Employer cannot benefit from own wrong; entitled to notional service continuity for regularization when delay due to administrative lapse.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP No.2562/2018 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.160/2023 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court seeking following relief: -

a) For issuance of an appropriate writ, order or direction in the nature of writ of mandamus, directing the respondents to give effect to the engagement order of the petitioner bearing No.ZEO/P/SSA/10/161-65 dated 30-12-2010 issued by the respondent No.4 w.e.f. the year 2003 i.e. the date on which one Kushma Devi was engaged pursuant to advertisement notice No.CEO/D/SSA/Advt/18643-75 dated 18-12-2002 issued by respondent No.3 in view of the peculiar facts and circumstances of the case.

b) For issuance of an appropriate writ, order or direction in the nature of writ of mandamus, directing the respondents to release all the consequential benefits flowing out of the same, including regularizing the services of the petitioner as General Line Teacher by taking his initial date of engagement w.e.f. 06- 06-2003, in view of the peculiar facts and circumstances of the case.

c) For issuance of any other writ, order or direction which this Hon'ble Court may deems fit in the facts and circumstances of the case may please also be issued in favour of the petitioner and against the respondents.

3. The facts of the case as pleaded by the petitioner in his pleadings are as follows: -

a) The applicant, Dev Raj, is a permanent resident of Village Ladder, Tehsil Padder, District Kishtwar and possesses the requisite qualifications prescribed for engagement as Rehbar-e- Taleem (RET) under the Sarva Shiksha Abhiyan Scheme. Pursuant to Advertisement Notification No. CEO/D/SSA/Advt/18643-75 dated 18.12.2002 issued by the Chief Education Officer, Doda, applications were invited village-wise for engagement of RETs. The applicant duly applied for engagement against the vacancy in Government Primary School, Ladder, being a bona fide resident of the said village and, as per his assertion, the most meritorious candidate among the applicants from that village.

b) However, contrary to the scheme guidelines and the eligibility conditions mandating local village residency, one Kushma Devi, a resident of Village Atholi, was selected and engaged against the said post in June 2003. Aggrieved by his exclusion, the applicant raised objections before the departmental authorities, contending that the selected candidate was neither actually nor physically residing in Village Ladder and that his legitimate claim had been overlooked without justification. As no corrective action was taken, the applicant was constrained to approach the Hon’ble High Court by filing SWP No. 1491/2005.

c) During the pendency of the writ petition, the Director School Education, Jammu, upon examining the record, accorded approval for the engagement of the applicant as RET in Government Primary School, Ladder vide communication dated 22.11.2007 and further recommended action against the concerned Zonal Education Officer for having violated the RET selection norms. This led to the filing of a separate writ petition by Kushma Devi, bearing SWP No. 2116/2007, challenging the said approval. Both writ petitions were clubbed and decided together by judgment dated 26.02.2009, whereby the writ petition filed by the applicant was allowed, the writ petition filed by Kushma Devi was dismissed, and a categorical direction was issued to implement the Director’s order and