Srinagar: The High Court of J&K & Ladakh on Friday set aside a 2014 cabinet decision provision and a writ court order that said that the five years’ service rendered by Rehbar-e-Taleem (ReT) teachers before regularization shall count for the purpose of fixing their seniority.
A two judge bench comprising Justices Sanjay Parihar and Sanjeev Kumar while allowing a writ petition by the general line teachers ordered “the impugned provisio, to the extent it provides that the five years’ service rendered by Rehbar-e-Taleem teachers before regularization shall count for the purpose of fixing their seniority, is set aside.
The government in 2000 launched the ReT scheme. In 2014, a policy decision was taken and it was decided to add a proviso to the last para captioned “regularization” of the ReT Scheme. It provided that, five years’ service rendered by the ReT before his/her regularization shall count for the purposes of fixing their seniority and pensionary benefits.
The proviso added to the Scheme in terms of Government Order 469 of 2014 impacted the seniority of the General Line Teachers appointed in the School Education Department admitted in to the service by the recommendations of the Jammu & Kashmir Service Selection Board.
They challenged the cabinet decision provision and the writ court upheld the proviso. They appealed against the single judge bench and a division bench after more than a decade decided the matter in their favour.
The division bench held that from perusal of the proviso, in particular, to the extent it is assailed, it transpires beyond any doubt that the proviso makes a provision for giving seniority to the ReTs appointed as General Line Teachers upon completion of five years from the date of their initial engagement as ReT i.e. five years prior to becoming the member of service constituted by the Rules of 1979.
“In turn Rule 24(1) of Rules of 1956 is a statutory provision providing that fixation of seniority of an employee would be reckoned with effect from the date he becomes the member of a service. The proviso to the ReT Scheme, on the face of it, is de-hors Rule 24(1) of the Rules of 1956 and also against the settled cannons of service jurisprudence”, it said.
Its order continued “there is ample authority on the proposition that no employee can be given seniority from the date he is not borne on the service, class, category, or grade as the case may be”.
It held “ReT becomes member of service only when there is formal order of appointment issued after evaluation and assessment of his/her performance on completion of five years as ReT”.
The bench said that the government, acting in ignorance of the settled legal position, took the policy decision to confer the benefit of seniority on ReT with effect from the date they were initially engaged, notwithstanding the fact that on said date they were not borne on the cadre of service constituted by the Rule of 1979.
The Government also did not take into consideration the fact that by adding the impugned proviso in the ReT, they had acted to the serious prejudice of the General Line Teachers who were appointed prior to the regularization of various ReTs, it added.
“The policy decision taken by the Cabinet, which ultimately resulted in issuance of impugned Government order, was not only to the serious prejudice of the appellants but was also in conflict with the statutory provisions like Rules of 1979 and, in particular, Rule 24 of the Rules of 1956”, held the court.
The judges regretted their inability to persuade themselves to concur with the reasoning given by the Writ Court.
