TAHIRA (SGR ) Vs. STATE

JUDGEMENT

(1.) EDUCATION is fundamental and pivotal, rather the cornerstone, to the social welfare and nation building. Looking back through history, it is found that the aspiration to have a literate society was deeply rooted in our struggle for independence, somuch so that resolutions were passed much earlier to independence by the mainstream political parties spearheading the freedom movement, for providing free and compulsory elementary education through out the country. The visionary founders of our Constitution enshrined this ideal dream of our forefathers in Articles 41 and 45 of the Constitution. The State of Jammu and Kashmir did not lag behind. The State Constituent Assembly set -out identical goals for the State in Section 20 of the Constitution of Jammu and Kashmir. The Government of Jammu and Kashmir, in order to foster the social revolution, and with a view to practically implementing the constitutional directives, as aforesaid, framed law and established elementary schools through the length and breadth of the State. The social revolution was in the process of transformation and realisation when the State was caught in quagmire of the turmoil. In or around the year 1990, a section of the society migrated from the Valley on account of which the education system in the Valley was badly affected. However, with a view to saving the system from derailment, the State took immediate steps and filled up all such vacancies by substitute arrangements so that the children, receiving education in these Schools, did not suffer for want of teaching staff. It appears that, in and after mid -nineties, though there are few cases earlier to that, until recently, the Government has effected one -way at -the -request inter and intra district and inter provincial transfers and attachments of teachers / masters / lecturers, mostly ladies, (generally, hereinafter referred to as "teachers"). Identical transfers and attachments were made from other Districts to the Districts of Srinagar, Jammu and Budgam. Budgam is a District abreast the city of Srinagar and its district headquarters are located just at a distance of 14 to 15 kilometers from the city of Srinagar. These inter and intra District and provincial transfers and attachments were sought on the basis of threat perception, medical grounds and / or on the ground of the privilege to live together as husband and wife, the husband being a Government servant and posted either at Srinagar or at Jammu. On the one hand, this led to concentration of such teaching staff particularly in the Districts of Srinagar, Budgam and Jammu, mostly in the urban areas, on the other the Schools in rural areas, for which these teachers were appointed, were left bereft of teaching staff. Realising the deviant feature and the chaotic situation this trend had culminated into, the State Government in the Education Department issued Order No. 661 -Edu of 2003 on 21st June, 2003, ordering, with immediate effect, the revocation of all intra -district / inter -district attachments / transfers of teachers and intra -district / inter -district attachments of Masters and Lecturers. Since the order had taken "immediate effect" all these teachers were relieved by the concerned Heads of the educational institutions with direction to report back at their respective parent places of postings.

(2.) NUMEROUS writ petitions came to be filed by these teachers before this Court, both at Jammu and Srinagar, challenging the legality of the aforesaid Government order dated 21st June, 2003. In the Srinagar wing of the Court alone, till the matter came up for hearing before us, 188 writ petitions were filed. In usual course, these petitions came up for consideration of admission, both at Jammu and Srinagar, before the learned Single Benches and, in most of the cases, interim directions for maintenance of status -quo, or orders staying the operation of relieving letters, were passed. Against the order of status -quo passed by the learned Single Bench at Jammu in one such petitions, being SWP No. 1110/2003, filed by as many as thirty -one petitioners, the State and its concerned functionaries came up in Appeal, being LPA(SWP)No. 142/2003, before the Division Bench of the Court at Jammu. Considering the exigency and the interests of the large number of teachers and students involved in the matter, the Division Bench, on 8th July, 2003, inter alia, observed as under: ". We are of the view that it would be in the interest of all, if the writ petitions arising out of Government order dated 21.6.2003 are heard by the Division Bench for an authoritative decision... " Accordingly, these matters, both at Jammu and Srinagar, alongwith the aforesaid Letters Patent Appeal, were heard by us. Since all these petitions arise out of one and the same Government order dated 21st June, 2003 and involve almost identical questions of law and of fact, therefore, by this common order, we admit to hearing and proceed to decide all these writ petitions filed both at Srinagar and Jammu wings of this Court alongwith the Letters Patent Appeals.

(3.) BROADLY speaking, these writ petitions can be divided into three sets and categories, namely: (i) one, involving those teachers whose transfers/attachments have been made on medical grounds on account of their own ailment or of their kith and kin; (ii) second, those teachers whose transfers/attachments have been ordered by the Government, from time to time, on the ground of threat perception; and (iii) third, those teachers whose transfers/attachments have been ordered on the ground of living in a joint family, i. e. , the husband is a government employee and posted at Srinagar and wife has sought the privilege of living with her husband. In this category of petitioners, there are several petitions wherein: (a) the husband is not a government servant but is doing business or has retired from service; (b) the husband, whether a government servant or not, has married a women belonging to some other district.