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J&K High Court · body

2016 DIGILAW 354 (JK)

Rameshwar Kumar and ors. v. State of J&K and ors.

2016-07-14

RAMALINGAM SUDHAKAR

body2016
JUDGMENT 1. This writ petition is of the year 2003. 2. Three petitioners-Rameshwar Kumar, Sunit Kumar and Satish Chander are aggrieved of the Govt. Order No. 735-Edu. of 1999 dated 20.05.1999 whereby respondent No. 4 has been regularized/promoted as Lecturers in the discipline of Geology w.e.f. 17.04.1989. The said order was challenged in SWP No. 1980/99 (Review (SW) 17/2001) and pursuant to which impugned order dated 06.03.2003 has been passed, which reads as follows- “Whereas the case was examined and referred to the Director School Education, Jammu for furnishing the service particulars of these petitioners viz-a-viz the private respondents. Whereas, the Director, School Education, Jammu furnished the service records of these petitioners viz-a-viz private respondents and from perusal of the said records, the following are the service particulars of the petitioners and the private respondents as per details shown against. S. No.Name of the LecturerD.O.BD.O Apptt.Date of promotion as MasterYear of passing PGDate from Which promoted as Lect. S/Sh. 1.Om parkash7.11.513.10.7730.4.88197617.4.89 2.Ramesh Kumar14.5.5210.8.7830.4.88197612.9.91 3.Suniit Kumar10.4.539.107830.4.88197821.10.94 4.Satish Chander25.1.524.12.7830.4.88197721.10.94 5.Rajinder Pal22.10.538.10.8030.4.88198117.4.89 Whereas from the above service particulars, it has been established that Sh. Rajinder Pal Sharma is junior to three petitioners by virtue of appointment as Teacher and having passed P.G after these three petitioners so he was ought to have been promoted/regularized as Lecturer in Geology w.e.f. 21.1.94 instead of 17.4.89) i.e. date when his seniors was given). While as the private respondent No. 4 Sh. Om Parkash is over all senior to three petitioners and private respondent No. 1 Sh. Rajinder Pal Sharma by virtue of appointment as Teacher, so his regularization/promotion date w.e.f 17.4.89 is correct and needs no change/review. Whereas the case/claim, of the petitioners has been examined in the Education Department with reference to the representation and it has been felt that since the regularization/promotion of private respondent No. 2 Sh. Rajinder Pal as Lecturer Geology made vide Govt. Order No. 735-Edu of 1999 dated 20.05.1999 w.e.f 17.04.89 has been advertently ordered, which needs to re-examined/rectified and he was due to be regularized/promoted w.e.f 21.10.94 instead of 17.4.89. Now therefore, in pursuance of High Court order dated 17.7.2001 and 3.9.2001 passed in the above service Writ Petition, it is hereby ordered that Sh. Rajinder Pal Sharma, Lecturer Geology Higher Secondary School, Udhampur shall be deemed to have been promoted/regularized as Lecturer in Geology w.e.f 21.10.94 instead of 17.4.89.” 3. Now therefore, in pursuance of High Court order dated 17.7.2001 and 3.9.2001 passed in the above service Writ Petition, it is hereby ordered that Sh. Rajinder Pal Sharma, Lecturer Geology Higher Secondary School, Udhampur shall be deemed to have been promoted/regularized as Lecturer in Geology w.e.f 21.10.94 instead of 17.4.89.” 3. The controversy raised by the petitioners is that all the three petitioners came to be appointed as Teachers in School Education, Department in the year 1978 and respondent No. 4 came to be appointed as Teacher in the year 1977. Thereafter in the year 1986, for the posts of Masters advertisement was issued by the Service Selection Recruitment Board. The petitioners and private respondents applied for selection as Masters and were selected. Select list is Annexure –’A’ to the petition. In the said select list petitioner No. 1-Rameshwar Kumar figures at serial No. 3, petitioner No. 2-Sunit Kumar at serial No. 10, petitioner No. 3 is at serial No. 50, whereas respondent No. 3-Rajinder Pal Sharma is at serial No. 71 and respondent No. 4-Om Parkash Sharma figures at serial No. 20. In fact respondent No. 4 is senior to petitioner No. 3 and petitioner Nos. 2 and 3 are senior to respondent No. 4. They were appointed as Masters consequent to the Service Selection Recruitment Board proceedings on 30.04.1988 i.e. to say all the petitioners and respondents 3 and 4 were appointed as Masters on 30.04.1988. 4. In that appointment order position of the selected candidates remained unchanged and confirmed for all practical purposes. Petitioner No. 1 is at serial No. 2 in the Male category, petitioner No. 2 is at serial No. 4, petitioner No. 3 is at serial No. 21 in the Male category and respondent Nos. 3 and 4 are at serial No. 27 and 8 respectively, in the said category. 5. Thereafter in the course of their employment, it appears that the posts of Lecturer fell vacant in various Schools and some of the petitioners and respondent No. 3 were placed as in-charge lecturers and thereafter they were regularized as Lecturers. Thereafter the present controversy arose. 6. The petitioners filed first round of writ petition as mentioned earlier seeking to correct the anomaly in the post of Master and that the date of regularization as Lecturers should be in accordance with that of the select list and not otherwise. Thereafter the present controversy arose. 6. The petitioners filed first round of writ petition as mentioned earlier seeking to correct the anomaly in the post of Master and that the date of regularization as Lecturers should be in accordance with that of the select list and not otherwise. This Court showed indulgence by directing the official respondents to re-consider the issue and consequently the impugned order was passed. 7. The issue in controversy is whether the date of promotion/regularization of respondent No. 4 –Om Parkash as 17.04.1989 could be justified, when the date of promotion/regularization of petitioner No. 1-Rameshwar Kumar is shown as 12.09.1991, petitioner No. 2-Sunit Kumar notionally from 21.10.1993 and regular from 17.01.1996 and petitioner No. 3-Satish Chander Sharma notionally from 21.10.1994 and regular from 17.01.1996, which is much later. They all were appointed as Masters on 30.04.1988. 8. To address this anomaly the Government was directed to relook into the issue and in the impugned order the relevant portion which has been extracted above, the case of respondent No. 3-Rajinder Pal Sharma was corrected and it is ordered that he shall be deemed to have been promoted/regularized w.e.f. 21.01.1994 and not on 17.04.1989. 9. In this view of the matter, learned counsel for the petitioners today made an endorsement that he seeks no relief as against respondent No. 3-Rajinder Pal Sharma and he has also amended the relief portion in the writ petition today. Therefore, the controversy is only with regard to respondent No. 4- Om Parkash. 10. Looking at the controversy in the manner the Government has addressed this issue, it is evident that based on service particulars insofar as respondent No. 4-Om Parkash is concerned, the Government has taken a view that he is overall senior to the three petitioners and also to private respondent No. 3-Rajinder Pal Sharma by virtue of appointment as Teacher, so his regularization/promotion date w.e.f. 17.04.1989 is correct. 11. This finding is an error on the face of record, because of the reason that the date of appointment as Master of all the three petitioners and that of respondent Nos. 3 & 4 is relevant for the purposes of present case, because all of them were appointed as Masters in an examination conducted by the Service Selection Recruitment Board as direct recruits. Therefore, the date of appointment as Masters i.e. 30.04.1988 is the relevant date. 3 & 4 is relevant for the purposes of present case, because all of them were appointed as Masters in an examination conducted by the Service Selection Recruitment Board as direct recruits. Therefore, the date of appointment as Masters i.e. 30.04.1988 is the relevant date. The seniority of these persons is revealed in their appointment order/select list. 12. The Promotion to the post of Lecturer was not made initially, it was an in-charge appointment. The question of regularization in the higher post would be based on the position of these persons figuring in the select list of Masters. That cannot be bypassed. On the contrary, on a direction by this Court while reviewing the case, the Government proceeded on the premise that respondent No. 4-Om Parkash is senior to all the petitioners by virtue of appointment as Teacher. This finding is an error on the face of record. It is an erroneous reason, as the appointment to the post of Master from where they are taken as Lectures was on the basis of Service Selection Recruitment Board examination. The appointment of these persons as Teacher has no relevance. The promotion/regularization will be, therefore, relevant only from the date of appointment as Masters (i.e.) w.e.f. 30.04.1988 and that is not disputed by the Government or by the Education Department. Such being a case, the Government proceeded on the wrong premise. 13. As a result the impugned order is set aside and the Government is directed to fix the seniority and regularization of the petitioners reckoned on the basis of the date of appointment of these persons as Masters and not otherwise. 14. Writ petition is ordered, accordingly.