Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 89 (JK)

Anil Kumar v. Mohd. Shafi Hajjam

2019-02-22

GITA MITTAL, TASHI RABSTAN

body2019
JUDGMENT : Gita Mittal, J.—By way of the instant appeal, the appellant has laid a challenge to the judgment dated 07th May, 2013 passed by the learned Single Judge accepting the writ petition being SWP No.1780/2000, which was filed by the petitioner Mohd Shafi Hajjam against Anil Kumar (respondent No.5 in the writ petition). For convenience and expediency, we propose to refer to the parties by the nomenclature in the writ proceedings before the learned Single Judge. 2. The factual background giving rise to the present appeal discloses yet another sorry state of affairs in which the selection process for appointment to the post of Rehbar-e-Taleem in Primary School, Juddi in Village Bhalwana in the year 2000 remains the subject matter of litigation. 3. It appears that Mohd Shafi Hajjam (writ petitioner); the Anil Kumar (respondent No.5 in the writ petition) as well as the other persons responded to an advertisement notice issued by the Zonal Education Officer, Education Zone, Gundna, Tehsil and District Doda for the position. of Rehbar-e-Taleem. 4. In the tentative select panel prepared by the Village Level Committee, Anil Kumar (respondent No.5 in the writ petition) featured at Serial No.1 while Mohd Shafi Hajjam (writ petitioner) featured at Serial No.2. Pursuant to the said recommendation, the ZEO, Gondhow passed an order dated 10th July, 2000 appointing the respondent No.5, Anil Kumar against the advertised position. 5. Aggrieved with his non selection, the writ petitioner Mohd Shafi Hajjam assailed the order dated 10th July, 2000 by way of SWP No.1780/2000. The challenge was laid primarily on the ground that in terms of the Government Order No.396-Edu of 2000 dated 28th April, 2000, only a candidate who belongs to village Bhalwana would be eligible for the advertised position. The submission was that Anil Kumar (respondent No.5) belonged to village Barshalla, as such not eligible for appointment to the Rehbar-e-Taleem position. It was thus contended that as Mohd Shafi Hajjam (writ petitioner) featured at Serial No.2 in the select panel, as per the merit, he has a right to be engaged as Rehbar-e-Taleem in the Government Primary School, Juddi, Bhalwana. 6. The writ petition was opposed by the official respondents on the ground that Bharote and Barshalla were hamlets of village Bhalwana and respondent No.5 was as such resident of village Bhalwana and eligible for appointment as Rehbar-e-Taleem in the Government Primary School, Juddi Bhalwana. 7. 6. The writ petition was opposed by the official respondents on the ground that Bharote and Barshalla were hamlets of village Bhalwana and respondent No.5 was as such resident of village Bhalwana and eligible for appointment as Rehbar-e-Taleem in the Government Primary School, Juddi Bhalwana. 7. The respondent No.5 Anil Kumar failed to respond to the notice issued by the Court. 8. It appears that a further order came to be passed on 12th October, 2004 by the learned Single Judge calling upon the respondent Nos.1 to 4 to clarify the position regarding village Bhalwana. In response thereto, counsel for the official respondents informed that village Bhalwana and Barshalla are two different villages and that Bharote/Juddi is a hamlet of village Bhalwana. It was further stated on behalf of the official respondents that Anil Kumar, respondent No.5, was not a resident of village Bhalwana and consequently was not eligible for appointment as Rehbar-e-Taleem position in the school in question. In this background, by the judgment dated 03rd November, 2004, the writ petition came to be allowed and the order No.ZEO/304-07 dated 10th July, 2000, appointing the respondent No.5 as a Rehbar-e-Taleem in the said school was quashed. The official respondents were directed to consider the writ petitioner for appointment as Rehbar-e-Taleem against the vacant post, which became available due to the quashment of the aforesaid order in accordance with rules. 9. The record shows that in compliance with the judgment dated 03rd November, 2004, the official respondents considered the petitioner’s entitlement and by an order dated 19th May, 2005 appointed the writ petitioner Mohd Shafi Hajjam as Rehbar-e-Taleem in the Government Primary School Juddi (Bhalwana). The writ petitioner is stated to have joined this position on 19th May, 2005 itself. After having rendered satisfactory service of five years, which was so certified on 18th May, 2010 by the Village Level Committee, the writ petitioner has been regularized / appointed as General Line Teacher by the official respondents with effect from 19th May, 2010. 10. It is only thereafter that Anil Kumar, the private respondent No.5, who had been proceeded ex parte in the writ petition approached the court by way of an application being APSWP No.10/2004 for setting aside of the order whereby he was set ex parte denying knowledge about the pendency of the proceedings. 10. It is only thereafter that Anil Kumar, the private respondent No.5, who had been proceeded ex parte in the writ petition approached the court by way of an application being APSWP No.10/2004 for setting aside of the order whereby he was set ex parte denying knowledge about the pendency of the proceedings. This application came to be allowed only on 24th February, 2006 and an order for revival of the writ petition came to be passed again. The court while allowing the application of the private respondent, however, made it clear that revival of the writ petition would not impact the order dated 19th May, 2005, whereby the writ petitioner stood engaged as Rebhar-e-Taleem in Government Primary School, Juddi. The respondent No.5 has contended that Juddi was a hamlet of village Bhalwana; that though the Primary School was initially sanctioned for Juddi it was later shifted to hamlet Bharote of village Barshalla as there was no student in hamlet Juddi to get enrolled in the school. It was further contended that the school was situated in Bharote which was hamlet of village Barshalla and not village Bhalwana; respondent No.5 being resident of village Barshalla was eligible for the appointment. 11. The respondent also disputed the veracity of the State Subject Certificate and the Resident of Backward Area Certificate issued by the competent authority in favour of the writ petitioner. Needless to say that the writ petitioner disputed these averments and filed further documents to support the rival pleas. 12. Again, keeping in view the nature of the controversy, by an order dated 25th February, 2010, the Court sought information as regards location of the school and status of hamlets Juddi and Barote in case Bhalwana and Barshalla were two separate revenue villages, list of all hamlets / mohras. 13. After considering the record of the case, pleadings filed by the parties and the information given by the Zonal Education Officer, Gundna and the Deputy Commissioner, Doda, the learned Single Judge returned a finding that the Primary School had been sanctioned for Juddi which was a hamlet of village Bhalwana and that the available record establishes that the writ petitioner was a resident of Barnala which falls within the revenue village, Bhalwana, while the private respondent No.5 was the resident of village Barshalla. Additionally, placing reliance on the affidavit sworn by the District Development Commissioner, Doda, it was held that morha/hamlet Juddi fell entirely in the revenue village Bhalwana and did not fall within the revenue village Barshalla. In this factual background, holding that in terms of Government Order No.396-Edu of 2000 dated 28th April, 2000, the learned Single Judge concluded that only the person who is the resident of village Bhalwana would be eligible for engagement as Rebhar-e-Taleem position in the Government Upper Primary School Juddi and as such the respondent No.5 was not eligible to be so appointed for the reason he was a resident of revenue village Barshalla. 14. On close scrutiny of the record, the learned Single Judge further concluded that there was nothing on record to support the contention of the respondent No.5 that a decision has been taken to shift the school sanctioned for mohra/hamlet Juddi to mohra/hamlet Bharote as was manifested from the stamp of the Headmaster as well on the supplementary affidavit. In view of all these findings, by the impugned judgment dated 7th May, 2013, the learned Single Judge accepted the writ petition by quashing the order No.ZEO/304-307 dated 10th July, 2000, whereby Anil Kumar, the respondent No.5 was appointed and held that the writ petitioner was entitled to be appointed as Rebhar-e-Taleem in the said school against the resultant vacancy with all consequential benefits. It is aggrieved of this order of the learned Single Judge that the present appeal has been filed. 15. We have heard Mr. D.K. Khajuria for Anil Kumar, the private respondent No.5; Mr. Ravinder Gupta, learned AAG for respondents 2, 4 and 5 and Mr. M.P. Gupta, Advocate for Mohd Shafi Hajjam, the writ petitioner who has been impleaded as respondent No.1, in the present appeal at length. Learned counsels have carefully taken us through the record of the writ petition which has also been called for. 16. Mr. D.K. Khajuria, learned counsel for the appellant has pressed the appeal on the very grounds, which were raised before the learned Single Judge. There is no dispute at all before us that the appellant (respondent No.5 in the writ petition) was a resident of revenue village Barshalla. It is also not in dispute that revenue village Barshalla and revenue village Bhalwana are two separate villages. 17. Before us as well, Mr. There is no dispute at all before us that the appellant (respondent No.5 in the writ petition) was a resident of revenue village Barshalla. It is also not in dispute that revenue village Barshalla and revenue village Bhalwana are two separate villages. 17. Before us as well, Mr. D.K. Khajuria has vehemently contended that the school in dispute was partially situated in both these villages for the reason that there are hamlets which are common to these two villages. It is contended that for this reason, village level committees of two villages has prepared the select panel. In support of this submission, the appellant has relied on a report dated 27th July, 2010 by Shri Farooq Ahmed Khan, Deputy Commissioner, Doda. This report also states that while Bhalwana is revenue village, whereas Bharote is only a Mohra (hamlet). The Deputy Commissioner has further clarified that maximum number of households of the Mohra Bharote falls in village Bhalwana while a small number of households falls in revenue village Barshalla. The Deputy Commissioner, Doda has, however, specifically stated that Mohra Juddi falls in the village Bhalwana. 18. The objection before us really rests on the adjudication of the location of the school where the Rehbar-e-Taleem position was available and required to be filled up. We have noted above the stand of the Zonal Education Officer, Gundna in his affidavit that the school stands sanctioned for mohra/hamlet Juddi in the revenue village of Bhalwana and is known as the Government Primary School, Juddi. The District Development Commissioner, Doda in his aforesaid affidavit has clearly stated that Mohra Juddi was entirely within the revenue village of Bhalwana. 19. For the purpose of establishing the location of the school, the learned single Judge has referred to the revenue records and certificates issued by the Headmaster, Upper Primary School, Juddi which has been placed on record, with the supplementary affidavit filed by the petitioner and that the school building is located at survey no.769/119 revenue village, Bhalwana. The location of the school as per the certificate issued by the Headmaster, Namderdar and Chowkidar is located within the territorial limits of village Bhalwana. In this background, the findings of the learned single Judge are supported by the extensive record placed in the writ record. The location of the school as per the certificate issued by the Headmaster, Namderdar and Chowkidar is located within the territorial limits of village Bhalwana. In this background, the findings of the learned single Judge are supported by the extensive record placed in the writ record. This includes copy of the ration card in favour of the writ petitioner; Certificate dated 28th May, 2010 issued under SRO No.294 by the Tehsildar; Letter no.428 dated 19th May, 2005 issued by the Zonal Education Officer certifying that Mohd Shafi Hajjam was resident of Mohra(Hamlet) Bharote, village Bhalwana; revenue record of the land and certification by the Numberdar to the effect that Upper Primary School, Juddi is running in Mohra Bharote which falls in revenue village Bhalwana. 20. The learned Single Judge has noted that it was nobody’s case that any part of the mohra/hamlet Juddi fell in the revenue village Barshalla. No material has also been pointed out to us, which would enable us to conclude that any decision was taken for shifting of the school sanctioned for Mohra Juddi to Mohra Bharote. In this background, the finding of the learned single Judge that the Primary School, Juddi falls entirely within the revenue village Bhalwana cannot be faulted. 21. It is trite that so far as the appointment up to the Rebhar-e-Taleem position in schools are concerned, it is the Mohra/Hamlet and revenue village for which school is sanctioned and the residence of a candidate which would determine his/her eligibility for appointment to such positions in the given school. When examined from this perspective, after careful analysis of the documents on record, the learned single Judge has found that the writ petitioner/respondent No.1 herein was a resident of revenue village Bhalwana while the respondent No.5/appellant was a resident of revenue village Barshalla. As such the appellant was ineligible for appointment as Rehbar-e-Taleem, Primary School, Bhalwana. 22. The findings of the learned single Judge are also supported by the Enquiry Report dated 12th November, 2011 submitted by the Deputy Commissioner, Doda. 23. In view of the above, the conclusions of the learned single Judge are based on the record of the case. The conclusion supported by the copies of the official record placed on record are completely unassailable. For all these reasons, we find no merit in this appeal, which is hereby dismissed.