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2024 DIGILAW 23 (JK)

Nisha Kumari v. State of J&K

2024-01-31

SINDHU SHARMA

body2024
ORDER : 1. Petitioner, by way of this petition, seeks quashing of the engagement of respondent No. 5 as Education Volunteer/Para Teacher in EGS Centre, Thugi and with a further direction to the respondents to appoint her as Education Volunteer in the EGS Centre Thugi with all the consequential benefits. 2. In Zone Pancheri, a new EGS Centre at Thugi was sanctioned by the respondents under the Educational Guarantee Scheme in village Meer. In village Meer, two EGS Centres were sanctioned; (i) EGS Centre at Mohra Santha and (ii) EGS Centre at Mohra Thugi. The Education Volunteer (EV) was to be engaged on the basis of the merit from all the candidates of same village who were possessing 10+2 qualification. The respondent No. 5 was selected and appointed vide order dated 01.04.2005. 3. The contention of the petitioner is that the respondents have selected and engaged respondent No. 5, as an Education Volunteer in for EGS Centre in Village Meer, Mohra Thugi without issuing any advertisement and without following the norms for selection of an Education Volunteer. The petitioner, belonging to the said village, was the only eligible candidate for consideration to the post but was not selected for the post of Education Volunteer. The respondents, in order to select respondent No. 5 did not advertise the position of EV at EGS Centre Morha Thugi village Meer. The respondents, it is submitted, have wrongly selected respondent No. 5, who is resident of Mohra Guen and not Mohra Thugi and it is only the resident of the same Mohra, i.e., Thugi, who could be selected for the post. 4. The petitioner, aggrieved of the selection of respondent No. 5, approached Director, School Education Department, Jammu, with a request for her engagement as Education Volunteer on the ground that respondent No. 5, who has been engaged, is from a different Mohra and the petitioner is the only eligible candidate to be engaged as EV. The respondent No. 3 sought a detailed report under the Sarva Shiksha Abhiyan norms after thorough investigation in the matter but no further action in this regard was taken till date. 5. The respondents submit that the Zonal Education Officer Panchari vide advertisement Notice No. ZEO/P/SSA/49 dated 14.02.2008 invited applications from the eligible candidates of the concerned village/Mohra where the new EGS Centres were sanctioned. 5. The respondents submit that the Zonal Education Officer Panchari vide advertisement Notice No. ZEO/P/SSA/49 dated 14.02.2008 invited applications from the eligible candidates of the concerned village/Mohra where the new EGS Centres were sanctioned. The EGS Centres were sanctioned for 21 locations including EGS Centre at Mohra Santha and EGS Centre at Mohra Thugi, figuring at Serial Nos. 4 and 5 of the advertisement notice. 6. The eligible candidates were asked to apply for consideration to the post of Para Teachers w.e.f 14.02.2005 to 25.03.2005 on an honorarium of Rs. 1,000/- per month. The respondents submit that only one candidate i.e., Chanchal Singh, S/o Sh. Kapoor Singh, having education qualification 10+2 applied for EGS Centre at Mohra Thugi. The panel was prepared by the competent authority in accordance with the scheme and it was certified that VEC has recommended the candidate for EGS Centre and agreement between EV and VEC has been signed. This panel was approved by respondent No. 3 and an agreement was entered between the School Committee of Village Meer and respondent No. 5 and, accordingly, respondent No. 5 was engaged as an Education Volunteer. 7. The specific stand of the respondents is that as per the scheme the concerned Cluster Resource Person (CRP) has informed everyone in the vicinity to apply for the post but respondent No. 5 was only candidate, who applied and was selected. 8. Learned counsel for the petitioner on the other hand submits that the petitioner could not apply for the post of Education Volunteer as the same was never advertised and since only respondent No. 5 had knowledge of the same, he was the only candidate who applied for the post. 9. The Education Guarantee Scheme and Alternative and Innovative Scheme, i.e., the Centrally Sponsored Scheme of Non Formal Education (NFE) was introduced with a view to support the formal system in providing education to all children upto the age of 14 years. The NFE scheme was expanded to cover 10 educationally backward States of Andhra Pradesh, Assam, Bihar, Himachal Pradesh, Jammu and Kashmir, Madhya Pradesh, Orissa, Rajasthan, Uttar Pradesh and West Bengal. 10. The NFE scheme was expanded to cover 10 educationally backward States of Andhra Pradesh, Assam, Bihar, Himachal Pradesh, Jammu and Kashmir, Madhya Pradesh, Orissa, Rajasthan, Uttar Pradesh and West Bengal. 10. As per the scheme, the selection process for the Education Volunteers is covered under Clause 6.1 and the criteria under Clause 6.2, the same are reproduced as under: “6.1 Selection Process: i) The EV would be selected by the local community where the school/centre is proposed to be established. The state may define the role of the local VEC, Panchayat and the committee of parents where children are to be enrolled in the EGS & AIE centre. It is mandatory that an important role is assigned to the group of parents whose children are to be enrolled in the school/centre since they are the most important stakeholder in the proper functioning of the school. ii) The VEC/Gram Panchayat should ensure that the local community is informed about the need for a EV for the EGS & AIE school/camp. iii) The VEC/Gram Panchayat would receive applications, scrutinize them and shortlist suitable candidates. iv) The State could make available the support of DIET/BRC personnel to the village level body to assess the academic capacity of the candidates. v) The selection process may include a written test and an interview of candidates to make a final selection. vi) The teacher would be appointed by the parents’ committee/VEC/gram Panchayat as per the decision taken by the state. 6.2 Criteria for selection: i) The candidate should be atleast 18 years of age and be a matriculate (passed class X) for primary level school/centre. Women with lower than class X qualification should be engaged only in very exceptional circumstances where qualified women are not available at all. For some very specific cases, EGS & AIE would support professional preparation of women through long duration residential training programmes for their induction as EVs in schools/centres funded by the scheme. For upper primary centre the person should be atleast 2 years of age and a graduate. Women with class XII qualification could be selected if no suitable graduate candidate is available. ii) The Panchayat/VEC/Parents committee should give preference to women when selecting EVs. As an incentive for appointment of female EVs, preference would be given to EGS centres with female EVs while upgrading them to schools under SSA. Women with class XII qualification could be selected if no suitable graduate candidate is available. ii) The Panchayat/VEC/Parents committee should give preference to women when selecting EVs. As an incentive for appointment of female EVs, preference would be given to EGS centres with female EVs while upgrading them to schools under SSA. iii) The EV should, preferably, belong to the same habitations or village/panchayat. He/she should preferably belong to the same community as the children who would be enrolled in the school. The State Government may consider inclusion of a provision in the instructions that may be issued for selection of education volunteers for EGS school or AIE camp/centre for giving some preference to an erstwhile NFE instructor in the selection of the education volunteer under the new scheme, if the NFE instructor has performed his/her duties satisfactorily and satisfies the other conditions mentioned above. In addition, the states may consider relaxation of age limit for any instructors and supervisors for being eligible for selection under various para-teacher schemes including for EGS & AIE (where such age limit is decided by any state). The decision regarding selection of EV would vest with the VEC/gram panchayat.” 11. As per the scheme an important role in the selection process is assigned to the parents as well as the local community where the EGS centre is proposed to be established. The VEC/Gram Panchayat are to receive applications, scrutiny them and shortlist the candidates. The only requirement is that local community has to be informed of the post. The advertisement notice with regard to centres in the concerned areas were to be advertised as per the norms and programmes, though, the same may not have been advertised by way of newspaper but there is no condition that it had to be advertised by way of newspaper, in fact, the concerned Cluster Resource Persons (CRPs) had to inform all the eligible candidates in the village regarding the same and had informed the residents of the village because the VEC/Gram Panchayat had to ensure that the Local Community is informed and they had to receive, scrutinize and shortlist the applications. Therefore, the VEC/Gram Panchayat would have informed the residents of the Village of the same. As per the criteria, the Teacher would be appointed as per the decision of the VEC/Gram Panchayat. Therefore, the VEC/Gram Panchayat would have informed the residents of the Village of the same. As per the criteria, the Teacher would be appointed as per the decision of the VEC/Gram Panchayat. Once the VEC was vested with these powers, it would be improbable that they did not inform the residents or were not aware of the fact that a candidate was not a resident of the area. 12. As per the advertisement notice, as many as 34 newly sanctioned EGS Centres were advertised, the Zonal Education Officer Panchari District Udhampur in his affidavit has submitted that the post of Para Teacher/EVS was notified by the then ZEO Panchari and was duly circulated in revenue village. The petitioner had not applied for the post. The respondent No. 5 has applied and subsequently, the local committee entered into an agreement between the EV to be engaged as well as the Sarpanch, Panchayat Meer, Block Panchari and President/Secretary of VEC/PTA/MTA Panchayat and six other people. The local committee did not have any objection with regard to engagement of the candidate. As per the scheme, there is no requirement of its advertisement by way of publication in the newspaper. the only requirement is that the EV is to be selected by the local community and the local community is to be informed. 13. It is also submitted by the petitioner that respondent No. 5 resides in a different Mohra, i.e., Guen and not in Village Thugi, therefore, he was ineligible to be selected. However, no such condition is put forth in the scheme and the scheme framed for establishing the EGS Centres under the Sarva Shiksha Abhiyan and of the Education Volunteer, in fact, the Local Village Education Committee has signed an agreement with respondent No. 5 only with regard to the selection process. VEC would know the residence of the candidate and would approve the selection. 14. The next contention of the petitioner is that she was also eligible and meritorious candidate was to be appointed, however, the qualification certificate enclosed with the record reveals that the respondent No. 5 has obtained 264/600 marks in 10+2 examination, whereas, the petitioner has obtained only 262/600 marks, thus, the respondent No. 5 was more meritorious than the petitioner. 14. The next contention of the petitioner is that she was also eligible and meritorious candidate was to be appointed, however, the qualification certificate enclosed with the record reveals that the respondent No. 5 has obtained 264/600 marks in 10+2 examination, whereas, the petitioner has obtained only 262/600 marks, thus, the respondent No. 5 was more meritorious than the petitioner. Even if the petitioner had applied and participated in the selection process, the respondent No. 5 being more meritorious would have been selected for the said post. 15. This information was duly circulated in local areas by CRP. The village Education Committee had also endorsed the same in the panel prepared for EGS Centre Thugi. The petitioner also submits that respondent No. 5 is resident of village Guen whereas the Centre was advertised for Thugi as per the criteria for selection as per Clause-6.2 (ii) the EV should preferably belong to the same habitation/village Panchayat. He should preferably belong to the same community as the children who would be enrolled in the school. There is, thus, only preference for the same habitation/village and panchayat and no bar even if the candidate does not belong to the same. So even assuming that the respondent No. 5 does not belong to Morha Thugi, then also he is eligible for appointment. The VEC has important role from scrutinizing the applications till appointment, they have not objected to the appointment of the respondent. 16. It was next contented that respondent No. 5, under the Education Volunteer Scheme could subsequently be eligible for ReT and regularization in the Education Department. That be so, the petitioner has neither placed anything on record nor challenged the subsequent regularization of the petitioner as ReT as well as General Line Teacher in the absence of which this petition would not succeed. 17. The Hon’ble Supreme Court in “Miss Shainda Hassan vs. State of Uttar Pradesh and others”, AIR 1990 SC 1381 , which was a case, where the petitioner was appointed as a Principal in a Girls College though she had not the requisite experience in terms of the advertisement notice, allowed her to continue to work as Principal keeping in view the fact that she had served the institution for over 16 years. The Court held that it would be unjust to make her leave the post. The petitioner being eligible and meritorious was rightly selected. 18. The Court held that it would be unjust to make her leave the post. The petitioner being eligible and meritorious was rightly selected. 18. In view of the aforesaid facts and circumstances of the case, I do not find any merit in this petition and the same is, accordingly, dismissed.