Iqbal Bano vs State of Jammu and Kashmir

R.C. Gandhi, J.—The petitioner has presented this petition seeking issuance of writ of mandamus for regularising the services of the

petitioner as Lecturer in the College of Education by relaxation of Rules from the date she has taken over the charge and performing the duties as a

Lecturer.

The petitioner in the petition has averred that the petitioner while working as Sr. Master in the Government Higher Secondary School, Kishtwar

was transferred and posted in the Government College of Education, Jammu, in her own pay and grade against available post of Lecturer in Urdu

vide order No. 496Coll of 1979 dt. 25.9.1979 passed by the Education Commissioner J&K. Thereafter the Government under Order No.

616Edu of 1985 dt. 1.10.1985 sanctioned the charge allowance in favour of the petitioner as admissible under Art. 87(b) J&K C.S.R. from the

date she had been asked to work as Lecturer in `Urdu'.

Petitioner seeks regularisation on the ground that since the year 1979 she has been working as Lecturer against the post, therefore, her services

should be regularised by relaxation of Rules.

The respondents have filed counter affidavit stating therein that the petitioner's services cannot be regularised as she is not possessing the

eligibility qualification i.e. M. Ed. required under rules promulgated under SRO No. 700, known as Jammu and Kashmir Educational (Gazetted)

Services Recruitment Rules, 1977. The length of service against the post, while the petitioner was getting chargeallowance, does not vest any right

in her under any provisions of law or the rules to seek regularisation. The petitioner is holding substantive post of Sr. Master and the post of

Lecturer is a promotional post which is available to all the Sr. Masters borne on the establishment of the Education Department. The petitioner is

not the senior most Senior Master for consideration of promotion and also unless cleared by the D.P.C., cannot be promoted.

I have heard the learned counsel for the parties and perused the record.

The contention of the learned counsel for the petitioner that the petitioner is working since long time on the post and thus is entitled to

regularisation, has no force. The petitioner is getting charge allowance for the duties she is discharging. The petitioner is a member of the services of

the Education Department and can only be promoted if she has cleared the DPC. The petitioner by virtue of her adjustment by the Government in

her own pay and grade against the higher post is not entitled on the face of it to seek promotion as the case of the petitioner is not that she is the

seniormost and has been approved by the D.P.C. All the Sr. Masters, senior to the petitioner in this category have a prior right for consideration

and promotion. The petitioner cannot by virtue of this arrangement, made by the Education Commissioner, jump over the seniors and seek

regularisation by relaxation of the Rules.

The relaxation of the Rules is the domain of the Government considering a grave contingency. In this particular case when the candidates are

available in abundance in the category of Senior Masters for promotion, the Court cannot direct the respondents to relax the Rule for regularisation

of the service of the petitioner. It the respondents want to appoint some person on substantive basis, they can constitute the Departmental

Promotion Committee and consider all the eligible candidates and on the recommendation of the committee, the post can be filled up. In such a

situation, when the post can be filled up by a suitable person available from amongst the Senior Masters, the petitioner cannot seek any relief from

the Court or a direction for her regularisation by relaxation of the Rules.

The learned counsel for the petitioner in support of his contention has cited AIR 1986 S.C. page 638. In that case the petitioners were not

promoted by following the procedure prescribed under rules but they were working against the posts from the date on which they were appointed

on the said posts. They were being paid all along salary payable to them of such posts and have not been asked to come back to the posts from

which they were promoted since the date of their appointment. The Hon'ble Supreme Court in para 14 of the judgment (cited supra) held,

......But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for

appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reverted from that post......

The facts of the present case are different. The petitioner has not been promoted and is not being paid the salary of the post. The ratio of the

aforesaid judgment cannot be made applicable to the present case.

On the other hand Mr. Chouhan, learned counsel for the respondents, in rebuttal has cited a judgment reported in AIR 1996 S.C. page 2775

titled Dr. S.S. Jamwal and another v. State and J&K and others, 1996(4) S.C.T. 60 , wherein it is held as under :

......The controversy raised in this case is squarely covered by the judgment of this Court reported in J&K Public Service Commission v. Dr.

Narinder Mohan, (1994)2 SCC 630 : AIR 1994 SCW 1701. It is not in dispute that the appellants were recruited on ad hoc basis and have been

continuing as such. It is their contention that since they had put in more than 13 years of service they are entitled to regularisation of service and

approached the High Court for direction to regularise their services. The High Court has followed the ratio in the above judgment and dismissed

the petition. In the light of the judgment of this Court the settled legal position now is that the recruitment to the service should be governed by the

appropriate statutory rules. Under the rules the regular recruitment to the posts shall be made by the Public Service Commission. Consequently,

the ad hoc appointments would be only temporary appointments de hors the rules, pending regular recruitment without conferring any right to

regularisation of service........

What emerges from the above discussion is that the petitioner even though working against the post of Lecturer in `Urdu' continuously, is not

entitled to seek regularisation. However, the petitioner is entitled for consideration for promotion as and when Departmental Promotion Committee

meets. The respondents shall consider the petitioner alongwith other eligible candidates provided the petitioner falls within the zone of consideration

and is otherwise eligible for promotion under rules.

For the foregoing reasons, the writ petition is dismissed.