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2017 DIGILAW 976 (JK)

Omesh Singh Katoch v. State of J&K

2017-10-31

SANJEEV KUMAR

body2017
JUDGMENT : Sanjeev Kumar, J. 1. Heard learned counsel for the parties and perused the record.. Briefly stated the facts of the case are that vide Advertisement Notification dated 07.12.2010 issued by the Chief Education Officer Ramban applications were invited for the post of ReT in various Upper Primary Schools under SSA which included two posts of ReT in Primary School Haroot (UPS) in revenue village Pogal. In response to the aforesaid Advertisement Notification, the petitioner as also the other eligible candidates including respondent No. 5 submitted their candidature. Respondent No. 4, who was supposed to prepare the panel, did not find habitation Haroot to be a village in terms of Government Order No. 288-Edu of 2009, dated 08.04.2009 and, therefore, prepared the panel by taking the revenue village Pogal as a unit and extended consideration to all the eligible candidates of the aforesaid revenue village, who had submitted their application forms. Aggrieved, respondent No. 5 challenged the aforesaid panel in SWP No. 1681/2012 which was disposed of by this Court vide order dated 08.11.2013. For facility of reference, relevant portion of the judgment is reproduced hereunder: "Against the above backdrop the writ petition is disposed of with a direction to Deputy Commissioner, Ramban to enquire into the matter and find out whether Haroot satisfies the twin tests i.e. population of more than 300 souls and distance of minimum one kilometer from the nearest habitation as laid down in above mentioned order so as to be declared "habitation' within meaning of the order. The Deputy Commissioner, Ramban shall inquire into the matter without delegating it to any officer subordinate to him though he may get inputs from field agencies like Revenue Department, Rural Development Department and Education Department. The outcome of inquiry after affording parties an opportunity to project their stand, shall be transmitted to Chief Education Officer, Ramban who shall frame select panel accordingly and pass orders in light of the report so submitted. Needless to state that either of the parties would be free to work out their remedy in the event they are not satisfies with the outcome of the inquiry or the order that may be passed on the basis of such inquiry". 2. Needless to state that either of the parties would be free to work out their remedy in the event they are not satisfies with the outcome of the inquiry or the order that may be passed on the basis of such inquiry". 2. In compliance to order dated 08.11.2013 (supra), the Deputy Commissioner Ramban conducted an enquiry and ultimately found that the hamlet Haroot does not qualify to be a village in terms of Government Order No. 288-Edu of 2009, dated 08.04.2009 on the ground that its population was less than 300 souls. However, in the concluding portion of the enquiry report dated 13.12.2013, the Deputy Commissioner Ramban observed that since respondent No. 5 resides at a distance of approximately 5 kilometers away from the school in question, as such, it would not be possible for him to attend to his duties in the school in question. It is this portion of the enquiry report of the Deputy Commissioner, Ramban, the petitioner is aggrieved of. 3. Learned counsel appearing for the petitioner submits that the scope of enquiry to be conducted by the Deputy Commissioner Ramban was circumscribed by the directions issued by this Court and the Deputy Commissioner, Ramban was enjoined to enquire into the matter and find out as to whether Haroot satisfies the tests laid down in 2012 (16) JK STATUTES 701-JK, Government Order No. 288-Edu of 2009, dated 08.04.2009 or not and he was, therefore, not permitted to go beyond the scope of the enquiry entrusted to him. Learned counsel submits that pursuant to the findings returned by the Deputy Commissioner Ramban that Haroot was not a village in terms of Government Order No. 288-Edu of 2009, dated 08.04.2009, respondents Nos. 1 to 4 should have finalized the panel. He, therefore, submits that the concluding portion of the enquiry report impugned in the instant writ petition is beyond the scope of enquiry and, therefore, not in compliance to the directions issued by this Court. 4. 1 to 4 should have finalized the panel. He, therefore, submits that the concluding portion of the enquiry report impugned in the instant writ petition is beyond the scope of enquiry and, therefore, not in compliance to the directions issued by this Court. 4. Per contra, learned counsel appearing for respondent No. 5 submits that it may be true that Hamlet Haroot has not found to be complying with the tests laid down in Government Order No. 288-Edu of 2009, dated 08.04.2009, yet the mere fact that the school is situated in Haroot and respondent No. 5 is a resident of far flung area, the panel needs to be drawn by considering the only candidates residing in Hamlet Haroot or its adjoining areas. He, therefore, supports the recommendations of the Deputy Commissioner Ramban that the petitioner, who resides at a distance of approximately five kilometers away from the school, would not be entitled to perform his duties in the school in question. Be that as it may, the fact remains that the this Court while adjudicating upon the earlier writ petition i.e. SWP No. 1681/2012 had categorically laid down the contours of enquiry to be conducted by the Deputy Commissioner Ramban. The Deputy Commissioner Ramban was only enjoined to enquire as to whether Haroot was a village in terms of Government Order No. 288-Edu of 2009, dated 08.04.2009 or not and submit a report to the competent authority for follow up action. Once the Deputy Commissioner Ramban came to the conclusion that Haroot was not a habitation/village in terms of Government Order No. 288-Edu of 2009, dated 08.04.2009, it was for respondent Nos. 1 to 4 to finalize the panel by considering all the eligible candidates belonging to the revenue village Pogal on the basis of the merit. The Deputy Commissioner Ramban has, therefore, clearly transgressed his limits and has gone beyond the scope of enquiry entrusted to him by this Court. 5. In that view of the matter, the enquiry report to the extent it is impugned in the instant writ petition cannot stand. The writ petition is accordingly allowed. The enquiry report of the Deputy Commissioner Ramban to the extent it is impugned in the instant writ petition is quashed. Respondents are well within their rights to finalize the panel in accordance with law by taking the revenue village as a unit if not already done. The writ petition is accordingly allowed. The enquiry report of the Deputy Commissioner Ramban to the extent it is impugned in the instant writ petition is quashed. Respondents are well within their rights to finalize the panel in accordance with law by taking the revenue village as a unit if not already done. Respondent No. 5, however, is at liberty to challenge the enquiry report if he so desires as also the orders of engagement, if any, passed by respondent Nos. 1 to 4. Insofar as the relief claimed by the petitioner with regard to retrospective effect of his appointment is concerned, the same is left open and the petitioner shall be at liberty to file fresh writ petition. Writ petition allowed in the aforementioned terms.