J&K High Court Strikes Down Seniority Benefit For ReTs | Five-Year Pre-Regularisation Period Cannot Count Toward Service Seniority
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar held that Rehbar-e-Taleem (ReT) appointees cannot claim seniority from a date prior to their formal induction into service as General Line Teachers. The court set aside the impugned portion of a Government Order that allowed counting of five years of ReT service for seniority purposes. The court concluded that such retrospective seniority violated statutory rules and settled principles of service jurisprudence. Consequently, the court allowed the appeal, set aside the writ court's decision, and struck down the contested proviso granting retrospective seniority.
The appeals challenged the judgment dated 31.12.2014, wherein the writ court dismissed a petition contesting Government Order No. 469-Edu of 2014 dated 25.06.2014. The said order had introduced a proviso granting ReTs the benefit of counting five years of their pre-regularisation service for seniority and pensionary purposes. The appellants were General Line Teachers recruited through the Jammu & Kashmir Service Selection Board (JKSSB), whose seniority was affected by this order.
Initially, the ReT Scheme was launched via Government Order No. 396-Edu dated 28.04.2000 to address teacher shortages at the primary and middle school levels, especially in remote areas. The engagement of ReTs was based on local community recommendation through Village Level Committees. Candidates selected under this scheme were to serve initially for two years on an honorarium basis, extendable by three more years, subject to performance. On satisfactory completion of five years, they became eligible for consideration for appointment as General Line Teachers.
According to the appellants, the impugned government order and the corresponding Cabinet decision No. 115/09/2014 dated 19.06.2014, violated Rule 12(1) of the Jammu & Kashmir Educational Subordinate Services Recruitment Rules, 1979 and Rule 24 of the Jammu & Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956. The appellants contended that seniority in service must be reckoned from the date a person becomes a member of the service, and any retrospective seniority is inconsistent with established jurisprudence.
The State and private respondents defended the policy, asserting that ReTs performed identical duties as General Line Teachers and had already received various parity-based benefits. They argued that since the Government Order was a policy decision by the Cabinet, it should not be interfered with by the court.
The court observed "From plain reading of Rule 24(1), it is abundantly clear that the seniority of a person who is subject to the Rules of 1956 has reference to service, class, category and grade...and such seniority shall be determined by the date of his/her first appointment to such service, category or grade."
The Bench further recorded that "a ReT becomes member of service constituted by the Rules of 1979 only when, upon completion of five years satisfactory service as ReT, he/she is appointed as General Line Teacher." Thus, the impugned proviso conferring seniority from the date of initial engagement was held to be inconsistent with the rules.
It was further noted, "The engagement of ReT was not necessarily against any substantive available post and the remuneration...was in the shape of honorarium... The right given to the ReT to be appointed as General Line Teacher is only a right of consideration."
"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."
Regarding parity in benefits, the court stated, "The ReTs may have been extended various benefits like casual leave/maternity leave and even the benefit of counting their service for making good shortfall of qualifying service for pension but that itself does elevate the status of ReTs."
The judgment also clarified the limited scope of the earlier Supreme Court proceedings, stating, "ReT Scheme has not been upheld by the Supreme Court in the said SLP... the proviso added subsequently...was not subject matter of challenge in those proceedings."
The Division Bench allowed the appeals and set aside the judgment of the writ court. The impugned proviso in the Government Order, which permitted counting of five years of ReT service before regularization for seniority purposes, was quashed. The judgment recorded:
"In view of the aforesaid discussion, we find merit in these appeals. Both the appeals are allowed and the impugned judgment passed by the writ Court is set aside. As a consequence, the writ petition is allowed and the impugned proviso, 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."
Advocates Representing the Parties:
For the Petitioners: Mr. Tasaduq H. Khawja, Advocate with Mr. Abdul Muizz, Advocate
For the Respondents: Mr. Hakim Aman Ali Dy. AG, Mr. Z.A. Shah, Sr. Advocate with Mr. A. Hanan, Advocate
Case Title: Anwar Hussain Wani & Ors. v. State of Jammu & Kashmir & Ors.
Case Number: LPASW No. 6/2015 c/w LPASW No. 18/2015
Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar
[Read/Download order]
