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2016 DIGILAW 425 (JK)

Rakesh Sharma v. State of J & K

2016-08-11

R.SUDHAKAR

body2016
JUDGMENT : R. Sudhakar, J. 1. Through the medium of all these writ petitions, petitioners seek following relief’s (wherever applicable in each respective writ petition) as per their respective disciplines and respective Government Polytechnic where they are engaged on academic arrangement for fixed term basis: (a) Issue WRIT OF CERTIORARI quashing the Advertisement Notification having appeared in local English daily namely 'Daily Excelsior' the applications from the eligible candidates belonging to Jammu and Kashmir State for engagement on different posts in ITI’s: (b) Issue WRIT OF PROHIBITION restraining the Respondents from replacing/ substituting the writ petitioners by another set of arrangement/contractual basis: (c) Issue WRIT OF MANDAMUS directing and commanding Respondents to release the consolidated salary for vacation periods with effect from the dates the writ petitioners were engaged in their respective disciplines and respective Government Polytechnic. 2. The writ petitions are admitted. Post admission notice. 3. Mr. Ajay Sharma, Additional Advocate General accepts notice on behalf of respondents. 4. Insofar as relief’s at (a) and (b) sought in these writ petitions are concerned, same has been already covered by the judgment passed by this Court on 14.07.2016 in SWP No. 1525/2013 in case titled Rajani Kumar Vs. State of J & K & others along with connected matters while placing reliance upon judgment reported in 2008 (2) JKJ 550 , 2009 (2) JKJ 173 , AIR 1991 SC 223. Para Nos. 13, 14 to 18 & 20 and of which reads as under: "13. As far as the third relief Sr. No. (C) to quash the Advertisement Notifications for the years 2012-13 and 2013-14, as the case may be, is concerned, the period of Advertisement which is challenged, is already over. In the case of some of the petitioners, their status, i.e., employment is by virtue of interim direction of this Court, till the next date of hearing before the Bench. It has to be considered by the Department concerned after the expiry of the terms as the appointments were made on academic arrangement basis. This relief becomes infructuous by efflux of time. 14. The next relief Sr. No. (D) to prohibit the respondents from replacing/substituting the petitioners by another set of contractual appointee or by transferring regularly recruited Lecturers from one institution to another till their cases for confirmation/regularization against the post of Lecturers are considered by the Empowered Committee constituted under Section 10 of the Act. 14. The next relief Sr. No. (D) to prohibit the respondents from replacing/substituting the petitioners by another set of contractual appointee or by transferring regularly recruited Lecturers from one institution to another till their cases for confirmation/regularization against the post of Lecturers are considered by the Empowered Committee constituted under Section 10 of the Act. This prayer has three aspects. One is the confirmation and second is the regularization. Ist two parts of the prayer are (4) inapplicable in the case of these petitioners as their appointments were made on academic arrangement basis. The third aspect is replacing contract employees by another set of contract employees. 15. This Court has taken a view in case titled Vidhu Puri & Ors. Vs. State thr. Higher & Tech. Edu. Deptt. & Ors. and batch of cases (SWP No. 209/2003 and connected matters) decided on 04-07-2016 on the basis of decisions considered and declined in Division Bench case titled State of J & K Vs. Afshan Majid, reported as 2008 (2) J.K.J. 550 , which decision was again followed by the Single Judge, to be more specific in the case titled Suman Sharma Vs. State of J & K, reported as 2009 (2) J.K.J. 173 . The same was followed in subsequent decisions. This Court also followed in its earlier decision in batch of writ petitions, lead case as SWP No. 209/2003, Vidhu Puri & Ors. Vs. State thr. Higher & Tech. Edu. Deptt. & Ors., decided on 14-07-2016. 16. It is the case of respondents that they are not resorting to such a procedure of replacing contract teachers/lecturers by another set of contract teachers/lecturers. The engagement is need based. In any event, the lecturers on contract or engaged on academic arrangement cannot seek to restrain the government from engaging lecturers on contract engagement or academic arrangement as they themselves are beneficiary of such procedure. This issue becomes academic because petitioners are appointed on academic arrangement. 17. On this issue also, Courts have taken a view to safeguard ousting of contract engagements only for the purpose of accommodating new incumbents on contract basis. In this regard, it will be useful to refer judgment of Hon'ble Supreme Court in case titled State of Haryana Vs. Piara Singh and Others reported as AIR 1991 SC 223 referring to the following observations: ............. In this regard, it will be useful to refer judgment of Hon'ble Supreme Court in case titled State of Haryana Vs. Piara Singh and Others reported as AIR 1991 SC 223 referring to the following observations: ............. In State of Haryana Versus Piara Singh, 1992 (4) SC 118 of 152, this Court had held that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad-hoc or temporary appointments may be made in such situation, this Court held that efforts should always be made to replace such ad-hoc or temporary employee by regularly selected employees, as early as possible. Temporary employees also would get liberty to compete along with others for regular selection but if he does not get selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidates cannot be withheld or kept in abeyance for the sake of such an ad-hoc or temporary employee. Ad-hoc or temporary employee should not be replaced by another ad-hoc or temporary employee. He must be replaced only by regularly selected employee. 18. The said ratio will apply to the petitioners only if they are sought to be replaced by another set of teachers/lecturers on academic arrangement. 20. This Court hastens to hold that academic arrangement teachers/lecturers cannot seek to hold on to their post for ever. If they are found not to be up to the mark or efficient then their continuation will be a question mark. It is for the authorities to decide the best course of action in a non-arbitrary manner. If academic arrangement teachers/lecturers seek extension then they have to make a representation for considering the extension of service, which can be considered on its own merits." 5. So far as relief (c) is concerned, same is covered by the judgment rendered by this Court in Rajani Kumari's Case (supra), para Nos. 24 and 25 of which read as under: "24. The last prayer Sr. No. (E) is with regard to release of consolidated salary for the vacation periods with effect from the dates the petitioners were engaged as Lecturers in Government Degree Colleges. 24 and 25 of which read as under: "24. The last prayer Sr. No. (E) is with regard to release of consolidated salary for the vacation periods with effect from the dates the petitioners were engaged as Lecturers in Government Degree Colleges. For this relief, learned counsel for the petitioners submitted that the Hon'ble Supreme Court has strongly deprecated the process of appointment of teachers on ad-hoc basis on the commencement of the year and terminating their services at its end, thus denying them the salary for vacation period. Mr. Chauhan, learned counsel for the petitioners, relied upon two judgments rendered by Hon'ble Supreme Court in cases titled Rattan Lal and others Vs. State of Haryana and others, reported as (1985) 4 SCC 43 (Para 3) : AIR 1987 SC 478 ; and Sri Rabinarayan Mohapatra Vs. State of Orissa & Ors., reported as AIR 1991 SC 1286 (Paras 8 & 9). 25. In Rattan Lal's case (supra), their Lordships held in paragraph 3 as under:- 3. We strongly deprecate the policy of the State Government under which ad hoc' teachers are denied the salary and allowances for the period of the summer vacation by resorting to the fictional breaks of the type referred to above. These ad hoc' teachers shall be paid salary and allowances for the period of summer vacation as long as they hold the office under this order. Those who are entitled to maternity or medical leave, shall also be granted such leave in accordance with the rules. 6. In the light of the above decisions, it is for the petitioners to approach the Authority concerned by way of a representation in this behalf. The same may be considered having regard to the facts and circumstances of the petitioners' cases, within a reasonable period. 7. Hence, the writ petitions stand disposed of in the above terms. Disposed off.