Jammu, July 15: In Transfer Application No. 3475/2021 titled Neelam Kumari VERSUS 1. State of Jammu and Kashmir, through Its Chief Secretary, Govt. of J&K, Civil Secretariat, Srinagar/Jammu. after hearing F.A. Natnoo, Advocate by applicant CAT ordered as under:-
Rajinder Singh Dogra, Judicial Member
1. The SWP/WP(C) No. 889/2013 was transferred from the Hon’ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/3475/2021 by the Registry of this Tribunal.
2. The present matter was filed before the Hon’ble High Court with following prayer:
a) “Writ of Certiorari; quashing the selection of respondent No. 6 made by the official respondent No. 3 as well as order of appointment issued by the respondent No. 5 vide CEO/R/12/9831-34 dated 11.12.2012 for the post of Teacher District Cadre Ramban under OM/SC Category, through the said respondent No. 6 being lower in merit than the petitioner herein under OM/PHC category.
b) Writ of mandamus; commanding the respondents to consider the case of the petitioner for her selection /appointment against the post of Teacher District Cadre Ramban based on her merit determined by the respondent No. 3 in the selection process under OM/PHC Category.
c) Any other writ, order, command or direction as this Hon'ble Court may deem just and proper in the given facts and circumstances of the case, may also be passed in favour of the petitioner and against the respondents.”
3. The facts of the case as averred by the petitioner in her pleadings are as follows: a) The petitioner is a permanent resident of the erstwhile State of Jammu and Kashmir and a citizen of India, claiming entitlement to all fundamental, legal, and statutory rights enshrined under the Constitution of India.
b) The petitioner participated in the selection process initiated through Advertisement Notification No. 07 of 2010 dated 12.11.2010 for the post of Teacher, District Cadre Ramban. Out of 104 advertised posts, one was earmarked under the PHC (Physically Handicapped Category) quota.
c) The petitioner possesses the following educational qualifications: 10+2 from J&K BOSE with 62.10% Graduation from Jammu University with 43.69% Post-graduation from Jammu University with 50.5% B.Ed from Priests University, Tamil Nadu with 72.57% d) The petitioner was awarded a total merit of 35.11 points including weightage for higher qualification and B.Ed, whereas respondent no. 6, who was selected against the PHC quota under OM category, had a total merit of 32.07 points.
e) The selection criteria notified by the respondents allotted 100 points in total, with specific weightage given to qualifications such as 10+2, Graduation, B.Ed, Post-graduation, M.Ed, M.Phil, Ph.D., and Viva Voce.
f) The petitioner applied under the PHC category and submitted a valid disability certificate issued by the competent authority, but was not selected despite having higher merit than the selected candidate (respondent no. 6). g) The petitioner contended that the selection and appointment of respondent no. 6 was made de hors the recruitment rules and lacked transparency, fairness, and legality as required under Articles 14 and 16 of the Constitution of India. h) The B.Ed qualification obtained by the petitioner from Priests University was not considered for weightage, whereas similar distance mode qualifications of other candidates, including respondent no. 6 (from Punjab Technical University), were accepted by the respondent authorities. i) The petitioner's name was initially shown in the provisional merit list at Sr. No. 27, but was later excluded from the final selection list issued by respondent no. 3 without assigning any reason. j) The petitioner submitted a representation, and a writ petition SWP No. 2549/2011 was filed. This led to an interim direction dated 29.12.2011 by the Hon’ble Court, directing that one post under PHC category be kept reserved. k) Subsequently, the final selection list dated 11.12.2012 (CEO/R/12/9831-34) was issued, and respondent no. 6 was appointed as Teacher under OM/PHC category, allegedly in violation of the court’s interim order and selection norms.
l) The petitioner submits that she has not filed any other writ, suit, or proceeding in any other court on the same cause of action.
4. The respondents have filed their reply statement wherein they have averred as follows: a) The answering respondents, in their objections to the writ petition, have raised preliminary objections and submitted that the petition is not maintainable as it involves disputed questions of fact which cannot be adjudicated in the writ jurisdiction under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir (as it then stood). It is further submitted that the petitioner has failed to demonstrate the violation of any fundamental right, and as such, the writ petition is liable to be dismissed. b) It is contended that the Hon’ble High Court cannot act as an appellate authority over the selection process which has been conducted strictly in accordance with the rules and regulations by a competent expert body—namely the Jammu & Kashmir Services Selection Recruitment Board. c) The answering respondents deny all averments made in the writ petition unless specifically admitted and submit the following para-wise reply: (i) The contents of para 1 are a matter of record. However, it is submitted that no fundamental or legal right of the petitioner has been violated. (ii) The contents of paras 2 to 4 are also stated to be matters of record and do not require specific comments. However, anything inconsistent with the official records is denied. (iii) As regards para 5, the issuance of advertisement for the post of Teacher is admitted as a matter of record. It is clarified that the engagement of Teachers has been done in accordance with the rules and governing regulations. (iv) In reply to the averments made in paras 6 to 19, it is submitted that the School Education Department only acted as the indenting department, having referred the posts for selection of General Line Teachers to the J&K Services Selection Recruitment Board, which is a duly constituted statutory body tasked with the conduct of the selection process. The Recruitment Board devised the selection criteria and carried out the process accordingly. Only those candidates who met the prescribed eligibility criteria were called for interview. (v) Since the petitioner was not found eligible to be called for interview as per the criteria, she was not called. The respondents acted strictly as per the procedure. The answering respondents (School Education Department) are not the selecting or appointing authority but are only the indenting department.
The final selection is made by the J&K Services Selection Recruitment Board and orders of appointment are issued by the appointing authority as per rules. (vi) The contents of para 20 are denied for want of knowledge.
The plea raised therein pertains to selection- related matters which fall within the purview of respondent no. 3.
5. In the rejoinder to the reply, the petitioner has averred as follows: - a) The petitioner strongly refutes the contents of para no. 1 of the respondents' objections and submits that the official respondents have indeed violated the fundamental, legal, and statutory rights of the petitioner. Despite possessing a duly issued certificate of locomotor disability and falling under the PHC category, the petitioner has been unjustly denied horizontal reservation. This denial has caused serious prejudice to the applicant, who was otherwise entitled to consideration under the reserved category for Persons with Disabilities. b) With reference to para nos. 2, 3, and 4 of the preliminary objections, the applicant submits that the advertisement notification No. 07 of 2010 dated 12.11.2010 is a matter of record. However, non-consideration of the petitioner under the PHC reservation despite fulfillment of criteria is an act of discrimination and arbitrariness on the part of official respondents. c) The contents of para no. 6 of the objections are vehemently denied. The petitioner acquired a total merit of 35.11 points, higher than respondent no. 6, who was selected despite securing only 32.07 points.
The petitioner was eligible and had applied under the PHC/OM category. The selection of respondent no. 6 over the petitioner, in disregard of the merit and disability reservation, is violative of Articles 14 and 16 of the Constitution of India. d) The petitioner belongs to the RBA/PHC category and suffers from locomotor disability exceeding 40%. This has been certified by the competent medical authority. Denial of horizontal reservation benefit on the pretext of non- identification for the post of teacher is baseless.
The Government Order No. 62-SW of 2001 dated 13.03.2001 nowhere excludes the petitioner's condition (Kyphosis of Dorsal Spine with Pigeon Chest Deformity) from eligibility. In fact, this condition is a well-recognized locomotor disability. e) It is further submitted that the selection and appointment of respondent no. 6 was done to accommodate a preferred candidate, thereby excluding the petitioner unjustly.
The actions of respondent no. 3 are arbitrary, biased, and violative of the petitioner's constitutional and statutory rights. f) The petitioner’s condition qualifies under the Jammu and Kashmir Persons with Disabilities Act, 1988 read with Section 22 and SRO 294 of 2005 which mandate 3% reservation for physically challenged persons. The denial of reservation to the petitioner despite meeting eligibility conditions is both unfair and unconstitutional. g) The contents of para no. 8 of the objections are denied in total.
The action of respondent no. 3 is not only illegal but also arbitrary and liable to be quashed. The petitioner, having higher merit and a valid PHC certificate, deserves consideration under the horizontal PHC reservation quota. 6. Heard learned counsel for the parties and perused the material on record.
7. This Transfer Application has been filed by the applicant Neelam Kumari, originally registered as SWP No. 889/2013 before the Hon’ble High Court of Jammu and Kashmir at Jammu, challenging the selection and appointment of respondent no. 6 to the post of Teacher, District Cadre Ramban, made pursuant to Advertisement Notification No. 07 of 2010 dated 12.11.2010. The applicant seeks quashing of the selection of respondent no. 6 and a direction to be appointed in her place on the ground of superior merit and valid entitlement under the PHC (Physically Handicapped Category) quota. The Hon’ble High Court had, vide interim order dated 25.04.2013, directed that the selection of respondent no. 6 shall remain subject to the outcome of the writ petition.
8. The applicant is a permanent resident of the erstwhile State of Jammu & Kashmir and applied for the post of Teacher under District Cadre Ramban, falling under the PHC category. She possesses the qualification of 10+2 from the J&K BOSE with 62.10%, Graduation from the University of Jammu with 43.69%, Post Graduation from the University of Jammu with 50.5%, and a B.Ed degree from Priests University, Tamil Nadu with 72.57%. She holds a duly issued disability certificate indicating a locomotor disability exceeding 40% due to Kyphosis of the Dorsal Spine with Pigeon Chest Deformity. The certificate was issued by the competent medical authority, entitling her to be considered under the PHC category. As per the selection criteria notified by the Service Selection Recruitment Board, her merit was calculated at 35.11 points.
In contrast, respondent no. 6, who was selected and appointed under the same category, had secured only 32.07 points. Despite having higher merit and a valid PHC certificate, the petitioner was not selected, and the sole post available under PHC/OM category was offered to respondent no. 6. 9. In response, the official respondents contended that the selection process was carried out strictly as per the notified rules and that the petitioner was not eligible under the PHC category, as her disability was allegedly not identified for the post of Teacher under Government Order No. 62-SW of 2001 dated 13.03.2001.
They submitted that the Service Selection Board acted strictly within its domain as the competent expert body and only considered eligible candidates for interview and final selection. It was also contended that the School Education Department had merely referred the requisitions and had no role in the final selection or appointments.
10. The petitioner, in her rejoinder, vehemently denied the justification given by the respondents. She submitted that her locomotor disability is a well-recognized category of disability under the Jammu and Kashmir Persons with Disabilities Act, 1988 and SRO 294 of 2005, which mandates 3% horizontal reservation for persons with disabilities. She pointed out that Government Order No. 62-SW of 2001 does not debar her condition and that no such exclusion is evident from its language.
She also submitted that the same respondents had accepted the B.Ed qualification of other candidates from outside universities, and hence denying weightage for her B.Ed from Priests University was arbitrary. The petitioner contended that the exclusion of her claim under PHC was discriminatory, especially when her merit was higher than that of the selected candidate, respondent no. 6. 11. After perusal of the records, pleadings, and material placed on file, this Tribunal finds that the applicant possesses higher merit than respondent no. 6 as per the selection criteria notified by the official respondents.
Her disability is duly certified and falls squarely within the category of locomotor disabilities entitled for reservation under PHC. The stand taken by the respondents to exclude her candidature on the basis of non-identification of her specific disability is not borne out from the plain reading of Government Order No. 62-SW of 2001. In fact, the said order does not restrict any specific locomotor condition from eligibility for the post of Teacher. Furthermore, the appointment of respondent no. 6, who secured lesser merit and whose disability also pertains to the lower limb, was accepted without reservation, thus making the action of the official respondents clearly discriminatory and arbitrary.
12. The Hon’ble High Court, while entertaining the matter, had protected the petitioner’s interest by directing that the appointment of respondent no. 6 shall remain subject to the outcome of the writ petition. The Tribunal is of the considered view that the exclusion of the petitioner from selection despite her higher merit and valid PHC certification is violative of Articles 14 and 16 of the Constitution of India and deserves to be interfered with.
13. Accordingly, the Tribunal allows this Transfer Application.
In the event that the post under PHC/OM category is still available or was kept reserved in compliance with the interim order of the Hon’ble High Court dated 25.04.2013, the respondents are directed to appoint the applicant against the said post based on her merit and eligibility.
The entire exercise shall be completed within a period of six weeks from the date of receipt of a certified copy of this order.
In the event that the post is no longer available, the applicant shall be granted notional seniority and deemed appointment against the PHC quota with all consequential benefits, excluding back wages.
There shall be no order as to costs.
14. Interim order, if any, stands vacated.
(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member Judicial Member
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