Jammu, Dec 26: In SWP 1161/2004 IA 2138/2012 IA 2475/2008 titled Nirmala Kumari v/s State & ors, Honble Justice SANJEEV KUMAR, JUDGE after hearing both sides ordered as:-
1 The petitioner in this petition has, inter alia, prayed for the following reliefs:-
i. Writ of Certiorari quashing order No.ZEO/Akh/885-87 dated 16.1.2004 whereby respondent No.7 was appointed as Rehbare-Taleem Teacher in Government Primary School Bhambaran as the said respondent No.7 is absent from duty unauthorisedly for the last four months causing hardships to students and is doing B.Ed. course regularly without permission of the department.
ii. Writ of Mandamus commanding the respondents to appoint the petitioner being the next candidate in merit/panel in place of respondent No.7 as recommended by the Village Level Committee.
2 So far as the first prayer of the petitioner is concerned, even if it is considered that respondent No.7, after having been appointed as ReT, is continuously unauthorisedly absent from duties which calls for disciplinary action, yet the petitioner, being next in the order of merit in the panel, cannot be accommodated in place of respondent No.7. It is so because even if the Sr. No. 2 2 OWP No. 1161/2004 services of respondent No.7 are terminated for unauthorised absence, the post that would fall vacant has to be treated as fresh and necessarily filled up in accordance with law.
3 With the closure of ReT Scheme, the post that falls vacant pursuant to the ouster of respondent No.7 has to be filled up through J&K Service Selection Board. The petitioner being next in the order of merit in the panel would have no exclusive right to the said post. The panel got exhausted when respondent No.7 was appointed.
4 In that view of the matter, this petition does not have any substance and, therefore, deserves to be dismissed. However, this Court leaves it open to the official respondents to proceed against respondent No.7 if the allegation leveled by the petitioner that respondent No.7 after having been appointed as ReT in Government Primary School, Bhambaran has remained unauthorisedly absent and violated the J&K Civil Services (Conduct) Rules.
5 In view of the aforesaid, this petition is found to be without any merit and is, accordingly dismissed along with connected applications. It shall, however, be up to the official respondents to take appropriate action against respondent No.7, if the allegation of unauthorised absence of respondent No.7 is correct.
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