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2017 DIGILAW 668 (JK)

Ravinder Kumar v. State of J&K

2017-08-19

JANAK RAJ KOTWAL

body2017
JUDGMENT : 1. The Chief Education Officer, Doda, herein respondent No. 3, issued Advertisement Notice inviting applications inter alia for filling up of two vacancies of Rehbar-e-Taleem (R-e-T) in HSS Inharrah, Education Zone, Bhallesa. This Notice was published under No. DIP/JK-15827/2012 dated 12.01.2012. The minimum qualification was prescribed as 10+2 from the recognized Board/University and it was provided also that only eligible candidates from the Revenue village/village where the school is functioning can apply. The private parties to these two writ petitions applied for the aforementioned vacancies. The Zonal Education Officer, Bhallessa, herein respondent No. 4 vide his No. T/390-91 dated 08.05.2012, prepared merit wise list of the candidates, who had applied for the engagement. Hernam Singh and Kanchana Devi, who have been arrayed respondents in both these writ petitions figure at serial Nos. 1 and 2 respectively in this list. Petitioner, Kartar Singh and petitioner, Ravinder Kumar, figure at serial Nos. 3 and 4 respectively and Anita Devi, who is impleaded as party respondent in SWP No. 2642/2012 figures at serial No. 5. All these candidates, besides possessing the basic qualification of 10+2, are graduates. The merit of these candidates has been determined on the basis of the marks secured by them at the graduation level. At a later stage, the respondent No. 4 issued tentative select panel of these candidates for selection against the two vacancies. In this panel, Hernam Singh figures at serial No. 1, Kanchana Devi at serial No. 2 and Kartar Singh at serial No. 3. 2. In SWP No. 2165/2012, petitioner, Kartar Singh primarily seeks writ of certiorari quashing the merit panel to the extent it shows Hernam Singh and Kanchana Devi, herein respondent Nos. 6 and 5 respectively at serial Nos. 1 and 2. The challenge in this regard is two fold. Firstly, Mr. P.N. Bhat, learned counsel appearing for the petitioner submitted that respondent No. 4 has fallen in error by determining the inter se merit of the candidates on the basis of the marks secured by them at graduation level, which should have been determined on the basis of the marks secured at 10+2 level, that is, the minimum prescribed qualification for the engagement. Secondly, Mr. Bhat submitted that respondent, Kanchana Devi, is not a resident of village, Inharrah. Mr. Secondly, Mr. Bhat submitted that respondent, Kanchana Devi, is not a resident of village, Inharrah. Mr. Bhat pointed out that the petitioner has secured 51.2 per cent marks in 10+2 examination and is superior in merit than respondents 5 and 6, who have respectively secured 50.16 per cent and 41.83 per cent marks, though the percentage of marks secured by them at graduation level is higher than that of the petitioner. Mr. Bhat urged that for the purpose of determining the inter se merit, the marks secured in the minimum prescribed qualification alone can be taken into account though the higher qualification can be taken into account only for giving weightage. Learned counsel relied upon a judgment of a coordinate Bench of this Court in Masood Ahmad Bhat v. State and others, 2010 (3) JKJ 792 . In regard to the second ground, it is contended by the petitioner that respondent No. 5, Kanchana Devi is not residing in village, Inharrah for the last more than 20/30 years though she was initially a resident of that village. 3. In SWP No. 2642/2012, petitioner, Ravinder Kumar, seeks writ of certiorari quashing selection of Hernam Singh and Kanchana Devi on the ground that the school in which the vacancies are to be filled up is located within Champagwari (Tuti) habitation of Revenue village, Inharrah and he is the only candidate of the said habitation. It is contended that Revenue village, Inharrah, has two habitations, namely, Inharrah and Champagwari (Tuti). The distance of the school in question from Champagwari is just 120 meters, whereas the distance of the said school from the Inharrah is 1500 meters. Learned Senior Advocate, Mr. Sunil Sethi, appearing on behalf of the petitioner, submitted that in terms of the Government Order No. 288-Edu of 2009 dated 08.04.2009, the engagement is to be made on habitation basis and the Champagwari habitation fulfils all the requirements of a habitation as provided under Government order No. 288 (supra). Learned senior advocate referred to various documents annexed to the writ petition to make out that the population of Champagwari is more than 300 souls and the distance between the two habitations is more than 1620 meters. 4. The stand of the respondents on the other hand is that the school in question is not located in Champagwari habitation and the intervening distance between the school and village, Inharrah is only 960 meters. 4. The stand of the respondents on the other hand is that the school in question is not located in Champagwari habitation and the intervening distance between the school and village, Inharrah is only 960 meters. Learned AAG appearing on behalf of the official respondents submitted that questions of fact in regard to the existence of two habitations, their population and intervening distance between the two cannot be raised through the medium of this writ petition and should have been raised before the competent authority after the tentative panel was issued. Learned AAG sought to make out that the tentative panel was published for objections in village, Inharrah from 08.05.2012 to 14.05.2012. Learned AAG submitted also that it has been settled by this Court in SWP No. 2391/2011, titled, Ranjeeta Devi v. State of J&K and others vide judgment dated 01.03.2016 that the merit is to be determined on the basis of the marks secured in the higher qualification and not on the basis of the marks secured in the prescribed qualification. Submissions of the learned counsel for the private respondents were in line with the submissions made by the learned AAG. 5. The plea of the petitioner, Kartar Singh, in SWP No. 2165/2012 that the merit should be determined on the basis of the marks secured in the minimum prescribed qualification is liable to be rejected. This question has been considered by the learned Single Bench in Ranjeeta Devi’s case (supra) in an identical fact situation. While relying upon a Division Bench judgment of this Court in Amjid Chugtal v. State of J&K and ors, the learned Single Bench has held that “the performance only at the regular academic level is to be considered for determination of the merit” and in reference to that case, learned Bench has held that “since all the candidates are post-graduates and also possessed B.Ed. degrees then merit would only be determined according to their performance at the postgraduate level”. 6. In the case on hand all the five candidates, as said above, are graduates, so their inter se merit has been determined on the basis of the marks secured by them at graduation level. degrees then merit would only be determined according to their performance at the postgraduate level”. 6. In the case on hand all the five candidates, as said above, are graduates, so their inter se merit has been determined on the basis of the marks secured by them at graduation level. No illegality can be said to have been committed in this regard by respondent No. 4 inasmuch as I find no reason to differ with the view taken by the learned Bench in Ranjeeta Devi’s case, which is based on the Division Bench judgment in Amjid Chugtal’s case. 7. The other plea taken by the petitioner, Kartar Singh, involves a question of fact. The question is whether, therein respondent, Kanchana Devi is not residing in village Inharrah for the last 20/30 years as she has shifted to village Gandoh. The pleas taken by the petitioner, Ravinder Kumar also involve questions of fact. These questions are: i. Whether the Revenue village, Inharrah comprises of two habitations, namely, Inharrah and Champagwari? ii. whether the school in question is located within the territory of Champagwari habitation and in case the above questions are found in affirmative, whether the Champagwari habitation fulfills the requirements under Government Order No. 288 (supra). 8. The disputed questions of fact cannot be adjudicated upon by this Court in these writ petitions and in that I agree with the submissions of the learned AAG that such questions can be raised by way of representations before the competent authority. I, however, am not persuaded to agree with the learned AAG that the tentative select panel was published in the village for objections from 08.05.2012 to 14.05.2012. Argument of AAG in this regard does not convince. It needs to be pointed out that the merit panel admittedly was prepared on 08.05.2012. It does not show that it was displayed in the village for objections. The tentative select panel does not bear the date of its issuance, but in any case the same should have been issued at a time later than the issuance of the merit panel dated 08.05.2012. The tentative select panel does not show that the same was displayed and objections pursuant thereto were called. The tentative select panel does not bear the date of its issuance, but in any case the same should have been issued at a time later than the issuance of the merit panel dated 08.05.2012. The tentative select panel does not show that the same was displayed and objections pursuant thereto were called. An endorsement on the tentative panel relied upon by the learned AAG reads: “Certified that the panel was displayed in the Revenue village, Inharrah w.e.f. 8.5.2012 to 14.5.2012 vide this office No. ZEOB/RET/390-91 Dated 8.5.2012” 9. Learned AAG would not be correct in saying that the said endorsement relates to displaying of the tentative select panel for objections. It cannot be so because what could have been displayed with effect from 08.05.2012 to 14.05.2012 is the merit panel alone and not the tentative panel for the simple reason that the two panels would not have issued on the same date on 08.05.2012. 10. It would thus, admit of no doubt that the tentative select panel was not displayed for objections nor objections pursuant thereto were called. Learned AAG in his fairness stated at Bar that the procedure adopted in selection of R-e-T requires calling for objections to the tentative select panel. Objections of the nature as have been raised in these two writ petitions can be taken in the objections to the tentative panel. Had such objections been called, the petitioners would have got opportunity to raise the objections as have been raised in these writ petitions. The selection process, therefore, suffers from a serious error. 11. For all that said and discussed above, the writ petition SWP No. 2165/2012 is dismissed to the extent it assails the merit panel on the ground that the inter se merit has been wrongly determined on the basis of the marks secured at graduation level. This petition however, is allowed to the extent it questions the residence of respondent, Kanchana Devi. Likewise, writ petition in SWP No. 2642/2012 is allowed and the tentative select panel is quashed. 12. By issue of a writ of mandamus the petitioners in both the petitions are directed to submit their representations within two weeks hereafter to the Director School Education, respondent No. 2, who shall accord consideration to and take appropriate decision on merits after hearing both the sides. 12. By issue of a writ of mandamus the petitioners in both the petitions are directed to submit their representations within two weeks hereafter to the Director School Education, respondent No. 2, who shall accord consideration to and take appropriate decision on merits after hearing both the sides. It shall be open for respondent No. 2 to refer the matter to a Senior Revenue Officer for determination of the aforementioned questions. The selection process shall be resumed after representations are decided. 13. Disposed of.