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2020 DIGILAW 132 (JK)

Saber Hussain v. State Of Jammu And Kashmir

2020-03-03

ALI MOHAMMAD MAGREY

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JUDGMENT 1. Petitioners adjustment as Incharge Lecturer in the discipline of Botany made vide Government Order No.08-Edu of 2013 dated 02.01.2013 on the basis of seniority/eligibility, the P.G Masters/Teacher in his own pay and grade with charge allowance as admissible under rules for a period of six months or till the posts are filled up on regular basis, whichever is earlier. In the aforesaid order, the petitioner figured at Sr. No.24. 2. The petitioner while working as Teacher in Middle School Kandi Gulhota states to have been further made as Master but in the meanwhile, while working as such he came to know about the order of placement as Incharge Lecturer, Botany and submitted his joining report before respondent No.2-Director School Education, Jammu on 10.12.2015 which on endorsement was submitted to the Government in terms of communication bearing DSEJ/Gez/Lect/55238 dated 28.12.2018 for accepting the request of the petitioner qua joining as Lecturer pursuant to Government Order No.08-Edu of 2013 dated 02.01.2013. The respondent No.1 instead of considering the claim of the petitioner had withdrawn the aforesaid Government Order in terms of which he has been placed as Incharge Lecturer. The Government Order No.08-Edu of 2013 dated 02.01.2013 was withdrawn by the Principal Secretary to Government, School Education department vide another Government Order No.39-Edu of 2017 dated 27.01.2017. It is this order which is the subject matter of writ petition and challenged on the various grounds. Particular reference that the Government at no stage of imagination can deprive the petitioner from his right of consideration for promotion against the post of Lecturer in the department of Botany on account of being eligible with reference to other similarly situated Teachers and Masters with the department. 3. On notice and despite various opportunities, respondents have not filed the reply. 4. Admittedly, the petitioner position qua his seniority and eligibility with reference to qualification not denied by the respondents. The respondents on consideration of his claim in tune with the application of the rules made him Incharge Lecturer against available post in terms of the Government Order No.08-Edu of 2013 dated 02.01.2013 but the petitioner could not join the post on account of his knowledge within the time stipulated in the order. The respondents on consideration of his claim in tune with the application of the rules made him Incharge Lecturer against available post in terms of the Government Order No.08-Edu of 2013 dated 02.01.2013 but the petitioner could not join the post on account of his knowledge within the time stipulated in the order. Immediately on receipt of knowledge, the petitioner has approached the Director School Education, Jammu and submitted his joining report which was processed and submitted to the Government for acceptance, however, the Government instead of accepting the same and allowing the petitioner to perform his duties as Incharge Lecturer in tune with the other similarly situated Masters and Teachers, has withdrawn the Government Order No.08-Edu of 2013 dated 02.01.2013. 5. Since the averments made in the petition have gone un-rebutted, therefore, this Court has no option but to believe the same as correct on the strength of application of law. 6. I have heard learned counsel for the parties and on examination of the pleadings and the documents on record, the only conclusion the Court derives is that the petitioner has been deprived of the benefit arbitrarily. The Court is of the considered view that a right has accrued to the petitioner for his promotion against the post of Lecturer in the discipline of Botany on the strength of his being possessed of the qualification coupled with the seniority which cannot be deprived to him by the respondents by any stage of imagination. 7. While making such opinion, the Court also feels it necessary to apprise the respondents to desist from adhering to the path of adhocism. In the present case, the adhoc arrangement against the post of Lecturers is made in 02.01.2013 which even continues on the withdrawal of the benefit in favour of the petitioner in 2017. 8. Analysis drawn on the strength of the approach adopted by the respondents gives further feeling to the Court that even on date the respondents may not have filled up these positions on regular basis. 9. Law on the subject of filling up the posts on regular basis is no more res integra. 10. Time and again the Government and its authorities were asked to fill up the posts in accordance with rules by desisting the approach of adhocism. The approach of adhocism has been deprecated by the Honble Supreme Court in case Suraj Parkash Gupta and Others Vs. 10. Time and again the Government and its authorities were asked to fill up the posts in accordance with rules by desisting the approach of adhocism. The approach of adhocism has been deprecated by the Honble Supreme Court in case Suraj Parkash Gupta and Others Vs. State of Jammu and Kashmir and Others, reported as AIR 2000 SC 2386 . 11. In the above background, this writ petition is allowed and the order impugned is quashed. The petitioner shall be allowed to perform his duties as Lecturer in the discipline of Botany in tune with the Government Order No. Government Order No.08-Edu of 2013 dated 02.01.2013 from the date he submitted his joining report. 12. Disposed of on the above terms.