LEELA KOUL Vs. STATE

JUDGEMENT

(1.) UNFORTUNATELY , this case demonstrates how the petitioner, a widow reaching age of superannuation shortly has been driven to third round of litigation in this court still learned counsel for the State submits that since respondents have not filed objections in the case, it may be admitted so that the respondents could file objections to the petition thereafter as per rules of procedure forgetting that adopting of this method would cause further delay in the disposal of case apart from the fact that respondents have forfeited its right to file objections despite several opportunities and the last opportunity being granted on Sept. 22, 1994 subject to payment of costs of Rs.200/ - which order has not been complied with till date. Alternatively, there is no express provision for filing objections on more than one occasion in J&K High Court Rules, 1975. It is well settled that all rules of procedure are not mandatory in character. Rather, they are meant to aid in the dispensation of quick justice instead of delaying it. This petition was filed in September 1993, but the respondents have not filed objections till date and learned counsel for the petitioner vehemently opposed the submission and urged for decision. Matter admitted for hearing and understanding the urgency of the matter, I proceed to decide the matter allowing the learned counsel for respondents to make submissions on the merits of the case. While doing so, Government Order No. 237 -Edu of 1994 dated 17.2.94 was placed on record. Let material facts of the case may be mentioned.

(2.) PETITIONER was appointed a teacher by order No. 106 -14 dated 20.4.58 for teaching Punjabi language in Girls Primary School Batagound (Tehsil Pulwama). For this purpose, she was asked to open a new girls school at the place at once before the beginning of winter vacations by order No. 106 -14 dated 20.12.58 (Annexure -A). She continued to function in the cadre of teachers upto 25.2.1961. With reference to communications No. A/2630 -31 dated 14.6.60 and A/4309 -10 dated 1.7.60, it is pointed out the petitioner is middle in Punjabi in addition to 5th Primary class. As the petitioner was not middle class pass, relaxation was sought at an early date since the petitioner had not been paid her dues from 23.12.58.

(3.) STRANGELY , by order No. 782 -84 dated 25.2.61, the petitioner was appointed a peon in the school, but asked to work as teacher in Government Girls School Diver, meaning thereby although the petitioner was appointed a peon, but she was asked to discahrge the function of teacher in Punjabi since the respondents required a teacher for teaching Punjabi to large number of sikhs girls in the school. The requirement of petitionerâ„¢s service was, therefore, found indispensable. Fact remains that the case of the petitioner was moved to the government for relaxation of eligibility qualification so that she could be paid salary attached to the post of teacher from the date of her appointment. Since no decision was taken by the Government, the petitioner was given the salary of peon though she was asked to discharge the duty of a teacher in Punjabi. When no decision was taken by the State Government till 1982, the petitioner filed writ petition No. 437/82 and this court directed the government to consider the petitionerâ„¢s case for relaxation within four months. When the government failed to take any decision, petitioner filed Contempt Petition No. 202/89 in this court. By decision No. Estt -III/Pay/ 45295 -97 dated 19.12.92, the petitioner was allowed pay as a teacher from 20.12.1958 to 25.2.1961. Again, respondent No. 2 requested respondent -1 through communication No. Estt/III/writ - PF) 76474 dated 4.11.87 (annexure -F) to accord relaxation in favour of the petitioner. This communication also refers the similar request of the erstwhile Director, School Education in this regard. Ultimately, in compliance of court direction dated 21.8.87 passed in SWP 437/ 82, Ms. Sushma Choudhary Commissioner/ Secretary to Government of J&K, Department of Education, passed Government order NO. 228 of 1991 dated 1.3.91 (annexure -G) according sanction to the appointment of petitioner as teacher in Education Department in relaxation of qualification bar/recruitment rules. However, matter did not rest here. Respondent -2 sent communication No. DSE/LIT/27643 -44 dated 3.12.91 seeking clarification whether Govt. Order No. 228/91 dated 1.3.91 was of retrospective effect or not (annexure -H). The matter remained pending with the State Government with the result that the petitioner was constrained to file present petition seeking direction to respondent -1 to give retrospective effect to order of March 1, 1991 (order No.228 of 1991 dated 1.3.1991) (annexure -G) and grant such other relief that may be found appropriate by this court. On 23.12.93 the following order was passed: "Learned counsel has drawn my attention to the orders passed by the Government in compliance of the court directions given in SWP No. 437 of 1982 titled Leela Kour versus State and others whereunder the Government in relaxation of the qualification bar appointed the petitioner. However, issue has been joined by the respondents that the Government Order No. 228 of 1991 dated 1.3.91 is silent regarding the retrospective effect. Learned counsel has drawn my atention to a full bench Judgment of this court reported as AIR 1979 J&K 34, wherein similar point was under consideration before their lordships and the ratio laid down in the said judgment is that whenever a relaxation is granted by the Government for qualificaion or age, it is to be deemed to be retrospective. In light of the said judgment, learned counsel projects that in the case at hand, the relaxation be also deemed to be retrospective. Issue notice to the respondents returnable within six weeks to show cause as to why this petition be not admitted to hearing. Issue notice in the CMP also returnable within the same period. In the meanwhile, subject to objections of other side, respondents are directed to issue clarification in light of the ratio laid down in the above referred judgment, to the Government order No. 228 of 1991 dated 1.3.1991 as the matter already stands submitted to the respondent No. 1 by respondent -2 under his No. DSE/Lit/ 27643 -44 dated 3.12.91 and for the last more than two years, the said reference is pending decision with the Government. Respondents are further directed to accord consideration within sixty days. List after service is complete."