Srinagar July, 19: The High Court of Jammu & Kashmir and Ladakh Tuesday quashed the termination order issued by the government against three Rehbar-e-Taleem's (ReTs) teachers while observing that the order is nothing short of an "open and naked" exhibition of "bureaucratic arrogance."
The court directed the government to allow the ReT teachers to render their services as ReT's in their respective schools till a final decision in the matter is taken by the respondents.
The bench of Justice Sanjeev Kumar quashed the termination order issued by the government on February, 21, 2022 against Javeed Ahmad Bhat of Nadimarg, Kulgam Middle School, Sajad Hussain Shah of Middle School, Nagbal, Anantnag and Shabeer Ahmad Malla of UPS Adoora Shopian, who were engaged as ReT's in 2012.
The petitioners had rendered more than five years service as ReTs and have become entitled to regularization under the ReT Scheme.
However, the case of the petitioners for regularization was rejected by the respondents on the ground that on the 1st day of January of the year in which the advertisement notifications were issued pursuant to which they were selected and engaged, the petitioners were, a few months or days short of attaining the minimum age of 18 years.
The court noted that the ReT Scheme itself makes a provision to deal with such ReTs who are found not fulfilling the age qualification at the time of consideration of their formal appointment in the government.
The court pointed out that the Scheme clearly depicts that even at the stage of considering the ReT for his/her formal appointment as Teacher, his/her age qualification is required to be verified and if he/she or any of them is found not to fulfill the age qualification, his/her services are not to be terminated, rather he/she is to be continued on contractual basis for future.
"It is, thus, not understandable as to why the petitioners have been meted out the worst treatment which is not even envisaged by the Scheme," the court said.
Justice Kumar recorded that while the respondents may be right in understanding that in the matter of engagement of ReTs, the age prescribed under Article 37 of J&K Civil Services (Classification, Control and Appeal) Rules, (CSR), 1956 Vol. 1 is applicable, but they have conveniently ignored to find in Article 37 itself the provision for relaxation.
"The respondents have very conveniently forgotten that, with a view to tackle such a situation and to mitigate the hardship of an individual employee or class of employees, Article 37 of CSR, itself gives power of relaxation to the competent authority," the bench said.
It pointed out that there is no escape from the conclusion that the cases of the petitioners do call for invoking the power of relaxation vested in the employer by the statutory rules.
The bench recorded that it is true that the power of relaxation given to the government, be it with regard to the age or qualification, is discretionary in nature, but the discretion vested in the authority is not to be confused with "desire and sweet will."
"It cannot be used at the whims and caprice of the
authorities," the bench said.
If the circumstances of a particular case warrant the exercise of such discretion, the competent authority has no option, but to exercise it and, failing to do so, would be tantamount to failure to perform the statutory duty enjoined by the Rules to do justice in a particular case, the court recorded.
The court said that there could hardly be a better case than the case on hand for exercising such power of relaxation vested in the government to do justice in a particular case.
"Showing somebody door and deprive him of his right to livelihood after he has served the department for ten long years, cannot be done so casually as has been done by the respondents,"
The bench said that the respondents have also forgotten that they have a constitutional duty to provide adequate hearing to the petitioners before taking an action entailing serious evil and civil consequences for them.
It pointed out that it is trite law that even if the statutory rules do not provide for giving an opportunity of being heard to a person before taking an adverse action against him, yet it is the duty of the authority concerned to give an opportunity of being heard to the person before passing an order which has the effect of depriving him of his vital civil rights.
Justice Kumar recorded that the petitioners, having been appointed as ReTs by none other than the respondents and, that too, after undergoing a proper selection process and having worked as such for a period of ten years, had acquired the right of regularization as general line teacher under the ReT Scheme.
The order has not only deprived them of their right of regularization as general line teacher, but it has even taken away their engagement as ReTs and has, thus, the effect of depriving them of their right to livelihood.
"Such order could not have been passed by the respondents without complying with the principles of natural justice and, therefore, strikes at the core of Article 14 of the constitution of India,"
Had the petitioners been put to notice, the court pointed out, they would have explained their position and persuaded the respondents not to take such harsh action.
"“Useless formality theory” was, thus, not attracted or applicable in the facts and circumstances of this case," the court underscored.
It further pointed out that the ineligibility qua the minimum age, at the relevant point of time, has been made the sole basis to reject their claim for regularization.
Justice Kumar observed that the respondents have gone a step further in terminating their services by virtually holding their engagements as ReTs void ab initio.
"Could this have been done by the respondents.? One wonders ! The respondent-government in the School Education Department is not a private Limited Company, but a model employer which should and must always look after the welfare of its employees," the bench said.
The respondents forget that it is because of their action or in-action, the petitioners were allowed to apply and participate in the selection process, the court added.
Upon their selection, the bench said, they were engaged as ReTs and permitted to perform their duties as such for more than ten years. They may now have become overage or incapable of seeking employment elsewhere.
"Was it the right time and was there any justification to pass the impugned order which, on the face of it, is "harsh" and "a colorable exercise of power"?," the court asked while adding that the order is nothing short of an "open and naked" exhibition of "bureaucratic arrogance."
Allowing the plea of ReT teachers, Justice Kumar directed the government to consider the cases of the petitioners and pass an appropriate order of relaxation of minimum age in their favour and regularize their services under the Scheme with effect from the date they have completed five years satisfactory services as ReTs.
The bench also held the petitioners entitled to all consequential benefits including the arrears of salary, increments etc.
"Let a decision in this regard be taken by the respondents within a period of two months from the date a copy of this judgment is served upon them," the court directed.
Till a final decision in the matter is taken, the bench directed the respondents to permit the petitioners to perform their duties as ReTs in their respective schools.