MUFEEDAH HASSAN WANI Vs. STATE OF J&K

JUDGEMENT

(1.) The notification issued by respondent No.4 for engagement as Rehbar-e-Taleem in Middle School, Manchewa, Yaripora in the year 2003, culminated into selection of one Ms. Maimoona Hasan vide Order No.ZEO/RT/Upgradation/842-45/04 dated 21.08.2004. It may be pertinent to note here that in the panel prepared by respondent No.4 in the year 2004, respondent No.6 was figuring next in the order of merit. Pursuant to her engagement, Ms. Maimoona Hasan joined her duties as Rehbar-e-Taleem in the concerned school, but abandoned her duties w.e.f. 21.05.2011. She was served several notice by respondent No.4 to join back her duties but she did not respond. Ultimately respondent No.4 vide order No.ZEO/Y/7740-43/12 dated 01.01.2012 disenagged Ms. Maimoona Hassan from her service as Rehbar-e-Taleem on account of her unauthorized absence. Consequenlty, the vacancy of Rehbar-e-Taleem held by Ms. Maimoona Hassan again fell vacant. Ordinarily, the post having arisen due to the disengagement of Ms. Maimoona Hassan was to be treated as a fresh vacancy and to be filled up by issuing fresh advertisement in accordance with the law in force on the date of occurrence of such vacancy i.e., 04.01.2012.

(2.) It appears that respondent No.6, who was next in the order of merit after Ms. Maimoona Hassan, staked his claim on the aforesaid post, which was not considered by the official respondents. He, therefore, filed a suit for declaration and injunction before the Court of Sub Judge, Kulgam. Sub Judge, Kulgam after putting the defendants therein to notice and after affording them an opportunity of hearing, issued interim directions on 28.01.2012. For facility of reference, the relevant portion of the interim order passed by the Sub Judge, Kulgam dated 28.01.2012 is reproduced hereunder:- ?I have heard the arguments and gone through the material available on file including the order passed by defendant No.5 vide No.7740-43/12 dated 04.01.2012, whereby Mtr. Mymoona Hassan working as ReT under SSA scheme in govt. M/S Manchwa (upgraded under SSA scheme) has been disengaged from service as ReT with immediate effect. Plaintiff is also one of the candidates figuring in the panel framed by the defendants. Admittedly by the disengagement of Mtr. Mymoona Hassan as ReT working in the Govt. M/S Manchawa, the post has fallen vacant and students therein the school are being suffering from education without their being a teacher. The defendants have also not raised any objection in case, the plaintiff being one of the candidates in the panel framed by the defendants is engaged as ReT in the aforesaid school being a meritorious candidate. Therefore, I do not see any reason to disallow the relief prayed for by the plaintiff with the direction to defendants to consider the case of plaintiff and in case he is found entitled to the said post fallen vacant, the process for his engagement as ReT in the said school be undertaken. Accordingly and in view of the above, I am convinced with the arguments advanced by the counsel for plaintiff that plaintiff has been able to make out a prima facie case in his favour to the above extent and the balance of convenience also lies in his favour. Accordingly following order is passed. Defendants 4 and 5 be directed to under take the process for engagement of plaintiff as ReT in Govt. M/S Manchawa being one of the candidates in the panel already framed by the defendants, if otherwise he is found entitle/eligible and meritorious as per the norms of ReT scheme. Application is accordingly disposed of.?

(3.) In compliance of the interim direction passed by the Sub Judge, Kulgam, the claim of respondent No.6 was considered and vide order impugned dated 12.03.2012 he being a candidate next in the order of merit in the panel from where Ms. Maimoona Hassan had been engaged, was engaged as Rehbar-e-Taleem against the post that had fallen vacant due to disengagement of Ms. Maimoona Hassan. It may be noted that the petitioner, though not party in the suit pending adjudication before the Sub Judge Kulgam, has not assailed the order dated 28.01.2012 before the appropriate Forum nor has she applied for vacation of the aforesaid interim order so far. The order impugned, whereby No.6 has been engaged as Rehbar-e-Taleem, has been issued by respondent No.4 in compliance of order dated 28.01.2012 passed by the Sub Judge, Kulgam. Needless to say that the order of a Court of competent jurisdiction, even in the lowest hierarchy has to be respected and complied with in letter and spirit. A person against whom any order is passed by any Court of competent jurisdiction has remedies available in law to have that order vacated, modified or set aside.