SHAMEEMA SHABNAM Vs. STATE

JUDGEMENT

(1.) Claiming to be senior in the capacity of a teacher, the appellant invoked extraordinary writ jurisdiction by medium of a writ petition seeking a direction for her appointment as in charge Lecturer and subsequently questioned the regularization of one of the respondents. Both the writ petitions were dismissed by learned Single Judge by a common judgment dated 18 -10 -2008, hence this Letter Patent Appeal. For proper understanding and appreciation of the cause urged before the writ court, it would be appropriate to notice that two Service Writ Petitions bearing Nos. 234/96 and 635/03, filed on 24 -02 -1996 and 29 -04 -2003 respectively, by appellant -writ petitioner Miss Shamima Shabnam (appellant hereinafter) against one of the beneficiaries of Government Order No. 1479/Edu of 1993 dated 03 -09 -1993 and No.149 -Edu of 2002 dated 31 -12 -2002, namely Miss Shahnaz Shaheen (Respondent -Promotee hereinafter) besides, Government of Jammu and Kashmir and its functionaries, former order, appointing 93 teachers including Respondent -Promotee, as in charge Lecturers, and the latter, regularizing the services of the same number. The controversy being referable to the basic order viz. Government Order No. 1479/Edu of 1993 dated 03 -09 -1993, may be reproduced:

(2.) PERUSAL of the above said order of appointment reveals that it had to be in force for a period of six months and in the alternative till filling up of the posts on regular basis. The period of six months having expired in the month of April 1994, the latter condition of the order came into effect, conferring a right of continuation on the beneficiaries till regular appointment. Although knowledge of the order is not disputed by the appellant, yet she did not approach the Court before expiry of six months for a relief of assignment of charge through first Writ Petition. In this behalf, it may not be inapt to take notice of the stand of the Government (see page 36 of the paper book of SWP 635 of 2003), suggesting that the policy decision taken by the Government to make appointment of 93 teachers as in charge lecturers and the respondent -promotee, being one amongst them, followed by their regularization, emanated from reluctance on the part of the teachers to serve in the remote areas of the State particularly Kashmir valley and hilly terrain in the Jammu Division, who had even preferred to forego their promotions rather than to serve in such difficult areas. Indisputably, the appellant has invoked the jurisdiction of the Writ Court for the first time for similar treatment after a couple of years and there being no denying about the knowledge of the policy decision by the appellant, she owes an explanation for not having approached the Court immediately at least before expiry of its first prescribed spell of six months to prevent the Government from treating her as one of the teachers, reluctant to accept the assignment of the charge of Lecturer. Amazingly she has advanced nothing to refute the basis of the policy decision of the Government i.e. reluctance and other such like reasons. We may hasten to add that we have neither any cause nor do we wish to embark upon validity or otherwise of the policy decision of the Government as the case may be, relating to the appointments of in charge lecturers and their regularization, for the simple reason that the said policy was not challenged by the appellant before the writ Court at any point of time but then what has prompted us to make a mention of all these events including the Governments stance is, to say the least, that the appellant has consumed public time in absence of disclosure of essential pleadings and non -impleadment of other 92 beneficiaries of the orders of appointment. Needless to say that if rules and norms of pleadings were applied strictly by the writ Court, that alone could have proved fatal to the maintainability of the Wirt Petition.

(3.) THAT apart admittedly the appellant did not challenge the basic Government Order No. 1479/Edu of 1993 dated 03 -09 -1993 through his first Writ Petition (234/96) but pressed it into service to establish analogy to persuade the Court for grant of similar relief and remained contented until issuance of order of regularization. Faced with the ground reality, an escape route was opted for by Mr. Qureshi contending that the appellant did not challenge the said order because she was made to believe by one of the alleged contemnors in a contempt petition that respondent -promotee was not allowed to continue. The contention is bereft of any logic, for, as said above, the appointment was not done away with and the respondent -promotee was allowed to continue, and appellants knowledge of that fact is manifest from her writ petition filed in 1996 wherein she had claimed relief on the principle of parity, therefore, she cannot be allowed to turn around to challenge the appointment.