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2018 DIGILAW 390 (JK)

S. K. Mumtaz Ali v. State of J&K

2018-06-05

SANJEEV KUMAR

body2018
JUDGMENT : 1. The Zonal Education Officer, Rajwar, respondent No.4 vide its notification No.3180-94 dated 06.06.2013 invited applications from eligible candidates for engagement as Rehbar-e-Taleems in RBA/ALC/ST areas on village level. The two posts of Rehbar-e-Taleem teachers were notified to be filled in the High School, Rajpora of revenue village Rajpora. The selection was to be made in terms of Government Order No.635-Edu of 2010 dated 04.08.2010 read with Government Order No.522-Edu of 2013 dated 08.05.2013. Subsequently after a gap of about two months, respondent No.4 cancelled the aforesaid advertisement notification citing administrative and technical reasons. This was done by respondent No.4 vide its corrigendum bearing No.3434-38 dated 12.08.2013. A bare look at the corrigendum dated 12.08.2013 would reveal that at Serial No.5 instead of High School, Rajpora respondent No.4 mentioned the school as Primary School, Rajpora, detached wing of High School, Rajpora. 2. Be that as it may, respondent No.4 approached respondent No.3 vide his letter No.3693 dated 20.09.2013 with a request that the cancellation order may be reviewed as he had found the posts/slots mentioned in its notification dated 06.06.2013 for engagement of Rehbar-e-Taleems as genuine and in conformity with Government Order No.635 dated 04.08.2010 and Government Order No.522 dated 08.05.2013. Responding to the request of respondent No.4, respondent No.3 advised the respondent No.4 to fill up the posts already advertised by him in terms of his notification dated 06.06.2013, if the same were not de hors the aforesaid two government orders on the subject. The respondent No.4, accordingly, proceeded with the selection process, prepared the panel for High School, Rajpora and selected the petitioners. The selection of the petitioners, it is submitted, was approved by respondent No.2 and as a consequence whereof, formal orders of engagement of the petitioners as Rehbar-e-Taleem in Primary School, Rajpora were issued by respondent No.4 on 25.11.2013. 3. After the conclusion of the selection process and engagement of the petitioners as Rehbar-e-Taleems, a complaint was filed by the then MLA Handwara against respondent No.4 for making the engagement of Rehbar-e-Taleems in Rajwar zone de hors the provisions of Government Order Nos.635 dated 04.08.2010 and 522 dated 08.05.2013. The complaint was filed before the respondent No.2 who constituted an enquiry committee to look into the matter vide order No.DSEK/OSD/IMW/2714 dated 19.02.2014. The Enquiry Committee constituted by respondent No.2 submitted its report on 11.08.2014. The complaint was filed before the respondent No.2 who constituted an enquiry committee to look into the matter vide order No.DSEK/OSD/IMW/2714 dated 19.02.2014. The Enquiry Committee constituted by respondent No.2 submitted its report on 11.08.2014. It is pleaded by the respondents that another complaint was also lodged against respondent No.4 by the Teachers Forum, Rajpora through Sh. Naeem Akhter, the then MLC with the vigilance commission. The respondent No.2 constituted another Enquiry Committee vide order No.978-DSEK of 2015 dated 08.04.2015. The Enquiry Committee submitted its report with the findings that out of eighteen Rehbar-e-Taleem slots notified for selection by respondent No.4 only seven were genuine whereas rest of the eleven were not genuine. The Committee also recommended stern action to be initiated against the then Zonal Education Officer, Rajwar zone. 4. Acting upon the enquiry report submitted by the Committee constituted vide order dated 08.04.2015, respondent No.2’s vide its communication No.DSEKIMW/KUP/ 24/2014 dated 18.06.2015 called upon respondent No.3 to initiate requisite action against the delinquent as also disengage the Rehbar-e-Taleem engaged by respondent No.4 in violation of the norms. It is this communication of respondent No.2, which is called in question by the petitioner in this petition. 5. The communication has been challenged primarily on the ground that the same is in violation of the principles of natural justice, for, no opportunity of being heard was provided to the petitioner before directing their disengagement. On behalf of the petitioners, it is argued that the petitioners came to be engaged as Rehbar-e-Taleem after they participated in the selection process conducted by respondent No.4 and that the illegality, if any, in the process of selection is not attributable to them. The impugned communication has, therefore, taken away their vested right to continue in service as Rehbar-e-Taleem, that too, without even affording them an opportunity of being heard. The impugned communication has also been assailed on the ground that the same is not sustainable being issued in violation of the principles of natural justice and thus, infracting the right of equality available to the petitioners under Article 14 and 16 of the Constitution of India. 6. The impugned communication has also been assailed on the ground that the same is not sustainable being issued in violation of the principles of natural justice and thus, infracting the right of equality available to the petitioners under Article 14 and 16 of the Constitution of India. 6. Learned counsel for the petitioners also backed satisfied the engagement of petitioners on the ground that there was no illegality or irregularity committed by respondent No.4 who selected the petitioners as Rehbar-e-Taleem after holding a full fledge selection process giving full opportunity to all eligible candidates to participate. 7. The respondents have filed their reply in which they have given the whole sequence of events leading to the issuance of the impugned communication. The impugned communication has been sought to be justified by the respondents on the ground that the regular post of teacher available in the High School cannot be filled up on Rehbar-e-Taleem pattern by having resort to Government Order Nos. 635 of 2010 and 522 of 2013. The respondent No.4 acting illegally and maliciously separated the primary wing of the High School, Rajpora of his own and virtually created a primary school out of the High Schol and filled up the vacancies available in the High School on the pattern of Rehbar-e-Taleem by seeking refuse under Government Nos. 635 of 2010 and 522 of 2013 (supra). 8. On behalf of the respondents, it is urged that the enquiry committee constituted by respondent No.2 looked into the matter thoroughly and found that respondent No.4 had illegally detached the primary wing of the High School, Rajpora and created a primary school, Rajpora of his own so as to facilitate the engagement of petitioners as Rehbar-e-Taleems in the aforesaid school. It is contended that since the appointment of petitioners was as a result of a fraud committed by the then Zonal Education Officer, Rajwar, therefore, there was no necessity of putting the petitioners to notice and provide them an opportunity of being heard. 9. Having head the learned counsel for the parties and perused the record, I am of the considered opinion that the petitioners have no case. Before I deal with the rival contentions, it is necessary to first take note of the salient features of Rehbar-e-Taleem Scheme particularly two government orders in question. 9. Having head the learned counsel for the parties and perused the record, I am of the considered opinion that the petitioners have no case. Before I deal with the rival contentions, it is necessary to first take note of the salient features of Rehbar-e-Taleem Scheme particularly two government orders in question. The Rehbar-e-Taleem Scheme was launched in the year 2000 vide Government Order No.396- Edu of 2000 dated 28.04.2000 with the object of promoting the decentralized management of elementary education with the community participation and involvement; to ensure accountability and responsiveness through supervision by the community; and to operationalize effectively the schooling system at the grass root level. In the Scheme, it was clearly envisaged that the Rehbar-e-Taleems would be engaged to make up the deficiency of staff at the elementary level of education. It is further provided in the Scheme that for making engagement of Rehbar-e-Taleems, the sine qua non would be to assess requirement of teachers in the primary/middle schools by the village level committee concerned. 10. From the careful reading of the Scheme launched in the year 2000 referred to herein above, it is abundantly clear that the Scheme was meant to provide Rehbar-e-Taleems to make up the deficiency in the primary/middle schools so as to provide a local support system at the elementary level of education. It is because of this reason this Scheme was implemented throughout the length and breadth of the State only in the primary and middle schools and was not extended to the High Schools. The relevant extract of the Scheme, which is relevant in the context of controversy raised in this petition, is reproduced herein above:- “Concept of Rehbar-e-Taleem The person to be provided to make up the deficiency of the staff at the elementary level of education will be designated as “Rehbar-e-Taleem”. The underlying objective is to posit the role of the teaching guide as catalyst for quality education and to ensure the overall development of the personality of the children. Drawn from the local community, the accountability of the teacher called as “Rehbar-e-Taleem” would be immediate providing for constant interface and interaction with the community to secure universal enactment and to check the incidence of drop outs. Drawn from the local community, the accountability of the teacher called as “Rehbar-e-Taleem” would be immediate providing for constant interface and interaction with the community to secure universal enactment and to check the incidence of drop outs. Rule of Village Level Committee ………………………… i/ VLC shall assess the requirement of teachers in the Primary/Middle Schools within the area of their operation in due regard to the approved norms of staffing and the Roll. On the basis of the said assessment, VLC would draw up a panel of eligible qualified persons from the village…………..” 11. That after the objects underlined in the Scheme were achieved by the Government, the Scheme was closed but later on it was extended, though to a limited extent, to schools which were situated in socially and educationally backward areas and in areas near the line of Control identified under the J&K Reservation Rules. Government Order No.635-Edu of 2010 dated 04.08.2010 and 522-Edu of 2013 dated 06.05.2013 are relevant in this regard and the same are reproduced as under:- Extract of Government Order No.635-Edu of 2010 dated 04.08.2010 “Sanction is hereby accorded to filling up of regular vacancies of teachers in Socially and Educationally Backward Areas and in areas near Line of Actual Control identified under the J&K Reservation Rules on the pattern of Rehbar-e-Taleem Scheme prospectively for a period of two years in the first instance; provided that in case of the habitations predominantly inhabited by SC/ST population, only the candidates belonging to these categories, and possessing the prescribed qualified, shall be considered for selection as Rehbar-e-Taleem. By order of the Government of Jammu and Kashmir.” Extract of Government Order No.522-EDU of 2013 dated 08.05.2013 “In partial modification of Government Order NO.635-Edu of 2010 dated 04.08.2010, sanction is hereby accorded to the extension in validity of special dispensation for recruitment of teachers on the RET pattern in Socially and Educational Backward Areas and in the Areas near the Actual Line of Control, identified under the J&K Reservation Rules retrospectively w.e.f. 04.08.2012 till date and prospectively for a period of two years w.e.f. 08.05.2013. By order of the Government of Jammu and Kashmir.” 12. By order of the Government of Jammu and Kashmir.” 12. From a reading of the Government Orders reproduced herein above, it is clear that the vacancies of teachers in socially and educationally backward areas and in the areas near the actual line of control are required to be filled up on the pattern of Rehbar-e-Taleem Scheme. Initially it was provided for two years but later on it was extended for a further period of two years on 06.05.2013 in terms of Government Order No.522-Edu of 2013. The engagements to be made on the pattern of Rehbar-e-Taleem are, therefore, to be in consonance with Government Order No.396-Edu of 2000 dated 28.04.2000 and the subsequent amendments made thereto from time to time. As noted above, the Rehbar-e-Taleem Scheme which was launched in the year 2000 in terms of aforesaid government order was only provided for making engagement of Rehbar-e-Taleems at the elementary level of education i.e. Government Middle Schools and Primary Schools. The Scheme was not meant to fill up the vacancies of teaching staff in High Schools, High Secondary Schools and Higher Educational Institutions. The respondent No.4 was well aware that the Scheme was not meant for High Schools and, therefore, devised a novel way and bifurcated the school by notionally detaching the primary wing of the High School, Rajpora. 13. The Zonal Education Officer has no competence, as is fairly conceded by the learned counsel for the petitioners, to create a primary school out of the existing high school. That being so, the two posts which were available in the High School, Rajpora were required to be filled up in substantive manner through a proper selection to be conducted by the J&K Services Selection Board. The enquiry committee constituted by respondent No.2, thus, correctly found that the two posts put for selection by the Zonal Education Officer for High School, Rajpora were not genuine. The Committee, though, noted that the vacancies which have arisen due to retirement or death can be filled up in terms of Government Order No.635-Edu of 2010 read with Government Order No.522-Edu of 2013 but the same must exist at elementary level of education i.e. in Primary or Middle School. The Committee, though, noted that the vacancies which have arisen due to retirement or death can be filled up in terms of Government Order No.635-Edu of 2010 read with Government Order No.522-Edu of 2013 but the same must exist at elementary level of education i.e. in Primary or Middle School. The advertisement notification insofar as it pertained to two posts of Rehbar-e-Taleem in High School, Rajpora was de hors the Scheme and, therefore, the respondent No.2 took a correct decision by directing the respondent No.3 to disengage the petitioners. 14. The plea of the petitioner that the impugned communication is bad in the eye of law being violative of the principle of natural justice is also not sustainable in the facts and circumstances of the case. On being repeatedly asked to justify the engagement of petitioners, learned counsel for the petitioners could not come up with any convincing explanation or reply. He could not justify the action of respondent No.4 in creating the primary school out of a High School of his own and without there being any order by the Government nor could he show as to how the decision would change, if the petitioners are provided opportunity of being heard. 15. Learned counsel for the petitioner has cited a judgment of the Division Bench of this Court rendered in the case of Suresh Kumar v. State and others ; 2010(4) JKJ 865 [HC] to buttress his arguments that non compliance with the principles of natural justice has vitiated the impugned orders. I regret that such argument is not available to the petitioner in view of the law laid down in the case of M/s Dharampal Satyapal Ltd Vs. Dy. Commr. Of Cen. Exc. & Ors ( 2015 (8) SCC 519 ). 16. In these circumstances, I have no hesitation to say that compliance of principle of natural justice in the facts and circumstances of the case would only be a ritual and a useless formality. The decision would not change, even if the petitioners are put to notice and given opportunity of being heard. 16. In these circumstances, I have no hesitation to say that compliance of principle of natural justice in the facts and circumstances of the case would only be a ritual and a useless formality. The decision would not change, even if the petitioners are put to notice and given opportunity of being heard. I may agree with the contention of the learned counsel for the petitioners that they were not party to the irregularity, if any, committed by respondent No.4 but the fact remains that the petitioners are the beneficiaries of an action which is not only de hors the Rehbar-e-Taleem Scheme but is apparently fraudulent in nature. The Zonal Education Officer concerned could go to the extent of creating a primary school out of a High School on his own just to confer wrongful benefit on certain intended beneficiaries is something not only unpalatable but preposterous. 16. Thus, viewed from any angle, I do not find any force in this petition, hence the same is dismissed. Interim order, if any, shall stand vacated.