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2018 DIGILAW 78 (JK)

Neeta Devi v. School Education

2018-02-09

BADAR DURREZ AHMED, DHIRAJ SINGH THAKUR

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JUDGMENT : BADAR DURREZ AHMED, J. 1. This appeal has been preferred against the judgment/order dated 10.11.2017, delivered by a learned Single Judge of this Court in SWP No. 914/2014. The said writ petition sought quashing of the panel prepared by the respondent Nos. 2 to 4 on habitation basis for the post of Rehbar-e-Taleem Teacher which had been advertised by virtue of a notice dated 17.04.2009 in respect of the Upper Primary School at Bhed. The writ petition also sought quashing of the report dated 25.02.2004 prepared by respondent No 5 and the order dated 03.12.2010, passed by the respondent No. 6 as also the communication dated 25.04.2013, issued by the said respondent No. 6. A mandamus was also sought commanding the respondent Nos. 2 to 4 to select and appoint the petitioner against the post of Rehbar-e-Taleem Teacher, pursuant to the said notice in respect of the Upper Primary School, Bhed. 2. The sum and substance of the controversy is whether the exception carved out in the explanation given in Government Order No. 288-Edu of 2009, dated 08.04.2009 applied to the facts of the present case or not. The contest here is between the appellant and the respondent No. 8. The revenue village is Thara Kalwal. There are four scattered habitations within this revenue village. They are Dodan, Bhed, Thara Kalwal and Garhi. The respondent No. 8 is a resident of Bhed where the Upper Primary School is located. The appellant is a resident of Garhi. It is also not in dispute that the appellant is higher in merit than the respondent No. 8. The only issue which arises for consideration is whether the eligibility is on the basis of revenue village or on the basis of the exception which limits the zone of consideration to the habitation where the school is located i.e. Bhed. 3. On going through the Government order No. 396-Edu 2000, dated 28.04.2000, which brought about the Rehbar-e-Taleem scheme, we find that the eligibility that has been prescribed vis-à-vis the appellant is that he or she should, inter alia, belong to the ‘village’ where there is deficiency of staff. It is this word “village”, which has been explained by virtue of the Government order No. 288-Edu of 2009. It is this word “village”, which has been explained by virtue of the Government order No. 288-Edu of 2009. The said Government order reads as under:- “Government of Jammu and Kashmir Civil Secretariat Education Department Subject : Rehbar-e-Taleem Scheme to ensure people’s participation in the management of Education at grass roots level …. 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. 396 of Edu 2000 dated 28-4-2000 (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, 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.” 4. There was an addendum to the said Government Order No. 288-Edu of 2009, dated 08.04.2009 to the following effect:- “Government of Jammu and Kashmir Civil Secretariat Education Department Subject : Rehbar-e-Taleem Scheme to ensure people’s participation in the management of Education at grass roots level. Addendum to Government Order No. 288-Edu of 2009, dated 08-04-2009. …. It is hereby ordered that the word “Only” shall and shall be deemed to have been added after comma and before the word shall appearing in line 6th of Explanation in Government Order No. 288-Edu of 2009 dated 8.4.2009 issued under endorsement No. Edu-I/Misc/68/2001 dated 8.4.2009. By order the Government of Jammu and Kashmir.” 5. We have heard the learned counsel for the parties and particularly with reference to the interpretation of the explanation which has been provided in the said Government Order No. 288-Edu of 2009, dated 08.04.2009. It is evident that the normal meaning of the village has reference to the entire revenue village, but the explanation carved out an exception in a case where there are habitations within the revenue village which are scattered. As per the said exception, if it gets triggered a candidate belonging to a habitation, popularly known as a village, in which the local school is located, shall „only? be entitled to seek engagement as a Rehbar-e-Taleem Teacher in that local school. As per the said exception, if it gets triggered a candidate belonging to a habitation, popularly known as a village, in which the local school is located, shall „only? be entitled to seek engagement as a Rehbar-e-Taleem Teacher in that local school. But, for this exception to apply, the said habitation must be at least 1 km away from other habitations within the revenue village. In addition, the said habitation must have a population of more than 300 persons. The other way to look at it, is that, if the habitation in which the school is located is less than 1 Km away from any of the other habitations within the revenue village, then this exception will not apply and persons from other habitations falling within the revenue village would also be eligible and the eligibility would not be restricted to the candidates belonging to the habitation, in which the local school is situated. 6. This case has to be decided based on this interpretation. The facts as placed before us are that there are four habitations within the revenue village Thara Talwal, those four habitations as pointed out above, are Dodan, Bhed, Thara Talwal and Garhi. It is the case of the appellant that Dodan is located within 1 Km from Bhed (where the Upper Primary School is located). If that be the case, then the eligibility of the candidates for consideration for the post of Rehbar-e-Taleem Teacher in Upper Primary School, Bhed would not be restricted to the residents of village Bhed, but would include the residents of Dodan, Thara Talwal and Garhi. In the present case, the appellant is from Garhi. Therefore, his eligibility would be considered in the context of the distance between Dodan and Bhed. This is so because, admittedly, Garhi is more than 1 Km away from Bhed. In case Dodan and Bhed are not more than 1 Km apart then, obviously, the appellant, being higher in merit than respondent No. 8 would be entitled to be appointed as a Rehbar-e-Taleem Teacher for the Upper Primary School, Bhed in respect to the advertisement dated 17.04.2009. 7. Unfortunately, in none of the proceedings below the distance between the habitation Dodan and the habitation Bhed has been measured. Consequently, the eligibility of the appellant would depend on the measurement of the distance between Dodan and Bhed. 7. Unfortunately, in none of the proceedings below the distance between the habitation Dodan and the habitation Bhed has been measured. Consequently, the eligibility of the appellant would depend on the measurement of the distance between Dodan and Bhed. We may also point out that in view of the Full Bench decision in Mubeena Hassan v. State of J&K & Ors: 2015(3) JKJ 409 , the distance between the said two habitations would have to be measured ‘periphery to periphery’ and not centre to centre’. 8. Accordingly, the appeal is allowed and the impugned judgment is set aside with a direction to the Deputy Commissioner, Kathua to measure the distance between the two habitations, namely, Dodan and Bhed on the above basis. In case the result of the measurement indicates that the distance is less than 1 Km, then the appellant would be an eligible candidate and the selection shall be made accordingly on the basis of merit. We direct that the measurement be carried out by the said Deputy Commissioner within two weeks of receipt of the certified copy of this judgment/order and the selection shall be completed within four weeks thereafter by the respondent Nos. 2 to 4.