Ut Of J&K And Ors Reserved On ... vs .
2022 Latest Caselaw 999 j&K/2

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR

                                                   WP(C ) No. 370/2022
                                                   CM No. 933/2022     c/w
Javeed Ahmad Bhat
     Vs.
UT of J&K and ors
                                                   WP(C) No.371/2022
                                                   CM No. 934/2022
Sajad Hussain Shah
     Vs.
UT of J&K and ors

                                                   WP(C) No.372/2022
                                                   CM No. 935/2022
Shabeer Ahmad Malla
        Vs
UT of J&K and ors                                Reserved on       14.07.2022.
                                                 Pronounced on     18.07.2022.

                                                               ..... petitioner (s)

                               Through :- Mr. Mir Suhail Advocate.
                                                           .....Respondent(s)

                      Through :- Mr.Ilyas Laway, G.A. vice
                                 Mr. Asif Maqbool Dy.AG.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
                       JUDGMENT

1. In these three writ petitions clubbed together, the petitioners are

aggrieved of and have challenged Government Order No.78-Edu of 2022 dated

21.02.2022 [„the impugned order‟] whereby the engagement of the petitioners

as Rehbar-e-Taleems [„ReTs‟] in Middle School, G.B. Langkhul Kachard

Nadimarg, Kulgam, Middle School, Nagbal, Anantnag and UPS Adoora

Shopian, respectively has been terminated with immediate effect. The

impugned order is challenged by the petitioners in their respective petitions on

variety of grounds. However, before adverting to the grounds of challenge

pleaded and urged by learned counsel appearing for the petitioners, it is

necessary to set out brief background, leading to the issuance of impugned

order of termination of engagement of the petitioners.

                                        2                  WP(C ) No 370/2022 c/w
                                                          Connected matters

2            ReT Scheme for providing teaching guides in the Schools facing

deficiency of teaching staff was launched nationwide somewhere in the year

2000. The then Government of Jammu and Kashmir, vide Government Order

No.396-Edu of 2000 dated 28.04.2000, issued detailed guidelines for

engagement of teaching guides to be known as ReTs in different Schools of the

then State. The selection process to supply the identified vacancies of ReTs

was set in motion in different education zones of the State. As a sequel to this

effort of the Government, ZEO, D.H.Pora issued an Advertisement

Notification on 28.12.2011 inviting applications from the candidates hailing

from the revenue village concerned for filling up of two posts of ReTs in the

Primary School Gojer Basti Lungkhull Kachad Nandimarg and the last date

for submission of application forms was 10 days from the publication of the

said notification. The petitioner Javeed Ahmad Bhat participated in the

selection process along with other eligible candidates. He, in view of his merit,

was selected and engaged as ReT in the aforesaid School under SSA 2011-12

in terms of Order No. CEO/K/Ret/1983-84/12 dated 03.05.2012 issued by the

Chief Education Officer Kulgam. Similarly, the petitioner Sajad Hussian Shah

was selected and engaged as ReT in Middle School, Nagbal in terms of order

No. ZEO/A/847/12 dated 26.11.2012 issued by the ZEO, Aishmuqam. The

engagement of the petitioner Sajad Hussian Shah was made pursuant to the

selection process conducted in terms of Advertisement Notification dated

12.06.2008 issued by the ZEO Aishmuqam, Anantnag. Likewise, the petitioner

Shabeer Ahmed Malla came to be engaged as ReT in UPS Adoora, Shopian by

the order of ZEO, Keegam issued vide his No.ZEO/Keegam/RET/476-79 dated

28.05.2012. The engagement of the petitioner Shabeer Ahmad Malla was in

reference to the selection process conducted pursuant to an Advertisement

Notification issued by the ZEO, Keegam on 30.12.2008.

                                       3                  WP(C ) No 370/2022 c/w
                                                         Connected matters

3            All the petitioners joined their respective Schools and performed

their duties as ReTs for more than five years continuously and to the best

satisfaction of the respondents. As is provided under the ReT Scheme

promulgated by the Government vide Government order dated 28.04.2000

(supra), all the three petitioners became entitled to regularization as General

Line Teaches. Accordingly, their cases were forwarded to the Government for

consideration and issuance of appropriate orders of regularization as General

Line Teachers in their favour.

4 It appears that the Administrative Department of School

Education, while scrutinizing the cases of the petitioners for regularization as

General Line Teachers, found that the age of the petitioner Javeed Ahmed Bhat

on 1st of January of the calendar year in which the Advertisement notice was

issued for engagement of ReT in the School concerned, was 17 years, 09

months and 21 days and the age of the petitioner Sajad Hussain Shah was 17

years, 10 months and 21 days on 1st of January of the calendar year in which

the Advertisement notice for engagement of ReT in Middle School Nagbal

Anantnag was issued. Likewise, in the case of the petitioner Shabeer Ahmed

Malla, the Administrative Department found that the age of Shabeer Ahmed

Malla was 17 years on 1st of January of the calendar year in which the

Advertisement Notification for engagement of ReT in Primary School, Adoora

was issued. The Administrative Department, thus, found all the three

petitioners underage and ineligible to be appointed as ReTs under Article 37 of

CSR Vol-1.

5 Having found the petitioners ineligible for engagement of ReTs,

respondent No.1, vide Government Order impugned in these petitions,

terminated the engagement of all the petitioners. It is in this backdrop, the 4 WP(C ) No 370/2022 c/w Connected matters

petitioners have challenged the impugned order, inter alia, on the following

two grounds:

(i). That the impugned order is illegal, arbitrary and passed in violation of principles of natural justice. It is submitted that no opportunity of being heard was provided to the petitioners before passing the impugned order which has admittedly visited the petitioners with serious consequences; and,

(ii) That the order impugned is totally arbitrary and discriminatory, in that, the respondents have not taken note of the previous precedents of granting relaxation in lower age limit for regularization of ReTs as General LineTeachers under the ReT Scheme. Reference in this regard is invited by the learned counsel for the petitioners to the Government Order No. dated 7th of September, 2018 whereby the Government accorded the relaxation of lower age limit by 01 month and 6 days in favour of one Mohd Rafiq Waza and by 02 months and 18 months in favour of Shakeel Ahmad Bhat to facilitate their regularization as General Line Teaches in the School Education Department.

6 The writ petitions as also the grounds of challenge are contested

by the respondents by filing objections supported by an affidavit of ZEO

Keegam. The respondents have sought to justify the impugned order on the

ground that the petitioners were underage at the relevant point of time when the

Advertisement Notifications for their engagement as ReTs were issued by the

CEO/ZEO concerned. Strong reliance is placed by the respondents on the

provisions of Article 37 of CSR Vol-1 and the judgment of the Division Bench

of this Court delivered in the case titled Shaheena Masarat vs. State and

others, (2010) 2 JKJ 353. It is submitted that, in terms of Article 37 CSR Vol.

1 which is applicable to the selection/engagements made under the ReT

Scheme, a candidate, to be eligible, must meet the age criteria strictly.

However, in the instant case, all the petitioners, to be eligible for being

engaged as ReTs, were supposed to have attained the minimum age of 18 years

as on 1st of January of the calendar year in which the Advertisement Notices in

their case were issued. All the petitioners, at the relevant point of time, were 5 WP(C ) No 370/2022 c/w Connected matters

below the age of 18 years and, therefore, ineligible for engagement as ReTs. It

is contended by the respondents that, in view of the admitted position and there

being no specific denial on facts by the petitioners, compliance with the

principles of 'audi alteram partem' would have been a useless formality and,

therefore, not adhered to.

7 Having heard learned counsel for the parties and perused the

material on record, I am of the considered view that the order impugned is

illegal, arbitrary and extremely harsh, and, therefore, cannot sustain.

8 There is no dispute that the engagement of ReT, whether under

the ReT scheme or under SSA, is regulated by Government Order No. 396-Edu

dated 28.04.2000. The said order lays down following eligibility conditions for

engagement of ReT:

(i). Rehbar-e-Taleem should be permanent resident of the State;

(ii). He or she should belong to the village where there is assessed deficiency of staff. On the certification of Village Level Committee (VLC) that no local candidate from within the village is available, VLC can draw up the panel from the adjoining village;

              (iii).  He      or   she       should   possess    the      minimum
             qualification of 10+2;

(iv). The candidate shall as far as possible fulfill the age qualification as prescribed by the State Government; and,

(v). Due consideration shall be given by the VLCs to the Scheduled Castes and Scheduled Tribes."

9 The expression "as far as possible" used in clause (iv) of

eligibility conditions laid down for engagement of ReT was subject matter of

interpretation in Shaheena Masarat's case (supra).The Division Bench of this

Court, having regard to the object of the scheme and the eligibility laid down

therein for engagement of ReTs in the Schools having deficiency of staff

concluded, thus:

                                      6                  WP(C ) No 370/2022 c/w
                                                        Connected matters

"We accordingly for the above stated reasons and also in view of the stand taken by the State that lower and upper age prescribed for making selection/appointment against posts under the Government is being applied to the posts under the Scheme as well, we hold that the words "as far as possible" used in the scheme are to be read down and we have already held in this judgment that the lower and upper age prescribed by the government for seeking appointment against the posts under the government shall be deemed to be the lower and upper age limit fixed for seeking selection/engagement under the scheme as well. The Article 37 of the CSR Vol.1 will thus, get attracted and applicable to the selection/engagement made under the scheme as well"

10. In view of the aforesaid verdict of the Division Bench of this

Court, it is no longer debatable as to whether, for the purpose of upper and

lower age limit for engagement of ReT, Article 37 of CSR Vol. 1 is applicable.

Before I proceed, it would be apposite to set out Article 37(1) of CSR Vol. 1

herein-below:

"37.Calculation of age at recruitment.

(I) Except in the case of direct recruits to (i) Kashmir Administrative Service(ii) Kashmir Police Service (iii) Kashmir Forest Service (iv) Kashmir Accounts Service, in which case the minimum and maximum age limits for recruitment, will be governed by the recruitment rules of the respective services, the age of direct recruits to Government service in the rest of subordinate and Gazetted Services shall on the first day of January of the year in which the competitive 'examination is held or the nomination is made in respect of the vacancy to which the direct recruitment is made, shall not be less than 18 years and shall not exceed 30 years:

Provided that the maximum age for such recruitment to the posts shown below does not exceed the limit indicated against each.

Gazetted Service.

1. Kashmir Medical Service- 32 years Non-Gazetted

1. Police Sub-Inspectors

2. Constables and Head Constables

3. Subordinate posts in Fire Services- 28 years

4. Shepherds of the Sheep Breeding and Sheep Development Department- 35 years 7 WP(C ) No 370/2022 c/w Connected matters

Provided that the upper age limits for entry into Government service in respect of handicapped persons shall be relaxed by five years.

The age limit may be relaxed by the competent authority"

11. From reading of Article 37 of CSR reproduced above, it is crystal

clear that though, the minimum and maximum age limit for direct recruitment

to various services of the Government is prescribed, yet, a discretion has been

given to the competent authority to relax the age limit, whether it is upper or

lower. From further reading of Article 37, it also comes to fore that though

different maximum age limit has been prescribed for different services yet for

direct recruitment to any service under the State, minimum age limit prescribed

is 18 years.

12. The minimum and maximum age limit prescribed for recruitment

must be possessed by the candidates seeking direct recruitment to the service

with reference to 1st day of January of the year in which the competitive

examination is held or nomination is made in respect of vacancy to which the

recruitment is made.

13. Indisputably, on the relevant date i.e on 1st day of January of the

year in which the advertisement notifications in question were issued, none of

the petitioners had attained the age of 18 years. They were all less by one

month or two as stated exactly hereinabove in the judgment.

14. As it appears from the facts and circumstances of the case, that

petitioners, at the time of submission of their application forms, had attained

the age of 18 years, but on the 1st day of January of the year in which the

advertisement notifications were issued, they were admittedly less than 18

years. It is because of this reason, their application forms were accepted and

they were permitted to participate in the selection process by none other than

the respondents. Their candidature was not disputed at any point of time. As 8 WP(C ) No 370/2022 c/w Connected matters

the luck would have it, they even succeeded in making it to the select list and

consequently they were all appointed as ReTs. They have now rendered more

than five years service as ReTs and have become entitled to regularization

under the ReT Scheme.

15. However, the case of the petitioners for regularization has been

rejected by the respondents not on the ground that they have not rendered the

satisfactory services of five years or that the VLC has not furnished the

requisite certificate about their satisfactory performance highlighting their

achievements and overall conduct, but on the ground that on the 1st day of

January of the year in which the advertisement notifications were issued

pursuant to which they were selected and engaged, they were not 18 years old.

The ineligibility qua the minimum age, at the relevant point of time, has been

made the sole basis to reject their claim for regularization. The respondents

have gone a step further in terminating their services by virtually holding their

engagements as ReTs void ab initio. Could this have been done by the

respondents.? One wonders ! The respondent-Government in the School

Education Department is not a private Limited Company, but a model

employer which should and must always look after the welfare of its

employees. The respondents forget that it is because of their action or in-action,

the petitioners were allowed to apply and participate in the selection process.

Upon their selection, they were engaged as ReTs and permitted to perform

their duties as such for more than ten years. They may now have become

overage or incapable of seeking an employment elsewhere. Was it a right time

and was there any justification to pass the impugned order which, on the face

of it, is „harsh‟ and „a colorable exercise of power‟? The impugned order is

nothing short of an open and naked exhibition of bureaucratic arrogance. While

considering the case of the petitioners for regularization and after finding that 9 WP(C ) No 370/2022 c/w Connected matters

on the 1st day of the January of the year in which the advertisement

notifications, pursuant to which the petitioners were selected and engaged as

ReTs, were issued, the petitioners were, a few months or days short of attaining

the minimum age of 18 years. They have very well now attained that age and,

therefore, are eligible to be appointed direct to any service under the

Government. The respondents have very conveniently forgotten that, with a

view to tackle such situation and to mitigate the hardship of an individual

employee or class of employees, Article 37 itself gives power of

relaxation to the competent authority. At this point, it would be germane to

refer to J&K Civil Services (Classification, Control and Appeal) Rules, 1956

[„The Rules of 1956‟].

16. The Rules of 1956 also contain a similar provision in the shape of

Rule 17(b), which, for facility of reference, reads thus:

"17. Qualifications. No person shall be eligible for appointment to any service by direct recruitment, unless-

(a)...................................................

(b) The age of the candidate for appointment to Government service shall be subject to the following maximum and minimum limits as on first day of January of the year in which the competitive examination is held or applications are invited for a vacancy for which direct recruitment is made. Category.

1. General candidates- Minimum age 18 years, Maximum age 35 years.

2. Members of Scheduled Casts and Scheduled Tribes- minimum age 18 years, maximum age 38 years.

3. Physically handicapped-minimum age 18 years, maximum age 37 years.

4. Candidates already in Government service- 38 years

Provided that the age limits as shown above against each category may be relaxed by the Authority in respect of any individual case on the merits of each case; Provided further that the Government may in respect of any particular service prescribed a different age limit".

                                        10                  WP(C ) No 370/2022 c/w
                                                           Connected matters

17. 1st proviso to Rule 17 (b) clearly provides that the age limit

prescribed by the Rule for each category may be relaxed by the authority in

respect of any individual case on the merits of each case. It needs no emphasis

that when the ReT Scheme promulgated vide Government Order No. 296 dated

28.04.2000 lays down that a candidate to be engaged as ReT shall, as far as

possible, fulfill the age qualification as prescribed by the State Government,

there is no escape from the proposition that the relevant provisions of the Rules

of 1956 in so far as these pertain to minimum and maximum age for

employment and its relaxation are equally applicable to ReTs.

18 Reading Article 37 of CSR Vol.1 conjointly with Rule 17 of the

Rules of 1956 leads to an inevitable conclusion that though, the age eligibility

conditions provided for direct recruitment to Government service under the UT

are applicable even to the engagement of ReTs, yet the competent authority has

ample power to relax such minimum or maximum age limit in an individual or

class of cases, of course, on its merits. This legal position that clearly emerges

is that the respondents have applied selectively the provisions of Article 37 of

CSR Vol.1 to dispense with the services of the petitioners as ReTs and have

conveniently forgotten to take into consideration the relaxation clause

contained both in Article 37 of CSR as well as Rule 17 of the Rules of 1956.

19 Having regard to the facts and circumstances of this case

elaborately narrated above, there is no escape from the conclusion that the

cases of the petitioners do call for invoking the power of relaxation vested in

the employer by the statutory rules. There could hardly be a better case than the

case on hand for exercising such power of relaxation vested in the Government

to do justice in a particular case. It would have been a different matter, had the

petitioners been guilty of misrepresentation or suppression of material

information. It is not the case of the respondents that petitioners had either 11 WP(C ) No 370/2022 c/w Connected matters

produced forged certificates or had supplied wrong information vis a vis their

age. There was true and complete disclosure of the information, acting upon

which, the respondents accepted their applications forms and permitted them

to participate in the selection process. The petitioners, by dint of their merit,

came in the selection zone and were, accordingly, with the approval of the

competent authority, engaged as ReTs in their respective schools. They have

now rendered services of more than 10 years and, therefore, it is too late in the

day to tell them that they were short of minimum age prescribed on the 1st day

of January of the year in which advertisement for making selection of ReTs

were issued.

20. It would be interesting to note that the ReT Scheme itself makes a

provision to deal with such ReTs who are found not fulfilling the age

qualification at the time of consideration of their formal appointment in the

Government. For a quick reference, the relevant extract of Scheme, dealing

with regularization, is reproduced hereunder:

"Regularization.

On the satisfactory completion of five years as Rehbar-E-Taleem on honorarium basis, the candidate shall be eligible for appointment as General Line Teacher in the Education Department. For the purpose, VLC shall have to furnish a certificate about the satisfactory performance of the teacher and highlighting the specific achievements and his/her overall conduct. At the time of consideration for formal appointment in the Government, if a teacher is found not to fulfill the age qualification, then his/her employment would be on contractual basis for future."

21. The aforesaid clause in the Scheme makes an interesting reading.

It clearly depicts that even at the stage of considering the ReT for his/her

formal appointment as Teacher, his/her age qualification is required to be

verified and if he/she or any of them is found not to fulfill the age qualification,

his/her services are not to be terminated, rather he/she is to be continued on 12 WP(C ) No 370/2022 c/w Connected matters

contractual basis for future. It is, thus, not understandable as to why the

petitioners have been meted out the worst treatment which is not even

envisaged by the Scheme. It is a classic case of sheer ignorance exhibited by

the respondents in understanding the true import of the judgment rendered by

the Division Bench in Shaheena Masarat's case (supra).

22. While the respondents may be right in understanding that in the

matter of engagement of ReTs, the age prescribed under Article 37 of CSR

Vol. 1 is applicable, but they have conveniently ignored to find in Article 37

itself the provision for relaxation. It is true that the power of relaxation given to

the Government, be it with regard to the age or qualification, is discretionary in

nature, but the discretion vested in the authority is not to be confused with

desire and sweet will. It cannot be used at the whims and caprice of the

authorities. If the circumstances of a particular case warrant the exercise of

such discretion, the competent authority has no option, but to exercise it and,

failing to do so, would be tantamount to failure to perform the statutory duty

enjoined by the Rules to do justice in a particular case. I do not think there

could be any case better or harder than the instant case. Showing somebody

door and deprive him of his right to livelihood after he has served the

Department for ten long years, cannot be done so casually as has been done by

the respondents. The respondents have also forgotten that they have a

constitutional duty to provide adequate hearing to the petitioners before taking

an action entailing serious evil and civil consequences for them. I do not want

to burden this judgment with the citations of the Supreme Court.

23 It is trite law that even if the statutory rules do not provide for

giving an opportunity of being heard to a person before taking an adverse

action against him, yet it is the duty of the authority concerned to give an 13 WP(C ) No 370/2022 c/w Connected matters

opportunity of being heard to the person before passing an order which has the

effect of depriving him of his vital civil rights.

24 The petitioners, having been appointed as ReTs by none other than

the respondents and, that too, after undergoing a proper selection process and

having worked as such for a period of ten years, had acquired the right of

regularization as general line teacher under the ReT Scheme. The impugned

order has not only deprived them of their right of regularization as general line

teacher, but it has even taken away their engagement as ReTs and has, thus, the

effect of depriving them of their right to livelihood. Such order could not have

been passed by the respondents without complying with the principles of

natural justice and, therefore, strikes at the core of Article 14 of the constitution

of India. Had the petitioners been put to notice, they would have explained

their position and persuaded the respondents not to take such harsh action.

"Useless formality theory" was, thus, not attracted or applicable in the facts

and circumstances of this case.

25. For all these reasons, I find sufficient merit in these petitions and

the same are, accordingly, allowed. The order impugned dated 21.02.2022

(supra) whereby the services of the petitioners as ReTs have been terminated,

is quashed. The respondents are directed to consider the cases of the petitioners

and pass appropriate order of relaxation of minimum age in their favour in light

of observations made above and regularize their services under the Scheme

w.e.f the date they have completed five years satisfactory services as ReTs.

The petitioners are also held entitled to all consequential benefits including the

arrears of salary, increments etc. Let a decision in this regard be taken by the

respondents within a period of two months from the date a copy of this

judgment is served upon them. Till a final decision in the matter, as directed 14 WP(C ) No 370/2022 c/w Connected matters

above, is taken, the petitioners shall be permitted to perform their duties as

ReTs in their respective schools.

All the petitions stand disposed of in the above terms.

                                                      (SANJEEV KUMAR)
                                                           JUDGE
Srinagar
18.07.2022
Sanjeev                         Whether order is speaking: Yes
                                Whether order is reportable: Yes