AIJAZ AHMAD MALIK Vs. STATE OF J&K

JUDGEMENT

(1.) This order shall dispose of LPA No. 53/2011 relatable to SWP No. 106/2007 filed by one Naza Bano, LPA No. 54/2011 which has also been filed by Naza Bano relatable to SWP No. 153/2007 and another appeal preferred by one Aijaz Ahmad Malik namely LPA No. 121/2011, which is relatable to SWP No. 386/2007. It is appropriate to mention that the Writ Court has disposed of all the writ petitions by a common judgment dated 11.02.2011 dismissing SWP No. 106/2007 filed by Naza Bano wherein she had claimed regularization on the post of General Line Teacher after having rendered five years service as Rehbar-e-Taleem. The learned Single Judge had also dismissed SWP No. 386/2007 fled by Ajaz Ahmad Malik, wherein he had prayed for a declaration to set aside the initial appointment of Naza Bano on the post of Rehbar-e-Taleem on 26.11.2001. However, the writ petition, SWP No. 153/2007, filed by one Nissar Ahmad Malik has been allowed setting aside the appointment of Naza Bano on the position of Rehbar-e-Taleem. The ground of setting aside her appointment is that in the merit list of ten candidates her name figured at the lowest as she had secured 241 marks out of 600 in 10+2. The learned Writ Court has rejected the preliminary objection raised by Naza Bano and State by observing that Nissar Ahmad Malik persistently followed the administrative remedies of filing representations and then persuading the authorities to conduct vigilance enquiry. It was on the basis of enquiry concluded in the year 2007 that Nissar Ahmad Malik filed the writ petition because the Deputy Chief Education Officer, after recording findings against Naza Bano, has thrown out the claim made by Nissar Ahmad Malik on the ground of delay. However Writ Court reversed that view and has placed reliance on the observations made by Hon?ble the Supreme Court in the cases of Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., 1970 AIR(SC) 898 Ramchandra Shankar Deodher v. State of Maharashtra, 1974 AIR(SC) 259Moon Mills Ltd. v. M.R. Meher, 1967 AIR(SC) 1450Maharashtra SRTC v. Balwant Regular Motor Service, 1969 AIR(SC) 329and Shiv Das v. Union of India, 2007 9 SCC 274to conclude that there is no rule of law that delay and laches must prove fatal in every case. The conduct of a party should be of such a nature, which might fairly be regarded as equivalent to waiver. Delay may also assume significance if third party right has come into existence. In that regard reliance has also been placed on the other judgments of Supreme Court in Ramachandra Shankar Deodhar v. State of Maharashtra, 1974 AIR(SC) 259 and Ashok Kumar v. State of Bihar, 2008 AIR(SC) 2723

(2.) The learned Writ Court referred to the pleadings and recorded findings that the advertisement notice inviting applications for the post of Rehbar-e-Taleem in Girls School, Khul was issued on 26.11.2001, which was also the last date of receipt of applications. The panel of candidates was prepared on 27.11.2001 followed by selection list on 29.11.2001. The engagement order was issued in favour of the least meritorious candidate who was at the bottom of the list, Ms. Naza Bano, on 03.122001. The committee comprising of District Development Commissioner and Chief Education Officer, selected Ms. Naza Bano on 26.11.2001 when the process of preparation of the select list was yet to be completed. It was thus held that the process of selection in question was marred by illegality and flagrant violation of equitable clause enshrined under Article 14 & 16(1) of the Constitution and that respondent Nos. 3 and 4 i.e. Deputy Commissioner, Anantnag and Chief Education Officer, Anantnag acting in collaboration with the then District Development Commissioner threw all the rules to winds while making the selection and in the brazen process violated the fundamental rights of more meritorious candidates such like Nissar Ahmad Malik. As a consequence of the findings recorded by the learned Single Judge, the writ petition filed by Nissar Ahmad Malik, namely SWP No. 153/2007 has been allowed setting aside the appointment of Naza Bano on the position of Rehbar-e-Taleem. However the writ petition filed by Ajaz Ahmad Malik namely SWP No. 386/2007, which is relatable to LPA No. 121/2011 has been dismissed on the ground that he never participated in the selection process. Likewise the prayer of Naza Bano in SWP No. 106/2007 relatable to LPA No. 53/2011 seeking regularization on the post of General Line Teacher has been rejected.

(3.) Respondent Nos. 3 and 4 had issued advertisement notice on 26.11.2001 inviting applications for filling up one post of Rehbar-e-Taleem in Girls Middle School, Khul from amongst unemployed qualified youth of the village. The minimum qualification prescribed was 10+2 and the last date for receipt of applications was also the same namely 26.11.2001 when the advertisement notice was published in the newspaper. The name of Naza Bano appeared at serial No. 10 because her merit was the lowest as she had secured 241 marks out of 600 in 10+2 whereas there were nine other candidates who were more meritorious than her. Sh. Nissar Ahmad Malik in his petition has expressly explained why he has not been able to approach the Court in the year 2001 or later within reasonable time and that explanation has been accepted by the learned Writ Court. The learned Writ Court has recorded a clear finding that a total number of ten applications were received and the official respondents prepared a panel of all the candidates on 27.11.2001 in presence of the village level committee. It was then submitted to the Chief Education officer, Anantnag and all the empanelled candidates were having 10+2 Qualification except one Sh. Farooq Ahmad Bhat. Ms. Naza Bano, who was at the bottom of the list having secured 241 out of 600 marks in 10+2 was nonetheless selected vide order dated 29.11.2001. Sh. Farooq Ahmad Bhat, who has passed 2nd year of B.A. examination, occupied first position in the panel. Sh. Shameem Ahmad Malik with 338 marks out of 600 in 10+2 was at serial No. 2. The learned Single Judge accepted the explanation for delay because the objections were raised to the engagement of Miss Naza Bano immediately. There were also complaints addressed to the Chief Education Officer, Anantnag and State Vigilance Organization. In pursuance of communication dated 22.11.2006 sent by the State Vigilance Organization an enquiry was held into the matter. The Deputy Chief Education Officer with headquarter at Kulgam (Sh. A.R. Shah) was asked to hold the enquiry. He found that Zonal Education Officer had committed grave irregularity by not including the name of Nayeema Akhter, Hilal Ahmad Malik and Aijaz Ahmad Malik, who had higher qualification/merit in the list of available candidates. The panel prepared by the committee of District Development Commissioner, Anantnag and Chief Education Officer, Anantnag showed that Naza Bano was at the bottom of the merit list and ignoring all the nine meritorious candidates, the committee selected Naza Ba no. The enquiry report further revealed that the decision to select Naza Bano was taken on 26.11-2001 although the panel itself was prepared on 27.11.2001. When the enquiry was in progress, the enquiry officer asked each of the candidates higher in merit to signify their intention to surrender their claim for appointment to the position of Rehbar-e-Taleem at Girls Middle School, Khul. Except Nissar Ahmad Malik, all other surrendered their respective claims. The challenge to the enquiry report at the instance of Naza Bano had been repelled and the argument of delay and laches has also been rejected by the learned Writ Court by observing as under:-"It is however pertinent to point out that the rule to decline consideration to a belated claim on the grounds of laches is not a rule of law but a rule of practice to guide proper exercise of discretion. It has been held that there is no inviolable rule that whenever there is delay the court must necessarily refuse the relief. The rule of practice has its edifice on the principle that the rights which may have accrued to others by a reason of the delay in filing the petition should not be allowed to be disturbed in absence of reasonable explanation for the delay. The petitioner, alleging violation of fundamental rights, is expected to move the court before other rights come into existence. A reference in this regard is made to TILOKCHAND MOTICHAND V/S H B MUNSHI, COMMISSIONER OF SALES TAX, BOMBAY, 1970 AIR(SC) 898 RAMCHANDRA SHANKAR DEODHAR V/S STATE OF MAHARASHTRA, 1974 AIR(SC) 259The following observations of Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong; (1874) 5 PC 221 quoted with approval in Moon Mills Ltd v. M.R. Mehar, 1967 AIR(SC) 1450Maharashtra SRTC v. Balwant Regular Motor Service, 1969 AIR(SC) 329and in Shiv Das v. Union of India,2007 9 SCC 27, sums up the principle on the subject: "Now the doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy where afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." In Ramachandra Shankar Deodhar v. State of Maharashtra, 1974 AIR(SC) 259a writ petition filed after a delay of more than 10 years was resisted on the ground of laches. The Supreme Court rejecting the preliminary objection held: