Ghulam Mohiuddin and others vs State and others

Syed BashirudDin, J.—Writ petitioners allege that they were appointed in a stopgap arrangement somewhere in March 1995. As the

Education Department had suspicions about their appointment/engagement, they along with two other persons were asked to produce before the

authority the first appointment order in original. However, they failed to do so. In the meanwhile petitioners filed Writ Petition 337476/96 for

release of salary which writ petition was finally disposed of on 16.4.1999 in terms directing respondents to release undisbursed pay dues to the

petitioners for the work done and duties rendered in case their appointment and posting as Teachers in the School Education Department of the

State is genuine and valid. The authorities, while in process of verification of the genuineness of the appointments/engagements of the petitioners,

faced contempt petitions 588/99 and 2 of 2001, allegedly for not implementing the above order. The School Education Department on failure of

the petitioners to produce original initial appointment orders and on being satisfied that the petitioners managed their entry in the Department

fraudulently disengaged their engagement/service. The same stand was taken before the contempt court. The contempt petitions were disposed of

by order dated 28.9.2001 after holding that the respondents were not in contempt and did not disobey the Court order.

While dismissing the contempt petitions, Court observed that the Court order ""shall not stand in the way of the petitioners to seek appropriate relief

by filing writ petition, if so advised"". The action of the State Government/Competent Authority on consideration of the matter, having disengaged

the petitioners along with two other candidates, on 24.10.2001 is under challenge in this petition.

Shorn of details, petitioners' case is that their appointment in Government Boys High School Matihindoo Anantnag is rooted to communication

4775859 dated 24.3.1995 addressed by CEO to ZEO Vailoo (Annexure A). Their appointment as Teachers in stopgap was made by the ZEO.

The record of the ZEO was snatched by the militants about which FIR 76/1995 is registered at Police Station Kokernag. Though some fake

appointment cases are referred to the Crime Branch for investigation, petitioners did not figure in such cases. Petitioners since have been dismissed

in disregard to facts of the case. In the earlier writ petition, there (sic)

Respondents' stand, disclosed through reply filed by the Director School Education as reinforced in his submission by the Ld. AAG, is that the

claimed engagement/appointment of the petitioners is fraudulent. Petitioners taking undue advantage of peaking militancy conditions at relevant time

in the Valley and that too in a remote area of valley like village Matihindoo, managed fake and forged relieving order to show as if petitioners were

appointed pursuant to the order dated 24.3.1995 of CEO Ananatnag (AnnexureA). Petitioners at no point of time were ever engaged/appointed in

the School Education Deptt., of Education (of State ?). Petitioners, dispute being asked to produce the original first appointment orders, have

failed to do that. (Naturally) from the School records, petitioners are not shown to be ever appointed/engaged as Teachers, as claimed by them.

The impugned order was passed after considering the matter and taking all aspects of the matter into consideration. The order is not vitiated on any

count.

On AnnexureA too much onus is laid and emphasis is given by the petitioners. The petitioners are rooting their appointment to this

communication. AnnexureA reveals that the CEO has asked to ZEO Vailoo to provide adequate staff in respect of Science and Mathematics

subjects for High School Matihindoo, on representation of the Headmaster of School by making internal adjustments inter alia on condition that the

Teacher should be adjusted as not working as on FAT/migrant candidate teacher. This communication nowhere refers even remotely to

petitioners. Now if petitioners were appointed and working as Teachers which is a condition for applicability of this communication, then the

appointment/engagement order had to be produced, but it is not so. Petitioners' own case is not that, they were appointed earlier to this order.

Instead their positive case is that they were appointed pursuant to this communication (AnnexureA). Communication does not authorize

appointment of teachers. At the relevant time, a candidate could be appointed as Teacher either by direct Recruitment through SSRB or by

promotion from inservice quota of Laboratory Assistants serving in the School Education Department. Petitioners are not claiming to be appointed

from either source. If petitioners' case is that they were engaged by way of stopgap arrangement, they cannot complain of violation of any service

right, inasmuch as, petitioners have no grievance to make of any violation of any right attributable to terms and conditions of appointment to a

Government Servant. Merely that the petitioners may have signed some register or contributed towards GPF after filing writ petition in the Court,

would not make their alleged appointment/engagement valid or genuine. Petitioners have repeatedly failed to produce original appointment order(s)

before the authorities and even the counsel made a statement before this court that they cannot produce any such order. The condition of payment

of the undisbursed salary under Court orders, is that the appointment/posting of petitioners in School Education Department is genuine and valid.

Once the respondents' positive case is that petitioners' alleged appointment/engagement, if any, is fake and fraudulent, by the Director School

Education sworn affidavit, in reply, then it is for the petitioners to place on record proof/material to show that the appointment and posting is not

so. Not only the petitioners have failed to do so, even rejoinder is not filed. The statement and reply in the affidavit on oath is intact and should hold

the ground notwithstanding an omnibus and generalized allegation in the writ petition. The protection available to public servants of the

Government/civil servants regarding hearing and enquiry is not available to petitioners who are neither appointed substantively nor their engagement

is genuine and immune from fraudulent engagement. It also needs to be taken note of that the FIR 76/1995 registered at Police Station Kokernag

in respect of alleged snatch of records of High School Larnoo and Matihindoo does not refer specially to appointment orders, instead it simply

says that the ""unidentified gunmen snatched all the documents from our capture and also beaten us."" This FIR has been also closed as not

admitted/proved by the I.O. way back in Nov. 2000. Much cannot be made of this FIR. It is seen from Government Order No. 90GAD(Vig) of

1997 dated 21.10.1997 in respect of fraudulent/forged appointments of Teachers/Peons etc. in Govt. High Schools at Larnoo and Matihindoo of

Anantnag District, sanction is accorded by the Govt. to prosecute number of officials including the Head Masters, Office incharge, ZEOs and

Treasury Officer Kokernag in FIR 32/95 registered at Police Station VOK under Section 420, 467, 120B RPC.

Now if for a moment petitioners' plea is that they do not fall within the category of fraudulent and forged orders for appointment as Teachers in

the Larnoo, Matihindoo High Schools, then in the face of stout refutation of this plea by the respondents in reply by an officer of the rank of

Director School Education Kashmir Division asserting that petitioners' engagement/appointment is forged and fraudulent, disputed questions of fact

are raised. If so, then in the facts and circumstances of the case jurisdiction and powers cannot be exercised by the writ court in such situation.

In the above view of the matter, no case for admittance of writ to hearing is made out. Petition is dismissed in limine.