Jammu & Kashmir High Court - Srinagar Bench
Tanveer Ahmad Khan And Another vs State Of J&K; And Others on 3 April, 2018
Bench: Mohammad Yaqoob Mir, Dhiraj Singh Thakur
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPASW No.267/2015
Date of Decision: 03.04.2018
Tanveer Ahmad Khan & anr. Vs. State of J&K and others
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge
Hon'ble Mr. Justice Dhiraj Singh Thakur, Judge
Appearance:
For the Petitioner(s) :Mr. N. A. Malik, Adv.
For the Respondent(s) :Mr. A. M. Mir, Dy. AG.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Per Mohammad Yaqoob Mir 'J'
1) Instant appeal under Clause 12 of the Letters Patent is directed against
the judgment dated 6th October, 2015 rendered in SWP No.2624/2013, in terms whereof writ petition has been dismissed.
2) Noticing precise factual background is essential for appreciating the entire controversy in its right perspective.
3) Vide advertisement notice dated 13.06.2013, issued by Zonal Education Officer, Bandipora, published in daily newspaper Aftab in its issue dated 15.06.2013, applications were invited for filling up regular vacancies of teachers in far flung areas on the pattern of Rehbar-e- Taleem(ReT) scheme, which include one post each to be filled up in GPS, Chountimullah and UPS, Shamthun. The appellants had also applied and LPA No.267/2015 Page 1 of 10 were tentatively selected as notified on 21st September, 2013. Subsequently, a corrigendum has been issued by Zonal Education Officer, Bandipora, published in daily newspaper Kashmir Uzma in its issue dated 22.12.2013, where-under advertisement notice No.ZEOB/1534 dated 13.06.2013 regarding engagement of ReT under SRO 615-Edu of 2013 and 522 of 2013 dated 08.05.2013 for far flung areas of ST posts of GPS, Chountimullah, BMS Gojerpati Sumlar and UPS Shamthun, have been treated null and void due to administrative/technical reasons. It is the said corrigendum which had been challenged by medium of writ petition.
4) The regular vacancies of teachers in the State of J&K are referred for selection to the Service Selection Board as created under J&K (Subordinate) Service Recruitment Rules, 1992.
5) In far flung areas, non-filling up of the regular vacancies of teachers was to the disadvantage of marginalized sections as the students were the sufferers for non-availability of teachers. Taking note of the deficiency of staff, Government, pursuant to Cabinet Decision No.168/13/2010 dated 4th August, 2010, issued Govt. order No.635-Edu of 2010 dated 04.08.2010, which is quoted here-under:
Government of Jammu and Kashmir Civil secretariat, Education Subject:- Filling up of regular vacancies of teachers in far-flung areas on the pattern of Rehbar-e- Taleem Scheme Reference:- Cabinet Decision No.163/13/2010 dated 03-08- 2010.
Government Order No.635 Edu of 2010 D a t e d: 04 - 08 - 2010 LPA No.267/2015 Page 2 of 10 Sanction is hereby accorded to the filling up of regular vacancies of teachers in socially and Educationally Backward and in the areas near Line of Actual Control Identified under the J&K Reservation Rules on the pattern of Rehber-e-Taleem Scheme prospectively for a period of two years in the first instance; provided that in case of the habitations predominantly inhabited by SC/ST population, only the candidates belonging to these categories, and possessing the prescribed qualification, shall be considered for selection as Rehbar-e-Taleem.
By the order of the Government of Jammu and Kashmir.
Sd/-
Secretary to Government Education Department
6) The period has been specifically extended up to 08.05.2013 in terms of Govt. order No.522-Edu of 2013 dated 08.05.2013. In the same background, Zonal Education Officer had issued advertisement notice dated 13.06.2013 for filling up the vacancies in seven schools which include GPS, Chountimulla and UPS Shamthun.
7) The impugned corrigendum treating the advertisement notice dated 13.06.2013 as null and void is said to be for administrative/technical reasons, i.e. that filling up of the regular vacancies on the pattern of ReT scheme was prospective in its effect.
8) Precisely, the controversy is as to whether only those regular vacancies of teachers which have accrued after 04.08.2010 were to be filled up on the pattern of ReT scheme or the vacancies which were also available prior to 04.08.2010. Zonal Education Officer while issuing the corrigendum has proceeded on the premise that the vacancies for which applications were invited for GPS Chountimulla and UPS, Shamthun were existing prior to 04.08.2010, means those were not created after 04.08.2010. Learned LPA No.267/2015 Page 3 of 10 Single Judge while considering the same position has held that 'only those vacancies which became available from 4th August, 2010, would be governed by two Government orders and selections/engagements in respect of these vacancies is to be made in accordance with the mandate contained in these Government orders. The vacancies, which became available before issuance of the aforesaid Government orders, would be filled up in accordance with the applicable rules'.
9) Earlier similar issue had cropped up for determination before Division Bench of this Court in LPA No.162/2012 decided on 9th October, 2012 and then on the basis of said judgment, SWP No.1640/2013 and SWP No.1627/2013 were disposed of on 14th July, 2014. Learned Single Judge while noticing that position, has observed that the issue has not been decided in the said judgment, a consent order has been passed, therefore, judgment rendered by the Division Bench is not binding. The consent given by the Government Advocate in the said LPA is not in tune with the policy decision of the Government.
10) The questions for determination in this LPA are formulated as under:
(1)Whether only regular vacancies of teachers which were created after 4th August, 2010 to be supplied in far flung areas are to be filled up on the pattern of ReT scheme;
(2)Whether the regular vacancies of teachers which were available prior to 4th August, 2010 and not LPA No.267/2015 Page 4 of 10 referred to Service Selection Board could also be filled up on the pattern of ReT scheme.
11) Government order No.635-Edu of 2010 dated 04.08.2010 followed by Government Order No.522-Edu of 2013 dated 08.05.2013 have been issued in pursuance to Cabinet Decision No.168/13/2010 dated 4th August, 2010, in short a policy decision has been taken for filling the unfilled regular vacancies of teachers in far flung areas.
12) Learned Dy. AG, on asking, produced copy of the memorandum submitted to the Cabinet, perusal of the same reveals that for non-filling up of regular vacancies of teachers, the students of far flung areas were the sufferers. Earlier, facing the deficiency of staff in the primary/middle schools, ReT scheme was launched in 2000 to make up such deficiencies.
With the implementation of the scheme, the Government succeeded in making up the deficiency of staff in elementary level schools in far flung and inaccessible areas. In the year 2003, the process of filling up of regular vacancies of teachers through the medium of Rehbari Taleem was stopped vide Govt. Order No.1670-Edu of 2003 dated 24.11.2003. The scheme was then made applicable only to the Primary Schools being opened/upgraded under Sarva Shiksha Abhiyan. The elementary level schools others than those under SSA have again become under staffed in far flung areas because the teachers hailing from urban/plain areas selected through Service Select Board avoid working in such areas on one pretext or the other.
13) In the said memorandum it is also mentioned that acute shortage of teaching staff in the schools located in the difficult and far flung areas became the subject of criticism against the Government. The Department LPA No.267/2015 Page 5 of 10 of Education was of the opinion that the deficiency of staff at elementary level in the difficult and the far flung areas could be made up if regular vacancies of teachers in identified Socially and Educationally Backward areas and in areas near Line of Actual Control at elementary level are also filled up on the pattern of ReT scheme as is being done in case of the schools being opened and upgraded under SSA.
14) The memorandum was submitted to the General Administration Department. On the basis of advice of General Administration Department, the proposal had been submitted to the Establishment-cum-Selection Committee for consideration. The said Committee, in its meeting held on 22.06.2010, endorsed the proposal of the department and observed as under:-
I) Since the appointments made under the scheme are village/school specific, there is hardly any scope for implementation of the reservation policy which has been a source of criticism in the past.
II) Since the Department has already referred a large number of vacant posts of Teachers to the Service Selection Board for selection, the committee desired that only such posts as would become available in the identified areas after the scheme is approved by the Cabinet, should be filled-up on the pattern of Rehbar-e-Taleem to avoid any subsequent problem of adjustment of LPA No.267/2015 Page 6 of 10 the candidates as may be selected by the Services Selection Board against the referred posts.
15) The Secretary to Govt. Education Department, with the approval of Hon'ble Education Minister, submitted the following draft resolution for consideration/approval of the Cabinet:
"Regular vacancies of teachers in Socially and Educationally Backward Areas and in areas near Line of Actual Control identified under the J&K Reservation Rules shall be filled up on the pattern of Rehbar-i- Taleem Scheme prospectively for a period of two years in the first instance."
16) Cabinet approved draft resolution vide its decision No.168/13/2010 dated 03.08.2010, in pursuance whereof, Govt. Order No.635-Edu of 2010 dated 04.08.2010 was issued. In essence, the object was to fill up the regular vacancies of teachers so that the students belonging to far flung areas i.e. Socially and Educationally Backward areas and the areas near Line of Actual Control are benefitted by having the services of teachers.
17) The policy decision, in effect, is a departure from normal rule of selection and appointment with a laudable object of providing teaching facilities to the students of said areas. This special dispensation was time bound i.e. for a period of two years which has been subsequently extended in terms of Govt. Order No.522-Edu of 2013 dated 08.05.2013.
18) The word "prospectively" as appear in the Govt. Order No.632-Edu of 2010 dated 04.08.2010, has to be interpreted in a manner so as to advance the object of the policy decision. Purposive interpretation is imperative. The LPA No.267/2015 Page 7 of 10 word "prospective" as used in the background of the object of filling up of regular vacancies of teachers, is to fill up all vacancies even though existing prior to 2010 but not referred to Service Selection Board. That would mean that the regular vacancies as were available prior to issuance of Govt. Order No.635-Edu of 2010 dated 04.08.2010 referred Service Selection Board were not to be filled up on the pattern of ReT. Those referred posts would be governed by the earlier rules i.e. Service Selection Board has to continue with the process if any initiated vis-à-vis the posts of teachers as stand referred to it.
19) The object of policy decision of the Government vis-à-vis the regular vacancies of teachers is that the posts which were available prior to 04.08.2010 but not referred to Service Selection Board were also to be filled on the pattern of ReT scheme. Same interpretation shall be in tune with the policy decision of the Government.
20) In para 2 of the memorandum of submission, based on which policy decision has been taken, it has been clearly mentioned as under:
".......The elementary level schools other than those under SSA have again become under staffed in far-flung areas because the teachers hailing from urban/plain areas selected through Service Selection Board avoid working in such areas on one pretext or the other."
21) Then it is also made clear in the memorandum that huge vacancies of teachers has given rise to deficiency of staff in Primary Schools/Middle LPA No.267/2015 Page 8 of 10 Schools and then in the totality of the circumstances, a proposal had been mooted for filling up vacancies on the pattern of ReT scheme.
22) The word "prospectively" as appear in Govt. Order No.635-Edu of 2010 dated 04.08.2010, shall have to be taken in its correct perspective i.e. whatever vacancies of teachers were available or which were created but not referred to the Service Selection Board would be filled up on the pattern of ReT.
23) The word "prospective" as appear in Govt. order dated 04.08.2010 is not linked with the creation of posts of teachers in future or past. It is linked with available regular vacancies of teachers, whether created prior to 04.08.2010 or thereafter. The only thick line of demarcation is that if regular vacancies were available prior to 04.08.2010 but not referred to Service Selection Board, those are to be treated as available for being filled up on the pattern of ReT scheme, therefore, word "prospective" has been used with the object of filling up of all the vacancies of teachers whatever available including vacancies available prior to 2010 but not referred to Service Selection Board.
24) True it is that the Division Bench of this Court decided LPA No.162/2012 decided on 9th October, 2012 with consent and also allowed filling up of the vacancies which were available prior to 04.08.2010 on the pattern of ReT scheme. In essence that too is in-keeping with the object of policy decision of the Government.
25) For the stated reasons, judgment impugned is not sustainable, as such, set aside. Writ petition allowed, the corrigendum bearing No.ZEO/BPR/ LPA No.267/2015 Page 9 of 10 013/1839-40 dated 19.12.2013, which was subject matter of challenge in the writ petition, has to be quashed, as such, quashed.
26) Zonal Education Officer, Bandipora, shall ascertain as to whether the vacancies against which appellants were tentatively selected, were existing prior to 04.08.2010, but not referred to the Service Selection Board and then in that eventuality, tentative selection as made and the process thereon shall be finalized within four weeks.
27) Appeal allowed and disposed of as above.
(Dhiraj Singh Thakur) (Mohammad Yaqoob Mir)
Judge Judge
Srinagar
03.04.2018
"Bhat Altaf" PS'
LPA No.267/2015 Page 10 of 10