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2020 DIGILAW 658 (JK)

Mohammad Syed Khan v. State of J&K

2020-12-04

RAJNESH OSWAL, SANJEEV KUMAR

body2020
Judgment Sanjeev Kumar, J.—On 8th of June, 2013, a notification was issued by respondent No.4 inviting applications on plain paper from eligible candidates for filling up various vacancies on the pattern of ReT. The notified vacancies included a vacancy of Teacher to be supplied on the pattern of ReT in Boys Primary School, Moriyan, falling in education zone Boniyar. The qualification prescribed for the post was 10+2. As is indicated in the notification, the selection was to be made on habitation basis. 2. The appellant along with other eligible candidates responded to the advertisement notification and sought his consideration on the basis of his eligibility. His application form was not accepted by respondent No.4. He moved an application before respondent No.3 who in turn endorsed the same to respondent No.4 on 20th of June, 2013, with a direction to look into the matter. The respondent No.4, however, did not entertain the application form submitted by the appellant and this made the appellant to approach, by way of a representation, before Deputy Commissioner, Baramulla. The Deputy Commissioner, Baramulla, directed respondent No.3 to hold an enquiry into the matter and take appropriate action but no action was taken by respondent No.3 and 4 despite directions from the Deputy Commissioner. 3. Having faced an arbitrary and wrongful exclusion from the consideration zone, the appellant brought his grievance to this Court by way of SWP No.1237/2013. The Writ Court vide its interim order dated 10.07.2013 directed the official respondents to entertain the application of the appellant and consider his candidature along with other eligible aspirants. Thereafter the application form of the appellant was considered along with others. 4. In the tentative selection panel published in Local Daily on 05.09.2013, the respondent No.5 was shown selected for Primary School, Moriyan. This was objected to by the appellant before the respondent No.4 but his objections were overruled and the selection of respondent No.5 was maintained. The appellant claims that though his overall merit was higher than that of respondent No.5 yet he was excluded by the respondents arbitrarily with a view to confer wrongful benefit of selection upon respondent No.5. 5. Feeling aggrieved, the appellant filed another petition i.e. SWP No.1754/2013, praying, inter alia, for quashment of selection of respondent No.5, a candidate far inferior in merit than the appellant. 5. Feeling aggrieved, the appellant filed another petition i.e. SWP No.1754/2013, praying, inter alia, for quashment of selection of respondent No.5, a candidate far inferior in merit than the appellant. Both the petitions were clubbed by the Writ Court and decided vide its order dated 18th of September, 2017. It is this order of the Writ Court which is impugned before us by the appellant by way of filing two separate appeals directed against the common order/judgment. 6. The impugned order has been assailed, primarily, on the following grounds: i) That the Writ Court did not provide an adequate opportunity to the appellant to place on record the requisite documents to substantiate his claim; ii) That the Writ Court did not appreciate that the sanction of the competent authority was for establishment of a Primary School at Pethgran Moriyan (Uri) and not at Moriyan and, therefore, the appellant being a resident of Pethgran Moriyan was eligible; iii) That the Writ Court also did not take into consideration the provisions of Government Order No.288-Edu of 2009 dated 08.04.2009 and erroneously held Moriyan qualifying as habitation for the purposes of restricting consideration to the eligible candidates residing in Moriyan; iv) That the Writ Court also failed to appreciate that the merit of the appellant in Graduation was higher than that of respondent No.5 and, therefore, had a preferential right of selection. The Writ Court erroneously held that it was the merit in Science subjects at the Graduation level that was relevant for appointment in question. 7. Mr. N. H. Shah, Senior AAG, has refuted the contention of the appellant that he was eligible to participate in the selection and submits that the appellant was permitted to participate in the selection process pursuant to the interim directions passed by the Writ Court. 8. Having heard learned counsel for the parties and perused the record, we are of the view that the judgment passed by the Writ Court does not deal with the issues raised before it. The primary issue which was required to be considered and determined by the Writ Court was as to whether habitation Moriyan qualified to be a village as defined in Government Order No.288-Edu of 2009 dated 08.04.2009. The primary issue which was required to be considered and determined by the Writ Court was as to whether habitation Moriyan qualified to be a village as defined in Government Order No.288-Edu of 2009 dated 08.04.2009. In the absence of any material clearly indicating that habitation Moriyan complied with the parameters laid down in the aforesaid Government Order, there was no justification for the official respondents to invite applications on habitation basis. Needless to say that the primary unit for making selection is a revenue village and it is only where habitation qualifies to be a village by meeting the requirements of Government Order No.288-Edu of 2009, the consideration can be restricted to the eligible candidates residing in such habitation. We have gone through the Writ Court record, more particularly the response of official respondents; we could not find any material to come to such conclusion. 9. The other aspect that deserves to be noticed is that, admittedly, both appellant and the respondent No.5 are Graduates and the merit of the appellant in the Graduation is higher than that of respondent No.5. As is clearly borne out from the advertisement notification, the selection was not for a post of ReT earmarked for Math/Science stream but was a general post for which 10+2 was the prescribed qualification. In that view of the matter, the conclusion arrived at by the Writ Court with regard to higher merit of respondent No.5 in the Science subject at the Graduation level may not be correct in law and in consonance with ReT scheme. The Writ Court has, thus, apparently gone wrong on both these aspects. 10. There is a document on record to indicate that the distance between the two habitations i.e. Moriyan and Pathgran is not more than 300 meters. If that be the position, then habitation Moriyan would not qualify to be a unit of selection in terms of Government Order No.288-Edu of 2009. 11. For the foregoing reasons, we find merit in these appeals and the same are, accordingly, allowed. The impugned order is set aside. The matter is remanded back to the Writ Court to re-hear the parties and decide the writ petitions afresh in the light of observations made hereinabove.