Srinagar, Dec 28: Terming it a policy decision of the J&K Board of School Education (BOSE), the High Court of Jammu & Kashmir and Ladakh Tuesday upheld the appointment order of the retired government officer as Consultant of the Board.
The court upheld the order issued by the Board on September 20, 2021 whereby retired Deputy Secretary, Ghulam Hassan Wani, was appointed as Consultant in the Board on a consolidated basis for a period of one year.
A division bench comprising Justices, Ali Mohammad Magrey and Mohammad Akram Chowdhary, held that the appointment, on the part of the Board, is clearly a policy decision of the Board keeping in view the interests of the organization as well as the suitability for the post in question.
"Same, in no circumstance, can be said to be arbitrary or violative of any of the rights of the respondents (the Employees Association)," the bench said.
The bench said that the Board, in this behalf, have all the expertise in such administrative matters and it is, ordinarily, not proper for the court to sit in appeal over their decisions, unless, of course, it is something totally arbitrary or shocking, which is not the eventuality in the case on hand
The court passed the rulings in two appeals challenging the single bench order passed on December, 14, 2021, whereby the court stayed the operation of the order of appointment of Wani.
Earlier, the office bearers of the Employees Association challenged the validity of the appointment order of Wani before the single bench and sought quashing of the same.
The division bench after perusing the material on record noted that the single judge has, in terms of the order, virtually granted the final relief sought in the petition by staying the operation of the order of appointment of the retired employee as Consultant.
Besides, the court said, the order of appointment of the appellant was only for a period of one year on consolidated basis, meaning thereby that the time was of great essence in the said process of appointment and, by staying the appointment, the entire process got stalled thereby defeating the very object of the decision taken by the Board.
"In these peculiar facts and circumstances, we are of the considered view that the appeals have been competently filed under Clause 12 of the Letters Patent," the bench held.
The bench pointed out that it is not forthcoming as to what locus the writ petitioners/respondents (office bearers of Employees Association) had to file the writ petition as against the appointment of a retired employee as Consultant on consolidated basis made
by the Board.
It further pointed out that the respondents have not substantiated before the court as to which of their right, muchless a fundamental right, was alleged to have been violated or is being violated with the aforesaid appointment by the Board.
The court noted that the single judge, before entertaining the writ petition and passing the order of stay thereon, ought to have satisfied itself with regard to the locus standi of the Employees Association in filing the writ petition.
It recorded that it is settled legal position that a ‘Writ of Mandamus’ is issued in favour of a person who establishes a legal right in himself.
The division bench said that a ‘Writ of Mandamus’ is issued against a person who has a legal duty to perform, but has failed and/ or neglected to do so
"Such a legal duty emanates from either in discharge of a public duty or by operation of law," it recorded.
The ‘Writ of Mandamus' is of a most extensive remedial nature, the court said.
It further recorded that the object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice, despite demanded, has not been granted.
Setting aside the single bench judgment, the court said that it is crystal clear that existence of a right is the foundation of the jurisdiction of a Court to issue a ‘Writ of Mandamus’.
"In the case on hand, the Writ Petitioners/Respondents herein have not been able to show as to which of their right has been violated by the Board with the appointment of the appellant as Consultant on consolidated basis for a period of one year, which could have been directed to be enforced by way of issuing a ‘Mandamus’ from the Court," the bench recorded.
The bench while allowing the appeals held that the irrefutable conclusion which can be drawn is that none of the rights of the Writ Petitioners/ Respondents herein stood violated by the Board in the process of appointing the retired employee as Consultant on consolidated basis for which a ‘Writ of Mandamus’ can be issued in their favour.