Jammu, March 28: In Transfer Application No.233/2024 ( WPC No.358/2023 ) titled Mohd. Iqbal VERSUS U.T of J&K Through Commissioner Secretary to Government School Education Department & others after hearing a bench of HON’BLE MR. RAJINDER SINGH DOGRA , MEMBER (J) HON’BLE MR. RAM MOHAN JOHRI, MEMBER (A) after hearing Advocate F.A.Natnoo ordered as under:-
(Per :- Hon’ble Mr. Rajinder Singh Dogra, Judicial Member: 1. The applicant by way of filing WPC No.358/2023 had initially invoked the writ jurisdiction of the Hon’ble High Court seeking therein the following reliefs:-
i. Allow this writ petition of the petitioner. ii. Writ of Certiorari; quashing the order issued by the respondent no. 2 under endorsement no. DSEJ/Legal/2834 dated 01-02-2023 whereby on so called consideration accorded to the case of the petitioner in the light of the order/Judgment dated 18-09- 2018 passed in SWP No. 1915/2018, the case of the petitioner for regularization of his services as general line teacher has been rejected on sheer non application of mind to the facts of the case. iii. Writ of Mandamus; commanding the respondents to regularize the service of the petitioner as Rehbar-e- Taleem teacher with effect from the date the petitioner has completed continuous 5 years of service as Rehbar-e-Taleem teacher and entitled for such regularization in terms of the RET scheme. iv. Writ of Prohibition, restraining the respondents from taking any steps causing disadvantages to the service interest of the petitioner on the basis of the order impugned. v. Any other writ, order, command or direction, which this Hon’ble Court may deem just and proper in the given facts of the case may also be passed in favour of the petitioner.
2. In view of the Notification No.GSR . 317(E) dated 29th April, 2020 read with notification No.GSR 317 (E) dated 28th May , 2020 issued by the Ministry of Personnel , Public Grievance and Pensions ( Department of Personnel and Training ), the aforesaid writ petition came to be transferred to this Tribunal for its disposal under law, thus the petition came to be renumbered as TA. 233/2024.
3. Facts giving rise to filing of the instant Petition/Transfer Application as emerging from the pleadings of the parties and also as explained by the Ld. Counsels in a nutshell are that the applicant with qualification of 10+2 (Non-Medical Stream) and having responded to the advertisement notice dated 18-02-2009, owing to the fact that no candidate from revenue village Basti as well as Panchayat where the school ( UPS Basti) was situated was available, the consideration zone came to be extended to education zone Doda which includes village Basti as well as village Beoli wherein the applicant belongs to, the applicant came to be engaged as Rehbar-e-Taleem Teacher vide order No. ZEO/D/225-28 dated 09-11-2009 issued by respondent no.4 that too on approval granted by the respondent no.2.
4. The case of the applicant is that after completing the requisite five years of satisfactory service in terms the RET scheme the applicant was being deprived of his regularization as General Line Teacher and had thus filed SWP No. 1915/2018 which came to be disposed of vide judgment dated 18-09-2018 by the Hon’ble High Court directing the respondents to consider his case for the purpose of regularization as General Line Teacher within a period of four weeks , which directions could not be complied by the respondents within time thus constraining the applicant to again approach the Hon’ble Court by way of filing contempt petition no. 29/2022 and it was only after filing of the contempt petition, the respondent no. 2 in reference of some departmental action taken against the officials/officers vide government order no. 355/EDU of 2018 dated 16-03-2018 and further with reference to a particular clause of notice i.e clause 5 (a) and without referring to the relevant clause i.e 6 of advertisement notice which specifically relates to the controversy involved in the case has on compliance of the judgment dated 18-09-2018 passed by the Hon’ble High Court concluded/observed as if the engagement of the applicant had been made in violation of the norms and rules and has thus vide order dated 01-02-2023 rejected the case of the applicant for the purpose of regularization of his services, which Mr. F A Natnoo Ld. Counsel appearing for the applicant submits that has been passed by the respondent no. 2 in utter disregard to the directions passed by the Hon’ble Court vide judgment dated 18-09-2018 and even contrary to express provisions/conditions of the advertisement notice which clearly provides for selection to be made on village/panchayat/zonal level as per the directions contained in government order no. 1693- EDU of 2003 dated 12-11-2003 and which is otherwise contrary to legal position governing the subject thus required to be struck down on the grounds set out in the petition.
5. The respondents have filed their objections. Mr. Sudesh Mangotra Ld. AAG appearing for respondents submits that consequent upon inquiry in the matter by the enquiry officer it has been found that the engagement of the applicant has been made without re-advertising the post at Zonal Level, which was mandatorily required but not done by the then CEO/ZEO , as such the applicant was engaged as RET Teacher in Middle School , Basti in violation of Rules, thus his case for regularization as General Line Teacher has been rightly rejected.
6. Heard the Learned Counsels for the parties and perused the record.
7. Admittedly the applicant having responded to the advertisement notice dated 18-02-2009, and owing to the fact that no candidate from revenue village Basti as well as Panchayat where the school ( UPS Basti) was situated was available, the consideration zone came to be extended to education zone Doda by the Zonal Education officer of the time as is reflected from the copies of panels placed on record which contains the note/certificate to that effect by the concerned Zonal Education Officer of the time.
Further the panel besides having the nod of the concerned VLC was duly signed and approved by the then Director School Education Jammu, before allowing appointment of the applicant. Thus the above stand taken by the respondents in the objections that some action has been taken against some officials/officer is not clear as to the extent any such action was taken against the panel approving authority of the time or not. Moreover the respondents have not even been able to prove that the applicant has at any point of time resorted to any falsehood in the process or is the engagement is in anyway based on fraud.
8. The applicant after filing of reply by the respondents has also filed supplementary affidavit wherein it is stated that the so called compliance placed by the respondent No. 2 to the case of the applicant is contrary to the facts.
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9. It is an undisputed fact that the advertisement notice contain specific clauses in the shape of clauses 3 and 6 which reads as under:-
“3. The applicant must be possessing minimum qualification of 10+2 pass having Math and Science background (any qualification acquired after the cutoff date for the receipt of application as per the advertisement shall not be entertained) applicants not having Math and Science background need not to apply.” 6. the applicant shall be selected on the basis of strict merit at village/panchayat/zonal level as per the directions issued vide Govt. order No. 1693-Edu of 2003 dated 12- 11-2003.”
10. It is further undisputed that the applicant herein has responded to the aforesaid advertisement notice with Math background and sought consideration for selection against an available position of RET at Primary School Basti ,Zone Doda and based on his merit in the panel prepared by the concerned Zonal Education Officer with further recommendations of the Village Level Committee concerned, was empanelled for selection/appointment with specific note/certificate that there is no candidate , from revenue village Basti as well as Panchayat where the school was situated , available as such in light of clause (6) above zone of consideration was extended to Education zone Doda and based on the eligibility of the applicant from zone Doda where the village Basti and village Beoli falls, the applicant came to be recommended for appointment, which was allowed by the respondent No. 2 on its due approval accorded to the select panel. It further appears that on the basis of some compliant the crime branch has initiated some investigation, however it was lateron found that the engagement of the applicant and other such similarly situated candidates is legal and the said agency vide communication No. EOW/CBJ/CLT/2022/1301/2832 dated 25-08-2022 has closed the investigation as no offence having been proved. The aforesaid decision/communication is also part of the present petition made buy the applicant, which has not been even disputed at all by the respondents
11. From the aforesaid discussions it is clear that the respondents while inviting applications for engagement of ReT teachers in various schools including the Primary School Basti , made it clear that the applicants shall be selected on the basis of strict merit at village/ Panchyat/Zonal level.
The applicant though not belonging to the village concerned submitted his application form for consideration at the zone level. There was thus enough intimation to the eligible candidates of the zone to submit their application forms, though the consideration whereof was dependent upon the non-availability of the candidates at the village and panchayat level.
Further it is no body’s case that some eligible candidate of village and panchayat concerned with math background though available was denied consideration or for that matter any complaint had been received.
Moreover, the complaint of someone other than any eligible candidate has otherwise been found without any merit by the crime branch. Jammu. Therefore, the plea of the respondents that the engagement of the applicant has been made without re-advertising the post at Zonal Level and allegedly in violation of Rules cannot be accepted in the given facts and circumstances of the case.
12. In view of the aforesaid analysis, the impugned order bearing No. DSEJ/Legal /2834 dated 01-02-2023 issued by respondent No.2 cannot sustain. The same is, therefore, quashed.
Respondents 2 to 4 are directed to regularize the services of the applicant as General Line Teacher with effect from the date the applicant has attained the eligibility for such regularization with all benefits including monetary benefits, increments, seniority, insitu/regular promotions.
13.The needful as above shall be done within a period of two month from the date of receipt of copy of this order.
14.No order as to costs. (RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member Judicial Member
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