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2010 DIGILAW 393 (JK)

Mushtaq Ahmad Bhat v. Parvaiza Akhter

2010-07-12

Hakim Imtiyaz Hussain, Hasnain Massodi

body2010
Per Massodi, J. 1. The Letters Patent Appeal is directed against judgment and order dated 05.05.2010 in SWP No. 362/2010, whereby Writ Court has allowed writ petition, upheld selection of respondent No.1 as Rehbar-e-Taleem Teacher in Primary School Goswanigund village Gund Nauroz and commanded the respondents 2 to 4 to issue formal engagement/appointment order in favour of respondent No.1. 2. First an overview of the background facts: The respondent No.5, on 12.7.2008 vide advertisement notice No.ZEO/D/264/08, invited applications from eligible candidates for engagement against two posts of Rehbar-e-Taleem Teachers, sanctioned vide order dated 11.7.2008 for Primary School Goswanigund. The appellant as well as respondent No.1 responded to advertisement notice. The respondent No. 5 prepared a panel of eligible candidates on the basis of merit. The respondent No.1 and appellant figured at S. Nos.1 and 3 respectively. The Panel, so prepared, found approval of respondent No. 4 and vide No.CEO/A/Per/12754-56/09 dated 5.9.2009 objections, if any, were sought to the selection of respondent No.1 within seven days to reach the respondent No.4. The tentative selection list was made public. The appellant filed his objections to the selection of respondent No.1, alleging therein that the respondent no.1 was not a resident of revenue village Gund Nauroz, where the Primary School was located; that the respondent No.1 belonged to village Gund Fatehpora and had married one Fayaz Ahmad of revenue village Gund Nauroz, after the Advertisement Notice dated 12.7.2008, so as to grab the post of Rehbar-e-Taleem Teacher that otherwise was to go to the appellant. The respondent No. 4, on receipt of complaint from appellant, decided to withhold the formal engagement order in favour of respondent No.1 and ordered inquiry into the matter. The District Development Commissioner Anantnag directed parallel inquiry into the matter. The Inquiry Committees found substance in the objections filed by the appellant. It was found on inquiry that respondent No.1 had applied for post of Rehbar-e-Taleem Teacher in the school at her native village Gund Fatehpora in response to Advertisement Notice dated 26.4.2008, and figured at S.No.06 in the Panel submitted to respondent No.4 by respondent No. 5 vide No.ZEO/D/242-45/08 dated 20.5.2008 and that the respondent No.1 later on 13.9.2008 withdrew her candidature and decided to compete for Rehbar-e-Taleem Teacher post in Primary School Goswanigund village Gund Nauroz after selection for Rehbar-e-Taleem Teacher post in Primary School Goswanigund was finalized. 3. 3. The respondent No.1 aggrieved that despite her selection for the post of Rehbar-e-Taleem Teacher in Primary School Goswanigund, formal orders were not being issued by official respondents, filed a writ petition seeking a writ of mandamus, commanding respondents to issue formal appointment/engagement order in favour of respondent No.1. The respondent No. l also prayed for writ of prohibition, restraining the official respondents from cancelling or withdrawing the selection of respondent No.1. The respondent No.1 insisted that she was permanent resident of village Gundi Nowroz, since she married one Shri Fayaz Ahmad Lone of the said village and that respondent No.1, thus was eligible for the post of Rehbar-e-Taleem Teacher in Primary School Goswanigund. The respondent No.1 pleaded that her having been found meritorious as compared to appellant and other aspirants for that post, figured at S. No.1 in the select list and was entitled to be engaged as Rehbar-e-Taleem Teacher in the aforementioned school. The respondent No.1 complained that the official respondents without any right or reason and motivated by malafide intentions, avoided to issue engagement order in favour of respondent No.1. It was pleaded that as respondent No.1 had married Shri Fayaz Ahmad Lone "few days before the cut off date" and thus become resident of revenue village Gundi Nauroz, neither the appellant nor any other candidate could have a valid objection against engagement of respondent No.1 against the post. 4. The appellant in his reply/objections pleaded that respondent No.1 had no case and none of her constitutional or other legal rights were violated, so as to enable respondent No.1 to invoke extra ordinary writ jurisdiction of the Court. The appellant insisted that respondent No.1 was not resident of village Gundi Nowroz on the cut off date and that the respondent No.1 in order to grab the post in question "got married to one Fayaz Ahmad Lone on 16.7.2008" much after advertisement notice was issued. The appellant pleaded that the Village Level Committee in the said background refused to sign the Panel as required under SSA scheme. The appellant further pleaded that the Village Level Committee, having not signed Panel, the Panel prepared and proposed to be acted upon was non est. The appellant pleaded that the Village Level Committee in the said background refused to sign the Panel as required under SSA scheme. The appellant further pleaded that the Village Level Committee, having not signed Panel, the Panel prepared and proposed to be acted upon was non est. It was pleaded that respondent No. 5 and District Development Commissioner Anantnag, on the complaint of appellant and other residents of village, directed inquiry into the matter and on inquiry the respondent No.1 was found to have not been resident of village Gund Nauroz and to have applied for the post of Rehbar-e-Taleem Teacher in Primary School Gund Fatehpora - the village whereof respondent No.1 was resident. The appellant further pleaded that the respondent No. 4 acting on the inquiry report cancelled selection of respondent No.1 and vide order No.CEO/A/22293-95/09 dated 11.01.2010 has selected the appellant for the post. The respondent No.1, according to the appellant, approached the Writ court with unclean hands and suppressed material facts including her having responded to advertisement notice dated 26.4.2008 for the post of Rehbar-e-Taleem Teacher in Primary School Gund Fatehpora. It was further pleaded that mere selection of respondent No.1 did not clothe the respondent No.1 with any right muchless right to seek her engagement. 5. The Writ court on consideration of matter found substance in the case set up by respondent No.1, and accordingly allowed writ petition. The official respondents were directed to take steps for issuing formal appointment/engagement order in favour of respondent No.1, of course, in accordance with rules and regulations governing the field. The Writ court was of the opinion that respondent No.1 was married at village Gundi Nauroz and on the date respondent No.1 put forward her candidature for the post of Rehbar-e-Taleem in Primary School Goswanigund village, the respondent No.1 was a resident of the village and thus entitled to compete for the post under Rehbar-e-Taleem Scheme read with Government Order No. 396-Edu of 2000 dated 28th May 2000. 6. The judgment and order of the Writ court dated 05.05.2010 are assailed, inter-alia, on the grounds that the Village Level Committee having a pivotal role in selection of Rehbar-e-Taleem, refused to sign Panel prepared by official respondents, wherein the respondent No.1 figured at S. No. 01 and on the basis whereof the selection was made. 6. The judgment and order of the Writ court dated 05.05.2010 are assailed, inter-alia, on the grounds that the Village Level Committee having a pivotal role in selection of Rehbar-e-Taleem, refused to sign Panel prepared by official respondents, wherein the respondent No.1 figured at S. No. 01 and on the basis whereof the selection was made. It is insisted that the Writ court erroneously asked the official respondents to act upon the Panel not prepared by Village Level Committee. The Writ court, it is urged, ought to have directed a fresh inquiry into the matter as Director, School Education, was found to have held inquiry in a slipshod manner. The respondent No.1 having not challenged deletion of her name from the Panel. The Writ court lacks jurisdiction to quash the communication addressed by Director, School Education, to other respondents, not assailed by respondent No.1. It is pleaded that factum of Nikah Ceremony and the subsequent marriage between the respondent No. l and Shri Fayaz Ahmad Lone, being a question of fact, the Writ court ought to have stayed away from the controversy and left it to be settled by the competent forum. It is vehemently refuted that the date of appointment is "a crucial date" for "determining residence" of a candidate. The expressions "belong" and "local" in Government Order No.394-Edu of 2006 dated 28.7.2006, according to appellant, have been used to emphasize that a person claiming residence in a village should continue to reside in that very village at the time of his/her appointment/engagement and not that the date of appointment is relevant date as has been held by the Writ Court. 7. We have gone through memorandum of appeal, record of Writ court and material available on the file. We have heard learned counsel for the parties. 8. The Rehbar-e-Taleem Scheme, sanctioned vide Government Order No.396-Edu of 2000 dated 28.4.2000, has amongst its many objects, an object to meet the staff requirement of schools located in difficult, inaccessible and far flung areas where the teachers posted from other places would not attend their duties regularly and also to provide for making up deficiency in the school staff at elementary level. The scheme, for the obvious reasons, provides for engagement of a candidate for Rehbar-e-Taleem vacancy from the village where the school is located and vacancy intended to be filled up. The scheme, for the obvious reasons, provides for engagement of a candidate for Rehbar-e-Taleem vacancy from the village where the school is located and vacancy intended to be filled up. The local candidate, it needs no emphasis, is most suited to play the intended role of a catalyst at the elementary level for quality education and overall development of the personality of the children. The local candidate is also well suited to man the position having regard to the focus on accountability and responsiveness through community supervision and to operationalize effectively the schooling system at the grass root level. An aspirant for position of Rehbar-e-Taleem (teaching guide) available in a school, may have his/her roots in the village, where school is situated or may become resident of the village by marriage. The emphasis in Government Order No.396-Edu of 2000 dated 28.4.2000 and the Government Orders on the subject made in continuation to basic Government Order, focus on the residence of candidate in the village, where the vacancy of Rehbar-e-Taleem (teaching guide) is available and not mode and manner in which the candidate is or became resident of the village. So viewed a female candidate having her parental house in a village or town away from the village, where the position of Rehbar-e-Taleem is intended to be filled up, may very well compete and be selected for the Rehbar-e-Taleem post in the said village, if such candidate has married in the village and acquired status of resident of the village because her marital home is situated in such village. The cases are conceivable where an educated female candidate, amongst a number of considerations, that persuade a person to tie marital knot, also take into account better employment avenues. In such case, intentions cannot be colored as malafide and such a candidate excluded from competition only on the ground that motivating forces for the marital tie included an idea to avail better employment prospects. A female is entitled to reap all benefits that may flow out of her becoming part of marital home i.e., the residence of her husband, including benefit of her recruitment against a post, open only to the candidates belonging to the place of residence of husband. A female is entitled to reap all benefits that may flow out of her becoming part of marital home i.e., the residence of her husband, including benefit of her recruitment against a post, open only to the candidates belonging to the place of residence of husband. In the present case the main grievance of the appellant is that respondent No.1 a resident of village Gund Fatehpora, entered into wedlock with one Shri Fayaz Ahmad Lone of village Gundi Nauroz, having an eye on Rehbar-e-Taleem (teaching guide) vacancy available in Primary School Goswanigund Village Gundi Nauroz and to get engaged of course on the strength of her superior merit. It is pertinent to point out that it was nobody’s case before the Writ Court that no real marriage had taken place between the respondent No.1 and Shri Fayaz Ahmad Lone or that the marriage was fake, fraudulent and a paper marriage, intended to be used as tool to help the respondent No. l get engaged as Rehbar-e-Taleem (teaching guide) in Primary School Goswanigund. The appellant, without alleging any element of fraud, insisted that the motivating force behind marriage between the respondent No.1 and Shri Fayaz Ahmad Lone, is the resolve of respondent No. l to avail opportunity of getting selected against the post of Rehbar-e-Taleem, lying vacant in Primary School Goswanigund. It would be advantageous to extract following from the reply of appellant to the writ petition filed by respondent No. l:- "....that the petitioner in order to grab the post in question got married to one Fayaz Ahmad Lone on 16.07.2008 much after the advertisement notice was issued." 9. The above averment made by the appellant in his reply to writ petition makes his stand clear that marriage between the respondent No.1 and Shri Fayaz Ahmad Lone did take place though there is dispute as regards date of marriage, which as will be seen during the course of this judgment is of no consequence and as also motive behind the marriage. Had it been the stand of appellant before the Writ Court that the marriage was fake and manipulated only to grab the post of Rehbar-e-Taleem in question, the complexion of the case would have been different. Had it been the stand of appellant before the Writ Court that the marriage was fake and manipulated only to grab the post of Rehbar-e-Taleem in question, the complexion of the case would have been different. Be that as it may the Controversy gets crystallized into following two issues:- i) When did respondent No. 1 acquire status of legally wedded wife of Shri Fayaz Ahmad Lone resident of Gundi Nauroz. ii) What is the relevant date when an aspirant for the post of Rehbar-e-Taleem, must acquire residence in a revenue village so as to be eligible for appointment as Rehbar-e-Taleem, lying vacant in that village. 10. The case set up by the respondent No.1 in the Writ Court was that her Nikah with Shri Fayaz Ahmad Lone took place on 09.03.2008 when the Nikah Nama was executed; that Kabouliat Nama i.e., ceremony when the date of marriage was fixed, took place on 20th June 2008 and the marriage ceremony on 16th July 2008. The appellant in his reply has not refuted the claim set up by respondent No.1 that the Nikah ceremony took place on 9th of March 2008 but has insisted that the marriage took place on 16th of July 2008. There is thus no dispute between the parties as regards date of the marriage i.e., 16th of July 2008 and in this regard averment made in para 8 of the writ petition is admitted by the present appellant. 11. Marriage, under Muslim Law, is essentially a civil contract. The contract creates a permanent relation based on mutual consent on the part of a man and a woman, between whom there is no bar to a lawful union. The law does not insist upon any particular form, in which contract of marriage should be entered into nor even that the contract must be evidenced by any writing. Marriage under Muslim Law like other contracts under the Contract Act is constituted by offer/declaration and acceptance or "ijab" and "kabul". Once "ijab" and "kabul" i.e., offer/declaration and acceptance take place, the contract is concluded and called as "akd" or contractual obligation. It follows that immediately on "akd", the man and woman become husband and wife and rights and duties flowing out of the contract, or "aqd" are to be respected and abided by the parties. Once "ijab" and "kabul" i.e., offer/declaration and acceptance take place, the contract is concluded and called as "akd" or contractual obligation. It follows that immediately on "akd", the man and woman become husband and wife and rights and duties flowing out of the contract, or "aqd" are to be respected and abided by the parties. Woman, after "aqd" is for all intends and purposes wife of the man, who entered into marriage contract with her, cannot enter into a marriage contract thereafter, has a right to have marital relations with her husband. The husband like wife after "aqd" has right to have access to his wife, to have her association and enjoy marital relations with her. The marriage agreement or "aqd" can be dissolved only in accordance with Muslim Law. A Muslim marriage may involve a number of ceremonies like Nikah, Kabuliyat, Masnand Nishini, Baraat, Rukhsati but having regard to nature of Muslim marriage, Nikah ceremony is the deciding event and the marriage is complete once Nikah ceremony is held i.e., offer and acceptance - "ijab" and "kabul" takes place and shapes up into marriage agreement or "akdn. 12. It would be advantageous to reproduce hereunder observations made in Mt. Zainaba v. Abdul Rahman, AIR (32) 1945 Peshawar 51: "Only one ceremony called the nikah is known to Mahomedan law for uniting a husband and wife. Betrothal is not known to that system. Directly a woman is married to a person according to the procedure provided for a nikah she becomes his wife, and there is nothing to stop her from going to his house straight away without any drum-beating and other felicitations. The ceremony of having pomp and show at the time of handing over the girl has been grafted on Mahomedan law by custom and legally it has no value at all. The fact that the woman was not handed over to the husband with due celebrations would, consequently, not affect the relationship between them created by the nikah or make it an inchoate union requiring something else to complete it." 13. So viewed, marriage between respondent No.1 and Shri Fayaz Ahmad Lone resident of Gundi Nauroz was concluded on 09.03.2008 when the Nikah ceremony between respondent No. l and Shri Fayaz Ahmad Lone was held and Nikah Nama executed. So viewed, marriage between respondent No.1 and Shri Fayaz Ahmad Lone resident of Gundi Nauroz was concluded on 09.03.2008 when the Nikah ceremony between respondent No. l and Shri Fayaz Ahmad Lone was held and Nikah Nama executed. In the circumstances the respondent No. l acquired status of resident of village Gundi Nauroz on 09.3.2008 i.e., much before the advertisement notice in question was issued by respondent No. 5 on 12.7.2008. 14. Even if the stand taken by the appellant that the marriage in question took place on 16.7.2008 when the ceremony of Baraat and Rukhsati was held and the respondent No.1 came to live in her marital home at village Gundi Nowroz, the respondent No.1 was resident of Gundi Nauroz on the date she filed an application for being considered for the post of Rehbar-e-Taleem in Primary School Goswanigund. It may be recalled that the advertisement notice was issued on 12.7.2008 and the applications in terms of advertisement notice were to be submitted by or before 18.7.2008. The respondent No. 1, before last date of submission of the application, had become eligible for the advertised post. 15. Perusal of the record reveals that members of Village Level Committee in their communication dated 19.8.2008 (Annexure A-5) expressed their reservation in respect of engagement of respondent No.1 as Rehbar-e-Taleem only on the ground that a "Pushtani Bashinda" i.e., hereditary resident - whose forefathers belonged to the village, deserved to be appointed. The objection was taken oblivious to the mandate of scheme. The scheme, it may be pointed out at the cost of repetition, does not lay down "Pushtani Bashinda" as criteria for engagement as Rehbar-e-Taleem. In the circumstances the ground as regards reservations of Village Level Committee, regarding appointment of respondent No.1, pales into insignificance. Again the enquiry reports, on which much reliance is sought to be placed, nowhere returns a finding that the marriage between respondent No.1 and Shri Fayaz Ahmad Lone to have been fake, fraudulent or manipulated but only voices the perceptions of inquiry officers/committee that the respondent No.1, was not entitled to be considered for the post of Rehbar-e-Taleem. 16. We, therefore, for the reasons discussed, do not find any merit in the appeal and accordingly dismiss the appeal.