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J&K High Court · body

2013 DIGILAW 398 (JK)

Akbar Ali Bandey v. State Of J&K

2013-07-12

TASHI RABSTAN

body2013
1. As common questions of fact and law are involved in both these petitions, therefore, both were heard together and are being disposed of by this common judgment and order. 2. The short controversy in these petitions relates to engagement of 3rd Teacher under the Sarv Shikshya Abhiyan against the available posts lying vacant in Primary Schools in Education Zone Mandi, District Poonch. 3. The facts in brief are that in pursuance to letter No.DSEJ/PS/804-12 dated 04.10.2003 issued by respondent No.2-Director School Education process of calling the representations/objections, if any, from the general public regarding the engagement of 3rd Teachers in Primary Schools by or before 14th October, 2003, was initiated by respondents in District Poonch. Respondent No.4-Zonal Education Officer, Mandi was asked to prepare the panels duly verified and singed by the Village Education Committee before 15th October, 2003. Accordingly, respondent No.4 initiated the process of preparing the panels on the recommendations of the Village Education Committee. 4. The petitioners being eligible also submitted their application forms duly recommended by the Village Education Committee. On consideration of the applications of various eligible candidates at the zonal level, a zonal level merit list/panel of eligible graduate and post graduate candidates falling in Education Zone Mandi, was prepared. Petitioners were also placed in the said panel. Out of the said panel, none of the candidates including the petitioners were engaged as 3rd Teachers. Being aggrieved, the petitioners also approached Minister for School Education, who directed the concerned authorities to look into the matter. In pursuance of directions passed by respondent No.1, the matter came up for consideration before respondent No.2, who vide his letter No. DSEJ/RET/1953 dated 14.02.2009 informed respondent No.1 that the panels received by him for engagement of 3rd teachers have not been finally settled because there were already excess number of 3rd teachers working in Districts Poonch and Doda as against the allotted posts. He further pointed out that the candidates in panel were at the verge of becoming over aged, as such, necessary instructions be issued so that engagement of 3rd teachers from empanelled candidates could be considered. 5. He further pointed out that the candidates in panel were at the verge of becoming over aged, as such, necessary instructions be issued so that engagement of 3rd teachers from empanelled candidates could be considered. 5. In the aforesaid letter, respondent No.2 though made recommendations for engagement of 3rd teachers, yet pointed out his difficulty to settle the panel and appoint 3rd teacher in Primacy Schools due to non availability of posts in District Poonch, which fact was controverted by the petitioners on the ground that at the relevant point of time, about ten posts of Rehbar-e-Taleem 3rd Teachers were available in Education Zone Mandi against which empanelled candidates including the petitioners could have been considered. 6. Accordingly, respondent No.2 called for the requisite information from respondent no.3, who in turn informed that as against the sanctioned strength of 536 third teachers in District Poonch, only 501 third teachers were in place, thus, indicating clearly that as many as 35 posts of 3rd teachers were still available in District Poonch, which included ten posts of third teachers available in Primary Schools of Mandi Zone. 7. It is contended by the petitioners that despite being in the panel and availability of posts of 3rd teachers in Education Zone Mandi, they were not engaged as 3rd teachers on the plea that the scheme for engagement of 3rd teachers stood closed. Hence, the present writ petition has been filed by the petitioners seeking a direction to the respondents by way of writ of mandamus to appoint/engage the petitioners as 3rd teachers against the available posts lying vacant in Primary Schools in Education Zone Mandi with all consequential benefits. 8. Respondents have filed the reply in SWP No. 1923 stating therein that in pursuance of the selection process, the petitioners were empanelled in the merit list for engagement as third teachers but they could not be engaged as the centrally sponsored scheme governing the appointment of third teachers as RET stood closed. 9. It would be profitable to reproduce paragraphs 1 and 2 of the preliminary objections hereunder:- 1. The petitioner has filed the present writ petition seeking a direction to the official respondents to engage the petitioners as third teacher against the available posts lying vacant in the education Zone Mandi District Poonch. 9. It would be profitable to reproduce paragraphs 1 and 2 of the preliminary objections hereunder:- 1. The petitioner has filed the present writ petition seeking a direction to the official respondents to engage the petitioners as third teacher against the available posts lying vacant in the education Zone Mandi District Poonch. The answering respondents submit that in pursuance of the selection process conducted the petitioners were empanelled in the merit list for engagement as third teacher but the petitioners could not be engaged as the Central Scheme governing the appointment of third teacher as RET stood closed and as such, the official respondents were not in a position to appoint the petitioners. It is further submitted that the petitioners have no vested right for seeking appointment but have only right of consideration against the posts if the official respondents deem fit and proper to appoint the selected candidates against the said posts. Admittedly, no other candidate nor the said posts have re-advertised and as such, the respondents after the closure of the scheme is not in a position to appoint the petitioners against the said posts and as such, there being no infringement of any fundamental legal or statutory and hence the writ petition is liable to be dismissed. 2. That the mere empanelled of a selected candidate in a merit list does not confer a right on a selected candidate to seek appointment as the respondents/employers are well within their right not to issue appointment orders in case the empanelment do not deem it necessary to appoint the said selected candidates. In the present case mere empanelment of the petitioners does not confer any right on the petitioners nor any cause of action has accrued to the petitioners to file the present writ petition and as such the writ petition is liable to be dismissed. It is pertinent to mentioned here that the said posts have remained unfulfilled and have not been filed up by any other candidate." 10. I have heard learned counsel for the parties and perused the records. 11. Admittedly, the post of third teachers were lying vacant in District Poonch in the year 2003 when representations/ objections were called from the general public for engagement of 3rd teachers in Primary Schools. I have heard learned counsel for the parties and perused the records. 11. Admittedly, the post of third teachers were lying vacant in District Poonch in the year 2003 when representations/ objections were called from the general public for engagement of 3rd teachers in Primary Schools. It is also not in dispute that against the sanctioned strength of 536 third teachers in the district of Poonch, only 501 third teachers were engaged, which clearly indicate that as many as 35 posts of third teachers were still available in District Poonch. This fact is clearly discernable from the communication issued by the office of Chief Education Officer, Poonch dated 02.02.2009 (Annexure-D) wherein zone-wise vacancy position in District Poonch is mentioned. The reply filed by the respondents is ambiguous. It is not forthcoming from the reply that the scheme for selection of third post of RET teacher in Primary Schools in Education Zone Mandi under the SSA scheme came to light and when it was closed or for how many years the said scheme remained in operation. However, Mr. Sharma, learned counsel for the respondents laid my hand on Government Order No. 1670-Edu of 2003 dated 24.11.2003 which would show that the posts created under SSA for new primary schools, upgraded primary schools and ECS centres, and those of 3rd teacher for innovative activities shall be filled up through the medium of ReT Scheme by the Directors of School Education in their respective areas of jurisdiction. Thus, it is not understandable that despite the petitioners being in the merit panel and the availability of the vacancies of third teachers, they were not engaged as third teachers on the plea of closure of the scheme. Therefore, the argument of Mr. Sharma, learned counsel for the respondents is not well founded on the ground that so long as the sanctioned posts of third teachers created under the scheme were available and the panel was prepared well within time when the scheme was in operation, the plea that petitioners cannot now be appointed as the scheme has come to an end, is something which cannot be countenanced by law. The petitioners being included in the panel have got a vested right of engagement as third teachers particularly when the posts were lying vacant and the petitioners were in merit. The petitioners being included in the panel have got a vested right of engagement as third teachers particularly when the posts were lying vacant and the petitioners were in merit. It is not forthcoming that what prompted the respondents to sit over the selection process from October 2003 to till 2009 and thereafter take a plea that the petitioners or the empanelled candidates, cannot be appointed against the post in question on the pretext of closure of the Scheme. They cannot act according to their own whim and fancies. It is nothing but mockery of the system. Respondents cannot be allowed/expected to play with the careers of innocent petitioners or hound them on the plea of closure of the Scheme, particularly when the petitioners were at the verge of getting overage. It is more so when the petitioners were empanelled for engagement as third teacher, not only the posts were available but scheme was also in operation. Subsequent closure of the scheme would not affect the selections already made. If the argument of State is accepted, it would amount to putting premium on the inaction of the respondents who are responsible for delaying the matter without justification. In any case delay in finalizing the process was not due to any act or omission attributable to the petitioners. Stand taken by the respondents to deny appointments to petitioner is, therefore, misconceived. 12. In view of what has been discussed hereinabove, both the petitions are allowed. Respondents are directed to forthwith engage the petitioners as 3rd teachers against the available posts lying vacant in Education Zone Mandi, District Poonch. 13. Registry is directed to serve a copy of this judgment to the Chief Secretary of the State, who is expected to impart necessary instructions in this regard and ensure that no such laxity is done in such like matters in future by the officers/officials at the helm of the affairs which has the effect of playing with the career of the unemployed youth of the State. 14. Disposed of as above along with connected CMA(s).