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2007 DIGILAW 43 (JK)

Shiv Devi v. State Of J. &K.

2007-04-05

NIRMAL SINGH

body2007
1. 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. 2. 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 was 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. " 3. 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. 4. 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. 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. " 5. In pursuance to the aforesaid Scheme, applications were invited for engagement/appointment of Third teacher in Primary School, Charya. The Village Level Committee while recommending the name of the petitioner for appointment as 3rd teacher in Primary School Charya, stated that there are two eligible candidates in village Charya namely Deep Shikha and Shiv Devi. It was mentioned that as Deep Shikha has filed an affidavit to the effect that she has no objection if Shiv Devi (petitioner herein) is appointed as 3rd teacher, therefore, the Village Level Education Committee of Village Charya recommends Shiv Devi as 3rd Rehbar-e-Taleem in Govt. Primary School, Charya, Zone Thatri (Doda). The concerned Zonal Education Officer, however, prepared a panel in which name of respondent No.5 Sandeep Kumar was shown at Sl.No.1. He has been shown as resident of village Kandote, Another Candidate namely Sandeep Singh, who is also the resident of Kandote, has been shown at Sl.No.3 whereas the names of Deep Shikha and Shiv Devi have been shown at Sl.Nos.2 and 4 and their residence has been shown as Charya. 6. The grievance of the petitioner in this petition is that she had applied as 3rd teacher against the vacancy available in Primary School, Charya, and as the other candidate namely Deep Shikha who was above in merit to the petitioner had given no objection in case the petitioner is appointed as such, the official respondents have wrongly selected respondent No.5 who is the resident of village Kandote, as 3rd teacher against the post available in Primary School Charya. It is stated that the Village Level Education Committee had recommended the name of the petitioner for appointment as 3rd teacher in Primary School, Charya, and in case the name of private respondent No.5 was to be considered, the same could have been done against the post of 3rd Teacher in Government Girls Primary School, Kandote, because he is the resident of the said village and not of village Charya. The said action on the part of official respondents is said to be mala fide just to give undue benefit to the respondent No.5. 7. On notice, official respondents have filed counter. Respondent No.5, though served has not chosen to file any counter. 8. The official respondents in their counter have stated that respondent No.2 approved the selection of respondent No.5 on the basis of his name being figuring at Sl.No.1 of the panel. It is stated that the allegations of mala fide alleged by the petitioner are vague and unsubstantiated. I have heard learned counsel for the parties and perused the record. 9. When this petition came up for hearing on Ist of Dec06, following order came to be passed:-- "In view of the nature of controversy learned counsel for the respondents is directed to cause appearance of the ZEO concerned before the court along with relevant record giving the details of vacancies in village Charya, Kandote so as to explore the possibility of adjustment of the petitioner without disturbing respondent No. 5." 10. In pursuance to the aforesaid order, learned Dy. AG appearing for official respondents filed CMP 2759/06 showing the vacancy position in village Charya, Kandote. A perusal of the said CMP shows that in village Kandote, there is a Government Girls Primary School and in village Charya, there is a Government Boys Primary School. The sanctioned strength of posts, filled posts and vacancy position in these schools has been shown as under:-- "Govt. Girls Primarch School, Kandote" Sanctioned strength of posts: Teachers 02 Rehbar-e-Taleem 00 Third Teacher 01 Filled posts: Teachers 02 Rehbar-e-Taleem 00 Third teacher 00 Vacancy: Teachers 00 Rehbar-e-Taleem 00 Third teacher 01 (Post advertised) Govt. Boys Primary School, Charya Sanctioned Strength of posts: Teachers 02 Rehbar-e-Taleem 00 Third Teacher 01 Filled posts: Teachers 02 Rehbar-e-Taleem 00 Third Teacher 01 Vacancy: Teachers 00 Rehbar-e-Taleem 00 Third teacher 00 11. The question which is to be considered in this petition is whether respondent No.5, who is shown to be resident of village Kandote, could have been selected against a post of 3rd Teacher under the Scheme aforementioned in village Charya, when there are two different schools in village Kandote as also in Charya. 12. The question which is to be considered in this petition is whether respondent No.5, who is shown to be resident of village Kandote, could have been selected against a post of 3rd Teacher under the Scheme aforementioned in village Charya, when there are two different schools in village Kandote as also in Charya. 12. As per clause (ii) of Eligibility criteria of Rehbar-e-Taleem Scheme, as noticed above, a candidate who seeks engagement/appointment under the said Scheme should belong to the village where there is assessed deficiency of staff and on certification by the VLC that there is no local candidate from the village, the panel can be drawn from the adjoining village. 13. A Division Bench of this Court in LPA(SW) No. 215/04 while interpreting the words "belong" and "local candidate" occurring in the eligibility clause of the Scheme directed the State of J&K through Chief Secretary to define the word "belong" in the context of expression "local candidate" occurring in the eligibility clause of Government Order No. 396-Edu of 2000 dated 28th of May 2000, and clarify the position in order to avoid any further litigation on this subject. The matter was examined by the Government and in the Eligibility clause of Government Order, referred to above, following explanation has been added:-- "Explanation: The word `belong and local candidate shall mean that the candidate to be appointed should be actually residing at the time of appointment in the village where the appointment is to be made." 14. A perusal of the above shows that while making engagement/appointment under the Scheme, a candidate who belongs to the particular village/area where the vacancy exists is to be considered. In the present case the vacancy of 3rd teacher under the Scheme existed in village Charya. The Village Level Committee of the said area recommended the name of the petitioner for appointment as 3rd teacher in the Government Primary School, Charya as the other candidate namely Deep Shikha who also belonged to the said village had surrendered her appointment and had filed an affidavit that she has no objection in case the petitioner is appointed as 3rd teacher in her place in the said school. Even in the panel which has been prepared and placed on the record as Annexure R.I with the counter, the residence of private respondent No.5 has been shown as village Kandote and the petitioner has been shown to be the residence of Charya. Therefore, when there are two different schools one in Kandote and the other in Charya and when there was a local candidate i.e. the petitioner available in the said area who had applied against a post under the Scheme in village Charya, then the private respondent No.5 who is the resident of Kandote, could not have been considered for appointment against the post available in Government Boys Primary School, Charya. 15. Learned Dy. AG, appearing for the State submitted that Charya is not a separate village but a Mohra of revenue village Kandote, and therefore, the appointment of private respondent No.5 has been made keeping in view the concept of revenue village also that he was higher in merit. 16. The above contention of the learned Dy.AG, cannot be accepted. Even if it is accepted that Charya is not a separate village but a mohra of revenue village Kandote, even then the appointment of private respondent No.5 cannot be sustained. This is because, as indicated above, there are two different schools one in Kandote and the other in Charya. The petitioner being a local candidate of Charya has applied against the post available under the Scheme in the school situated in Charya i.e. Government Boys Primary School and she being a local candidate and belonging to the same area as per the explanation now given by the State Government, noticed above, has to be given preference over private respondent No.5, while making appointment under the Scheme as the said respondent admittedly is the resident of village Kandote. 17. Somewhat similar issue came to be decided by this court in SWP No. 1559/05 titled Kirpal Singh v. State of J&K and Ors., decided on 6th of March07. In the above case, the petitioner had also applied for appointment as 3rd teacher under the Scheme. The vacancy was available in a Government Girls Middle School, Simal, tehsil and district Udhampur. As the petitioner was low in merit the candidate figuring at Sl.No.1 of the panel was selected. In the above case, the petitioner had also applied for appointment as 3rd teacher under the Scheme. The vacancy was available in a Government Girls Middle School, Simal, tehsil and district Udhampur. As the petitioner was low in merit the candidate figuring at Sl.No.1 of the panel was selected. Later on, due to upgradation of the School in the said area, some more vacancies became available but the claim of the petitioner in the aforesaid petition was ignored as he had shifted her residence to another village namely Basan. After considering the above aspect of the matter, this court in the aforesaid case observed as under:-- "A perusal of clause (ii) of the eligibility criteria shows that a candidate who is seeking consideration for engagement as RET should be a resident of the particular village where the vacancy exists or where there is deficiency of staff and in case there is no local candidate from the said village, then the VLC can draw the panel from the adjoining village. The vacancy in the present case exists in village Sunal but as the residence of the petitioner at present is shown to be Basan, therefore, the petitioner has lost his eligibility for being considered for selection of RET in village Sunal." The writ petition aforementioned, accordingly, came to be dismissed. 18. In the present case, as indicated above, the vacancy existed in Government Boys Primary School, Charya. The petitioner being the resident of the said area had applied against the said vacancy. Therefore, the private respondent who is the resident of a different area i.e. Kandote could not have been considered for appointment against the vacancy available in the school at Charya. 19. For the reasons mentioned above, this petition is allowed. The appointment of private respondent No. 5 as 3rd teacher under the Scheme in Government Boys Primary School, Charya, is quashed. Official respondents are directed to issue appointment order as 3rd teacher under the Scheme in favour of the petitioner against the vacancy available in Primary School, Charya. 20. The official respondents shall do the needful within a period of one month from the date a copy of this order is made available to the said respondents by the petitioner. 21. The record be returned to Mrs. Goswami, learned Dy.AG, appearing for the respondents 1 to 4.