Shameema Shabnam vs State & Ors.

N.A. Kakru, ACJ.

Claiming to be senior in the capacity of a teacher, the appellant invoked extraordinary writ jurisdiction by medium of a writ petition seeking a

direction for her appointment as in charge Lecturer and subsequently questioned the regularization of one of the respondents. Both the writ

petitions were dismissed by learned Single Judge by a common judgment dated 18102008, hence this Letter Patent Appeal. For proper

understanding and appreciation of the cause urged before the writ court, it would be appropriate to notice that two Service Writ Petitions bearing

Nos. 234/96 and 635/03, filed on 24021996 and 29042003 respectively, by appellantwrit petitioner Miss Shamima Shabnam (appellant

hereinafter) against one of the beneficiaries of Government Order No. 1479/Edu of 1993 dated 03091993 and No.149Edu of 2002 dated

31122002, namely Miss Shahnaz Shaheen (RespondentPromotee hereinafter) besides, Government of Jammu and Kashmir and its functionaries,

former order, appointing 93 teachers including RespondentPromotee, as in charge Lecturers, and the latter, regularizing the services of the same

number. The controversy being referable to the basic order viz. Government Order No. 1479/Edu of 1993 dated 03091993, may be reproduced:

Subject: Transfer and adjustments of lecturers in Economics.

Without prejudice to the seniority of others, sanction is accorded to the:

1/Adjustment of following teachers/Masters as I/C Lecturers in Economics in their own pay and grade for a period of six months or till the posts

are filled up on regular basis by the DPC/Public Service Commission whichever is earlier.

Shahnaz Shaheen (I/C Lect.)Hr. Sec. School Hazratbal vice Muzamil Akhter.

By order of the Government of J&K.

Perusal of the above said order of appointment reveals that it had to be in force for a period of six months and in the alternative till filling up of

the posts on regular basis. The period of six months having expired in the month of April 1994, the latter condition of the order came into effect,

conferring a right of continuation on the beneficiaries till regular appointment. Although knowledge of the order is not disputed by the appellant, yet

she did not approach the Court before expiry of six months for a relief of assignment of charge through first Writ Petition. In this behalf, it may not

be inapt to take notice of the stand of the Government (see page 36 of the paper book of SWP 635 of 2003), suggesting that the policy decision

taken by the Government to make appointment of 93 teachers as in charge lecturers and the respondentpromotee, being one amongst them,

followed by their regularization, emanated from reluctance on the part of the teachers to serve in the remote areas of the State particularly Kashmir

valley and hilly terrain in the Jammu Division, who had even preferred to forego their promotions rather than to serve in such difficult areas.

Indisputably, the appellant has invoked the jurisdiction of the Writ Court for the first time for similar treatment after a couple of years and there

being no denying about the knowledge of the policy decision by the appellant, she owes an explanation for not having approached the Court

immediately at least before expiry of its first prescribed spell of six months to prevent the Government from treating her as one of the teachers,

reluctant to accept the assignment of the charge of Lecturer. Amazingly she has advanced nothing to refute the basis of the policy decision of the

Government i.e. reluctance and other such like reasons. We may hasten to add that we have neither any cause nor do we wish to embark upon

validity or otherwise of the policy decision of the Government as the case may be, relating to the appointments of in charge lecturers and their

regularization, for the simple reason that the said policy was not challenged by the appellant before the writ Court at any point of time but then what

has prompted us to make a mention of all these events including the Government's stance is, to say the least, that the appellant has consumed

public time in absence of disclosure of essential pleadings and nonimpleadment of other 92 beneficiaries of the orders of appointment. Needless to

say that if rules and norms of pleadings were applied strictly by the writ Court, that alone could have proved fatal to the maintainability of the Wirt

Petition.

That apart admittedly the appellant did not challenge the basic Government Order No. 1479/Edu of 1993 dated 03091993 through his first

Writ Petition (234/96) but pressed it into service to establish analogy to persuade the Court for grant of similar relief and remained contented until

issuance of order of regularization. Faced with the ground reality, an escape route was opted for by Mr. Qureshi contending that the appellant did

not challenge the said order because she was made to believe by one of the alleged contemnors in a contempt petition that respondentpromotee

was not allowed to continue. The contention is bereft of any logic, for, as said above, the appointment was not done away with and the

respondentpromotee was allowed to continue, and appellant's knowledge of that fact is manifest from her writ petition filed in 1996 wherein she

had claimed relief on the principle of parity, therefore, she cannot be allowed to turn around to challenge the appointment.

All said and done, ultimately appellant's challenge to the basic appointment as also regularization hinges on the claim of seniority and a case is set

up by her that she had joined on 18051989 whereas the respondentpromotee had joined on 25051989, therefore, ranks senior. In short her

contention is that all this was managed by the then Additional Secretary to Government, Education Department who happens to be the brother of

the respondentpromottee, but no material even worth the name was placed before the writ Court to establish the alleged fallacy of the entry.

However, appellant sought leave of the writ Court at a subsequent stage by medium of a CMP to bring some documentary evidence on record.

The motion though belated, yet in the interests of justice it was allowed and in pursuance of the grant of motion the appellant chose to bring on

record copy of her own service book and that of the respondentpromotee. Particulars of service of the appellant recorded in her service book

reveal her date of appointment and joining as 18051989 which is not disputed by the respondentpromotee, therefore, no observation called for on

our part. As regards respondentpromotee's date of joining, the appellant has joined issue on the basis of reflection of two dates in the service book

of respondentpromotee viz. 13051989 and 25051989, contending that 25051989 is the correct date whereas 13051989 was manipulated at the

instance of the then Additional Secretary to the Government, Education Department. To appreciate the controversy it is apposite to extract the

relevant entry from the Service Book of the respondentpromotee in full:

13.05.89

25.5.89 FN X

X The teacher was awaiting her adjustment in this office from 13.05.89, so she is treated as on duty and her date of first appointment is considered

from 13.05.89 instead of 25.05.89 as per records of this office.

Sd/

Chief Education Officer,

Mtr. Shahnaz Shaheen D/O Gh. Ahmad Dar R/O Naseem Bagh Habak Srinagar has been appointed as teacher in the grade of 9001830 vide

administrative officer SSSRB's No. SSB/88/ADV/3 dated 5.5.89 ahd has been posted in this School vide District Education Officer Srinagar's

Order No. DEO/APPtt/13681493 dated 08.05.1989 standing at S.No. 22.

Sd/

Headmistress

Indeed there are two dates mentioned in the Service Book but those need to be read along with the note recorded thereunder, reproduced

hereinabove as also explanation of the Government finding place in its reply filed in SWP 635/03 which may be noticed:

It is further submitted here that the petitioner is under a misconception that respondent No.4 has joined on 25.5.1989, as such, she is junior to the

petitioner. It is submitted that as a matter of fact, the respondent No. 4 had joined the office of Chief Education Officer concerned on 13.05.1989

and thereafter joined the concerned School on 25.05.1989, the entry of the respondent No, 4 in the department/as such is 13.05.1989, whereas

the date of joining of petitioner admittedly is 18.051989

In addition to that the Government has also filed requisite particulars which may also be noticed:

The Service particulars of both the petitioner as well as the private respondent are given as under for submitting before the Hon'ble High Court.

Name Date of Appt, as teacher Date of joining Date of passing PG Serial No. in the Sty. List, Dt. 10

0403

Shahnaz 851989 1351989 1976 210

Shaheen Order No: DEO/

Apptt/13681493 Dated: 851989

issued by the then DEO Budgam (Copy enclosed )

Shameema 18051989 Order No: 1851989 1983 (in 214

Shabnam ENG/ST/Apptt/17212114 Dated: 1851989 issued by the then DEO Budgam ( Copy enclosed) Sociology in the year 1992

Sd/

Under Secretary to Govt.

Education Department

A perusal of the entry read along with notes, besides, the information furnished by the Government, and the stand of the Government in the

counter, reveals that the respondentpromotee was initially appointed as a teacher by the District Education Officer Srinagar vide Order No.

DEO/APPtt/13681493 dated 08.05.1989. Apparently her appointment dates back to 8th May and had reported for duty pursuant thereto on

13051989 in the office of the Chief Education Officer but had to wait for her posting which was made on 25051989. That is how 13th and 25th

find a mention in service book of the respondentpromotee brought on record by none other than the appellant herself. On top of all she relies upon

it. Similar stand is taken by the Government in the reply supported by affidavit of the Commissioner Secretary to the Government, Education

Department, supported by documentary proof. In these circumstances, it is wrong to say that the joining date was manipulated at the behest of

Additional Secretary, Education Department, under the guise of his relationship with the Respondentpromotee. Let us place it on record that the

said Officer has been subjected to mental agony, ex facie, without any fault of his and on unfounded allegations.

The factual dispute raised by the appellant that the respondentpromotee had joined on 25051989 and not on 13051989 having been countered

by the State and the respondentpromotee and except for the bare assertion of the appellant, there being no documentary evidence to support it,

even before us, therefore concluded against the appellant, yet we would like to assume a hypothetical situation which becomes necessary because

the only ground urged before the writ Court was that prior joining would entitle the appellant to placement in the seniority list ahead of the

respondentpromotee, but question that arises is whether at all the contention does have sanction of law, To have the answer let us assume

hypothetically that the respondentpromotee had joined on 2551989, again hypothetically assuming that the appellant had joined on 1851989, still

the point that calls for consideration is, whether it is initial appointment or joining that has relevance for determination of seniority of the parties to

this petition. For answer we would like to focus our attention on the rules called the Jammu and Kashmir Civil Services (Classification, Control and

Appeal) Rules, 1956, and rule 24 being relevant hence reproduced hereunder:

Seniority: (1) Seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which

the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class, category or grade as the case

may be.

Note.1: The rule in this clause will not effect the seniority on the date on which these rules come into force of a member of any service, class,

category or grade as fixed in accordance with the rules and orders in force before the date on which these rules come into force.

Interpretation: The word "" date of first appointment"" occurring in the above rule will mean the date of first substantive appointment, meaning

thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in he latter case being

subject to good work and conduct and/or passing of any examination or examinations and/or test

A conjoint reading of rule 24 and the interpretation appended thereto, makes it manifestly clear that in case of substantive appointment on a

clear vacancy, it is the initial date of appointment that has to determine the seniority of the appointee. In view of the rule position, coupled with the

fact that appointment of the respondentpromotee was made on a clear vacancy of a teacher, no fault can be found with the seniority assigned to

the respondentpromotee with effect from 08051989 and to the appellant from 08051989, being admittedly dates of their initial appointment.

In the final analysis, we are of the opinion that interference in this LPA is uncalled for and is dismissed accordingly. However no order as to

costs.