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2010 Supreme(J&K) 186
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Hakim Imtiyaz Hussain,Muzaffar Hussain Attar, JJ.
Wali Mohd. Mir - Appellant
Versus
State Of J&K & Ors. - Respondent
LPA No. 170/2009
Decided On : 01 May, 2010
Advocate For Appellant: Molvi Aijaz
Advocate For Respondent: J.A. Kawoosa
In the absence of available posts and the banning of EGS Centres, no direction can be issued for the selection/engagement of a person, even if the process of selection was initiated.
Headnote:
SSA Scheme - Education Guarantee Scheme - Article 14, Article 16 of the Constitution of India - The court held that in a scheme when the opening up of the Centres is banned and posts are not available, no direction can be issued to select/engage a person, even if process of selection was initiated. Initiation of process of selection does not clothe any eligible person with a right in law to seek direction for bringing the said selection process to its conclusion, though in extra ordinary circumstances, Courts may intervene to uphold the constitution and the law. Opening of EGS Centres have been banned and the process of selection initiated having been withdrawn and panels/tentative selection lists having been cancelled, no direction can be issued for selection/engagement of a person. The writ petition, in these circumstance, would not survive.
Fact of the Case:
The appellant filed a writ petition seeking quashing of the tentative selection list for Education Volunteers (EVs) and issuance of a writ of mandamus to appoint the appellant on the post of EV in place of the private respondent. The appellant claimed to possess superior merit and eligibility for selection and engagement as an EV.
Finding of the Court:
The court found that after the banning of EGS Centres, no right is vested in any candidate to seek a direction for engagement as EV, and the writ petition was rendered infructuous.
Issues: The main issue was whether the appellant, possessing superior merit and eligibility, could seek a direction for engagement as an EV after the banning of EGS Centres.
Ratio Decidendi: The court held that in the absence of available posts and the banning of EGS Centres, no direction can be issued for the selection/engagement of a person, even if the process of selection was initiated.
Final Decision: The appeal was dismissed as meritless.
1. Sarva Shiksha Abhiyan Scheme (for short "SSA") is launched by the Central Government and has been operationalised through out the length and breadth of the Country. Education Guarantee Scheme (for short "EGS") is begotten from the SSA.
2. Education Guarantee Centres were created and process for selection and engagement of Education Volunteers (for short "EVs") was initiated by the State Government resulting in selection and engagement of EVs in accordance with the criterion laid for the said purpose. The EGS has been wound up and consequently opening of EGS Centres was banned which resulted in stopping the process of selection/engagements of EVs. This information was notified and circulated by the State Project Director, SSA, J&K State vide his No. Edu/SPD/SSA/32/2006/11260-73 dated 02.03.2006. The cause for filing of the writ petition and this LPA is traceable to issuance of advertisement notification by the Zonal Education Officer, Khumriyal on 16.11.2005 which was published in a daily newspaper on 18.11.2005. Through this advertisement notification applications were invited for engagement of EVs for different centres including Lone Mohalla Warnow. Tentative selection list was also published in which the private respondent was tentatively selected as EV. Prayer was made in the writ petition for issuance of a writ of certiorari for quashing the tentative selection list so far it pertains to the private respondent and it was also prayed that by issuance of a writ of mandamus respondents 1 to 4 be directed to select and appoint the appellant on the post of EV in place of private respondent.
3. Grievance projected by the appellant in the writ petition was that though possessed of superior merit than that of selected candidate he was not selected on the ground that he was not resident of the area. The appellant filed an application which was marked by the Chief Education Officer, Kupwara to the Zonal Education Officer, Khumriyal on 17.02.2006 asking the said authority to entertain the complaint of the appellant on the grounds mentioned in the newspaper provided candidate had applied within the cut off date. The official respondents in the objections have stated that the appellant had not applied within the cut off date. The Court directed for conducting of an inquiry and the Chief Education Officer, Kupwara submitted his report, which has been brought on the writ record, in which it is provided that because of cancellation of the PRC of the appellant the Zonal Education Officer could not consider his application for engagement as EV. The report further reveals that when the process of selection was underway the State Project Director, SSA, J&K vide his communication dated 02.03.2006 informed that the opening of the EGS centres is banned and also provided for stopping the process of engagement of EVs. It was also brought on record through this report that all the notifications issued were cancelled and the panel submitted of EGS Centre Lone Mohalla Ophan Warnow was also cancelled, so no EV was engaged.
4. The writ court in this fact situation dismissed the writ petition holding same to have been rendered infructuous. The LPA is filed on almost identical pleadings as that taken up in the writ petition viz that the appellant was possessed of superior merit than that of private respondent and that he was resident of the area where the EGS Centre was located, so was eligible for being considered for being selected and engaged but was wrongly denied consideration.
5. Heard learned counsel for the parties. Considered the matter.
6. Learned counsel for the appellant submitted that even after the banning of EGS Centres some persons have been engaged as EVs. The learned counsel, thus, submitted that appellant cannot be discriminated against by not engaging him as EV being possessed of superior merit than that of private respondent.
7. Mr. J.A.Kawoosa, learned AAG appearing for the State submitted that in view of the
