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2010 DIGILAW 117 (JK)

Ramesh Kumar v. State Of J. &K.

2010-03-05

SUNIL HALI, VIRENDER SINGH

body2010
1. With the consent of learned counsel for both the sides, we intend to dispose of the instant Letters Patent Appeal at motion stage itself. Writ Court record is also available for our perusal. Admitted. 2. Through the instant appeal the appellant, who got an appointment as Rehbar-e-Taleem (R-e-T) Teacher in Primary School Sharni in year 2000, has questioned the legality of the order dated 01.09.2008 (Annexure-A) of learned Single Judge whereby his appointment stands quashed and private respondent No.7 (hereinafter to be referred to as `writ petitioner) has been appointed as R-e-T Teacher for the said school. All consequential benefits flowing from the said appointment have also been granted to the writ petitioner. The impugned order stands implemented, as a result, appellant has lost his job and the writ petitioner has been appointed. 3. It needs to be mentioned here that the appellant did not contest the writ petition before the learned Writ Court, so set ex-parte. However, his services were regularized in accordance with the provisions of the Scheme and he came to be appointed as General Line Teacher substantively for the said school during the pendency of the lis in the month of November, 2005 after putting in five years of service. 4. We, while giving priority to the instant appeal, sought a clarification from the State in our order dated 02.02.2010, observing:- "A good case for not only admission of the appeal has been made out but a very good case for stay of operation of judgment and order has also been made out. However, taking into account, that the order appealed against has been implemented, as a result, appellant has lost his job and the writ petitioner- respondent has been appointed, we would require the State to supply the lacunae which was not supplied while filing the counter affidavit. The school is situated, as pleaded in the writ petition, in village Sharni. The State in its Affidavit has not indicated whether village Sharni is or is not in a Revenue village and if it is not in a Revenue village, whether it is a Mohalla or a hamlet within a Revenue village. It has also not indicated that if village Sharni is a Mohalla or a hamlet within a Revenue village, what is the name of that Revenue village. It has also not indicated that if village Sharni is a Mohalla or a hamlet within a Revenue village, what is the name of that Revenue village. It has also not indicated whether the village Rokali and village Chagsoo are parts of the same Revenue village where village Sharni is situated. We want the State to file such affidavit within two weeks from today. List at the top of the list two weeks hence. Records, as produced, are being returned, which shall be produced at the time of hearing." 5. In response, an affidavit has been filed by Chief Education Officer Doda stating therein that Sharni, Rokali and Chagsoo are different revenue villages as certified by Tehsildar Thathri vide its letter No.899/OQ dated 10.02.2010, copy thereof is placed on record. 6. Mr. Raghu Mehta, Advocate, appearing for the writ petitioner has also moved an application bearing CMP No.24/2010 for placing on record the supplementary affidavit of the writ petitioner. Learned Senior Advocate Mr. Goni did not object to taking of the same on record. So we allow the prayer. 7. Heard learned counsel for both the sides and perused the Writ record. 8. Mr. Goni contends that may be the appellant did not contest the writ petition before the learned Writ Court and proceeded ex-parte, one important fact that he was appointed as General Line Teacher substantively in accordance with the provisions of the Scheme in November, 2005 was not brought to the Court by the contesting parties. According to him, it was incumbent upon them to bring this important fact before the learned Writ Court during the pendency of the lis and had it been so done, the complexion of the main case would altogether have been different. He submits that the State has now chosen not to assail the order of the learned Writ Court and gave appointment to the writ petitioner pursuant to the direction. Therefore, on this flaw alone, the impugned judgment is not sustainable. 9. Joining issue on merits of the case, Mr. He submits that the State has now chosen not to assail the order of the learned Writ Court and gave appointment to the writ petitioner pursuant to the direction. Therefore, on this flaw alone, the impugned judgment is not sustainable. 9. Joining issue on merits of the case, Mr. Goni submits that the main case set up by the writ petitioner before the learned Writ Court was that her village is at a less distance from village Sharni where the vacancy was assessed and that village Chagsoo, the village of the appellant was far away from Sharni and this is what has weighed with the learned Writ Court for ousting the appellant whereas, admittedly, the appellant was more meritorious in qualifications than the writ petitioner, which fact is otherwise evident from Annexure-K. According to learned counsel, village Rokali from where the writ petitioner hails and village Chagsoo, the village of the appellant, in fact, are not contiguous to village Sharni where the deficiency had occurred and, therefore, both the villages, may be one falling at a distance of 2 kilometers and the other at a distance of 3 kilometers are to be considered as adjoining villages under the spirit of the Scheme. Therefore, the merit on the basis of qualifications of an individual candidate shall prevail. This is what is done in the present case while appointing the appellant. According to the learned counsel, the approach adopted by the learned Writ Court in quashing the appointment of the appellant primarily on the basis of the distance from village Sharni where the deficiency occurred, is not the correct approach, as such, the impugned judgment deserves to be set aside on merits as well. 10. Mr. Goni lastly submits that the appellant by now has become overaged and will not be able to get any government job. His entire family is dependent upon him, which includes minor children as well. Therefore, his case deserves an equitable tilt, more so when his regular appointment was not made the subject matter of challenge before the learned Writ Court. 11. Mr. D.C. Raina, learned Sr. Advocate, on the other hand, submits that the impugned judgment is absolutely in line with the Scheme, which has co-relation with the distance. Therefore, his case deserves an equitable tilt, more so when his regular appointment was not made the subject matter of challenge before the learned Writ Court. 11. Mr. D.C. Raina, learned Sr. Advocate, on the other hand, submits that the impugned judgment is absolutely in line with the Scheme, which has co-relation with the distance. He submits that if one goes by the spirit of the Scheme, in the event of no local candidate available from the village where the deficiency of staff is assessed, Village Level Committee can draw up panel from the adjoining village and in the present case the adjoining village was village Rokali only, which was just 2 kilometers away from village Sharni and that village Chagsoo was 3 kilometers away from the said village. This is the reason that even in the panel Annexure-K (attached with the memo of appeal), when list of candidates on the basis of merit was prepared for the said school, the appellant figured at serial No.3 whereas the writ petitioner was at serial No.1. So percentage of the appellant on the basis of his academic qualifications was not given weightage. According to Mr. Raina, another candidate namely Mohinder Kumar is reflected at serial No.5 in the list (Annexure-K) and his percentage is 56.50 i.e. much higher than of the appellant, but the distance of his residence to School is assessed as 6 kilometers. This shows that Village Level Committee was conscious of the fact that as per the Scheme, distance of the residence of the candidate from the School where the vacancy was to be filled has to be given preference over and above the qualifications. This is the reason that learned Writ Court found appointment of the appellant as wrong and rightly quashed it. 12. Mr. Raina then submits that may be during the pendency of the lis, fact of regularization of the services of the appellant as General Line Teacher was not brought to the notice of the Writ Court, that by itself would not strengthen the case of the appellant, if his initial appointment was bad. A wrong, which has been done by ignoring the R-e-T Scheme operative at that stage, will not give him a right of regularization even if any order in his favour has been passed subsequently by the concerned authority on the basis of length of his service. 13. Mr. A wrong, which has been done by ignoring the R-e-T Scheme operative at that stage, will not give him a right of regularization even if any order in his favour has been passed subsequently by the concerned authority on the basis of length of his service. 13. Mr. Raina lastly submits that even on equity the appellant has no case for the simple reason that equity when pitted against the fundamental right, has to make way for enforcement of fundamental right. Therefore, it cannot be a case of showing any equitable tilt in favour of the appellant. 14. Mr. Raina has relied upon the following two judgments:- 1) Koshlya Devi v. State of J&K and others, 2007 (1) JKJ 102 (HC) 2) Susheel Kumar v. State of Jammu & Kashmir and others (LPASW No.131/2006) 15. Since the dispute pertains to the appointment made under R-e-T Scheme, it would be relevant to keep in view the eligibility conditions envisaged by the Scheme. The Scheme postulates that a person, who is meritorious amongst the candidates possessing the prescribed qualification, belongs to the village where deficiency has occurred, is to be appointed. Now suppose no candidate having the prescribed eligibility qualification is available in the village where the deficiency has occurred, would it mean that post shall remain vacant. The Scheme by itself takes care of such a situation also by providing that in such eventuality a candidate from the `adjoining village may be appointed. Now let us conceive another situation. Suppose the village where deficiency has occurred and a candidate having requisite qualification is not available and a candidate from adjoining village is to be taken as the Scheme provides, is adjoined by more than one village and each village has candidates having the prescribed eligibility qualifications, the question would arise in such like situation, as to how the selection can validly be made. The Scheme does not take care of such a situation despite that it cannot be accepted that in such like situation, the framers of the Scheme intended to keep the post vacant. Going by the intention of the framers of the Scheme that the vacancy occurring must be filled up for the welfare of the children of a particular village, interpretation of the expression `Adjoining village would be necessary. Dictionary meaning of the expression `adjoining as per Blacks Law Dictionary is Touching; sharing a common boundary; Contiguous. Going by the intention of the framers of the Scheme that the vacancy occurring must be filled up for the welfare of the children of a particular village, interpretation of the expression `Adjoining village would be necessary. Dictionary meaning of the expression `adjoining as per Blacks Law Dictionary is Touching; sharing a common boundary; Contiguous. It can be read as adjacent also, which means lying near or close to but not necessarily touching. As per Websters Comprehensive Dictionary, expression `adjoining is synonyms to expression `adjacent which means lying next, bordering; contiguous, lying near or close at hand. As per Law Lexicon, the expression `adjoining means touching or contiguous, as distinguished from lying near or adjacent. Etymologically, the word means touching or contiguous to, but the lexicographical meaning is close to; near to; contiguous. `Village in any case shall now be read as `revenue village. Reading the dictionary meaning of `adjoining and the meaning of the word `village, the expression `adjoining village would mean a village adjoining or near to the village in issue. 16. The above definitions, however, do not completely fit in the situation envisaged keeping in view the nature and context of the Scheme. In our considered view, the expression `adjoining village as contemplated by the Scheme would mean the village or the villages surrounding the village where the deficiency has occurred. The definition of `adjoining village cannot be restricted to a single village or a village nearer to the village where deficiency has occurred. `Adjoining village would mean village/villages adjoining the village in issue where the deficiency has occurred irrespective of number. 17. Now the next question would be that if eligible candidate more than one are available in more than one adjoining villages, how the selection would be made. The learned Writ Court adopted the `principle of distance only from the villages of the candidates to the village where deficiency had occurred. This principle, in our view, is not the correct one for the reason that under this principle less meritorious candidate may steal a march over the meritorious candidates available in the other adjoining village. It can be comfortably imagined that the intention of the Scheme is not to appoint less meritorious candidate over and above the meritorious candidates, the intellectual development of the children of a particular village being the heart beat of the Scheme. 18. It can be comfortably imagined that the intention of the Scheme is not to appoint less meritorious candidate over and above the meritorious candidates, the intellectual development of the children of a particular village being the heart beat of the Scheme. 18. The appointment of the appellant, if appreciated in the light of the aforesaid discussion, the net result would be that it was not at all bad and rather absolutely in consonance with the spirit of the Scheme in operation at that time for the reason that admittedly he was more meritorious in his qualifications than the writ petitioner. Therefore, in our considered view, the impugned judgment of the learned Single Judge quashing the appointment of the appellant deserves to be set aside. 19. Before parting with the judgment, we may observe here that the argument advanced by Mr. Raina with regard to the eligibility of Mohinder Kumar falling at serial No.5 having been more meritorious than even the appellant and still not appointed on account of the distance of his village from the School where deficiency occurred, appears to be attractive, but deserves to be rejected for the reason that said Mohinder Kumar had not challenged the appointment of the appellant. The present case, thus, has been appreciated with regard to the merit of the appellant vis-`-vis writ petitioner only. 20. The judgments on which Mr. Raina has relied heavily in support of his submissions, in our view, are not at all applicable to the facts of the present case, which has been dealt with by us altogether on different aspect. 21. Consequently, the appeal on hand is allowed and the impugned judgment of the learned Single Judge whereby appointment of the appellant as R-e-T Teacher in Primary School Sharni was quashed is set aside, resultantly, the writ petition of the writ petitioner/ respondent No.7 herein shall stand dismissed. Service status of the appellant shall be restored forthwith. The appellant shall also be entitled to all consequential benefits except the monetary one by deeming him in continuous service. The writ petitioner, thus, shall stand ousted from the post held by her pursuant to the impugned judgment. 22. Connected CMP(s) also stands disposed of accordingly.