Jammu & Kashmir High Court
Renu Sharma vs State Of J&K; And Others on 4 October, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No.445/2016
MP No.1/2016
Date of Decision:-04.10.2017
Renu Sharma Vs. State of J&K and others
Coram:
Hon'ble Mr. Justice Tashi Rabstan, Judge
Appearance:
For the petitioner(s) : Mr Arshid Pervaiz Malik, Advocate.
For the respondent(s) : Mr Ravinder Gupta, AAG.
Whether approved for reporting? Yes/No.
1. The brief facts as stated in the petition are that Chief Education Officer, Jammu-respondent No.3, vide Advertisement Notice dated 07.01.2010 invited applications for engagement as ReTs in Bhalwal Zone including two positions under Math and Science stream in Middle School Patta Khoo, Baran of the Zone. Amongst others, petitioner also responded to the aforesaid ntoice. Respondents initiated selection process and a panel was prepared by respondent No.4-Zonal Education Officer, Bhalwal, Jammu for Science and Mathematics streams. The said panel was forwarded to respondent No.3 for necessary approval, who recommended the same to respondent No.2 for final approval. After having final approval from the higher authorities, respondent No.4 vide order No. ZEO/B/4434-40 dated 17.04.2010 issued engagement order in favour of petitioner who joined against the said psition. One Ravinder Singh having less merit in the panel approached this Court with SWP No.1238/2010 wherein present petitioner was arrayed as private respondent, and earned an interim direction of stay qua petitioner's engagement order. Consequently, on directions of this Court, respondent No.4 withdrew the engagement order of petitioner on 30.07.2010. In the said petition, official respondents as well as petitioner filed detailed objections and this SWP No. 445/2016 Page 1 of 4 Court after hearing both the sides, vide order dated 07.05.2013 dismissed the said writ petition. Subsequently, petitioner reengaged as ReT and joined on 27.07.2013 in Government Middle School, Patta Khoo.
2. The grievance projected by the petitioner is that since she was earlier engaged in the year 2010 but due to pendency of writ petition filed by one Ravinder Singh, which was finally dismissed on 07.05.2013, official respondent cancelled her engagement order in the year 2010, by virtue of which petitioner did not perform her duties. Petitioner has placed on record copy of order dated 10.10.2012 passed in identical matter being SWP No.2288/2012 titled "Deepak Paul Vs. State and ors" in which coordinate Bench of this Court has held that "This petition is disposed of along with connected CMA and the respondents are directed to reckon the service of the petitioner from the date other persons figuring along with the petitioner in the merit/panel of the year 2004 were appointed. Petitioner would be entitled to notional benefits of reckoning of service from the back date and will not be entitled to monetary benefits." It is contended that aforesaid direction was implemented by the respondents in its letter and spirit. Similar direction was also issued in SWP No.1263/2006 titled "Azeem Akhter Vs. State and ors", which was also implemented by the respondents.
3. It is contended that for redressal of her grievance, petitioner moved a representation before the respondents for grant of service benefits from 2010, but till date nothing concrete has been done by the respondents on the petitioner's request, which has forced her to file present writ petition seeking a direction to the respondents to give her service benefits like other selected candidates, since 2010 by passing a speaking order.
4. On notice, official respondents filed the reply, resisting therein the claim of the petitioner. It is contended that petitioner was at liberty to assert her claim regarding the relief of retrospective appointment but in absence of SWP No. 445/2016 Page 2 of 4 relief claimed, such plea deemed to have been treated as availed and decided against the petitioner as per constructive res-judicata.
5. Heard learned counsel for the parties, considered their submissions and perused the writ record.
6. To get strengthen his arguments learned counsel for the petitioner has placed reliance on a decision rendered in Sanjay Dhar Vs. J&K Public Service Commission and anr., reported as 2000 AIR(SC) 3238, whereas learned counsel for the respondents has placed reliance on the decisions rendered by a coordinate Bench of this Court in SWP No.1245/2010 titled "Sujeewan Kumar Sharma Vs. State of J&K and ors" and Hon'ble Division Bench in LPASW No.87/2015 titled "State of J&K and ors. Vs. Ramesh Kumar".
7. Admittedly, the petitioner was engaged as ReT vide order dated 17.04.2010, she joined on the same day. On the same day i.e. 17.04.2010 she was relieved by respondent No.4-Zonal Education Planning Officer, Bhalwal to report at MS Barn Patta for further duties.
8. Bare perusal of the records reveals that petitioner was disengaged by the respondents in view of interim direction dated 18.05.2010 passed in SWP No.1238/2010 filed by one Ravinder Singh in which petitioner was respondent No.5. The interim direction reads as "till next date of hearing before this Court, appointment of private respondent No.5 as Rehbar-e- Taleem Teacher in Middle School, Baran Patta Tehsil and District Jammu, shall remain stayed".
9. The judgment rendered in LPASW No.87/2015 titled "State of J&K and ors. Vs. Ramesh Kumar" referred to by learned counsel for the respondents is distinguishable from the facts of present case as in that case challenge was thrown to selection of one Ms Janko Devi, whose engagement as ReT was found illegal and outcome of a fraud. Therefore, the said judgment is not applicable to the case in hand, because in the SWP No. 445/2016 Page 3 of 4 present case, the engagement of petitioner was made purely on the basis of her merit position and her re-engagement is based on the outcome of writ petition decided by this Court which was resultantly dismissed.
10. It is also admitted by learned counsel for the parties that writ petition SWP No.1238/2010 was ultimately dismissed on merits vide order dated 07.05.2013 and thereafter, respondent No.4 vide communication No.ZEOB/501-02 dated 26.07.2013 asked the petitioner to report at Parental School for further duties with immediate effect and accordingly, she joined on 27.07.2013.
11. It needs to make a mention here that petitioner should not be deprived of the service benefits on no fault on her part, though the respondents allowed her to rejoin on the same post in terms of the initial engagement.
12. In view of the facts and circumstances of the case, this writ petition is disposed of with a direction to the respondents to consider for grant of monetary benefits to the petitioner from the date of joining i.e. w.e.f 17.04.2010 till the date of her disengagement i.e. 30.07.2010, if not already paid and she is entitled to notional benefits by reckoning the service from back date, however she is not entitled to monetary benefits.
13. Disposed of on the aforesaid terms along with connected MPs.
Jammu (Tashi Rabstan)
04.10.2017 Judge
Surinder
SWP No. 445/2016 Page 4 of 4