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2013 DIGILAW 601 (JK)

Parveen Singh Sumbria v. State

2013-10-03

DHIRAJ SINGH THAKUR

body2013
1. The Chief Education Officer, Udhampur, issued an advertisement notice dt. 26.3.2010, inviting applications for filling up the post of ReT in Primary School, Thathi, in revenue village Pathwar. Petitioner claiming to possess the minimum qualification as prescribed in the advertisement notice as also claiming to be a resident of village Pathwar, applied for the said post. 2. The cause of action accrued to the petitioner when the official respondents selected private respondent No. 5, against the aforementioned post. The petitioner has filed the present petition stating that he possessed better merit than the said private respondent but despite that, his claim has been ignored. 3. Objections were filed to the writ petition in which a stand was taken that the petitioner was not a resident of village Pathwar. It was stated that the Village Level Committee who had earlier certified that the petitioner was a resident of village Pathwar, upon realizing its mistake, had sought cancellation of the said certificate/verification in which recommendations had been made in favour of the petitioner by the said Committee. It is stated that the petitioner, in fact, is a resident of village Amara. 4. Mr Bhardwaj, learned Senior counsel, appearing for the petitioner, further brought to the notice of the court that the petitioner had earlier applied for engagement as ReT in village Amara, showing himself to be a resident of the said village. He was, however, not selected on account of his lower merit. 5. Mr. Ravinder Sharma, learned AAG, appearing for the official respondents, also produced before the court the panel prepared by the Zonal Education Officer concerned, reflecting the name of Arti Rajput, wife of the petitioner Parveen Singh prepared for engagement as ReT in village Amara. In this panel, the wife of the petitioner has been shown to be the resident of village Amara. 6. The official record produced by Mr. Sharma, learned AAG, which includes the application form of the petitioner shows that the petitioner claims his permanent residential area at village Pathwar and in the same column reflects his present residence at Amara. A copy of ID card is also on record, which shows the address of the petitioner as village Amara. 7. The official record produced by Mr. Sharma, learned AAG, which includes the application form of the petitioner shows that the petitioner claims his permanent residential area at village Pathwar and in the same column reflects his present residence at Amara. A copy of ID card is also on record, which shows the address of the petitioner as village Amara. 7. Mrs Sindhu Sharma, learned counsel for the petitioner has, however, filed a supplementary affidavit on behalf of the petitioner wherein certain documents have been referred to with an effort to show the residence of the petitioner as village Pathwar. 8. During the course of the arguments, however, counsel for the petitioner submitted that the petitioner maintains residences at both the places i.e. village Pathwar as also in village Amara, but was currently residing in village Pathwar. 9. Heard learned counsel for the parties. 10. One of the basic requirement for engagement of ReT is that a candidate should be actually residing in the village, where the appointment is sought to be made. With reference to the official record, which includes the application form filled up by the petitioner himself, it will be seen that the residence of the petitioner, as noticed above, has been shown as "village Pathwar A/P Amara", and in the voter ID card, which has been submitted by the petitioner in proof of his residence, the same is shown as "Amara". The fact that the petitioner in the past, as also his wife had been applying for engagement as ReT in village Amara, is a factor which goes a long way to establish that the actual residence of the petitioner is village Amara and not Pathwar. 11. The argument of the counsel for the petitioner that, in fact, the petitioner is a resident of village Pathwar and that he had erroneously projected himself to be a resident of village Amara, should not disentitle him from consideration for engagement in a village where he is actually residing, cannot come to the rescue of the petitioner in as much as, the petitioner cannot defeat the policy of the Government for engagement of ReTs on the basis of residence depending upon his own convenience nor can the petitioner be permitted to approbate and reprobate regarding the factum of his residence. Reference in this regard can be made to the judgment of the Apex Court in the case of Joint Action Committee of Air Line Pilots' Association of India (Alpai) and others v. Director General of Civil Aviation and others, (2011) 5 SCC 435 , wherein the Apex Court in paragraph 12 of the judgment, observed as under:- "12. The doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. (Vide Babu Ram v. Indra Pal Singh, (1998)6 SCC 358 , P.R. Deshpande v. Maruti Balaram Haibatti and Mumbai International Airport (P) Ltd v. Golden Chariot Airport, (2010) 10 SCC 422 ." 12. The petitioner had a right to elect and decide which residence was his actual residence and apply for consideration on the basis thereof. He having elected his residence as village Amara, applied for consideration in the said village in the earlier selection process but failed. Even his wife applied from the said village. The petitioner, therefore, cannot be permitted to now claim his actual residence as village Pathwar and seek consideration against the post of ReT in the said village. 13. This petition is, accordingly, found to be without merit and is dismissed along with connected CMA. 14. Records be returned to Mr. Ravinder Sharma, AAG.