Jammu & Kashmir High Court - Srinagar Bench
Ab. Rashid Khandey & Ors. vs State Of J&K; & Ors. on 9 May, 2017
Author: Ramalingam Sudhakar
Bench: Ramalingam Sudhakar
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SWP No.862/2017
MP No.01/2017
Date of Order: 9thMay, 2017
Ab. Rashid Khandey & Ors.
Vs
State of JK & Ors.
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge
Appearing Counsel:
For the Petitioner(s): Mr. P. S. Ahmad, Advocate.
For the Respondent(s): Mr. Rais-ud-Din Ganai, GA.
i. Whether approved for reporting in
NET Yes/No
ii. Whether approved for reporting in
Digest/Journal Yes/No
1. The writ petition has been filed for the following reliefs:
"1}. Issue a Writ, order or direction which may be appropriate for prohibiting the respondents from termination the services of the petitioners as instructors and allow them to continue as such in pursuance of their selection and appointment orders as cont ained in Annexure A,B& C till the same are filled-up permanently by according consideration to the regularization case of the petitioners also on account of their eligibility and other required qualification.
II}. Issue a appropriate Writ or order or direction in the nature of mandamus commanding the respondents to keep the petitioners on panel and preference for permanent absorption in the department while making regular selection thereto against the said posts of instructors which they are presently holding and rendering their duties against such.
III}. Issue a Writ, order or direction in the nature of mandamus commanding the respondents to allow the petitioners to draw usual pay and allowances in terms of the orders as contained in Annexure A,B&C and other consequential benefits as admissible under rules."
2. The petitioners, six in number, claim to have been appointed as Instructors in the Technical Education Department i.e. Respondent No.2. It is an academic arrangement purely temporary in nature, on need basis and without any commitment from the Respondent Department to absorb them or give them permanent posting etc.
3. Be that as it may, after the end of the academic session, the petitioners now want that they should be considered for extension of their academic arrangement. The apprehension of the petitioners is that the respondents may substitute them with a new set of instructors on academic arrangements. On this premise, instant writ petition is filed.
4. Heard the learned counsel for the parties.
5. On the plea of ousting one set of persons on academic arrangement and replacing them with another set on academic arrangement, this aspect has been deprecated by this Court vide judgment dated 14.07.2016 passed in "SWP No. 1525/2013 in case titled Rajani Kumar Vs. State of J&K & others" along with connected matters while placing reliance upon judgment reported in "2008(2) JKJ 550, 2009(2) JKJ 173, AIR 1991 SC 223". Paragraph Nos. 14 to 18 & 20 whereof read as under:
"14. The next relief Sr. No.(D) to prohibit the respondents from replacing/substituting the petitioners by another set of contractual appointee or by transferring regularly recruited Lecturers from one institution to another till their cases for confirmation/regularization against the post of Lecturers are considered by the Empowered Committee constituted under Section 10 of the Act. This prayer has three aspects. One is the confirmation and second is the regularization. 1st two parts of the prayer are inapplicable in the case of these petitioners as their appointments were made on academic arrangement basis. The third aspect is replacing contract employees by another set of contract employees.
15. This Court has taken a view in case titled Vidhu Puri & Ors. Vs. State thr. Higher & Tech. Edu. Deptt. & Ors. and batch of cases (SWP No.209/ 2003 and connected matters) decided on 04-07-2016 on the basis of decisions considered and declined in Division Bench case titled State of J&K Vs. Afshan Majid, reported as 2008 (2) J.K.J. 550, which decision was again followed by the Single Judge, to be more specific in the case titled Suman Sharma Vs. State of J&K, reported as 2009 (2) J.K.J. 173. The same was followed in subsequent decisions. This Court also followed in its earlier decision in batch of writ petitions, lead case as SWP No.209/2003, Vidhu Puri & Ors. Vs. State thr. Higher & Tech. Edu. Deptt. & Ors., decided on 14-07-2016.
16. 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.
17. 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.
18. 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.
20. 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 ser vice, which can be considered on its own merits."
6. In view of above, the writ petition is admitted to final hearing and is disposed of with a direction to the respondents that if the petitioners/Instructors are good enough and are performing their duties very well to the satisfaction of Respondent No.2 and if there is a need to continue the academic arrangement, then the case of the petitioners shall be considered on the basis of their request without any discrimination within a period of two weeks from the date of receipt of copy of this order.
7. With the aforementioned directions, writ petition is disposed of along with connected MP(s).
( Ramalingam Sudhakar ) Judge Srinagar May 9th, 2017 "TAHIR"