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2006 Supreme(J&K) 302
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mansoor Ahmad Mir, J.
Mohd. Maqbool Wagay - Appellant
Versus
State Of J&K & Ors. - Respondent
SWP No. 247/1996
Decided On : 08 December, 2006
Advocate For Appellant: Z.A. Shah
Advocate For Respondent: Jehangir Iqbal Ganai
Appointment and promotion must adhere to statutory rules. Erroneous promotions contrary to statutory rules cannot confer any right or title.
Headnote:
certiorari - regularization of services - Jammu and Kashmir Education (Subordinate) Service Recruitment Rules, 1979 - 75% direct recruitment and 25% promotion from specific categories - petitioner appointed as peon, later directed to perform duties as a teacher - court finds petitioner not falling in the feeding cadre for promotion to the post of Teacher - court cites various legal provisions and interpretations to support its decision - writ petition dismissed
Fact of the Case:
Petitioner seeks writ of certiorari to quash reversion order and mandamus to regularize services as teacher retrospectively. Petitioner appointed as peon, later directed to perform duties as a teacher. Respondents resist claim, citing petitioner's appointment as orderly and lack of jurisdiction for deputation as a teacher. Petitioner suppressed withdrawal of previous petition and filed contempt petitions for salary.
Finding of the Court:
Court finds petitioner not falling in the feeding cadre for promotion to the post of Teacher. Cites legal provisions and interpretations to support decision. Dismisses writ petition and contempt petitions.
Issues: Petitioner's right to hold the post of teacher and discharge teacher's functions, suppression of withdrawal of previous petition, and contempt petitions for salary.
Ratio Decidendi: Petitioner not falling in the feeding cadre for promotion to the post of Teacher as per Jammu and Kashmir Education (Subordinate) Service Recruitment Rules, 1979. Court cites various legal provisions and interpretations to support its decision.
Final Decision: Writ petition and contempt petitions dismissed. Court finds no merit in the petition.
2. The case projected by the petitioner in this writ petition hat he was appointed as peon in the year 1973 and in the year 1975, he was adjusted as peon in Government High School Hawal. While working as such peon, Block Education Officer addressed a communication dated 16-6-1988, asking the respondent no. 4 to depute a teacher of his Institution to P/S Donaroo and respondent no: 4 instead of deputing a trained teacher to the said school directed petitioner to perform his duties as teacher, by recording an endorsement on the said communication. The communication reads as under:
".....You are hereby apprised to depute a teacher of your institution to P/S Doonaru as Shri Mohamad Iqbal Awan, teacher of the said school has been transferred to M/S Sagarwani, Block Shadimarg. The roll of the students of the school is more than 60, the Headmaster P/S Pahlipora is not in a position to combine the two schools. Treat the matter as most urgent.
Sd/-
Block Education Officer,
Keegam."
The Headmaster recorded the following endorsement on the said communication:
"Mr. Maqbool.
To please note till further orders w.e.f. 20-6-1988."
3. Respondent no. 3 after detecting the illegality committed, issued an order dated 21-12-1995, to the following effect:
"....As per standing instructions of the Director school Education Srinagar, Kashmir, you are directed to detach the non-teaching officials mentioned under reference within no time to his own substantive post at BMSD Keller. Compliance report be submitted to the undersigned by 24-12-1995."
4. Petitioner has challenged the order by the medium of this petition on the grounds taken in the petition.
5. Respondents have resisted the petition on the grounds taken in the counter affidavit. It is profitable to reproduce para 4 of the reply here-under:
"In reply to para no. 4, of the writ petition, it is submitted that Block Education Officer, Keegam, had directed the Headmaster Middle School, Keller to depute a teacher of his Institution to Primary School Donoo as the teacher of the said school has been transferred to other place. The Head Master of his own without any authority, jurisdiction, power, deputed the petitioner for one week till further orders. This was beyond the directions contained in annexure-P/1, therefore, Headmaster can not promote or appoint an orderly as Teacher. The said Headmaster had no jurisdiction to depute an orderly when he was asked to depute a teacher to Primary School, Donoo. In this view, petitioner was not adjusted or appointed as Teacher at all. He carries the same post upon which he was appointed."
6. Respondents have resisted the claim of the petitioner on the count that he was appointed as Orderly and Headmaster had no jurisdiction or competence to depute an orderly for performing the duties of teacher. The Block Education Officer, Keegam had also directed respondent no.4 to depute a teacher to the school, but instead of deputing a teacher, he has deputed the petitioner who, as admitted by the petitioner, is only a class IV employee and if he is discharging the duties as teacher, was acting in violation of the directions passed by Block Education Officer, Keegam.
7. This court at motion stage directed the respondents not to detach the petitioner from the post of teacher and allow him to hold it and discharge the functions of teacher till further orders and also withheld salary be paid to him.
8. It is in place to mention here that prior to the filing of instant petition, petitioner had filed SWP No.
