JUDGMENT : Ali Mohd. Magrey, J. 1. Petitioner questions selection/appointment of respondent No. 5 as ReT in Primary School Jaferpora/Akberpora village Danew Kandi-Marg, D.H. Pora issued in terms of order Nos. CEO/K/ReT/5165-66/12 dated 20.07.2012 and ZEO/DHP/986-89/12 dated 21.07.2012. Brief Facts: Briefly stated the petitioner's case is that the respondents have invited the applications from eligible candidates having minimum qualification of 10+12 being residents of revenue village/habitation for engagement of ReTs in various upgraded Primary Schools, including Primary School in Akbarpora/Jafferpora revenue village Danew Kandimarg. 2. It is submitted that the notification for the aforesaid purpose was published in "Greater Kashmir" in its issue dated 12.05.2012. It is submitted that in the said notification it is provided that if candidates are not available in the said revenue village, the selection will be extended to Panchayat Halqa. 3. It is submitted that pursuant to the advertisement notice, petitioner also applied for selection and appointment as ReT having qualification of M.A. and B.Ed. 4. It is submitted that there were as many as 11 candidates who appeared for the selection against the two posts advertised for engagement as ReT in Primary School at Akbarpora/Jatfferpora in revenue village D.K. Marg. It is further submitted that the list of eligible candidates duly signed by the Members of Village Education Committee and the Zonal Education Officer was notified. It is submitted that respondents ignored the merit position of the petitioner and formulated the panel/select list proposing appointment of one Imtiyaz Ahmad Malik and respondent No. 5 (Javid Ahmad Malik), against the available two posts. 5. It is submitted that the petitioner was relegated to third position without any justification to provide room on extraneous considerations for appointment of respondent No. 5. 6. It is submitted that respondent No. 4 has adopted unique yardstick for selecting the candidates by showing them as local candidates which is a nomenclature unknown to the selection in question and is contrary to the prescribed norms and the contents of the advertisement notice. 7. It is submitted that mischief of selecting the candidate of respondent No. 5 with inferior merit, has been made on the basis of a certificate issued by Tehsildar D.H. Pora under endorsement No. 376/PPRC's/MM dated 16.09.2010, more than two years before the posts were advertised. 8. 7. It is submitted that mischief of selecting the candidate of respondent No. 5 with inferior merit, has been made on the basis of a certificate issued by Tehsildar D.H. Pora under endorsement No. 376/PPRC's/MM dated 16.09.2010, more than two years before the posts were advertised. 8. It is submitted that the certificate does not support to the case of respondent No. 5 that Akbarpora where he is shown to be residing is a habitation within the meaning of Govt. order No. 288-Edu. of 2009 dated 08.04.2009. 9. It is submitted that the respondents have either misread the certificate or have misunderstood the Govt. order supra and have thereby marred the merit of petitioner. 10. It is submitted that the contents of the advertisement notice shows that if suitable candidates are not available in the revenue village, the selection will be extended to Panchayat Halqa. This being the condition of the advertisement, the question of selecting a local candidate or providing preference to the candidate of an imaginary habitation is on its face an arbitrary exercise liable to be quashed. 11. It is submitted that respondents published the proposed tentative list proposing the engagement of respondent No. 5 as ReT, the petitioner filed objections to the select list bringing it to the notice of the respondents that D.K. Marg is a compact village comprising of different Mohallas but none of these Mohallas qualify for being identified as a separate habitation within the meaning of Govt. Order No. 288-Edu. of 2009 dated 08.04.2009. 12. It is submitted that the objections were not considered and the petitioner thereafter approached the village Panchayat for clarification and the position about the residence of competing candidates including those selected. 13. It is submitted that Sarpanch, Panchayat Halqa D.K. Marg, on the application of the petitioner issued a certificate wherein he shows that Akbarpora/Jaferpora is not a habitation. It is submitted that there are only eight families by cast "Akbar" and three families by cast "Jafer" residing in these Mohallas and both these Mohallas lie in the heart of the revenue village D.K. Marg. 14. It is submitted that the process of verification of the genuineness of the PPRC of respondent No. 5 was initiated by the Assistant Commissioner (Revenue) Kulgam. It is submitted that the Assistant Commissioner had initially recommended that selection process shall be put at hold till verification is completed. 14. It is submitted that the process of verification of the genuineness of the PPRC of respondent No. 5 was initiated by the Assistant Commissioner (Revenue) Kulgam. It is submitted that the Assistant Commissioner had initially recommended that selection process shall be put at hold till verification is completed. It is submitted that the Assistant Commissioner (Revenue) conducted the spot inspection and rightly observed that Akbarpora and Jaferpora are constituent Mohallas of D.K. Marg and these Mohallas do not qualify for separate habitations in terms of Govt. Order No. 288 Edu of 2009. 15. It is submitted that petitioner being the permanent resident of village D.K. Marg as is reflected in the certificate issued by Tehsildar on 21.05.2012 and having superior merit has a right to be selected against one of the two posts advertised for engagement as ReT in the Primary School D.K. Marg in Mohalla Jaferpora. 16. It is submitted that respondents did not take any notice of the report of Assistant Commissioner (Revenue) and proceeded with the selection leading to the appointment of Imtiyaz Ahmad Malik and respondent No. 5. Feeling aggrieved of the action of respondents, the petitioner challenge the selection/appointment of respondent No. 5 on the facts and grounds mentioned hereinabove in the instant petition. 17. On notice respondents 1 to 4 appeared and filed their objections wherein it is submitted that none of the rights of petitioner has been infringed or violated by the action of the respondents, therefore, submits that the writ petition is not maintainable and seeks its dismissal. 18. Respondent No. 5 has separately filed objections questioning the maintainability of the writ petition with reference to challenge to the tentative selection list being subject to objections, as such, claiming that the writ petition is premature, therefore, be dismissed. It is further submitted that petitioner having, participated in the selection process on the terms and conditions of the advertisement notice as also on the basis of set norms/scheme and having failed in the process of selection cannot turn round and challenge the selection of respondent No. 5 on any count, therefore, on this ground also seeks dismissal of the writ petition. Besides, ld. Besides, ld. counsel for the respondent No. 5 has submitted that the selection/appointment has strictly been made in terms of note appended to the advertisement notice as the respondent a candidate belongs from the habitation for which the school stands sanctioned has been selected in terms of norms set down by government vide Govt. order No. 288- Edu of 2009 dated 08.04.2009. 19. It is further submitted that respondent Tehsildar concerned in terms of certificate issued vide No. 376/PPRC's/MM dated 16.09.2010 has declared respondent No. 5 belonging to Mohalla Akbarpora habitation of revenue village DH Pora which certificate the petitioner has not questioned/challenged before the appropriate forum, therefore, in absence of declaring the certificate as in effective, no relief can be granted to the petitioner. 20. Respondent No. 5 also filed supplementary affidavit wherein it is submitted that the subject matter of the writ petition is the post of ReT which has been identified in Primary School Akbarpora. It is submitted that as per the advertisement the post has been sanctioned for the habitation, primary school Akbarpora. It is submitted that the respondent No. 5 is resident of Akbarpora, which fact is substantiated by the voter list of Noorabad constituency and the respondent No. 5 figures at serial No. 69 of the said voter list. It is further submitted that Akbarpora/Jafferpora is a separate habitation as has been certified by the concerned Tehsildar. It is submitted that as per the certificate issued by Tehsildar D.H. Pora, Akbarpora is a habitation comprising of three hundred souls and is at a distance of 1 Km away from the Middle School. It is submitted that Akbarpora is a separate habitation, the respondent No. 5 was selected and appointed as ReT in Primary School Akbarpora where he is presently residing. The respondent No. 5, in view of the above submissions seeks dismissal of the writ petition. 21. Heard learned counsel for the parties, perused the records and considered the matter. 22. The important contention as raised by Mr. Lone learned appearing counsel for the petitioner is that the official respondents have not made the selection in tune with Government order No. 398-Edu of 2000 dated 28.04.2000 read with Government Order No. 288 Edu of 2009 dated 08.04.2009 as also on the basis- terms and conditions of the advertisement notice dated 12.05.2012. Mr. Lone learned appearing counsel for the petitioner is that the official respondents have not made the selection in tune with Government order No. 398-Edu of 2000 dated 28.04.2000 read with Government Order No. 288 Edu of 2009 dated 08.04.2009 as also on the basis- terms and conditions of the advertisement notice dated 12.05.2012. Mr. Lone Id counsel has strengthen his claim with reference to the conditions of the advertisement notice which provide that the candidate should be possessed of minimum qualification 10+2 or above from revenue village DK Marg/habitation P.S. Akbarpora/Jaferpora for engagement of ReT in newly Primary School. However the selection be extended to Panchayat Halqa only, if there is short fall of the candidate in the concerned revenue village. Mr. Lone submits that official Respondents were required to consider the candidates from revenue village after fulfilling the conditions of explanation appended to Government order No. 398 of Edu 2000 dated 28.04.2000 read with Government order No. 288 Education of 2009 dated 08.04.2009 as the alleged habitation claimed by respondent No. 5 is not one Km away from another habitation and does not have the population of more than 300 persons as per the admission of respondent No. 5. 23. The question which arises for consideration is as to whether Akbarpora/Jafferpora 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 kilometre away from others and having a population of more than 300 persons, shall be entitled to seek engagement as Rehbar-e-Taleem in a local school." Two conditions are to be satisfied, (1) Habitation must be one kilometre away from other Habitation, and (2) the Habitation must have population of 300 souls." 24. Mr. Lone Id appearing counsel for the petitioner has invited the attention of the Court to the certificate issued by concerned Tehsildar on 16.09.2010 and laid emphasis on the contents of the certificate with reference to the declaration on the ground that said Tehsildar has in violation of the Government Policy declared the petitioner belonging to habitation Mohalla Akbarpora when the contents of the certificate reveal that there are only less than 300 souls and the distance of the habitation is less than one Km from middle school. The basis on which Akbarpora/Jafferpora has been declared as Habitation by Tehsildar concerned does not fulfill the conditions constitute Habitation in terms of Government order supra, therefore, the declaration is against the Government policy. 25. The contention of Mr. Lone that where the habitation of revenue village are scattered, a candidate belonging to a habitation popularly known as a village, at least, one kilometre away from other habitation and having a population of more than 300 persons, shall be entitled to seek engagement as ReT in a local school. The area which is not declared, as such, but is fulfilling the condition of habitation the engagement as ReT is to be made on the basis of the revenue village and in case there is no candidate available in the revenue village then the benefit is to be extended to Panchayat Halqa, has substance. The only conclusion which can be drawn is that habitation for which respondent No. 5 has been selected as ReT does not fulfilling the conditions laid down in Government order No. 288-Edu of 2009 dated 8.4.2009 as the area has less than 200 population as certified by the Sarpanch of the area and also by Ration Dealer forming annexure A-6. 26. Mr. S.A. Makroo, Id appearing counsel for respondents has questioned the maintainability of the writ petition, on the ground that the petitioner has participated in the selection and has become a failure, therefore, cannot turn round and challenge the selection. Mr. S.A. Makroo, Id counsel has referred to and relied upon the Supreme Court judgments reported in 2008 Legal Eagle (SC) 1519; 2007 STPL(LE) 39040 SC. 27. The issue involved in this writ petition is not with reference to comparative merit of the candidates having failed in selection but relates a very basis of the claim with reference to belonging to a habitation of the respondent No. 5, which habitation does not fulfil the conditions of Government order No. 288 Edu of 2009 dated 08.04.2009, as the area has less then 200 population, as such the judgment referred to and relied upon by the Mr. S.A Makroo in the facts and circumstances of the case are not applicable. S.A Makroo in the facts and circumstances of the case are not applicable. It be noticed that at the time of consideration of the matter on motion hearing this court in terms of order dated 23.08.2012 stayed the selection of respondent No. 5 till next date of hearing and which order has remained in force from time to time till the writ petition got dismissed for want of prosecution on 06th Feb. 2015. The writ petition was again restored to its original number vide order dated 23rd Feb. 2015 and order got revived. 28. Mr. Lone, Id counsel submits that despite order of stay passed by this court the respondent No. 5 is continuing and drawing the salary which amounts violation of the court order. 29. Since the writ petition is finally disposed of, therefore, the interim orders will merged with the final order. In the peculiar circumstances of the case, the writ petition is allowed in the following manner: "(i) By writ of certiorari Selection/appointment of respondent No. 5 made in terms of order No. ZEO/DHP/986-89/12 dated 21.07.2012 issued by Zonal Education Officer D.H. Pora and the order issued by the Chief Education Officer, Kulgam under No. CEO/K/ReT/5165-66/12 dated 20.07.2012 is hereby quashed with direction to Zonal Education Officer concerned to recommend the petitioner who is now in merit list for engagement of ReT belonging to village D.K. Marg. (ii) The process of engagement shall be finalized within a period of one month from the date copy of this order is served. (iii) By writ of mandamus, respondents are directed to recover the salary drawn by respondent No. 5 in violation of the Court order dated 23.08.2012."