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J&K High Court · body

2014 DIGILAW 138 (JK)

Nighat Hamdani v. State Of J&K

2014-03-27

BANSI LAL BHAT

body2014
1. The petitioner, including all other eligible teachers, 185 in number, came to be promoted as Masers / Head teachers on stopgap arrangement in their own pay and grade. The petitioner posted as teacher in Government Boys High School, Rainawari, was also promoted as Master in her own pay and grade and appears to be figuring at serial No. 110 in Order No. 1780 DSEK of 2009 dated 08.09.2009. In terms of the order aforementioned, the petitioner was required to report to the office of the Chief Education Officer, Ganderbal, for further posting within the stipulated time of seven days. Case of the petitioner is that she was relieved by Headmaster, Government Boys High School, Rainawari on 08.03.2010, and, consequently, submitted her joining report on the same date in the office of respondent No. 4-CEO, Ganderbal. Thereafter, Respondent No. 4 addressed a communication dated 15.03.2010 to respondent No. 3 requesting him to get the promotion order of the petitioner revalidated by respondent No. 3-CEO, Srinagar, and directed the petitioner to report back in the office of the respondent No.3. On 18.03.2010, respondent No. 3 sent a communication to respondent No.5, asking him to allow the petitioner to continue her duties until her promotion order could be got revalidated from respondent No. 2, Director, School Education, Kashmir. He has also requested the respondent No. 2, to reconsider the promotion order of the petitioner to resolve the dispute. However, it did not evoke any response from the office of respondent No. 2. 2. According to the petitioner, a communication came to be addressed to respondent No. 5 on 18.03.2010 by respondent No. 3, which prompted the respondent No. 5 to allow her to continue until her promotion order would be got revalidated from respondent No. 2. It is seen from the record of the writ petition that respondent No. 5 has specifically mentioned in his communication dated 01.05.2010 forming annexure `P-H, to the writ petition that the order of promotion in respect of the petitioner has not been dispatched to his office and it was the petitioner herself who approached the office of respondent No. 3 and received her promotion order on 03.03.2010 from the establishment section of the said office. 3. 3. It is stated that the action of the respondents in not revalidating the promotion order resulted in jeopardizing the legal rights of the petitioner and subjecting her to harassment, mental pain and agony. 4. Writ petition came to be admitted to hearing on 23.09.2013 and the reply filed by respondents was treated as counter on their behalf at the request of learned appearing counsel for respondents. The respondents have resisted the averments made in the writ petition and it is pleaded that the petitioner was adjusted as Incharge Maser pursuant to Order No. 1780-DSEK of 2009 dated 08.09.2009, issued by respondent No. 2, whereby the petitioner was directed to report for posting in the office of respondent 4. It is further pleaded that it was specified in the order of promotion that the promotees shall report for further adjustment within seven days of the issue of order failing which their placement shall be treated as cancelled ab initio. Furthermore, the petitioner was relieved by the Headmaster, Government Boys High School, Rainawari, on 08.03.2010 and on the same date she joined in the office of respondent No. 4, who in turn addressed a communication dated 15.03.2010 which revealed that since the order of adjustment had validity of seven days, as such, the order may be got revalidated as the petitioner had extended the limit of seven days. Respondent No. 3 accordingly, directed the Headmaster, Boys High School, Rainawari, to allow the petitioner to continue till revalidation of her promotion order is settled at directorate level. Further the respondent No. 5 was directed to explain the reasons of not relieving the official after considerable delay when the order has lost its validity. 5. What is seen is that the respondents have contested the petition on the ground that the petitioner has deliberately chosen not to get relieved from the School and instead managed the receipt of promotion order by hand on 03.03.2010 from one Mohammad Ashiq, who on verification was found to be nonexistent. It is further pleaded that there was no evidence in support of acknowledgement of receipt that the promotion order has been served from the office of respondent No. 3, which clearly indicated that it was a case of manipulation on the part of the petitioner. It is further pleaded that there was no evidence in support of acknowledgement of receipt that the promotion order has been served from the office of respondent No. 3, which clearly indicated that it was a case of manipulation on the part of the petitioner. It is further pleaded that the promotion order has been given wide publicity through print media and the petitioner has deliberately avoided her adjustment in the district Ganderbal. They have further gone to state that the petitioner has managed the receipt of promotion order after lapse of six months though she was supposed to join within seven days from the date of issuing of the said order of promotion. It is pleaded further that since the petitioner did not opt to join the office of the Chief Education Officer. Ganderbal, respondent No. 4, within the stipulated time of seven days, she forfeited her promotion. 6. I have heard learned counsel for the parties, gone through the pleadings and considered the matter. Admittedly the petitioner was serving as teacher in Government Boys High school, Rainawari, when the order of promotion dated 08.09.2009 was issued by respondent No. 2, whereunder the petitioner figured at serial No. 110 in the list of promotees. The petitioner was adjusted as incharge Master in district Ganderbal and the order stipulated a condition that the promotees shall report to the concerned Chief Education Officers for further posting within seven days, failing which their placement shall be treated as cancelled ab initio. 7. According to the petitioner the order of promotion was not received in the school where she was posted and she was relieved by the Headmaster- respondent No. 5 only on 08.03.2010, that too after receipt of the aforesaid order, which fact is substantiated by the communication of respondent No. 5 addressed to respondent No. 3. The petitioner after got relieved by respondent No. 5 on 08.03.2010, reported for duties/posting in the office of respondent No. 4 on the same date. However, the respondent No. 4, addressed a communication dated 15.03.2010 to respondent No. 3 for revalidation of the promotion order of the petitioner by the Director, School Education, Kashmir-respondent No. 2 Acting on the said communication, the respondent No. 3 CEO, Srinagar directed the petitioner to work at her previous place of posting till her case of promotion is considered by the respondent No. 2. 8. 8. Thus, the short controversy involved in this writ petition is as to whether the petitioner forfeited her promotion to the post of Master merely because she failed to get herself relieved from Government Boys High School, Rainawari, within seven days of the issuance of the order of promotion. Admittedly, the case of the petitioner is that she did not forfeit her promotion because as per her contention she was unaware of her promotion as Master as the order of promotion was not received in the office of respondent No. 5, where she was posted at the time of issuance of promotion order. Her this plea is substantiated by the explanation tendered by respondent No. 5, forming annexure P-H to the writ petition, by virtue whereof the respondent No. 5 has specifically admitted the factum of non receipt of promotion order of the petitioner. It is specifically stated in the communication that the promotion order has not been dispatched to the School upto February, 2010, and the petitioner had got the promotion order by hand on 03.03.2010 which she claimed to have procured through one Shri Mohammad Ashiq of the establishment section of the office of respondent No. 3. The factual position emanating out of this explanation from respondent No. 5 stares in the face of respondents who have taken the plea that the petitioner herself opted for not availing the promotion as the same ordered her adjustment in the district Ganderbal. The plea, on the face of it, is devoid of merit. The explanation offered by respondent No. 5 knocks out the bottom of the plea taken by the respondents. It is inconceivable that the petitioner would sit silent and not ask for being relieved to join at the new place of posting, if she were aware of her promotion. Admittedly, petitioner did not forego her promotion. In fact there was no occasion for her to decline or forego promotion as the promotion order was never served upon or notified to her. 9. What can be gathered from the above discussion is that the petitioner has not foregone the promotion. As per the stand taken by respondent No. 5 in his explanation, the promotion order was not received in the office of respondent No. 5 upto February, 2010. 9. What can be gathered from the above discussion is that the petitioner has not foregone the promotion. As per the stand taken by respondent No. 5 in his explanation, the promotion order was not received in the office of respondent No. 5 upto February, 2010. The petitioner, upon learning about her promotion, procured a copy of the said order and got herself relieved from the School on 08.03.2010 which was countersigned by none other than the respondent No. 3-CEO, Srinagar. 10. In the aforementioned backdrop and in view of the factual position emerging from the contemporaneous record, it does not lie in the mouth of the respondents that the petitioner did not adhere to the condition laid down in the promotion order, whereby she was supposed to join the new place of posting within a period of seven days. Knowledge could not be imported to the petitioner because the promotion order was given coverage in the print media. Relieving of the petitioner as a sequel to her promotion was within the domain and the responsibility of respondent No. 5, who has offered a plausible explanation for not complying with the order of promotion. It is queer on the part of the respondents to maintain that non-adherence to the terms and conditions stipulated in the order of promotion are attributable to the petitioner and not to respondent No. 5. Objections raised in this regard are repugnant to reason and do not constitute a good ground to defeat the legitimate right of the petitioner to career progression in the form of promotion, to which she is legitimately entitled to. Procedural lapses of non communication of the promotion order cannot be allowed to defeat the service benefits to an employee, more particularly, when no role is ascribed to such employee in non-adherence to its terms and conditions. 11. Viewed thus, this writ petition merits acceptance. I do so accordingly. Writ petition is allowed with the direction to respondent No. 2 to revalidate the order of promotion of the petitioner by providing her all service benefits including the promotion from the date of issuance of the order of promotion, and pass appropriate orders, as expeditiously as possible, preferably within one month, which period shall begin from the date copy of this order is made available to respondent No. 2. 12. Disposed of along with CMP.