SONEETA KUMARI LIDOO Vs. STATE OF J&K

JUDGEMENT

(1.) Jammu and Kashmir Service Selection Board vide its Notification No.02 of 1986 dated 21.06.1986, invited applications for the posts of Teachers in District Cadre Kupwara. The petitioner along with other eligible candidates participated in the selection process. The petitioner did not find her name amongst the selected candidates. The petitioner joined by 31 others unsuccessful candidates filed SWP No. 718/1988 titled Rajinder Kumar and others v. State and others. The petition was ultimately pressed only by the petitioner and two other candidates, namely, Rajinder Kumar and Girja Kumari. In the aforesaid writ petition, a challenge was thrown to the selection of private respondents 7 to 20 therein on various grounds. The writ petition was allowed by a bench of this Court vide its judgment dated 10.03.1999. The petitioner along with aforementioned two petitioners were held entitled to the appointment as teachers in District Cadre Kupwara subject to verification of the fact that at the relevant point of time viz. the date of submission of the application forms for the post, the petitioners were possessing the qualification of graduation. The Court also made it clear that their appointments shall take effect prospectively. The Jammu and Kashmir Service Selection Board did not accept the judgment of the learned Single Bench and assailed the same before the Division Bench of this Court in LPASW No. 38/2002. Appeal as against the petitioner herein and one Rajinder Kumar was dismissed by the Division Bench vide its judgment dated 11.10.2004. After the dismissal of the LPA, the Jammu and Kashmir Service Selection Board vide its communication dated 14.12.2004 recommended the candidature of the petitioner and one Rajinder Kumar for the post of teachers, district cadre Kupwara. The recommendations were acted upon by the respondent No.2, who vide his Order No.215-DSEK of 2005 dated 08.02.2005 issued the appointment order of the petitioner as Teacher. The petitioner accepted the appointment, but, once again knocked the doors of this Court by the medium of SWP No. 1795/2008. Rajinder Kumar too joined the petitioner. The petitioner claimed retrospective benefit of her appointment on the analogy of and on the strength of judgment passed by the Division Bench of this Court in LPA(SW) No. 44/1998 titled Dolly Kumari v. State of J&K and others. A bench of this Court disposed of the writ petition vide its order dated 26.08.2013 with a direction to the respondents to accord consideration to the case of the petitioner in the light of the averments made in the writ petition, the documents attached thereto, rules governing the field and the aforementioned judgment provided he was similarly situated as the petitioner(s)/appellant(s) in the said petition/appeal. In compliance to the judgment dated 26.08.2013, the matter was considered by the respondent No.2 and drawing similarity with the case of Dolly Kumari accorded sanction to the grant of retrospective effect notionally without any monetary benefits w.e.f. 02.04.1988 to the petitioner. This was done by the respondent No.2 vide his order No.103-DSEK of 2016 dated 08.10.2016.

(2.) The petitioner, thus, got the benefit of promotion from retrospective date though notionally, which was even beyond the relief granted by this Court in her writ petition, i.e., SWP No.718/1988 decided on 10.03.1999. The petitioner ought to have rejoiced the benevolence of the respondent No.2, but, as the greed would have it, she once again approached this Court and this time seeking the effects of the order dated 08.10.2016 by way of re- fixation of her salary and payment of arrears etc. It is in the backdrop of the aforementioned facts, the petitioner has filed the instant petition seeking inter alia a direction to the respondents to grant her monetary benefits, which would accrue to her on account of her appointment retrospectively w.e.f. 02.04.1988. The sum and substance of the argument urged by the petitioner in support of her claim is that once the respondent No.2 in compliance to the judgment passed in SWP No. 1795/2008 granted the retrospective effect to her appointment w.e.f. 02.04.1988, the effects of such retrospective promotion, which would automatically accrue, cannot be denied. The petitioner is entitled to re-fixation of her salary by taking her to be appointed, though notionally, w.e.f. 02.04.1988. It is claimed that the petitioner would not only be entitled to reckon her seniority from the aforementioned date, but, taking her appointment to be w.e.f. 02.04.1988, the petitioner would also be entitled to the re-fixation of her salary at par with the appointees of April, 1988.

(3.) The respondents have opposed the writ petition contending inter alia that during the pendency of this writ petition, the case of the petitioner was re-examined in the light of the representation made by her, but, the same was barred by limitation in terms of Rule 2.43 of the J&K Financial Code and, therefore, found not tenable in law. Accordingly, vide Order dated 800-DSEK of 2017 dated 10.07.2017 passed by the respondent No.2, the claim of the petitioner for retrospective effect with monetary benefits was rejected. Mr. Aseem Sawhney, learned AAG appearing for the respondents submits that the petitioner is not entitled to any relief as prayed for in this writ petition. Referring to the judgment passed in the case of the petitioner in SWP No.718/1988 dated 11.03.1999, learned counsel argues that the petitioner was entitled to appointment as teacher only prospectively and, therefore, order dated 08.10.2016 passed by the respondent No.2 giving the appointment to the petitioner retrospectively w.e.f. 02.04.1988 is bad in law and contravenes the judgment passed in the case of the petitioner. He submits that the petitioner is not entitled to any relief beyond what was granted in her favour in her writ petition, i.e. SWP No. 718/1988 disposed of by a Single Bench of this Court vide its judgment dated 10.03.1999 and upheld by the Division Bench of this Court in LPA(SW) No.38/2002 decided on 11.10.2004. He, therefore, urges that the petitioner is entitled to appointment w.e.f. 08.02.2005 when the order of appointment in her favour was issued by the respondent No.2 in compliance to the judgment passed in her case.