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2009 DIGILAW 225 (JK)

Jemmy Sambyal v. State

2009-05-15

SUNIL HALI

body2009
1. The appointment to the post of RET teacher in village Rakh Amb Talli, Tehsil and Distt. Samba is subject matter of controversy in three writ petitions bearing SWP 1178/2006, 650/2007 and 1728/2007. These writ petitions are being disposed of by a common judgment as common questions of facts and law are involved. 2. The State of J&K formulated and launched a scheme for Rebhar-e-Taleem to ensure its participation in the management of Education at grass root level. The sanction was granted for the applicability of the scheme on 28.04.2000 for providing teaching guides called Rebhar-e-Taleem in Primary and Middle Schools in order to make up the deficiencies of the staff. The scheme provides constitution of Village Level Committee, which was assigned the job to assess the requirement of teachers in Primary/Middle Schools within the area of their operation. The qualification provided for appointment of candidate was as under:- (a) That he/she should possess the minimum qualification of 10+2; (b) That the candidates shall as far possible fulfill the age qualification as prescribed by the State Government; (c) That due consideration shall be given by the VLCs to the candidates belonging to scheduled castes and scheduled tribes. 3. In pursuance to the aforementioned advertisement, applications seeking appointment to the post of RET teacher were filed by the petitioners. It is claimed that all the petitioners were eligible for seeking appointment as per the norms set out hereinabove. 4. It seems that the Selection Committee recommended the name of one Raj Kumar, who is respondent no.8 in SWP 1178/2006. His name was recommended for appointment and came to be appointed as RET teacher on 17.11.2000 against the post lying vacant in village Rakh Amb Talli, Samba. After engagement of the said respondent, it transpired that he did not possess 10+2 qualification which was the basic eligibility for appointment to the said post. This fact came to the notice of the official respondents, who initiated inquiry in the matter and vide Order No.163 of 2007 dated 29.03.2007, the appointment of respondent no.8-Raj Kumar came to be terminated. 5. This fact came to the notice of the official respondents, who initiated inquiry in the matter and vide Order No.163 of 2007 dated 29.03.2007, the appointment of respondent no.8-Raj Kumar came to be terminated. 5. Respondent No.1-Raj Kumar being aggrieved of termination order, challenged the same by filing SWP 650/2007 on the ground that at the time of filling up of the applications form he had disclosed that he was only P.U.C. and had not done 10+2 and inspite having said so, the respondents issued an order of appointment in his favour. He further states that the Dy. Commissioner was not competent to issue order of termination, as it was the Director, School Education or C.E.O. concerned who were authorized to do the same. He also obtained an order of stay from this court on 12.04.2007 but till date no reply has been filed in this petition by the respondents. 6. Consequently, SWP 1728/07 came to be filed by one Ram Payari on the ground that after cancellation of the order of appointment of said Raj Kumar, she is entitled to be appointed against the said post on the basis of her merit. She claims that as she was at S.No.3 in the merit list prepared by the VLC in 2000, therefore, if any, appointment is to be made against the post fallen vacant due to the termination of said Raj Kumar, it is she who is eligible and is having better merit than Jemmy Sambyal, who according to her figures at S.No.6 in the merit list. 7. The State has filed objections only in SWP 1178/06 wherein it is conceded that the appointment of respondent no.8- Raj Kumar has been terminated as he did not possess 10+2 qualification at the time of filling up of the application form which was the basic criteria. It is further averred in the objections that one Sat Pal Thapa, who was the then ZEO had managed to include the name of said Raj Kumar in the said list and against whom an inquiry has been initiated which is pending for consideration before the Director, School Education, Jammu. 8. It is further averred in the objections that one Sat Pal Thapa, who was the then ZEO had managed to include the name of said Raj Kumar in the said list and against whom an inquiry has been initiated which is pending for consideration before the Director, School Education, Jammu. 8. Contempt Petition bearing COA(S) No.95/2007 came to be filed by petitioner-Jemmy Sambyal in SWP 1178/2006 wherein it is sought that in view of the directions passed by this court on 16.04.2007, following was required to be done by the respondents:- (a) To consider the case of petitioner-Jemmy Sambyal for appointment as RET teacher in view of the fact that the post had fallen vacant after the termination of respondent no.8- Raj Kumar; (b) Whether the criminal proceedings have been initiated against Sat Pal Thapa the then ZEO who was responsible for making the appointment of Raj Kumar-respondent No.8. 9. In nutshell, this is the controversy involved in these writ petitions. 10. I have heard learned counsel for the parties and perused the record. 11. It is not in dispute that the appointment of respondent no.8-Raj Kumar was made on 17.11.2000 on the basis that he was eligible under the scheme. It transpired that his name was recommended by the Village Level Committee, whose Convenor was the then ZEO. Later on it transpired that he did not possess 10+2 qualification which was the basic criteria as such was found ineligible for appointment. This fact is not being denied by Raj Kumar- respondent No.8 (petitioner in SWP 650/2007) that at the time of filling up of the application form, he did not possess the qualification of 10+2. He submits that he had shown his qualification as P.U.C. and despite that he was appointed. 12. Be that as it may, there is no dispute that he is not eligible to be appointed. The illegality goes to the root of appointment and cannot sustain. The Dy. Commissioner has rightly after proper inquiry terminated the services of said Raj Kumar and I find no fault with the said order. The contention of petitioner-Raj Kumar in SWP 650/07 (respondent No.8 in SWP 1178/2006) that Dy. Commissioner was not competent to terminate his services is not well founded. Admittedly, the Dy. Commissioner was the Chairman of the Selection Committee and as per scheme it was Dy. Commissioner alone who was competent to make selection. The contention of petitioner-Raj Kumar in SWP 650/07 (respondent No.8 in SWP 1178/2006) that Dy. Commissioner was not competent to terminate his services is not well founded. Admittedly, the Dy. Commissioner was the Chairman of the Selection Committee and as per scheme it was Dy. Commissioner alone who was competent to make selection. Even though he referred to order dated 02.06.2003 (Annexure-F) whereby Director, School Education and C.E.O. concerned have also been authorized to make the appointments, this in my view will not take away the power of the Dy. Commissioner to make such appointment. The appointments are to be made in pursuance of the scheme, which clearly envisages that the Dy. Commissioner can make such appointments. The other contention raised is that he had disclosed his qualification as P.U.C. and despite that the respondents issued the order of appointment. It is also alleged that the then ZEO was related to the petitioner-Raj Kumar (respondent No.8 in SWP 1178/2006) and so he managed his name in the select list inspite of the fact that he was not eligible. 13. Coming to the contention raised by the petitioner-Ram Payari in SWP 1728/2007 wherein she claimed that she being next in merit is entitled to be appointed against the post fallen vacant due to the termination of said Raj Kumar. She claims that she obtained 45.5% marks whereas Jimmy Sambyal obtained 38.6% marks. As already stated, no objections have been filed by the respondents in this case. 14. In view of what has been stated hereinabove, the only direction which the Court can give in the present writ petition is that once the appointment of respondent no.8-Raj Kumar has been found to be illegal, the next course available to the respondents is to appoint the person who is higher in merit. I do not want to enter into this arena that who has better merit. I leave it to the respondents to appoint the person against the post lying vacant due to the termination of respondent No.8-Raj Kumar on the basis of eligibility and merit obtained. All the three writ petitions shall, accordingly, stand disposed of along with all connected CMPs. COA(S) No.95/2007. 15. In view of the disposal of the main matter, nothing survives in this contempt petition and the same shall stand disposed of.