obtained only B.Ed qualification, could not subsequently claim that he/she has obtained the degree of M.Ed as well. However, on the other hand, where the candidate makes mention of higher qualification of M.Ed, it is implicit in such qualification itself that the said candidate has already obtained the lower qualification of B.Ed without which it is not possible for the said candidate to acquire the reflected higher qualification. In such circumstances, we do not feel that the candidates/writ petitioners, by mentioning the qualification as M.Ed, have violated any of the terms/conditions mentioned in the application format. It is the case of the Board that only such candidates who have entered the requisite qualification in their application forms will get preference, but this claim does not match with the qualification column of B.Ed / M.Ed so prescribed by the Board in the application format, thereby misleading the candidates/Writ petitioners in filling up their application forms.
11…………… The Board is directed to assign appropriate points to all the relevant qualifications omitted by the Writ petitioners in their online application forms, including the qualification of B.Ed, to the credit of the Writ petitioners, of course, in case the same have been acquired by these petitioners prior to the last cut-off date of the advertisement notice concerned; evaluated their merit on the basis of such award of points; and redraw the final selection list(s) for the posts in question, accordingly. This exercise shall be undertaken and concluded by the Board expeditiously, and, in 4 T.A.2062/2020 any case, not later than eight weeks from the date of this order.”
It is also submitted that this Tribunal also allowed T.A. bearing No. 2062/2020 considering the aforesaid judgment. The operative portion of order passed by this Tribunal in T.A. No.2062/2020 decided on 29 March , 2022 is reproduced below:-
“In view of the above finding on the same issue the contention of the respondents that the applicant did not mention the requisite qualification of M.Ed in her online application, the benefit of 5 points for M.Ed cannot be granted to the applicant, is devoid of merit, hence rejected. The case of the applicant is squarely covered by the judgment and order passed by the Division Bench of the Hon’ble High Court on 27.04.2021 as mentioned above, the applicant is entitled for the benefit of 5 points for M.Ed qualification, she obtained/possessed before the cut-off date. In view of the above, the respondent Board is directed to assign the appropriate points of the higher qualification which was erased/deleted by the computer system in her online application form. The O.A. is allowed, with a direction to the respondents, to award weightage of both B.Ed and M.Ed qualifications, provided the Degrees had been obtained prior to the cut off date of the advertisement.”
We have heard the arguments put forth by both the counsel, at length. The main points of consideration are as under:-
The applicant concedes that while filling the application form, she had inadvertently left the column for Physically Handicapped candidates blank, due to which her name had not been considered under the Physically Handicapped quota.
ii) Learned counsel for the applicant stated that due to the non-joining of two candidates, there are vacancies available to accommodate her in the selection list.
iii) Vide para no. 9 (supra), Learned counsel for applicant has quoted the judgment of Hon’ble High Court upheld by the Hon’ble Supreme Court and the order passed by this Tribunal in a similar case and pleads for similar relief.
Keeping the above in view, we find that the instant case is covered by the citations quoted above provided the applicant was in possession of the requisite Physically Handicapped certificate at the time of applying for the post of Teacher referred to above. The respondents are hereby directed to place the name of the applicant at the appropriate place as in the selection list as per her merit, treating her as a Physically Handicapped candidate against the vacancies which became available due to non-joining of two candidates. She would be assigned notional seniority along with her batchmates and would be entitled to monetary benefits only from her actual date of joining. This exercise shall be completed within a period of six weeks from today.
The parties shall bear their own costs.