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2006 DIGILAW 271 (JK)

Mohd. Maqbool Ganie v. State

2006-11-14

MANSOOR AHMAD MIR

body2006
1. It is averred in this writ petition that petitioners came to be engaged by the respondents- Education Department as Non-formal Education Instructors. Respondents vide Government Order No. 325-Edu of 1985 dated 16.07.1985 accorded sanction to reserve 3% posts of teachers in each District for absorption of Non-formal Education Instructors provided they had continuously worked in the centre(s) for at least four years and maintained the minimum enrollment of 25 students on an average basis for the said period of four years. Respondent No.5 requested the Project Officer Adult Education/ Non-formal Education, Budgam vide communication bearing No.DXB/264-66 dated 25th October, 1995 to prepare the list of part time instructors working in the District indicating the complete particulars in terms of the Government order, referred hereinabove. 2. Respondents invited applications for filling up of post of general line teachers in District Budgam vide advertisement notice No.4 of 1995 dated 30.03.1995 contained in annexure-B. It appears that communications came to be made inter-se respondents which are annexures to the writ petition. 3. Petitioners also participated in the selection process in terms of advertisement notice contained in annexure-B, referred hereinabove and came to be interviewed but petitioners were not selected/appointed despite of the communications contained in annexures to writ petition. Further, it is averred in this writ petition that respondents have, on the wrong premises, opined that SRO 126 of 1994 does not provide for any reservation for Non-Formal Education Instructors. Further, it is averred that petitioners are performing the same job, discharging duties and responsibilities which general line teachers are performing and discharging thus are entitled to equal pay and grade as admissible to the teachers. Petitioners have prayed that respondents be directed to declare the petitioners entitled to equal pay for equal work and also command the respondents to forward the list of selected Non-Formal Instructors for appointment as general line teachers. 4. Respondents have filed reply. It is profitable to reproduce para-4 of the preliminary objections and para-3 of the parawise reply, herein: "3. That the petitioners main contention against the answering respondent is that they are seeking consideration against the so called reserved category of part-time instructors and have prayed to the Honble Court for issuance of a writ of Mandamus commanding the answering respondent to issue the select list under the said category. That the petitioners main contention against the answering respondent is that they are seeking consideration against the so called reserved category of part-time instructors and have prayed to the Honble Court for issuance of a writ of Mandamus commanding the answering respondent to issue the select list under the said category. It is respectfully submitted that by the issuance of SRO 126 of 1994, which prescribes the reservation policies to be adopted while making selections, no such category under the name and style of part-time instructors has been incorporated in the said SRO. On this count as well the writ petition deserves to be dismissed. 3 to 7:- That the averments made in paras 3 to 7 does not pertain to the answering respondents however it is submitted that an advertisement notice No.4 of 95 dated 25-3-1995 was issued by the answering respondents for various posts including the post of teachers district cadre Budgam. It is also admitted that Govt. order No.523-Edu of 85 dated 16.07.1985 was passed by the Govt. whereby 3% reservation was provided for the post of teachers for the considering part time instructors for at least 4 years and retained a minimum enrollment of 25 students, but by the issuance of SRO 126 of 94 no such reservation has been prescribed." Considered. 5. Admittedly, the advertisement notice came to be issued in the year 1995 contained in annexure-B and selection/ appointment came to be made. But petitioners could not be selected and appointed for the reasons that they could not qualify the selection and accordingly were not figuring in the merit list. 6. All the posts advertised in terms of the advertisement notice came to be filled as per the selection process. Petitioners have neither challenged the advertisement notice nor selection process and nor challenged the selection of any selected candidate. They had not arrayed any selected candidate as party to the list. The selection of the teachers was not kept subject to the outcome of this writ petition. If, at this stage, writ petition would be allowed, then against which post(s) petitioner(s) could be appointed. The petitioners could not be appointed against the post which was not referred to Board for selection. Only on this count, the writ petition merits to be dismissed. Apex Court in case titled State of Orissa vs. Dr. If, at this stage, writ petition would be allowed, then against which post(s) petitioner(s) could be appointed. The petitioners could not be appointed against the post which was not referred to Board for selection. Only on this count, the writ petition merits to be dismissed. Apex Court in case titled State of Orissa vs. Dr. Sivasanker Lal Bajoria and anr, reported in AIR 1995 SC 334, has held as under: "5. Hence in the absence of a declaration that the appointment of Dr. Satpathy as on February 3, 1983 was illegal and when the High Court had specifically declined to go into that question, there is no vacant post existing for consideration of the claim of Dr. Bajoria as per the directions given by the High Court. This situation makes the order of the High Court unworkable. Accordingly, no need arises to consider the argument made in support of the order under appeal." 7. It is worthwhile to mention herein that order No.325, referred hereinabove, is also not in vogue and in force at this stage. Thus petitioners could not claim benefit of the said Government order. Petitioners have competed in the selection process and could not obtained the maximum qualifying marks as averred in para-4 of the preliminary objections, referred hereinabove. Thus, petitioners could not challenge the advertisement notice/ selection process/ selection after having participated in the selection and failed to get selected. 8. Next point which needs consideration is whether petitioners can invoke the principal of equal pay for equal work? This point stands thrashed out by the Honble Division Bench of this Court in case titled Jugdish Raj vs. State of J&K reported in 2001 SLJ 567. It is profitable to reproduce para-5 of the said judgment herein, which reads as under: "5. We do not find parity on fact between part-time Instructors engaged under this scheme and other regular teaching staff in the Education Department. Status of an employee is to be determined from the terms and conditions of his order of appointment. So the writ petitioners are not entitled to regularization. Writ petitioners, therefore, cannot claim parity in pay as is being given to the non-vocational teachers based on the principle of "equal pay for equal work". Status of an employee is to be determined from the terms and conditions of his order of appointment. So the writ petitioners are not entitled to regularization. Writ petitioners, therefore, cannot claim parity in pay as is being given to the non-vocational teachers based on the principle of "equal pay for equal work". It is entirely the functions of the State Government to take a policy decision as the scheme was the result of such a decision so as to provide benefit to the people. As their engagement is only on consolidated wages, which clearly implies that is like an arrangement on daily wage basis." 9. Applying the test to the instant case, the relief prayed for could not be granted. In view of the above discussion, writ petition merits to be dismissed which is accordingly dismissed alongwith all connected CMP(s).