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2018 DIGILAW 751 (JK)

Sheetal Sharma v. State

2018-09-28

SANJEEV KUMAR

body2018
JUDGMENT : Respondent No.3, vide Advertisement Notification dated 05.06.2015, invited applications for the engagement of ReTs against the vacant posts available in different schools of Zone Gool, Ramban and Ukhral of District Ramban. One post of ReT in New Primary School, Mottta of revenue village Neera was also notified for making selection. The petitioner, claiming to be the resident of habitation Motta and otherwise eligible, submitted her application form to respondent No.4. A tentative merit panel of the eligible candidates for selection against the available post of ReT in New Primary School, Motta has been prepared. The petitioner figures at S.No.12, whereas respondent Nos.7 and 8 figure at S.Nos. 9 and 10. On the basis of inter se merit, respondent No.7 with the qualification of B.A. was found to be most meritorious and placed at S.No.1 of the proposed select panel followed by respondent No.8, who, in view of his merit, was placed at S.No.2. As is apparent from the proposed select panel, it was prepared by respondent No.4 on the recommendations of the Village Education Committee concerned. The habitation was taken as a unit in terms of Government Order No. 288-Edu of 2009 dated 08.04.2009. 2. Feeling aggrieved of the empanelment of respondent Nos. 7 and 8 in the proposed select list, the petitioner has filed the instant petition. The select panel proposed by respondent No.4 has been assailed by the petitioner, primarily, on the ground that the petitioner is the only eligible candidate belonging to habitation Motta, who has applied for the aforesaid post and respondent Nos. 7 and 8, who belong to other habitations of revenue village Neera, are not eligible to be engaged as ReT having regard to the provisions of Government Order No. 288-Edu of 2009 (supra). 3. The respondents have filed their objections. In the objections filed by the official respondents, stand taken is that the habitation Motta qualifies to be a habitation for the purposes of applicability of Government Order No.288-Edu of 2009 (supra) and, therefore, the candidates belonging to habitation Motta alone have been considered. It is submitted that in response to the aforesaid Advertisement Notification, the respondents received as many as 12 application forms, out of which, three candidates i.e. respondent Nos. It is submitted that in response to the aforesaid Advertisement Notification, the respondents received as many as 12 application forms, out of which, three candidates i.e. respondent Nos. 7 and 8 and the petitioner were found to be hailing from habitation Motta and on the recommendations of the Village Education Committee concerned and also having regard to the inter se merit of aforesaid three candidates, respondent Nos. 7 was placed at S.No.1 of the proposed select panel followed by respondent No.8, who was placed at S.No.2. The official respondents, however, in para No.4 of the objections have spilled the beans by stating that the population of habitation Motta which includes the other hamlets like Galli, Khora, Kahinag and Prehinga is more than 300 souls. Similarly, in para No.10 of the objections, the official respondents by relaying upon a certificate issued by AEE PMGSY have stated that the distance of the habitation Motta from Galli is 755 meters. Though, it is not denied by the official respondents that respondent No.7 is not the resident of habitation Motta, yet it has been submitted that hamlet Galli, to which respondent No.7 belongs, is situated at a distance of less than 1 km and, therefore, respondent No.7 shall be deemed to be the resident of habitation Motta. 4. The sum and substance of the stand taken by the official respondents is that though the habitation/hamlet Motta in itself may not meet the requirements of Government Order No.288-Edu of 2009 (supra), yet by including the adjoining hamlets viz. Galli, Khora, Kahinag and Prehinga which are situated within the distance of 1 km, the habitation Motta qualifies to be a revenue village/village for the purposes of applicability of Government Order No. 288-Edu of 2009 (supra). 5. Respondent No.7, who has been proposed to be selected, has also filed objections. The stand taken by respondent No.7 is also on the same lines as is projected by the official respondents in their objections. 6. Having heard learned counsel for the parties and perused the record, it would be necessary to first set out the provisions of Government Order No. 288-Edu of 2009 (supra) which read as follows: “Government Order No.288-Edu of 2009 Dated 08.04.2009 The following explanation is added below Eligibility condition No.i laid down in Government Order No. 396Edu of 2000 dated 28.04.2000 (Rehbar-e-Taleem Scheme) 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 Kilometer away from other habitations and having a population of more than 300 persons only, shall be entitled to seek engagement as Rehbar-e-Taleem in a local school” The above explanation shall have prospective effect. By order of the Government of Jammu and Kashmir” 7. From a bare reading of Government Order No. 288-Edu of 2009 (supra), it is abundantly clear that there is no scope for clubbing of the habitations. The said Government Order would be applicable if the following conditions are met. (a). That the habitations in a revenue village are scattered; (b). That the habitation where the school is situated is popularly known as a village i.e. it has a known name different from the revenue village which it is part of; (c). That the population of the habitation is more than 300 persons; and (d). That the distance of the habitation from its nearest habitation is at least 1 km. 8. If all the aforesaid conditions are satisfied then the zone of selection would squeeze from the revenue village to habitation. There is, however, no scope to club two or more habitations, may be situated within one km distance. If there are two habitations in the village which are separated by a distance of less than 1 km, the habitation would not qualify to be a unit of selection in terms of Government Order NO. 288-Edu of 2009 (supra) 9. The issue was considered by the Division Bench of this Court in LPASW No. 167/2016 titled Yasar Maqbool and anr vs State and others, decided on 26.04.2018. The Division Bench while upholding the judgment of the learned Writ Court, in paragraphs 13 and 15, held as under: 13. A careful reading of Government Order No.288-Edu of 2009 (supra) would indicate that it speaks about a habitation and does not provide for clubbing of two adjoining habitations even if they may be separated by a small distance or a natural boundary like Nallah in the instant case. That being so, after examining the facts of the instant case, we find that habitation Kunah where the school in question is situated is known as a village i.e it has name and identify different from the revenue village which is ‘Kewa’. That being so, after examining the facts of the instant case, we find that habitation Kunah where the school in question is situated is known as a village i.e it has name and identify different from the revenue village which is ‘Kewa’. The distance of the nearest habitation from habitation Kunah is less than one kilometer and the two habitations Kunah and Noor are separated by a natural boundary i.e. Nallah Both the habitations have their own Government schools sanctioned by the Government. The other school sanctioned for habitation Noor is known as UPS Noor. That being so, both the habitations i.e., Kunah and Noor have different identity and are known by different names, therefore, cannot be treated to be a one habitation. 15. The Writ Court, after carefully noticing the provisions of Government Order No. 288-Edu of 2009 (supra), reached a conclusion that the two adjoining habitations cannot be clubbed together for the purposes of applicability of Government Order No. 288-Edu of 2009 (supra) as that would amount to giving new dimension to the eligibility which is not envisaged in the ReT scheme”. 10. In view of the Division Bench Judgment dated 26.04.2018 (supra), there is no scope to argue that the habitations situated within one km distance can be clubbed for attracting the applicability of Government Order No. 288 Edu of 2009 (supra). 11. In the instant case, admittedly the official respondents clubbed other habitations like Galli, Khora, Kahinag and Prehinga with the habitation Motta where the school in question is situated for the purposes of applying the provisions of Government Order No. 288-Edu of 2009 (supra) and made the selection on the basis of clubbed habitation which is not permissible in law. The claim of the petitioner that she belongs to habitation Motta which meets the parameters laid down in Government Order No. 288-Edu of 2009 (supra) is vehemently refuted by the respondents. It is submitted that since the habitation Galli is separated from the habitation Motta by a distance of 755 meters and, therefore, the Government Order No. 288-Edu of 2009 (supra) cannot be applied. 12. Per contra, learned counsel for the petitioner reiterates that the habitation Motta alone has a population of more than 300 souls and is away from the nearest habitation by a distance of more than one km. 12. Per contra, learned counsel for the petitioner reiterates that the habitation Motta alone has a population of more than 300 souls and is away from the nearest habitation by a distance of more than one km. He places reliance on the certificate issued by Tehsildar Ramban dated 19.04.2001 in which Tehsildar has certified that the habitation Motta is located at a distance of more than 3 Kms from another habitation and the total population of habitation Motta is more than 302 souls as per the report of the field staff/Naib-Tehsildar. Be that as it may, the documents placed on record by both the sides do demonstrate that no exercise has been undertaken by the official respondents to find out as to whether the provisions of Government Order No. 288-Edu of 2009 (supra) are applicable or not to the instant selection. 13. The official respondents have proceeded on the wrong premise that the habitations situated within 1 km can be clubbed for attracting the applicability of Government Order No. 288-Edu of 2009 (supra). In the absence of cogent and reliable material on record, it is not possible for this Court also to come to any a definite conclusion. In these circumstances, this Court is left with no option, but to quash the impugned select panel and dispose of this petiton by providing as follows: (a). The Deputy Commissioner, Ramban shall cause an enquiry to be held with regard to the status of habitation Motta so as to find out as to whether the habitation Motta meets the parameters laid down in Government Order NO. 288-Edu of 2009 (supra) and explained hereinabove in this judgment. (b) The Deputy Commissioner shall ensure that the enquiry is concluded within a period of four weeks from the date of receipt of certified copy of this order after affording an opportunity of being heard to all concerned including the petitioner and respondent Nos. 7 and 8. (c) It would be apt, if the enquiry is conducted by a Committee consisting of Assistant Executive Engineer, Public Works Department, Tehsildar (T) and ZEO concerned under the supervisions of Deputy Commissioner. (d). Based upon the findings of the enquiry, respondent No.4 shall redraw the select panel on the basis of inter se merit of the eligible candidates within two weeks and recommend the most meritorious candidate for selection. (d). Based upon the findings of the enquiry, respondent No.4 shall redraw the select panel on the basis of inter se merit of the eligible candidates within two weeks and recommend the most meritorious candidate for selection. (e) Formal order of engagement shall be issued by the competent authority in favour of the selected candidate within six weeks thereafter. Disposed of as above along with connected IAs.