State Th. Education Deptt. & Ors. v. Mohd. Iqbal Naik & Ors.
2011-03-24
MUZAFFAR HUSSAIN ATTAR, VIRENDER SINGH
body2011
DigiLaw.ai
Virender Singh, J.;- 1. The above captioned 24 Letters Patent Appeals arise out of the common judgment dated 18-05-2010, whereby the learned writ Court while disposing of the batch of writ petitions has quashed Condition No.6 of the Transfer Policy issued by Government of Jammu and Kashmir Education Department vide Government Order No.27-Edu. of 2010 dated 12-01-2010 (for short to be referred to as Transfer Policy of 2010), which provided that R-e-T Teachers whose services stood regularized, shall not be transferred, their appointment being school specific, holding the said Condition to be ultra vires of the Jammu and Kashmir Educational (Subordinate) Service recruitment Rules, 1992 (hereinafter to be referred to as Rules 1992). 2. Admittedly, all the private respondents (hereinafter to be referred to as writ petitioners) have been regularized as General Line Teachers after putting in five years of their uninterrupted service as R-e-T Teachers. Condition No.6 inserted in the aforesaid Transfer Policy of 2010 imposed a blanket restrictions on their transfers. The writ petitioners questioned the legal validity of the said Condition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, on the strength that the aforesaid Condition (Condition No.6) was violative of provisions of 1992 Rules, which provide for transfer of General Line Teacher within 'District Cadre' and with the approval of the Administrative Department beyond the 'District Cadre'. Their contention before the writ Court was that in view of the provision regarding transfer made under 1992 Rules, it was not competent for the State to frame Transfer Policy with a blanket restriction on the transfer of regularized R-e-T Teachers. 3. Appreciating the contention of the writ petitioners, the learned writ Court ultimately came to the following view: "The fact of the matter is that after regularization, they constitute one class with the General Line Teachers. They stand en-cadered in the service and are governed by the Rules of 1992. They cannot claim any special privilege after their en-cadered in the service regarding their transfer. They have to be covered by Transfer Policy which is in existence regarding the General Line Teachers. Condition no. 6, prima facie intends to make out a class within the class by stating that those persons who are regularized as Rehbar-e-Talcem Teachers, their transfers should be School specific. This condition is ultra vires of the Rules." 4.
They have to be covered by Transfer Policy which is in existence regarding the General Line Teachers. Condition no. 6, prima facie intends to make out a class within the class by stating that those persons who are regularized as Rehbar-e-Talcem Teachers, their transfers should be School specific. This condition is ultra vires of the Rules." 4. On the above reasoning, the learned writ Court ultimately has quashed Condition No.6 of the impugned Transfer Policy of 2010. Aggrieved of the same, the present appeals before us by the State. 5. Heard learned counsel for both the sides. 6. For reference, Condition No.6, as inserted in the Transfer Policy of 2010, reads thus: "RET shall not be transferred even after regularization of their services as teachers, as their appointment is school specific." 7. It has now been brought to our notice by Mrs. Goswami that the above said Condition No.6 of the Transfer Policy of 2010 stands deleted and in its place, a new Condition vide Government Order No.III-Edu of 2011 dated 15-02-2011 has been incorporated. The substituted Condition reads thus: "The teacher(s) recruited in elementary education under Rehbre-e-Taleem and Srava Shiksha Abhiyan (SSA) Scheme and later on regularized shall be considered for transfer only after their promotion to the next grade." 8. Mrs. Gowami submits that on account of incorporation of the new Condition in the earlier Transfer Policy of 2010, Condition No.6 already inserted and questioned by the writ petitioners does not survive. She, rather fairly submits that on account of aforesaid change in the Condition, the present batch of appeals filed by the State render in fructuous. 9. Admittedly, newly incorporated Condition is neither the subject matter of challenge in these appeals nor was so in the writ petitions as the new Condition is inserted on 15-02-2011 only, whereas earlier one, which was made the subject matter of dispute by the writ petitioners, was imposed on 12-01-2010. As the appellant-State has itself deleted Condition No.6 in Transfer Policy of 2010, which was the subject matter of dispute in the writ petitions, these appeals, therefore, cannot survive.
As the appellant-State has itself deleted Condition No.6 in Transfer Policy of 2010, which was the subject matter of dispute in the writ petitions, these appeals, therefore, cannot survive. In the face of the order dated 15-02-2011, whereby new Condition has been incorporated by deleting earlier Condition, in our considered view, the adjudication of the issue involved in the basic writ petitions as well as these appeals would only be of academic interest, as such, we would refrain from commenting upon it. We, therefore, dismiss the appeals at hand for having been" rendered in fructuous. However, if any person is aggrieved of the new Condition incorporated in the Transfer Policy of 2010, he/she will be at liberty to challenge the same in accordance with law. 10. All the appeals stand disposed of accordingly.