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Judgment
Mansoor Ahmad Mir, J.—By the medium of this writ petition, petitioner has sought indulgence of this Court for issuance of a writ of
certiorari for quashing the impugned order of reversion bearing No. CEO/Pul/10465 dated 21-12-1995 forming annexure-P/VI to the writ petition
and mandamus commanding respondents to regularize the services of the petitioner as teacher retrospectively with all service benefits including
fixing of his seniority in the cadre of teachers, on the grounds taken in the writ petition.
The case projected by the petitioner in this writ petition hat he was appointed as peon in the year 1973 and in the year 1975, he was adjusted
as peon in Government High School Hawal. While working as such peon, Block Education Officer addressed a communication dated 16-6-1988,
asking the respondent No. 4 to depute a teacher of his Institution to P/S Donaroo and respondent no: 4 instead of deputing a trained teacher to the
said school directed petitioner to perform his duties as teacher, by recording an endorsement on the said communication. The communication reads
as under:
...You are hereby apprised to depute a teacher of your institution to P/S Doonaru as Shri Mohamad Iqbal Awan, teacher of the said school has
been transferred to M/S Sagarwani, Block Shadimarg. The roll of the students of the school is more than 60, the Headmaster P/S Pahlipora is not
in a position to combine the two schools. Treat the matter as most urgent.
Sd/-
Block Education Officer,
Keegam
The Headmaster recorded the following endorsement on the said communication:
Mr. Maqbool.
To please note till further orders w.e.f. 20-6-1988.
Respondent No. 3 after detecting the illegality committed, issued an order dated 21-12-1995, to the following effect:
...As per standing instructions of the Director school Education Srinagar, Kashmir, you are directed to detach the non-teaching officials mentioned
under reference within no time to his own substantive post at BMSD Keller. Compliance report be submitted to the undersigned by 24-12-1995.
Petitioner has challenged the order by the medium of this petition on the grounds taken in the petition.
Respondents have resisted the petition on the grounds taken in the counter affidavit. It is profitable to reproduce para 4 of the reply here-under:
In reply to para No. 4, of the writ petition, it is submitted that Block Education Officer, Keegam, had directed the Headmaster Middle School,
Keller to depute a teacher of his Institution to Primary School Donoo as the teacher of the said school has been transferred to other place. The
Head Master of his own without any authority, jurisdiction, power, deputed the petitioner for one week till further orders. This was beyond the
directions contained in annexure-P/1, therefore, Headmaster can not promote or appoint an orderly as Teacher. The said Headmaster had no
jurisdiction to depute an orderly when he was asked to depute a teacher to Primary School, Donoo. In this view, petitioner was not adjusted or
appointed as Teacher at all. He carries the same post upon which he was appointed.
Respondents have resisted the claim of the petitioner on the count that he was appointed as Orderly and Headmaster had no jurisdiction or
competence to depute an orderly for performing the duties of teacher. The Block Education Officer, Keegam had also directed respondent No. 4
to depute a teacher to the school, but instead of deputing a teacher, he has deputed the petitioner who, as admitted by the petitioner, is only a class
IV employee and if he is discharging the duties as teacher, was acting in violation of the directions passed by Block Education Officer, Keegam.
This Court at motion stage directed the respondents not to detach the petitioner from the post of teacher and allow him to hold it and discharge
the functions of teacher till further orders and also withheld salary be paid to him.
It is in place to mention here that prior to the filing of instant petition, petitioner had filed SWP No. 597/1993 almost for the same relief as
prayed in the petition in hand and subsequently withdrew the said petition vide order dated 6-9-2000 without reserving the right. The petitioner has
suppressed this important and material fact from the Court and has not made a whisper about this fact in this petition. On this count alone, the
petition at hand is not maintainable and is liable to be dismissed.
During the pendency of the writ petition, petitioner had also filed contempt petition Nos. 239/1996 and 253/1998 and it appears that pursuant
to the orders passed in the contempt petitions, respondents have drawn and disbursed salary of the petitioner as teacher.
The question which arises for consideration is whether petitioner has any right to hold the post of teacher and discharge the functions of the
teacher? The answer is in negative for the reasons that the post of General Line Teacher in terms of the Jammu and Kashmir Education
(Subordinate) Service Recruitment Rules, 1979 is to be filled 75% by direct recruitment and 25 by promotion from Class Y categories (b), (c),
(d), (e) and (i) who are at least matriculates with 3 years experience in the concerned job. Class V categories (b), (c), (d), (e) and (i) comprises of
Band Masters, Music Assistants, Laboratory Assistants, Museum Assistants and Craft Assistant.
A plain reading of the aforesaid provision of law makes it abundantly clear that class Fourth viz. Orderly is not falling in the feeding cadre for
promotion to the post of Teacher. Thus the orderly has no right to claim or seek consideration for promotion to the post of teacher not to speak of
regularization. It is also worth while to mention that the Block Education Officer Keegam had asked the respondent No. 4 to depute a teacher to
the Primary School, but instead of deputing a teacher, he deputed the petitioner who is only an orderly, which is purely illegal and cannot confer
any right on the petitioner to seek regularization against the post of teacher. It is also apt to mention here that respondent No. 4 is not competent to
promote an orderly to the post of a General Line Teacher. The apex Court in case reported as M.C. Mehta Vs. Union of India and Others, has
held that when an appointment to the post is governed by a set of statutory rules, it is unthinkable to adopt extra constitutional method of
appointment.
The Apex Court in case reported as Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, has held that:
...This contention ignores the fact that an in charge arrangement is not recognition of or is necessarily based on seniority and that, therefore, no
rights, equities or expectations could be built upon it....
The apex Court has also taken a same view in case reported as National Fertilizers Ltd. v. Somvir Singh AIR 2006 SC 2972, by hold-ins that:
...
The contention of the learned Counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be
accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even
the Selection Committee had not been properly constituted. In view of the ban in employment, no recruitment was permissible in law. The
reservation policy adopted by the Appellant had not been maintained. Even cases of minorities had not been given due consideration....
Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the Respondents are illegal. They do not,
thus, have any legal right to continue in service....
It is true that the respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of
pay. But they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the
respondents have worked for some time, the same by itself would not be a ground for directing regularization of their service in view of the
decision of this Court in Uma Devi.
In another case, reported as State of U.P. v. Neeraj Awasthi AIR 2006 SC 123, the apex Court has held that no appointment can be made in
violation of the provisions of statute and statutory rules. It has also held that:
...The question which, however, falls for consideration is as to whether any appointment can be made de hors the provisions of the Act and the
rules. Our attention has been drawn to the definition of 'employee' which does not include persons employed on daily wages, work charged and
/or part time basis. If the expression ""employee"" does not bring within its fold any person employed on daily wages, work charged or on part time
basis, the same would mean that the persons so appointed would not be the employees within the meaning of the said regulation. It would,
therefore, not be correct to content that the Market Committee or the Board have the jurisdiction to appoint anybody on daily wages, work
charged or on part time basis de hors the rules. The power to make appointments by the Committee or the board whether contained in Section 23
or Section 26-F of the Act are statutory in nature. In absence of any provisions conferred upon them to appoint any employee de hors the
provisions of Sections 23 and 26-F and the regulations framed there-under, indisputably would mean that such appointments are de hors the Act
and the Rules....
The apex Court in a case reported as Indian Council of Agricultural Research and Another v. T.K. Suryanarayan and Others, 1997(6) SCC
held that promotion which is made de hors the rules cannot be a ground to claim any right or title. It is profitable to reproduce relevant portion
of the judgment hereunder:
...Even if in some cases, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been
allowed to enjoy the fruits of improper promotion, an employee can not base his claim for promotion contrary to the statutory service rules in law
courts. Incorrect promotion either given erroneously by the Department by misreading the said Service Rules or such promotion given pursuant to
judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules.
In a Court of law, employee cannot be permitted to contend that the Service Rules made effective on 1-10-1975 should not be adhered to
because in some cases erroneous promotions had been given. The statutory rules must be applied strictly in terms of the interpretation of rules as
indicated in the decision of a three Judge bench of this Court in Khetra Mohan case....
It appears that the petitioner is working as teacher on the strength of Court orders referred to hereinabove. Even if a person is continuing on a
particular post, on the strength of Court orders, to which he is not entitled to in terms of the recruitment rules, and has been made to work on the
said post de hors the rules, he has no right to continue on the said post and his continuation will not create any right in him to seek regularization. I
am fortified in my view by a judgment of the apex Court reported as Sakthi Coop. Industrial Estate Vs. Kursheed Begum and Others, , wherein
their lordships have held that:
...Besides, merely because a person continues under the interim orders of the Court, such continuance on the post cannot and, in this case, does
not confer on him any right for continuance, it does not enhance his case for regularization. It is only an interim arrangement pending decision by the
Court and cannot disturb the position in law or equities as on the date of the petition.
For what has been stated hereinabove, there is no merit in the petition which merits dismissal. Accordingly writ petition is dismissed along with
all connected CMPs.
Before parting with the file, I want to place on record as to how the Headmaster has allowed an orderly to perform the duties of teacher when
he does not fall within the feeding cadre for promotion to the post of teacher and how he could have imparted education to the students when he
was not himself qualified for the post at all. This itself speaks volumes about the functioning of the education system in the state and how the
academic career of the students receiving education in said schools gets ruined from bad to worse. Why respondents have not taken action against
the said erring officials/officials is not known. I deem it proper to refrain from offering my comments on this issue and only hope that better sense
will prevail upon the officers and authorities who are at the helm of affairs will realize the gravity of the situation.
Registry to convey the judgment to the respondents. Contempt Petition Nos. 239/1996 and 253/1998. Since respondents have not violated
the orders in any way, thus both the contempt petitions are dismissed.