JUDGMENT Vide advertisement notice issued by respondent No. 4 (Zonal Education Officer, D.H.Pora), applications have been invited from the eligible candidates for engagement as ReT teachers in newly created Primary Schools which include newly created school in Sofi Mohalla (Checki Watoo) revenue village Watoo where two vacancies are to be supplied. Eligible candidates from the concerned Habitation, in terms of the advertisement notice, are to be given preference. 2. Petitioner as well as respondent No. 5 have applied for being engaged. Petitioner apprehending exclusion in view of being inferior in merit to the respondent No. 5, filed writ petition(SWP) No. 1864/2010) projecting therein that Sofi Mohalla, where the school is situated, is not a separate Habitation within revenue village Watoo but is a small Mohalla with a population of less than three hundred persons and is at a distance of half a kilometer from others, therefore, does not constitute Habitation within the meaning of explanation as notified in terms of Government order No. 288-Edu of 2009. The said petition has been disposed of vide judgment dated 22.3.2011 with the direction to the Deputy Commissioner that he shall get the spot verification conducted through senior officer of the department so as to ascertain as to whether Sofi Mohalla is a separate Habitation, in the process both the parties shall be heard, based on such enquiry report, appointment shall be made. 3. In compliance thereto, Deputy Commissioner has appointed Assistant Commissioner(R) as enquiry officer who has submitted his report on 08.06.2011, wherein he has stated that the revenue village Watoo comprises of two parts Viz. Watoo and Checki Watoo, the distance between the two is approximately one kilometer. Then has stated in the report that in Checki Watoo, both petitioner as well as private respondent reside in different Mohallas, petitioner lives in Thoker Mohalla and the private respondent lives in Sofi Mohalla. The distance between Sofi Mohalla and Thoker Mohalla is about half a kilometer, separated by main road (Kulgam-Aharbal Road) and natural barrier in the form of rivulet. The distance from centre of village Watoo to Sofi Mohalla is more than one kilometer, just adjoining Sofi Mohalla is Magray Mohalla and these two Mohallas are contiguous and have no definite demarcation/natural barrier. The Sofi Mohalla and Magray Mohalla have the population of approximately 190 souls.
The distance from centre of village Watoo to Sofi Mohalla is more than one kilometer, just adjoining Sofi Mohalla is Magray Mohalla and these two Mohallas are contiguous and have no definite demarcation/natural barrier. The Sofi Mohalla and Magray Mohalla have the population of approximately 190 souls. Finally has concluded that Sofi Mohalla can be considered as a Habitation, both in terms of distance (over one kilometer from main Watoo village) and a population of over 300 souls including population of adjoining Mohalla. 4. Based on this report, the Deputy Commissioner has passed order dated 29.06.2011 holding therein that respondent Mohammad Azad Magray, who possesses certificate, is approved for appointment as ReT in newly created Primary School at Sofi Mohalla, the Chief Education Officer, Kulgam will issue formal order. 5. The respondent Chief Education Officer has issued a tentative select list showing respondent No. 5 selected, which has been challenged by medium of SWP No. 1475/2011. Vide interim direction dated 16.07.2011, tentative selection of respondent No. 5 was directed not to be given effect till next date before the Bench. The direction has remained to be extended, as a result thereof engagement order in favour of respondent No. 5 has been issued on 18.07.2011. 6. Confronted with the same position, the petitioner has filed the instant petition i.e. SWP No. 1925/2011 wherein engagement order favouring respondent No. 5 has been challenged. 7. The question which arise for consideration is as to whether Sofi Mohalla constitutes Habitation. In this connection explanation notified vide Govt. order No. 228-Edu of 2009 is relevant to be quoted: "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 s and having a population of more than 300 persons, shall be entitled to seek engagement as Rehbar-e-Taleem in a local school." 8. Two conditions are to be satisfied, (1) Habitation must be one kilometer away from other Habitations, and (2) the Habitation must have population of 300 souls. 9. The report of the enquiry officer (Assistant Commissioner (R)) is suggestive of the fact that the revenue village Wattoo comprises of two parts Viz. Watoo and Checki Watoo, Checki Watoo has three Mohallas i.e. Thoker Mohalla, Sofi Mohalla and Magray Mohalla.
9. The report of the enquiry officer (Assistant Commissioner (R)) is suggestive of the fact that the revenue village Wattoo comprises of two parts Viz. Watoo and Checki Watoo, Checki Watoo has three Mohallas i.e. Thoker Mohalla, Sofi Mohalla and Magray Mohalla. On the own showing of the enquiry officer, Sofi Mohalla and Magray Mohalla are contiguous whereas Thoker Mohalla is at a distance of half a kilometer from ofi Mohalla. The report is also suggestive of the fact that the population of both Sofi Mohalla and Magray Mohalla is approximately 190 souls. Both the aforesaid conditions are not satisfied i.e. Thoker Mohalla to which petitioners belongs is at a distance of half a kilometer from Sofi Mohalla and then population of Sofi Mohalla and Magray Mohalla is only 190 souls. 10. The Assistant Commissioner (enquiry officer) has hoodwinked the conclusion by stating that the Sofi Mohalla can be considered as a Habitation being at a distance of 1 kilometer from main Watoo Village, when three Mohallas of Checki Watoo together constitute a Habitation. The Deputy Commissioner has also ignored as to what are the essentials for declaring a Mohalla as a Habitation and appear not to have considered the report minutely, thus has acted arbitrarily. As a result of that wrong conclusion drawn, Chief Education Officer has issued the tentative select list followed by engagement order in favour of respondent No. 5. 11. In para 3 of the objections as filed by respondents No. 1 to 4, it is projected that the condition of distance from one Habitation to another has been relaxed by the State i.e. from 1 kilometer to 0.5 kilometer in the situations, such as: "Habitations are located on hill slopes; Small Habitations cut off by Nallah/ streams from the Habitations having schooling facility; Habitations separated by National Highway/ busy road. Habitations located in forest area. In support of thereof, learned AAG produced Govt. order No. 201 -Edu of 2008 dated 11.04.2008 but the said order would provide norms for opening/establishment of Primary Schools in a Habitation as referred to above. The eligibility of the candidates belonging to the Habitation and the position of the Habitation, as defined by the above referred explanation, has not undergone any change till date.
order No. 201 -Edu of 2008 dated 11.04.2008 but the said order would provide norms for opening/establishment of Primary Schools in a Habitation as referred to above. The eligibility of the candidates belonging to the Habitation and the position of the Habitation, as defined by the above referred explanation, has not undergone any change till date. For the purposes of eligibility of the candidates for being engaged as ReTs, the Habitation would mean the Habitation which satisfies the two requirements of the explanation as referred to above. Checki Watoo comprises of three Mohallas i.e. Thoker Mohalla, Sofi Mohalla and Magray Mohalla which together constitute "Habitation", so the candidates of all the three Mohallas were eligible. The petitioner could not be said to be ineligible in the said circumstances. Location of school in Sofi Mohalla will not divest the petitioner of his right when Sofi Mohalla and Thoker Mohalla together constitution Checki Watoo a Habitation. If Thoker Mohalla is excluded, then Sofi Mohalla and Magray Mohalla will not constitute a Habitation because firstly Thoker Mohalla is at a distance of ½ kilometer and secondly population of said two Mohallas is 190 souls.” 12. Learned counsel for the petitioner has filed a supplementary affidavit wherein he has categorically projected that though Sofi Mohalla and Thoker Mohalla are divided by a road but one candidate, namely Rukhsana Ara Jahan who figure at serial No. 1 in the panel and engaged in pursuance to same advertisement notice as against another vacancy, also resides on the other side of the road i.e. the same side where the petitioner resides, therefore, division by road will not effect the position of Thoker Mohalla being a part of the Habitation Checki Watoo. 13. Petitioner at Graduation level has secured 888 out of 1800 marks whereas respondent No. 5 has secured 879 out of 1800 marks, so admittedly petitioner was superior in merit, therefore, has superior right of engagement but has been deprived of such right in view of wrong conclusions drawn by Assistant Commissioner(R) (enquiry officer) and acted upon wrongly by the Deputy Commissioner. 14.
14. The respondent No. 5 has been engaged on 18.7.2011, means has been working for last more than one year, it would be too harsh to dislodge him when no fault is attributable to him but the engagement order in his favour has been issued at the cost of rights of the petitioner, therefore, engagement has to be quashed but for avoiding such harsh situation, the official respondents shall consider the petitioner for engagement as ReT against an available vacancy within a period of six weeks. In case of non-availability of vacancy, then engagement order of respondent No. 5 shall stand quashed and the petitioner shall be adjusted as against the same vacancy. 15. Both the petitions shall stand accordingly disposed of along with connected CMPs. ___________