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2010 DIGILAW 630 (JK)

Parveen Akhter v. State

2010-12-16

Hasnain Massodi

body2010
1. The issue involved for determination in the above titled service writ petitions viz SWP No. 2400/2001, 9-A/2003, SWP No.1025/ 2004, SWP No. 1325/2004, SWP No. 662/2007 and SWP No. 1705/2008 is identical and all the petitions are accordingly with the consent of Counsel for parties taken up together for final disposal. SWP's 2400/2001 and SWP No. 1024/2004 stand formally admitted to hearing on 4th October 2001 and 17th December 2004 respectively. SWP's 9-1/2003, 1325/2004, 1662/2007 and 1705/2008 are admitted to hearing. The objections/reply filed in all the petitions at the request for Learned Counsel for respondents are taken as Counter Affidavit. Counsel for the petitioners in the all the six petitions does not propose to file any rejoinder. 2. Briefly stated the petitioners case is that the petitioners were engaged on contractual basis as part time Instructors in different Non Formal Education Centres vide (1) No. 2126-50 dated 02.03.1981 PTC Centre Kila Behrote Block Thanamandi Poonch, (2) NO. AE/NFP/295-97 dated 21.01.1997 PTC Sar Gursai, Poonch, (3) No. 581-82 dated 16.03.1991, PTC Laparachachian Gursai, Poonch, (4) No.DPO/PTC/553-54 dated 27.01.1995 PTC Bakore Block Jourian Jammu, (5) No. 445-47 dated 24.03.1994 PTC Fazal-abad Poonch, (6) No. 908-10 dated 11.12.1979 Bain Gali Thanamandi (7) No. Nil dated 11.06.1982 PTC Hattan Sari, Rajouri (8) No. 112-14 dated 22.05.1990 PTC Kamsar, Ward No. 1 Poonch; that the petitioners discharged their duties, honestly, diligently and to the entire satisfaction of their superiors and that the petitioners in terms of Government order No. 325- EDU of 1985 dated 16th July 1985 have a right to be considered for appointment as teachers against 3% reservation quota fixed under the said Government order in their respective districts. The petitioners in each of the writ petitions claim to be entitled to the benefit under the Government order, pleading that a number of part time Instructors have been given benefit, of reservation under the said Government order and that the petitioners being similarly situated can not be denied such benefit by the respondents. 3. The petitioners in each of the writ petitions claim to be entitled to the benefit under the Government order, pleading that a number of part time Instructors have been given benefit, of reservation under the said Government order and that the petitioners being similarly situated can not be denied such benefit by the respondents. 3. The respondents resist the writ petitions broadly on following two grounds: (i) That the Jammu and Kashmir Reservation Rules of 1994 notified vide SRO 126 of 1994 dated 28.06.1994 take care of all the categories in respect of which reservation has been directed and that in wake of SRO 126 of 1994 all the previous Government orders including the Government order No. 325- EDU of 1985 dated 16th July 1985 providing for reservation for different categories have ceased to have any force. The petitioners, it is insisted can not place reliance on Government order No. 325- EDU of 1985 dated 16th July 1985 and claim to be appointed as teachers under the category in respect of which reservation has been made under the said order. (ii) That in any case, the Non Formal Education Scheme having come to an end with effect from April Ist. 2001 and the respondent No. 01, having revoked/ rescinded vide Cabinet decision No. 22/1 dated 31.01.2001 following by Government Order No. 151-Edu of 2001 dated 13th February 2001, the Government order No. 325- EDU of 1985 dated 16th July 1985, the petitioners can no more press into service and claim benefit under the said rescinded Government order. 4. Heard and considered. 5. The case set up by the respondents in opposition to the petitioners case that in wake of Jammu and Kashmir Reservation Rules of 1994 notified vide SRO 126 of 1994 dated 28.06.1994, the Government order No. 325- EDU of 1985 dated 16th July 1985 automatically lost its force, is bereft of any merit. The Jammu and Kashmir Reservation Rules of 1994 and the order No. 325- EDU of 1985 dated 16th July 1985 deal with completely different and distinct subjects. The Jammu and Kashmir Reservation Rules of 1994, are part of affirmative action plan of State Government to ensure empowerment of unprivileged and marginalized sections of the Society who have very negligible or no representation in Government employment. The Jammu and Kashmir Reservation Rules of 1994, are part of affirmative action plan of State Government to ensure empowerment of unprivileged and marginalized sections of the Society who have very negligible or no representation in Government employment. The Reservation Rules of 1994 (now replaced by Jammu and Kashmir Reservation Act 2004) accordingly provide reservation for Schedule Tribes, Schedule Caste, Socially Backward Classes, Weak and unprivileged Classes, Residents of Backward areas etc. Government order No. 325- EDU of 1985 dated 16th July 1985 on the other hand, makes reservation to the extent shown in the Government order for the posts of teachers in favour of such educated unemployed who came forward to serve as part time contractual Instructors in Non Formal Education Centers on nominal emoluments and continued perform their duties, as such, for a period of not less than four years and are further were able to retain a minimum roll of 25 students for the said period. 6. So viewed, Government order No. 325- EDU of 1985 dated 16th July 1985 can not be held to have got wiped off and obliterated, on coming into force of Jammu and Kashmir Reservation Rule of 1994. The first ground taken up by the respondents to oppose the writ petitions thus is liable to be rejected. In any case, the controversy is settled by law laid down in Zarin Akhter v. State of Jammu and Kashmir (LPA (SW) No. 426/2001) wherein the Division Bench of this Court has opined as under:- "We are of the opinion that the Jammu and Kashmir Reservation Rules of 1994, are the Rules which are made under Article 16(4) of the Constitution of India. Under this Article, the State can make a provision for reservation of appointment or a post in favour of any backward class or citizen which in the opinion of the State is not having any representation. Therefore, the reservation contemplated by Reservation Rules of 1994 is entirely different. This has got nothing to do with the order dated 17th July 85 noticed above. The circular in question only provides a channel for appointment or for absorption. Therefore, the reservation contemplated by Reservation Rules of 1994 is entirely different. This has got nothing to do with the order dated 17th July 85 noticed above. The circular in question only provides a channel for appointment or for absorption. As in different services, there is a provision for making appointment by direct recruitment or by promotion and a ratio proportion is fixed, similarly, the circular aforementioned provides that whenever vacancies of teachers are to be filled, then at least 3 percent posts should be filled from amongst the Instructors of Non Formal Education Centres who have continued to work for four years having an enrolment of 25 students as an average for the same period. As indicated above, the reservation contemplated by the Jammu and Kashmir Reservation Rules of 1994, is relatable and owe its origin to Articles 15(4) and 16(4) of the Constitution of India. The circular referred to above, only provides for a channel of absorption. The scope of this circular is entirely different. It is not a reservation but, as indicated above, is a channel or or mode of absorption of a person who has already rendered some service for the State and is working on a consolidated salary." 7. The law laid down has been reiterated and followed in Mohd Rashid v. State and Others LPA (sw) No. 190/2000 decided on 14.02.2006. 8. The stand taken by the respondents in opposition to the writ petitions that Government order No. 325- EDU of 1985 dated 16th July 1985 having been rescinded/revoked vide Government order dated 13th February 2001, the petitioners can no more place reliance on the said Government order and that the petitions on the said ground are liable to be dismissed, also does not deserve acceptance. In order to appreciate the arguments in right perspective it would be advantageous to tabulate hereunder the date(s) of engagement of the petitioners with other important details:- SWP NO's. Name of the petitioners Engagement order No. and date of Engagement. Non Formal Education Centre where engagement made. Date on which right accrued to petitioner to be considered for appointment as teachers under and subject to conditions laid down in Govt. order No. 325 EDU of 1985 2400/2001 Parveen Akhter No. 2126-50 Dt.2.3.1981 PTC Centre Kila Behrote Block Thanamandi Poonch 1985 9-A/2003 Naseer Akhter (Petitioner No.1) NO. AE/NFP/295-97 Dt. Non Formal Education Centre where engagement made. Date on which right accrued to petitioner to be considered for appointment as teachers under and subject to conditions laid down in Govt. order No. 325 EDU of 1985 2400/2001 Parveen Akhter No. 2126-50 Dt.2.3.1981 PTC Centre Kila Behrote Block Thanamandi Poonch 1985 9-A/2003 Naseer Akhter (Petitioner No.1) NO. AE/NFP/295-97 Dt. 21.1.1997 PTC Sar Gursai, Poonch 2001 9-A/2003 Aziz Hussain Shah (Petitioner No.2) No. 581-82 Dt.16.3.1991 PTC Laparachachian Gursai, Poonch 1995 1025/2004 Kishan Kumari Khajuria No.DPO/PTC/553-54 dt. 27.1.1995 PTC Bakore Block Jourian Jammu 1999 1325/2004 Shabina Kousar No. 445-47 Dt. 24.3.1994 PTC Fazal-abad Poonch 1998 1662/2007 Abdul Rashid (Petitioner No.1) No. 908-10 Dt. 11.12.1979 Bain Gali Thanamandi 1983 1662/2007 Abdul Qayoom (Petitioner No.2) No. Nil Dt. 11.6.1982 PTC Hattan Sari, Rajouri 1986 1705/2008 Zeenat Begum N. 112-14 Dt. 22.5.1990 PTC Kamsa, Ward No. 1 Poonch 1994 9. A bare look at the above tabulated particulars/ information reveals that the petitioners have been engaged as part time contractual Instructors in Non Formal Education Centers before or while the Government order No. 325- EDU of 1985 dated 16th July 1985 came into force and that right to be considered for appointment as teachers in their respective districts against 3% reserve quota accrued to the petitioners under Government order No. 325- EDU of 1985 dated 16th July 1985 much before the Government order in question was rescinded/ revoked vide Government order No. 115 Edu of 2001 dated 13th February 2001 and the Government order No. 325- EDU of 1985 dated 16th July 1985 was thus in force. The rights of the petitioners under Government order No. 325- EDU of 1985 dated 16th July 1985 thus can not be said to have got extinguished in wake of Government order No. 115 Edu of 2001 dated 13th February 2001. The petitioners, therefore, had to be considered for their appointment as teachers against 3% reserve quota provided under Government order No. 325- EDU of 1985 dated 16th July 1985, of-course subject to their eligibility for the post of teachers, advertised by the respondents in their respective districts. Reliance placed by the Learned Counsel for the respondents on judgment rendered in Raj Kumari Vs., State and Others (SWP No. 748/2001) on 31 January 2008 and cases Jagdish Raj and others v. State and Others 2005 (2) JKJ 176 (HC) is grossly misplaced. Reliance placed by the Learned Counsel for the respondents on judgment rendered in Raj Kumari Vs., State and Others (SWP No. 748/2001) on 31 January 2008 and cases Jagdish Raj and others v. State and Others 2005 (2) JKJ 176 (HC) is grossly misplaced. In the aforementioned case the petitioners who admittedly had rendered services as part time contractual Instructors in Non Formal Education Centre's, placing reliance on Government order No. 325- EDU of 1985 dated 16th July 1985 asked for regularization of their services against the post of teachers. The prayer for their regularization was declined on the ground that the Government order relied upon merely earmarked 3% quota for the post of teachers in favour of part time contractual Instructors in Non Formal Education Centre's and not their regularization against the post(s) of teachers, and further that the reservation quota earmarked under the Government order was to become operational only after the respondents initiated process for selection of the teachers. In the present writ petitions the petitioners unlike the case relied upon by Leaned Counsel for respondents, do not seek their regularization against the post of teachers, but seek consideration for appointment as teachers against 3% quota reserved for part time contractual Instructors in Non Formal Education Center's. The petitioners for the reasons discussed have a right to claim benefit available to them under the Government order in question, provided the petitioners satisfy the conditions laid down in the said Government order, and further more the petitioners fulfill the eligibility criteria prescribed under rules for the post of teachers. The Government order in question, it needs no emphasis does not provide for automatic regularization of part time contractual Instructors working in Non Formal Education Centre's, but only earmarks 3% reserve quota for part time contractual Instructors. It follows that the right available under the Government order in question is to become operational only when the respondents invite applications for the post of teachers in their respective districts. In order to rule out any ambiguity, it is made clear that a part time contractual Instructor of Non Formal Education Centers, is entitled under Government order No. 325 EDU of 1985 dated 16th July 1985 to consideration against 3% reservation quota of the vacancies of teachers. The Government order in question does not vary or change the eligibility criteria in favour of part time contractual Instructors. The Government order in question does not vary or change the eligibility criteria in favour of part time contractual Instructors. A part time contractual Instructor is to satisfy the eligibility criteria fixed for the post of teacher and once found eligible he/she is to compete with other part time contractual Instructors of Non Formal Education Centers for 3% reservation quota. The petitioners obviously because of denial of their rights and subsequent litigation must not have been able to avail 3% reservation provided for under the Government order in question. Having regard to above discussed aspects of the matter, all the writ petitions viz SWP No. 2400/2001, 9-A/2003, SWP No. 1025/2004, SWP No. 1325/2004, SWP No. 1662/2007, and SWP No. 1705/2008 are disposed of along with connected CMP's as under:- 10. The respondents are directed to consider the petitioners for appointment as teachers against 3% quota reserved under Government order No. 325- EDU of 1985 dated 16th July 1985 as and when the respondents invite applications for the post of teachers for the respective districts to which petitioners belong, provided the petitioners satisfy the conditions laid down in the said Government order and otherwise full fill the eligibility criteria laid down/prescribed for the post of teachers.