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2020 DIGILAW 405 (JK)

Rafaqat Ali v. Union Territory of J&K

2020-08-20

ALI MOHAMMAD MAGREY, SANJAY DHAR

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JUDGMENT Ali Mohammad Magrey, J.—Having regard to the facts pleaded in this case, it becomes imperative to recall to mind the principle of law established by the Supreme Court and the High Courts in the country since long that writ jurisdiction is meant for enforcement of existing rights, whether those be fundamental rights or other legal rights. Having heard learned counsel for the petitioners and the learned AAG representing the UT respondents, it may at the very outset be observed that the petitioners do not seem to have any such existing right infringement whereof they are endeavouring to plead with a view to seeking judicial review of the action of the respondents. 2. Petitioners have filed this writ petition challenging order dated 27.07.2020 passed by the Central Administrative Tribunal, Jammu Bench (the Tribunal), dismissing their O.A. 61/13/2020 & the connected MA 61/119/2020 as being devoid of any merit. 3. Before coming to the case of the petitioners as put forth by them before the Tribunal, we deem it appropriate to state some background facts. 4. Vide Government order no.356-GAD of 2015 dated 13.03.2015 the Government, in supersession of previous Government orders in that regard, ordered a policy regarding posting of Wardens /Assistant Wardens in various Advisory Boards. The Policy accorded sanction to the constitution of a Committee, comprising : (i) Administrative Secretary, GAD, (Convenor); (ii) Administrative Secretary, Social Welfare Department; (iii) Administrative Secretary, School Education Department; and (iv) Secretary of the concerned Board, to recommend appointment of Wardens / Assistant Wardens in: (a) Gujjars & Bakerwals Hostels; (b) Hostels under the Advisory Board for Pahari Speaking People; and (c) Hostels under the Advisory Board for Welfare and Development of Other Backward Classes. It was further ordered thereby that the General Administration Department shall obtain a panel of eligible Lectures / Head Masters/ Masters with outstanding service career from School Education Department for their posting as such Wardens / Assistant Wardens, and that their orders of deputation shall be issued by the General Administration Department after seeking approval of the Chief Minister (Chairman of the Advisory Boards). It was further ordered thereunder as under: “(iii) The tenure of deputation of Wardens / Assistant Wardens shall be two years and in no case, it shall be allowed beyond three years.” 5. It was further ordered thereunder as under: “(iii) The tenure of deputation of Wardens / Assistant Wardens shall be two years and in no case, it shall be allowed beyond three years.” 5. Pursuant to the above Policy, the petitioners herein, who are, admittedly, holding different level posts of teachers in the School Education Department, alognwith some other similarly placed teachers, were transferred and deputed to function as Wardens / Assistants Wardens in the Hostels of Gujjars & Bakerwals and the Pahari Speaking People in the State. This was done by the General Administration Department, on the recommendation of the aforesaid Committee, vide Government order no.446-GAD of 2017 dated 10.04.2017. By the very same order, the incumbents who were holding the charge of these posts on deputation basis were deemed to have been relieved therefrom with direction to report to the Directorate of School Education, Jammu/Kashmir. 6. It appears that on 19.09.2019, with a view to taking stock of the functioning of the Tribal Affairs Department, the Advisor (F) to the Governor chaired a review meeting of the officers of the Department. As many as 17 agenda items had come under discussion and decisions in relation thereto were taken. One of the agenda items, viz, item no.14 related to engagement of Wardens in Hostels and it was directed that the Department (DTA) shall issue notification regarding the engagement / employment of wardens and (sic) and G&B Hostels on outsourcing basis. 7. It may be mentioned here that Government order no.446- GAD of 2017 dated 10.04.2017, whereby the petitioners were deputed as Wardens / Assistant Wardens, referred to above, expressly stated that the tenure of deputation of the Wardens / Assistant Wardens shall be two years and in no case, it shall be allowed beyond three years. Admittedly, the petitioners completed the tenure of three years in April, 2020. 8. On 27.05.2020, respondent no.4, viz., the Additional Secretary to Government, School Education Department, vide communication no.PS/Edu/TE/Prl/Secy/2020, required the Directors, School Education, Jammu/Kashmir, to furnish panel of suitable/eligible persons (2 names per post) for posting them as Wardens / Assistant Wardens in Gujjar and Bakerwal Hostels of the UT of J&K. It was mentioned in the communication that these posts are filled up by the suitable/eligible persons belonging to the said community in terms of Government order No.356-GAD of 2015 dated 13.03.2015. 9. 9. The petitioners felt aggrieved of the aforesaid communication no.PS/Edu/TE/Prl/Secy/2020 dated 27.05.2020 addressed by the Additional Secretary to Government, School Education Department, to the Directors, School Education, Jammu/Kashmir seeking panel of suitable/eligible persons for posting them as Wardens / Assistant Wardens in the Gujjar and Bakerwal Hostels, and challenged the same in O.A. 61/13/2020 & MA 61/119/2020 before the Tribunal. The grounds of challenge before the Tribunal were: first, that the communication is illegal/arbitrary, being without jurisdiction; second, that since there is no Chairman of the Board available, the General Administration Department (GAD) is rendered helpless in making deputations in terms of 2015 policy order; third, that the communication was contrary to the decision taken in the review meeting of the Tribal Affairs Department to fill up the posts by outsourcing; fourth, that due to Covid-19, since the Hostels in question had been converted into Quarantine Centres and the petitioners had been appointed as Nodal Officers for their respective Quarantine Centres/Hostels, their displacement would expose them to grave threats and inconvenience. 10. The respondents contested the petitioners’ O.A. before the Tribunal on the grounds that transfer of an employee is part and parcel of his/her employment; that the petitioners have completed the tenure of their deputation in terms of Govt. order dated 13.03.2015, and that on 11.05.2020 the Tribal Affairs Department requested the General Administration Department to repatriate such Wardens / Assistant Wardens, as have overstayed their deputation period, to their parent department and to depute new incumbents on these posts; that the communication dated 27.05.2020 is not the final order for engagement of Wardens / Assistant Wardens, and that it is only a part of the process initiated in that regard; that the posting of Wardens / Assistant Wardens is the prerogative of the Government and is being done strictly as per the policy decision contained in Government order dated 13.03.2015; that with the conversion of the erstwhile State of J&K into Union Territories, the Administrative Head, being the Lt. Governor, all policy matters are decided by him, the process for obtaining fresh panel etc. Governor, all policy matters are decided by him, the process for obtaining fresh panel etc. is being undertaken with due approval of the competent authority, and that there is no substance in the contention of the petitioners that the process has been initiated without any jurisdiction; that on account of Covid-19 and the consequent lockdown, the direction to engage Wardens / Assistant Wardens in Gujjar and Bakerwal Hostels on outsourcing basis has not been possible, and that, therefore, resort has been had to the Policy order dated 13.03.2015. 11. The Tribunal in its order dated 27.07.2020, impugned herein, has recorded that the main issue raised by the petitioners in the OA is that the communication dated 27.05.2020 written by respondent no.4 to respondent no.5 requesting for a panel of eligible / suitable teachers for posting as Wardens / Assistant Wardens on deputation basis is illegal and without jurisdiction as, according to them, such posting is the exclusive domain of the Tribal Affairs Department. The Tribunal, referring to the policy of the Government promulgated vide Government order dated 13.03.2015 and the Committee constituted thereunder, has held that it is not correct to say that such deputation falls within the exclusive domain of the Tribunal Affairs Department. The Tribunal has further held that the communication in question is only a part of the process and that it is neither illegal nor without jurisdiction. As to the direction issued in the review meeting held under the chairmanship of Advisor (F) to the Lt. Governor, the Tribunal has held that because of the extraordinary circumstance faced on account of Covid-19 Pandemic, the process of outsourcing could not be initiated so far and that the action is reasonable and fully justified. Holding further that the petitioners have already completed their tenure of three years, the Tribunal has dismissed the OA, concluding that it is devoid of any merit. 12. From the present writ petition, it is seen that during the pendency of the OA of the petitioners before the Tribunal, pursuant to communication no. PS/Edu/TE/Prl/Secy/2020 dated 27.05.2020, impugned by the petitioners in the OA, the Director School Education, Jammu, issued Circular no.DSEJ/Genl/PS/01-02 dated 05.06.2020 inviting applications within seven days from the date of issue of the said circular, from all eligible and interested Lecturers / Masters for preparing the panel for placement as Wardens / Assistant Wardens in Gujjar and Backeral Hostels. PS/Edu/TE/Prl/Secy/2020 dated 27.05.2020, impugned by the petitioners in the OA, the Director School Education, Jammu, issued Circular no.DSEJ/Genl/PS/01-02 dated 05.06.2020 inviting applications within seven days from the date of issue of the said circular, from all eligible and interested Lecturers / Masters for preparing the panel for placement as Wardens / Assistant Wardens in Gujjar and Backeral Hostels. Similarly, the Personal Officer of Directorate of School Education, Kashmir, issued a notice under endorsement no.DSEK/ESTT/GAZ/916 dated 19.06.2020 inviting applications from interested Lecturers / Headmasters / Masters belonging to ST category below 50 years of age for similar deputations in Gujjar and Bakerwal Hostels in different districts of Kashmir Province. 13. The petitioners in this petition, apart from challenging the order dated 27.07.2020 passed by the Tribunal in their OA and communication no.PS/Edu/TE/Prl/Secy/2020 dated 27.05.2020, written by respondent no.4, viz., the Additional Secretary to Government, School Education Department, to the Directors of School Education, Jammu/Srinagar, seeking panel of Teachers, have also challenged the Circular no.DSEJ/Genl/PS/01-02 dated 05.06.2020 issued by Director, School Education, Jammu, and Notice issued under no.DSEK/ESTT/GAZ/916 dated 19.06.2020 by Director, School Education, Kashmir, inviting applications from in- service eligible Lecturers / Headmasters / Masters for preparation of the panel for deputation as Wardens / Assistant Wardens in the Hostels in question. 14. So far as the order passed by the Tribunal and the communication of respondent no.4 dated 27.05.2020 are concerned, the petitioners have reiterated the grounds taken by them before the Tribunal, stating that as per the 2015 it is the GAD which has to initiate the process, but respondent no.4 has no jurisdiction to seek the panel; that since there is no Chairman of the Board presently in place, even the GAD cannot order such deputations; that the process initiated by respondent no.4 is contrary to the decision taken in the review meeting of the Tribal Affairs Department held on 19.09.2019 under the Chairmanship of Advisor (F) to the Governor etc. 15. So far as Notification/Notice issued by the Directors of School Education, Jammu/Srinagar are concerned, the petitioners have taken separate grounds of challenge in relation thereto. 16. We heard learned counsel for the petitioners and M/s. N.H shah and B. A Dar, Sr. AAGs, representing the UT respondents at the notice stage. 17. 15. So far as Notification/Notice issued by the Directors of School Education, Jammu/Srinagar are concerned, the petitioners have taken separate grounds of challenge in relation thereto. 16. We heard learned counsel for the petitioners and M/s. N.H shah and B. A Dar, Sr. AAGs, representing the UT respondents at the notice stage. 17. As far as the Notification/Notice issued by the Directors of School Education, Jammu/Srinagar are concerned, admittedly, this Court is not the forum to challenge these notices; the petitioners ought to have approached the Tribunal, having the jurisdiction to entertain such challenge as being the first instance forum to adjudicate upon the grievance of the petitioners. These notices were issued during the pendency of the petitioners’ OA before the Tribunal. It is their contention that they came to know about these notices after the Tribunal had heard the OA and had reserved orders therein. Even if so, we are of the view that the hearing of the OA or reservation of orders therein by the Tribunal would not create a bar for the petitioners to seek amendment in the OA to incorporate challenge to the two notices therein or even to file a fresh OA before the Tribunal in that regard. In any case, such notices cannot be challenged before this Court converting it into a Court of first instance, nor can the delayed knowledge of the petitioners about the issue of such notifications confer jurisdiction as a Court of first instance on this Court. Without commenting on the merit of these two notices, we hold that challenge thereto in the present writ petition before this Court is not maintainable. The petition to that extent, therefore, is liable to be dismissed. 18. As regards the challenge of the petitioners to the order passed by the Tribunal and the communication dated 27.05.2020 issued by respondent no.4, the fundamental question that arises for consideration is what right of the petitioners has been infringed to feel aggrieved of ? Admittedly, they are substantive employees of the School Education Department. The Policy promulgated by the Government vide Government order no.356-GAD of 2015 dated 13.03.2015 clearly prescribed that the tenure of deputation of Wardens / Assistant Wardens shall be two years and in no case, it shall be allowed beyond three years. Admittedly, they are substantive employees of the School Education Department. The Policy promulgated by the Government vide Government order no.356-GAD of 2015 dated 13.03.2015 clearly prescribed that the tenure of deputation of Wardens / Assistant Wardens shall be two years and in no case, it shall be allowed beyond three years. This condition was specifically incorporated in Government order no.446-GAD of 2017 dated 10.04.2017 whereby they were posted / deputed as such Wardens / Assistant Wardens. Admittedly, again, they have completed their three years’ tenure as such deputationists in April, 2020. They do not have any right to continue to hold the posts in question on deputation or otherwise. The decision taken or direction made in the review meeting of the Tribal Affairs Department held on 19.09.2019 did not confer any right on the petitioners to continue on the post. In fact, there is no Government order issued pursuant to and in implementation of the decision recorded in the minutes of the meeting. 19. As said by us in the very beginning of this judgment, the writ jurisdiction of this Court is meant for enforcement of existing rights, whether those be fundamental rights or other legal rights. Given the case of the petitioners as put forth by them before the Tribunal and this Court, and having heard the learned counsel for the petitioners and the learned AAG representing the UT respondents, we are convinced that the petitioners have not been able to show that they have any such existing right infringement whereof they are endeavouring to plead with a view to seeking judicial review thereof. In these circumstances, we do not find any irregularity or illegality committed by the Tribunal in dismissing the OA of the petitioners. 20. It is enigmatic why should the petitioners be so eagerly interested in sticking to the posts of Wardens / Assistant Wardens in these hostels when they belong to the School Education Department and hold substantive positions in their parent Department, moreso when they have completed the prescribed tenure of three years. No such ground, muchless plausible, is coming forth from the pleadings. No such ground, muchless plausible, is coming forth from the pleadings. However, inferably, it is likely that since there are huge funds allocated for the benefit of the students in these hostels, incurable on their day-to-day needs, some advantage might be derived therefrom by these teachers in their capacities as Wardens / Assistant Wardens which has induced the greed in them to hold these posts. This needs to be carefully and strictly watched and checked by the Tribal Affairs Department, lest the students housed in these hostels belonging to downtrodden strata of the society should be deprived of what otherwise is provided for them on paper and is due to them. 21. In view of the above, we hold that there is no merit in the petition; it is wholly unnecessary and deserves to be dismissed. 22. Accordingly, the petition is dismissed alongwith the connected CM. 23. No order as to costs.