Case: MEENA SHARMA Vs. THE STATE OF JAMMU AND KASHMIR

first Writ Petition was filed in 2009, the appellant was not impleaded in spite of the fact that Annexure A4 to the Writ Petition indicated the position of the appellant in the Select List. It was only in 2011, nearly four years after the initial appointment of the appellant, that a second Writ Petition was filed in order to challenge the appointment. Thus, on merits, it was urged that there was no breach of the RET Scheme in considering persons belonging to village Chak Koura. Moreover, it was submitted that there was an unexplained delay on the part of the fifth respondent in challenging the appointment of the appellant. The appellant was regularized in 2013. She is stated to be 56 years of age with about four years left to attain the age of superannuation. Moreover, it was urged that, at this stage, quashing the appointment of the appellant would be of no benefit to the fifth respondent. The fifth respondent cannot seek appointment on the basis of a Select List which was drawn up in 2003, nearly sixteen years having elapsed in the meantime. 15. On the other hand, Mr Navyug Sethi, learned counsel appearing on behalf of the fifth respondent, supported the judgment of the High Court, contending that the condition of eligibility in the RET Scheme was that the candidate must belong to the village where the school is situated. This was clarified in a Government Order dated 24 August 2005. The learned counsel submitted that though the appellant did not belong to the revenue village where the school was situated, she was appointed following the first order of the High Court in her Writ Petition only against the threat of coercive action in a Contempt Petition. Learned counsel submitted that the order passed by the High Court envisaged a verification of the place of habitation and if such a verification had been done, it would have revealed that the appellant was not a resident of the revenue village concerned. Hence, placing reliance on the principles which have been enunciated by the High Court, it was urged that it was the fifth respondent, who belonged to the village Bakore, and not the appellant, who was entitled to the post. On the aspect of delay, learned counsel submitted that when the fifth respondent instituted the first Writ Petition in 2009, it was unknown to her that the appellant had been appointed. Consequently, it was only in 2011, after a counter affidavit was filed by the State in the earlier Writ Petition clarifying that the appellant had been appointed in the meantime, that the second Writ Petition was instituted by the fifth respondent before the High Court. Hence, it was urged that there was no delay on the part of the fifth respondent. Learned counsel submitted that upon the invalidation of the appointment of the appellant, the fifth respondent is entitled to the post and a direction should accordingly be issued to that effect. 16. We have also heard Mr G M Kawoosa, learned counsel appearing on behalf of the State. 17. In assessing the rival submissions, the central aspect of the case which needs to be emphasised is that after the appointment of the appellant on 3 December 2007, the first challenge to her appointment was four years later in the Writ Petition of 2011. The fifth respondent filed a Writ Petition earlier in 2009, but chose not to implead the appellant or to challenge her appointment. Though the fifth respondent claims that she was unaware of the appointment of the appellant, this explanation cannot be accepted for the reason that the Select List was annexed at Annexure A4 to the first Writ Petition. A diligent enquiry would have revealed that the appellant had been appointed in the meantime. The appellant was appointed after the first two candidates who had been appointed as teaching guides under the RET Scheme resigned from the position. The four year delay on the part of the fifth respondent in contesting the appointment of the appellant, disentitled her to claim any relief. 18. Apart from this, the appellant was regularized in service in 2013 before the judgment of the learned Single Judge holding that she was not eligible for appointment on the ground that she did not belong to the revenue village. The VEC took a bona fide decision to draw up a combined list for the two villages because Chak Koura had no school. Moreover, the challenge to the appointment of the appellant will not be of any benefit to the fifth respondent. The fifth respondent cannot claim a right of appointment on the basis of a Select List of 2003 after a lapse of sixteen years. The Select List cannot have any indefinite life so as to be operated at an uncertain future date. In any event, we are of the view that if a bona fide decision was taken by the government to approve the appointment of the appellant following the decision of the High Court, this cannot be faulted. In deciding as to whether a fit and proper case was made out before the High Court under Article 226 of the Constitution, an important consideration is the proximity of the two villages and the fact that there was no school in village Chak Koura to which the appellant belonged. It is also significant to note that the initial appointments of the candidates were also of persons belonging to the village of Chak Koura. 19. For the above reasons, we have come to the conclusion that the Writ Petition which was filed by the fifth respondent suffered from an unexplained delay. Even on merits the appointment of the appellant is not vitiated. In the meantime, equities have ensued in favour of the appellant who has been regularized in service and has continued after regularization for nearly six years. The fifth respondent cannot at this stage claim a vested right to appointment on the basis of the Select List of 2003.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]17. In assessing the rival submissions, the central aspect of the case which needs to be emphasised is that after the appointment of the appellant on 3 December 2007, the first challenge to her appointment was four years later in the Writ Petition of 2011. The fifth respondent filed a Writ Petition earlier in 2009, but chose not to implead the appellant or to challenge her appointment. Though the fifth respondent claims that she was unaware of the appointment of the appellant, this explanation cannot be accepted for the reason that the Select List was annexed at Annexure A4 to the first Writ Petition. A diligent enquiry would have revealed that the appellant had been appointed in the meantime. The appellant was appointed after the first two candidates who had been appointed as teaching guides under the RET Scheme resigned from the position. The four year delay on the part of the fifth respondent in contesting the appointment of the appellant, disentitled her to claim any relief18. Apart from this, the appellant was regularized in service in 2013 before the judgment of the learned Single Judge holding that she was not eligible for appointment on the ground that she did not belong to the revenue village. The VEC took a bona fide decision to draw up a combined list for the two villages because Chak Koura had no school. Moreover, the challenge to the appointment of the appellant will not be of any benefit to the fifth respondent. The fifth respondent cannot claim a right of appointment on the basis of a Select List of 2003 after a lapse of sixteen years. The Select List cannot have any indefinite life so as to be operated at an uncertain future date. In any event, we are of the view that if a bona fide decision was taken by the government to approve the appointment of the appellant following the decision of the High Court, this cannot be faulted. In deciding as to whether a fit and proper case was made out before the High Court under Article 226 of the Constitution, an important consideration is the proximity of the two villages and the fact that there was no school in village Chak Koura to which the appellant belonged. It is also significant to note that the initial appointments of the candidates were also of persons belonging to the village of Chak Koura19. For the above reasons, we have come to the conclusion that the Writ Petition which was filed by the fifth respondent suffered from an unexplained delay. Even on merits the appointment of the appellant is not vitiated. In the meantime, equities have ensued in favour of the appellant who has been regularized in service and has continued after regularization for nearly six years. The fifth respondent cannot at this stage claim a vested right to appointment on the basis of the Select List of 2003It is also significant to note that the initial appointments of the candidates were also of persons belonging to the village of Chak