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Judgment
All these petition are disposed of by a common judgment. The first three petitions, SWP No. 347/95, 306/95 and 401/95, challenge a circular
dated 14.3.1995 which stands revoked by a subsequent Govt. Order No. 1603Edu fo 1995 dated 381995 passed by the State respondent. That
has rendered all the three petitions aforesaid in fructuous which shall stand dismissed as such.
However, in these three petitions, writ petitioners feel aggrieved of a counter action by the writ petitioners in SWPs No. 202/96, 1257/96 and
1370/96 in which in one of the petitions, petitioners have obtained stay order staying the operation of Govt. Order No. 1063Edu of 1995 dated
3.8.1995 and which had the consequence of reviving the Circular dated 14.3.1995 impugned in the first three petitions (SWP 347, 106 and 401
of 1995)
All the writ petitions seem to be rising a controversy about nothing. Writ petitioners are teachers in the Education Department and are aspirants
for promotion to the posts of lecturer which is governed by Recruitment Rules (SRO83/92) and J&K Civil Services (Classification, Control and
Appeal), Rules, 1956(CCA Rules) and whereby seniority constitutes one of the essential factors. The mode of promotion prescribed for the post
is 50% by promotion to the post from amongst the feeding categories of Masters/Senior teachers/General line teachers alternatively. The academic
qualification prescribed is the Master's degree in the relevant subject.
It appears that in the face of this rule position, Staterespondent issued circular dated 14.3.1995 providing as under:
It is hereby clarified for the information of all the concerned that the benefit of passing of post graduation by inservice masters/senior teachers/
teachers for purpose of inclusion in the list of postgraduate masters/Sr. Teachers/teachers in the relevant subject would accrue to the concerned
from the date of eligibility for such inclusion viz. the date of passing of postgraduation.
There terms of the circular suggested that the seniority of the Master/Sr. Teacher/ teachers would be determinable on the basis of their date of
passing of the postgraduation. This was questioned by the writ petitioners in the first three writ petitions on the plea that it contravened the mode of
determining the seniority as envisaged in the CCA Rules. It was, therefore, urged that the State respondent could not supersede statutory Rules by
an administrative circular.
5 It appears that this position was appreciated by the Staterespondent leading to the passing of Govt, Order No. 1063Edu of 1995 dated 381995
and revoking the earlier circular dated 14.3.1995 impugned in the first 3 petitions. The revocation proceeded on the reasoning and opinion
tendered by the Law Department, inter alia establishing that, the circular impugned was passed in contravention and breach of the statutory rules
viz. Rule 24 of the CCA Rules and rules 10 to the Recruitment Rules (SRO 83/92)
This should have ordinarily put an end to the controversy but was not to be and some of the beneficiaries of the circular dated 14.31995 which
postulated determination of seniority of master/Sr. Teachers/Teachers on the basis of the year of their passing of the postgraduation filed counter
petitions (SWP 202/96, 1257/96 & 1370/96) seeking to assail the Govt. Order NO. 1063Edu of 1995 dated 381995 whereby controversial
circular admittedly found to be violative of the statutory rules was rescinded. Out of these writ petitions, petitioners are represented in SWP
1370/96 by Mr. C. M. Koul who sought to defent the impugned circular dated 14.3.1995 envisaging determination of seniority of teachers on the
basis of the year of passing of postgraduation on his own hypothesis. According to him, the candidates entering the service of the Education
Department with postgraduate qualification would be more energetic and suitable for teaching as lecturers and should be regarded superior to
those who had entered the service and acquired postgraduation qualification later. The burden of his whole submission was that the seniority
amongst the feeling categories for promotion to the post of lecturer in the Education Department should be determinable on the basis of he year of
acquiring postgraduation qualification in disregard to their entry in service. In other words, he proposed the reframing of the rule for determination
of seniority of feeding categories for promotion to the post of lecturer. He did not, however, dispute that the mode prescribed in the impugned
circular dated 14.3.1995 ran in direct conflict with the mode provided for determination of seniority by the relevant rules.
The position that emerges in this backdrop is that the Staterespondent had already provided for the mode of determination of seniority of the
feeding categories to the post of lecturer viz. Rule 24 of CCA rules read with Rule 10 of SRO 83/92. So long as these rules ar in force, seniority is
determinable in accordance with the mandate of these rules. No administrative instructions or circular providing to the contrary, can sustain and
stand in the face of the statutory rules. It is a different thing that the Staterespondent may decide to change or reframe these rules. Till then the
existing Rules would occupy the field and require implementation. That is why the Staterespondent seems to have corrected its own action by
Govt. Order No. 1063Edu of 1995 dated 381995. Therefore, it cannot be faulted. Nor can the writ petitioners in counter writ petitions (SWPs
202/96 and 1370/96) seek enforcement of any kind of right admittedly from a bad circular.
In the result, I find no merit in the counter writ petitions No. SWP 1370/96 which is dismissed on merits. The other writ petitions (SWPs Nos.
1257/96 and 202/96) are dismissed for nonpersecution. The interim stay order passed in one of these writ petitions shall also stand vacated.