RAKESH KUMAR GUPTA Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner is M. Sc. in Zoology and is presently posted as Lecturer in Zoology in the Govt. Higher Secondary School, Hiranagar, in the pay scale of Rs. 900 -1400 with effect from 8 -10 -1983 which appointment has been made on the recommendation of the J&K Public Service Commission (herein after referred to as the Commission). Notification No. 10 of 1983 dated 5 -12 -1983 was issued by the commission inviting applications for the posts of lecturers in Zoology in the College Deptt. of the State in the pay -scale of Rs. 1000 -2000. The contention of the petitioner is that he along -with other teachers working in various Higher Secondary Schools applied through proper channel for the above post of lecturer in Zoology in the college Department of the State. He was called for interview on 21 -2 -1984. Afterwards, as a consequence of the interview conducted by the Commission, Government Order No. 397 -HE of 1984 dated 16 -6 -1984 was passed appointing 8 candidates -5 males and 3 females -as Lecturers among direct recruits ignoring the claim of the candidates working as lecturers in the Higher Secondary Schools. It is further averred by the petitioner that the appointment in J&K Educational (Gazetted) Service, is governed by the rules framed under Sec. 124 of the constitution of Jammu and Kashmir known as J&K Educational (Gazetted) Service Recruitment Rules, 1977, as issued under SRO -470 of 1977 dated 3 -8 -1977 and amended by SRO -480 of 1982 dated 22 -11 -1982. In accordance with these rules, no person is eligible for appointment in the service unless he possesses the qualification as laid down in the schedule and further the appointment to the service is to be made by direct recruitment and by promotion in the manner and ratio as shown against each post in the schedule. Under SAO -480, (Supra) an amendment was made to the effect that 60 percent of the vacancies shall be filled in by direct recruitment and 40 per cent by selection from among the lecturers working in Higher Secondary Schools and Post Graduate Headmasters on a competition basis. The petitioner has further averred in his petition that in accordance with the above -mentioned rules it was incumbent upon the commission to have recommended at least three persons out of eight vacancies from among the candidates working as lecturers in Zoology or Headmasters with post -graduate qualification in Zoology. He has thus challenged the abovesaid government order dated 16 -6 -1984, being unconstitutional, illegal, arbitrary and discriminatory violating Articles 14 and 16 of the Constitution of India.

(2.) OBJECTIONS have been filed only on behalf of respondent No. 3, by Secretary of the Commission. No objections have been filed by respondents 1 and 2. Respondent 4 to 9 and 11 absented themselves and the case was proceeded exparte against them. Respondent No. 10 is dead and the petitioner has not claimed any relief against him In objections, respondent No. 3 has averred that the Higher Education Deptt. made requisition to the Commission for making selections for the posts of lecturers in the speciality of Zoology and other specialities in the Higher Education Department of the State. The Commission advertised the posts vide notification No. 10 of 1983 dated 5 -12 -1983. The said advertisement was issued inviting applications to fill the posts of lecturers in question by direct recruitment. Accordingly the applications were received and interview of eligible candidates was held by the Commission. After making due selections from the available talent on the basis of suitability and merit of the candidates, a panel of selectees was sent to the department of Higher Education consequent upon which the department issued Govt. Order No. 397 -HE of 1984 dated 16 -6 -1984 appointing 5 male candidates and 3 female candidates for the posts in question, The petitioner who was a teacher in the Govt. Higher Secondary School had also applied in response to the said advertisement and was interviewed by the Commission with the assistance of an expert on the subject from outside the State. The petitioner could not be selected for the post in question as he did not come up in merit vis -a -vis the selectees. This, however, did not exclude his claim for being considered against the 40 percent quota of posts to be filled in by selection from the lecturers of HS Schools and Post -graduate Headmasters on competition basis as provided in SRO -480 dated 22 -12 -1982, notification for which has since been issued. The selection as made by the commission and appointment order so issued by the government was for the filling up of the posts of lecturers in the Zoology by direct recruitment. The claim of the petitioner will be considered alongwith others if he applies in response to the Commissions notification No. 1 of 1986 dated 31 -1 -1986 under which applications from the in service candidates (lecturers of H.S. Schools and Post -graduate Head -masters) have been invited.

(3.) THE petitioner has filed rejoinder to the objections filed on behalf of respondent No. 3 stating therein that the only ground taken by respondent No. 3 in the counter is that advertisement notification No. 10 of 1983 was issued for various posts of lecturers in the college department only for the quota of 60 per cent fixed for direct recruitment and the commission made recommendations for such quota of direct recruits. This assertion of respondent No. 3 is an after -thought and a lame and untenable excuse. Rule 5(5) of the J&K Educational (Gazetted) Service Recruitment Rules, 1977, (hereinafter referred to as the 1977 Rules) provides that appointments to the service shall be made in the manner and ratio as shown against each post in the schedule and the method of recruitment given in the schedule is, selection from two sources, 60 per cent by direct recruitment and 40 per cent by selection from lecturers of H.S. Schools and post -graduate Headmasters on competition basis. There is no declaration by the respondents that for the vacancies reserved for the in -service candidates, no suitable candidates were available and, therefore, direct appointments were being made.