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2010 DIGILAW 105 (JK)

Ab. Rashid Sofi v. State

2010-03-04

MOHAMMAD YAQOOB MIR, MUZAFFAR HUSSAIN ATTAR

body2010
Per Mohammad Yaqoob Mir, J. 1. Calculated acts of the respondents resulted in exclusion of the appellant from being engaged Rehbar-e-Taleem teacher in Government Middle School, Tarzoo. The appellant admittedly possessing superior merit than that of respondent No.6 has been rendered ineligible on the basis of recording his residence as Allibagh Tarzoo when in fact he is the resident of Tarzoo. The said position of him being resident of Tarzoo is also supported by the communication available on the record as produced by learned counsel for the respondents bearing No.ZEOS/1300 dated 28.8.2007 wherein it has been mentioned that the appellant was not included in the list of candidates of Tarzoo as he was shown resident of village Allibagh. Representation against such position was referred to revenue authorities for clearance who have reported that the portion of Allibagh falls within village Haigam and portion of it falls in village Tarzoo but in fact there is no separate identity of village Allibagh in revenue records. Based on such clarification it is mentioned that the appellant was recommended for being engaged vide office No.692 dated 6.11.2002 addressed to Chief Education Officer, Baramulla. Before the requisite approval could be received, respondent No.6 Irshad Ahmad Rather filed a writ petition wherein appellant was not arrayed as a party. The said writ petition bearing SWP No.679/2003 has been disposed of on 12.8.2005 and in view of the directions contained therein, engagement order in favour of Irshad Ahmad Rather, petitioner therein, as RT for Govt. Middle School, Tarzoo was issued. 2. Appellant when came to know about the engagement order in favour of writ petitioner Irshad Ahmad Rather, he immediately filed writ petition (SWP) No. 1025/2005 which has been disposed of on 26.5.2006 where-under withdrawal of the writ petition with liberty to invoke appropriate remedy, has been permitted as it was noticed that the order in favour of respondent No.6 has come into being by dint of the judgment passed in SWP No.679/2003. As a result thereof, the appellant has filed instant LPA against the judgment passed in SWP No.679/2003. 3. The factual matrix of this case suggest improper issuance of the order of engagement as RT in favour of respondent No.6. Situation has been created wherefrom it is inferable that the respondent No.6 has been helped at the cost of the appellant. 4. 3. The factual matrix of this case suggest improper issuance of the order of engagement as RT in favour of respondent No.6. Situation has been created wherefrom it is inferable that the respondent No.6 has been helped at the cost of the appellant. 4. It is an admitted fact that the post of RT was to be filled in Government Middle School, Tarzoo by engaging a candidate from a particular village. Admittedly as per the policy the candidate who is resident of the village and possesses superior merit was to be selected and engaged. What has been done by the respondents is that they have prepared the panel of about 8 candidates out of whom three candidates have been shown residents of Haigam, two candidates including appellant as residents of Allibagh and three candidates including respondent No.6 have been shown residents of Tarzoo. Finally the respondent No.6 possessing 60% marks was engaged whereas the appellant who possess superior merit i.e. 65% marks on the basis of having been shown resident of Allibagh has been ignored. 5. The appellant having produced permanent residence certificate (PRC) before the concerned authorities demonstrating therein that he is the resident of Tarzoo based on which his case has been recommended for engagement instead of respondent No.6. The respondent No.6 noticing such development has filed the writ petition wherein appellant was not arrayed as a party and succeeded in obtaining direction only when the respondents (concerned authorities) despite repeated directions and opportunities failed to file any response to the said writ petition and the Writ Court while disposing of the said writ petition i.e. SWP No.679/2003 has observed as under:- "As already stated respondents have not filed their objections. Instead Mr. J.I. Ganaie, appearing for them has helplessly stated that respondents 4 and 5 i.e. (Chief Education officer, Baramulla, and Zonal Education Officer, Sopore) have not cared to cooperate with him due to which he could not file his reply to the writ petition. However, in any case petitioners claim remains un-rebutted in all its assertions as aforesaid and his counsel while canvassing the matter argues that in view of his uncontested claim the petitioners prayer deserves to be allowed". 6. However, in any case petitioners claim remains un-rebutted in all its assertions as aforesaid and his counsel while canvassing the matter argues that in view of his uncontested claim the petitioners prayer deserves to be allowed". 6. It has also been observed that the appointment of petitioner (respondent No.6 herein) as Rehbar-e-Taleem in Government Middle School of his native village i.e. Tarzoo has been approved by District Development Commissioner but the Chief Education Officer has not issued the appointment order in view of the delaying tactics on the part of Zonal Education Officer, the irresponsible behavior of the said officers suggest that they had something to hide which would come to lime light if they appear in the Court. Further it has been observed that such irresponsible behavior on the part of these District level Officers only calls for a stern action against them by the competent authority. 7. Finally the direction has been issued that the petitioners appointment shall be carried into effect provided same is intact and has not been withdrawn, modified or cancelled after its issuance. 8. The authorities concerned appear to have ignored the observations made by the Writ Court, in consequence thereof have issued the order of engagement in favour of respondent No.6 on 21.9.2005 and have mentioned in the said order that the engagement order in favour of respondent No.6 was not issued due to the reason that another candidate, namely. Abdul Rashid Sofi (appellant) with high percentage of marks had represented for being engaged and the said representation was submitted to higher authorities but no response was received till date. Then while quoting the direction contained in the writ court judgment, it has been mentioned that Chief Education Officer, Baramulla has advised to proceed as per the directives issued on 12.8.2005 by the Honble court, therefore, in view of the same respondent No.6 is engaged as RT in GMS, Amberpora (Pati of Tarzoo). 9. Though the appellant was not the party to the judgment impugned but after leave the LPA has been entertained. 10. 9. Though the appellant was not the party to the judgment impugned but after leave the LPA has been entertained. 10. The engagement of respondent No.6 as RT may be outcome of some exigency but in the aftermath the meritorious candidate i.e. appellant who had a vested right of being engaged in view of his position of possessing superior merit i.e. 65% marks as compared to the rest of candidates figuring in the panel, more particularly as against the respondent No.6 who as per panel is shown to have posses only 60% marks. 11. All the circumstances noticed above would warrant quashing of the order of engagement of the respondent No.6 12. The LPA for the stated reasons succeeds. The judgment impugned to the extent of direction for issuing order of engagement in favour of respondent No.6 is set aside. The order of appointment in favour of respondent No.6 issued by Zonal Education Officer, Sopore on 21.9.2005 under No.Estt/ZEOS/2916-19 dated 21.9.2005 in law cannot sustain. 13. The appellant admittedly possesses superior merit so necessary order of his engagement as RT in the concerned school has to be issued by the concerned authorities after completing the requisite formalities. 14. While concluding, what emerges is that the appellant admittedly a meritorious candidate has been ignored so has got to be engaged as RT in place of respondent No.6 but, however, keeping in view the peculiar features of the case, the disengagement of respondent No.6, who by now has rendered five years of service as RT, shall be harsh. At the same time appellant has already suffered a lot, so cannot be made to wait any further from being engaged as RT in the same school. The disturbing approach of the authorities concerned has given rise to a situation which would warrant a special treatment to be given both to appellant as well as respondent No.6. Therefore, for advancing the cause of justice it would be quite appropriate for the respondent authorities to engage the appellant as RT in Government Middle School, Tarzoo against the available vacancy, in case of non-availability, he shall be suitably adjusted. The exercise of engaging the appellant as RT or his suitable adjustment shall be ensured after completing all the requisite formalities within a period of four weeks from today. 15. LPA accordingly succeeds and is disposed of as indicated above. 16. The exercise of engaging the appellant as RT or his suitable adjustment shall be ensured after completing all the requisite formalities within a period of four weeks from today. 15. LPA accordingly succeeds and is disposed of as indicated above. 16. Copy of this judgment be sent to the official respondents for compliance. 17. The record as produced by learned counsel for the respondents shall be returned to him.