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2007 DIGILAW 213 (JK)

Kesar Singh v. State

2007-10-05

NIRMAL SINGH

body2007
1. This is a petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, seeking a writ in the nature of certiorari quashing order No. ZEO/SSA/732-36-ZEB dt. 11th of Aug03, passed by respondent No.3 whereby private respondent No.5 has been engaged as Rehbar-e-Taleem in Government Primary School, Khatasoo. Writ is also sought in the nature of mandamus commanding upon respondents to engage the petitioner as Rehbar-e-Taleem in Government Primary School, Khatasoo. 2. Vide Government Order No.396/Edu of 2000 dt. 28th of April 2000, sanction was accorded to launch the Scheme of Rehbar-e-Taleem (here-in-after called the Scheme) with the following objectives:- "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 staff as per the existing norms. The said teaching 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 be 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-Taleem under the Scheme is as under:- I. "Rehbar-e-Taleem should be the permanent resident of the State, II. 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-Taleem under the Scheme is as under:- I. "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 far as possible fulfill the age qualification as prescribed by the State Government. V. Due consideration shall be given by the VLCs to the Scheduled Castes and Scheduled Tribes." 6. The case of the petitioner is that under the aforesaid Scheme, applications were invited by the respondent authorities for engagement of Rehbar-e-Taleem in Government Primary School, Bagan (Sichal) and Government Primary School, Khatasoo (Sichal), which schools are situated in the same revenue village. The petitioner along with other eligible candidates applied for the same. The Village Level Committee prepared a panel in which the name of the petitioner figured at Sl.No.3. It is stated that the candidates namely Radha Kumari and Susheel Kumar, who were having more merit than the petitioner and other candidates and were figuring at Sl. No. l and 2 of the said panel were engaged as Rehbar-e-Taleem in Government Primary School Bagan. It is stated that as both the schools were located in the same revenue village, therefore, out of the said panel, the petitioner who was figuring at Sl.No.3 was entitled to be engaged as Rehbar-e-Taleem in Government Primary School, Khatasoo. 7. The grievance of the petitioner is that the respondent authorities ignoring the merit of the petitioner, and also the fact that respondent No.5 belonged to another revenue village i.e. Joura, engaged the said respondent as Rehbar-e-Taleem vide order impugned, in violation of the mandate of Scheme in Government Primary School, Khatasoo. It is this action of respondent authorities regarding engagement of Respondent No.5 in the aforesaid school, which is the subject matter of challenge in the present petition. 8. It is this action of respondent authorities regarding engagement of Respondent No.5 in the aforesaid school, which is the subject matter of challenge in the present petition. 8. On notice, official respondents have filed counter stating therein that after the applications were invited for engagement of Rehbar-e-Taleem in the aforesaid school and the same were submitted by the eligible candidates, a panel was prepared by the Village Level Education committee in which the names of nine candidates figured. It is admitted that as both the schools belonged to one revenue village, therefore, only one panel was prepared. It is, however, stated that after the panel was submitted to the Deputy Commissioner, Doda, he approved the engagement of one Mohd. Yousuf as Rehbar-e-Taleem who figured at Sl.No.9 of the panel. The said candidate was engaged as such in Government Primary School, Khatasoo. It is further stated that as the said school is situated in an area having 100% S.T. population, therefore, the aforementioned Mohd Yousuf who belonged to ST category was engaged as Rehbar-e-Taleem in the aforesaid school. It is further stated that respondent No.5 was also engaged in Government Primary School, Khatasoo, by the then Zonal Education Officer keeping in view the circumstances prevailing in the area as it was not possible to send any other candidate to Primary School, Khatasoo. It is, however, denied that respondent No.5 did not belong to the same village. 9. Respondent No. 5 has also filed counter in which it has been stated that the said respondent belongs to village Khatasoo. It is stated that in the said village there is 100 percent population of Scheduled Tribe and the respondent No.5 belonging to the said category has rightly been given preference in the matter of engagement under the Scheme. It is stated that petitioner belongs to a minority community and no candidate belonging to the said community has been ready to perform his duty as a teacher in village Khatasoo as it is located in a remote area of District Doda. It is thus stated the official respondents keeping in view the circumstances have rightly engaged respondent No .5 who belongs to ST category as the said category is in majority in the aforesaid village. 10. I have heard learned counsel for the parties and perused the record. It is thus stated the official respondents keeping in view the circumstances have rightly engaged respondent No .5 who belongs to ST category as the said category is in majority in the aforesaid village. 10. I have heard learned counsel for the parties and perused the record. A perusal of Annexure R.1 i.e. panel of eligible candidates, which has been placed on record by the official respondents shows that the name of petitioner figures at Sl.No.3. The name of respondent No.5 figures at Sl.No.7 of the said panel. The petitioner is having 56 percent whereas the percentage of respondent No.5 is shown as 40.17%. 11. The petitioner has placed on record a copy of his permanent resident certificate as also that of respondent No.5. The petitioner has been shown as resident of village Sichal, Tehsil Thatri, district Doda whereas the respondent No.5 as per the said certificate has been shown to be the resident of village Joura Khrud, Tehsil Thatri, District Doda. Under the Scheme, a candidate who is seeking consideration for engagement as Rehbar-e-Taleem, should be the resident of the village concerned where there is deficiency and the candidates belonging to the village where the vacancy is available, possess preferential right of appointment/engagement over and above the candidates from the adjoining villages. Therefore, the petitioner is right in his submission that the respondent No.5 was not belonging to village Khatasoo (Sichal), where the vacancies existed, and as such, was not entitled to be considered for engagement as Rehbar-e-Taleem in Government Primary School, Khatasoo. Even otherwise, the petitioner is possessing higher merit than respondent No.5, and therefore, the official respondents have wrongly ignored the claim of the petitioner. 12. So far as the stand of respondents that private respondent No. 5 has been engaged keeping in view the circumstances prevailing in the area and also on the basis that there is 100 percent ST population in the area and no other candidate belonging to the minority community is willing to serve in the said area is concerned, I am of the opinion that such a stand taken by respondents especially State authorities should not have been taken and the same cannot be accepted. In a democratic set up, such a consideration and favoritism by the responsible officers of the State to a candidate belonging to a particular community ignoring the rightful claim of a candidate belonging to a minority community gives a wrong signal to the public at large that the rights of minority community are not being fully protected by the State authorities. By committing such an act of favourtisim by the functionaries of the State, the minority community feels insecure and the members belonging to such community are forced to migrate from one place to another. Whereas, it is the duty of the State and its functionaries that rights of the members of the minority community are protected. The State Government should take stern action against such erring officials who are promoting such a favoritism and ignoring rightful claims of the, persons belonging to the minority community. Therefore, such a stand taken by the respondents, as observed above, cannot be accepted. Even otherwise, there is nothing on record to show that the petitioner has opted not to serve as Teacher in the aforesaid village. 13. At the hearing also, the learned counsel for the petitioner submitted that the petitioner has not submitted any such option before the respondent authorities and instead, he is willing to serve in the village because he is actually the resident of the village concerned where the vacancy existed. 14. For the reasons mentioned above, this petition is allowed with a cost of Rs. 10,000/-. The engagement of private respondent No.5 is quashed. The respondent authorities are directed to issue engagement order in favour of the petitioner as Rehbar-e-Taleem in Government Primary School, Khatasoo. This shall be done within a period of one month from the date, a copy of this order is made available to the respondent authorities by the petitioner. The petitioner shall also be entitled to all consequential benefits minus monetary benefits. The respondent-State, however, shall be at liberty to recover the cost from the officer concerned who issued engagement order in favour of respondent No.5 by ignoring the claim of the petitioner. Disposed of accordingly.