Jammu & Kashmir High Court
Shazia Tabassum vs State Of Jk & Ors on 1 March, 2023
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 2129/2010
IA No. 3004/2010
Reserved on 15.09.2022
Pronounced on 01.03.2023
Shazia Tabassum ...Petitioner(s)/Appellant(s)
Through: None
Vs.
State of JK & Ors. ...Respondent(s)
Through: Mr. Suneel Malhotra, GA
CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
BRIEF FACTS:
1. Through the medium of this petition, the petitioner submits that she belongs to a remote area of Tehsil Mendhar, District Poonch and possesses an educational qualification of 10+2. The petitioner states that she was appointed as EGS guide (IInd)/ teacher on an honorarium of Rs. 1000/- in Mohallah Muglain Saki Maidan, Zonal Educational Office in terms of order No. ZEM/SSA/1066 dated 11-10-2005. The petitioner further submits that the petitioner belongs to ALC category.
2. It is the specific case of the petitioner that in the year 2008, the Government vide order No. 322- Edu of 2008 dated 26-06-2008 upgraded 3617 EGS to the level of Primary School and by virtue of the same order, it was stated that EVS working in the schools shall be appointed as ReTs after confirming the genuineness of the center established. The qualification prescribed in the said order for such conversion was 10+ 2 and if the conduct of the candidate is found to be satisfactory.
3. The petitioner states that the EGS center where the petitioner was working was upgraded to Primary School in the month of August, 2009. After up-gradation, one Ms Nayamul Nissa (10+2 Arts), who SWP No. 2129/2010 Page 1 of 9 was also working alongside the petitioner was given effect of the ReT Teacher but the petitioner who is (10+2 Science) was denied the same benefit.
4. The petitioner further submits that the VLEC in a meeting passed a resolution in which they impressed upon the authorities to issue the ReT order in favour of petitioner. The petitioner further contends that despite having the requisite qualification of 10+2 and having the Achievement Certificates issued by Zonal Education Officer/Board of School Education, the respondents did not consider the request of the petitioner for engagement as ReT Teacher. Thus the petitioner was constrained to file the instant writ petition.
5. Per contra, learned counsel for the respondents in their objections have stated that with the upgradation of the center to the level of primary school, the appointment of the petitioner came to an end and also the writ petition is not maintainable owing to the fact that it was filed 2 years after accrual of the cause of action.
6. It has been further stated in the objections filed by the respondents that on analyzation of ReT scheme along with SSA, It came to light that the said scheme led to deterioration of the quality of education as the minimum qualification prescribed for the said posts was 10+2, on the other hand, the actual recruitment through SSRB requires the minimum qualification to be graduate. As a result thereof, less competent teachers got inducted in the ReT programme which led to dilution of quality of education as was held in a case titled Faisal Ahmed Khan vs. State and also added an extra burden on the State funds. Furthermore, on the overall scrutiny of the policy it was found that student teacher ratio was higher than as prescribed by the national norms. In addition to that, the recruitment policy was also not fool-
proof, which resulted in numerous litigation. Therefore, to do away the vices of the policy, it was scrapped down vide Order no. 919- Edu of 2018 dated 16-11-2018.
7. Learned counsel for the respondents has contended that there exists no vested right to the petitioner against the said post and in view of discontinuation of the scheme, the writ petition becomes infructuous.
SWP No. 2129/2010 Page 2 of 9LEGAL ANALYSIS
8. Heard learned counsel for the respondents at length and perused the record.
9. Admit.
10. From the stand taken by the respondents, it is manifestly clear that the petitioner never challenged the action of the department for almost two years and the writ petition was preferred after two years from the alleged cause of action and accordingly the present writ petition is barred by delay and laches and therefore is not maintainable.
11. The petitioner having ceased to be Education Volunteer in the year 2008 when the EGS center was upgraded, no right vested to the petitioner to seek engagement as RET Teacher.
12. As per the stand of the respondents, the Government on overall scrutiny of the details in its wisdom has taken a conscious decision and decided to close down the aforementioned ReT Scheme and based on the Administrative Council No. 129/19/2018 dated 14.11.2018, the Government Order No. 919-Edu of 2018 dated 16.11.2018 came to be issued by virtue of which formal closure of ReT Scheme and cancellation/withdrawal of all advertisement notices issued for ReTs or panels prepared where no engagement orders have been issued by the respondents under Rehbar- e-Taleem Scheme.
13. In view of the aforesaid decision regarding closure of the Scheme and cancellation/withdrawal of all advertisement notices issued for engagement of ReT or panels prepared where no engagement orders have been issued under ReT Scheme, the writ petition seeking the same relief has become infructuous and is not maintainable. Thus the relief prayed for in the writ petition cannot be granted in the light of the aforesaid development.
14. This issue came up for consideration before this Court in catena of cases and the Court was pleased to hold that once the Scheme as a policy matter has been closed by the department, no direction can be sought for appointment under Scheme which is no more in vogue and the issue being settled and is no more res-integra in this regard.
SWP No. 2129/2010 Page 3 of 915. The Division Bench of this Court in Kasturi Lal vs. State of J&K & Ors. registered as LPA No. 09/2020, while dismissing the LPA has observed as under:-
"the appellants at best would be entitled to be considered for appointment. Even we were to hold that despite the order dated 14-08-2017 the writ petition survived, the appellant could at best entitled to consideration. Such consideration cannot be directed in respect of a scheme which is no longer in vogue."
16. The Division Bench of this Court in yet another case registered as CPLPA No. 02/2019 was pleased to observe that in view of the policy decision of the closing ReT Scheme and the resultant abolition of posts and withdrawal of the advertisement notice, no contempt would lie.
17. Besides, in another contempt petition registered as CPSW No. 654/2018 titled Masrat Akhtar vs. G. N. Itoo vide order dated 3rd May 2019 has been pleased to observe as under:-
"Mr. Shah Ld. Sr. AAG submits that in view of the policy decision of the Government, ReT Scheme stands closed in terms of O Government Order No. 919-Edu of 2018 dated 16.11.2018, resultantly all the notification(s) , advertisement(s), selection(s), stands cancelled. In view of the above, the instant contempt being unnecessary, shall stands closed. However, the petitioner is at liberty to challenge the Government policy, if she so chooses".
18. Even otherwise also, law is well settled by the Hon'ble Supreme Court in catena of judgments that till the person is not formally appointed against a post and he/she joins the post, he/she does not have any vested right against the post and merely by issuance of the advertisement notification and the participation in the selection process does not confer any indefeasible right for seeking appointment. In view of the aforesaid settled legal position, the writ petition filed by the petitioner has become infructuous and no direction can be issued to compel the respondents to engage the petitioner as ReT Teacher, more particularly, when the Scheme has since been closed.
SWP No. 2129/2010 Page 4 of 919. The ReT Scheme which has been closed by virtue of the aforesaid Government order is under challenge before the Apex Court and the judgment is pending adjudication as on date.
20. Once the advertisement notice earlier issued advertising various posts of ReT Scheme stood withdrawn/cancelled, and then, automatically as a natural consequence, the petition in this behalf has become infructuous. Since the decision of the Government to sanction formal closure of the Scheme takes away the post of ReT earlier put to advertisement/makes them non-existent, then in such a situation, no appointment can be made to the post of ReT when the Scheme itself has been closed. In other words, the availability of post constitutes the sine-quo-non carrying out any process of appointment in any limb of the government. In other words, once the bedrock of a structure gets knocked down, the entire edifice automatically crumbles down. It is worthwhile to mention that with the closure of scheme, once the post of ReT becomes non-existent, then the claim of the petitioner for seeking engagement as ReT would be of no consequence and thus no direction can be issued in absence of an available vacancy, more particularly, when the said scheme has since been closed. Besides, the petitioner has failed to challenge the aforesaid closure and in absence of any challenge to the aforesaid Government order, the present writ petition is not maintainable and is liable to be dismissed.
21. By virtue of the aforesaid Government Order No. 919-Edu of 2018 dated 16.11.2018, sanction has been accorded to formally close down the ReT Scheme. The said Government Order is reproduced hereunder:-
Government of Jammu and Kashmir School Education Department Civil Secretariat Jammu Subject:
Formal closure of Rehbre-e-Taleem scheme and cancellation/withdrawal of all advertisement notices issued for engagement of ReTs or panels prepared where no engagement orders have been issued under Rehbar-e-Taleem Scheme.SWP No. 2129/2010 Page 5 of 9
Ref: State Administrative Council Decision No. 129/19/2018 dated 14.11.2018 Government Order No: 919-Edu of 2018 Dated 16.11.2018
i) Formal closure of the Ret scheme and the Ret recruitment/engagement process notified vide Government Order No. 390-Edu of 2000 dated 28.04.2000 along-with subsequent modifications/amendments.
However, the existing ReTs already appointed under the scheme or on ReT pattern shall continue to be governed under the erstwhile scheme till their regularization or otherwise.
ii) ii) All advertisement notices for engagement of Rehbar-e-
Taleem Teachers or panels prepared where no engagement orders have been issued shall and shall always be deemed to have been cancelled/withdrawn as ab-initio.
iii) iii) No fresh advertisement for recruitment/engagement under any ReT Scheme shall henceforth be issued. By order of the Government of Jammu and Kashmir.
22. From the careful reading of the aforesaid Government order particularly what is highlighted in the subject, it is evident that the Government Order has been issued to formally close ReT Scheme and the same is prospective in operation and would not affect or take away the vested and accrued rights under the ReT Scheme, yet it formally spells out the consequence of the closure of ReT Scheme which, to put succinctly and precisely are as under:-
"(a) The ReT Scheme promulgated vide Government Order No. 396 Edu of 2000 dated 28th April 2000 along-with all subsequent notifications/amendments including those providing for supplying the vacancies of teachers on ReT pattern is closed forthwith i.e., w.e.f. 16th November 2018.
(b) All the existing ReT's appointed under the ReT Scheme or on the ReT pattern shall continue to be governed under the closed scheme till their regularization or otherwise.
(c) All advertisement notices issued for engagement of ReT's under the Schemes in vogue which are now closed by the impugned order shall always to be deemed to be cancelled/withdrawn as ab-initio.SWP No. 2129/2010 Page 6 of 9
(d) All panels prepared pursuant to the advertisement notices issued under the Scheme which have not fructified into issuance of formal engagement orders shall also deemed to have been cancelled/withdrawn ab-initio.
(e) There shall be no fresh advertisement for recruitment/engagement under any ReT Scheme/Schemes from the issuance of impugned Government order."
23. The case of the petitioner even otherwise is covered by the Division Bench of this Court in case titled Rukhsana Jabeen vs. State of JK & Ors. announced on 4th February 2023 and connected matters wherein the Division Bench while concluding the judgment has observed as under:-
"(i). That the impugned Government order will not affect the select panels prepared by the respondents which have been acted upon and formal orders of engagement have been issued;
(ii) That the impugned Government Order will not override or effect the judgments passed or to be passed by this Court holding a candidate/candidates entitled to engagement in the selection process which was/is under challenge before the Court;
(iii) Where the select panels are approved and the aggrieved party has approached the Court before it could be acted upon, shall also be not affected by the impugned Government order, in that, but for litigation in the Court, the approved panel/panels could have been acted upon and formal letters of engagement in favour of the selected candidates issued prior to the issuance of the impugned Government order; and,
(iv) Notwithstanding issuance of the impugned Government order, the respondents shall abide by the judgments passed by any competent Court of law which have attained finality. However, the writ petitions involving adjudication of disputes in respect of tentative merit lists or tentative select panels shall be liable to be dismissed in view of the impugned Government order, in that, it would SWP No. 2129/2010 Page 7 of 9 not be permissible for a Court of law to direct the respondents to finalize the tentative merit lists or tentative select panels and issue engagement orders in view of closure of the scheme and a clear stipulation contained in paragraph 2nd of the impugned Government order."
24. The Division Bench in the aforesaid case has also held in para 10, 21 and 25 as under:-
"10. Since mere placement of a candidate in the panel tentative or final does not confer any right upon such candidate to be selected and appointed, as such, we find nothing wrong in the impugned Government order providing for cancellation/withdrawal of all existing panel or panels of selection in existence on the date of issue of the impugned Government order. Since the ReT Scheme and the other Government orders providing for engagements on the pattern of ReT Scheme have been closed, no fresh advertisement or engagement against any of the post earlier identified to be filled up under ReT pattern can be issued.
21. In so far as paragraph (ii) of the Government order is concerned, it provides for cancellation/withdrawal of all the Advertisement notifications for engagement of ReTs or the panels prepared which have not fructified into issuance of formal engagement orders of the selected candidates. Needless to say that mere issuance of Advertisement notifications or mere participation in the selection process or even figuring of a candidate in the select penal does not confer any right on such person to claim his selection/appointment/engagement as a matter of right. The impugned Government order only stops the process of selection w.e.f 16.11.2018 i.e the date of its issuance and, therefore, even if presumed to be retrospective in operation, does not take away any vested or accrued right.SWP No. 2129/2010 Page 8 of 9
25. As observed above, neither the participation in the selection process, nor mere placement in the select list gives any vested right to a person who has participated in the selection process and is figuring in the select list, to be necessarily appointed or engaged. The Selecting Body/Appointing Authority is well within its powers to withdraw the selection process provided such withdrawal is not arbitrary and violative of Articles 14 and16 of the Constitution."
CONCLUSION
25. In the light of what has been discussed in the aforesaid judgment titled as Rukhsana Jabeen and connected matters, the instant writ petition is fully covered by the said judgment, and for the aforesaid reasons coupled with the settled legal position, the present writ petition is not maintainable and the same is dismissed along-with all connected applications.
(WASIM SADIQ NARGAL) JUDGE SRINAGAR:
01.03.2023 Altaf Whether approved for reporting? Yes/No SWP No. 2129/2010 Page 9 of 9