Jammu, May 02: CAT in T.A. 62/637/2020 titled Abdul Qayoom Dar & ors Versus Commissioner/Secretary, Higher Education Department Pronounced on16th day of November 2021, HON’BLE MR. RAKESH SAGAR JAIN, MEMBER (J) HON’BLE MR. ANAND MATHUR, MEMBER (A) after hearing ordered as:-
The present T.A. has been filed by applicant Abdul Qayoom Dar and 17 other applicant seeking the following reliefs:- “Certiorari, quashing the impugned Government Order No. 112- Edu of 201 dated 05.03.2019, (Annexure-I) and all the consequential orders issued in pursuance of the said order be declared as a nullity, in the interests of justice. Certiorari, quashing State Administrative Council Decision No. 166/22/2018 dated 07.12/2018 (Annexure-IV) to the extent it provides for promotion to the post of lecturers in school education department 100%-by promotion. Pass such other order or orders, which the Hon’ble Court may deem fit and proper, in the interest of justice.”
2. Case of applicants is that the impugned Government Order bearing No.112-Edu of 2019 dated 05.03.2019 does not have the force of law and as such is a nullity on the face of the provisions contained in the Jammu and Kashmir School Education (Gazetted) Service Recruitment Rules, 2010, (hereinafter referred to as “the rules”) notified vide Notification SRO-481,dated 30th December, 2010.
The applicants have pleaded that they are highly qualified candidates working on academic arrangement in the School Education Department in various Higher Secondary Schools and the order impugned will adversely affect them in as much as Schedule II attached to SRO 481 provides that the post of Lecturers in the School Education Department have to be filled up by direct recruitment or by promotion in the ratio of 50% each but to their detriment, the impugned order directs that these posts shall be filled up by promotion only which is contrary to the rules.
3. It is further the case of the applicant that the action of the respondent No.2 (Commissioner Secretary, Higher Education Department) in issuing the impugned order being in violation of the rules cannot withstand the test of law on the analogy of the rules evolved on the subject.
Hence, the present application seeking quashment of Government Order No. 112-Edu of 2019 dated 05.03.2019 and State Administrative Decision No. 166/22/2018 dated 07.12.2018 to the extent it provides for promotion to the post of lecturers in school education department 100 % by promotion. 4. In the counter affidavit/objections, the respondents have rebutted the case set up by the applicant on the grounds inter-alia that it is within the exclusive domain and power of the Administrative Department to accord promotion to the post of Lecturers.
The Ministry of Human Resource Development (MHRD) launched a Centrally Sponsored Scheme (CSS) namely Sarva Shiksha Abhiyan (SSA) for elementary education which was extended to the then State of Jammu and Kashmir in the year 2002-03. This scheme contains the provision for the opening of new Primary Schools and upgradation of existing Primary Schools to Upper Primary level in the uncovered areas/habitations for the universalization of the elementary education by way of providing infrastructure and teaching facilities.
Subsequently, by way of the regularization of ReTs to RReTs, a parallel cadre of ReT/SSA of 41436 teachers has been set up, mostly dependent on the financial support of the Centrally Sponsored Scheme of SSA. This cadre is different from General Line Teachers as far as the pattern of their recruitment is concerned, which is decentralized and habitation specific.
The merit is determined within habitation by the Zonal Education Officers and the Chief Education Officer, whereas, the merit of the General Line Teachers is determined within the district by Service Selection Board (SSB) after following due selection procedure. This has resulted in financial crises due to slashing down the financial support by the Ministry of Human Resource Development (MHRD) under SSA, to nearly half and also due to the additional burden of salary by implementing the 7th Pay Commission recommendations to these set of teachers in accordance with the commitment of the then Governor and even the staff posted under RMSA School also started facing financial crunch due to slashing down of MHRD GOI support as well as the additional requirement of meeting out the gap for placing them in the 7 th Pay Commission Grades. The approximate gap to meet out the requirement of RMSA staff is around Rs.14 crores a month.
5. It is the further stand of the respondents that looking to the facts of the issue and demand of SSA teachers, the State Government vide Government Order No.1263-GAD of 2018 dated 13.08.2018 constituted a committee of the officers to devise a strategy to review the issues of all the school teachers in the School Education Department including those funded under the on-going Centrally Sponsored Scheme “Sarva Shiksha Abhiyan” and suggest remedial measures thereof.
The Committee submitted its recommendation/report for resolving the issue of ReTs/RReTs under SSA Scheme.
On the basis of the recommendations of the said committee, an action plan was placed before the State Administrative Council by the department, who vide its decision No.166/22/2018 Dated 07.12.2018 at point No.(x) accorded sanction that the School Education Department is authorized as a onetime exception to fill the 3864 vacant posts of Lecturers 100% by promotion of eligible PG Teachers/masters in the relevant disciplines as per the eligibility in place of the existing method of recruitment (50% direct and 50% by promotion). The resultant vacancies of teachers will be utilized for conversion as ‘Teacher Grade-II’.
6. The object of the aforesaid exercise was to resolve the salary and related issues of the regularized ReTs (RReTs) under Sarva Shiksha Abhiyan and the teaching faculty of the Rashtriya Madhyamik Shiksha Abhiyan (RMSA) (now Samagra Shiksha). By the implementation of the aforesaid Order, the Department succeeded in equipping Higher Secondary Schools with qualified staff having eligibility/suitability/qualification strictly as provided/prescribed in the Recruitment rules for the overall interest of the students.
The said decision is a onetime exception and is restricted to the “fixed number” and it arises out of the situation mentioned in the order impugned.
This decision is a rational one evolved to fast-track the filling of vacancies to overcome the deficiency of Lecturers in various Higher Secondary Schools.
It is further pleaded that the Department simultaneously carried out an exercise to work out the vacancies of Lecturers in various disciplines accruing due to promotions/retirement etc, and an adequate number of posts will become available under the direct recruitment quota for their reference to the J&K, PSC for selection amongst suitable/eligible candidates.
In light of the circumstances, referred above, the apprehensions expressed by the applicants are well covered and the posts under the direct quota are being referred to the J&K, PSC in due course of time.
7. The learned Additional Advocate General has also filed another counter affidavit on behalf of the answering respondents stating therein that Rule 5 of the rules, clearly envisages that the appointment to a post in the service may be made by direct recruitment or promotion, partly by promotion and partly by direct recruitment in the ratio and in the manner as mentioned in the Schedule.
The Government as such is invested with the power to appoint a person by way of promotion to the post of lecturer. The Government after deliberating upon the matter and in order to meet the compelling circumstances has come up with the policy decision and has accorded sanction to the filling up of 3864 vacant posts of Lecturers 100% by promotion only in relaxation of the rules, notified vide SRO 481 dated 30/10/2010 as a onetime exception.
8. It has further been contended that the question is whether the power to relax the rules was exercised by the Government/official respondents on justifiable reasons or arbitrarily. In answer, it is stated that the case has been examined by the State Administrative Council (SAC) and considering the matter in the totality of the circumstances sanction for relaxation was accorded and accordingly an order was issued by the General Administration Department to meet the emergent situation in which the School Education Department was engulfed.
9. During the pendency of the application an application for intervention seeking impleadment/vacation of interim directions has also been filed by Abdul Qayoom Dar and others primarily on the grounds that the apprehension expressed by the applicants is premature and unfounded since the department has made it amply clear that it is bound to follow the mandate of the rules and the respective quota fixed for in-service and direct candidates will be maintained in the ratio of 50:50.
The department has simultaneously carried out an exercise to work out the vacancies of ‘Lecturers’ in various disciplines occurring due to promotions/retirement etc, and an adequate number of posts are becoming available for ‘direct recruitment’ for their reference to J&K PSC. Therefore, the very basis of the apprehension as projected by the applicants is ruled out.
10. We have heard and considered the arguments of learned counsel for applicants, learned AAG and learned counsel for the impleaded parties and gone through the materials on record.
11. The controversy in the instant application arises out of the Jammu and Kashmir State Administrative Council (SAC) Decision No.166/22/2018 Dated 07.12.2018.
The relevant excerpts thereof are reproduced below as below:- “x. The School Education Department is authorized as a onetime exception to fill the 3864 vacant posts of Lecturers 100% by promotion of eligible PG Teachers/Masters in the relevant disciplines as per the eligibility in place of the existing method of recruitment (50% direct and 50% by promotion).
The resultant vacancies of teachers will be utilized for conversion as ‘Teachers Garade-II’. This will, however, not form any precedence in future but shall be treated as an extraordinary measure in the context of the present proposal. xi. Grant of one-time exemption to the School Education Department for making regularization/confirmation/promotion of the officers (backlog and fresh) in respect of each gazette category without referring the cases to the JKPSC/DPC”.
12. The Government Order No.112-Edu of 2019 dated 05.03.2019, relatable to the State Administrative Council Decision No.166/22/2018 dated 07.12.2018reads as under:-
“Sanction is hereby accorded to the filing up of 3864 vacant Posts of Lecturers 100% by promotion in relaxation of J&K School Education (Gazetted) Service Recruitment Rules, 2010 notified vide SRO 481 dated 30-12-2010, as a onetime exception, subject to the following conditions:- i) Eligibility criteria as prescribed under Schedule II of the J&J School Education (Gazetted) Service Recruitment Rules, 2010 be strictly adhered to; ii)The Govt. Order No.115-GAD of 2019, dated 23.1.2019, must be strictly followed for filling up of these posts; iii) The resultant vacancies of teachers shall be utilized for conversion as “Teacher Grade-II”.
This shall however, not form any precedence in future, but shall be treated as an extraordinary measure in the context of resolving salary and related issues of Regularized ReTs(RReTs) under Sarva Shiksha Abhiyan (SSA) and teaching faculty or Rastriya Madhyamik Shiksha Abhiyan (RAMSA) (now Samagra Shiksha).”
13. The Government Order No.114-GAD of 2019 dated 23.01.2019 based on the Decision of State Administrative Council, accords sanction to the grant of one time exemption to the School Education Department for making regularization/promotion of officers (backlog and fresh) in respect of each gazetted category without referring the cases to the Jammu and Kashmir Public Service Commission/Departmental Promotion Committee.
14. So, the case set up by the applicants is that the rules have been flouted in passing the order impugned which directed that the vacant posts of Lecturers shall be filled up by promotion only. This is the main plank of their arguments also on which they have tried to raise their edifice.
Viewed thus, the rules that have a bearing on the subject matter of the T.A. are required to be looked into to arrive at a just conclusion. We, therefore refer to Rule 5 of the rules reads as under:-
“5. Qualification and method of Recruitment:- (1). No person shall be eligible for appointment or promotion to any post in any class, category or grade in the service unless he/she possess the qualifications as laid down in the Schedule-II and fulfills other requirements of recruitment as provided in the rules and orders for the time being in force. (2) The appointment to a post in the service may be made by:- (a) direct recruitment, or; (b) promotion; (c) partly by (a) and partly by (b) in the ratio and in the manner as mentioned against each post in Schedule-II: Provided that all the posts under direct recruitment shall be filled through J&K Public Service Commission unless any post/category of posts is exempted from the purview of the Public Service Commission in terms of J&K Public Service Commission (Limitation of Functions) Regulations, 1957 by the Government by specific order;
(3) The departments shall refer vacancies in the direct/promotion quota to the J&K Public Service Commission and Departmental Promotion Committees as per SRO-166 dated 14-06-2005 as amended from time to time.” 15. Rule 5(2) provides that the appointment to the post or service may be made by direct recruitment, or promotion.
It also provides that such appointment may be made partly by (a) and partly by (b) in the ratio and in the manner as mentioned against each post in Schedule-II. Therefore, the rule is explicit and unambiguous. Rule 5 does not lay down that the appointment to a post or service shall necessarily be made by direct recruitment or by promotion.
It gives the appointing authority the power to consider and determine whether such an appointment shall be made by direct recruitment or by promotion only or by taking refuge in and under both the modes provided for making such appointments.
The rule is not mandatory in its nature and forms but is obligatory in its context, substance and scheme.
It confers upon the Government the power to take resort to or put in use any of the modes delineated and defined in it for makes the appointments.
16. It is imperative to state that a definition is a statement of the meaning of a term. The word/term “or” as it finds place in between (a) and (b) of rule 5 has been used as a function word to indicate an alternative. It is a conjunction used to join the alternatives, for example apples or pears; apples, pears or cheese.
This word has been used and designed in the rule to give the appointing authority a choice to give preference to any of the substitutes provided in it i.e., to direct that the appointment to the post irrespective of the quantity or magnitude may be made by direct recruitment or by promotion or partly by direct recruitment and partly by promotion in the ratio of 50:50.
If the appointing authority comes to the conclusion that the appointment to the post has to be made partly by direct recruitment and partly by promotion, it is at that juncture alone that Schedule-II attached to the rules will come into play and will rule the roost.
Therefore, on the face of the rule position evolved on the subject, the decision taken by the SAC and the subsequent orders passed from time to time directing that the appointment to the post of lecturers shall be made by promotion only does not violate any of the provisions of the rules or the law.
That being so the contention of the applicants that the appointments had to be made partly by direct recruitment and partly by promotion is not the object or the Scheme of the rules and devoid of merit.
17. Assuming it for the sake of arguments but not conceded that the impugned order has been passed in defiance of the rules in that eventuality also what can be said is that the power to relax the rules or a rule made under Article 309 of the Constitution of India (which corresponded to Section 124 of the erstwhile Constitution of Jammu and Kashmir) is conferred upon the Government to meet an emergent situation in a case where the Government feels that injustice has been done or is likely to be done to an individual employee or a class of employees or where the working of the rules may be impossible.
The respondents have defined and amplified the reasons that made them to accord sanction to the decision that the post of lecturers and others will this once be filled by promotion only.
The minutes of the Government of Jammu and Kashmir State Administrative Council (SAC) Decision No.166/22/2018dated 07.12.2018 are a sequel to it and the relevant extracts thereof require to be detailed below:-
“I am to convey herewith the decision of the State Administrative Council (SAC) on the above subject, as quoted below:
SAC considered the departmental proposal based on the recommendations of the Committee constituted vide Government Order No.1263-GAD of 2018 dated 13.08.2018 and broadly accepted the Action Plan proposed by the Committee as per ‘Annexure-A’. SAC approved as under: i.Creation of separate cadre of ‘Teacher Grade-II” in the pay scale of RS.5200-20200 GP 2800 (pre- revised up-to 31.08.2018) and Rs.29200-92300 (L-5) 7th Pay Commission from 01.09.2018 in the School Education Department.
These posts shall be filled up 100% by selection out of Regularized Rehab-e-Taleem Teachers (RReTs) with the qualification “Graduate from any recognized University”.
Preference will be give to the candidates possessing a higher qualification(s) and those having B.Ed/M.Ed. ii. The cadre of ‘Teacher Grade-II’ is created exclusively for the purpose of adjusting RReTs and will gradually get extinguished/abolished (as explained below), over a period of time. iii. The service rule of the ‘Teachers Grade-II’ shall be the same the those of General cadre till all the posts of ‘Teacher Grade-II’ get subsumed/adjusted/abolished.
They will be entitled to pay/grade as per the 6th Pay Commission up-to August 30, 2018 and to 7th Pay Commission with effect from September 1, 2018. iv. The School Education Department will undertake necessary amendments in the Jammu and Kashmir School Education (Subordinate) Services Recruitment Rules, 2008 as amended from time to time to incorporate the above decisions. v. RReTs will be converted into ‘Teacher Grade-II’ as per the procedure laid down in the Action Plan. For the purpose of their appointment as ‘Teacher Grade-II’, the School Education Department will fulfill the procedural requirements as stipulated by the Committee in its report. vi. Formal merger of 526 posts of Headmasters and 3132 posts of Subject Specific Masters created under RMSA with Headmasters and Masters in the School Education Department. vii. Conversion/up-gradation of vacant 4,522 direct quota non-teaching posts in different categories to an equivalent number of posts of ‘Teacher Grade-II. viii. Conversion of existing and anticipated vacancies of Teachers into the equivalent number of posts of Teacher Grade-II as follows: (a) 6,576 existing and anticipated vacant posts of General Line Teachers (as per the details given in the Action Plan at Annexure “A”); and (b)
Posts of the General Line Teacher becoming vacant in future on the retirement/promotion/resignation/death till all supernumerary posts in para (ix) below are subsumed. ix. Creation of 26,363 supernumerary posts of ‘Teacher Grade-II’ with the stipulation that these supernumerary posts shall subsist till completion of appointment/transition of RReTs into ‘Teacher Grade-II’ and, thereafter, shall cease to exist:
(a) On the superannuation or resignation or death of a Teacher Grade-II; or (b) On the promotion of a ‘Teacher Grade-II’ to the post of Master; or (c) On the superannuation or resignation or death of a General Line Teacher, consequent to which the supernumerary post of Teacher Grade-II will be adjusted against the vacant post of General Line Teacher; or (d) On the promotion of a General Line Teacher, when the supernumerary post of ‘Teacher Grade- II’ will be adjusted against the vacant post of General Line Teacher.”
18. These minutes would show that directing the filling of the posts of Lecturers by promotion only would pave the way for a separate cadre of ‘Teacher Grade-II’ to be filled by selection and created exclusively for RReTs.
It also states that with one time exception the government will be in a position to rationalize the system as by promotion the posts of lecturers would be filled and the studies of the students will not suffer due to their non availability.
It also provides that this exercise will also clear the air for the creation of a huge number of supernumerary posts. These steps taken by the SAC do fall within the ambit and scope of meeting an emergent situation.
19. The power to relax the recruitment rules or any other rule made by the State Government under Art. 309 of the Constitution corresponding to Section 124 of the erstwhile constitution of Jammu and Kashmir, is conferred upon the Government to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where the working of the rule might become impossible.
Under law, such a power has necessarily to be conferred to the employer particularly the State Government or the Central Government who have to deal with hundreds of employees working under them in different departments including the central or the State Secretariat.
20. Looking to the facts of the case and settled law, we are of the opinion that the T.A. is meritless and accordingly dismissed.
No order as to costs.
(ANAND MATHUR) (RAKESH SAGAR JAIN) MEMBER (A) MEMBER (J)
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