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2020 Supreme(J&K) 74
HIGH COURT OF JAMMU AND KASHMIR
Sanjeev Kumar, J.
Rajesh Kumar - Appellant
Versus
State & Ors. - Respondent
SWP 768/2011 and IA 1113/2011
Decided On : 11-02-2020
Mr. D.K.Khajuria Advocate, for the Appellant; Mr. Rajesh Thapa, Dy.AG for respondent Nos. 1 to 4., Mr. Achal Sharma Advocate for respondent No.5, for the Respondent
Headnote:
Constitution of India, 1950 – Controversy – Advertisement - Petition has arisen peculiar situation - Appointment of respondent namely Dev Raj as teacher in Government Primary School made by vide his Order is assailed by petitioner on ground that same has been made purportedly in compliance to judgment passed by Division Bench in which was obtained by suppression material – Held, At time when statement was made before Division Bench that post of teacher in Primary School was lying vacant where respondent could be adjusted it was not brought to notice Division Bench that said post had been notified for selection and candidates like petitioner had responded to said notification by submitting their applications forms and were waiting for selection process to be concluded – Perhaps had this fact been brought to notice of Division Bench judgment would have been different judgment - Be that as it may being aware of jurisdiction of this Court in such matters court refrain from further commenting upon merits of controversy - In given facts and circumstances where petitioner has asserted specific case of misrepresentation and fraud committed by official respondents in persuading Division Bench to pass judgment which has adversely affected rights of petitioner court of considered view that remedy lies somewhere else - Petitioner may have to work out his remedy as is permissible in law but surely this petition for reasons stated above is not maintainable before this Court - Counsel for petitioner fairly concedes this position and submits that only remedy to avoid judgment passed by Division Bench is perhaps filing of an appropriate petition for recalling of judgment but apprehends that such petition may not be maintainable as he was not party in appeals or in writ petitions aforesaid filed by respondent and one Devi – Petition dismissed
JUDGMENT
1. This petition has arisen under peculiar fact situation. The appointment of respondent No.5, namely, Dev Raj as ReT teacher in the Government Primary School, Tunkhail, Tehsil Paddar made by ZEO vide his Order No. ZEO/P/SSA/10/161-65 dated 30.12.2010 is assailed by the petitioner on the ground that the same has been made purportedly in compliance to the judgment dated 21.09.2010 passed by the Division Bench in LPA(SW) No. 25/2009 which was obtained by suppression of material facts.
2. With a view to understand the controversy raised in this petition in proper perspective, it would be necessary to take note of few facts as are relevant for the disposal of this petition.
Respondent No.3 vide Advertisement Notification No. CEO/K/10/107-109 dated 05.05.2010 invited applications for the engagement of ReT teachers at village level in different schools of District Kishtwar which included one post of ReT teacher in Primary School Tunkhail of Education Zone Paddar. Amongst other candidates, the petitioner had responded to the aforesaid notification and was waiting for the selection process to be concluded. While the aforesaid selection process was pending, it appears and is also borne out from the record that there was a dispute between respondent No.5, namely, Dev Raj and one Kushma Devi with regard to the engagement of ReT Teacher in Government Primary School, Laddar. It further transpires that against the engagement of Kushma Devi, respondent No.5 Dev Raj moved a representation before the official respondents and when it evoked no response, he filed SWP No. 1491/2005 seeking quashment of selection and engagement of Kushma Devi and a direction to the official respondents to consider and engage him as ReT teacher in Government Primary School, Laddar. During the pendency of aforesaid writ petition, it appears that the official respondents considered the grievance of aforesaid Dev Raj and, accordingly, issued a show cause notice to Kushma Devi for cancellation of her engagement. This made Kushma Devi also to file a petition i.e. SWP No. 2116/2007. Both the petitions aforesaid were considered by a Single Bench of this Court together and by a common Judgment dated 26.02.2009, the writ petition filed by Dev Raj i.e SWP No. 1491/2005 was allowed and the official respondents were directed to implement the communication of the Director School Education, Jammu bearing No. DSEJ/W/8570-72 dated 22.11.2007 by issuing a formal order of engagement in favour of Dev Raj as ReT in Government Primary School Laddar. Consequently, the writ petition filed by Kushma Devi was dismissed. The judgment dated 26.02.2009 passed by the Single Judge was assailed by Kushma Devi by filing two separate LPA Nos. 25/2009 and 26/2009.
The Division Bench vide its interim order dated 15.03.2010 called upon the Director School Education, Jammu to settle the matter by saving the appointment of Kushma Devi and also by offering the appointment as ReT to Dev Raj. Responding to the observations of the Division Bench, the official respondents submitted to the Division Bench that one post of ReT teacher in Primary School Tunkhail, Zone Paddar was lying vacant and the same could be offered to respondent Dev Raj. With a view to settle the issue, the Division Bench took on record the statement made by the official respondents as also the copy of communication dated 27.08.2010 and directed them to issue appointment order in favour of Dev Raj as ReT teacher against the vacancy stated to be lying vacant in the Primary School Tunkhail. This is how the Division Bench settled the matter and saved the appointment of Kushma Devi.
3. With a view to give effect to the Judgment dated 21.09.2010 passed by the Division Bench of this Court, the respondents withdrew the Advertisement Notification which pertained to filling up of one post of ReT teacher in Government Primary School Tunkhail. The petitioner, feeling aggrieved of the withdrawal of the Advertisement Notification, enquired fro
