Jammu & Kashmir High Court - Srinagar Bench
Shazia Bashir vs Tanveera Akhter & Others on 11 August, 2021
Bench: Chief Justice, Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
Reserved on:26.07.2021
Pronounced on:11.08.2021
LPASW No.174/2018
SHAZIA BASHIR ...APPELLANT(S)
Through:- Mr. M. A. Qayoom, Advocate, with Mr. Mian Tufail,
Advocate.
Vs.
TANVEERA AKHTER & OTHERS ...RESPONDENT(S)
Through:- Mr. M. A. Beigh, Advocate-for R1.
Mr. Shah Aamir, AAG-for R2 to R5.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
JUDGMENT
Per Sanjay Dhar 'J'
1) The appellant has challenged the judgment dated 30.10.2018 passed by the Writ Court in SWP No.410/2005 filed by respondent No.1 (hereinafter referred to as the writ petitioner) whereby the said respondent had challenged the engagement of the appellant as Education Volunteer and her subsequent engagement as Rehbar-e- Taleem teacher and General Line Teacher. Vide the impugned judgment and order dated 30.10.2018, the learned Writ Court has allowed the writ petition and the engagement of appellant as LPA No.174/2018 Page 1 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document Education Volunteer and her subsequent engagement as Rehbar-e- Taleem teacher as well as her appointment as General Line Teacher has been quashed.
2) As per the case projected before the Writ Court, the writ petitioner as well as appellant are residents of Gousia Colony Vessu, Anantnag, and both of them had secured qualification of 10+2. According to the writ petitioner, at the time when appellant was engaged as an Education Volunteer in EGS Centre, Vessu, in the year 2004, the father of the appellant, who happened to be the headmaster of a local school, had managed to suppress the advertisement notice, as a result of which the writ petitioner and several other eligible candidates could not offer their candidature for engagement as Education Volunteer. Thus, the position of Education Volunteer was filled up by the official respondents without resorting to proper advertisement, as a consequence whereof the appellant herein came to be engaged as an Education Volunteer in terms of engagement order dated 16.12.2004. According to the writ petitioner, the said engagement of the appellant is violative of Articles 14 and 16 of the Constitution of India and, as such, is unsustainable in law.
3) Another contention that was raised by the writ petitioner before the Writ Court was that the appellant herein had obtained B. Com degree from Government Degree College, Anantnag, as a regular candidate though she was shown to have worked as an Education LPA No.174/2018 Page 2 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document Volunteer during the same period. According to the writ petitioner by doing so, the appellant has violated the terms of her engagement.
4) The writ petitioner is stated to have approached Deputy Commissioner, Anantnag, bringing to his notice the alleged fraud committed by Zonal Education officer, Qazigund-respondent No.5 herein, and on the basis of her application, an enquiry was set up by the Deputy Commissioner concerned. During the currency of the enquiry, the respondent No.5 is stated to have issued an order whereby the engagement of appellant herein was kept in abeyance. Against the said order, writ petition bearing SWP No.15/2015 came to be filed by the appellant wherein the said order of Zonal Education Officer, Qazigund, was stayed. The writ petitioner filed an application seeking impleadment in the said petition but her application was dismissed by the Court with liberty to file a separate writ petition, as a result of which the writ petitioner filed a separate petition which is subject matter of instant appeal. SWP No.15/2015, later on came to be dismissed as withdrawn and the order whereby engagement of the appellant as Education Volunteer was kept in abeyance was withdrawn by the official respondents.
5) During the pendency of the writ petition, which is subject matter of instant appeal, the writ petitioner amended the petition on a couple of occasions so as to throw challenge to the appellant's engagement as Rehbar-e-Taleem teacher and thereafter as General LPA No.174/2018 Page 3 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document Line Teacher. The basic grounds of challenge to the engagement of the appellant remained unaltered.
6) The writ petition was contested by the appellant as well as by the official respondents. In their response, the official respondents took a stand that the advertisement notice was duly pasted at a conspicuous place in the locality where the EGS Centre was set up and they denied the assertion of the writ petitioner that she was not informed about the advertisement notice. The appellant in her response defended her engagement as an Education Volunteer by contending that the same was made in accordance with the guidelines holding the field. She has also contended that there was no requirement of publication of advertisement notice in any newspaper as the selection process was restricted to the habitation and it was to be undertaken in consultation with the inhabitants of that locality. It was also contended that after the enquiry, the Deputy Commissioner had found that the engagement of the appellant as Education Volunteer had been made in accordance with law and there was nothing illegal in it, as such, the writ petition deserved to be dismissed.
7) The learned Writ Court after hearing the parties and after perusing the record produced by the official respondents, allowed the writ petition primarily on the ground that there was no proper publication of the advertisement notice in the instant case and that the LPA No.174/2018 Page 4 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document principles of fairness and natural justice have not been observed by the official respondents. The learned Writ Court also observed that statutory conditions for regularizing services of the appellant were not fulfilled, inasmuch as the appellant had attended Government Degree College, Anantnag, as a regular candidate during the relevant period.
8) The impugned judgment passed by the learned Writ Court has been challenged by the appellant on the following grounds:
(I) That the learned Writ Court has failed to appreciate the fact that as per the scheme under which the Education Volunteers were to be engaged, there was no requirement of publication of the advertisement notice in a newspaper and that pasting of the notification in the concerned habitation was good enough to fulfill the requirements of the Scheme; (II) That as per the conditions of engagement of the appellant as an Education Volunteer, she was not required to seek any permission for improving her qualification and she was not required to attend the EGS Centre round the clock, as such, she could easily improve her qualification by attending the College as a regular student. According to the appellant, the observations of the Writ Court on this LPA No.174/2018 Page 5 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document aspect of the matter are erroneous and, thus, liable to be set aside;
(III) That the appellant was engaged as an Education Volunteer way back in the year 2004 where-after the scheme came to be abandoned and the appellant came to be engaged as a Rehbar-e-Taleem teacher on 12.01.2009 and thereafter she was appointed as a General Line Teacher in terms of order dated 11.01.2014. On this basis it is contended by the appellant that after having worked for more than 17 years, it would not be equitable to throw out the appellant from her employment and that this aspect of the matter has been overlooked by the Writ Court while quashing her engagement/appointment.
9) We have heard learned counsel for the parties and considered the grounds of appeal and record of the case.
10) The primary ground on the basis of which the learned Writ Court has quashed the engagement/appointment of the appellant is that the position of Education Volunteer on which the appellant was engaged in the year 2004 was not put to advertisement by the official respondents thereby infringing the vital right of consideration of eligible candidates including that of the writ petitioner.
LPA No.174/2018 Page 6 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document 11) In order to determine as to whether the learned Writ Court
was justified in holding as above, we need to first take a look at the scheme under which the Education Volunteers were engaged at the relevant time. The scheme was known as 'Education Guarantee Scheme and Alternative & Innovative Education'. Clause (6) of the said scheme deals with the subject of selection of Educational Volunteers. The same is quoted herein-below:
6. Education Volunteers.
6.1 Selection process
i) The EV would be selected by the local community where the school/centre is proposed to be established. The state may define the role of the local VEC, Panchayat and the committee of parents where children are to be enrolled in the EGS and AIE centre. It is mandatory that an important role is assigned to the group of parents whose children are to be enrolled in the school/centre since they are the most important stakeholder in the proper functioning of the school.
ii) The VEC/Gram Panchayat should ensure that the local community is informed about the need for a EV for the EGS and AIE school/camp.
iii) The VEC/Gram Panchayat would receive applications, scrutinize them and shortlist suitable candidates.
iv) The State could make available the support of DIET/BRC personnel to the village level body to assess the academic capacity of the candidates.
v) The selection process may include a written test and an interview of candidates to make a final selection.
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vi) The teacher would be appointed by the parents committee/VEC/gram panchayat as per the decision taken by the State.
6.2 Criteria for selection.
i) The candidate should be at least 18 years of age and be a matriculate (passed class X) for primary level school/centre. Women with lower than class X qualification should be engaged only in very exceptional circumstances where qualified women are not available at all. For some very specific cases. EGS & AIE would support professional preparation of women though long duration residential training programmes for their induction as EVs in schools/centres funded by the scheme. For upper primary centre the person should be at least 21 years of age and a graduate. Women with class XII qualification could be selected if no suitable graduate candidate is available.
ii) The Panchayat/VEC/Parents committee should give preference to women when selecting EVs. As an incentive for appointment of female EVs preference would be given to EGS centres with female EVs while upgrading them to schools under SSA.
iii) The EV should, preferably, belong to the same habitations or village/panchayat. He/she should preferably belong to the same community as the children who would be enrolled in the school.
The State Government may consider inclusion of a provision in the instructions that may be issued for selection of education volunteers for EGS school or AIE camp/centre for giving some preference to an erstwhile NFE instructor in the selection of the education volunteer under the new scheme, if the NFE instructor has performed his/her duties satisfactorily and satisfies the other conditions mentioned above. In addition, the states may consider relaxation of age limit for any instructors and supervisors for being eligible for LPA No.174/2018 Page 8 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document selection under various para-teacher schemes including for EGS and AIE (where such age limit is decided by any state). The decision regarding selection of EV would vest with the VEC/gram panchayat.
12) From a perusal of the afore-quoted clauses, it is clear that while making selection of Education Volunteers, the Village Education Committee/Gram Panchayat has to ensure that the local community is informed about the need for an Education Volunteer, where-after applications are to be received, scrutinized and the candidates are shortlisted. The scheme also provides that the Education Volunteer should preferably belong to the same habitation or village/panchayat and he should belong to the same community as the children would be enrolled in the school. It further provides that preference may also be given to the erstwhile 'Non formal Education Instructors'.
13) Clause 12 of the scheme provides that selection of Education Volunteers should be made by Village Community/Gram Panchayat or local urban area representative Groups. As per Clause 14 of the scheme, an honorarium of Rs.1000/ per month has to be paid to an Education Volunteer.
14) From the analysis of different clauses of the aforesaid scheme, particularly the clauses referred to hereinabove, one thing becomes clear that the engagement of Education Volunteer in an EGS Centre is not in the nature of offering a public employment in the strict sense. The provisions of the scheme restricts choice of the candidates of the LPA No.174/2018 Page 9 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document habitation in which the EGS centre is established and the scheme emphasizes that it is the local community only which is to be informed about the need for an Education Volunteer. Certain categories of persons are to be preferred while making the engagement of Education Volunteers. Thus, it is not the requirement of the scheme that there should be a proper and wide publicity inviting applications for engagement of Education Volunteers. Publication has to be confined to the local community only.
15) The question that falls for determination is as to whether in the instant case there was dissemination of information or notice with regard to engagement of an Education Volunteer in the concerned habitation. According to the learned Writ Court, pasting of a notice of advertisement notice on an unknown walnut tree or electric pole does not fulfill the requirement of publication of advertisement notice.
16) It is true that as per the record of the case, copies of the advertisement notice bearing reference No.ZEO/Q/513/04 dated 16.10.2004, have been pasted on a walnut tree and electric pole in the locality but then the advertisement notice in question (Itlai Aam) contains an endorsement signed by members of Village Education Committee whereby they have certified that they have read the contents of the said notice which was found by them pasted on an electric pole and another copy on a walnut tree. During enquiry conducted by the Deputy Commissioner on the basis of a complaint LPA No.174/2018 Page 10 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document made by the writ petitioner, several inhabitants of the locality have testified to the fact that they had the knowledge about contents of the aforesaid notice. Even the mother-in-law of the writ petitioner is shown to have the knowledge of the notice. In the face of overwhelming material in the shape of statements of the inhabitants of the locality to prove that they had knowledge of the notice of advertisement, the mere fact that from the record the identity of the walnut tree or electric pole on which the notice is stated to have been pasted is not forthcoming, does not mean that there was no publication of the notice.
17) The record of the official respondents further reveals that pursuant to notice dated 16.10.2004, the Zonal Education Officer concerned visited the habitation on 23.10.2004, to undertake the selection of the panel but could not do so on the said date. He again visited the habitation on 04.11.2004 along with other officials and met Village Education Committee members as well as other inhabitants of the said Colony including the mother-in-law of the writ petitioner, where-after he framed the panel of two candidates, namely, Bilal Ahmad Allaie and the appellant herein as no other candidate came forward or was recommended by the Village Education Committee. Thus, it is not a case where immediately after issuance of notice dated 16.10.2004, the panel for engagement of Education Volunteers was framed by the official respondents. Had it been so, one could infer that LPA No.174/2018 Page 11 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document the panel has been framed in a tearing haste in order to exclude the eligible candidates from the zone of consideration. Here it is a case where, after a lapse of more than two and half months of issuing the notice, the panel was framed, that too after the Zonal Education Officer concerned made as many as two visits to the habitation to meet the people for the purpose. In these circumstances and in the face of aforesaid official record, it cannot be stated that due publicity was not given to the notice inviting applications for the position of Education Volunteer. At least, it can be safely stated that a substantial compliance to the guidelines relating to information to the local community about the selection process has been made by the official respondents in the instant case.
18) Learned counsel for the appellant has brought to our notice certain documents during the course of arguments, which shows that in similar other cases, the publication of notice has been made even by announcement in local mosques without actually pasting the notices in the habitation concerned. This shows that the requirement as per the guidelines of the scheme is to inform the inhabitants of the particular locality where the EGS Centre is located and it is not the requirement of the scheme that there should be publication through print or electronic media or notice to every individual of the inhabitation.
19) Upon going through record of the case, we are of the considered opinion that the requirement of informing the local community about LPA No.174/2018 Page 12 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document the need for engagement of Education Volunteers as per Clause (6) of the scheme has been substantially complied in the instant case. The learned Writ Court has, while holding that there has not been proper publication of the advertisement notice, equated the case of engagement of an Education Volunteer under the scheme with the cases involving recruitment to substantive posts in public employment. There is a fine but real distinction between requirements of publication of advertisement notice in the two cases. In the case of recruitment to substantive posts relating to public employment a wide publicity through print or electronic media is required to be given to the advertisement notice so as to inform all the eligible candidates whereas in a case of instant nature where the selection is confined to the candidates residing in a small habitation, even pasting of advertisement notice or making public announcement in the locality may be sufficient. This distinction has been missed by the learned Writ Court while passing the impugned judgment.
20) Another ground on which the learned Writ Court has quashed the engagement of the appellant is that as per the record the appellant has attended Graduate course in Commerce as a regular candidate while working as an Education Volunteer during the same period.
21) As per Clause 12 of the scheme, the EGS Centres have to function only for four hours during day time and it is not the requirement of the scheme that there should be any fixed working LPA No.174/2018 Page 13 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document hours for the EGS centres. In the face of this, there was ample time for the appellant to attend her classes on regular basis and at the same time to attend to her duties as an Education Volunteer. No such clause of the scheme which prevents an Education volunteer from improving his or her qualification or enjoins upon an Education volunteer to seek prior permission for the purpose, has been brought to our notice. Even if it is assumed that the appellant has violated any of the conditions, it is for the University/College authorities or her employer to take disciplinary action against her in accordance with law but on this ground, her very engagement cannot be quashed.
22) Lastly and importantly, the learned Writ Court has in a casual and cursory manner refused to attach any significance or importance to the fact that the appellant has been working firstly as an Education Volunteer and thereafter as a Rehbar-e-Taleem teacher and General Line teacher right from 2004 and discarded her case even on the grounds of equity.
23) The Supreme Court in Miss Shainda Hassan vs. State of Uttar Pradesh and Ors. AIR 1990 SC 1381, which was a case, where the petitioner was appointed as a Principal in a Girls College though she had not the requisite experience in terms of the advertisement notice, allowed her to continue to work as Principal keeping in view the fact that she had served the institution for over 16 years. The Court held that it would be unjust to make her leave the post.
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24) In Dr. (Mrs.) Meera Messey v. Dr. S. R. Mehrota and Ors. AIR 1998 SC 1153, the Supreme Court in a case where Himachal Pradesh University had promoted Research Associates as Lecturers for which only direct recruitment was provided for, refused to set aside their appointments on the ground that they had been working for more than 11 years.
25) Similarly, in Roshni Devi, Shravan Kumar etc. vs. State of Haryana, AIR 1998 SC 3268, the Supreme Court, while noticing that the recruitment to the posts of Clerks in the State of Haryana had not been made in accordance with the law but because the equity was in favour of those persons who had already been appointed and served for more than 9 years, refused to annul their appointments
26) Thus, it has been the consistent view of the Supreme Court that even if there is some minor irregularity in selection of a candidate but if such a candidate has put in a number of years of service, it may not be advisable to disturb his appointment.
27) While considering the facts of the instant case in the light of the aforesaid judicial precedents, we have to bear in mind the fact that the appellant was engaged as an Education Volunteer in the year 2004 under EGS scheme which has since been abandoned. Upon conversion of EGS Centre into a Primary School, appellant's engagement was converted to Rehbar-e-Taleem teacher, as per the relevant scheme. Thereafter in the year 2014, the appellant came to be LPA No.174/2018 Page 15 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document appointed as a General Line teacher in the said school. There is no dispute to the fact that the appellant has been engaged as an Education Volunteer and thereafter as Rehbar-e-Taleem teacher and General Line teacher by the competent authorities. We have also held that at the time of making engagement of the appellant as an Education Volunteer, substantial compliance to the guidelines has been made. In these circumstances, the equity tilts heavily in favour of the appellant. Her case in equity becomes all the more strong in the light of the fact that the scheme under which the Education Volunteers were engaged has already been abandoned and even if we quash the engagement of the appellant, the writ petitioner cannot be engaged as an Education Volunteer under a scheme which has already been wound up. Thus, even if the case of the writ petitioner is accepted, no relief can be granted in her favour and it would amount to issuing a futile writ, which we are not inclined to do.
28) Apart from the above, having served for many years, the appellant may have by now become over age and her family may be dependent upon her earnings. If her engagement is quashed at this point of time, she will have no other place to go and the quashment of her engagement will work very harshly against her dependents. As against this, the writ petitioner, admittedly, is working as an Anganwadi Worker and she cannot be appointed as an Education Volunteer as of now. Therefore, balance of equity tilts heavily in LPA No.174/2018 Page 16 MOHAMMAD ALTAF BHAT 2021.08.12 00:13 I attest to the accuracy and integrity of this document favour of the appellant. This aspect of the case has been totally ignored by the learned Writ Court while passing the impugned judgment.
29) For the foregoing reasons, the appeal is allowed. The impugned judgment passed by the learned Writ Court is set aside and the engagement/appointment of the appellant as an Education Volunteer, Rehbar-e-Taleem Teacher and General Line Teacher is upheld.
30) Parties to bear their own costs.
(SANJAY DHAR) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
Srinagar
11.08.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes
Whether the order is reportable: Yes
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