Mst. Ammatul Matien vs State Of Jammu And Kashmir & Ors.

Per: - Ram Mohan Johri, Administrative Member

The SWP No.78/2007 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.1744/2020 by the Registry of this Tribunal.

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

The present petition has been filed by the petitioner seeking, inter alia, quashing of the order whereby her claim for regularization as a Maktab Teacher/General Line Teacher has been rejected and for issuance of a direction to the respondents to accord her the benefit of regularization at par with similarly situated Maktab/Pathshala Teachers, along with consequential benefits.

The case projected by the petitioner is that she is a permanent resident of the erstwhile State of Jammu and Kashmir and possesses the requisite educational qualifications. She passed the Matriculation Examination in the year 1994 and subsequently acquired Higher Secondary Part-II qualification in the year 2003. She has also passed B.A. Final Examination from Maulana Azad National Urdu University.

It is pleaded that in several areas of the erstwhile State, particularly those lacking adequate primary educational facilities, Maktab Schools were established with the object of imparting education to children and Maktab Teachers were engaged on payment of consolidated remuneration/honorarium. With passage of time, the Government took policy decisions for bringing eligible Maktab/Pathshala Teachers into the regular establishment.

The petitioner claims that she was engaged as a Maktab Teacher at Maktab School Nagbal-Thanthar vide order dated 25.03.1997, initially on consolidated remuneration of Rs.100/- per month. According to her, there was no Government Primary School in the area at the relevant point of time and she continuously discharged teaching duties. Subsequently, the Maktab School was upgraded as a Government Primary School and additional teachers were posted, but the petitioner continued to perform teaching duties.

The petitioner has placed reliance upon various Government orders whereby Maktab/Pathshala Teachers were regularized from time to time. Reference has been made, inter alia, to Government Order No.696-Edu of 1988 dated 12.07.1988 and other subsequent orders under which Maktab Teachers were brought into the regular establishment. She has also referred to the cases of various Maktab/Pathshala Teachers who, according to her, were granted regular status by the respondents.

It is further the case of the petitioner that vide Government Order No.98-Edu of 1998 dated 26.05.1998, certain Maktab and Pathshala Teachers were regularized as Laboratory Assistants. She has also relied upon the cases of other persons including Mohd Sharief, Veena Devi, Mohd Azam, Razia Begum and Rajni Bala to contend that the Government had been extending the benefit of regularization to Maktab Teachers from time to time.

The petitioner asserts that despite continuously rendering service, her case was not given similar treatment. She repeatedly approached the departmental authorities. Various communications were exchanged between the authorities concerning the particulars/bio-data of Maktab Teachers, and her case was also processed from time to time. She submits that the factum of her engagement and continued discharge of teaching duties was within the knowledge of the respondents.

It is further pleaded that the petitioner had earlier approached the High Court by way of SWP No.6/2001. Subsequently also, she continued to pursue her claim before the departmental authorities. Ultimately, her claim came to be rejected vide Government Order No.649-Edu of 2008 dated 29.12.2008. Aggrieved thereof, she has assailed the rejection principally on the ground that similarly situated Maktab/Pathshala Teachers have been regularized whereas she has been singled out for differential treatment.

The respondents No.1 to 4 have filed their objections and contested the petition. 10. The principal defence of the respondents is that, under the instructions of the Government, bio-data of Maktab/Pathshala Teachers seeking regularization was required to be submitted to the competent authority, namely, the Administrative Department of the School Education Department, before the prescribed cut-off date of 20.04.1998. According to the respondents, the petitioner failed to submit her bio-data within the stipulated period and, consequently, her case could not be considered along with those Maktab/Pathshala Teachers of District Doda whose cases were received within time and subsequently approved for regularization.

The respondents further submit that Government Order No.649-Edu of 2008 dated 29.12.2008 was issued after proper verification of the petitioner’s case and after obtaining the views of the competent authority. According to them, the petitioner approached for regularization only after the cut-off date and, therefore, her case could not be considered individually beyond the prescribed period.

The respondents have also sought to distinguish the judgment in SWP No.6/2001 titled Munshi Ram versus State of J&K and others, relied upon by the petitioner. It is their stand that the said case is distinguishable because the petitioner had failed to submit her bio-data to the Administrative Department before the cut-off date.

Another objection taken by the respondents relates to the petitioner’s initial engagement. While admitting that there was no facility for imparting education to the students of Nagbal, Banihal at the relevant point of time and that a Primary School was established there, the respondents state that the petitioner was permitted to work as a Maktab Teacher but no formal engagement order was issued by the competent authority, namely, the Chief Education Officer. According to them, the engagement order dated 25.03.1997 was issued by an authority not competent to make such engagement.

The respondents nevertheless admit that Government Primary School, Nagbal Tethar, was subsequently upgraded. In regard to the petitioner’s assertion of having continuously performed duties, the respondents state that the matter is capable of being ascertained from the official record. They have, however, disputed her assertion that she was the only teacher teaching the students. 16. It is further maintained that mere subsequent forwarding of the petitioner’s case could not cure the failure to submit her bio-data within the prescribed period. According to the respondents, her case was considered by the higher authorities but was rejected for the reasons contained in the impugned order. The respondents accordingly pray for dismissal of the petition.

Heard learned counsel for the parties and perused the material placed on record.

The controversy essentially revolves around whether the petitioner’s claim for regularization could have been rejected solely on the basis that her bio-data was not submitted to the Administrative Department before the cut-off date of 20.04.1998, particularly when she claims continuous discharge of duties as a Maktab Teacher and relies upon regularization granted to other similarly situated Maktab/Pathshala Teachers.

At the outset, this Court is conscious of the settled principle that mere continuation in service for a long period does not, by itself, create an indefeasible right to regularization. Regularization has necessarily to be governed by the applicable rules, policy and conditions prescribed by the competent Government. Likewise, the Court cannot direct regularization dehors the governing scheme merely on sympathetic considerations.

However, the present matter has certain peculiar features which cannot be overlooked. The respondents do not completely dispute the petitioner’s association with the school. On the contrary, in their objections they have admitted that there was no facility for imparting education to the students of Nagbal, Banihal at the relevant point of time; that a Primary School was established there; and that the petitioner was permitted to work as a Maktab Teacher. Their objection is essentially that the engagement dated 25.03.1997 emanated from an authority which was not competent to formally appoint her.

The distinction is significant. The respondents are not setting up a case that the petitioner never worked at the institution or that her claim of engagement is altogether fictitious. Rather, their defence questions the competence of the authority which issued the engagement order. The respondents have further stated that the petitioner’s assertion regarding continuous performance of duties is a matter which can be ascertained from the official record.

The second and more substantial objection of the respondents is that the petitioner’s bio-data was not submitted to the Administrative Department by 20.04.1998. The respondents have specifically stated that similarly situated Maktab/Pathshala Teachers of District Doda whose cases were submitted within the stipulated period came to be considered and approved for regularization.

A cut-off date prescribed under a policy cannot ordinarily be ignored by a Court. At the same time, before denying a person consideration permanently on the basis of such cut-off date, it is necessary to ascertain whether the failure to place the requisite particulars before the competent authority was attributable to the employee concerned or was occasioned by administrative delay, particularly where the employee’s engagement and service were within the knowledge of the departmental authorities.

There is a material distinction between a person who did not fulfil the substantive conditions of the policy by the prescribed date and a person who otherwise satisfied the relevant conditions but whose particulars were not transmitted to the competent authority within time for reasons not attributable to him or her. The impugned decision must disclose consideration of this aspect, particularly when differential treatment vis-à-vis similarly situated employees is alleged.

The record placed before the Court indicates that the petitioner’s case did not end with the cut-off date. Her claim continued to engage the attention of the departmental authorities and communications regarding her case and the particulars of Maktab Teachers were exchanged subsequently. Eventually, her claim was considered and rejected under Government Order No.649-Edu of 2008 dated 29.12.2008. The respondents themselves describe the said order as a decision taken after verification and consideration by the competent authority.

Once the respondents chose to consider the petitioner’s case on merits, the consideration was required to address the relevant circumstances comprehensively. It was necessary to ascertain the nature and authenticity of her initial engagement; whether she had actually continued to perform teaching duties; the qualifications acquired by her; the precise policy governing regularization of Maktab/Pathshala Teachers; the treatment extended to other similarly situated persons; and, importantly, the reason why her bio-data did not reach the Administrative Department before 20.04.1998.

The respondents cannot be directed by this Court to regularize the petitioner merely because other Maktab Teachers were regularized. Equality under Article 14 does not contemplate repetition of an illegality. Before parity can be granted, it must be established that the petitioner and the persons relied upon by her are similarly situated in all material respects and that the benefit granted to such persons flowed from a valid policy or Government decision applicable to the petitioner.

At the same time, if similarly situated Maktab/Pathshala Teachers engaged under comparable circumstances were regularized under a Government policy and the petitioner otherwise fulfilled the conditions of that policy, her case cannot be rejected mechanically merely because her particulars were not forwarded within time, without determining who was responsible for such non-submission.

There is yet another aspect. The respondents contend that the petitioner’s engagement was made by an incompetent authority. That issue also requires proper examination from the contemporaneous record. If the petitioner was permitted by departmental authorities to discharge teaching duties continuously and her engagement was acknowledged and acted upon over a considerable period, the competent authority, while reconsidering the matter, would necessarily have to determine the legal effect thereof under the policy governing Maktab Teachers. Conversely, if her initial engagement itself falls outside the class of engagements covered by the regularization policy, she cannot claim regularization merely on the strength of long service.

Thus, the material presently before the Court does not justify issuance of a positive mandamus directing regularization straightaway. Such a direction would require the Court to decide disputed factual questions regarding the validity of the petitioner’s engagement, continuity of service, applicability of the relevant regularization policy and comparability with persons relied upon by her. These matters are appropriately examined in the first instance by the competent Administrative Department on the basis of the official record.

However, for the same reasons, outright dismissal of the petition would also not serve the ends of justice. The petitioner’s claim deserves a fresh and meaningful consideration rather than rejection merely by reiterating the cut-off date.

In view of the foregoing discussion, the petition is partly allowed. Government Order No.649-Edu of 2008 dated 29.12.2008, insofar as it rejects the claim of the petitioner for regularization, is hereby set aside.

The respondents, particularly the competent authority in the School Education Department, are directed to reconsider the petitioner’s claim for regularization/absorption as a Maktab Teacher/General Line Teacher strictly in accordance with the applicable Government policy/rules. While undertaking such exercise, the competent authority shall specifically examine:

In the event the competent authority finds, upon verification of the record, that the petitioner is similarly situated to those Maktab/Pathshala Teachers who were validly regularized under the applicable Government policy and that the failure of her bio-data to reach the Administrative Department within the stipulated period was not attributable to her, her case shall be extended similar treatment in accordance with law, without discriminating against her merely on account of such departmental delay.

It is clarified that this judgment shall not be construed as a direction for automatic regularization of the petitioner. The entitlement shall depend upon the outcome of the aforesaid exercise and satisfaction of the conditions of the applicable policy.

The entire exercise shall be completed and a reasoned and speaking order shall be passed and communicated to the petitioner within a period of three months from the date a certified copy of this judgment is made available to the competent authority.

The petition stands disposed of in the above terms. All connected miscellaneous applications, if any, shall also stand disposed of. No order as to costs.