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2016 DIGILAW 584 (JK)

Majid Alyas v. State of Jammu and Kashmir

2016-11-09

N.PAUL VASANTHAKUMAR, TASHI RABSTAN

body2016
JUDGMENT : N. Paul Vasanthakumar, J. These appeals as well as writ petitions are tagged together by the order of this Court dated 19.10.2016 as the issue involved in these matters is one and the same. 2. The case of the writ petitioners before the Writ Court was that they were initially engaged as Rehbar-e-Taleem teachers under Rehbar-e-Taleem scheme and on completion of five years of service as Rehbar-e-Taleem they were regularized as General Line Teachers. Once they became General Line Teachers, the Statue, namely, the Jammu and Kashmir School Education Subordinate Services Rules, is applicable to them and they are entitled to be treated at par with other permanent government teachers and their service conditions are to be regulated by the J&K Civil Service (Classification, control and appeal) Rules, 1956 As per Rule 27 of the above said 1956 Rules an employee including a teacher serving in the Education Department, is required to be transferred from one place to another on the post and cadre on which he is borne in and there cannot be any separate Rule providing separate provision for transfer of teachers on the basis of their birthmark/entry into service. As per the Jammu and Kashmir Education Subordinate Service Rules, a teacher is entitled to be transferred anywhere in the District against the post of a teacher. 3. According to the petitioners, contrary to the said settled principle, the teachers who were initially appointed as Rehbar-e-Taleem and were regularized as General Line Teachers, were treated as a separate class and they were posted by transfers in the very same schools where they were serving as Rehbar-e-Taleem and the said order was challenged before this Court and same was set aside by a learned Single Judge of this Court in the decision reported in 2010 (3) JKJ 175 (Jyoti Gupta and others v. State of J&K and others). It was held in the said judgment that the condition No.6 mentioned in the transfer policy not to transfer the Rehbar-e-Taleem teachers even after regularization of their service as General Line Teachers as their appointment being school specific, is ultra virus to the Jammu and Kashmir Educational (Subordinate) Services Recruitment Rules, 1992. It was held in the said judgment that the condition No.6 mentioned in the transfer policy not to transfer the Rehbar-e-Taleem teachers even after regularization of their service as General Line Teachers as their appointment being school specific, is ultra virus to the Jammu and Kashmir Educational (Subordinate) Services Recruitment Rules, 1992. The said order was challenged before the Division Bench in LPASW No.108 of 2010 and connected appeals and during the pendency of the-letters patent appeals, the government itself modified the Rule, holding that the Rehbar-e-Taleem Teachers regularized on completion of 5 years of service and absorbed as General Line Teachers can work within the District. Noticing the said change of policy taken during pendency of the L.P. appeals, the appeals were disposed of as infructuous. 4. It is also the case of the writ petitioners that again the issue came up for consideration of this Court in the decision reported in 2012 (1) JKJ 205 (Sakeena Akhter v. State and others) wherein also learned Single Judge of this Court held that there is no Rule in the Rehbar-e-Taleem scheme that after absorption as General Line Teacher the appointees has to continue to work in the same school where he/she was engaged as Rehbar-e-Taleem and having become the member of J&K Educational (Subordinate) Services, such teachers can be transferred from one place to another within the district. It is the contention of the petitioners that after the said decision was rendered by this Court, the State Cabinet considered the issue and took a policy decision in Cabinet Decision No.115/09/2014 dated 19 06 2014 and thereafter Govt. Order No.469-Edu of 2014 dated 2506.2014 was issued. The said decision was inconsonance with Rule ~7 of the-Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Thereafter another order was issued in Govt. Order No.622-Edu of 2015 dated 22.12.2015 whereby the Rehbar-e-Taleem Teachers were kept out of the purview of the transfer policy. The said clause, namely Clause 17 in the said government order was also challenged and this Court has granted stay. 5. Thereafter another order was issued in Govt. Order No.622-Edu of 2015 dated 22.12.2015 whereby the Rehbar-e-Taleem Teachers were kept out of the purview of the transfer policy. The said clause, namely Clause 17 in the said government order was also challenged and this Court has granted stay. 5. According to the petitioners, contrary to the said cabinet decision dated 19.06.2014, which culminated in issuance of government order No.469-Edu of 2014 dated 25.06.2014 and without getting any orders from the Cabinet or Government, the Chief Education Officers have issued circulars stating that the Rehbar-e-Taleem Teachers being regularized as General Line Teachers on completion of 5 years service, having been appointed initially in school specific, they are repatriated to serve in the same school where they served as Rehbar-e-Taleem and consequently transfer orders were also issued. The said circulars as well as orders were challenged in the writ petitions and the learned Single Judge dismissed the two writ petitions namely SWP Nos. 2088/2016 and 2089/2016 by orders dated 28.09.2016 and against the said dismissal orders LPASW No 129/2016 and 138/2016 are preferred. 6. As stated supra, when these appeals were posted for admission, a Division Bench while granting stay of the order of the Writ Court tagged all the writ petitions and directed hearing of the appeals and writ petitions together by order dated 19.10.2016. 7. 6. As stated supra, when these appeals were posted for admission, a Division Bench while granting stay of the order of the Writ Court tagged all the writ petitions and directed hearing of the appeals and writ petitions together by order dated 19.10.2016. 7. The learned senior counsel and other learned counsels appearing for the appellants as well as the writ petitioners contended that once the Rehbar-e-Taleem are regularized on completion of 5 years of service as General Line Teachers, they cannot be discriminated on the basis of their birth mark and once they become teachers, they are entitled to get seniority, promotion and other service conditions in terms of the Rules applicable to the teachers appointed directly and said Issue having been considered by this court in the above referred judgments, the Chief Education Officers or even the Government has no jurisdiction to treat the teachers, who are regularized on completion of 5 years of service as Rehbar-e-Taleem differently and the General Line Teacher post being a district cadre post they are also entitled to be transferred to any school within the district by the Chief Education Officer concerned and repatriating the petitioners only on the ground that they were regularized as Teachers on completion of 5 years of service as Rehbar-e-Taleem is discriminatory, arbitratory and ultra virus to the Jammu and Kashmir Educational (Subordinate) Services Recruitment Rules, 1992. 8. The learned Advocate -General, on the other hand, submitted that Rehbar-e-Taleem are appointed under the Scheme and merely because their services were regularized as General Line Teachers after completion of 5 years, they cannot plead that they will not serve in the schools where they were initially appointed as Rehbar-e-Taleem as the teachers appointed are bound to serve in any school and there is nothing wrong in repatriating the petitioners to the schools where they served as Rehbar-e-Taleem. The learned Advocate General made an alternate- submission that even assuming that the word “repatriation” used is bad, the impugned orders can be treated as order of transfer simpliciter and in that event the petitioners cannot make any grievance. 9. The learned Advocate General made an alternate- submission that even assuming that the word “repatriation” used is bad, the impugned orders can be treated as order of transfer simpliciter and in that event the petitioners cannot make any grievance. 9. Learned senior counsel and other learned counsels appearing for the writ petitioners on the hand, submitted that if the transfer orders are treated as mere orders of transfer without repatriation, the appellants/petitioners are entitled to be transferred to some other place on completion of their normal tenure of posting and the department cannot compel to service them in school specific. 10. We have heard respective counsels appearing for the parties, considered t.0e rival submissions, the documents and judgments placed on record. 11. For deciding the issue as to whether the respondents can treat the appellants/petitioners as a different class merely because they became the members of the teaching staff on being regularized on completion of 5 years of service as Rehbar-e-Taleem, it is just and proper to refer to the Rehbar-e-Taleem Scheme. The said scheme was issued in Government Order No.396-Edu of 2000 dated 28.04.2000. Eligibility prescribed for appointment as Rehbar-e-Taleem is that one should be a permanent resident of the State and belonging to the village where there is assessed deficiency of staff apart from educational and age qualification and they will be paid honorarium. A clause is made in the said government order regarding regularization of such Rehbar-e- Taleem, which reads thus:— “On the satisfactory completion of five years as Rehbar-e-Taleem on honorarium basis, the candidate shall be eligible for appointment as General Line Teacher in the Education Department for this purpose VLC shall have to furnish a certificate about the satisfactory performance of the teacher and highlighting the specific achievements and his/her overall conduct. At the time of consideration for formal appointment in the Government, if a teacher is found not to fulfil age qualification, then his/her employment would be on contractual basis for future” 12 The regularization orders granted to the appellants/petitioners on completion of 5 years service as Rehbar-e-Taleem nowhere stipulates a condition that on regularization they shall serve the school where they served as Rehbar-e-Taleem. Thus, learned senior counsels appearing for the appellants/writ petitioners were justified in contending that on regularization of appellants/petitioners as General Line Teachers, they became members of J&K Educational (Subordinate) Service and they cannot be treated differently based on their entry into the service as teachers namely birth mark. 13. It is not in dispute that Government order No.27-Edu of 2010 dated 12.01.2010 making a condition that Rehbar-e-Taleem shall not be transferred even after regularization of their services as General Line teachers as their appointment is school specific, was held ultra virus to Jammu and Kashmir Educational (Subordinate) Service Rules, 1992 by judgment of this Court reported in 2010(3) JKJ 175 [Jyoti Gupta v. State and others]. Even though the L.P. appeals were preferred, the said judgment was not set aside and the same were rendered infructuous because the Government though it fit to remove the said clause. The same view is taken in the decision reported in 2012 (1) JKJ 205 (HC) (Skeena Akhtar v. State and Ors.). It is settled proposition of law that once persons are appointed in the cadre their service conditions are to be governed under the Rules applicable to the said cadre. The said Issue was already considered by Hon’ble the Supreme Court in the decision reported in AIR 2015 SC 1777 (Union of India and Anr. v. Atul Shukla etc.) In the said judgment it is categorically held that classification of employees based on their recruitment has long since been declared impermissible by Courts. In paragraph 17 of the said judgment it is held thus:— “17. ..............................Classification of employees based on the method of their recruitment has long since been declared Impermissible by this Court. There can be no differential treatment between an employee directly recruited vis-a-vis another who is promoted. So long as the two employees are a part of the same cadre, they cannot be treated differently either for purposes of pay and allowances or other conditions of service, Including the age of superannuation. .............................. The underlying principle is that so long as the officers are a part of the cadre, their birth marks based on how they joined the cadre is not relevant. .............................. The underlying principle is that so long as the officers are a part of the cadre, their birth marks based on how they joined the cadre is not relevant. They must be treated equal in all respects salary other benefits and the age of superannuation included.” (Emphasis added) In paragraph 23 of this judgment the Hon’ble Supreme Court while relying on an earlier decision reported in (1999) 4 SCC 756 ( Kamlakar and Ors. v. Union of India and Ors.), held thus:— 23. In Kamlakar and Ors. v. Union of India and Ors. (1999) 4 SCC 756 , this Court was examining whether a distinction could be made between direct recruits and promotees as regards equal treatment In the matter of pay scales admissible to them. Rejecting the contention that such distinction would be Justified this Court held that once officers are placed in one cadre the distinction between direct recruits and promotees disappears. The birthmarks have no relevance for classification of Data Processing Assistants who are directly recruited and others who are promoted This Court observed “12. ......Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given IS concerned. The birthmarks have no relevance in this connection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale - which were matters common to all of them before the impugned order of the Government of India was passed on 2-7-1990, — then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is not permissible. We, therefore, reject the respondents’ contention.....” 14. Thus, it is evident that respondents cannot treat the appellants/petitioners, who were regularized as General Line Teachers on their satisfactory completion of 5 years service as Rehbar-e-Taleem, differently. Thus, circulars/transfer orders stating that the petitioners are repatriated to the schools where they served as Rehbar-e-Taleem is erroneous and unsustainable. 15. We, therefore, reject the respondents’ contention.....” 14. Thus, it is evident that respondents cannot treat the appellants/petitioners, who were regularized as General Line Teachers on their satisfactory completion of 5 years service as Rehbar-e-Taleem, differently. Thus, circulars/transfer orders stating that the petitioners are repatriated to the schools where they served as Rehbar-e-Taleem is erroneous and unsustainable. 15. Insofar as the contention of the learned Advocate General that the petitioners were transferred to schools where there was no teacher, for administrative exigency taking note of the interests of the students and even assuming that they are not to be repatriated, the orders can be treated as orders of transfer simpliciter for which the respondents-Chief Education Officers are empowered as per Rules, has got substance. Admittedly, on regularization, the appellants/writ petitioners have become teachers in the cadre and they are subject to transfer within the district in terms of Rule 27 of the Jammu & Kashmir (Classification. Control and Appeal) Rules, 1956 or any transfer policy. Thus, they cannot oppose their transfer within the District. Learned senior counsel and other learned counsels appearing for the appellants/petitioners fairly submitted that if the impugned orders are treated as transfer orders simpliciter without repatriation, the appellants/petitioners are willing to serve the schools like other teachers, who are appointed directly as they are eligible to be transferred to other schools after completing their normal tenure of service. 16. Some of the learned counsels appearing for the petitioners argued that the schools where the appellants/writ petitioners have been repatriated/transferred are closed now due to want of students, as such they cannot be asked to serve in a school where there is no student. The learned Advocate General replied to the said submission that the students in some of the schools were adjusted in nearby schools for want of teachers and the department will sent back the students to the earlier schools so as to enable the teachers now posted in such schools to serve there. The said statement is recorded. 17. The learned Advocate General replied to the said submission that the students in some of the schools were adjusted in nearby schools for want of teachers and the department will sent back the students to the earlier schools so as to enable the teachers now posted in such schools to serve there. The said statement is recorded. 17. Considering the said submission, this Court is of the view that such of the writ petitioners who have been transferred to the schools where there is no student available and if students were admitted In nearby schools are not sent to the schools, where the appellants/writ petitioners are transferred and posted, it is open for such “of those writ petitioners to make a representation before the Chief Education Officer concerned to post them in any other school and if any such representation is submitted, the same shall be considered by the concerned Chief Education Officer within a period of two weeks from the date of receipt of such representation. 18. It is made clear that if the schools where some of the appellants/petitioners are transferred and posted are not having any student, due to which they could not join, such of those teachers shall be paid salary for the entire period till they are accommodated in other schools or provision is made to serve in those schools by sending back the students. 19. The order of the learned Single Judge is set aside. The appeals and the writ petitions are allowed as indicated above. No costs.