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2017 DIGILAW 121 (JK)

Omesh Singh Katoch v. State of J&K

2017-03-08

B.S.WALIA

body2017
JUDGMENT : B.S. Walia, J. 1. Prayer is for the issuance of a Writ of Mandamus for commanding the respondents to treat the appointment/engagement of the petitioner with effect from 01.03.2011 with all consequential benefits as also for the issuance of a Writ of Mandamus for commanding the respondents to count the service of the petitioner as R-e-T teacher with effect from 01.03.2011 and to regularise him as general line teacher on completion of five years of service from said date along with all consequential benefits etc. Brief facts of the case are that in response to Advertisement Annexure-E, dated 07.12.2010 issued by respondent No. 3 inviting applications inter alia for two posts from permanent residents of Jammu & Kashmir for engagement as Rehbar-e-Taleem teachers under Sarva Shiksha Abhiyan at village level for rural areas and at ward level in case of urban areas in terms of Govt. Order No. 597-Edu of 2003, in respect of upgraded Primary School in District Ramban, petitioner applied for Educational Zone Ukhral, Village Pogal, Primary School Haroot. 2. It is the claim of the petitioner that the name of one Abdul Nasar was shown as selected for the post of R-e-T Maths stream (Non-Medical) in the panel for selection i.e. Annexure-F, dated 05.02.2011. The petitioner challenged the same by way of SWP No. 339/2011, praying for quashing selection of Abdul Nasar as also Mohd. Ashraf Sheikh and for the issuance of a Writ of Mandamus to direct the respondents to select and appoint the petitioner as R-e-T Math teacher in Govt. Upgraded Primary School Haroot and R-e-T Math teacher in Govt. Upgraded Primary School Prakar of revenue village Bingara with all consequential benefits. The aforementioned writ petition was disposed of vide order dated 29.03.2012 as having become infructuous on account of statement of the official respondents that the impugned Select Panel had been withdrawn to be prepared afresh in accordance with Circular dated 18.01.2012 issued by the Directorate of School Education Jammu. Pursuant thereto, select panel i.e. Annexure-H was prepared in the year 2012 and was displayed on 01.06.2012 reflecting the name of the petitioner as having been proposed in the select panel at No. 1 with Mohd. Ashraf Sheikh at Serial No. 2. 3. Thereafter, SWP No. 1681/2012, was filed by Abdul Nasar challenging the aforementioned proposed select panel. Pursuant thereto, select panel i.e. Annexure-H was prepared in the year 2012 and was displayed on 01.06.2012 reflecting the name of the petitioner as having been proposed in the select panel at No. 1 with Mohd. Ashraf Sheikh at Serial No. 2. 3. Thereafter, SWP No. 1681/2012, was filed by Abdul Nasar challenging the aforementioned proposed select panel. The writ petition was disposed of by holding that the outcome of the claim in the Writ Petition would depend upon whether Haroot was found to be satisfying the requirements of habitation in terms of Govt. Order No. 288-Edu of 2009, dated 08.04.2009 in which case selection was to be restricted to said habitation but in the event of Haroot being found to be part of revenue village Pogal, then the zone of consideration was to extend to revenue village Pogal and in that eventuality selection of respondent No. 5 therein i.e. petitioner herein was to remain intact. The question as to whether Haroot was a habitation was dependant on fulfillment of two fold criteria in terms of Govt. Order No. 288-Edu of 2009, dated 08.04.2009, namely of Haroot being at a distance of one kilometre from all other habitations besides having 300 inhabitants. Taking note of the aforementioned factual position, the Writ Court disposed of the Writ Petition vide order dated 08.11.2013 by directing enquiry to be conducted by the Deputy Commissioner, Ramban, whereafter Chief Education Officer, Ramban, was to frame select panel and pass orders in the light of report so submitted. 4. The Deputy Commissioner, Ramban, gave a report i.e. Annexure-L, dated 13.12.2013 mentioning therein that Haroot was neither hamlet nor it had any population leave aside 300 souls. However, a recommendation was also given that it would be upto CEO Ramban to decide whether he should invoke the jurisdiction of the High Court and seek appropriate orders or quash the panel and re-advertise the post afresh. A perusal of the report further reveals that although Haroot had been held to be neither hamlet nor having any population, still the Deputy Commissioner, Ramban held that the first right on the post of R-e-T teacher was of candidate living in Panla and not of the petitioner herein as it was even otherwise practically not possible for the petitioner herein to travel 10 kilometres daily i.e. five kilometres each way. 5. 5. The aforementioned enquiry report was challenged by the petitioner by way of SWP No. 419/2014, leading to issuance of interim order, which reads as under:- "In the first round of litigation, respondent No. 5, herein, filed a writ petition bearing SWP No. 1681/12, which was disposed of by virtue ' of judgment and order dt. 8.11.2013, with a direction to the Deputy Commissioner, Ramban, to enquire into the matter as to whether Haroot satisfied the twin tests i.e. population of more than 300 souls and distance of minimum one km from the nearest habitation as laid down in the Govt. Order No. 288-Edu of 2009. It was held that in case, Haroot is found to satisfy the requirement of habitation in terms of the aforementioned order, then the selection is to be restricted to the said habitation. In the alternative, if it was found that Haroot did not satisfy the requirement of the aforementioned order, in that given case, the selection of respondent No. 5 in the aforementioned petition i.e., the petitioner herein, shall remain intact. It appears that pursuant to the aforementioned judgment and order passed by this Court, an enquiry was got conducted by the Deputy Commissioner, Ramban, based upon which it was deduced that Haroot was neither a Hamlet nor did it have the population of 300 souls as was the requirement of Government order, referred to above. The requisite part of the report of the Deputy Commissioner, Ramban, is reproduced below:- "....From the above, it is clear that Haroot is neither hamlet nor it has any population leave aside 300 souls. It may however, be mentioned that few houses are near this particular school which are part of Panla" From the above, it becomes clear that Haroot did not satisfy the requirements of Govt. Order No. 288-Edu of 2009, aforementioned, which would have benefited the respondent No. 5 herein namely Abdul Nasar, petitioner in the earlier writ petition. Counsel for the petitioner, however, submitted that the Deputy Commissioner, Ramban, exceeding the scope of enquiry as was ordered by this Court vide judgment dt. 8.11.2013, has gone a step ahead and observed that the candidates living in Panla have the first right of appointment as R-e-T and not the petitioner. Counsel for the petitioner, however, submitted that the Deputy Commissioner, Ramban, exceeding the scope of enquiry as was ordered by this Court vide judgment dt. 8.11.2013, has gone a step ahead and observed that the candidates living in Panla have the first right of appointment as R-e-T and not the petitioner. This according to him was something which the Deputy Commissioner, Ramban, was not required to do or recommend while complying with the directions passed by this Court by virtue of order dt. 8.11.2013. A prima facie case is made out. Notice in CMA as above. Meanwhile, the enquiry report dt. 13.12.2013, to the extent it holds the petitioner in-eligible and holds the residents of Panla eligible for appointment as ReT is stayed. No further action shall be taken by the respondent No. 2 to 4 on that part of the recommendation made by the Deputy Commissioner, Ramban, in compliance to the order dt. 8.11.2013. The official respondents shall be under an obligation to allow the petitioner to join. as R-e-T. This order is, however, subject to modification and objections from the other side." 6. Pursuant to the interim orders of the High Court dated 21.02.2014 in SWP No. 419/2014, the petitioner was issued engagement order (Annexure-P) dated 02.07.2014 for a period of two years initially on monthly honorarium of Rs. 3000/- purely on temporary contract basis, extendable for further three years subject to performance being found satisfactory and engagement being subject to outcome of SWP No. 419/2014. 7. I have heard learned counsel for the parties, perused the record and considered the submissions made. The petitioner's name was initially not included in the Panel (Annexure-F) dated 05.02.2011 and it was Abdul Nasar whose name was indicated therein as selected candidate. SWP No. 339/2011, filed by the petitioner was disposed of as having become infructuous on the ground that a fresh panel was being prepared in terms of Circular dated 18.01.2012 issued by the Directorate of School Education, Jammu. On the basis of said exercise, petitioner's name figured in the proposed select panel i.e. Annexure-H, in respect of which objections were invited in the month of June, 2012. The same came to be challenged by Abdul Nasar by way of SWP No. 1681/2012, which was disposed of by directing enquiry to be conducted in the matter for determining as to whether Haroot was a habitation within the ambit of Govt. The same came to be challenged by Abdul Nasar by way of SWP No. 1681/2012, which was disposed of by directing enquiry to be conducted in the matter for determining as to whether Haroot was a habitation within the ambit of Govt. Order No. 288-Edu of 2009, dated 08.04.2009 and depending upon the outcome of the finding, the appointment order was to be issued. It was indicated in the judgment that in case it was found that Haroot was a habitation within the ambit of Govt. Order No. 288-Edu of 2009, dated 08.04.2009 then in that eventuality Abdul Nasar was to be given appointment and if Haroot was not found to be habitation within the ambit of Govt. Order No. 288-Edu of 2009, dated 08.04.2009 then in that eventuality, it was the petitioner herein whose selection was to sustain. The inquiry report submitted by the Deputy Commissioner dated 13.12.2013 categorically records that Haroot was not a hamlet nor it had any population leave aside 300 souls, therefore, it did not fall within the definition of term 'hamlet' as contained in Govt. Order No. 288-Edu of 2009, dated 08.04.2009. Resultantly, in terms of order of the learned Writ Court dated 08.11.2013 in SWP No. 1681/2012, it was the petitioner herein whose selection was to sustain. 8. However, as noticed above, the Deputy Commissioner, Ramban, gave an option to the Chief Education Officer, Ramban, to either implement the report or to seek appropriate orders from the Hon'ble High Court for cancellation of the select panel and for re-advertisement, besides recording in the enquiry report that in view of the petitioner staying at a distance of five kilometre from school, it would be difficult for him to travel ten kilometre daily. 9. 9. The petitioner herein filed SWP No. 419/2014, with the following prayer:- "It is, therefore, respectfully prayed that writ petition may kindly be allowed by issuing an appropriate writ, direction or order including in the nature of writ of certiorari quashing the enquiry report dated 13.12.2013 made by respondent No. 6 in so far as and to the extent he has stated that the first right on the post of Rehbar-e-Taleem teacher was of the candidates living in Panla and not that of the petitioner, with a further observation/direction to Chief Education Officer, Ramban to decide whether he should to this Hon'ble Court and seek order or quash the said panel and re-advertise the post afresh, as being unconstitutional, illegal and contrary to the scope of enquiry ordered by this Hon'ble Court. A further writ of mandamus commanding the respondents 1 to 4 to issue appointment order as Rehbar-e-Taleem Teacher in Mathematic stream in favour of the petitioner for Govt. Upper Primary School Haroot with all consequential benefits." 10. In other words, there is a prayer for issuance of writ of Mandamus commanding the respondents to issue appointment order as R-e-T teacher in favour of the petitioner in SWP No. 419/2014. The petitioner was granted an interim order on 21.02.2014 allowing him to join as R-e-T teacher leading to issuance of order i.e. Annexure-P, dated 02.07.2014. Said writ petition is stated to be pending adjudication. Petitioners claim for appointment is subject to the outcome of said writ petition. No doubt, vide interim order, petitioner has been allowed to join, but the same is subject to final adjudication of the said Writ Petition. A perusal of the appointment order reveals that appointment of the petitioner was purely temporary on contract basis initially for a period of two years on monthly honorarium of Rs. 3000/- further extendable for three years subject to his performance being satisfactory and further being subject to outcome of SWP No. 491/2014 & 1153/2014. Learned counsel for petitioner contends that the petitioner has got nothing to do with SWP No. 1153/2014. 11. 3000/- further extendable for three years subject to his performance being satisfactory and further being subject to outcome of SWP No. 491/2014 & 1153/2014. Learned counsel for petitioner contends that the petitioner has got nothing to do with SWP No. 1153/2014. 11. However, the fact remains that the temporary selection and appointment of the petitioner on contract basis pursuant to the interim order in SWP No. 419/2014, are subject to the outcome of said writ petition, therefore, the prayer in the instant Writ Petition for treating the selection and appointment of the petitioner as made i.e. in terms of interim order in SWP No. 419/2014 w.e.f. 01.03.2011 i.e. the date when the first tentative select panel was prepared and to grant him all benefits w.e.f. 01.03.2011 is without any justification whatsoever. The claim of the petitioner for retrospective appointment would depend on the orders as are passed in SWP No. 419/2014 and a fresh Writ Petition for the relief claimed herein in the light of the position, as noted above, is not maintainable. In the circumstances, the instant Writ Petition is dismissed. However, nothing said in this petition shall be taken as an expression on merits with regard to the claim of the petitioner in SWP No. 419/2014.