ATIQA BANO Vs. STATE OF J&K
LAWS(J&K)-1993-1-1
HIGH COURT OF JAMMU AND KASHMIR
Decided on January 02,1993

Atiqa Bano Appellant
VERSUS
STATE OF JANDK Respondents


Referred Judgements :-

ABDUL SAMAD BHAT VS. STATE AND ORS [REFERRED TO]
O.P. BHASKAR VS. STATE OF JANDK [REFERRED TO]
LALIT KUMAR VS. STATE AND ORS. [REFERRED TO]


JUDGEMENT

- (1.)THE petitioner, namely, Atiqa Bano is an employee in the Education Department and through the medium of this petition she has claimed the charge allowance from May, 1991 onwards as she according to her has been holding the post of Joint Director Schools Kashmir. She has also prayed that by a writ of mandamus the respondents may be directed to assign her the job of Joint Director Schools as already she stands appointed against that post from May, 1991. The writ petition discloses that she has been fighting litigation with the Department, in other writ petitions also, both in Jammu and in Kashmir Wings. She has referred to filing of a writ petition in the year 1992 in Jammu Wing of this Court when Respondent No.2 herein had not allowed her to work as Joint Director School Education, Kashmir, and her pay was withheld.
(2.)ACCORDING to the petitioner, the writ petition is pending for disposal and no notice has been yet issued to the respondents. During the pendancy of that writ petition wherein she has sought amendment of the relief, Government Order No. 146 -Edu of 1993 dated 8 -2 -1993 was issued and the person working as District Education Officers were re - disignated as Chief Education Officers and adjusted as such on adhoc basis in the pay scale of Rs.3000 -4500, for a period of six months. She has alleged that she was the senior most Education Officer but her seniority was wrongly shown and she filed writ petition No. 1115/86 before the Srinagar Wing of the Court (factual statement is self contradictory as made in the writ petition).
(3.)ACCORDING to her, in terms of Government Order No, 146 -Edu of 1993 dated 8 -2 -1993 (annexure -D) the post of Joint Director has been down -graded to the level of Chief Education Officer and this has given her a new cause of action and has challenged the said order on the grounds that respondents -State in this order has given an impression that the adjustment of the petitioner as Chief Education Officer was a promotion which fact is not correct because she already was working as District Education Officer and that the adjustment of the District Education Officer as Chief Education Officer on adhoc basis is arbitrary and illegal. The abolition of District Education Officers post was not warranted; She has claimed that she should be given the grade of Chief Education Officer w.e.f 11 -2 -1987 when the post of District Education Officer was abolished. She has claimed her promotion as Chief Education Officer w.e.f. 11 -2 -1987 and her appointment as Chief Education Officer in higher grade w.e.f 8 -3 -1993 is illegal. That by virtue of Annexure Dâ„¢ (Government Order No. 146 -Edu of 1993) the petitioner has been adjusted against the post of Joint Director School Education and they have thus down -graded the post to the level of Chief Education Officer which is not permissible under law. Respondent No.1 is not competent to down grade the post of Joint Director to that of Chief Education Officer. The working of Joint Director School Education carries higher responsibilities than that of a Chief Education Officer and under law she is entitled to the charge allowance from the date she was posted as such (May, 1991 onwards). The impugned order is illegal and militates against the import of Art. 87 of the J&K Civil Services Regulations. The functions of Joint Director has been defined and they are separate from the functions of Chief Education Officer. She has been allowed to work against a clear vacancy with added responsibilities. She has sought the issuance of writ of certiorari for quashing Government Order No. 146 -Edu, of 1993 so far as it down grades the post of Joint Director to that of Chief Education Officer. Other reliefs sought for have been stated above.
The respondent in their objections have pleaded that the averments of the writ petition are vague, superfluous and do not disclose any cause of action. There is no infringement of any legal, fundamental or statutory right of the petitioner and the writ petition is not maintainable. On facts, it is pleaded that vide Government order No. 146 -Edu. of 1993 the petitioner was adjusted as Chief Education Officer on adhoc basis in the pay scale of Rs.3000 -4500 of a period of six months or till the post is filled up by the DPC/PSC, whichever is earlier and was posted as Joint Director School Education in her own pay and grade of Chief Education Officer against an available post i.e. the post of Joint Director which was down graded to the level of Chief Education Officer. It is specifically pleaded that petitioner was not posted as Joint Director but was posted in Directorate of School Education, Kashmir as District Education Officer in her own pay and grade against the post of Joint Director. This arrangement was done for the purpose of drawal of salary in favour of the petitioner. It is also stated that the post of Chief Education Officer is in higher pay scale as compared to the post of District Education Officer as the same is to be filled up from the categories of Principals Higher Secondary School, Deputy Chief Education Officers, District Education Planning Officer with five years service in that class possessing Masters Degree with B.Ed. The post requires to be filled up through DPC/PSC and it is why adhoc arrangement was made for a period of six months, The post of Joint Director requires to be filled up by the DPC/PSC from the cadre of Chief Education Officers. It is denied that petitioner automatically had become Chief Education Officer after abolition of the post of District Education Officer. As stated earlier, the post of Chief Education Officer is higher to the post of District Education Officer as is envisaged in the Jammu and Kashmir Education (Gazetted) Recruitment Rules, 1992 is -sued vide SRO 83 of 1992. The post of Chief Education Officers were to be filled up after framing the recruitment rules and the present adjustment was made without the existence of such rules and only on adhoc basis. The post of Chief Education Officers was filled up on the recommendations of the DPC/PSC w.e.f. 8 -2 -1993 after examining the eligible candidates i.e. District Education Officers and Principals. No person junior to the petitioner has been cleared as Chief Education Officer and she cannot be given any claim for becoming the Chief Education Officer w.e.f. 11 -2 -1987. It is reiterated that the post of Joint Director School Education was down -graded to the level of the post of Chief Education Officer only for the purpose of drawal of salary in favour of the Chief Education Officers who were posted against the said posts of Joint Directors and the petitioner was not the only Chief Education Officer who was allowed to draw her salary against the down graded post - The Government is competent to down -grade any post for meeting the exigency of the service of its employees and in this case the post of Joint Director was down graded in the best interest of the Government and the public. It is also pleaded that the petitioner is not entitled to the grant of any charge allowance.



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