Rajni Kumari vs State of J. and K.

Ali Mohd. Magrey, J.—These five appeals have been preferred against the common judgment and order dated 12.05.2011 passed by the

learned Writ Court, dismissing five writ petitions filed by the appellants. Since the relevant facts and the points of law are identical in all these

appeals, the same are dealt with by this common judgment. Perusal of the impugned judgment reveals that the writ petitions filed by the appellants

have been dismissed by the learned Single Judge on two counts: first, that the selection process initiated in terms of notification dated 11.12.2002

had not been brought to its logical conclusion by the respondents till the issuance of Government order dated 24.11.2003, whereby the process of

filling up of the vacancies of teachers through the medium of Rehbar-e-Taleem scheme was stopped; and second, that there has been delay or

laches on the part of the petitioner-appellants in approaching the Writ Court. In fact, these appeals are vigorously contested by the respondents on

the very same grounds. Given the factual matrices of the case, we feel that the two issues involved are intertwined. Therefore, the matter warrants

examination, somewhat, in detail.

Way back in 2000, vide Government order No. 396-Edu of 2000 dated 28.04.2000, the State Government launched the Scheme of 'Rehbar-

e-Taleem' (Teaching Guide) objected at: (i) promoting decentralized management of elementary education with the community participation and

involvement; (ii) ensuring accountability and responsiveness through a strong backup and supervision through the community; and (iii)

operationalising effectively the schooling system at the grass roots level. It was provided that the scheme shall be effectuated for provision of

services of Teaching Guides in the Primary and Middle Schools to make up the deficiency of the staff as per the existent norms. The Scheme so

formulated and promulgated, provided that the Teaching Guide shall be engaged by Village Level Committee (VLC) associating ZEO concerned

as the Convenor. The relevant provisions of the scheme under the caption ""Role of Village Level Committee"" as to its composition etc. for the

purpose of implementation of the scheme and the ""mode of selection of a Teaching Guide"" are reproduced hereunder:

a/ Two parents of the children studying in the institutions within the Village provided they are literate;

b/ Two persons to be nominated from the Village, who have social standing;

c/ A representative of Women/Scheduled Cast/Scheduled Tribe;

d/ Zonal Education Officer.

i) VLC shall assess the requirement of teachers in the Primary/Middle Schools within the area of their operation in due regard to the approved

norms of standing and the roll. On the basis of the said assessment, VLC would draw up a panel of eligible qualified persons from the village;

ii) After the assessment of the requirement, the meeting of VLC shall be convened by the ZEO. But in case meeting is not convened by ZEO within

reasonable time then on the requisition of three non-official members the meeting of VLC shall be held. It would be obligatory for ZEO to hold the

meeting. The quorum shall be four, of which three should be non-official members. The panel so drawn up should be one and half times of the

assessed requirement of Rehbar-e-Taleem and in order of merit.

Eligibility:

Mode of selection:

i) The panel drawn up by VLC shall be submitted through the ZEO to the concerned DC. The DC alongwith a representative of Director School

Education (to be nominated by him in advance) will make the final selection commensurate with the assessed requirement.

ii) The formal order of engaging 'Rehbar-e-Taleem' shall be issued by the ZEO concerned.

The other subjects and clauses contained in the scheme related to, explained and prescribed the Concept of Rehbar-e-Taleem; Eligibility,

Honorarium, Payment of Honorarium and Regularization. The Regularization clause provided as under:

On the satisfactory completion of five years as Rehbar-e-Taleem on honorarium basis, the candidate shall be eligible for appointment as General

Line Teacher in the Education Department. For this purpose VLC shall have to furnish a certificate about the satisfactory performance of the

teacher and highlighting the specific achievements and his/her overall conduct. At the time of consideration for formal appointment in the

Government, if a teacher is found not to fulfill age qualifications then his/her employment would be on contractual basis for future.

There is no provision prescribed or contained in the scheme as to the duration or life of a panel so drawn up by the VLC, as is statutorily common

with select lists ordinarily prepared by various Selection Boards or Commissions, after the lapse of which period the select lists become in-

operational.

Pursuant to the aforesaid scheme, the Chief Educational Officer, Jammu, issued an advertisement notice which was published in local dailies,

including the Daily Excelsior in its issue dated 11.12.2002. The aforesaid notice stated as under:

In pursuance of Govt. order No. 396-Edu of 2000 dated 28.4.2000 read with Director School Education, Jammu's letter No. DSE/PS/70-75

dated 24.11.2002, village wise applications on prescribed format are invited from the permanent residents of District Jammu (J & K State) for the

engagement of Rehbar-e-Taleem teachers at village level. Applications shall be submitted to the concerned Zonal Education Officers of the

respective zone under proper receipt within 15 days of appearance of this advertisement.

Pursuant to the aforesaid notification, the appellant in LPASW No. 144/2011 is stated to have offered her candidature under Open Merit

Category for Rehbar-e-Taleem in Government Girls Primary School, Village Bidipur. Her case is that the Panel was prepared and she figured at

serial No. 1 therein. The appellant in LPASW No. 140/2011 is stated to have applied for the post under Open Merit Category in Government

Girls School, Village Flora. She also claims to have figured at serial No. 1 of the Panel. The appellant in LPA No. 141 also states to have applied

for the post under Open Merit Category in Government Girls Primary School, Village Dehar and, according to her, she figured at serial No. 1 of

the Panel. The other two appellants have made similar claims.

It is the case of the appellants that similarly circumstanced persons, who had responded to the very same advertisement notice in R.S. Pura

Zone to which Zone the appellants also belong, were duly appointed. However, despite the fact that the process was completed and Panels were

drawn up in terms of the relevant provision of the Scheme, the respondents did not issue their appointment orders despite the fact that they had

been pursuing the matter with the respondents. Finally, constrained, they served notices-cum-representations dated 24.09.2007 through Advocate

followed by reminder dated 22.11.2007 on the respondents seeking information under Right to Information Act as to what had been done to their

applications for engagement as Rehbar-e-Taleem and requesting the respondents to engage them as such Rehbar-e-Taleem in the schools in their

respective villages of residence. In response thereto, vide communication dated 24.09.2007 addressed to the Advocate who had served the

aforesaid notices on behalf of the appellants, the Zonal Education Officer, R.S. Pura, Jammu, inter alia, stated as under:

That the selection process of your client while was in processed came to a half on account of Government order No. 1670-Edu of 2003 dated

24.11.2003 by which the process of filling up of the vacancies of teachers in any school through the medium of ReT scheme is stopped forthwith

and thereafter the appointment/vacancy, if any, was to be made under SSA Scheme after up-gradation of Primary Schools and EGS centres and

not in ReT in which the said vacancy were available and was advertised.

That no new vacancy under SSA Scheme is available for the said school in the said village and thus your client could not be selected and

appointed.

The appellants' further case is that it was pursuant to the disclosure of the aforesaid information to them by the Zonal Education Officer vide his

communication dated 24.09.2007 that they came to know that the respondents had decided not to appoint them and that prior to that date they

had no knowledge about such a decision having been taken by the respondents. In short, the appellants' case is that cause of action to seek

remedy from the Court arose to them only on or around 24.09.2007, and, hence, there was no delay or laches attributable to them.

The eligibility of the appellants is not in dispute. It is also not in dispute that the appellants figured at the top of their respective panels.

Respondents in their reply to the writ petition filed before the Writ Court have admitted that pursuant to the advertisement notice Panels were

prepared, but, it is stated that, the competent authority, who at that time was Deputy Commissioner, did not approve the same. In the meantime

Government vide Government order No. 1670-Edu of 2003 dated 24.11.2003 stopped the process of filling up of the vacancies of Regular

General Line Teachers through the medium of Rehbar-e-Taleem. It is further submitted that Government order dated 24.11.2003 was modified

vide Government order No. 1678-Edu of 2003 dated 04.12.2003 whereunder it was provided that appointment orders be issued in respect of

such of the candidates as may have been recommended or cleared for selection in the due process and consistent with the norms/guidelines laid

down from time to time against regular vacancies upto 23.11.2003. As to why the appellants were not engaged, it is stated that as the said posts

were regular General Line Teacher posts, as such, in light of the Government order dated 24.11.2003, could not be filled up through Rehbar-e-

Taleem Scheme.

We have heard learned counsel for the parties, perused the record and considered the matter.

Before we proceed further, it may be observed here that, vide order dated 17.04.2013, a Coordinate Bench of this Court recorded two issues

raised in the case and opined that for the purpose of ascertaining the two issues, it would be necessary to peruse the whole record. The two issues

so raised are reproduced hereunder:

(a) that in pursuance of advertisement dated 11.12.2002 which appeared in the English Daily Excelsior with number of other candidates reflected

in annexure D (Jyoti S. v. State of J & K, LPASW No. 140/2011), have been appointed. According to learned counsel the selection process was

same which is based on the aforesaid advertisement and, therefore, they cannot be singled out for a different treatment than the one given to those

who have been appointed; and

(b) the other submission made by learned counsel for the appellants is that their names were already empanelled in the select list and according to

the notification issued on 4.12.2003 the selected candidates are required to be given orders of appointment.

Subsequently, another Coordinate Bench of this Court on 28.5.2013 passed the following order:

In order to settle the controversy, learned AAG, appeared for the respondent-State, is required to file a detailed affidavit wherein it shall be

clearly indicated as under:

1/What was the composition of the Village Level Education Committee at the relevant point of time?

2/Whether the Village Level Education Committee, has prepared the panel of candidates for engagement in all the cases, as referred to above?

3/Whether the Zonal Education Officer has cleared the panel prepared by the Village Level Education Committee?

The requisite affidavit shall be filed on or before the next date of hearing. The records pertaining to all such cases shall also be kept available on the

next date of hearing.

In so far as the first issue raised and recorded in the Court order dated 17.04.2013 is concerned, the respondents have produced the original

record. At page 2 of the record are the minutes of the meeting of the District Selection Committee of Rehbar-e-Taleem held under the

chairmanship of Deputy Commissioner, Jammu on 22nd April, 2003 in the Institute of Engineers (PWD Bungalow) Gandhinagar, Jammu for

Education Zone R.S. Pura of District Jammu. Perusal of these minutes reveals that the Selection Committee examined the Panels as drawn up by

the VLCs of twelve schools, named therein. It further reads that ""the ZEO, R.S. Pura, was directed to issue formal orders of engagement in

respect of the selected candidates after verifying all the requisite documents"". Consequent thereto, on 03.06.2003, the ZEO issued appointment

orders in respect of the selected candidates. The second issue raised and recorded in order dated 17.04.2013 is, somewhat, similar to question

No. 2 raised in Court order dated 28.05.2013 and the two are, therefore, considered together.

Coming to the response to the order dated 28.05.2013, one Veena Devi wife of Sh. Surinder Kumar Sohal, Zonal Education Officer, R.S.

Pura, filed the requisite detailed affidavit on 17.08.2013. The said respondent, in her affidavit, has given appeal-wise details in response to each of

the questions raised in the Court order. So far as the composition of the Village Level Committees is concerned, in terms of the details disclosed in

the affidavit, in light of minimum quorum required in terms of clause (ii) under the heading 'Role of Village Level Committee' of the Scheme, as

quoted hereinabove, we do not see any infirmity in their compositions. The other appeal-wise details given therein, are reproduced hereunder:

LPA (SW) No. 140/2011 titled Jyoti S v. State of J & K & Ors.

i. ........................

ii. The Village Level Education Committee had recommended and the panel of candidates for engagement as ReT in Primary School Flora was

prepared accordingly.

iii. The then Zonal Education Officer R.S. Pura had not signed/cleared the panel prepared by the Village Level Education Committee of candidates

for engagement as ReT in Primary School Flora.

LPA (SW) No. 141/2011 titled Anita Kumari v. State of J & K & Ors.

i. ........................

ii. The Village Level Education Committee had recommended and the panel of candidates for engagement as ReT in Primary School Dehar was

prepared accordingly.

iii. The then Zonal Education Officer R.S. Pura had signed/cleared the panel prepared by the Village Level Education Committee of candidates for

engagement as ReT in Primary School Dehar.

LPA (SW) No. 142/2011 titled Manohar Lal v. State of J & K & Ors.

i. ........................

ii. The Village Level Education Committee had recommended and the panel of candidates for engagement as ReT in Primary School Kaloyen was

prepared accordingly.

iii. The then Zonal Education Officer R.S. Pura had not signed/cleared the panel prepared by the Village Level Education Committee of candidates

for engagement as ReT in Primary School Kaloyen.

LPA (SW) No. 143/2011 titled Kanta Devi Vs. State of Jammu & Kashmir and Others,

i. ........................

ii. The Village Level Education Committee had recommended and the panel of candidates for engagement as ReT in Primary School Kapoor Pur

was prepared accordingly.

iii. The then Zonal Education Officer R.S. Pura had signed/cleared the panel prepared by the Village Level Education Committee of candidates for

engagement as ReT in Primary School Kapoor Pur.

LPA (SW) No. 144/2011 titled Rajni Kumari v. State & Ors.

i. ........................

ii. The Village Level Education Committee had recommended and the panel of candidates for engagement as ReT in Primary School Bidipur was

prepared accordingly.

iii. The then Zonal Education Officer R.S. Pura had signed/cleared the panel prepared by the Village Level Education Committee of candidates for

engagement as ReT in Primary School Bidipur.

The word ""recommended"" used by none other than respondent No. 4, i.e., the Zonal Education Officer, Zone R.S. Pura, in the aforesaid

affidavit assumes importance in context of Government order No. 1678-Edu of 2003 dated 04.12.2003 that was issued in partial modification of

Government order No. 1670-Edu of 2003 dated 24.11.2003. For facility of reference, the said order is quoted hereunder:

In partial modification of Govt. Order No. 1670-Edu of 2003 dated 24.11.2003, it is hereby ordered that appointment orders be issued in

respect of such of the candidates as may have been re commended or cleared for selection, in the due process and consistent with the

norms/guidelines laid down from time to time against regular vacancies upto 23.11.2003

(Highlighting supplied)

Respondents in paragraphs (E) and (F) of the brief facts of their reply filed in response to the writ petition of the appellant in the lead case before

the learned Writ Court, though, have referred to the aforesaid order, yet they have stated that the said posts being Regular General Line Teacher

posts, as such in light of the Government order dated 23.11.2003 (sic, should be 24.11.2003) could not be filled up through Rehbar-e-Taleem

Scheme. That, in fact, has been their stand before us as well. The assertion on the face of it is fallacious. The Scheme itself was devised at making

up the deficiency of the staff at the elementary level of education. It did not provide for creation of any new positions or posts for Rehbar-e-

Taleem, but such appointees had to man the already existing posts of General Line - Teachers, of course, on honorarium basis. After satisfactory

completion of five years, such Rehbar-e-Taleem were to be regularized as General Line Teachers on the very same posts on which they had been

performing as Rehbar-e-Taleem. It is curious enough to note that, in fact, in paragraph (B) of their objections filed in response to SWP No.

216/2008, respondents have clearly stated that the said posts were of Regular General Line Teacher and under the Rehbar-e-Taleem Scheme the

vacant posts of General Line Teachers were being filled up.

It is true that by order dated 24.11.2003 the process of filling up of the vacancies of teachers through the medium of ReT scheme was

stopped, but the modification order dated 04.12.2003, expressly provided that appointment orders be issued in respect of such of the candidates

as may have been ""recommended or cleared"" for selection. Ordinarily, one would have to delve into the import and meaning of the words

recommended"" and ""cleared"" in context of the object of the Scheme and its various clauses. But this task has been made quite easy by the

affidavit filed by respondent No. 4 wherein it is expressly stated that ""the Village Level Education Committee had ""recommended"" and the panel of

candidates for engagement as ReT in Primary School ... was prepared accordingly"". It is thus established that the names of the appellants stood

recommended. Government order dated 04.12.2013, issued in partial modification order dated 24.11.2003, unambiguously ordained that orders

shall be issued in respect of those of the candidates who stood ""recommended"" or ""cleared"". This condition envisaged by the modification order

dated 04.12.2003 stood satisfied vis-Ã -vis the appellants. Therefore, there was no reason to deny them engagement as Rehbar-e-Taleems in the

schools of their respective villages, more particularly so when the candidates pursuant to the advertisement notice had been appointed in the very

same educational zone. Having not done so, the respondents have clearly discriminated against the appellants in total disregard of what was

provided in Government order dated 04.12.2003.

Coming to the plea of delay taken on behalf of the respondents, this is crucial factor that requires to be borne in mind while exercising

discretionary power under Article 226 of the Constitution. The plea has weighed with the learned Writ Court. The law is now well settled. The

considerations relevant in determining whether delay or laches should be put against a person who approaches the Court under Article 226 of the

Constitution has been summarized by the Supreme Court in Shankara Co-op Housing Society Ltd. Vs. M. Prabhakar and Others, . The Supreme

Court in the aforesaid case, tracing the law on the point from the judgment of the Privy Council in Lindsay Petroleum Co. v. Hurd, (1874) LR 5

PC 221 to the decision of the Supreme Court in M/s. Dehri Rohtas Light Railway Company Limited Vs. District Board, Bhojpur and and District

Board, Shahabad and others, , summed it up in the following terms:

(1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of

practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.

(2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the

petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their

rights had emerged by the delay on the part of the petitioners.

(3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief

elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High

Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy.

(4) No hard-and-fast rule can be laid down in this regard. Every case shall have to be decided on its own facts.

(5) That representations would not be adequate explanation to take care of the delay.

Adverting to the facts of the present case, it may be reiterated that the scheme in question did not fix or envisage any life span for the panel or

the recommendation made by the Village Level Committee. In ordinary course, the rules governing the selections and the selection bodies

prescribe a life span for the select lists prepared by selection bodies. That life span of the selection list itself serves a caution for the aggrieved

participating candidates to seek the remedy against a grievance within that period. In ReT Scheme there was no such factor available so as to

serve as an alarm for the appellants or to give them a cause to smell rat in the inaction of the respondents on the recommendations so made by the

respective Village Level Committees. Even otherwise, it is the case of the appellants that they continuously pursued the matter with the respondents

to bring the process of selection to its logical conclusion and when such requests did not yield any fruitful result, legal notice, referred to above, was

served on the respondents. Specific averments have been made by the appellants in their respective writ petitions in this regard. The appellant in

the lead case has made such averments in paragraph 6 of her writ petition. In response thereto, while evasively denying the averments, respondents

in their reply have stated that the selection process initiated pursuant to the notification was in progress when the Government order dated

24.11.2003 was issued and, accordingly, the said post of Regular General Line Teacher could not be filled up through Rehbar-e-Taleem Scheme.

It is the positive case of the appellants that they came to know about the decision of the respondents not to fill up the posts only after the Zonal

Education Officer responded to their notice in terms of communication dated 22.10.2007. On that count, it was argued that there was no delay on

the part of the appellants to approach the Court.

There is yet another important factor involved in the matter. Apart from the fact that candidates have been appointed in the very same

education zone pursuant to the advertisement notice in question, respondents have also, in compliance to judgment passed by the learned Writ

Court in S.W.P. No. 675/2006, Bhopinder Singh v. State of J & K & Ors., decided on 19.04.2012 appointed the writ petitioner vide order

dated 07.11.2012 in Village Motley. Original record produced also show that pursuant to the judgment of Writ Court in another case, namely,

SWP No. 565/2010, Surjeet Singh v. State of J & K & Ors., decided on 16.10.2012, the Chief Education Officer, Jammu, vide his letter No.

CEO/33214-15 dated 17.01.2013, has recommended his case for engagement to the Director, School Education, Jammu, stating, inter alia, that

the post is still vacant and that the claim of the petitioner is genuine. It is worth mentioning here that both the above petitioners had offered their

candidature pursuant to the same advertisement and in the same education zone as the petitioners herein. In that view of the matter, it would rather

be in the interest of justice that the appellants herein are not thrown out on the technical ground of delay and laches. Otherwise also, we are of the

view that the appellants have explained the delay pleaded by the respondents.

Mr. Gagan Basotra, learned Sr. A.A.G., cited and relied upon two Division Bench and one Single Bench judgments of this Court in support of

his plea of delay/laches. The first one is a short order passed by the Division Bench on 16.08.2010 in LPASW No. 172 of 2009, Riaz Ahmed Vs.

State of J. and K. and Others, . The order does not state any facts. Therefore, it is of no help in determining the issue. The second one is a

judgment passed by the Division Bench of this Court in LPASW No. 125/2011, Smt. Asha Devi v. State of J & K, decided on 21.11.2011, of

which one of us (Virender Singh J) was a member. We have perused this judgment minutely. The facts of that case are quite distinguishable from

the facts of the present cases. In that case, while preparing the select list in respect of Primary School Biaspsur, it was felt that the Panel should be

got re-verified and the Zonal Education Officer was asked to do necessary re-verification and re-submit the case. The Zonal Education Officer

appears to have decided to re-advertise the post. The candidate who figured at serial No. 2 of the Panel approached the Court and filed a writ

petition, SWP No. 849/2003 seeking for a direction for her engagement against the post she had been empanelled and for quashing of the steps

initiated by respondent No. 4 therein for putting the post to re-advertisement. She succeeded in the writ petition and was consequently, appointed

Smt. Asha Devi the appellant in L.P.A. No. 125/2011 also approached the writ Court but after the issuance of Government order dated

24.11.2003 stopping filling up of the posts by ReTs. Since the Panel did not exist on the said date, Government order dated 04.12.2003 modifying

the order dated 24.11.2003 would not apply in her case. It is in that context only that her claim was held to be belated by the learned Single Judge

which later came up before the Division Bench in LPASW No. 125/2011 and met the same fate. The said case, therefore, is quite distinguishable

on facts. In the present appeals, it is admitted by the Zonal Education Officer that the appellants stood recommended. Therefore, they are covered

by the modifying order dated 04.12.2003.

For all what has been discussed herein above, we are of the considered view that the selection process initiated in terms of notification dated

11.12.2002 had been brought to its logical conclusion by the respondents before the issuance of Government order dated 24.11.2003 inasmuch,

on the own showing of the Zonal Education Officer, the appellants stood recommended, and, consequently, they are covered by the terms of the

modifying order dated 04.12.2003. We are also of the view that, in the peculiar facts and circumstances of the case and having regard to the fact

that candidates have been appointed in the very same education zone even till very recently pursuant to the advertisement notice in question, it

would be in the interests of justice and equity that appellants are not thrown out on the ground of delay or laches, which otherwise is sufficiently

explained by the appellants. Consequently, we feel that the impugned common judgment passed by the learned Writ Court deserves to be set

aside.

Accordingly, these appeals are allowed. The common judgment dated 12.05.2011 passed by the learned Writ Court in the five writ petitions,

namely, S.W.P. No. 45/2008, S.W.P. No. 218/2008, S.W.P. No. 77/2008, S.W.P. No. 75/2008 and S.W.P. No. 216/2008 is set aside.

Resultantly, allowing all the five writ petitions, respondents are hereby directed to consider the appellants writ petitions for appointment in terms of

Government order No. 1678-Edu of 2003 dated 04.12.2003 on the analogy of similarly placed persons. No order as to costs.