GH NABI DAR Vs. STATE OF J&K
LAWS(J&K)-2006-4-19
HIGH COURT OF JAMMU AND KASHMIR
Decided on April 18,2006

Gh Nabi Dar Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) CLAIMING to have been appointed as Teacher in Boys Middle School, Watrad, Budgam for one month in leave arrangement of one Garid Sahani and thereafter allowed to continue in the post as the original incumbent did not report back for duties, under various orders of extension passed in his favour from time to time, the latest being that of 16.08.1988, the petitioner maintains that he requested respondents to regularize his services due to continued absence of the original incumbent which was not done whereupon he instituted a writ petition being SWP No. 1272/1988 which was finally disposal of on 14.10.1998 with an observation that respondents may treat the writ petition as a representation and while taking note of relevant rules and policy regarding regularization may take a decision in the matter within three months under SRO 64 of 1994, which was, however, not done become the concerned Administrative Department found that the case was not covered by the said SRO, and under communication dated 13.10.2000 Under Secretary of concerned Administrative Department while saying so asked Director, School Education to pass a speaking order in the matter, which prompted petitioner to institute another writ petition being SWP No. 1762/2000 whereunder the Court directed respondents to allow petitioner to continue in the job which was, however, later withdraw by petitioner in view of order dated 29.11.2000 whereunder respondent sought to disengage petitioner and which is accordingly challenged in this writ petition on the ground that since the original incumbent had not returned back to duties even after lapse of more than five years he would be deemed to have been out of service in terms of Rules 113 of Civil Service Regulations, and petitioner as an adhoc employees would automatically be entitled to regularization against the post in terms of Government order No. 1220 -GAD of 1989 dated 11.09.1989. Impugning the order of his disengagement dated 29.11.2000 as such the petitioner seeks its quashment alongwith regularization in the post with retrospective effective under Government order No. 1220 -GAD aforesaid.
(2.) IN their reply respondents have among other things, stated that the petitioner was engaged as leave substitute for a period of one month by Tehsil Education Officer, Budgam in a leave arrangement without any competence, and not by any authority, and as such no right of regularization vested in him, particularly because the vacancy against which he was appointed was a leave vacancy. It is further pleaded that the post of teacher is a selection post required to be filled by direct recruitment on the recommendations of Service Selection Board and the method of recruitment cannot be diluted for sake of petitioner who as a matter of fact was never appointed on adhoc basis and as such cannot claim benefit of any of the Government orders relating to adhoc appointments. Denying that respondent -department has ever regularized any case identical to the present one respondents have also maintained that the initial engagement of petitioner is dehorse the rules and as such he cannot claim any right on the post thereunder much less the right to regularization as contended by him etc.
(3.) REBUTTING the pleas taken by respondents in their counter affidavit the petitioner has in his rejoinder further pleaded that he has been working on the post for more than two decades during which period his work and conduct has been found satisfactory by his superiors and his regularization duly recommended by them and as such his discontinuation under the impugned order was not only unwarranted but extremely harsh to him etc. During course of submissions counsel appearing for parties have reiterated their contents with specific references to annexures appended therewith. I have heard learned counsel and considered the matter. That the petitioner was originally engaged by concerned Tehsil Education Officer, Budgam under instructions of District Education Officer, Budgam conveyed to him vide No. 1938 of 1984 dated 28.06.1984 in leave arrangement of one Garid Sahani and thereafter allowed to continue from time to time under various orders purporting to have been passed by Tehsil/District Education Officers concerned the latest being No. Apptt/5906 -07 dated 16.08.1988 purporting to have been passed by District Education Officer, Budgam whereunder petitioner has been temporarily appointed as teacher in Boys Middle School, Watrad, Budgam in leave arrangement of aforesaid Garid Sahani for a period of two months or till his regularization whichever is earlier with one days break in between his last spell and the one under said order. His continuation till date either under administrative or Court orders is not denied. It is only the nature of his engagement as such which is in dispute with petitioner claiming it to be 'adhoc' and respondents categorizing it as a mere leaving arrangement ordered incompetently. In view of that conflict, the main consideration arising is as to whether or not the petitioner in view of different spells of his engagement can be categorized as an adhoc employee, and if so he would be entitled to the benefit of Government order No. 1220 -GAD of 1989 dated 11.09.1989 etc. It would, however, be appropriate to mention that unlike the earlier writ petition SWP No. 1272/1988 disposed of as aforesaid the claim of adhoc employment has been pressed into service with consequential benefits for which support is sought to be derived from a judgment of this Court passed in SWP No. 772/1995 in 1998 wherein while accepting the status of writ petition as adhoc employee he has been held entitled to benefit of Government order No. 1220 -GAD of 1989 dated 11.09.1989. The petitioner solely relies on said judgment for canvassing his contention.;


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