Shabir Ahmad Khan vs State of J&K

Muzaffar Hussain Attar, J. (Oral) - The State Government took a policy decision about filling-up of vacancies of teachers in far flung areas on

the pattern of ReT scheme. This policy decision was approved by the State Cabinet vide Cabinet decision no. 168/13/2010 dated 4th August,

2010. In sequel to the Cabinet decision Government Order No. 635-Edu of 2010 dated 4th August, 2010 was issued.

In terms of the Government Order sanction was accorded for filling-up of regular vacancies of teachers in socially and educationally backward

areas and in areas near the actual line of control identified under the J&K Reservation Rules, on the pattern of ReT scheme, prospectively, for a

period of two years in the first instance. It was further provided that the areas to which this Government Order would apply shall be inhabited

predominantly by SC/ST population. It was also provided in the said Government Order that only candidates belonging to these categories, and

possessed of prescribed qualification, shall be considered for being selected and appointed as ReT. This order was followed by another

Government Order No. 522-Edu of 2013 dated 8th May, 2013. This order provided that in partial modification of Government Order No. 635-

Edu of 2010 dated 4th August, 2010, sanction is accorded to the extension in the validity of special dispensation for the recruitment of teachers on

the ReT pattern in socially and educationally backward areas and in the areas near the actual line of control identified under the J&K Reservation

Rules, retrospectively with effect from 4th August, 2010 to the date of the issuance of the said order. The scheme had to remain in force

prospectively for a period of two years with effect from 8th May, 2013.

Zonal Education Officer, Bandipora in pursuance to the aforesaid Government Order issued advertisement notice on 13th June, 2013, where

under applications were invited from the eligible candidates of seven villages for filling-up of vacancies of teachers on the pattern of ReT. It was

also provided that the candidates having Academic Qualification of 10+2 and above and within the age of 18 years to 37 years as on 1st January,

2013 shall apply within ten days from the date of publication of said notice.

The petitioners being eligible in terms of the Government Order responded to the said notification. The tentative selection list of candidates to be

engaged as ReT's in District Bandipora was issued on 21st September, 2013 and it was published in a daily newspaper. Petitioners figured in the

tentative selection list.

A corrigendum was issued by the Zonal Education Officer, Bandipora which was published in a newspaper in its edition dated 22nd December,

2013. In the said corrigendum it was stated that advertisement notice dated 12th June, 2013 regarding engagement of ReT for the villages/schools

for which posts the petitioners were tentatively selected shall be treated as null and void due to administrative/technical reasons. It is this

corrigendum which is called in question in this writ petition.

Respondents have filed reply affidavit. Petitioners have also filed supplementary affidavit.

Learned counsel for the petitioner while referring to the supplementary affidavit and the communication of the Additional Secretary to

Government School Education Department dated 17th December, 2014 submitted that only the post of teacher which had become available due

to transfer would be covered by the Government order No. 635-Edu of 2010 dated 4th August, 2010 and post which became available due to

death/ promotion/ resignation/ transfer have to be filled-up and the two petitioners have to be appointed on the post of teachers in view of the

stand taken in the said communication.

Learned counsel also referred to the Letters Patent Bench Judgment of the court passed in LPA No. 162/2012, decided on 9th October, 2010.

In that case the issue raised was whether the expression ""prospective"" used in Government Order dated 4th August, 2010 would mean that the

vacancies which become available after the issuance of Government Order alone are to be filled-up on the pattern mentioned in the said

Government Order. The claim of the learned counsel for the appellants in the said case was that all the posts available on 4th August, 2010, in

socially and educationally backward areas and in the areas of Actual line of control identified under the J&K Reservation Rules were to be filled-

up on the pattern of ReT scheme.

Learned counsel for the state consented for filling-up of posts available on 4th August, 2010, in the manner prescribed in the Government Order

dated 4th August, 2010. The Letters Patent Bench disposed of the appeal on the basis of the consent given by the learned state counsel and did

not decide the issues raised in the appeal.

Learned counsel for the petitioner referred to one more Judgment of this Court passed in SWP No. 1640/2013 clubbed with 1627/2013

disposed of on 14th July, 2014. The writ court has disposed of the writ petitions in view of the consent order passed in LPA No. 162/2012.

Learned counsel submitted that this writ petition deserves to be allowed in view of the aforesaid Judgments of the Court.

Mr. Naik, learned AAG, while referring to the stand taken by the respondent in the reply affidavit, submitted that the Government Order No.

635-Edu of 2010 dated 4th August, 2010 provides for filling-up of those vacancies which became available from 4th August, 2010, in the manner

prescribed therein, inasmuch as, the government Order itself was to take effect prospectively. Learned counsel further submitted that all the posts

of teachers which were available before the issuance of Government Order No. 635-Edu of 2010 were to be filled-up in accordance with the rules

in vogue and not in terms of the aforesaid Government Order. Learned counsel, while referring to paragraph 4 to 6 of the reply affidavit submitted

that the vacancies, which were notified, and against which the candidates were tentatively selected, had become available due to resignation of the

incumbent of the post on 28th February, 2010, 1st March, 2009 and due to transfer of one teacher on 1st March, 2010 respectively. Learned

counsel submitted that these posts became available before the issuance of Government Order No. 635-Edu of 2010 dated 4th August, 2010 and

thus were to be filled-up in accordance with the rules and procedure in vogue before the issuance of said Government Order. Learned counsel

submitted that it is for this reason that the corrigendum impugned in this petition was issued. Learned counsel accordingly prayed for dismissal of

the writ petition.

The posts of teachers in the state of J&K are being filled-up by referring the vacancies to the Service Selection Board created by J&K

(Subordinate) Service Recruitment Rules, 1992. The Service Selection Board in order to fill-up the referred posts, issues notification in order to

make selection in accordance with the mandate contained in Article 14 and 16 of the Constitution of J&K.

The Government vide Cabinet decision No. 168/13/2010 dated 3rd August, 2010, in view of the non availability of teachers in far flung areas

and in view of the fact that socially and educationally backward areas and areas near the actual line of control identified under J&K Reservation

Rules, took a policy decision, and directed for filling-up of posts of teachers in these areas on the pattern of ReT scheme, prospectively, initially for

a period of two years which has been specifically extended up to 8th May, 2015 in terms of Government Order No. 522-Edu of 2013 dated 8th

May, 2013. The scheme prescribed in the Government Order No. 635-Edu of 2010 dated 4th August, 2010 was made applicable to the areas

pre-dominantly inhabited by SC/ST population.

The filling-up of the vacancies in terms of the Government Order No. 635-Edu of 2010 dated 4th August, 2010 and Government Order No.

522-Edu of 2013 dated 8th May, 2013 is an exception to the normal rule for filling-up of the vacancies of teachers. The Government has

specifically made this scheme applicable prospectively from the date of issuance of the aforesaid Government Order (s). The scheme has been

made prospective to ensure that it does not effect the rights of the eligible candidates in respect of the vacancies which were available before the

issuance of the aforesaid Government Orders.

The two Government Orders are to be strictly construed. The language of the Government Orders is clear and explicit. The post of teachers in

the identified areas have to be filled-up on the terms and conditions contained in the aforesaid two Government Orders. From the language of the

aforesaid Government Orders, it becomes writ large on the face of the record that these Government Orders have to take effect prospectively and

thus bring in their bosom only those posts which became available from the date of issuance of aforesaid Government Orders. As already stated by

making the posts available from 4th August, 2010 to be filled-up in terms of the aforesaid Government Orders, the rights of the eligible candidates

which is stood crystallized up to 4th August, 2010, have been protected.

The communication dated 17th December, 2014 send by Additional Secretary to Government School Education Department to Director

School Education, Kashmir in respect of one of the pending cases does not refer to any Government decision. It only refers to the stand taken by

some persons/authority. Additional Secretary to Government School Education Department has not given any advice and in law he would not be

an authority to modify the Government Orders. Reliance placed on this communication, is in-consequential.

The order of the Letters Patent Bench dated 9th October, 2012, as already stated is a consent Order. The Court has not decided anything.

The Judgment of Court becomes precedent to be followed in other similar cases only when issues are raised/ debated, rules and law referred to

and then on a proper reasoning, a decision is rendered. The consent order in law can never be called a binding precedent because the Court in

such cases does not decide anything.

The aforesaid Judgment of Letters Patent Bench would not thus constitute a binding precedent. Similarly the Judgment of the Co-ordinate

Bench dated 14th July, 2014 passed in the aforesaid Letters Patent Appeal will not constitute a binding precedent. These are Judgments rendered

per in-curium and will bind the parties therein alone. Even, otherwise, the consent of only Advocate General in some circumstances will bind the

State. The consent given by any other Law Officer will not bind the State.

The Learned Advocate General also cannot take a stand, against the policy decision of Government, until such time he is authorised in this

behalf by the Competent Authority.

In view of the discussion made in this order, it is held that only those vacancies which became available from 4th August, 2010 and 8th May,

2013 would be governed by two Government Orders and selections/engagements in respect of these vacancies is to be made in accordance with

the mandate contained in these Government Orders. The vacancies, which become available before issuance of the aforesaid Government Orders,

would be filled-up in accordance with the applicable rules.

For the above stated reasons this writ petition is held to be meritless and is accordingly dismissed.

Interim direction shall stand vacated.