PHOOLA WANTI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS petition seeks to quash the order No. 549/HTE of 1971 dated 4 -8 -1971 of respondent No. 1 sanctioning regularisation of temporary / officiating appointment of respondent No. 3 to the post of lecturer in persian with effect from 1 -7 -69 held by her in the Government College for Women Srinagar. The petitioner also claims a writ of mandamus against respondent No. 1 to deal with the case of the petitioner according to law on merits and in terms of the recommendations of the Public Service Commission.

(2.) THE Petitioner has averred that she was appointed as a Government Teacher on 9 -8 -1956. She passed her M. A. in Persian in second division in the year 1969. Throughout her service the petitioners merit has been acknowledged as she earned the appreciation of her work from her officers. Vide Notification No. PSC 70/1 dated 22nd January 1970 applications were invited by Public Service Commission (hereinafter referrred as Commission) for the posts of lecturers in different subjects including the post of lecturer in persian. The requisite qualification for the candidate was that he or she should hold Masters degree in the concerned subject and should have studied the subject at graduation level. The petitioner was duly qualified and eligible to apply for the said post of lecturer in Persian. She applied. She appeared in viva -voca test on 11 -7 -70. At the said interview the petitioner came out with flying colours as she topped the list. Her name was recommended for appointment as the first choice. Normally except for most compelling reasons the recommendation of the Commission is accepted. This, however, was not done in her case. The recommendation made by the Commission was not accepted. Reasons for that have not been disclosed. On the other hand respondent No. 3 has been appointed by the Government in disregard of the advice tendered by the Commission. The petitioner has contended that once the matter has been referred to the Commission, no ad -hoc appointment of another person could be made by the Government by disregarding the recommendations of the Commission altogether. The Commission having once made its choice the Government, must stick to it in order to obviate charge of intransigence or malafide. The Government could not regularise any temporary/ officiating or ad -hoc appointment over the head of the Commission by by -passing it. The Government order does not state why and for what reasons and on what grounds it disagreed with the Commission in respect of the selection recommendation made by the latter for the said post of lecturer in persian and why respondent No. 3 was appointed against the post. The appointment of respondent No. 3 to the post is not permissible and is clearly malafide. Respondent No. 1. did not apply its mind to the merits of the cases of the incumbents and it did not consider the case of the petitioner at all. In making the order in favour of respondent No. 3 respondent No. 1. has acted in colourable exercise of power. The order is also not a speaking order. The petition is supported by an affidavit.

(3.) MR . J. N. Dhar Additional Secretary to Government, Education Department, has filed the reply affidavit in which he has averred that the post of lecturer in Persian fell vacant in the Government College for Women in the year 1967. In order to carry on the teaching work in the institution respondent No. 3 was appointed on ad -hoc basis vide Government Order No. 20 -CD of 1967 dated 19 -6 -1967. The post was notified to the Commission for selection of the suitable candidate and the Commission recommended one Sultana Tahira for appointment to the post. The said candidate was not found eligible for appointment under rules. She was overage and the Government did not think it proper to relax the age bar in her favour. The decision of the Government was conveyed to the Commission who in the mean time was requested to convey its agreement to the continuance of the respondent No. 3. In view of the fact that the classes could not be left without a teacher the commission conveyed its approval to the continuance of respondent Na 3 till the end of June 1969. The Commission, however, took a long time to make fresh selection which necessitated further continuance of the appointment of respondent No. 3 and her appointment was continued on ad -hoc basis till the fresh recommendations by the Commission were received. The post was thereafter re -advertised by the Commission and the Commission recommended the petitioner for the post in question. Respondent No. 3 was not recommended. Recommendation of the Commission was examined by the Government, but it was found that the selection made by the Commission was not proper. Therefore on consideration of relevant and material facts the Government came to the conclusion that the respondent No. 3 was better suitable for the post in question and for that reason the Government disagreed with the opinion expressed by the Commission and ordered appointment of respondent No. 3. It is further averred that the reasons which prevailed with the Government in this behalf are contained in the memorandum submitted to the Council of Ministers forming annexure A to the reply affidavit - It is denied that the Government had no power to over ride the recommendations of the Commission. The Commission being only an advisory body, its recommendations are not binding upon the Government. That the impugned order is not a speaking order has also been denied. Further, it is submitted that the matter being purely an administrative one there was no obligation on the Government to record an order like a Judicial authority. It is also denied that the order has been issued malafide or that it infringes the fundamental rights or the legal rights of the petitioner. In view of this, it is submitted that the writ petition being baseless merits dismissal. The petitioner is not entitled to any relief.