JKLR-Part(IV)                                             SWP 2477/2000                                       Back To Index

(2001) 1 J & K LAW REPORTER 442
High Court of Jammu and Kashmir
at Jammu
Before
Hon’ble Mr. Justice Arun Kumar Goel, Judge

HISSAM-DIN-QURESHI                                                                                                     Petitioner
                                                                                versus
STATE OF J & K AND OTHERS                                                                                         Respondents

SWP No.2477 / 2000, decided on 9-2-2001

            Constitution of India Arts. 14, 16 - Petitioner Teacher posted as incharge Lecturer Sociology in his own pay and grade for a period of six months or till the post was filled up by the DPC / PSC - Order challenged by another person - Court direction to fill up the post on regular basis - Petitioner transferred for adjustment as Teacher - Whether posting as incharge Lecturer confers any right to continue on the post - Held : No.  

            ... the petitioner is precluded from making any grievance  regarding two government orders of 2000 referred to herein above. Simply because petitioner has been transferred and appointed as Incharge Lecturer Vide annexure-A will not confer any right upon him to jump the queue and claim further right seeking direction to let him continue more especially when persons above him are available. In case the plea of the petitioner is accepted, it will require the respondents to firstly by-pass the order of the court and secondly, to deprive the persons who are above him in the seniority list being excluded and thus, requiring respondents to violate the law. This, cannot be allowed to be done. In this behalf, it may be stated that no mandamus can be issued requiring an authority to violate the law or not to follow the same.                                                                                         [Para 8]

Advocates who appeared in this case :
Mr. J. P. Singh, Advocate for the petitioner
Mr. D.S.Chowhan, Advocate for the respondents

Case referred :
Faridabad C.T. Scan Centre v. Director General, Health Services (1997) 7 SCC 752

JUDGMENT AND ORDER

            Sardul Singh, Lecturer Sociology, DIET, Basohli has been ordered to be transfered and posted in DIET, Jammu Vice petitioner. Latter has been ordered to report to director, School Education, Jammu for further orders of posting immediately. This is Govt. order No 1302-Edu of 2000 dated 11.12.200, copy annexure ‘D’ to the writ petition. This order was partially modified vide government order No.1317-Edu of 2000 dated 14.12.2000 which directs the petitioner to report to the Chief Education Officer, Poonch who has been ordered to adjust him (petitioner) against the available post of teacher in the District. In these circumstances, present writ petition has been filed for the grant of following reliefs :

“ i)  a writ of certiorari quashing and setting aside the order   impugned dated 14.12.2000, (annexure ‘E’).

ii)   Issue a writ of mandamus directing and commanding the respondents that while giving the effect to Cabinet Decision No.165/15 dated 21.10.1998 the petitioner be regularised as lecturer w.e.f. the date he was initially appointed as such and to grant him all consequential benefits, as granted to other similarly situated lecturers.

iii)   writ of prohibition restraining the respondents from lowering the status of the petitioner from the post presently held by him,

iv)  Any other writ, direction or order as the Hon’ble Court deems fit and appropriate be passed in favour of the petitioner and against the respondents.”

            According to petitioner he was transfered and adjusted as incharge Lecturer Sociology in his own pay and grade for a period of 06 months or till the posts are filled up by the DPC/PSC which ever is earlier. This was pursuant to Govt. Order No.998-Edu of 1991 dated 15.10.1991. He claims to have been working against this post since then. A copy of this order is attached as annexure ‘A’ with the writ petition.

            One Amrik Singh questioned the issuance of this order by means of SWP No.122 of 97 which came up before the court on 28.02.1998. It was finally disposed of in the following terms :-

“The official respondents have not filed the objections.

  The petitioner is challenging the appointment of respondent No.4 as Incharge, Lecturer Sociology, DIET Jammu. This order came to be passed on 15.10.1991.

  The grievances of the petitioner are as under :

i)   That when the adhoc arrangement in favour of respondent No.4, his name was not considered.

ii)  That this adhoc arrangement cannot be permitted to continue for years together.

     There appears merit in this contention of the  learned counsel for the petitioner. It is settled law that adhoc arrangement cannot be permitted for years together. As such respondents would take steps with a view to fill the post in question on regular basis. Let this be done within a period of three months. The period of three months would begin from the date of copy of this order alongwith writ petition and annexures thereof are made available to respondent authorities by the petitioner. In case it is not possible for them to do the needful within aforementioned period, then respondents would be at liberty to seek extension of time. In that eventuality they have to explain each and every day’s delay. This petition is disposed of accordingly.”

Copy of this has been placed on file as annexure-’B’.

            Again feeling dissatisfied with the said order annexure-B, Amrik Singh preferred LPA(WP) 52/98 which was dismissed on 29.05.1998 by the Division Bench. This order is extracted herein below :-

“Shri K.S. Johal submits that he argued many points before Single Judge but they do not find mention in the impugned judgement. Submission is without force. Points urged before the Single Judge have been specifically recorded in the Judgement and decided accordingly in the presence of counsel for both sides.  Consequently, appellant can not be permitted to urge points which were not argued/pressed before Single Judge.

  There is no merit in this appeal and the same is dismissed accordingly.”

            Record of the case shows that meanwhile, Amrik Singh preferred COA(SW) 142/99. When this COA came up before the court, following order was passed on 21.11.2000 ;

“Two years is too long period for the petitioner to seek implementation of the judgement and yet such delay is being defended. When this fact was pointed out to Mr. Chauhan, he sought time to file supplementary affidavit. So two weeks time is given to the respondents to report compliance. List  immediately after two weeks.”

            In the aforesaid background another government order No. 1302-Edu of 2000 dated 11.12.2000 (Supra) which was modified vide Government order No. 1317 Edu of 2000 dated 14.12.2000 (Supra) came to be passed by the government.

            Learned counsel appearing for the petitioner forcefully urged that existence of vacancy is not disputed petitioner is elegible as per rules for filling up the post as per criteria for the same and has averred that for more than nine years he has been allowed to continue. According to him, petitioner was entitled for regularisation in terms of Cabinet decision No.165/15 date 21.10.1996. Once this benefit is extended to the petitioner, according to Mr. Singh, the impugned order must fall and consequently, there is no escape but for allowing the writ petition. Another limb of arguement put forth by him is that neither the order in the writ petition nor in the LPA and or COA directed disengagement of the petitioner, as such, the first government order  annexure-D as well as its modification both are not sustainable in the eyes of law. According to him a number of similarly situate candidates have been extended the benefit of Cabinet Decision No. 165/15 dated 21.10.1998. In this behalf, he placed reliance on annexures-F, G and H. According to him in the peculiar circumstances of the case, both the aforesaid government orders are un-just, harsh and operessive besides being arbitrary, therefore, being liable to be quashed and set aside.

            In the aforesaid circumstances, notice was ordered to be issued to the respondents on 19.12.2000. They were required to file objections. Notice was accepted by Sh. Chowhan, Advocate. According to him there was a positive direction issued by the court while disposing of SWP No.122/97 when his clients were required to take steps with a view to fill the post in question on regular basis within a period of 03 months. According to them, vide government order No. 833-Edu of 2000 dated 02.06.2000, Sanction was accorded for regularisation/promotion of officers of School Education Department of Lecturers +2 Schools in the discipline of Sociology. This was as per seniority list in the category of Masters / Teachers who possessed Post- Graduation Degree on the date when the vacancy arose. As per said Cabinet Decision No.165/15 dated 21.10.96, cut of date for regularisation was october,1998. Further stand of the official respondents is that in the subject of Sociology, only officers up to S.No.14 out of post Graduate Masters/Teachers could be regularised. No illegality has been committed by the respondents in the issuance of the impugned government orders and at the same time no right either legal/fundemental or otherwise has been violated regarding which petitioner can make any grievance in this writ petition. Recruitment by promotion to the post of Lecturers accordign to Sh. Chowhan, learned counsel for the respondents is strictly in accordance with the Jammu and Kashmir (Gazetted)Services Recruitment Rules 1992.

            After having heard learned counsel for the parties and after having gone through the copy of objections filed on behalf of the respondents, it is clear that petitioner was appointed as incharge Lecturer, DIET as a consequence of Government order No. 998-Edu of 1991 dated 15.10.1991 (Supra). One of the conditions of this sanction was “The adjustment of these teachers as I/c Lecturers shall be purely on stop-gap arrangement and it will not confer any preferentail claim or right to the imcumbents at the time of selection/appointment by the DPC/PSC. They will be entitled to the charge allowance as admissible under rules.”

            At the time of hearing of this writ petition, learned counsel for the parties were not at varience that promotion could be ordered by referring the matter to Public Service Commission. Admittedly, no such exercise was undertaken in the year 1991,  neither, it is the case of the petitioner. In the earlier writ petition SWP122/97 above respondents were required to take steps to fill in the posts on regular basis. This order is not challenged by the petitioner. When the respondents failed to comply with the said direction, Amrik Singh filed COA (Supra).

            In this background, the petitioner is precluded from making any grievance  regarding two government orders of 2000 referred to herein above. Simply because petitioner has been transferred and appointed as Incharge Lecturer Vide          annexure-A will not confer any right upon him to jump the queue and claim further right seeking direction to let him continue more especially when persons above him are available. In case the plea of the petitioner is accepted, it will require the respondents to firstly by-pass the order of the court and secondly, to deprive the persons who are above him in the seniority list being excluded and thus, requiring respondents to violate the law. This, cannot be allowed to be done. In this behalf, it may be stated that no mandamus can be issued requiring an authority to violate the law or not to follow the same. In this behalf reliance can be placed on the decision in the case of the Faridabad C.T.Scan Centre v. Director General, Health Services and others 1997(7) SCC 752.

            In this view of the matter reliance placed by the petitioner on Cabinet   Decision No.165/15 dated 21.10.1998 also does not improve his clients case.

            No other point is urged.

            In view of the aforesaid discussion, there is no merit in this writ petition which is accordingly, dismissed.

            CMP No.2686/2000

            No orders in view of the orders passed in the main case. Since the Government orders were passes in the month of December,2000 and petitioner has not joined pursuant to these, he is allowed a weeks time from the date of this order to comply with the said orders particularly order dated 24.12.2000(Supra) failing which respondents will be at liberty to deal with the matter as per law.

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