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2008 DIGILAW 460 (JK)

Shameema Shabnam v. State

2008-11-27

MUZAFFAR HUSSAIN ATTAR, NISAR AHMAD KAKRU

body2008
N.A. Kakru, ACJ 1. Claiming to be senior in the capacity of a teacher, the appellant invoked extraordinary writ jurisdiction by medium of a writ petition seeking a direction for her appointment as in charge Lecturer and subsequently questioned the regularization of one of the respondents. Both the writ petitions were dismissed by learned Single Judge by a common judgment dated 18-10-2008, hence this Letter Patent Appeal. For proper understanding and appreciation of the cause urged before the writ court, it would be appropriate to notice that two Service Writ Petitions bearing Nos. 234/96 and 635/03, filed on 24-02-1996 and 29-04-2003 respectively, by appellant-writ petitioner Miss Shamima Shabnam (appellant hereinafter) against one of the beneficiaries of Government Order No. 1479/Edu of 1993 dated 03-09-1993 and No.149-Edu of 2002 dated 31-12-2002, namely Miss Shahnaz Shaheen (Respondent-Promotee hereinafter) besides, Government of Jammu and Kashmir and its functionaries, former order, appointing 93 teachers including Respondent-Promotee, as in charge Lecturers, and the latter, regularizing the services of the same number. The controversy being referable to the basic order viz. Government Order No. 1479/Edu of 1993 dated 03-09-1993, may be reproduced: "Subject: Transfer and adjustments of lecturers in Economics. Without prejudice to the seniority of others, sanction is accorded to the: 1/ Adjustment of following teachers/Masters as I/C Lecturers in Economics in their own pay and grade for a period of six months or till the posts are filled up on regular basis by the DPC/Public Service Commission whichever is earlier. 13. Shahnaz Shaheen (I/C Lect.) Hr. Sec. School Hazratbal vice Muzamil Akhter. By order of the Government of J&K." 2. Perusal of the above said order of appointment reveals that it had to be in force for a period of six months and in the alternative till filling up of the posts on regular basis. The period of six months having expired in the month of April 1994, the latter condition of the order came into effect, conferring a right of continuation on the beneficiaries till regular appointment. Although knowledge of the order is not disputed by the appellant, yet she did not approach the Court before expiry of six months for a relief of assignment of charge through first Writ Petition. Although knowledge of the order is not disputed by the appellant, yet she did not approach the Court before expiry of six months for a relief of assignment of charge through first Writ Petition. In this behalf, it may not be inapt to take notice of the stand of the Government (see page 36 of the paper book of SWP 635 of 2003), suggesting that the policy decision taken by the Government to make appointment of 93 teachers as in charge lecturers and the respondent-promotee, being one amongst them, followed by their regularization, emanated from reluctance on the part of the teachers to serve in the remote areas of the State particularly Kashmir valley and hilly terrain in the Jammu Division, who had even preferred to forego their promotions rather than to serve in such difficult areas. Indisputably, the appellant has invoked the jurisdiction of the Writ Court for the first time for similar treatment after a couple of years and there being no denying about the knowledge of the policy decision by the appellant, she owes an explanation for not having approached the Court immediately at least before expiry of its first prescribed spell of six months to prevent the Government from treating her as one of the teachers, reluctant to accept the assignment of the charge of Lecturer. Amazingly she has advanced nothing to refute the basis of the policy decision of the Government i.e. reluctance and other such like reasons. We may hasten to add that we have neither any cause nor do we wish to embark upon validity or otherwise of the policy decision of the Government as the case may be, relating to the appointments of in charge lecturers and their regularization, for the simple reason that the said policy was not challenged by the appellant before the writ Court at any point of time but then what has prompted us to make a mention of all these events including the Governments stance is, to say the least, that the appellant has consumed public time in absence of disclosure of essential pleadings and non-impleadment of other 92 beneficiaries of the orders of appointment. Needless to say that if rules and norms of pleadings were applied strictly by the writ Court, that alone could have proved fatal to the maintainability of the Wirt Petition. 3. Needless to say that if rules and norms of pleadings were applied strictly by the writ Court, that alone could have proved fatal to the maintainability of the Wirt Petition. 3. That apart admittedly the appellant did not challenge the basic Government Order No. 1479/Edu of 1993 dated 03-09-1993 through his first Writ Petition (234/96) but pressed it into service to establish analogy to persuade the Court for grant of similar relief and remained contented until issuance of order of regularization. Faced with the ground reality, an escape route was opted for by Mr. Qureshi contending that the appellant did not challenge the said order because she was made to believe by one of the alleged contemnors in a contempt petition that respondent-promotee was not allowed to continue. The contention is bereft of any logic, for, as said above, the appointment was not done away with and the respondent-promotee was allowed to continue, and appellants knowledge of that fact is manifest from her writ petition filed in 1996 wherein she had claimed relief on the principle of parity, therefore, she cannot be allowed to turn around to challenge the appointment. 4. All said and done, ultimately appellants challenge to the basic appointment as also regularization hinges on the claim of seniority and a case is set up by her that she had joined on 18-05-1989 whereas the respondent-promotee had joined on 25-05-1989, therefore, ranks senior. In short her contention is that all this was managed by the then Additional Secretary to Government, Education Department who happens to be the brother of the respondent-promottee, but no material even worth the name was placed before the writ Court to establish the alleged fallacy of the entry. However, appellant sought leave of the writ Court at a subsequent stage by medium of a CMP to bring some documentary evidence on record. The motion though belated, yet in the interests of justice it was allowed and in pursuance of the grant of motion the appellant chose to bring on record copy of her own service book and that of the respondent-promotee. Particulars of service of the appellant recorded in her service book reveal her date of appointment and joining as 18-05-1989 which is not disputed by the respondent-promotee, therefore, no observation called for on our part. Particulars of service of the appellant recorded in her service book reveal her date of appointment and joining as 18-05-1989 which is not disputed by the respondent-promotee, therefore, no observation called for on our part. As regards respondent-promotees date of joining, the appellant has joined issue on the basis of reflection of two dates in the service book of respondent-promotee viz. 13-05-1989 and 25-05-1989, contending that 25-05-1989 is the correct date whereas 13-05-1989 was manipulated at the instance of the then Additional Secretary to the Government, Education Department. To appreciate the controversy it is apposite to extract the relevant entry from the Service Book of the respondent-promotee in full: "13.05.89 25.5.89 FN X X The teacher was awaiting her adjustment in this office from 13.05.89, so she is treated as on duty and her date of first appointment is considered from 13.05.89 instead of 25.05.89 as per records of this office. Sd/- Chief Education Officer, Mtr. Shahnaz Shaheen D/O Gh. Ahmad Dar R/O Naseem Bagh Habak Srinagar has been appointed as teacher in the grade of 900-1830 vide administrative officer SSSRBs No. SSB/88/ADV/3 dated 5.5.89 and has been posted in this School vide District Education Officer Srinagars Order No. DEO/APPtt/1368-1493 dated 08.05.1989 standing at S.No. 22. Sd/- Headmistress" 5. Indeed there are two dates mentioned in the Service Book but those need to be read along with the note recorded thereunder, reproduced hereinabove as also explanation of the Government finding place in its reply filed in SWP 635/03 which may be noticed: "It is further submitted here that the petitioner is under a misconception that respondent No.4 has joined on 25.5.1989, as such, she is junior to the petitioner. It is submitted that as a matter of fact, the respondent No. 4 had joined the office of Chief Education Officer concerned on 13.05.1989 and thereafter joined the concerned School on 25.05.1989, the entry of the respondent No. 4 in the department, as such is 13.05.1989, whereas the date of joining of petitioner admittedly is 18.05.1989" 6. In addition to that the Government has also filed requisite particulars which may also be noticed: "The Service particulars of both the petitioner as well as the private respondent are given as under for submitting before the Honble High Court. Name Date of Appt, as teacher Date of joining Date of passing PG Serial No. in the Sty. List, Dt. In addition to that the Government has also filed requisite particulars which may also be noticed: "The Service particulars of both the petitioner as well as the private respondent are given as under for submitting before the Honble High Court. Name Date of Appt, as teacher Date of joining Date of passing PG Serial No. in the Sty. List, Dt. 10-04-03 Shahnaz Shaheen 8-5-1989Order No: DEO/ Apptt/ 1368-1493 Dated: 8-5-1989 issued by the then DEO Budgam (Copy enclosed) 13-5-1989 1976 210 Shameema Shabnam 18-05-1989 Order No: ENG/ST/Apptt/1721-2114 Dated: 18-5-1989 issued by the then DEO Budgam ( Copy enclosed) 18-5-1989 1983 (in Sociology in the year 1992 214 Sd/- Under Secretary to Govt. Education Department" 7. A perusal of the entry read along with notes, besides, the information furnished by the Government, and the stand of the Government in the counter, reveals that the respondent-promotee was initially appointed as a teacher by the District Education Officer Srinagar vide Order No. DEO/APPtt/1368-1493 dated 08.05.1989. Apparently her appointment dates back to 8th May and had reported for duty pursuant thereto on 13-05-1989 in the office of the Chief Education Officer but had to wait for her posting which was made on 25-05-1989. That is how 13th and 25th find a mention in service book of the respondent- promotee brought on record by none other than the appellant herself. On top of all she relies upon it. Similar stand is taken by the Government in the reply supported by affidavit of the Commissioner Secretary to the Government, Education Department, supported by documentary proof. In these circumstances, it is wrong to say that the joining date was manipulated at the behest of Additional Secretary, Education Department, under the guise of his relationship with the Respondent-promotee. Let us place it on record that the said Officer has been subjected to mental agony, ex facie, without any fault of his and on unfounded allegations. 8. In these circumstances, it is wrong to say that the joining date was manipulated at the behest of Additional Secretary, Education Department, under the guise of his relationship with the Respondent-promotee. Let us place it on record that the said Officer has been subjected to mental agony, ex facie, without any fault of his and on unfounded allegations. 8. The factual dispute raised by the appellant that the respondent-promotee had joined on 25-05-1989 and not on 13-05-1989 having been countered by the State and the respondent-promotee and except for the bare assertion of the appellant, there being no documentary evidence to support it, even before us, therefore concluded against the appellant, yet we would like to assume a hypothetical situation which becomes necessary because the only ground urged before the writ Court was that prior joining would entitle the appellant to placement in the seniority list ahead of the respondent-promotee, but question that arises is whether at all the contention does have sanction of law. To have the answer let us assume hypothetically that the respondent-promotee had joined on 25-5-1989, again hypothetically assuming that the appellant had joined on 18-5-1989, still the point that calls for consideration is, whether it is initial appointment or joining that has relevance for determination of seniority of the parties to this petition. For answer we would like to focus our attention on the rules called the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, and rule 24 being relevant hence reproduced hereunder: 24. Seniority:- (1) Seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as the case may be. Note.1:- The rule in this clause will not effect the seniority on the date on which these rules come into force of a member of any service, class, category or grade as fixed in accordance with the rules and orders in force before the date on which these rules come into force. Note.1:- The rule in this clause will not effect the seniority on the date on which these rules come into force of a member of any service, class, category or grade as fixed in accordance with the rules and orders in force before the date on which these rules come into force. Interpretation:- The word " date of first appointment" occurring in the above rule will mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in he latter case being subject to good work and conduct and/ or passing of any examination or examinations and/or test" 9. A conjoint reading of rule 24 and the interpretation appended thereto, makes it manifestly clear that in case of substantive appointment on a clear vacancy, it is the initial date of appointment that has to determine the seniority of the appointee. In view of the rule position, coupled with the fact that appointment of the respondent-promotee was made on a clear vacancy of a teacher, no fault can be found with the seniority assigned to the respondent-promotee with effect from 08-05-1989 and to the appellant from18-05-1989, being admittedly dates of their initial appointment. 10. In the final analysis, we are of the opinion that interference in this LPA is uncalled for and is dismissed accordingly. However no order as to costs.