Mohan Lal @APPELLANT@Hash State Of Jammu & Kashmir & Ors

The petitioner had offered his candidature for the post of Rehbar-e-Taleem (ReT) at MS Tagan, Zone Kulwanta, District Udhampur, Jammu, notified vide advertisement notice no. DSE-J/RET/4011-17 dated 20.06.2004. According to the petitioner, he mostly remained out of the State since 2005 and it was not possible for him to know about any selection and appointment made against the post. It was only in June 2013 that he heard from respondent no.5 that he had been appointed against the post, but he did not hear anything from the respondents. As a result, he sought information under Right to Information Act which was supplied to him by reply dated 02.01.2014. Therefrom he came to know that his engagement order had been cancelled by the respondents on 31.03.2005 on the the purported ground that he had joined Fishries Department and in his place respondent no.5 was recommended to be engaged. The case of the petitioner is that his appointment order was never published nor sent to him. It is alleged that the respondents had surreptitiously managed to cancel his engagement order and appointed respondent no.5 without his knowledge.

On the aforesaid facts, the petitioner has prayed for quashing order No.ZEO/K/1835 dated 31.03.2005 whereby respondent no.5 was engaged as ReT and directing the respondents to consider and offer him engagement as ReT at MS Tangan, Zone Kulw\anta, Ramnagar.

The official respondents did not choose to file any response to the writ petition. Consequently, by order dated 16.02.2016, while admitting the writ petition to hearing, the respondents were directed to consider the petitioner for his engagement against available Rehbar-e-Taleem post. Pursuant to the said direction, the petitioner was engaged as ReT in terms of order no.ZEO/K/SSA/979-81 dated 17.01.2018 at Primary School Nakki, Village Sattian. This order was issued with the approval of the Administrative Department granted vide no. Edu/Legal/J/Mis/302/2017 dated 22.12.2017.

When this petition came up for further proceedings on 29.11.2018, learned counsel for the petitioner submitted that though the petitioner stands appointed now pursuant to the interim direction of the Court, but a direction needs to be issued to the official respondents to give retrospective effect to his appointment from the date respondent no.5 was fraudulently appointed by cancelling his engagement order. Learned State counsel, on the other hand, submitted that the petitioner having been engaged now, the petition could be finally disposed of.

Admittedly, petitioner in the process of selection against the post of ReT advertised in terms of advertisement Notice no. DSE-J/RET/4011-17 dated 20.06.2004, had on the basis of his merit emerged at serial no.1, consequently selected and appointed, which appointment as stated came to be cancelled on account of his non-joining.

Official respondents, despite opportunities, have failed to substantiate that petitioner had knowledge of the selection and appointment and despite that he failed to join. While as the petitioner has substantiated his claim that his selection and appointment was never published/communicated to him and same was cancelled only to adjust the respondent no.5., who happens to be a close relation of one of the official respondents. The case of the petitioner further that his engagement was cancelled fraudulently by showing that he is not interested in joining, has remained unrebutted.

Since the petitioner stands now engaged as ReT in terms of order no. ZEO/K/SSA/979-81 dated 17.01.2018 at Primary School Nakki, Village Sattian, issued by the Zonal Education officer Kulwanta, on the approval of the Administrative Department vide No. Edu/legal/J/Mis/302/2017 dated 22.12.2017, therefore, the controversy has narrowed down in so far as engagement of the petitioner is concerned but the only relief which the petitioner seeks now is to give effect to such engagement from the date when his appointment was cancelled, i.e., 31.03.2005.

Admittedly, petitioner on competing the selection process got selected as ReT in MS Tagan, Zone Kulwanta, District Udhampur, Jammu on the basis of his merit but was deprived of such benefit till he approached the Court.

Petitioner by no stretch of imagination can be held responsible for not availing the benefit of selection and appointment which selection and appointment was made a guarded secret only to pave way for the engagement of next candidate i.e., respondent no.5. Further petitioner came to know about cancellation of his engagement only on availing the benefit of RTI.

Since the petitioner stands engaged as ReT in terms of order no. ZEO/K/SSA/979-81 dated 17.01.2018 at Primary School Nakki, Village Sattian and is continuing as such, therefore, his grievance with reference to engagement is settled, however, the only grievance of the petitioner is regarding the effect of his engagement from retrospective date. Petitioner, was admittedly deprived of the benefit of continuation in service as ReT from 2005 which would enable him to get regularization as General Line Teacher after five years' service, which deprivation amounts to violation of Article 14 and 16 of the Constitution of India. Though, there is sufficient material and the grounds substantiated by the petitioner for quashing the appointment of respondent no.5, but since the official respondents without disturbing her engagement, engaged the petitioner as ReT, therefore, considering the matter with reference to having the respondent no.5 continued for a considerable time, it shall not be proper to quash her appointment, but the petitioner has to be compensated.

In the above background, this writ petition is disposed of along with connected IA, with the following directions, that;

i) The petitioner shall continue in service as ReT in terms of order no. ZEO/K/SSA/979-81 dated 17.01.2018 and be paid the salary for the period he has rendered service and in future.

ii) The official respondents are directed to regularize the services of petitioner as General Line Teacher after completion of five years' service as ReT to be counted from 31st of March, 2005 on notional basis.

No order as to costs.

CPSW no.350/2016:

Since the Court direction stands complied with coupled with the fact that the main writ petition has been disposed of, no contempt against any of the official respondents is made out. This petition is, accordingly, dismissed.