STATE TH. EDUCATION DEPTT Vs. MOHD. IQBAL NAIK

JUDGEMENT

(1.) The above captioned 24 Letters Patent Appeals arise out of the common judgment dated 18-05-2010, whereby the learned writ Court while disposing of the batch of writ petitions has quashed Condition No.6 of the Transfer Policy issued by Government of Jammu and Kashmir Education Department vide Government Order No.27-Edu. of 2010 dated 12-01-2010 (for short to be referred to as Transfer Policy of 2010), which provided that R-e-T Teachers whose services stood regularized, shall not be transferred, their appointment being school specific, holding the said Condition to be ultra vires of the Jammu and Kashmir Educational (Subordinate) Service recruitment Rules, 1992 (hereinafter to be referred to as Rules 1992).

(2.) Admittedly, all the private respondents (hereinafter to be referred to as writ petitioners) have been regularized as General Line Teachers after putting in five years of their uninterrupted service as R-e-T Teachers. Condition No.6 inserted in the aforesaid Transfer Policy of 2010 imposed a blanket restrictions on their transfers. The writ petitioners questioned the legal validity of the said Condition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, on the strength that the aforesaid Condition (Condition No.6) was violative of provisions of 1992 Rules, which provide for transfer of General Line Teacher within 'District Cadre' and with the approval of the Administrative Department beyond the 'District Cadre'. Their contention before the writ Court was that in view of the provision regarding transfer made under 1992 Rules, it was not competent for the State to frame Transfer Policy with a blanket restriction on the transfer of regularized R-e-T Teachers.

(3.) Appreciating the contention of the writ petitioners, the learned writ Court ultimately came to the following view: The fact of the matter is that after regularization, they constitute one class with the General Line Teachers. They stand en-cadered in the service and are governed by the Rules of 1992. They cannot claim any special privilege after their en-caderment in the service regarding their transfer. They have to be covered by Transfer Policy which is in existence regarding the General Line Teachers. Condition no. 6, prima facie intends to make out a class within the class by stating that those persons who are regularized as Rehbar-e-Taleem Teachers, their transfers should be School specific. This condition is ultra vires of the Rules.