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2010 DIGILAW 170 (JK)

Rukhsana Manzoor v. State

2010-04-01

MUZAFFAR HUSSAIN ATTAR

body2010
1. In the year 2000, Government launched a Scheme called `Rehbari Taleem by issuance of an executive order No. 396 of Edu 2000 dated 28th April 2000. The purpose for launching of the said Scheme is delineated in the said government order itself. In order to accomplish the purpose delineated under the scheme, Committees were constituted for empanelment of teaching guides (Re-Ts) and selection Committees were constituted for making selection of the eligible meritorious candidates for being engaged as teaching guides. 2. In pursuance of the said scheme panels were drawn by the concerned Village Level Committee(s) for various schools of the District Budgam. 3. A deficiency was assessed in Primary School Lachmanpora, zone Hardu punzoo. 4. Petitioner was empanelled for being selected and engaged as teaching guide(Re-T) in the aforesaid primary school. 5. It is stated that School has been upgraded to the level of Middle School. 6. The panels drawn at that point of time, were ordered to be kept on hold by Deputy Commissioner Budgam, on the ground, that the posts which were required to be filled up for making engagement of teaching guides were to be utilized for adjusting the persons who were working as teachers under Operation Black Board Scheme (OBBS). 7. As the panels drawn by various village level committee(s) were not acted upon in view of the orders of the Deputy Commissioner, some 18 persons approached this court and filed writ petition which was registered as SWP No. 860/03. It was specifically pleaded in that writ petition that OBB Scheme is separate and distinct scheme than that of Re-T Scheme. It was also pleaded that SSA and OBB schemes are centrally sponsored Schemes, and the RT Scheme was launched by State Government and petitioners right to seek consideration for selection/engagement could not be thus be fettered by making appointments under the Operation Block Board Scheme. 8. The court disposed of the writ petition vide order dated 13th June 2003 directing the respondents to take a decision in the matter. When the judgment was not implemented, contempt petition was filed. The contempt petition was disposed of vide order dated 20th April 2006. Perusal of the said order reveals that ld counsel appearing for the state made some submissions about the availability of posts for engagement/appointment of petitioners therein. 9. When the judgment was not implemented, contempt petition was filed. The contempt petition was disposed of vide order dated 20th April 2006. Perusal of the said order reveals that ld counsel appearing for the state made some submissions about the availability of posts for engagement/appointment of petitioners therein. 9. The respondents passed an order in pursuance to the orders of the court passed in SWP No. 860/03. The subject matter of the said order was selection of Re.T candidates in various schools of district Budgam. Thus the petitioners in SWP No. 860/03 who were still awaiting their adjustment as teaching guide were engaged by the above referred order passed in the year June 2006. 10. The petitioner claimed to be similarly circumstanced with the petitioners of SWP No. 860/03 filed this petition seeking same treatment and further prayed that she be treated at par in the matter of engagement of Re-T to the similarly circumstanced persons vide order No. CEOB/Estt-RT/SWP-860/06/7140-48 dated 20/21/6.2006 by engaging her as Re-T teacher in Primary School Lachmanpora(now Middle School), falling under educational zone of Hardu panzoo. Further direction is sought that respondents be directed to sanction all the consequential benefits accruing to her in law on treatment in the matter of engagement as Re/T similar and on par with the beneficiaries of aforementioned order. A communication dated 20th April 2006 of ZEO Hardu Panzoo Budgam is on record to show that one post of teacher is still available in the Primary School Lachmanpora.(Now Middle School). 11. Respondents have filed reply in which it is pleaded that one post was available in Primary School Lachmanpora under the Operation Black Board Plan Scheme. It is also pleaded that only one General Line teacher was working in the school, the remaining posts were filled up in accordance with the mandate of Rehbar Taleem Scheme. It is also pleaded that petitioner was empanelled in the year 2002, against the said vacancy created under OBB Plan Scheme that all the posts under the Scheme were abolished and the persons who were working against these posts were adjusted against clear vacancies. It is also pleaded that petitioner was empanelled in the year 2002, against the said vacancy created under OBB Plan Scheme that all the posts under the Scheme were abolished and the persons who were working against these posts were adjusted against clear vacancies. It is also pleaded that case of petitioner is not similar to that of the petitioners in SWP No. 860/2003 in as much as the petitioners in the said writ petition were empanelled against clear vacancies which were not covered under OBB Plan Scheme, whereas, in the present case the petitioner was empanelled against a vacancy created under OBB Plan, which later on came to be abolished. 12. Heard ld counsel for parties. Considered the matter. Ld counsel for the parties argued in tune with their respective pleadings. 13. Mr. J.A. Kawoosa, Ld AAG, at conclusion of hearing of the arguments produced an advertisement notice issued by ZEO Hardu Panzoo dated 31st of Dec. 2002 in which it is provided that for Boys Primary School Lanchmanpora, a post of teacher is available, it is also mentioned in the said advertisement notice, that the post is of OBB Scheme, and candidate(s) possessing minimum qualification of 10+2, were asked to responded to the said notification. Along with this advertisement notice the ld counsel also produced copy of the panel showing that the petitioner was the only candidate who was empanelled for being engaged on the said post. Documents produced are taken on record. 14. The case of the petitioner hinges on one ground as to whether she is similarly circumstanced with the petitioners of SWP No. 860/03. To answer this question it requires to be ascertained as to whether those persons were also empanelled for being selected/engaged as Re-T in pursuance of the Scheme launched by the respondents. 15. It is not in dispute that all those persons were empanelled for being selected/engaged as Re-T (teaching guide), but the distinction is sought to be drawn in their case on the ground that all those candidates were empanelled for being/engaged as Re-T against clear available vacancy, whereas the petitioner was empanelled for being engaged against post under OBB Plan Scheme. 16. 16. After the empanelment of petitioners in SWP No. 860/03 and the petitioner herein, these panels were ordered to be kept on hold by the then Deputy Commissioner Budgam, for the reason that these posts were required to be utilized for adjusting the teachers working under OBB Scheme in terms of the circular and instructions conveyed by the Director School Education vide No. DDE/PLG/OBB/1126-32 dated 15th June 2000. The persons who were empanelled for being selected and engaged as Re-T for various schools of District Budgam thus constituted one single class and they were treated as such by the respondents by ordering for keeping on hold all the panels so as to enable the authorities to adjust the teachers working under the OBB Scheme. The writ petition No. 860/03 was disposed of by the court directing only to consider the claim of the petitioners therein. The court did not pass any positive direction in that case requiring the respondents to engage them as Re-T teachers. The exercise was to be undertaken by respondents themselves. The respondents in terms of the order passed in June 2006 adjusted all those candidates as Re-Ts, the petitioner in such circumstances could not be discriminated. It is inconsequential as to whether the persons were empanelled against clear vacancies or against the vacancies available under OBB Plan. Since all the posts were utilized for adjusting teachers working under the OBB Plan, the petitioners in SWP No. 860/03 and the petitioner herein formed one single class as they were all deprived of the posts whether they were clear or available under OBB Plan. In such circumstances no post whether available vacancy or post available under OBB Plan remained available. 17. The purpose of utilizing the available posts was to accommodate teachers working under OBB Plan. So no post remained available even for petitioners in SWP 860/03. The Re-T panels were ordered to be kept on hold. The persons who were empanelled thus formed one single class and they were treated as such by respondents themselves. It was thus of no consequence as to whether someone was empanelled against clear vacancy or against OBB vacancy. 18. So no post remained available even for petitioners in SWP 860/03. The Re-T panels were ordered to be kept on hold. The persons who were empanelled thus formed one single class and they were treated as such by respondents themselves. It was thus of no consequence as to whether someone was empanelled against clear vacancy or against OBB vacancy. 18. The respondents have adjusted the petitioners of SWP No. 860/03 as Re-Ts, the petitioner in this petition by not having been given the same treatment has been subjected to invidious discrimination thus violating the constitutional guarantees available to her under the Art. 14 and 16 Constitution of India. The argument of the ld counsel for the respondents that the petitioner herein, and petitioners in SWP No. 860/03 were not similarly circumstanced for the reasons that the petitioners of the earlier petition were empanelled against clear available vacancies and petitioner herein empanelled under the vacancy available in OBB Plan would make no difference between the petitioner herein and the petitioners therein for the reasons stated hereinabove. The objection of ld counsel for the respondents that petitioner approached the court at late stage would also not prevent the court from allowing the writ petition in as much as the writ court has to remove the injustice. The court when confronted with situation like this will not refuse to discharge its constitutional functions on the plea raised by Mr. Kawoosa, ld AAG. 19. Mr. R.A. Jan, ld counsel for petitioner referred to and relied upon case titled Inder Pal Yadav and ors v. Union of India and ors, reported in (1985) 2 Supreme Court Cases 648, invited the attention of the court to para 5. Relevant part thereof is reproduced as under:- "Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this Court" 20. In view of the fact situation obtaining in this case petitioner is held to be similarly circumstanced to the petitioners in SWP No. 860/03. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this Court" 20. In view of the fact situation obtaining in this case petitioner is held to be similarly circumstanced to the petitioners in SWP No. 860/03. For the above stated reasons, this petition is allowed in the following terms; a) By issuance of writ of mandamus, the respondents are directed to give same and similar treatment to the petitioner which has been given to petitioners of SWP No. 860/03 by adjusting her on the same pattern as the petitioners in the aforesaid said petition have been adjusted vide order CEOB/Estt-RT/SWP-860/06/7140-48 dated 20/21/6.2006. b) It is made clear that petitioner will not be entitled to any benefits prior to passing of the appointment order.