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Judgment
Petitioner's case is that she has been engaged as teacher in the Crèche Center Lanoora Budgam on monthlyconsolidated pay of Rs.350/ P. M
on 28.9.1989, by the then Chairman Welfare Extension Project Budgam. Respondent No.2 (annexureP1). She joined and resumed duties as such
with respondent No 3 at Lanoora Center. In 1993, one post of Gram Sevika in the Welfare Extension Project at Budgam fell vacant as the
appointed Gram Sevika namely Hasina Hakim vacated the post. As petitioner had improved her qualification in between and had eligibility and
experience, her case was recommended by her immediate Officer (Treasurer Welfare Extension Project Budgam) to respondent No.1 for her
appointment against this available vacancy (annexureP2). Petitioner further represented to the authorities that having the eligibility, qualification and
experience, her case may be considered for appointment as Gram Sevika. Respondent No.2 again recommended her case on 14.6.92 to
respondent No.1 Chairperson State Social Welfare Advisory Board, Srinagar (annexureP3). Even thereafter, petitioner represented to
respondents (annexure P4), but no steps or action has been taken on her representation or the presentation and recommendation of her case by
her superior officers to the Competent authority. Consideration is being withheld to her against available post of Gram Sevika in Budgam.
Presentation of her case through her counsel (annexureP5) has not also evoked any response. Respondents are denying her consideration against
the post. Despite her being engaged by respondents as Crèche Teacher way back in 1989 in which post she worked all along and gained
sufficient experience for last about 10 years, she is being denied consideration unjustly and illegally. Respondents are under legal obligation to
accord her consideration in terms of the rules against the said post and till it is done the petitioner's continuiry as Crèche Teacher on original terms
and conditions cannot be denied to her.
2.On these averred factual and circumstantial premises, she prays for consideration for appointment against the available post of Gram Sevika with
the respondents and till the consideration is accorded she may be continued as she is presently continuing on initial terms and conditions of her
engagement as Crèche Teacher.
3.The case has been admitted to hearing on 25.10.1996. Respondents have opted not to file any reply/counter affidavit. Counsel for petitioner and
Mr. G. Mustaffa, GA for respondents, have been heard. At the outset Mr. Mustaffa concedes that as despite opportunity respondents have not
filed reply/counter, therefore, in absence of such reply the factual allegations as averred in the writ petition have to be taken as uncontroverted and
intact. The engagement of petitioner as Crèche Teacher at Lanoora Budgam Center vide annexure P1, is not denied. Recommending petitioner's
case vide annexure P2 and P3 is equally admitted. Representation by petitioner for according her consideration against the post of Gram Sevika
available in District Budgam vides annexure P4 and P5 is not also refused. Respondent's counsel concedes that post of Gram Sevika is available
with respondents.
4.In the above facts and circumstances, petitioner, subject to eligibility, qualification and norms prescribed for appointment to the post of Gram
Sevika under the respondents in accordance with the recruitment rules/norms/executive instructions cannot be denied consideration, more so
keeping in view her length of engagement as Crèche Teacher in Social Welfare Extension Project under the respondent No. 1. After all
petitioners may not have a right of appointment, but law give her right of consideration for appointment to the post of Gram Sevika. Denial of
consideration by long inaction or silence on the part of respondents infringes the equality clause and violates her right as guaranteed under Article
14 and 16 of Constitution.
5.Hon'ble Justice B. P. Reddy speaking for the Court in AIR 1992 S. C. 2130 in the context of role of Court in service matters within the ambit of
powers exercised under Article 309 of the Constitution observed.
.... The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any,
governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of law and to see that the executive acts
fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its
employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case
may be.
6.Mr. Mustaffa, GA concedes that petitioner has a right of consideration along with other eligible candidates against the post. No explanation is
offered for long silence/inaction of respondents to accord consideration to her case in accordance with rules and law, during last around five years,
despite the directions of this Court at the initial stage on 28.6.94, of her being considered against the post of Gram Sevika on regular basis and for
payment of emoluments to her as an engaged Crèche Teacher. Contextually the contempt 64/95 is also pending on the subject of non
implementation of the above directions passed in expert on 28.6.94. But since the direction subject of the contempt has not been made absolute,
therefore, much cannot be made out at this stage out of the pending contempt matter. However, the contempt shall be governed by the ultimate
directions to be given here after while finally disposing off the instant writ petition.
7.After considering the matter informed of the above reasons, respondents are directed to consider the case of petitioner along with other eligible
candidates for regularisation against the post of Gram Sevika available in Welfare Extension Project Budgam under respondent No.1, subject to
her eligibility and prescribed norms after keeping in view her length of service as Crèche Teacher under respondents at Lanoora Center and the
experience gained and qualification improved for the post of Gram Sevika after her initial engagement in September 1989. The competent authority
shall take note of the law laid down by AIR 1992 S. C. 2130.
8.So long the petitioner has worked and is working as Crèche Teacher in Welfare Extension Project Budgam at Lanoora Center, she shall be
disbursed and paid emoluments she has earned on which emoluments she was engaged as such teacher by the respondents initially. Her
continuance on the post of Crèche Teacher on which post she is working presently shall continue till consideration for regularisation as above is
accorded to her case.
9.CMP: 7986/98 and 284/99 stand disposed of as the matter is covered by above directions.
10.Contempt No .64/95 also stands disposed of after the subject of contempt, the initial interim direction dated: 28.6.94, culminate in and merge
with the final directions and orders of the Court, as above.