Mahjabeena vs Shri Tripuri Sarvan & Ors

In this petition, filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, the petitioner has implored for the grant of following relief(s) in his favour:

"A. By issuance of a Writ of Mandamus, having regard to the legality of the claim of the petitioner for appointment against the ReT post in order of merit in Primary School, Chopan Mohalla (Simon) Education Zone, Pattan District Baramulla as per letter No. DSEK/Legal/304/12/1963 dated 10-02-2018 (Annexure-II) read with communication No. Edu/Legal/K/45/2018 dated 08-08-2018 (Annexure III) the respondents be commanded to take final decision in the matter and issue formal appointment order in favour of the petitioner so as to conclude the matter.

B. The Hon'ble Court may be pleased to pass and/order mold any other writ, order or direction in favour of petitioner as against respondents as may be deemed just and appropriate in the facts and circumstances of the case. Same shall be in consonance with law and justice."

The facts, as these stem out from the petition of the petitioner, are that the instant writ petition is third in sequence on the subject of selection and appointment against ReT position under Sarva Shiksha Abhiyaan (SSA) in Government Primary School Chopan Mohalla, Sonim, Education Zone, Pattan, advertised sometime in the year 2004. The selection process aforesaid initiated for filling up of ReT posts in the aforesaid Government Primary School was finalized, resulting in the appointment of one Mohammad Akbar Malik vide order No. ZEO 2066-69 dated 9th of February, 2006. This selection and engagement of the said Mohammad Akbar Malik became the subject matter of a writ petition filed by the petitioner which was dismissed by this Court vide judgment dated 21st of April, 2015. Feeling aggrieved of the order passed by this Court, the petitioner assailed the vires of the same before the Division Bench of this Court through the medium of LPA No.117/2015. By judgment dated 20th of August, 2015, the said appeal was allowed by the Division Bench, whereby the order of this Court dated 21st of April, 2015 was set aside and the selection/ engagement of the said Mohammad Akbar Malik/ respondent No.5 in LPA aforesaid quashed with further direction to the Chief Education Officer, Baramulla, to initiate the selection process for filling up the ReT position in Chopan Mohalla, Simon, Education Zone, Pattan. Non-compliance of the final orders of the Division Bench, as stated, compelled the petitioner to file yet another petition before this Court, being SWP No.984/2016, seeking implementation of the directions passed by the Division Bench in LPA No.117/2015. On 22nd of April, 2016, the said writ petition came to be disposed of by this Court with a direction to the official respondents to consider and decide the representation of the petitioner having regard to the direction dated 20th of August, 2015 passed by the Division Bench in LPA No.117/2015, of course, under rules. Thereafter, as stated, the Directorate of School Education, through Senior Law Officer, vide communication dated 10th of February, 2018, informed the Secretary to Government, School Education Department that as per the report of the Zonal Education Officer concerned dated 9th of November, 2017, five (05) candidates had applied for two ReT positions and Shri Mohammad Akbar Malik and Shri Ab. Majeed Malla were engaged as ReTs, however, the engagement of Shri Mohammad Akbar Malik was cancelled in compliance with the directions of this Court and the candidate figuring at S.No.3 in order of merit, namely, Tahir Mohi-ud-din Malla has withdrawn his candidature, thereby the candidate next in order of merit, i.e. petitioner herein, was eligible for consideration against the said position. While making the aforesaid observation, the Senior Law Officer had sought instructions in the matter from the Government. The petitioner has proceeded to state that, thereafter, the Government of Jammu and Kashmir, School Education Department, through Public Law Officer, in terms of communication No. Edu/Legal/K/45/2018 dated 8th of August, 2018, sought details from the Director, School Education, Kashmir, about the feasibility as on date, availability and nature of vacancy enabling the Department to proceed further in the matter. Pending decision with the Director, School Education, Kashmir, the petitioner has filed the instant petition seeking direction on the respondents to take final decision in the matter and issue formal appointment order in her favour for the position in question.

Mr Shah, the learned Senior Additional Advocate General, available in the Court, while entering appearance on behalf of the respondents, submits that no indefeasible right has accrued to the petitioner claiming her appointment on the post in question on the ground of cancellation of selection/ engagement of the incumbent in position in compliance of the directions passed by the Division Bench. The learned Senior Additional Advocate General further submits in terms of Government Order No. 919-Edu of 2018 dated 16th of November, 2018, the Government has already accorded sanction to the formal closure of the ReT Scheme and the ReT recruitment/ engagement process notified vide Government Order No.396-Edu of 2000 dated 28th of April, 2000 alongwith subsequent modifications/ amendments. A copy of Government order dated 16th of November, 2018, as produced by Mr Shah, the learned Senior Additional Advocate General, is taken on record.

Heard Mr Shah, the learned Senior Additional Advocate General, representing the respondents, perused the pleadings on record and considered the matter.

By Government Order No.919-Edu of 2018 dated 16th of November, 2018, the Government has ordered as under:

"Sanction is hereby accorded that: -

i) Formal closure of the ReT Scheme and the ReT recruitment/ engagement process notified vide Government order No. 396-Edu of 2000 dated 28.04.2000 alongwith subsequent modifications/ amendments. However, the existing ReTs already appointed under the scheme or on ReT pattern shall continue to be governed under the erstwhile scheme till their regularization or otherwise;

ii) All advertisement notices for engagement of Rehbar-e-Taleem Teachers or panels prepared where no engagement orders have been issued shall and shall always be deemed to have been cancelled/ withdrawn as ab-initio;

iii) No fresh advertisement for recruitment/ engagement under any ReT Scheme(s) shall henceforth be issued."

A bare perusal of the aforesaid Government Order makes it axiomatic that the Government has taken a policy decision in the matter, whereby the Government has accorded sanction to the formal closure of the ReT Scheme with a further stipulation that all advertisement notices for engagement of Rehbar-e-Taleem Teachers or panels so prepared where no engagement orders have been issued shall be deemed to have been cancelled/ withdrawn as ab-initio. In that view of the matter, the relief claimed by the petitioner in the instant petition for seeking a direction to the respondents to issue appointment order in her favour against the ReT position in question cannot be granted. Once the Government has taken a policy decision cancelling/ withdrawing all the advertisement notices issued for engagement of ReTs or panels prepared where no engagement orders have been issued under ReT Scheme, the Court cannot direct the respondents to appoint the petitioner against a non-existing position, unless the Government order aforesaid is set aside/ modified by the competent authority.

In view of the preceding analysis, this writ petition is found to be devoid of any merit, as such, same shall stand dismissed in limine, alongwith the connected Interim Application, being IA No.01/2019. The petitioner, however, shall be at liberty to work out appropriate remedy as may be available to her under law with regard to challenging the Government Order dated 16th of November, 2018.

There shall, however, be no order as to costs.