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2015 DIGILAW 279 (JK)

Syed Nazia Jan & Anr. v. State of J&K & Ors.

2015-05-29

ALI MOHAMMAD MAGREY

body2015
JUDGMENT Ali Mohammad Magrey, J. – Petitioners are aggrieved of the Tentative Select Panel of candidates to be engaged as Rahbar-e-Taleems in the newly upgraded Primary School, now Middle School, at Shistergam, Qazigund, under SSA Scheme, published by CEO, Anantnag, in the Greater Kashmir in its issue dated 03.06.2013. They have also prayed for Mandamus to command the respondents to consider and engage the petitioners on the basis of their merit. 2. The relevant facts, in brief, may be noted. The Zonal Education Officer, Qazigund, issued advertisement notice no. DIPK-1221 dated 03.05.2013 inviting applications on plain paper from educated youth of village Shistergam on habitation basis having educational qualification of 10+2 and above. It was provided that only those candidates having Mathematics and Science background should apply. The cut off date for applying and determining the merit/qualification/eligibility was fixed as 07 days after the publication of the said advertisement notice. It was also provided therein that the applications must be accompanied by (i) Date of Birth Certificate; (2) Qualification Certificates; (3) Permanent Resident Certificate; (4) Present Permanent Resident Certificate; (5) two passport size photographs; and (6) Unmarried Certificate. 3. The petitioners, claiming to be fulfilling the prescribed eligibility criteria, state to have submitted their respective applications. However, owing to their non-possession of Present Permanent Resident Certificates, their application forms were not accepted. It is stated that Patwaries were on strike. They state to have approached the Tehsildar, Doru, who, in terms of his note issued under endorsement no.68/mm dated 08.05.2013, forwarded the applications of the petitioners to the Zonal Education Officer, Qazigund. In the said note, the Tehsildar wrote to the Zonal Education Officer that the field staff, i.e., Patwaries and Girdawars were on strike, therefore, the case could not be processed. He further mentioned therein that a circular regarding the matter had been issued in this behalf by the Deputy Commissioner, and requested the Zonal Education Officer to act upon the circular/instructions. The petitioners also attached with their applications the certificates issued in their favour by Sarpanch, Panchayat Halqa AN-261, Shistergam, Block Qazigund, certifying that the petitioners were presently residing in village Shistergam, yet, according to them, their applications were not accepted. Ultimately, it is averred that the petitioners despatched their applications by registered post within the time allowed by the advertisement notice. However, they were not considered for selection despite being more meritorious than the private respondents. 4. Ultimately, it is averred that the petitioners despatched their applications by registered post within the time allowed by the advertisement notice. However, they were not considered for selection despite being more meritorious than the private respondents. 4. The case of the petitioners is that they belong to the habitation Shistergam; they duly applied for their consideration; their applications were not entertained; they are more meritorious than the candidates figuring in the select list and, therefore, have a preferential claim for their selection and engagement on the posts in question. 5. The official and the private respondents have filed their respective replies. The official respondents in their objections have stated that only two candidates, namely, the selectees - private respondents herein - applied for the two posts upto the cut off date. It is averred that 'the office of answering respondent received the applications of petitioners (wrongly mentioned as private respondents) on 11.05.2013 after the cut off date through post office Qazigund registered on the same date'. The panel of eligible candidates is stated to have been framed on 14.05.2013. It is further stated that the petitioners (wrongly mentioned as private candidates) belong to a separate habitation Shaikhpora, not to the habitation Shistergam and the two habitations are qualifying the norms in terms of Government order no.288 of 2009. The stand of the official respondents is that the School in question falls within village Shistergam and that the petitioners belong to a different habitation, namely, Shaikhpora and a separate Middle School existed in village Shaikhpora. Since the panel was framed on habitation basis, the petitioners could not be empanelled. 6. The private respondents/selectees in their reply have laid stress only on the residence part of the petitioners. They have placed numerous documents on record to demonstrate that the petitioners belong to Shaikhpora habitation and not Shistergam. 7. I have heard learned counsel for the parties, perused the material brought on record and considered the matter. 8. The whole controversy, as seen from the respective assertions made by the parties, pivots around the residential aspect of the petitioners. Their merit is not in question. It is also not anybody's case that the petitioners' applications could not be entertained on account of the fact that they did not have the Present Permanent Residence Certificates, issued by the competent authority, attached with their application forms. Their merit is not in question. It is also not anybody's case that the petitioners' applications could not be entertained on account of the fact that they did not have the Present Permanent Residence Certificates, issued by the competent authority, attached with their application forms. This seems to be so because of the Circular issued by the Deputy Commissioner in that behalf reference to which had been made by Tehsildar, Doru in his note dated 08.05.2013 requiring the Zonal Education Officer to accept the applications of the petitioners. 9. However, a feeble attempt has been made by the official respondents to show that the applications of the petitioners were received after the cut off date. However, such assertion is falsified by the relevant condition prescribed in the advertisement notice. It was prescribed therein that "the cut off date for applying determining the merit/qualification/eligibility has been fixed as 07 (seven) days after the publication of the advertisement Notice". It is to be borne in mind that for computation of the period of seven days, the first day would have to be excluded. To put in simplistic terms, the first day would be completed only on 05.05.2013 and the seventh day would be completed on 11.05.2013. The advertisement notice, admittedly, was published on 04.05.2013. Counting seven days 'after' 04.05.2013, the cut off date would fall on 11.05.2013. That means the applications could be made upto the end of office hours on 11.05.2013. 10. It is admitted that the applications of the petitioners by registered post were received in the office of Zonal Education Officer on 11.05.2013. It does not, therefore, lie in the mouth of the official respondents that the applications of the petitioners were received after the cut off date. 11. Coming to the pivotal point involved as to the residence of the petitioners, there are rival assertions made by the parties which give rise to disputed questions of fact. As mentioned earlier, there are number of documents placed on record by the respective parties to prove their point. For instance, the petitioners, in order to establish that they reside in village Shistergam, have placed on record page no.26 of the voter list of Shistergam. There exist five names holding one and the same Khana no. 56 in the said voter list. These names are: At is shown. This very Khana no. For instance, the petitioners, in order to establish that they reside in village Shistergam, have placed on record page no.26 of the voter list of Shistergam. There exist five names holding one and the same Khana no. 56 in the said voter list. These names are: At is shown. This very Khana no. 56, is shown against four other entries made in the voter list. Their particulars as given therein are as under: (i) S. No. 698, Syed Muhammad Syed Andrabi, S/o Syed Shah Sahib Andrabi, Khana no. 56; (ii) S. No. 699, Syed Raashid Bano, W/o Syed Muhammad Sayed Andrabi, Khana no. 56; (iv) S. No. 700, Syed Rauf Ahmad, S/o Syed Muhammad Sayed Andrabi, Khana no. 56; (iv) S. No. 701, Syed Tafeema Jan daughter of Syed Muhammad Syed Andrabi, Khana no. 56 (v) S. No. 702, Syed Anjum Gazala, D/o Syed Muhammad Sayed Andrabi, Khana no.56. It is thus shown that the persons mentioned from serial nos. 698 to 702 of the voter list belong to one house-hold and family. Obviously, the persons shown at serial nos. 698 and 699 are parents of the persons shown at serial nos. 700 to 702. The person shown at serial no.701 is stated to be sister of the persons shown at serial nos. 700 and 703. The person shown at serial no.703 is Syed Anjum Gazala, i.e., the petitioner no.2 herein. The private respondents state that sister of the petitioner, Syed Anjum Gazala, namely, Syed Tafeema Jan, figuring at serial no.701 of the voter list was appointed as Rahbar-e-Taleem in Middle School, Sheikhpora. This is borne out by annexure G2 appended to the objections filed on behalf of respondents 7 and 8, which is a copy of the Order No. 903/DSEK of 2011 dated 06.05.2011 issued by the Director, School Education, Kashmir endorsed by the Chief Education Officer Anantnag, under endorsement no. CEO A/Per 3658/11 dated 19.05.2011, to the Zonal Education Officer, Qazigund, for his information and necessary action. It gives the particulars of the regularised R-e-T as Syed Tafheem; Parentage: Syed Mohd Syed; Residence: Sheikhpora; School in which engaged: MS Sheikhpora; Qualification: 10+2; Date of Birth: 10.10.1986; Date of engagement: 29.10.2009; and Date of regularisation: 29.10.2010. CEO A/Per 3658/11 dated 19.05.2011, to the Zonal Education Officer, Qazigund, for his information and necessary action. It gives the particulars of the regularised R-e-T as Syed Tafheem; Parentage: Syed Mohd Syed; Residence: Sheikhpora; School in which engaged: MS Sheikhpora; Qualification: 10+2; Date of Birth: 10.10.1986; Date of engagement: 29.10.2009; and Date of regularisation: 29.10.2010. According to respondents 7 and 8, it means that the sister of petitioner no.2 herein had sought her consideration, and was, in fact, appointed as ReT in MS Sheikhpora; therefore, the petitioner could not now seek her consideration in habitation Shistergam. There seems to be some plausibility attached to the contention, but it is not known whether this appointment of petitioner no.2's sister was made on habitation basis or any other basis. Nonetheless, above being the position, a serious doubt arises about the actual present permanent residence of the petitioners and about their claim to be residing in habitation Shistergam. In any case, such documents cannot be relied upon by this Court to come to a definite conclusion. It is reiterated that there are other documents brought on record which strengthen the doubt. On the other hand, the page no.26 of the voter list depicts its caption as "Juz no. 2, Shistergam" meaning thereby that the persons whose names are recorded therein are residents of Shistergam. 12. This Court, it is mentioned at the cost of repetition, cannot hold an enquiry into the disputed facts. At the same time, the Court is conscious of the fact that it costs heavily for students of the Schools when the teaching staff is not available despite the Government having done its part in that behalf. Two years have already elapsed since the date the process for filling up of the two posts of teachers was commenced. If the petitioners are left to the civil remedy, the resolution of the controversy is likely to be limitlessly prolonged. That would result in irreparable loss to the students of the School in terms of their studies. In the circumstances, I think it would be appropriate to refer the matter to the Deputy Commissioner concerned for ascertainment and determination of the residence of the petitioners. That would result in irreparable loss to the students of the School in terms of their studies. In the circumstances, I think it would be appropriate to refer the matter to the Deputy Commissioner concerned for ascertainment and determination of the residence of the petitioners. Since the result of the writ petition wholly hinges on the determination of the question of residence of the petitioners, this petition is, therefore, disposed of by providing as under: (i) The Deputy Commissioner, Anantnag, will personally hold an enquiry to ascertain and determine whether or not the petitioners herein are presently permanent residents of village Shistergam, where the two posts of ReTs were required to be filled in on habitation basis in Middle School, Shistergamli, and, therefore, entitled to be considered for selection/empanelment for engagement on the said two posts; (ii) The Deputy Commissioner in that regard shall hear the petitioners as well as the respondents who shall be free and at liberty to produce any document or evidence before the Deputy Commissioner in support of their respective pleas and contentions, and the Deputy Commissioner shall give due consideration to such evidence; (iii) The Deputy Commissioner shall record a definite finding of fact as to the residence of the petitioners and forward the same directly to the Chief Education Officer, Anantnag, requiring him to take further necessary action pursuant thereto. It is made clear that in the event the claim of the petitioners is falsified, in that event the Chief Education Officer will proceed with select panel. However, if the claim of the petitioners is established, the Chief Education Officer will take steps to consider the candidature of the petitioners as on 11.05.2013 and draw up afresh panel on the basis of merit of the competing candidates as on 14.05.2013, the date the earlier panel is said to have been drawn; (iv) Keeping in view the interests of the students of the School, it is expected that the Deputy Commissioner will demonstrate his bit of concern and consciousness about the matter and make an endeavour to finalise the enquiry within a period of one month from today, bearing in mind that outer limit of the time should not be forty days; (v) The writ petition is, accordingly, disposed of in terms of the above. The interim direction shall continue and stand merged in the report/recommendations that may be made by the Deputy Commissioner at the conclusion of the enquiry; (vi) The parties are left to bear their own costs.