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2005 DIGILAW 362 (JK)

Shakeel Ahmad Bhat v. State Of J. &K.

2005-12-17

MANSOOR AHMAD MIR

body2005
1. This judgment will govern both the writ petitions referred, hereinabove. 2. Two posts of Rehbar-e-Taleem scheme were to be filled up by respondents 1 to 5 in Primary School, Dangerpora Pulwama Zone. The respondents issued advertisement notice. Petitioners and other candidates filed the applications. Respondent No.5 issued proposed selection list of the candidates for all the schools falling within the zone including the Primary School, Dangerpora. 3. Petitioners feeling aggrieved of the said selection preferred this writ petition and prayed for issuance of writ in the nature of certiorari quashing proposed selection list issued under No. DIPK-3262 dated 08.01.2003 with further command to the respondents not to act upon the said selection list and appoint the petitioners as teachers under Rehbar-e-Taleem Scheme. 4. It appears that petitioners have based their claim on the ground that Dangerpora is a `village and petitioners are only candidates hailing from the said village. 5. Respondent No.4 filed reply on Ist November, 2003 which was also adopted by respondents 1 to 3 and 5. The respondents 6 and 7 have also adopted the same reply. 6. It is averred by the official respondents that respondents 6 and 7 possess higher qualification and merit as compared to writ petitioners. In terms of mandate of the Scheme, the school was to be set-up in village Arihal and Dangerpora is a part of village Arihal. Dangerpora is not a separate village. It is further averred that in terms of the scheme the candidate(s) hailing from village Arihal were to be considered and in case candidates from that village are not available then the candidates from adjoining village(s) i.e. Zone were to be considered. 7. During the pendency of the writ petition, petitioners filed SWP No.542 of 2003 challenging the appointment of the respondents 6 and 7 on the grounds taken in the writ petition. 8. The grounds taken in both the writ petitions are similar. In SWP No.542/2003, the petitioners have claimed the following relief:- "i/ Certiorari, quashing the impugned orders bearing No.02-ZEO of 2003 dated 20.3.2003 (annexure-D and E with the writ petition). ii/ Mandamus, commanding the respondents not to act upon the impugned orders bearing Nos. 02-ZEO of 2003 dated 20.3.2003 and in the event same have been acted upon, the same be withdrawn and the respondents 6 and 7 be not permitted to function as teachers under and in terms of the said orders. ii/ Mandamus, commanding the respondents not to act upon the impugned orders bearing Nos. 02-ZEO of 2003 dated 20.3.2003 and in the event same have been acted upon, the same be withdrawn and the respondents 6 and 7 be not permitted to function as teachers under and in terms of the said orders. iii/ Mandamus, commanding the respondents to undertake a fresh proves of selection for making fresh selection/appointment against the posts of teachers sanctioned for Primary School Dangerpora, and consequently in view of their merit, suitability, eligibility and qualification under and in terms of the said scheme offer them the appointment against the said posts." 9. The respondents 1 to 7 have made statement that objections filed in SWP No.110/2003 be treated as objections to this writ petition also. 10. Heard. Admit. With the consensus of learned counsel for the parties, both the writ petitions are taken up for final disposal. 11. It is profitable to reproduce the relevant portion of annexure-C, herein, which reads as under:- "1. Under Sarva Shiksha Abhiyan 60 Primary Schools have been sanctioned for District Pulwama vide Govt. order No:1368-Edu of 2002, dated 15-11-2002. Since Rehber-e-Taleem pattern sanctioned by the Govt. under order No:396-Edu of 2000 dated: 28.04.2000 has been ordered to be applied in the matter of engagement of staff under SSA. Therefore, on normative basis two RT teachers per school i.e. 120 candidates are required to be engaged. The criteria adopted is strictly as per Govt. order No:396-Edu of 2000, dated 28-04-2000 which encompasses elements like village as the Unit, highest academic qualification and inter-se-merit in case of tie and simultaneously in case of two brothers/sisters/couple, only one with highest merit is taken. Where a village consists of more than one patti with distance to other patties considerably large inhospitable terrain, the selection stands restricted to the habitation where the school has been sanctioned and where-ever in a village no eligible candidate was available, selection was extended to adjacent village and minimum and maximum age limit as per service rules adhered to........." 12. It is profitable to reproduce the eligibility clause provided in the Rehbar-e-Taleem Scheme herein, which reads as under:- "ELIGIBILITY: (i) Rehbar-e-Taleem should be permanent resident of the State. (ii) He or she should belong to the village where there is assessed deficiency of staff. It is profitable to reproduce the eligibility clause provided in the Rehbar-e-Taleem Scheme herein, which reads as under:- "ELIGIBILITY: (i) Rehbar-e-Taleem should be permanent resident of the State. (ii) He or she should belong to the village where there is assessed deficiency of staff. On the certificate of VLC that no local candidate from the village is available, the VLC can draw up the panel the adjoining village. (iii) He or she should possess the minimum qualification of 10+2. (iv) The candidate shall as far as possible fulfill the age qualification as prescribed by the State government. (v) Due consideration shall be given by VLCs to the Scheduled Castes and Schedule Tribes.x 13. While going through the provisions of Rehbar-e-Taleem Scheme, it is crystal clear that right of consideration for engagement is of those candidates who hail from the "village. The word "village" means entire village including Patti(s). The Rehbar-e-Taleem Scheme nowhere provides that the panel is to be prepared separately for a Mohalla or Patti. 14. In terms of the provisions of Land Revenue Act, Tenancy Act, Common Lands Act, Agrarian Reforms Act and Rules framed thereunder, village means an estate boundaries of which are defined in revenue record. 15. The Government has issued Order No.563-Edu of 2005 dated 24.08.2005, which reads as under:- "In emplification of:- Circular instructions issued vide No.Edu/Plan-184/2000 dated 17.02.2000. Govt.Order No.396 of Edu 2000 dated 28.04.2000, and Other orders/instructions in the matter, issued from time to time, thereafter, It is hereby clarified/re-affirmed that the expression "Village" used in the instructions/orders aforesaid shall mean, and shall always be deemed to have meant, a Revenue Village." 16. Thus, the `village means `Revenue Village. Keeping in view the above discussion and the mandate of law, all the candidates hailing from village are to be considered and not only those candidates who are hailing from any mohalla(s) or patti(s) of a village. 17. Learned counsel for the petitioner, in support of his arguments, has referred Division Bench Judgment of this Court dated 13.08.2002 delivered in SWP No.439/2001 titled Zahida Banoo Vs. State of J&K and others, and stated that the candidates hailing from the habitation where the school is to be set-up are to be considered and not from entire village. He referred para-10 of the judgment. It is useful to reproduce para-10 of the said judgment herein:- "10. State of J&K and others, and stated that the candidates hailing from the habitation where the school is to be set-up are to be considered and not from entire village. He referred para-10 of the judgment. It is useful to reproduce para-10 of the said judgment herein:- "10. The phraseology employed indrafting the clause is explicit and admits no ambiguity in deducting that the word "VILLAGE" has to be understood in popular english parlance and such reading makes it clear that right of consideration for engagement flows to the State subjects belonging to the village where assessed deficiency exists and in absence of a local candidates to the inhabitants of the adjoining villages which is the only true interpretation and no other interpretation can be placed on the clause." 18. Their Lordships have held that candidate(s) hailing from village is/are to be considered and in case local candidate(s) of the village is/are not available then candidates hailing from adjoining village are to be considered. It is nowhere provided that candidate(s) hailing from mohalla or Patti of a village where school is located is/are to be considered and the candidates of other Patti(s) or Mohalla(s) of the village are not to be considered. 19. The positive case of the petitioners is that Dangerpora is not a part of village Arihal but Dangerpora is a separate village. While going through the record, it is crystal clear that Dangerpora is not a separate village but is a Patti of village Arihal. 20. It is profitable to reproduce relevant portion of para-8 of the writ petition herein:- "....................Assuming for the sake of argument though not admitting that Dangerpora is the Patti of village Arihal, even then the official respondent were in terms of the scheme obliged to accord consideration for engagement to the petitioners alone for the petitioners are possessed of the eligibility and also figured at serial No.1 and 2 in the penal supra.........................." 21. Petitioners have also taken stand that assuming that Dangerpora is a Patti of village Arihal even then only petitioners had to be considered. Keeping in view the above discussion, this plea taken by petitioner is not correct and is devoid of any force. 22. Petitioners have also taken stand that assuming that Dangerpora is a Patti of village Arihal even then only petitioners had to be considered. Keeping in view the above discussion, this plea taken by petitioner is not correct and is devoid of any force. 22. Annexure-C reproduced hereinabove provided that where a village consists of more than one Patti with distance to other Patties considerably large inhospitable terrain, the selection was restricted to the habitation where the school was sanctioned. It is not the case of writ petitioners that Dangerpora is a Patti of village Arihal and the distance is considerably large. Had it been the case of the writ petitioners, the question and answer would have been different. 23. It is profitable to reproduce the relevant portion of the panel prepared by the respondents herein:- Educational Zone Village Name of the habitation where school has been sanctioned Name of the candidate proposed for engagement as R.T. as per merit Parentage Residence Qualification Marks in Highest Exam. Tahab Arihal Dangerpora 1. Tanveer Alam Para 2. Muzaffar Ahmad Mir. Ab. Aziz Para Gh.Mohd. Mir. Arihal Arihal B.Sc.B.Ed B.Sc. 1145/1800 1172/1800 24. Respondents 6 and 7 have higher merit. Respondents have not committed any illegality. Thus no malafide can be attributed to Village Level Committee or respondents. 25. In the given circumstances, both the writ petitions are dismissed along with all connected CMP(s). Interim direction, if any, shall stand vacated.