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2015 DIGILAW 257 (JK)

Ishrat Ara v. State

2015-05-20

MUZAFFAR HUSSAIN ATTAR

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JUDGMENT : Muzaffar Hussain Attar, J. 1. The petitioner has been awarded Post Graduation Degree by the Kashmir University in the discipline of Biochemistry in the year 1987. 2. The petitioner was appointed as teacher in the year 1990. In view of the post graduation academic qualification of the petitioner, she was asked to teach the chemistry subject to the students of class 10th and 12th. In the year 1995, the petitioner was promoted on ad-hoc basis as Lecturer in the discipline of Chemistry. In terms of Government Order No. 733 Edu. of 2000 dated 6th July, 2000, the petitioner along with other similarly circumstanced candidates was regularized as Lecturer 10+2 in the discipline of Chemistry. 3. It is the case set up in the writ petition that in the year 2002, petitioner learnt about the Government order No. 1098 Edu. of 2000 dated 29th September, 2000, whereunder the regularization order to her extent was rescinded. As per the pleadings of the petitioner, she learnt about the issuance of said order in the year 2002, but the said order was neither communicated nor served upon her. It is this order which has constrained her to file petition on hand. 4. The Court on 20th May, 2002, while issuing notice in the writ petition and CMP directed for maintenance of status-quo with respect to the position of the petitioner till next date. The interim direction thereafter was continued. 5. The respondents, in their reply affidavit, have stated that the impugned order was passed on the ground that petitioner was not Post Graduate in the discipline of Chemistry but had the said degree in the discipline of Biochemistry. 6. During the pendency of the writ petition, the Court sought report from the respondent-University. The respondent-University constituted a committee for examining the case of the petitioner regarding relevance between subjects of Chemistry and Biochemistry. The notice about the constitution of committee was issued on 23rd August, 2011. The committee was requested to give its report within a period of one week. The report of the committee has been placed on record along with compliance report. The committee in its report has observed as under:-- "Department of Chemistry University of Kashmir Notes: Minutes of the meeting regarding court case of Mtr. Shrat Ara. A meet of the following members of the committee constituted to examine the court case of Mtr. The report of the committee has been placed on record along with compliance report. The committee in its report has observed as under:-- "Department of Chemistry University of Kashmir Notes: Minutes of the meeting regarding court case of Mtr. Shrat Ara. A meet of the following members of the committee constituted to examine the court case of Mtr. Ishrat Ara was held on 29th August, 2011 in the office Chamber of Prof. M.A. Qurishi, Department of Chemistry, University of Kashmir, Srinagar. Terms of reference: To ascertain equivalence and relevance of M.Sc. Biochemistry with M.Sc. Chemistry. The case was discussed thoroughly in light of the academic and profession aspect and it was unanimously resolved as under:-- M.Sc. Biochemistry cannot be treated as equivalent to M.Sc. Chemistry, however Biochemistry is an allied subject of Chemistry but not a relevant subject required for recruitment of lecturer in Chemistry. Biochemistry would enjoy the status of a relevant subject viz a viz Chemistry two decades earlier since its prescribed curriculum at that period of time included substantial percentage of Chemistry curriculum. 1. Prof. Khaliquz Zaman Khan Department of Chemistry. 2. Prof. M. Akbar Masood Department of Biochemistry. 3. Prof. K.I. Andrabi. Department of Biotechnology. 4. Prof. Z.A. Reshi. Department of Botany. 5. Prof. M.A. Qurishi. Department of Chemistry. (Chairman)" 7. Perusal of the opinion of the committee reveals that M.Sc. Biochemistry cannot be treated as equivalent to M.Sc. Chemistry. It is, however, stated that Biochemistry would enjoy the status of the relevant subject viz a viz Chemistry two decades earlier since its prescribed curriculum at that period of time included substantial percentage of Chemistry curriculum. 8. The opinion of the expert committee correlates with the period during which the petitioner was undergoing PG Course in the University of Kashmir. 9. In the facts of this case, it can be safely concluded that the subjects in Biochemistry during 1985-1987, were more or less similar to the subjects, which were taught to the students undergoing PG Course in the discipline of Chemistry. 10. The petitioner has been teaching the subject of Chemistry to the students for more than two decades now. It is not the case of the respondents that at any point of time either the students or the institutions, where the petitioner was teaching subject of Chemistry, projected any grievance about the competence of the petitioner. 10. The petitioner has been teaching the subject of Chemistry to the students for more than two decades now. It is not the case of the respondents that at any point of time either the students or the institutions, where the petitioner was teaching subject of Chemistry, projected any grievance about the competence of the petitioner. In turn petitioner has placed on record documentary evidence to show that her teaching capacity has been appreciated. 11. In view of the opinion of experts that two decades earlier the prescribed curriculum of Biochemistry included substantial percentage of Chemistry curriculum, the Court is left with no option but to hold that the petitioner has been validly appointed initially as ad-hoc Lecturer and subsequently regularized as Lecturer in the discipline of Chemistry. 12. The respondent competent Authority when accorded consideration to the case of the petitioner for being promoted temporarily on the post of Lecturer 10+2 in the discipline of Chemistry, must have issued the order only after looking into the credentials of petitioner and after entering into satisfaction about eligibility of petitioner. Same must have been the position when petitioner's services were regularized. The promotion of petitioner is legally valid. 13. The impugned order does not disclose any reason for rescinding the order of regularization, thus, suffers from lack of application of mind and is held to be arbitrary, violating the rights of petitioner guaranteed under Article 14 and 16 of the Constitution. 14. Further non-service of impugned order on petitioner renders the same ineffective and not affecting her right to hold the post of Lecturer 10+2 in the discipline of Chemistry. 15. Besides above, the petition has to succeed on the basis of Judgment of Hon'ble The Supreme Court reported in (1999) 9 SCC 8 . In the said case almost in similar circumstances the appointment of Lecturer was held legal and thus protected. 16. The petitioner having worked continuously as Lecturer for more than two decades and having taught the students Chemistry subject without any complaint from any side and in view of the discussions made hereinabove, this writ petition is bound to succeed. Even at this distance of time the petitioner in law cannot be stripped-off of her status. The respondents are estopped in law to deprive petitioner of her legal status she has attained. 17. Even at this distance of time the petitioner in law cannot be stripped-off of her status. The respondents are estopped in law to deprive petitioner of her legal status she has attained. 17. For the above stated reasons this writ petition along with connected CMPs is disposed in the following manner:-- "By issuance of Writ of Certiorari, the impugned Government Order No. 1098 Edu. of 2000 dated 29th September, 2000 is quashed. The petitioner shall be allowed to continue in service in accordance with rules as Lecturer 10+2 in the discipline of Chemistry and will be entitled to all services benefits in accordance with rules. The respondents are further directed to pay un-paid salary to the petitioner."