Parties are bound by the decision which is not challenged and is in force as on date: High Court of Jammu and Kashmir and Ladakh

 SWP 296 2018 HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP no. 296 2018 CM no. 854 2020 Reserved on: 20.09.2021 Pronounced on: 23.09.2021 Waheeda Yaseen Khan …PetitionerThrough: Mr Aijaz Ahmad Chesti Advocate v. State of JK and others …Respondents Through: Mr Shah Aamir AAG Mr M. I. Qadiri Sr. Advocate with Mr Ahmad Javed Advocate Coram: Hon’ble Mr Justice Ali Mohammad Magrey Judge JUDGMENT 1. By the instant petition petitioner seeks a writ of certiorari to the effect thatAppointment order of respondent no. 10 as R e T teacher made in terms of Order No. ZEO R RT 11 746 48 dated 28.07.2011 Enquiry issued under No. DCV LRA Enquiry 2011 57 59 dated 28.4.2011 be quashed. Petitioner has further sought a writ of Mandamus to the effect that petitioner be appointed as R e T teacher being next in merit after Respondent no. 8 on the grounds taken in the memo of petition. 2. To appreciate the issue in its proper perspective a brief look at the events as they happened is desired thus: 3. A notification dated 11.11.2010 for appointment of two number of Rehbar e Taleem Teachers for upgraded Primary School at New Colony Ompora Budgam falling under Ward no. 8 issued by respondent no. 7 Zonal Education Officer Budgam was responded to besides others by the petitioner and the respondent no. 10 by offering their candidature for the said posts. The eligibility for the posts in question as prescribed in the Notification was 10+2 or SWP 296 2018 above level with Mathematics and Science background aged between 18 to 37 years as on 01.01.2010. Subsequently a panel was drawn by the Zonal Education Officer and the petitioner is reflected at serial no. 3 therein while as the respondent no. 10 is shown to be at serial no. 2. 4. It is further stated in the writ petition that the respondent no. 10 is hailing from Batpora Handwara and is not a resident of the area for which the posts in question were advertised and the respondent no. 10 by way of fraud has managed his residential status. In that view of the matter the petitioner feeling aggrieved of the inclusion of the respondent no. 10 in the panel filed a representation before respondent no. 3 objecting to the inclusion of respondent no. 10 in the panel. Besides the Welfare Committee of Government Housing Colony Ompora Budgam is also stated to have objected to the inclusion of respondent no. 10 in the panel on the same ground of not being the resident of the area. It is further stated in the writ petition that even the PRC produced in support of his claim by the respondent no. 10 does not show him to be the resident of the Ward No. 8 where the posts are sanctioned but of Ompora Village. 5. Subsequent thereto the petitioner was constrained to file a civil suit questioning the inclusion of respondent no. 10 in the panel. 6. Thereafter the Assistant Commissioner Budgam has vide No. DCB LRA Enquiry 2011 57 59 dated 28.04.2011 returned a finding in an enquiry initiated on the application of the petitioner to the effect that out of the two candidates respondent no. 10 has the PRC of village Ompora Tehsil Budgam while as the petitioner is having PRC of Srinagar therefore respondent no. 10 deserve to be considered for selection to the ReT post. SWP 296 2018 7. Thereafter the interim relief application of the petitioner was rejected by the court below by vacating the interim order dated 12.2.2011 in terms of order dated 29.04.2011 providing therein that the tentative list challenged is not the final list but subject to objections therefore the petitioner plaintiff ought to have filed objections to such tentative list. 8. Thereafter the official respondents issued an appointment order in favour of respondent no. 10 which the petitioner came to know when a writ petition SWP no. 2192 2016 came to be filed by the respondent no. 10 before this Court and the petitioner represented objected to such appointment at every administrative level but could not get justice therefore was constrained to file the writ petition in hand. 9. Aggrieved of the action initiated against him as indicated hereinbefore the petitioner has filed this writ petition to seek the relief as reflected in the foregoing paragraphs on the grounds that: the appointment earned by the respondent no. 10 is on the strength of the fraud documents as such liable to set at naught petitioner being meritorious and eligible to hold the post of R e T teacher advertised in ward no. 10 Govt Housing Colony Ompora Budgam which stands usurped by the respondent no. 10 therefore the appointment order deserves to be quashed the appointment order in question being violative of doctrine of legitimate expectation warrants to be quashed more so when earned by activating fraud vis à vis issuance of fraud documents both in terms of PRC voter list and other allied documents therefore the appointment order in question deserves to be quashed the impugned appointment order is also violative of rule of law equity and good conscience therefore merits to be set at naught SWP 296 2018 10. Upon notice the respondents appeared and filed their reply resisting the claim of the petitioner. 11. The respondents 1 2 6 7 11 and 12 have filed objections to the stand of the petitioner stating inter alia that the petitioner has raised disputed questions of fact which cannot be gone into in a writ petition the impugned order does not suffer from any legal infirmity as such the writ petition is liable to be dismissed that the petitioner has relinquished her right to challenge the impugned order as she did not choose to do so while filing her earlier writ petition and the judgment passed in the said writ petition SWP no. 1268 2017 has earned finality. It is further stated in the reply filed on behalf of the respondents 1 2 6 & 7 that petitioner had filed a writ petition SWP no. 1268 2017 which came to be disposed of by this Court in terms of judgment dated 15.02.2018 providing therein that petitioner can avail the liberty to take recourse to challenge the enquiry with regard to PRC and domicile of respondent no. 10 by way of revision and in case he is of the opinion that the said respondent has obtained the documents by playing fraud he can file FIR against the said respondent before the concerned police. 12. The respondents 11 and 12 have additionally adverted that petitioner was ineligible for the post in question as she did not have the requisite knowledge of Science or Math at 10+2 level which was a pre requisite for appointment as ReT teacher. 13. Heard learned counsel for the parties and considered the submissions made. 14. The admitted facet of the case is delineated in the first instance hereunder thus: SWP 296 2018 A post of ReT teacher was available in Upgraded School at ward No. 8 of Government Housing Colony Ompora Budgam which was notified by the official respondents. The petitioner and respondent no. 10 applied and participated in the section process that commenced subsequently and a panel was drawn in which both petitioner and respondent no. 10 figure at serial no. 3 and 2 respectively. Before appointment is made against the said post a controversy arose as regards the residential status of the respondent no. 10 who stood at serial no. 2 and had a preferential right of appointment. This led to filing of a vociferous litigation which includes a civil suit filed by the petitioner wherein the selection of respondent no. 10 came to be challenged Writ petition SWP no. 2192 2016 filed by the respondent no. 10 seeking direction in the name of respondent no. 2 therein to regularize his services as a General Line Teacher for having completed more than five years continuous services as ReT teacher Writ Petition SWP no. 1268 2017 filed by the petitioner seeking a direction in the name of respondents 3 and 4 therein to hold an enquiry with regard to Permanent Resident Certificateand domicile of respondent no. 8 and to enquire the veracity of the documents submitted by the respondent no. 8the petitioner had further prayed for a direction in the anme of Crime Branch Kashmir to hold an enquiry with regard to providing of favorite documents to respondent no. 8 therein. Apart from these petitions the writ petition on hand as also two more petitions which have been delinked by the order dated 20.09.2021 are also pending on the subject. 15. The petitioner has filed a Civil Suit for declaration and permanent injunction before the court below with the following relief: SWP 296 2018 “In the premises it is therefore prayed that a decree in the nature of declaration may be passed in favour of the plaintiff and against the defendants declaring the plaintiff to be entitled for appointment of RET teacher on the basis of merit in the Govt. Middle School Govt. Housing colony Ompora Budgam Kashmir as being the permanent resident of District Budgam. A decree in the nature of mandatory injunction may be passed in favour of the plaintiff and against the defendants thereby commanding the defendants to issue the appointment order of RET teacher for Govt. Middle School Govt. Housing Colony Ompora Budgam in favour of the plaintiff on the basis of merits as being the permanent resident of district Budgam.” 16. The petitioner has thereafter filed an amended plaint adding a following relief clause therein: “A decree of mandatory injunction in favour of the plaintiff and against the defendants thereby commanding upon defendants 1 to 3 not to issue any order of appointment viz RET Middle School Ompora Housing Colony District Budgam in favour of defendant no. 4.” 17. The Court below for adjudication of the matter has framed following issues for determination: “1. Whether the plaintiff is the Permanent Resident of Ward No. 8and have the eligibility to be appointed as ReT for the newely upgraded school at Ompora Budgam in pursuance of notification challenged in this suit2. Whether the defendant no. 4 is not the permanent resident of Ompora Colony and as such having no right to seek appointment against the said notification OPP 3. Whether the eligibility fixed by the Chief Education Officer Budgam in pursuance of the alleged notification has been fulfilled by the plaintiff defendant no. 4 irrespective areas of their domicile 4. Relief: To what relief the parties are entitled 18. The writ petition no. 2192 2016 filed by the respondent no. 10 seeking regularization of his services has been disposed of by this court in terms of order dated 31st December 2016 with a direction to the respondent no. 2 therein to decide the claim of the petitioner for regularization of his services as General Line Teacher in accordance with the law and rules applicable by a speaking order within a period of two months from the date of receipt of certified copy of SWP 296 2018 the order. While so ordering it has been made clear by the court that it has not expressed any opinion with regard to the merits of the case. 19. The Writ Petition SWP no. 1268 2017 filed by the petitioner seeking the relief as taken note of in the foregoing paragraphs has been disposed of by this Court in terms of order dated 15.02.2018 in the following terms: “Thus from perusal of the relief claimed by the petitioner in the civil suit as well as issues framed by the trial court it is evident that the factum of residence of respondent no. 8 is in issue before the trial court. The petitioner cannot be allowed to prosecute two remedies simultaneously. It is also relevant to mention here that enquiry with regard to PRC and domicile of respondent no. 8 has already been held and in case the petitioner is aggrieved of the same he is entitled to take recourse to challenge the same by way of revision. Needless to state that in case the petitioner is of the opinion that respondent no. 8 has obtained the documents by playing fraud the petitioner is at liberty to file first information report against respondent no. 8 before the concerned official which shall be dealt with in accordance with law by concerned SHO in view of the law laid down in Lalita Kumari v. Government of Uttar Pradesh2013SLJ 777 2) 2000SLJ 574 3) 2000SLJ 41 4) AIR 2013 SC 487 5) AIR 1977 SC 1112 6) AIR 2016 SC 3006 7) AIR 2009 SC 571 8) AIR 2004 Rajasthan 247 9) AIR 1996 SC 497 10) AIR 1999 SC 517 11) AIR 2008 SC 1614 12) 2010SLJ SWP 296 2018 580 13) 2007SLJ 838 14) AIR 1990 SC 185 15) 1989 KLJ 284 16) 1991 SLJ 185 17) AIR 2013 SC 487 18) AIR 1964 SC 962 19) AIR 1976 SC 2438 22. Given the fact that the petitioner has filed a civil suit on the subject and a writ petition also before filing the instant writ petition therefore without returning finding on all the points raised by the parties it is thought appropriate to first address a question as to whether the writ petition survives consideration for the reliefs prayed for 23. To have the question answered one needs to appreciate the events as they took place and the first event that comes to the fore would be the appointment of the respondent no. 10 as ReT teacher made in the year 2011 which had to be questioned by the petitioner under appropriate proceedings which has not been done although a civil suit is filed by the petitioner before the competent court of jurisdiction but that challenged the tentative selection of respondent no. 10 as the appointment order had not been issued at that point of time. There is a copy of the amended plaint also on records in which the petitioner had additionally sought a restraint in the name of defendants respondents herein for issuing any appointment order in favour of respondent no. 10 but there is nothing on record to show that any restraint was ever issued by the court. However it is quite apparent that no appointment order had been issued until then. 24. Next event that takes place and assumes importance is the filing of writ petition by the petitioner bearing SWP no. 1268 2017 presented on 6th July 2017 but the petitioner did not choose to lay a challenge to the appointment of respondent no. 10 when admittedly the appointment order was issued way before in the year 2011 and the petitioner was quite aware of it. 25. The situation would have been different in case the petitioner had not filed any writ petition on the subject after the issuance of the appointment order in favour of respondent no. 10 as in that case the court had to look at the aspect of SWP 296 2018 delay and then go to the merits of the case but since the petitioner has been aware of the appointment order and had filed a writ petition on the subject afterwards without questioning the same the court would be required to see as to what effect does it carry on the merits of the case in hand. Whether it amounts to relinquishment of the right to challenge the appointment of respondent no. 10 or not 26. Admittedly the petitioner on approaching this court in the first round of litigation had chosen not to challenge the appointment order may be because of pendency of the suit challenging selection of respondent no. 10 but on decision of the writ petition SWP no. 1268 2017 rendered on 15.2.2018 the petitioner can by no stretch of imagination challenge the appointment as the challenge will be governed by the decision rendered in the writ petition SWP 1268 2017. 27. Parties are bound by the decision which is not challenged and is in force as on date therefore there is no scope as far as quashment of appointment of respondent no. 10 is concerned on whatsoever grounds unless the trial court decides the issue regarding the factum of residence of respondent no. 10. On this finding alone the challenge to appointment in the instant writ petition is not available. But the petitioner is at liberty to lay challenge to the appointment in the pending suit on available pleadings if the law so permits. 28. In light of the above findings based on the judgment final order of this court rendered in a writ petition SWP no. 1268 2017 the petitioner’s right depending upon the decision of the Civil Court is reserved to further relief in the said suit. 29. Having regard to what has been stated hereinbefore the writ petition is disposed of along with all CMs in the following manner: SWP 296 2018 i) Writ Petition for the relief sought qua quashment of appointment of respondent no. 10 is dismissed. ii) Petitioner is at liberty to seek further relief in the pending civil suit on the strength of the judgment final order rendered by this court in a writ petition SWP no. 1268 2017 if available under law. The writ petition along with all CMs is disposed of on the above lines. Records be returned to Mr Shah Aamir AAG against receipt. It goes without saying that the court below shall adjudicate upon the merits of the case without getting influenced by any of the observations made by this Court while deciding the instant writ petition. Judge SRINAGAR 23.09.2021 Amjad lone PS Whether approved for reporting: Yes No. 

Summary: Parties are bound by the decision which is not challenged and is in force as on date, therefore, there is no scope as far as quashment of appointment of respondent is concerned on whatsoever grounds unless the trial court decides the issue regarding the factum of residence of respondent which the petitioner believes to be obtained by fraud as upheld by the High Court of Jammu and Kashmir and Ladakh through the learned bench led by Justice Ali Mohammad Magrey in the case of Waheeda Yaseen Khan v. State of JK and others (SWP no. 296/2018 [CM no. 854/2020])  The brief facts of the case are that post of ReT teacher was available in Upgraded School at ward No. 8 of Government Housing Colony, Ompora, Budgam which was notified by the official respondents. The petitioner and respondent no. 10 applied and participated in the section process that commenced subsequently and a panel was drawn in which both petitioner and respondent no. 10 figure at serial no. 3 and 2 respectively. Before appointment is made against the said post, a controversy arose as regards the residential status of the respondent no. 10 who stood at serial no. 2, and had a preferential right of appointment. This led to filing of a vociferous litigation which includes a civil suit filed by the petitioner wherein the selection of respondent no. 10 came to be challenged; Writ petition filed by the respondent no. 10 seeking direction in the name of respondent no. 2 therein to regularize his services as a General Line Teacher for having completed more than five years continuous services as ReT teacher; Writ Petition, filed by the petitioner seeking a direction in the name of respondents 3 and 4 therein to hold an enquiry with regard to Permanent Resident Certificate (PRC) and domicile of respondent no. 8 and to enquire the veracity of the documents submitted by the respondent no. 8 (respondent no. 10 herein) the petitioner had further prayed for a direction in the anme of Crime Branch, Kashmir to hold an enquiry with regard to providing of favorite documents to respondent no. 8 therein. The Hon’ble High Court held, “Parties are bound by the decision which is not challenged and is in force as on date, therefore, there is no scope as far as quashment of appointment of respondent no. 10 is concerned on whatsoever grounds unless the trial court decides the issue regarding the factum of residence of respondent no. 10. On this finding alone, the challenge to appointment in the instant writ petition is not available. But the petitioner is at liberty to lay challenge to the appointment in the pending suit on available pleadings if the law so permits. In light of the above findings based on the judgment/ final order of this court rendered in a writ petition, the petitioner’s right, depending upon the decision of the Civil Court, is reserved to further relief in the said suit. Having regard to what has been stated hereinbefore, the writ petition is disposed of,” Click here to read the Judgment