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2007 DIGILAW 168 (JK)

Kuldeep Raj v. State Of J. &K.

2007-09-03

NIRMAL SINGH

body2007
1. This is a petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of State of Jammu and Kashmir, seeking writ in the nature of certiorari quashing the appointment of respondent No.6 with a further writ of mandamus commanding official respondent to consider case of the the petitioner for the post of Teaching Guide under the scheme of Rehbar-e-Taleem (here in after referred to as the Scheme), in village Dhoke. 2. The brief facts of the case are as under:-- Vide Government Order No. 396/Edu of 2000 dt. 28th of April 2000, sanction was accorded to launch the Scheme with the following objective:-- "1. Promoting the decentralized management of elementary education with the community participation and involvement. 2. To ensure accountability and responsiveness through a strong back-up and supervision through the community, and 3. To operationalize effectively the schooling system at the gross root level." 3. The said Scheme was to effectuate the provision of services of Teaching Guides in the Primary and Middle Schools to make up the deficiency of the stall as per the existing norms. The said leaching guides were to be designated as "Rehbar-e-Taleem teachers and were to ensure the overall development of the personality of children. These teaching guides were to be drawn from the local community for interface and interaction with the community to secure universal management and to check the incidence of dropouts. For the purpose of selection of Rehbar-e-Taleem, there is a composition of Village Level Committee (here-in-after referred to as VLC) with the Zonal Education Officer (In short ZEO) as its Convenor. The said composition of VLC for the purpose of implementation of the Scheme is as under:-- "a/Two parents of the children studying in the institutions within the village provided they are literate. b/Two persons to he nominated from the village, who have social standing. c/A representative of Women /Scheduled Caste/Scheduled Tribe, d/Zonal Education Officer." 4. The VLC is to assess the requirement of the teachers in the Primary/Middle Schools within the area of their operation in due regard to approved norms of staffing and the Roll. On the basis of the said assessment, the VLC is to draw up a panel of eligible and qualified persons of the village. 5. The eligibility for engaging Rehbar-e-Taleen under the Scheme is as under:-- " Rehbar-e-Taleem should be the permanent resident of the State. On the basis of the said assessment, the VLC is to draw up a panel of eligible and qualified persons of the village. 5. The eligibility for engaging Rehbar-e-Taleen under the Scheme is as under:-- " Rehbar-e-Taleem should be the permanent resident of the State. ii/ He or she should belong to the village where there is assessed deficiency of staff. On certification of VLC that no local candidate from the village is available, VLC can draw up the panel from the adjoining village. iii/ He or she should possess the minimum qualification of 10+2. iv/ The candidate shall as jar as possible fulfill the age qualification as prescribed by the Stale Government. v/ Due consideration shall be given by the VLCs to the Scheduled Castes and Scheduled Tribes." 6. Learned counsel for the petitioner submits that the petitioner being an eligible candidate under the Scheme, applied for the post of Teaching Guide against the post lying vacant in Primary School, Dhoke. It is stated that the petitioner appeared before the Village Level Committee of the said village constituted by the official respondents. 7. The grievance of the petitioner is that he being the only available candidate in village Dhoke was to be considered for appointment as Teaching Guide under the Scheme against the post lying vacant in Primary School, Dhoke but the official respondents appointed respondent No.6 illegally and contrary to the provisions of the Scheme was stated that the said respondent neither belongs to the said area nor had appeared for interview before the Village Level Committee of the said village; that the respondent No.6 is residing Pallanwala and the said village does not fall within the purview of Village Level Committee of Village Dhoke. It is stated that the official respondent have wrongly shown the post lying vacant in Primary School, Karkala, which is far away from village Dhoke, whereas, the post against which respondent No.6 has shown to he selected belongs to Primary School, Dhoke, i.e. village where the petitioner resides. Petitioner has also alleged mala fides against the official respondent by pleading that the respondent No.6 has been given the undue benefit being the daughter of an Ex-Minister and presently the Member Parliament namely Madan Lal Sharma. Petitioner has also alleged mala fides against the official respondent by pleading that the respondent No.6 has been given the undue benefit being the daughter of an Ex-Minister and presently the Member Parliament namely Madan Lal Sharma. It is thus stated that in tems of the Scheme, the petitioner being the only available candidate in village Dhoke where the vacancy existed, is eligible to be considered for appointment as Teaching Guide. 8. This petition came to be admitted on 11th of Oct 20O1. The objections filed by official respondents were allowed to be treated as counter. 9. In the counter, the official respondents have stated that applications in pursuance to the Scheme were invited for appointment as Rehbar-e-Taleeem for Govt. Primary School, Karkala. The applications were received along with the recommendations of the concerned Village Level Committee. Thereafter, the Zonal Education Officer, Khour, prepared a panel of candidates who were falling in merit and on the basis of the said merit, respondent No.6 who appeared at Serial No.1 of the said merit list, was engaged as Teaching Guide under the Scheme in Primary School, Karkala. It is stated that Pallanwala is the revenue village whereas Karkala, Thanger, Har, Panjtoot are the Mohras. It is thus stated that the respondent No.6 has been appointed strictly in accordance with the mandate of the Scheme. 10. Respondent No.6 has also filed counter dialing therin that the deficiency occurred in the school situated at Karkala Choudhariyala and not in Primary School, Dhoke, as there is no such school by the name of Dhoke. In para 6 of the counter, it is stated that the respondent No.6 is presently residing in village Thanger and previously she was residing at Choudhariyala and both the places are one census village, and therefore, she has rightly been appointed as Teaching Guide under the Scheme in Karkala-Choudhriyala. I have heard learned counsel for the parties and perused die record 11. Two issues which are to be adjudicated in this petition are that in which school the vacancy was existing and whether the petitioner is residing in the said village where the vacancy existed or respondent No.6 who has been selected and appointed belongs to the said village. 12. Two issues which are to be adjudicated in this petition are that in which school the vacancy was existing and whether the petitioner is residing in the said village where the vacancy existed or respondent No.6 who has been selected and appointed belongs to the said village. 12. The case set up by the petitioner is that respondent No.6 was not eligible and entitled to be considered for appointment/engagement as Teaching Guide under the Scheme in Primary School Dhoke as she never applied there nor faced any interview before the said Village Level Committee. 13. Respondent No.6, in her counter has stated that she belongs to village Thanger and the school was situated in village Karkala Choudhriyala, as such, she was fully eligible to be considered against the vacancy available in the said school. It is stated that as slough in merit, she has been appointed in the said school. 14. The residence certificate of respondent No.6 has been produced by the official respondents. As per this certificate"; the said respondent has been shown to be the resident of Mohra Thanger Choudharwala, village Pallanwala, Tehsil Akhnoor, Distt. Jammu. From the pleadings of the parties, it is not made out as to in which village, the school is located. As per the respondents, the school is located in village Karkala Choudhriyala whereas the claim of the petitioner is that the school is situated at Mohra Dhoke village Panjloot. 15. Sh. H.R. Dubey, Chief Education Officer, Jammu, filed a Supplementary affidavit on 6th of Feb 07, in which he stated that the school in question is situated in village Karkala Choudharyala, whereas on 27th of Dec, 02, when the Chief Education Officer concerned appeared in the court, he made a statement that the school is located and functioning at Moda Doke of village Panchtoot. To Sudicate this petition, it had become necessary to call a report from Sub Divisional Officer/Tehsildar Akhnoor. An order in this regard was passed by this Court on 20th of Dec06. The said officer submitted its report on 1st of Jan07, to the following effect:-- "That the respondent No.6 before her marriage nm living in village Pallatian with her parents which is a separate revenue village. After 1991-92, the parents of respondent No.6 shifted from village Pallatian to Mohra Choudharayala in village Pallanwala and till marriage she stayed there along with her parents. After 1991-92, the parents of respondent No.6 shifted from village Pallatian to Mohra Choudharayala in village Pallanwala and till marriage she stayed there along with her parents. Respondent No.6 got married in Dec 1999 and started living with her in-laws in village Thangar which is the Mohra of revenue village Pallanwala. That according to the revenue record, village Panjtoot, Pallatan and Pallanwala are three different revenue villages." 16. Official respondents have also filed a supplementary affidavit in which they have deposed as under-- " ......That village Karkala and Choudharyala fall in Khour Zone. Karkala and Choudharyala are two separate villages. Karkala falls in revenue village Panjtoot and Choudharayala falls in revenue village Palanwala. The revenue village Panjtoot comprises of followings villages:-- 1. Panjtoot; 2. Thangarpatian; 3. Dhoke; 4. Gujjar ka Mohalla; and 5. Karkala Whereas Choudharayala village is part of revenue village Pallanwala. The aforesaid revenue village comprises the following villages:-- 1. Choudharyala; 2. Bandowala; 3. Thangar; 4. Pallanwala, and 5. Khour Jattan 4. That as per the averments of the petitioner he is resident of village Dhoke. Dhoke village falls in revenue village Panjtoot and Karkala village also falls in Panjtoot, though the petitioner has not attached any certificate with his petition or has he given any certificate at the time of filing of application. However, as per the inquiry made it appears that the petitioner is residing in Thangar Pattain which also falls in revenue village Panjtoot. The respondent No.6 is resident of village Thangar. The said village Thangar jails in revenue village Palanwala and Choudhayala also falls in revenue village Palanwala. So Choudharyala and Thangar villages falls in same revenue village i.e. Palanwala white as Dhoke and Karkala villages fall in revenue village Panjtoot ..............." 17. From the perusal of the supplementary affidavit, it is crystal clear that the name of revenue village of the petitioner is Panjtoot which has lour Mohras i.e. Thanagar Pattain, Dhoke, Gujjar ka Mohalla and Karkala, whereas the revenue village of respondent No.6 is Pallanwala which has five Mohras i.e. Choudharyala, Bandowala, Thangar, Palanwala and Khour Jattan. 18. In the list of vacancies issued by the office of Zonal Education Officer, Khour, which existed as on 8th of April2000, one vacancy has been shown at Sl.No.49 in Primary School Karkala. There is no mention of Choudharyala in the said list. This is a typed document. 18. In the list of vacancies issued by the office of Zonal Education Officer, Khour, which existed as on 8th of April2000, one vacancy has been shown at Sl.No.49 in Primary School Karkala. There is no mention of Choudharyala in the said list. This is a typed document. Again in the select list of candidates for engagement as Rehbar-e-Taleem for Khour Zone, which has been forwarded by the Chief Planning Officer, Jammu, to the Zonal Education Officer, Khour (Annexure II), bearing No. DDCJ/CPO/R-Talim/O7-08/Klhour/IV dt. 28th of July 2007 which indicates the minutes of District Selection Committee of Rehbar-e-Taleem held under the Chairmanship of Deputy Commissioner, Jammu on 26th of Nov 2000 at Sl.No.19, there is only mention of Primary School, Karkala, in which respondent No.6 has been shown to be selected and there is no such mention of Primary School Karkala Choudharyala. However, the list prepared by the office of the Zonal Education Officer, Khour, which has been given the heading "Proforma for Rehbir-i-Taleem candidate", and produced by the official respondents is a hand written list in which at Sl.No.33, there is mention of P/S Karkala Choudhraywala and respondent No.6 has been shown to be selected in the said school. This list seems to have been prepared as an after thought just to fill up the lacuna because, as indicated above, in the original typed lists i.e. one issued by the Office of Zonal Education Officer, Khour on 8th April2000 and also in the latest list which has been forwarded by the Chief Planning Officer to the Zonal Education Officer, Khour, referred to above, there is only mention of P/S Karkala. Therefore, from the perusal of the record which has been produced by the official respondents itself, it is crystal clear that the school is situated in Karkala which falls in revenue village Panjtoot as per die supplementary affidavit filed by the official respondents. 19. Under the Scheme, a leaching guide is to be appointed from the village where there is a deficiency and provided he/she is the resident of that village and if no candidate is available from that very area, then the candidates from the adjoining revenue-village are to be considered. Respondent No.6 in the present case, as per the supplementary affidavit filed by the official respondents and the report submitted by the Tehsildar Akhnoor, is resident of Thangar which is a Mohra of village Pallanwala. Respondent No.6 in the present case, as per the supplementary affidavit filed by the official respondents and the report submitted by the Tehsildar Akhnoor, is resident of Thangar which is a Mohra of village Pallanwala. Village Pallanwala and Panjtoot are two separate revenue villages. The vacancy in the present case existed in Primary School Karkala which is a Mohna of village Panjtoot, and the petitioner as per the revenue record being a resident of Thangar Patian which is also a Mohra of village Panjtoot had a preferential right to be considered over and above respondent No.6 who admittedly is the resident of different, village i.e. Pallanwala. The said respondent under the Scheme was not eligible to apply for the post of Teaching Guide which was available in Primary School Karkala or Dhoke which Call under the revenue village Panjtoot. 20. One important aspect which is to be taken into consideration is that the petitioner in paragraph 7 of the writ petition has categorically stated that the respondent No.6 was not eligible and entitled to be considered by the Village Level Committee for the post of teacher in Primary School Dhok as she never applied there nor laced any interview before the Village Level Committee. 21. The official respondents were directed to produce the original record which has been produced by them. But in the said record, there is no original application form of respondent No.6 and only a Photostat copy of the application form has been attached. In the said application form at the top under the heading Proforma for the appointment of Rehbir-i-Taleem" it has been mentioned as P/S Karkala. The word "Choudharyala" has also been mentioned but there is a cutting on this word. In the said form, the residential address of respondent No.6 has been shown as Choudhariyala, V & PO Pallanwala. The previous village has been shown as Pallatan Panjtoot. On the back side of this application form, there is an entry made by the Naib Tehsildar, Khour to the effect that respondent No.6 "Vandana Sharma, D/o Madan Lal Sharma" is permanent resident of village Pallanwala, Mohra Thangar Choudhriyala. The previous village has been shown as Pallatan Panjtoot. On the back side of this application form, there is an entry made by the Naib Tehsildar, Khour to the effect that respondent No.6 "Vandana Sharma, D/o Madan Lal Sharma" is permanent resident of village Pallanwala, Mohra Thangar Choudhriyala. From the said entry made on the application form it establishes that respondent No.6 is resident of Mohra Thangar of village Pallanwala, and therefore, as indicated above, she was not eligible to be considered against the vacancy which was available in Primary School Karkala which is Mohra of different revenue village namely Panjtoot. 22. As indicated above, the official respondents were directed to produce the original application form of respondent No.6 but they have tried to keep the original record away for the reasons best known to them and have produced the Photostat copies of the record only. 23. It is pertinent to mention that official respondents have also tried to fabricate the record. They have also produced a photocopy of the location wise merit list of the candidates for Government Primary School Karkala, Zone Khour. In the said list, the words P/S Karkala Zone Khour have been mentioned in the first line and P/S Karkala has been written in capital words but below this line the word Choudhriyala has been mentioned which appears to have been written afterwards as it is in a different hand and also written in small words. In the same very location wise merit list, under the column of Residence, the respondent No.6 has been shown to be the resident of Choudhriyala but the word; Karkala has also been mentioned in bracket which also appears to be an addition afterwards in a different hand. Under the qualification column, the qualification of respondent No.6 has been shown as B.Sc. Part II whereas in the Photostat copy of application form which has been placed on record, in the qualification column it has been mentioned as Higher Sec. Part II and also mentioned as B.Sc. Final appeared and passed. 24. A perusal of the application form as also the location wise merit list prepared by the Village Level Committee, shows that the entries in these documents have been made at a later stage. Because if the candidate was B.Sc. Final appeared and passed. 24. A perusal of the application form as also the location wise merit list prepared by the Village Level Committee, shows that the entries in these documents have been made at a later stage. Because if the candidate was B.Sc. Final at the time of filling up of application form then there was no need to mention the qualification of Higher Sec.Part II in the said form. In the location wise merit list the qualification of respondent No.6 has been shown as B.Sc. Part II meaning thereby that at the time of preparing the said merit wise list by the Village Level Committee, the respondent No.6 had not qualified her B.Sc. final examination. This fact is further clear from the perusal of entry made by the Naib Tehsildar on the back of application form of respondent No.6 which stands noticed above. This entry has been made on 14th of May 20()0, whereas, the result of B.Sc. Final examination of respondent No.6 as per the marks list attached was declared on 25th of July 2000. 25. Therefore, when in the location wise merit list prepared by the Village Level Committee, qualification has him shown B.Sc. Part II, in the application from which was submitted earlier to the preparation of the said list, the qualification could not have been shown as B.Sc. (appeared and passed) which as indicated above, appears in have been entered at a later stage. 26. In the recommendation in the Village Level Committee i.e. the location wise merit list referred to above, the name of respondent No .6 has been shown at Sl.No.1 as a candidate from adjoining village. In the said panel it appears that the names of only three candidates were there. But later on, the name of petitioner has also been added at Sl. No. 4 which too appears to have been made in a different hand. Thus, as indicated above, a perusal of the record produced by the official respondents shows that whole of the record has been fabricated just to favour respondent 27. As noticed above, the Chief Education Officer, Jammu has filed a supplementary affidavit on 6th of Feb., 07. No. 4 which too appears to have been made in a different hand. Thus, as indicated above, a perusal of the record produced by the official respondents shows that whole of the record has been fabricated just to favour respondent 27. As noticed above, the Chief Education Officer, Jammu has filed a supplementary affidavit on 6th of Feb., 07. In paragraph 6, it has been deposed as under:-- "That so far as school in question is concerned the said school is located in between two revenue villages of Palanwala and Panjtoot and Karkala and Choudharyala are the part of aforesaid revenue villages and accordingly the applications from both the revenue villages had been considered." 28. The above statement shows that even the Chief Education officer, Jammu, has not clearly mentioned the fact of locution of the school. As indicated above, on 27th of Dec02, the then Chief Education Officer had made a statement in the court that the school in question is located and funtioning at Moda Doke of village Panjtoot. Therefore, even if there is a confusion with regard to the location of the school i.e. either at Karkala or Dhoke, but one fact which stands established is that respondent No.6 is neither the resident of village Karkala not Dhoke which are the Mohras of village Panjtoot. She as noticed above is the residents of Mohra Thangar of revenue village Pallanwala, and therefore, could not have been considered against the vacancy which was available in Primary School, Karkala. The petitioner is the resident of Thangarpati which is a Mohra of village Panjtoot. The school in question which is said to be Primary School, Karkala, which is also a Mohra of village Panjtoot. Therefore, the petitioner being the resident of said revenue village had a preferential right over respondent No.6 to be considered for appointment/engagement as Teaching Guide under the Scheme because there was no other candidate available who was higher in merit than the petitioner in the said village. 29. For the reasons mentioned above, this petition is allowed. The appointment of respondent No.6 is quashed. The official respondents are directed to appoint the petitioner against the vacancy of Teaching Guide which existed in Primary School, Karkala which is a Mohra of avenue village Panjtoot. 29. For the reasons mentioned above, this petition is allowed. The appointment of respondent No.6 is quashed. The official respondents are directed to appoint the petitioner against the vacancy of Teaching Guide which existed in Primary School, Karkala which is a Mohra of avenue village Panjtoot. This would be done within a period of one month from the date a copy of this order is made available to official respondents by me petitioner. Disposed of accordingly. Record handed over to Mrs Goswami, learned Dy. AG in the court.