1. Heard 2. Applications were invited by the official respondents for the post of 3rd teacher in Primary School Shilipora Petitioner and respondent No 8 namely Manjeet Kour also applied along with other eligible candidates. Petitioner claims engage ment against the post on the basis of her higher qualification. She possesses qualification of M. A. B.Ed. She states that she is the only meritorious candidate and on account of her eligibility academic pursuit and other requisite performance she is entitled to get the engagement. 3. Respondents have on the other hand rejected her candidature for the reasons that her Permanent Resident Certificate has been Kept in abeyance. 4. Short controversy which therefore arises for adjudication in the present petition is that whether or not petitioner is resident of the village where the school in which the vacancy has arisen is situated. 5. Petitioner basically belongs to a different locality namely Iqbal Abad An-antnag. Her Nikah with one of the residents of village, Ranbirpora namely Mehdi Parvez Khan allegedly took place on 5-2-2009. Marriage between the two has taken place after the cut off date fixed in the advertisement notice Respondent No. 8 objects to engagement of petitioner as Rehbar-e-Taleem in the said school on the ground that she was not resident of the area on the cut off date. 6. Respondents have filed their reply. 7. Heard I have considered the matter. 8. Learned counsel for the petitioner has relying on the educational qualifica tion of the petitioner submitted that being more meritorious petitioner has got a preferential right to get engagement. He has also placed reliance on a copy of Nikah deed dated 5-2-2009 which according to the learned counsel would show that the petitioner is married to one Mehdi Parvaiz Khan S/o Mohd Yaqoob Khan on 5.2.2009. Petitioner has in this behalf referred to a Division Bench judgment of this Court in Mushtaq Ahmed Bhat v. Parvaiza Akther and Ors (LPA 75/10) Dated 12.7.2010. 9. Mr. R.A. Jan learned counsel for respondent no 8 has on the other hand, objected to the engagement of petitioner on the post. He submits that since the petitioner was not a resident of the village on the cut off date, she cannot be considered on the post and that in that circumstance only respondent no. 8 is a suitable, meritorious and eligible candidate for the post.
He submits that since the petitioner was not a resident of the village on the cut off date, she cannot be considered on the post and that in that circumstance only respondent no. 8 is a suitable, meritorious and eligible candidate for the post. Learned counsel would object to the PRC certificate issued in favour of the petitioner by the Dy. Commis sioner Anantnag. He would also submit that the marriage between petitioner and Mehdi Parvaiz Khan took place after the cut off date as such in terms of the RET scheme the petitioner cannot be treated as a resident of the village concerned and she cannot be considered for the post at all. 10. Official respondents have in their objections stated that PRC certificate of the petitioner was objected to and it was conveyed to Addl Dy. Commissioner, Anantnag that no marriage has been performed by the petitioner with said Mehdi Parvaiz Ahmed Khan on 15.3.2009 and that she was actually residing in the village with her husband. 11. The facts are not in dispute. It is admitted by the official respondents that petitioner had applied for the post. Her application was accepted on production of under process PRC certificate issued by Tehsildar, Anantnag. She submitted her PRC certifica te for consideration issued by Addi tional Dy. Commissioner Anantnag on 16.3.2009 i.e. after the cut off date. 12. From the pleadings it appears that though Nikah ceremony between the petitioner and Mehdi Parvaiz Khan took place on 5.2.2009 marriage admittedly took place after the cut off date. Relying on this fact learned counsel for respondent No. 8 would strenuously urge that since the petitioner was not resident of the village on cut off date and that her marriage has admittedly taken place after the said date she cannot be considered for the post at all. 13. Learned counsel for the petitioner has on the other hand relied on Prakas v. Mst. Shahni J&K 88 where a Division Bench of this Court observed as under — "A married woman acquaires the domicile of her husband, if she had not the same domicile before marriage. The wife's domicile follows that of her husband. So long as the marriage subsists the wife is incapable of acquiring a separate domicile of her own. no matter her husband may have even deserted her.
The wife's domicile follows that of her husband. So long as the marriage subsists the wife is incapable of acquiring a separate domicile of her own. no matter her husband may have even deserted her. Nothing short of a dissolution of marriage lie enables a married woman to acquire a separate domicile. Even on the death of her husband a widow retains her late husband's domicile until she changes it by her own act e.g. by remarriage " 14. Learned counsel has referred to and relied on a judgment of a Division Bench of this Court in Mushtaq Ahamed Bhat v. Parvaiz Akther in LPA 75/10 dated 12.7.2010 where the court held that 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 contract under the Contract Act is consti tuted by offer/declaration and acceptance or 'ijab and 'Kabul" Once "Ijab and "Kabul" i.e. offer/declaration and acceptance takes 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 'akd" are to be respected and abided by the parties Woman, after "akd" 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 huband 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 "akd". 15.
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 "akd". 15. Oh going through the Division Bench authority in Mushtaq Ahmed Bhat's case I find the authority squarely applies to the present case also. 16. Learned counsel for the petitioner has also relied on a Government Order No 394/Edu/2006 dated 28-7-2006 which reads as under:- Whereas, the Hon'ble High Court of J&K in its order dated 16/2/2006 passed on LPA OSWP No. 215/2004 titled Ranj it Sharma v. State and others while deliberating on the eligibility provisions contained in the.Government Order No 396/Edu/2000 dt. 28/4/2000 desired the formanization of tests belong and local candidate througha definition in a manner as would stop generation of litigation on the subject. Whereas, the matter has been exam ined in the context of the letter and spirit of the scheme of-Rehbar-e-Taleem as envisaged in Government order No 394/Edu of 2000 dated 23/4/2000 and (sick) and records. Whereas, the conceptual framework of the scheme makes it clear that the candidate to be considered for appointment as Rehbar-e-Taleem should be actually residing at the time of his/her appointment in the village in which the deficiency has been assessed and therefore any view to the contrary would not be in conformity with the objectives and the concept of the scheme. 17. Now therefore it is ordered the following Explanation shall add to class (i) of the eligibility clause in the Government order No. 396'/Edu of 2000 dated 28/4/2000. Explanation—The word belong and "local Candidate" shall mean that the candidate to be appointed should be actually residing at the time of appointment in the village where the appoinment is to be made". 18. Under the Govt. Order local candidate means that the candidate to be appointed should be actually residing at the time of appointment in the Village where the appointment is to be made. Thus under the said Government Order relevant date to determine eligibility on the basis of residence is the date of appointment. Admittedly the present petitioner was residing in the village on the date the selection process was complete as she has married a boy from the village daring the selection process. 19. In view of the said Govt.
Thus under the said Government Order relevant date to determine eligibility on the basis of residence is the date of appointment. Admittedly the present petitioner was residing in the village on the date the selection process was complete as she has married a boy from the village daring the selection process. 19. In view of the said Govt. Order and also the law laid down by the Division Bench in Mushtaq Ahmed Bhat's case I find the petitioner being more meritorious than the private respondent is entitled to get engagement. Petition allowed accord ingly.