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2011 DIGILAW 245 (JK)

Imtiaz Hussain v. State & Ors.

2011-05-12

MANSOOR AHMAD MIR, SUNIL HALI

body2011
1. This Letters Patent Appeal is directed against the order and judgment dated 19.4.2010 passed by the learned single Judge in SWP No. 2156/2006, whereby the writ petition filed by the appellant came to be dismissed, on the grounds taken in the memo of appeal (hereinafter, for short, impugned judgment). 2. Appellant-writ petitioner was engaged as a Rehbar-e-Taleem Teacher in Primary School Check Post Desa Road (Akarmabad) vide engagement Order No. ZEOD/D2311-2441 dated 9.2.2004 in terms of advertisement notice contained in annexure 'K' to the writ petition, came to be questioned by one Zakir Hussain by the medium of SWP No. 1165/2005 in which the appellant-writ petitioner was figuring as respondent No. 5. Official respondents have taken a stand in. the said writ petition that the engagement of present appellant Imtiaz Hussain came to be terminated on the ground that he obtained engagement order on wrong facts, which on inquiry found to be not correct and, accordingly, he was terminal ted from service. On noticing the stand of writ respondents, the writ court vide order dated 8.12.2006 allowed the writ petition on the terms and conditions contained in the said judg­ment. It appears that the said judgment has not been questioned by any of the parties and has attained finality. 3. Appellant-writ petitioner questioned the termination order by the medium of SWP No. 2156/2006 on the grounds taken in the memo of writ petition. 4. Precisely the foundation of the case of writ petitioner is that the selection/en­gagement was to be made from the candidate hailing from revenue village. The entire case of the appellant-writ petitioner is that he was the only meritorious candidate from the village and was entitled to get appointment. Further he has stated in para-12 of the writ petition that engagement was to be made in terms of the conditions contained in annexure 'K'. 5. Writ respondents have resisted the petition on the ground that the selec­tion/engagement was to be made from eligible candidates of Ward No. 13. Appel­lant-writ petitioner applied along with other candidates and a panel was prepared. Admittedly, the appellant-writ petitioner filed documents and inadvertently his name also figured at Sr. No. 3 in the said panel, though he was not eligible because he was not hailing from Ward No. 13. Appel­lant-writ petitioner applied along with other candidates and a panel was prepared. Admittedly, the appellant-writ petitioner filed documents and inadvertently his name also figured at Sr. No. 3 in the said panel, though he was not eligible because he was not hailing from Ward No. 13. The mistake had crept-in due to the fact that in the panel names of Imtiaz Ahmed and Imtiaz Hussain figured and incidentally the parentage of both the said persons were identical. Imtiaz Ahmed was figuring at Sr. No. 2 and Imtiaz Hussain at Sr. No. 3. Writ respondents after noticing the mistake sought verification from the concerned Municipal Committee who submit­ted the report that Imtiaz Hussain is not hailing from Ward No. 13 but from Ward No. 12. 6. Admittedly appointments were to be made from the candidates who were hailing from Ward No. 13. Appellant-writ petitioner was asked to show how he obtained the documents and engagement order. He replied and virtually admitted that he is not belonging to Ward No. 13. The writ respondents thereafter terminate his services vide the impugned order. 7. It is worthwhile to mention herein that appellant-writ petitioner nowhere mentioned in the writ petition that he is hailing from Ward No. 13. Mr. Raina while addressing arguments frankly admitted that appellant-writ petitioner is hailing from Ward No. 12. Thus there is no dispute about the said fact. 8. Now the question is whether the selection/engagement of appellant-writ petitioner was legal and whether the termination order passed is bad in law. 9. The writ court after considering the pleadings and record rightly-held that the selection was to be made from those candidates who were hailing from Ward No. 13. Admittedly, appellant-writ petitioner was not hailing from the said ward and had wrongly obtained appointment. The learned Single Judge accordingly dismissed the writ petition holding that one wrong cannot justify another wrong. 10. The appellant-writ petitioner has admitted in the writ petition that the selection process and engagement was to be made strictly in terms of the conditions contained in the advertisement notice-annexure 'K'. It is apt to reproduce para-12 of the writ petition herein: "That the services of the petitioner were engaged as per advertisement notice which clearly depicts that the selection of the petitioner was based on strict merit of village level/panchyat level/zone level as per directions issued vide advertisement dated 24.8.2005." 11. It is apt to reproduce para-12 of the writ petition herein: "That the services of the petitioner were engaged as per advertisement notice which clearly depicts that the selection of the petitioner was based on strict merit of village level/panchyat level/zone level as per directions issued vide advertisement dated 24.8.2005." 11. It is also apt to reproduce the relevant portion of advertisement notice. "In pursuance of Govt. Order No. 597-Edu of 2003 dated 02.06.2003 village wise application on prescribed format are invited from the permanent resident of J&K State for the engagement of Rehbar-e-Taleem teachers at village level, in case of TAC/NAC at ward level under SSA." 12. Thus, the selection against the said posts was to be made at ward level and not at village level. In terms of Government Order No. 1628-Edu of 2003 dated 24.10.2003 the selection of Rehbar-e-Taleem is to be made at ward level as defined in J&K Municipal Corporation Act. It is apt to reproduce the said Government order herein: "In continuation to Government Order No. 396-Edu of 2000 dated 28.04.2000, it is hereby ordered that:- In the case of Urban areas, the unit of selection of Rehbar-e-Taleem (R-e-T) shall be a Ward as defined in the Jammu and Kashmir Municipal Corpora­tion Act'2000 and the Jammu and Kashmir Municipal Act 2000 arid/or Rules thereunder. For the purpose of selection of R-e-T, Ward Committees (analogous to the Village Committees) shall be constituted by the Director School Education, Kashmir/Jammu." 13. Thus, in rural areas the selection is to be made at village level and in case of urban areas at ward level. The selection of posts-subject matter of writ petition was to be made at ward level. In the given circumstances the very foundation of the writ petition fails. 14. Learned counsel for appellant-writ petitioner has also made reliance on a judgment of the Division Bench of this Court in LPA No. 131/2008, titled as, Romesh Kumar v. State of J&K, decided on 5.3.2010. The said judgment is not applicable to the instant case. In the said case the selection was to be made at village level and not at ward level. 15. Having glance of the above discussion, this appeal merits to he dismissed and the judgment of learned Single Judge needs no interference. Accordingly the appeal is dismissed along with all CMPs.