Jammu & Kashmir High Court
Sonali Singh vs State Th.Edu.Deptt And Ors on 14 July, 2016
Author: Ramalingam Sudhakar
Bench: Ramalingam Sudhakar
1
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
Dated : 14-07-2016
1. SWP No. 2012/2014, MP NO.2696/2014,
2. SWP No. 2007/2014, MP NO.2691/2014
3. SWP No. 1926/2014, MP NO.2582/2014, c/w Contempt
No.443/2014
4. SWP No. 1892/2014, MP NO.2524/2014, c/w Contempt
No.424/2014
5. SWP No. 1840/2014, MP NO.2438/2014, c/w Contempt
No.393/2014
6. SWP No. 1942/2014, MP NO.2599/2014
7. SWP No. 1165/2014, MP NO.1515/2014, c/w MP
No.38/2015, Contempt No.412/2014
8. SWP No. 2008/2014, MP NO.2692/2014
9. SWP No. 1805/2014, MP NO.2389/2014, Contempt
No.420/2014
10. SWP No. 2006/2014, MP NO.2690/2014
11. SWP No. 1836/2014, MP NO.2434/2014
12. SWP No. 1834/2014, MP NO.2432/2014
13. SWP No. 1168/2014, MP NO.1517/2014, Contempt
No.414/2014
14. SWP No. 2010/2014, MP NO.2694/2014
15. SWP No. 1837/2014, MP NO.2435/2014
16. SWP No. 1848/2014, MP NO.2444/2014
17. SWP No. 1962/2014, MP NO.2619/2014
18. SWP No. 1233/2014, MP NO.1617/2014
19. SWP No. 1986/2014, MP NO.2662/2014
20. SWP No. 2009/2014, MP NO.2693/2014
21. SWP No. 1575/2014, MP NO.2085/2014
22. SWP No. 1960/2014, MP NO.2617/2014
23. SWP No. 1815/2014, MP NO.2399/2014, c/w MP
No.42/2015, Contempt No.397/2014
24. SWP No. 1891/2014, MP MP No.2523/2014, Contempt
No.470/2014
25. SWP No. 1835/2014, MP NO.2433/2014
26. SWP No. 1466/2014, MP NO.1943/2014
27. SWP No. 1925/2014, MP NO.2581/2014
28. SWP No. 1936/2014, MP NO.2593/2014
29. SWP No. 1465/2014, MP NO.1942/2014
30. SWP No. 1930/2014, MP NO.2587/2014 , Contempt
No.394/2014
31. SWP No. 1355/2014, MP NO.1788/2014
32. SWP No. 1354/2014, MP NO.1787/2014
33. SWP No. 1958/2014, MP NO.2615/2014
34. SWP No. 1959/2014, MP NO.2616/2014
35. SWP No. 1952/2014, MP NO.2609/2014
36. SWP No. 1832/2014, MP NO.2430/2014
37. SWP No. D-1961/2014, MP NO.D-2618/2014, Contempt
No.402/2014
38. SWP No. 1617/2014, MP NO.2131/2014, Contempt
No.437/2014
39. SWP No. 1983/2014, MP NO.2659/2014
40. SWP No. 1616/2014, MP NO.2129/2014 , MP
No.40/2015, Contempt No.421/2014
41. SWP No. 1838/2014, MP NO.2436/2014, Contempt
No.396/2014
1. SONALI SINGH Vs. STATE TH.EDU.DEPTT & ORS
2. ANNU Vs. STATE TH/EDU DEPTT & ORS
2
3. RAJ KUMAR SHARMA Vs. STATE TH.EDUCATION DEPTT.& ORS.
4. MONIKA SALATHIA Vs. STATE TH.EDUCATION DEPTT.& ORS.
5. TEENA GUPTA Vs. STATE TH.HIGHER EDUCATION & ORS.
6. NEHA GUPTA Vs. STATE TH.HIGHER EDUCATION & ORS.
7. VISHAL ABROL Vs. STATE TH.EDUCATION DEPTT.& ORS.
8. VANDANA SHARMA Vs. STATE TH.EDU DEPTT & ORS
9. NEETAN SHARMA Vs. STATE TH.EDUCATION DEPTT.& ORS.
10. MALLU JASROTIA Vs. STATE TH.EDU DEPTT & ORS
11. RITA JANGRAL Vs. STATE TH.EDUCATION
12. BHANU JYOTI Vs. STATE TH.HIGHER EDUCATION
13. RANJIT SINGH VS. STATE Th. EDUCATION DEPTT.& ORS.
14. ARPAN JAMWAL Vs. STATE TH.EDU DEPTT & ORS
15. NEHA SAMBHYAL Vs. STATE TH.HIGHER EDUCATION& ORS.
16. VIKAS RASOTRA Vs. STATE TH.HIGHER EDUCATION & ORS.
17. JASWANT SINGH Vs. STATE TH.HIGHER EDUCATION & ORS.
& ANR
18. GOHAR AHMED DAR Vs. STATE TH.EDUCATION DEPTT.& ORS.
19. SONIA SHARMA & ORS Vs. STATE TH.HIGHER EDUCATION& ORS.
20. SURBHI SHARMA Vs. STATE TH.EDU DEPTT & ORS
21. NISHA Vs. STATE TH.EDUCATION DEPTT.& ORS.
22. VINOD KUMAR & ORS. Vs. STATE TH.HIGHER EDUCATION & ORS.
23. MEENAKSHI SHARMA Vs. STATE TH.EDUCATION DEPTT.& ORS.
24. RAVINDER KOUR Vs. STATE TH.EDUCATION DEPTT.& ORS.
25. JYOTI PARKASH Vs. STATE TH.HIGHER EDUCATION & ORS.
26. AJAY SINGH Vs. STATE TH.EDUCATION DEPTT.& ORS.
27. RUKSHANA KOUSER Vs. STATE TH.EDUCATION DEPTT.&
28. MEHRAJ UD DIN Vs. STATE TH.HIGHER EDUCATION & ORS.
MAKHDOOMI
29. VIPPEN SINGH Vs. STATE TH.HIGHER EDUCATION DEPTT
&ORS
30. NAMRATA SHARMA Vs. STATE TH.HIGHER EDUCATION & ORS
31. RAVI KUMAR Vs. STATE TH.EDUCATION DEPTT.& ORS.
32. JAI KUMAR Vs. STATE TH.EDUCATION DEPTT.& ORS
33. KHURSHEED ALAM Vs. STATE TH.HIGHER EDUCATION & ORS
34. SUBITA SHARMA & ORS Vs. STATE TH.HIGHER EDUCATION & ORS
35. LATA MUKESH & ORS. Vs. STATE TH.HIGHER EDUCATION & ORS
36. SUNIL KUMAR SHARMA Vs. STATE TH.HIGHER EDUCATION & ORS
37.INDERPAL KOUR Vs. STATE TH.HIGHER EDUCATION & ORS
38.SAKSHI VAID Vs. STATE TH.EDUCATION DEPTT.& ORS
39.SUSHMA KUMARI Vs. STATE TH.HIGHER EDUCATION & ORS
40.PRIYA SALATHIA Vs. STATE TH.EDUCATION DEPTT.& Ors.
41.RAKSHA MATOO Vs. STATE TH.HIGHER EDUCATION & ORS.
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge
Appearing Counsel:
For petitioner/Applicant (s) : M/s D.S. Chauhan, Rattan Lal
Gupta, Meharban Singh, Advocates
For Respondent(s) : Mr. Ajay Sharma, AAG.
Mr. D.C. Raina, Sr. Advocate, with Mr. F.A. Natnoo, Advocate, for J&K State Public Service Commission.
i) Whether approved for reporting in Yes/No Journal/NET
ii) Whether approved for reporting in Yes/No Digest/Journal 3
1. Through the medium of all these writ petitions, petitioners seek following reliefs as per their respective disciplines and respective Government Degree Colleges where they are engaged as Teaching Assistants/Lecturers on academic arrangement for fixed term basis:
(A) WRIT OF CERTIONARY quashing the Advertisement Notification No.Edu.-
Coll./Adv./Acd.Arrg./JD/2014-15 dated June 26, 2014 issued by Deputy Secretary to Government, Higher Education Department, whereby the Writ Petitioners are asked to apply afresh for engagements/appointments to the different posts of Lecturers as per their qualification/discipline for the Session 2013-2014 in various Government Degree Colleges of Jammu Province, thereby reverting their status from the posts of Lecturers to the post of Teaching Assistants;
(B) Issue WRIT OF PROHIBITION
restraining the Respondents from
replacing/substituting the writ petitioners by another set of 'contractual appointees' pursuant to the Advertisement Notification No.,Edu.-/ Coll./Adv./Acd./Arrg./JD/2014- 15 dated June 26, 2014 issued by Deputy 4 Secretary to Government, Higher Education Department and/or by transferring regularly recruited Lecturers from one institution to another appointees or by transferring regularly recruited Lecturers from one institution to another, thereby reducing their status from the post of Lecturers to the post of Teaching Assistant, till post held by the Writ Petitioners on 'contractual basis' in the academic arrangement is filled up by the competent authority, i.e., Jammu & Kashmir Public Services Commission on regular/ substantive basis.
(C) WRIT OF MANDAMUS directing and commanding the Respondents to allow the Writ Petitioners to continue and work as Lecturers on 'contractual basis' in academic arrangement in their respective disciplines in various Government Colleges in different districts of Jammu Province, till the posts held by the Writ Petitioners are filled up by the competent authority, i.e., Jammu & Kashmir Public Services Commission on regular/substantive basis.
2. BY and large, the essence of all the three prayers made in these writ petitions is one and the same, and the petitioners submit that their present status as Teaching Assistants/Lecturers in their respective disciplines and respective Government 5 Colleges in different districts of Jammu Division for academic arrangement on session to session basis should not be allowed to be disturbed till the selection is made by the competent authority on regular/substantive basis in terms of the Rules and Regulations governing such selection, otherwise this will affect their rights.
3. As far as relief Sr. No.(A) to quash the Advertisement Notifications for the years 2012-13, 2013-14 and 2014-15, as the case may be, is concerned, the period of Advertisement Notifications which is challenged, is already over. In the case of some of the petitioners, their status, i.e., employment is by virtue of interim direction of this Court, till the next date of hearing before the Bench. It has to be considered by the Department concerned after the expiry of the terms as the appointments were made on academic arrangement basis. This relief becomes infructuous by efflux of time.
4. The relief at Sr. Nos.(B) & (C) is almost the same, i.e., for prohibiting the respondents from replacing/substituting the petitioners by another set of contractual appointees on academic arrangement basis pursuant to the impugned Notifications and/or by 6 transferring regularly recruited Lecturers from one institution to another till the posts held by them on contract on the academic arrangement basis are filled up by the competent authority and allow them to continue on the posts. This prayer has two aspects. One is that the petitioners seek their non- replacement/non-substitution by any other set of Lecturers in the academic arrangement. The second aspect of this relief is with regard to prohibiting respondents for replacing/substituting the petitioners by transferring regularly recruited Lecturers from one institution to another.
5. It is the case of respondents that they are not resorting to such a procedure of replacing contract teachers/lecturers by another set of contract teachers/lecturers. The engagement is need based. In any event, the lecturers on contract or engaged on academic arrangement cannot seek to restrain the government from engaging lecturers on contract engagement or academic arrangement as they themselves are beneficiary of such procedure. This issue becomes academic because petitioners are appointed on academic arrangement. 7
6. On this issue also, Courts have taken a view to safeguard ousting of contract engagements only for the purpose of accommodating new incumbents on contract basis. In this regard, it will be useful to refer judgment of Hon'ble Supreme Court in case titled State of Haryana Vs. Piara Singh and Others reported as AIR 1991 SC 223 referring to the following observations:
"............. In State of Haryana Versus Piara Singh, 1992 (4) SC 118 of 152, this Court had held that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an adhoc or temporary appointments may be made in such situation, this Court held that efforts should always be made to replace such adhoc or temporary employee by regularly selected employees, as early as possible. Temporary employees also would get liberty to compete along with others for regular selection but if he does not get selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidates cannot be withheld or kept in abeyance for the sake of such an adhoc or temporary employee. Adhoc or temporary employee should not be replaced by another adhoc or temporary employee. He must be replaced only by regularly selected employee."8
7. The said ratio will apply to the petitioners only if they are sought to be replaced by another set of teachers/lecturers on academic arrangement.
8. The relief of prohibiting the respondents from replacing/substituting the petitioners by transferring regularly recruited Lecturers from one institution to another till the posts held by them are filled by the competent authority on regular/substantive basis, has been dealt with by Hon'ble Supreme Court in case titled Dr. Kishore Vs. State of Maharashtra, reported as 1997(1) 107 :
1997 (3) SCC 209, wherein their Lordships observed as under:
"It is contended by the learned counsel for the petitioner that since vacancies are existing the appointment of Dr. Solanki by transfer could not be used as a means to terminate the service of the petitioner. We fail to appreciate the contention. It is fairly agreed by the learned counsel that the petitioner has no right to the post and as soon as a duly selected candidate is posted in his place, he has to give place to the duly selected candidate. But his contention is that since Dr. Solanki was selected earlier to the order passed by the Tribunal and had been appointed on his transfer, it cannot be used as a means to terminate the services of the petitioner. His contention absolutely has no force. As soon as the duly selected 9 candidate is posted, whether directly or by transfer, necessarily the petitioner has to give place to such a candidate. The petitions, therefore, do not merit interference."
Therefore, the said plea has no legal basis.
9. This Court hastens to hold that academic arrangement teachers/lecturers cannot seek to hold on to their post for ever. If they are found not to be up to the mark or efficient then their continuation will be a question mark. It is for the authorities to decide the best course of action in a non-arbitrary manner. If academic arrangement teachers/lecturers seek extension then they have to make a representation for considering the extension of service, which can be considered on its own merits.
10. As a result, prayer (A) is dismissed and (B) & (C) ordered as above.
11. All the above writ petitions stand disposed in the aforesaid terms along with connected MPs. Interim directions, if any, passed in these writ petitions shall stand vacated.
12. At this juncture, Mr. Sharma, learned AAG, submits that in view of the final order passed in these writ petitions, the Contempt Petitions filed by the 10 learned counsel for the petitioners in some of the cases have become infructuous. Petitioners' counsel concedes as above. Consequently, the connected Contempt Petitions filed in the respective cases are closed and stand disposed of along with connected MPs, if any.
(Ramalingam Sudhakar)
Jammu Judge
14-07-2016
Secretary