MUBARK AHMAD KHAN Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner is a peon in the Education Department and has filed this writ petition claiming the reliefâ„¢s of writ in the nature of mandamus directing the respondents to release the salary attached to the post of teacher since 14 -10 -1992 and regularise his services as a teacher as he has been performing the duties as a teacher. In support of this petition he has placed on record annexure B to E which show that communications were sent to him by the functionaries of respondent at different times to provide the requisite information and to attend the office regularly.

(2.) THE counsel appearing for the petitioner contends that petitioner had been performing the duties of a teacher since 14 -10 -1992 therefore he is entitled to be regularised to the pay scale of a teacher on the basis of equal pay for equal work.

(3.) MR . M.I. Qadri, SAAG learned counsel appearing for the respondents has contended that petitioner belongs to the ministerial cadre of the department in terms of the J&K Educational (Subordinate Service Recruitment) Rules of 1979 and he could be promoted to the post of Junior Asstt. in terms of the rules and not as a teacher, which post falls in executive cadre as per schedule B of the said rules. The ZEO was not a competent person to change the cadre which could be changed only by the Government. On the facts of the case learned counsel has referred to Annexure B which shows that ZEO had directed the petitioner to work in Primary School Devipora which was a closed school at that time against his own post till further orders and the post at the relevant time held by the petitioner was that of a peon. In support of his contention learned counsel has cited AIR 1997 SC 1992 1922 and AIR 1997 SC 7129. In the case of AIR 1997 SC 1922 clerk discharged the duties of a teacher and it was held that it did not confer any right of appointment to teaching post. With regard to the doctrine of equal pay for equal work the apex court in AIR 1997 SC 2129 dealt with the case of daily wagers who worked against the post of clerk and it was held that they were not entitled to same pay scale as regular clerks since their recruitment was not made in accordance with the rules. Concluding his argument the counsel has contended that in the present case, the recruitment of the petitioner has not been made in accordance with the recruitment rules in the case of executive category (teacher) so he is neither entitled to the regularisation of his services nor to the pay which was payable to a teacher.