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2009 DIGILAW 177 (JK)

Rajni Sharma v. State

2009-04-18

Virender Singh

body2009
1. Through the medium of instant petition, the petitioner seeks quashment of order No.ZEO/S/RT/1181-82 dated 23.01.2004 (Annexure-C) issued by Zonal Education Officer, Satwari (respondent No.5) vide which Parvinder Kour (respondent No.7) has been engaged as Rehbar-e-Taleem (hereinafter for short referred to as `R-e-T’) Teacher in Government Primary School Haripur, primarily on the ground that she figures at serial No.1 in the merit list (Annexure-A) prepared by respondent No.5, whereas private respondent No.7 at serial No.2 and that her name was also approved by the Village Level Education Committee (VLEC), but she has been ignored for appointment and instead respondent No.7 was appointed, who was less meritorious. 2. Pursuant to notice, Mrs. Neeru Goswami, learned Dy. Advocate General, had put in appearance on behalf of respondent Nos. 1 to 6, whereas Mr. K. M. Bhatti, Advocate, had put in appearance on behalf of respondent No.7. Since on one date, there was no representation on behalf of the petitioner, the instant petition was dismissed for want of prosecution. However, thereafter it was restored and all the respondents were put to fresh notices. Vide my separate Zimini (short) order of today, respondent No.7 has been set ex-parte. 3. The official respondents have refuted the claim of the petitioner on the ground that may be she stood at serial No.1 in the panel prepared by the Zonal Education Officer (respondent No.5), but when he went to village Haripur for spot verification of the application forms, the petitioner’s form was rejected by the Village Level Education Committee (VLEC) with the remarks that she had left the village after getting married and was residing at village Alora, Panchayat Sohanjana. Their further stand is that the petitioner had also applied under R-e-T Scheme vide Annexure-R2 from village Alora where she was married. 4. Since a very short controversy has arisen for the consideration of this Court, as to whether the petitioner deserves to be appointed as R-e-T teacher in Government Primary School Haripur, after she gets married to another village (Revenue Village) and as to how the word `belong’ vis-`-vis the `local candidate’ in the R-e-T Scheme is to be understood, learned counsel for both the sides have consented to the disposal of the petition at this stage itself. Hence, formally admitted. 5. Heard learned counsel for both the sides. 6. Mr. Hence, formally admitted. 5. Heard learned counsel for both the sides. 6. Mr. Surinder Singh submits that in the eligibility criteria set down under R-e-T Scheme, the words `actually residing in the village’ are not incurred and instead the word `belong’ has been used and the word `belong’ has not been defined anywhere in the Scheme. According to learned counsel, this controversy had arisen in one of the cases titled `Ranjat Sharma v. State of Jammu & Kashmir and others’ (SWP No. 2014/2003) reported in 2005 (1) SLJ 97, in which the learned Single Judge of this Court held that a person who is connected with the village as a member, part or inhabitant is to be deemed to be a person `belonging’ to that village and it is not necessary that he may reside in that village. According to learned counsel, while dismissing the aforesaid writ petition of the petitioner, who had challenged the appointment of private respondent being similarly situated, the learned Writ Judge observed that a situation can be conceived where a person of a village may go out of the village, reside at some other place may be in search of a job and if he does not get a job there, can he be excluded from the opportunity of getting a job from his own village to which he belongs. The view taken was that the object of making a person belonging to a particular village entitle to appointment is that being a person of the village, he can have better concern for the students of that village as he can promote the objectives envisaged by the Scheme itself. 7. To strengthen his arguments, Mr. Surinder Singh relies upon another judgment of this Court rendered in `Dharamvir Singh v. State and others’ 2003 (3) JKJ 565 (HC) in which while relying upon the earlier judgment of this Court rendered in `Sanjay Kumar v. State of J&K and others’ 2001 (1) J&K L.R. 141, this Court had held that merely a lady is married outside the village that would not make her ineligible to take appointment as R-e-T teacher in the area to which she originally belongs. Per contra, Mrs. Goswami submits that the judgment, relied upon by Mr. Per contra, Mrs. Goswami submits that the judgment, relied upon by Mr. Surinder Singh in Ranjat Sharma’s case (supra), became the subject matter of debate in LPA(SW) No. 215/2004 in which the Hon’ble Division Bench during the pendency of the said appeal observed that may be the view rendered in Ranjat Sharma’s case (supra) has been affirmed by a Division Bench of this Court in LPASW No. 94/2005, taking a different view in the matter would necessitate the reference to the Full Bench and in order to avoid making such reference, Hon’ble Bench directed the State Government to define the word `belong’ in the context of the expression `local candidate’ occurring in the eligibility clause of the Government Order No. 396 of Edu. 2000 dated 28.04.2000. According to Mrs. Goswami, ultimately in order to bring an end to the protracted litigation and to compensate the appellant therein, the Hon’ble Division Bench passed an order in favour of the appellant as there was one post of R-e-T teacher available at Primary School Chak Dayala Chak in Samba Zone. This was by way of adjustment and on the concession of the State. She places on records the photo stat copy of the said order (taken on records). 8. Mrs. Goswami then submits that pursuant to the direction of Hon’ble Division Bench, the State Government after examining the entire matter, came out with an Order No. 394 -Edu. of 2006 dated 28.07.2006 making it clear that 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 and this explanation has also been added in the eligibility clause in the earlier Government Order No. 396 of Edu. 2000 dated 28.04.2000. She places on records the photostat copy of the aforesaid Government Order dated 28.07.2006 (taken on records). 9. On the basis of the aforesaid clarification made by the Government in the eligibility criteria in the R-e-T Scheme, Mrs. Goswami submits that the petitioner cannot ask for appointment as R-e-T teacher as a matter of right and, as such, her petition deserves to be dismissed. 10. Faced with this situation, Mr. 9. On the basis of the aforesaid clarification made by the Government in the eligibility criteria in the R-e-T Scheme, Mrs. Goswami submits that the petitioner cannot ask for appointment as R-e-T teacher as a matter of right and, as such, her petition deserves to be dismissed. 10. Faced with this situation, Mr. Surinder Singh submits that since the clarification came from the Government in July, 2006 only and the present case relates to year 2004, it would have no application on the merit of the present case. 11. After hearing learned counsel for the parties, I am at loss to find out, what right the writ petitioner is seeking to enforce through the instant writ petition. Admittedly, the petitioner was not appointed as R-e-T teacher in Government Primary School Haripur. May be she had placed at serial No.1 in the panel prepared by the Zonal Education Officer, Satwari, as is the stand of the petitioner, respondent No.5 had gone to village for spot verification of the application forms and her case was rejected by the Village Level Education Committee with the remarks that she had got married out of the village and out of the Panchayat and was residing at village Alora which falls in Panchayat Sohanjana. This fact finds mention in Annexure-A itself. This all exercise was done before the appointment of the petitioner could be made. The respondents have also relied upon another application form (Annexure-R2) vide which the petitioner had also applied under R-e-T Scheme from village Alora, which fact is not controverted by the petitioner. The basic purpose of R-e-T scheme is to tide over the serious problems with which the school system particularly at primary level is affected. In remote and backward areas, generally a supervision is not done in the schools because of the distances and topographical problems. At the same time, it becomes difficult for the teachers appointed on substantive basis belonging to urban and semi urban areas to serve in rural areas and if it is done, this would result into absenteeism of the teachers. To over come this problem, under the Scheme, a local teacher in the school where the vacancy exists needs to be appointed. This primarily was the reason that in the eligibility criterion, one of the criteria is that the applicant should belong to the village where there is an assessed deficiency of staff. To over come this problem, under the Scheme, a local teacher in the school where the vacancy exists needs to be appointed. This primarily was the reason that in the eligibility criterion, one of the criteria is that the applicant should belong to the village where there is an assessed deficiency of staff. However, if on certification of Village Level Education Committee, no local candidate from within the village is available, the Committee can draw up the panel from the adjoining village. In the case on hand that is not the factual situation as petitioner, before she could be given an appointment, she had already left the village and married to village Alora whereas private respondent No.7 was staying in that village only and, therefore, she got the appointment. 12. I am conscious of the fact that in Annexure-A in the column `approval of Village Level Education Committee’ it is stated that the candidate has married at village Alora, Panchayat Sohanjana, which is half a kilometer away from Police Station Haripur and the appointment was to be made in Government Primary School Haripur only. That fact, by itself, would not make any difference as it is nowhere provided in the Scheme that a candidate who is living within certain area of the school, but from a different Revenue village, can also be appointed. It would otherwise be against the eligibility criterion. 13. To be fair to Mr. Surinder Singh, I may observe here that the two judgments relied upon by him would not put the petitioner on any advantageous position as in Ranjat Sharma’s case (supra), which became the matter of debate in LPASW No. 215/2004, the Hon’ble Division Bench while referring to another Division Bench judgment whereby the view taken by the learned Single Judge was confirmed, in order to avoid further controversy by making reference to the Full Bench, directed the State through its Chief Secretary to define the word `belong’ in the context of the expression `local candidate’ and this expression has now been clarified vide Government Order No. 394 -Edu of 2006 dated 28.07.2006, in the terms referred to above. However, for my satisfaction, I have called the record of LPASW No.215/2004 (’Ranjat Sharma v. State and others’) and feel the necessity of reproducing one short order (zimini order) dated 16.02.2006 passed by the Hon’ble Division Bench during the pendency of the said appeal vide which clarification was sought. It reads thus:- "While this appeal was being considered, a debate on the interpretation of term "belong" occurring in eligibility clause in Rehbar-e-Taleem Scheme/Sarv Shiksha Abhiyan (SSA) incorporated in Government order No. 396 of Edu. 2000 dated 28.4.2000, ensued. The relevant clause reads: "(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 certification of VLC that no local candidate from the village is available, VLC can draw up the panel from the adjoining village" Several cases have come up before this Court interpreting the word "belong" one way or the other. In the Writ Court judgment which is under appeal before us, this word "belong" has been interpreted to mean that a person should be connected with the village as a member, part or inhabitant. It has also been held that such a person may not be necessarily residing in the village to which he may belong because he/ she may come out of the village and reside in some other village in search of the job or other wise. Though this view has been affirmed by a Division Bench judgment of this Court in LPASW No. 94/2005, the counter view projected before us is that if this interpretation was accepted this will lead to anomalous results. For example, candidate may belong to one particular village whereas he/she may reside at difference places and yet may become eligible for appointment as Rehbar-e-Taleem/SSA at all places because the eligibility clause also uses the expression "local resident". Learned counsel for the appellant, Mr. Sunil Sethi wants us to take a different view in the matter which would necessitate the reference to Full Bench. But we deem it proper to avoid making such reference on this at this stage in the hope that the Government would define this word "belong" and harmonize with the other word occurring in the eligibility clause "local candidate" which would stop generation of any further litigation on this and would also render reference to Full Bench unnecessary. But we deem it proper to avoid making such reference on this at this stage in the hope that the Government would define this word "belong" and harmonize with the other word occurring in the eligibility clause "local candidate" which would stop generation of any further litigation on this and would also render reference to Full Bench unnecessary. Therefore, while keeping this appeal alive, State-respondent through Chief Secretary is directed to define the word "belong" in the context of the expression "local candidate" occurring in the eligibility clause of Government order No. 396-Edu of 2000 dated 28.5.2000 and clarify the position to avoid any further litigation on this. One month’s time from the date of receipt of this order is granted for this purpose to the State Government to report instruction on the next date. List on 23.03.2006 along with LPASW No. 102/2005." 14. No doubt ultimately the said appeal came to be disposed of with a concession to the appellant therein as a post of R-e-T teacher was available, it does not mean that the order dated 28.07.2006 clarifying the aforesaid position with regard to the status of the local candidate of a village vis-a-vis the word `belong’, shall have no bearing while considering the petition on hand. 15. Even otherwise, the argument advanced by Mr. Surinder Singh that the clarification came in July, 2006 would have no application in the case on hand as it relates to the appointment to be made in year 2004, does not find reasoning with me. In law a clarification always relate to back as the same is intended to clarify the things done in the past. 16. As the petitioner was not given an appointment and her case was rejected on the ground that she had already left the village where the appointment was to be made and she had even applied under the R-e-T scheme from village Alora, where she had married, in my considered view, on merits, her rejection was absolutely in consonance with the spirit of the Scheme, which is now clarified in clear words. The petitioner, thus, has no case to seek any relief in her favour as prayed for. The net result is that the instant petition is dismissed being devoid of any merit in it.