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2012 DIGILAW 446 (JK)

Asmat Rasool v. State Of J&K

2012-07-24

MUZAFFAR HUSSAIN ATTAR

body2012
(Oral) 1. Advertisement Notice dated 15th December, 2011 was issued by the Zonal Education Officer, Bandipora, whereunder applications were invited from the eligible candidates of revenue village Sonarwani for engagement as R-e-T in newly sanctioned Primary School, Arampora Sonarwani. Two posts of R-e-T were to be filled up. Petitioner as also other eligible candidates responded to the said Notification. Merit panel was prepared, in which petitioner on the basis of her merit figured at serial no. 4. After the panel was prepared and after finding that she cannot be appointed, the petitioner filed this writ petition challenging the Advertisement Notice on the ground that the school has been sanctioned for Arampora Sonarwani which is a habitation and conforms to twin requirements as provided in the Explanation appended to Government Order No. 288-Edu of 2009 dated 8th April, 2009 and accordingly sought quashment of the Advertisement Notice. It is further prayed that the zone of consideration for making selection/appointment shall be confined to habitation Arampora Sonarwani and selection/appointment shall not be made by taking the revenue villages as zone of consideration. 2. On notice issued, respondents have filed reply affidavit/objections. 3. Learned counsel for the petitioner in a bid to satisfy the Court that Arampora is a habitation and satisfies the twin requirements as provided in the Explanation eppended to Government Order No. 288-Edu of 2009 dated 8th April, 2009. Learned counsel in this behalf referred to documents placed on writ record as also the objections filed by the respondents. Perusal of the Annexure-C of the writ petition reveals that Arampora has a population of 300 persons and the distance from Arampora to P/S Molvi Mohalla Sonarwani is one kilometer. Learned counsel made specific reference to Annexure-R2 of the objections filed by the respondents 1 to 4, which is the report of the Assistant Executive Engineer PWD (R&B) Sub Division Bandipora and at Serial no. 1, it is stated that the distance between the Sonarwani and Arampora Chowk is 1043 RM. Learned counsel submitted that in view of the aforestated factual position, the Arampora does satisfy the twin requirements as provided in the Explanation appended to Government Order No. 288-Edu of 2009 dated 8th April, 2009. 1, it is stated that the distance between the Sonarwani and Arampora Chowk is 1043 RM. Learned counsel submitted that in view of the aforestated factual position, the Arampora does satisfy the twin requirements as provided in the Explanation appended to Government Order No. 288-Edu of 2009 dated 8th April, 2009. Learned counsel also referred to objections filed by the private respondents and invited the attention of the Court to Communication dated 15th July, 2011, sent by Dy Director (P&S) Directorate of School Education, Kashmir to Chief Education Officer, Bandipora, which Communication was sent to clarify some position in SWP. No. 1863/2009. The Deputy Director had informed the Chief Education Officer, Bandipora that the distance between two habitations be measured from center of the village. Learned counsel also referred to one of the documents produced by private respondents which is captioned as "objectives and Organization of the Fourth All-India Educational Survey" in which at XI, it has been stated that distance between two habitations or between a school and a habitation is the convenient walking distance between the central points of the two habitations, or the school and the central point of a habitation. It has been stated that if, there are two habitations and aerial distance or the distance as the crow flies is one kilometer, but the actual convenient walking distance by road or path is 1.5. Kilometer, then the distance between the two habitations will be the walking distance i.e. 1.5. Kilometer. Learned counsel accordingly prayed for allowing the writ petition. 4. Learned counsel for the respondents submitted that the writ petition is not maintainable as the petitioner responded to the Advertisement Notice and subjected herself to selection process and after finding that she cannot be appointed on the basis of her low merit she approached the Court by filing the present writ petition. Learned counsel submitted that Arampora does not conform to twin requirements as provided in the Explanation appended to the Government Order No. 288-Edu of 2009 dated 8th April, 2009. 5. The petitioner has placed on record document Annexure-C, which though, shows that the population of Arampora is 300, but it further shows that the distance between Arampora and PS Molvi Mohalla Sonarwani, is one Kilometer. This document placed on record by the petitioner does not show that the distance between two habitations is one Kilometer. 5. The petitioner has placed on record document Annexure-C, which though, shows that the population of Arampora is 300, but it further shows that the distance between Arampora and PS Molvi Mohalla Sonarwani, is one Kilometer. This document placed on record by the petitioner does not show that the distance between two habitations is one Kilometer. On the basis of this document placed on writ record by the petitioner, what emerges is that Arampora cannot be said to be habitation in terms of Government Order No. 288-Edu of 2009 dated 8th April 2009. The contention of learned counsel for the petitioner that Deputy Director, sent a Communication to Chief Education Officer, Bandipora in a different case, wherein the said authority was advised to take the distance from the center of the habitation, cannot be accepted. The Deputy Director had no power to supersede Government order and this Communication will not bind the authorities for making selections in the manner suggested by Deputy Director. The Government Order No. 288-Edu of 2009 dated 8th April, 2009 for convenience is taken note of; "Government of Jammu and Kashmir Civil Secretariat Education Department Subject: Rehbar-e-Taleem Scheme to ensure peoples participation in the Management of Education at grass roots level. Government Order No. 288-Edu of 2009 Dated 8th April, 2009. The following explanation is added below Eligibility condition No. 1 laid down in Government Order No. 396 of Education 2000 dated 28th April, 2000 (Rehbar-e-Taleem Scheme):- Explanation:- "Village means a Revenue village. However, where habitations in a Revenue Village are scattered, a candidate belonging to a habitation, popularly known as a village, at least, one Kilometer away from other habitation and having a population of more than 300 persons., shall be entitled to seek engagement as Rehber-e-Taleem in the local school." The above explanation shall have prospective effect. By order of the Government of Jammu and Kashmir. Sd/ Secretary to Government /tr> Education Department..." What is mentioned in the explanation appended to the aforementioned Government Order is that in order to qualify for being declared as habitation, besides having population of 300 persons, it must be one Kilometer away from the other habitation. The distance between two habitations cannot be measured from the center of the habitation nor from the location of the school located in the habitation. The distance between two habitations cannot be measured from the center of the habitation nor from the location of the school located in the habitation. The expression "away from other habitation" would mean that the distance is to be measured from the border of one habitation to the border of another habitation. It is admitted that in the event the distance between two habitations is measured from their borders, then the Arampora cannot qualify for being declared as habitation in terms of Government Order No. 288-Edu of 2009 dated 8th April, 2009. As already stated the distance in view of expression used in the Government Order No. 288-Edu of 2009 dated 8th April, 2009 viz. "away from other habitation", has to be measured only from border of one habitation to border of another habitation. The reference made to "Objectives and Organization of the Fourth All-India Educational Survey" is of no help to the petitioner, inasmuch as, the posts are created under Serva Shiksha Abiyan (SSA) Scheme and the Government by issuing Government orders from time to time is regulating the said scheme. The aforementioned document, as such, cannot be pressed into service, even otherwise, it does not render any assistance to the claim of the petitioner. It takes into account the walking distance which does not apply to the SSA scheme. The Government Order No. 288-Edu of 2009 dated 8th April, 2009, till such time either it is rescinded or modified will hold the field. Since the petitioner has failed to show that Arampora is a habitation in the manner it has been provided in Explanation appended to the Government Order No. 288-Edu of 2009 dated 8th April, 2009, this petition cannot succeed. Otherwise also, the petitioner has subjected herself to selection process and has not challenged the Advertisement Notice immediately after it was published. Having taken chance on the terms and conditions of the said Advertisement Notice to seek selection and appointment, the petitioner is estopped from filing this petition. For the above stated reasons this petition being meritless is accordingly dismissed. Interim direction shall also stand vacated.