Jammu & Kashmir High Court - Srinagar Bench
Anwar Hussain Wani vs State Of Jammu And Kashmir Through ... on 23 May, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
LPASW No. 6/2015 c/w
LPASW No. 18/2015
Reserved on: 15-05-2025
Pronounced on:23.05.2025
1. Anwar Hussain Wani, (42 years)
S/o Mohammed Shafi Wani
R/o Mattan Anantnag,
2. Gulshan Ahmad Magray (37 years)
S/o Ab. Ahmad Magray
R/o Hudipora, Baramulla;
3. Mohammad Iqbal Wani (34 years)
S/o Wali Mohammad Wani
R/o Harapora, Anantnag;
4. Fayaz Ahmed Mir (39 years)
S/o Gh. Rasool Mir
R/o Akingam, Anantnag;
5. Muzaffer Ahmad Kohli (34 years)
S/o Ali Mohammed Kohli
R/o Kootihair, Anantnag;
6. Nazir Ahmad Wani (38 years)
S/o Ab. Ahad Wani
R/o Pathan, Anantnag;
7. Ashish Bhat (31 years)
S/o Shiri Baskar Nath Bhat
R/o Mattan, Anantnag;
8. Mohammad Shafi Mir (32 years)
S/o Gh. Mohammed Mir
R/o Srinagar;
9. Zahoor Ahmad Bhat (Aged 30 years)
S/o Gh. Mohammad Bhat
R/o Vezirbagh, Baramulla;
10. Haroon Rashid (Aged 32 years)
S/o Ab. Rashid Shah
R/o Seer Hamdan, Anantnag;
......Appellants(s)
Through: Mr. Tasaduq H. Khawja, Advocate with
Mr. Abdul Muizz, Advocate
VERSUS
1. State of Jammu and Kashmir through Commissioner Cum Secretary to
Government, General Administration Department, Civil Secretariat,
Srinagar/Jammu;
2
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2. Principal Secretary to Government, Education Department, Civil
Secretariat, Srinagar/Jammu;
3. Director School Education, Kashmir, Srinagar;
4. Mohammad Saleem Rather, General Secretary Jammu & Kashmir
Rehbar-e-Taleem Teacher‟s Forum;
5. Assadu-ul-lah Wani, Secretary Jammu & Kashmir Rebhar-e-Taleem
Teacher‟s Forum;
......Respondents
6. Mohammad Akram (Age 32 years)
S/o Ab. Rashid Akhoon
R/o Walraman, Baramulla;
.....Proforma Respondents
Through: Mr. Hakim Aman Ali Dy. AG
Mr. Z.A. Shah, Sr. Advocate with
Mr. A. Hanan, Advocate
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE SANJAY PARIHAR, JUDGE.
JUDGMENT
Sanjeev Kumar J:
01. Impugned in these two intra-court appeals is an order and judgment
dated 31.12.2014, passed by the learned Single Judge of this Court ["the writ
Court"] in SWP No. 1388/2014, titled "Anwar Hussain Wani and Ors. Vs.
State of J&K and Ors.", whereby the writ Court has dismissed the writ
petition filed by the appellants herein challenging Government Order No.
469-Edu of 2014 dated 25.06.2014.
02. Before we advert to the grounds of challenge urged by Mr. T.H.
Khawaja, learned counsel appearing for the appellants, we deem it necessary
to set out the background facts leading to filing of this appeal.
03. Vide Government Order No. 396-Edu dated 28.04.2000, the
Government of Jammu & Kashmir launched a scheme known by the name of
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Rehbar-e-Taleem Scheme ["ReT Scheme"] which provided for engagement
of Rehbar-e-Taleem/Teaching Guide, ["ReT for short"], to perform the
teaching duties in the schools facing deficiency of teaching staff. The ReT
was to be engaged initially for a period of two years which was extendable
for a period of further three years subject to satisfactory performance etc of
the ReT. The ReT was entitled to a monthly honorarium of Rs. 1500/- for the
first two years and Rs. 2000/- per month from the third year onwards. There
was also a stipulation in the aforesaid Government order with regard to
regularization. It was provided that on satisfactory completion of five years
as ReT on honorarium basis, the candidate would be eligible for appointment
as General Line Teacher in the School Education Department. While
considering the case of ReT for his/her regular appointment as General Line
Teacher, the Competent Authority was to evaluate his/her performance,
his/her achievements and conduct etc. The zone of consideration for
appointment as ReT was restricted to the village were the school with
identified deficiency of staff as assessed by the Village Level Committee.
04. Under the aforesaid Scheme, thousands of ReTs in different schools all
over the State of Jammu and Kashmir came to be engaged. Most of them
were, on completion of five years satisfactory service, considered and
appointed as General Line Teachers in the School Education Department.
05. It was argued by the respondents that the constitutionality of the
Scheme aforesaid was challenged before this Court and a Division Bench of
this Court upheld the constitutionality of the Scheme vide its order and
judgment dated 16-04-2013. The SLP (C) No. 20531 of 2013 preferred
against the Division Bench judgment of this Court already stands dismissed,
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thereby upholding the decision of this Court with regard to the constitutional
validity of the Scheme.
06. That, in the year 2014, a policy decision was taken by the Government
which is spelt out in Cabinet decision No. 115/09/2014, dated 19.06.2014. In
that, it was decided to add a proviso to the last para captioned
"regularization" of the ReT Scheme to provide that, five years service
rendered by the ReT before his/her regularization shall count for the purposes
of fixing seniority and pensionary benefits. It was further provided that the
services of the ReTs shall be transferable after regularization within the
District to which they belong. This proviso was added to the Scheme vide
Government Order No. 469-Edu of 2014 dated 25.06.2014. The impugned
proviso added to the Scheme in terms of Government Order 469 of 2014
impacted the seniority of the General Line Teachers appointed in the School
Education Department on the recommendations of the Jammu & Kashmir
Service Selection Board (JKSSB) on different dates. The appellants are such
General Line Teachers who came to be impacted by the provision aforesaid
and filed SWP No. 1388/2014 seeking a writ of certiorari for quashing
Government Order No. 469-Edu of 2014 dated 25.06.2014 read with Cabinet
Decision No. 115/09/2014 dated 19.06.2014.
07. The Government order of 2014 along with the Cabinet Decision was
assailed before the writ Court by the appellants primarily on the followings
grounds:
(i). That the impugned Government order was violative of Rule 12 (1)
of the Jammu & Kashmir Educational Subordinate Services
Recruitment Rules, 1979, ["the Rules of 1979"] and Rule 24 of the
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Jammu & Kashmir Civil Services (Classification, Control & Appeal)
Rules, 1956 ["the Rules of 1956"].
(ii). That the seniority of an employee born on the permanent
establishment of the Government is to be reckoned from the date
he/she becomes member of service and that the retrospective seniority
to an employee given from a date interior to his/her actual
appointment to service is antithetic to the established service
jurisprudence.
(iii). That the impugned Government order is totally irrational,
arbitrary and, therefore, violative of Article 14 & 16 of the
Constitution of India.
08. The writ petition was contested by the respondent No. 4 and 5 herein,
who were later impleaded as party respondents by the writ Court vide its
order dated 03.07.2014. In the reply affidavit filed by the respondents Nos. 1
to 3, the impugned order was sought to be justified on the ground that the
same was issued by the Government pursuant to a policy decision taken by
the Cabinet. The policy decision, it was pleaded, ought not to be readily
interfered with in the exercise of writ jurisdiction. The plea that the Cabinet
decision and the impugned Government order were violative of Statutory
rules was also refuted. In the reply affidavit filed by the respondents 4 & 5, it
was pleaded that, notwithstanding the nomenclature, an ReT discharges
his/her duties as General Line Teacher and, therefore, would be entitled to
have his/her service rendered as ReT, counted for the purposes of seniority
and pension. The respondents No. 4 & 5 also pleaded that challenge to the
validity of the scheme, which was upheld by this Court, stands accepted by
the Hon‟ble Supreme Court by dismissing SLP(C) No. 2053 of 2013.
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09. The writ Court, having considered rival contentions and gone through
the material on record, came to the conclusion that there was nothing wrong
in the Government taking a policy decision to confer the benefit of seniority
upon the ReTs on their regularization with effect from the date they were
initially engaged as ReT. The view of the writ Court is based on the rationale
that the qualification prescribed and the nature of duties to be performed by
the ReT, are the same as that of a General Line Teacher and also that for
many purposes, like grant of casual leave and maternity leave etc., the ReTs
have been treated on a par with the General Line Teachers. On the aforesaid
premise and also for various other reasons, the writ Court has found
challenge to the impugned Government order lacking substance and
dismissed the writ petition.
10. The appellants are aggrieved of and have challenged the impugned
judgment of the writ Court, inter alia, on the following grounds:
i. That an ReT becomes a member of the service constituted by the
Rules of 1979 only when he/she is considered and appointed as
General Line Teacher after five years of successful performance as
ReT and, therefore, cannot be given seniority from the date anterior
to becoming the member of the service. The writ Court has not
appreciated this aspect of the matter;
ii. That the Government order impugned before the writ Court, has
the effect of the giving seniority to an ReT retrospectively from the
date he/she was not born on the cadre of service and, therefore, was
contrary to and de-hors Rule 24 of the Rules of 1956. The issue was,
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though agitated, has not been considered by the writ Court in its
right perspective.
11. Mr. Tasaduq H. Khawja, learned counsel appearing for the appellants
would fashion his arguments around the grounds of challenge urged by him.
Besides placing reliance on J&K Civil Services (Classification, Control and
Appeal) Rules, 1956 and the J&K Jammu and Kashmir Educational
(Subordinate) Service Recruitment Rules, 1979, he has also placed reliance
on the following judgments in support of his submissions:-
1. 2015 (1) JKJ 606,
2. AIR 2020 SC 2270
3. 2006 (6) SCC 558
4. AIR 2024 SC 4637
5. 2013 (8) SCC 693
6. 2019 (16) SCC 28
12. Per contra, Mr. Z.A. Shah, learned senior counsel appearing for the
private respondents would support the judgment of the writ Court on all
fours. He would argue that the writ Court has taken note of all the relevant
factors, in particular, the decisions of the Government of Jammu & Kashmir
taken from time to time to bring the ReTs on a par with the General Line
Teachers. He would argue that once the qualification prescribed and duties to
be performed by the ReT are similar to those prescribed for General Line
Teachers, there is no reason to discriminate the ReTs vis-a-vis the General
Line Teachers in the matter of conferring service benefits. He would submit
that the impugned Government Order being a policy decision of the
Government is immune from challenge before this Court under Article 226 of
the Constitution of India.
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13. Having heard learned counsel for the parties and perused the material
of record, we are of the considered opinion that the judgment passed by the
writ Court suffers from serious errors of fact and law and, therefore, cannot
be upheld. The approach adopted and the view taken by the writ Court is
patently erroneous and, therefore, cannot be countenanced.
14. The ReT Scheme was promulgated by the Government vide its order
bearing No. 396-Edu of 2000 dated 28.04.2000, for achieving the following
objectives:
a). Promoting the decentralized management of elementary education
with the community participation and involvement.
b). To ensure accountability and responsiveness through a strong
backup and supervision through the community.
c). To operationalize effectively the schooling system at the grass roots
level.
15. The concept of ReT, as envisaged under the ReT Scheme, is to
provide a person to make up the deficiency of the staff at the elementary level
of education. Since the Scheme envisaged the community participation and
involvement, as such, it was provided that a person to be appointed as ReT
should be drawn from the local community so that he/she is in a better
position to have constant interface and interaction with the community to
secure universal enrolment and to check the incidents of dropouts. The
selection of a person to be appointed as ReT was provided to be made by the
Village Level Committee conceptualized under circular No. Edu/Plan-
184/2000 dated 27.02.2000, with some modifications to the extent of
associating ZEO in place of Headmaster as the Convener of the Committee.
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As per para 2 of the Scheme captioned "Role of Village Level Committee",
it is the Village Level Committee concerned which shall assess the
requirement of teachers in the Primary/Middle Schools within the area of
their operation having due regard to the approved staffing and the roll of the
students. The scheme did not provide for engagement of ReTs in lieu of
General Line Teachers. The ReTs were engaged only in the Primary and
Middle Schools where there was assessed deficiency of teachers.
16. It is thus evident that the selection of ReTs, unlike the selection of
General Line Teachers which is a statutory Recruiting Agency like JKSSB,
was entrusted to a Village Level Committee with the ZEO of the area as
Convener and the zone of selection was the village where there was assessed
deficiency of staff. It is only where no eligible candidate in the village
concerned was available, the zone of selection of ReT could be extended to
the adjoining village. The zone of consideration is, in some cases, even
reduced to habitation conceptualized in Government Order No. 288-Edu of
2009 dated 08.04.2009. The engagement of ReT was not necessarily against
any substantive available post and the remuneration, which was payable
under the Scheme, was in the shape of honorarium of Rs. 1500/- per month
for first two years and, thereafter, Rs. 2000/- per month. The engagement was
initially for a period of two years, extendable by further three years subject to
satisfactorily performance as to the enrolment drive, mitigation of dropout
rates and performance level of the students to be evaluated and assessed by
the VLC and the ZEO. The ReT Scheme also contained a provision for
regularization of the services of the ReT. The last para of the Scheme
captioned as "regularization" needs to be referred and same is set out below:
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"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 Tacher in the Education Department. For this
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 age qualification, then his/her
employment would be on contractual basis for
future."
17. From plain reading of the above para, it clearly transpires that the ReT
cannot claim his/her appointment as General Line Teacher in the School
Education Department as a matter of right. The scheme only declares the ReT
eligible for appointment as General Line Teacher subject to evaluation and
assessment of his/her performance and achievement during his/her working
as ReT. The right given to the ReT to be appointed as General Line Teacher
is only a right of consideration. There is, thus, no unequivocal promise
extended to the ReTs that they would be necessarily appointed as General
Line Teachers on completion of five years service as ReT. As a matter of
fact, the engagement of the ReT is initially for a period of two years only and
further extension is subject to satisfactorily performance in respect of the laid
down parameters and the performance level of the students. The performance
of the ReT on these parameters has to be evaluated and assessed by the VLC
and the ZEO concerned. That being the nature of Scheme, it cannot even be
remotely contended that the ReT having completed five years of service, as
such, is entitled, as a matter of right, to be appointed as a General Line
Teacher.
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18. The ReT Scheme is essentially an exception to the general principle of
law that the appointment to an office under the Government can only be
made through advertisement notice and proper mode of selection, ensuring
participation of all eligible candidates irrespective of their caste, creed, color
or place of residence. We have gone through the Division Bench judgment
of this Court as upheld by Hon‟ble Supreme Court by dismissing the SLP but
could not persuade us to accede to the submission of Mr. Shah that ReT
Scheme has been declared Constitutional or that its validity has been upheld.
19. Be that as it may, so far as post of General Line Teacher is concerned,
the same is born on the service constituted by the Rule of 1979 and the post
is a district cadre post and is required to be filled up on the basis of
recommendations of the selected candidates made by the JKSSB after
conducting a due process of selection in consonance with Article 14 & 16 of
the Constitution of India. The zone of consideration in that selection is the
entire District. The candidates selected and appointed as General Line
Teachers are the most meritorious candidates available in the District,
therefore, there would be no match between the quality of teachers appointed
by way of ReT Scheme and those appointed as General Line Teachers in
pursuance of the regular selection process conducted by the JKSSB by
competition at the District Level. That apart, it is evident from the ReT
Scheme that ReT does not hold any civil post under the State/UT.
Notwithstanding that the Government has extended some welfare provisions
like, casual leave, maternity leave, etc. to the cadre of ReT, but simply,
because the ReTs have been extended the benefit of casual leave, maternity
leave as also the benefit of counting their ReT services towards making good
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the shortfall of qualifying service for pension, does not ipso facto make ReTs
as Government employees to be treated on a par with General Line Teachers.
Rule 3 of the Rules of 1979 defines the constitution of service to mean:-
"3. Organisation: The service shall comprise the posts,
classes, categories and grades as are indicated in the
Schedule"
Rule 12 (1) of the Rules of 1979 clearly prescribes that seniority of a
member of services in various posts and categories shall be determined in
accordance with the provisions of Rules of 1956 and the Civil Services
(Decentralization Recruitment of Non-Gazetted Cadres) Rules 1969. For
ready reference, rule 12(1) is reproduced herein below:-
"12(1) Seniority of members of the service in various
classes and categories shall be determined in accordance
with the provisions of the Jammu and Kashmir Civil
Services (Classification, Control and Appeal) Rules, 1956
and the Jammu and Kashmir Civil Services
(Decentralization of and Recruitment to Non-Gazetted
Cadres) Rules, 1969."
20. Indisputably, the General Line Teacher is a post indicated in the
Schedule and, therefore, a person appointed as General Line Teacher is a
member of service constituted by the Rules of 1979. The ReT does not figure
in the Schedule of Rules of 1979, and, therefore, cannot be said to be member
of said service. The ReT becomes member of service constituted by the Rules
of the 1979 only when, upon completion of five years satisfactory service as
ReT, he/she is appointed as General Line Teacher. Reference to the Rule 24
(1) of the Rules 1956, is necessary, which, for facility of reference, is set out
below-
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"The seniority of a person who is subject to these rules
has reference to the service, class, category or grade with
reference to which the question has arisen. Such seniority
shall be determined by the date of his first appointment to
such service, class, category or the grade as the case may
be."
21. From plain reading of Rule 24 (1), it is abundantly clear that the
seniority of a person who is subject to the Rules of 1956 has reference to
service, class, category and grade, with reference to which the question has
arisen and such seniority shall be determined by the date of his/her first
appointment to such service, category or grade, as the case may be.
22. Viewed from any angle, it is crystal clear that a person shall take
his/her seniority only from the date he/she is appointed to the service, class,
category or grade, as the case may be. There is not an iota of doubt that a
ReT becomes member of service constituted by Rules of 1979 only when
he/she is appointed as General Line Teacher upon completion of satisfactory
service of five years as ReT. He/she is, therefore, entitled to reckon his/her
seniority from that date and not from any date anterior thereto. The
Government Order No. 469 of 2014 dated 25.06.2014, whereby following
proviso was added to the last para of the ReT Scheme captioned
„regularization‟ reads thus:
"Provided that the five years service rendered by
Rehbar-e-Taleem teachers before regularization shall
count for the purpose of fixing their seniority and
counting such service, notionally, for pensionary and
other retirement benefits, wherever applicable. The
services of Rehbar-e-Taleem teachers shall be
transferable after regularization within the district to
which they belong."
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23. Obviously, the appellants are not aggrieved of the entire proviso. Their
grievance is only restricted to the proviso added to the ReT Scheme to count
the service rendered by an ReT for the purposes of fixing seniority.
24. From perusal of the proviso, in particular, to the extent it is assailed, it
transpires beyond any doubt that the proviso makes a provision for giving
seniority to the ReTs appointed as General Line Teachers upon completion
of five years from the date of their initial engagement as ReT i.e. five years
prior to becoming the member of service constituted by the Rules of 1979. In
turn Rule 24(1) of Rules of 1956 is a statutory provision providing that
fixation of seniority of an employee would be reckoned with effect from the
date he becomes the member of a service. The proviso to the ReT Scheme, on
the face of it, is de-hors Rule 24(1) of the Rules of 1956 and also against the
settled cannons of service jurisprudence. There is ample authority on the
proposition that no employee can be given seniority from the date he is not
borne on the service, class, category, or grade as the case may be. ReT
becomes member of service only when there is formal order of appointment
issued after evaluation and assessment of his/her performance on completion
of five years as ReT. The government, acting in ignorance of the settled legal
position, took the policy decision to confer the benefit of seniority on ReT
with effect from the date they were initially engaged, notwithstanding the fact
that on said date they were not borne on the cadre of service constituted by
the Rule of 1979. The Government also did not take into consideration the
fact that by adding the impugned proviso in the ReT, they had acted to the
serious prejudice of the General Line Teachers who were appointed prior to
the regularization of various ReTs. The appellants rightly claim that they
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were General Line Teachers when many ReTs were yet to be regularized,
however, on their regularization and by the aid of impugned proviso they
were given seniority from the date of their initial engagement, rendering all
of them senior to the appellants. The policy decision taken by the Cabinet,
which ultimately resulted in issuance of impugned Government order, was
not only to the serious prejudice of the appellants but was also in conflict
with the statutory provisions like Rules of 1979 and, in particular, Rule 24 of
the Rules of 1956.
25. The ReTs may have been extended various benefits like casual
leave/maternity leave and even the benefit of counting their service for
making good shortfall of qualifying service for pension but that itself does
elevate the status of ReTs. Such provisions are even made in respect of
factory workers and those working in industrial establishments covered by
the Factories Act and the Industrial Disputes Act, etc. The writ Court appears
to have been greatly swayed by extension of certain welfare provisions to the
ReTs from time to time and has erroneously concluded that the Government
itself had been treating the ReTs on a par with the General Line Teachers.
26. For the foregoing reasons, we regret our inability to persuade ourselves
to concur with the reasoning given by the Writ Court.
27. Lastly, Mr. Z. A. Shah, learned senior counsel, relied upon the
Division Bench judgment of this Court in Amit Padha v. State of J&K and
ors, reported as 2015 SCC Online J&K 55, to contend that the proviso added
by way of Government Order has already been up-held by a Co-ordinate
Bench, and, therefore, the issue raised by the appellants is no longer res
integra.
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28. We have gone through the judgment relied upon by Mr. Shah and find
the same per incuriam. The Division Bench, which decided the LPA, has
relied upon the order of Hon‟ble the Supreme Court passed in SLP (c) No.
20531 of 2013 purportedly upholding the scheme as was promulgated vide
Government Order of 2000. However, it was not brought to the notice of the
Division Bench that the proviso added subsequently vide Government Order
No. 469-Edu of 2014 dated 25-06-2014 was not subject matter of challenge
in those proceedings. As a matter of fact, ReT Scheme has not been upheld
by the Supreme Court in the said SLP.
29. In view of the aforesaid discussion, we find merit in this these appeals.
Both the appeals are allowed and the impugned judgment passed by the writ
Court is set aside. As a consequence, the writ petition is allowed and the
impugned provisio, to the extent it provides that „the five years service
rendered by Rehbar-e-Taleem teachers before regularization shall count for
the purpose of fixing their seniority‟ is set aside.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
SRINAGAR:
23.05.2025
Anil Raina, Addl. Registrar/Secy
Whether the order is reportable: Yes
