Brajesh Kumar vs State Through Education Deptt. And Others

Sanjeev Kumar, J

An Advertisement Notification for engagement of RET in various upgraded Primary School in District Kishtwar was issued by the respondent No.3

vide his No. CEO/J/A/SSA/2009-375-77 dated 11.02.2009. In the Advertisement Notification, two posts, one each in Science and Mathematics

stream, were notified to be filled up in the upgraded Primary School, Machna of Education Zone Marwah and two posts, one each for Science and

Mathematics stream were notified for upgraded Primary School, Nebber of Education Zone, Marwah. The petitioner, as is claimed by him, being

eligible in terms of the Advertisement Notification submitted his application form duly recommended by the Village Level Education Committee for his

engagement against the post of RET in medical stream for UPS Machna. The UPS, Machna, it is stated, falls in Revenue Village, Deharna of

Panchayat Deharna. The respondent No.4 prepared a merit panel in which the petitioner was placed at S.No.2 on the basis of his merit. The

respondent No.6 a resident of village Yourdu, Panchayat Yourdu was empanelled in the merit panel of UPS Machna and was placed at S.No.1. It is

claimed that respondent No.6, who is a resident of Revenue Village Yourdu was also empanelled for UPS Nebber which falls in the Revenue Village

Yourdu/Panchayat Yourdu. It is the allegations of the petitioners that the respondent No.5, a Dealing Assistant in the office of the respondent No.4,

with a view to get his son-respondent No.7 engaged in UPS Nebber managed to prepare the panel of UPS Machna at the zonal level on the ground

that there was no eligible candidate available in the Revenue Village Deharna. It is pointed out by the petitioner that the respondent No.6, who was at

S.No.1 in the panel prepared for UPS Nebber, was not engaged in the said School, but, his candidature was considered for UPS Machna for which

the merit panel was prepared at the zonal level. It is, thus, claimed that the respondent No.5 by shifting the respondent No.6 to UPS Machna

facilitated engagement of respondent No.7, who is none other than son of respondent No.5, in UPS Nebber. The short grievance projected by the

petitioner in this petition is that had the respondent No.6 been considered and engaged as RET (medical stream) in UPS Nebber, the petitioner with

highest merit in the zone would have been engaged as RET (medical stream) in UPS Machna. The petitioner claims that feeling aggrieved by

manipulation done by the respondent No.5, the petitioner made several representations to the respondents, which were followed by legal notice, but,

the respondents turned a deaf ear to the grievance of the petitioner. Having failed to get his grievance redressed by the respondents, the petitioner

approached this Court through the medium of instant petition. The petitioner challenges the engagement of respondent No.6 in UPS Machna and that

of respondent No.7 in UPS Nebber on the ground that their engagement besides being illegal and arbitrary is an outcome of manipulation made by the

respondent No.5 for engagement of his son-respondent No.7. It is, thus, claimed that as per the terms and conditions of the Advertisement Notification

and object of RET scheme, respondent No.6, a resident of village Yourdu where UPS Nebber is situated, was entitled to be engaged as RET (medical

stream) in UPS Nebber as he was a candidate belonging to the village with highest merit and rest of the candidates, who had applied for the post of

RET (medical stream) at the zonal level for UPS Machna were required to be considered on the basis of their inter-se merit. It is, thus, urged that

since, after respondent No.6, it was the petitioner, who had the highest merit in the zone, as such, he was a candidate, who should have been engaged

for UPS Machna.

The respondents have filed the objections and resisted the writ petition. The selection of respondents No. 6 and 7 as RET in UPS Machna and

Nebber is sought to be justified. In the reply, the respondents 1 to 4 state that after receiving the application forms for UPS Machna, the respondent

No.4 prepared a tentative panel at zonal level as per the Government Order No.1639 of 2003 dated 12.11.2000 for the reasons that in the Revenue

Village/Panchayat Deharna where UPS Machna is located, there was no local candidate available in the said stream. The respondent No.6, who had

applied for the aforesaid post, was considered along with others, and on the basis of merit prepared at zonal level, he was placed on the top of the

panel. It is on account of his merit, the respondent No.6 was engaged as RET (medical stream) for UPS Machna. It is further stated by the

respondents that so far as respondent No.7 is concerned, he being a resident of village Yourdu had applied for RET (medical stream) in UPS Nebber,

which is admittedly located in village Yourdu. He being the only candidate available in village was, thus, selected and engaged as RET medical stream

UPS Nebber. This is, in nutshell, the stand taken by the official respondents in their reply affidavit.

The respondent No.5 against whom the petitioner has made specific allegation that he managed the whole selection so as to confer wrongful benefit

upon his son, respondent No.7, too has filed his separate reply affidavit. The respondent No.5 in his reply claims that he is serving in the Education

Department as general line teacher, but, during the year 2009, the respondent No.4 had deployed him in his office for doing official work where he

continued till December, 2011. He, however, submits that he was neither member of the Village Level Education Committee for UPS

Machna/Deharana nor UPS Nebber, Panchayat Yourdu or any other School in Marwah zone. He further asserts that he was in no manner associated

with the selection and engagement of RETs in the Education Zone Marwah. The respondent No.5 also refers to the inquiry report dated 23.06.2010

and 06.07.2010 submitted by the respondent No.4 to the respondent No.3, which was conducted on the complaint of respondent No.3 against the

selection panel of UPS Nebber. It is stated that in the inquiry that was conducted by the respondent No.4 under the directions of the respondent No.2,

the allegations leveled by respondent No.6 were not substantiated. It is, thus, submitted that since the respondent No.6 had applied for engagement as

RET only for UPS Machana and, as such, his candidature was, accordingly, considered. The respondent No.5 denies that the respondent No.6 had

actually applied for UPS Nebber as is claimed by the petitioner. The respondent No.5, however, does not deny his relationship with respondent No.7.

The respondent No.7, too, has filed his response to the writ petition and submits that with the similar allegations as have been leveled by the

petitioner in this writ petition, a complaint was earlier filed by the respondent No.6 before respondent No.2 averring therein that he had not been

enlisted deliberately for UPS Nebber, which is located in his Revenue village, but, was enlisted in another village and Panchayat. On receipt of the

complaint, the respondent no.2 directed the respondent No.3 vide his communication No.DSEJ/RET/1380 dated 30.04.2010 to look into the complaint

personally and further directed to conduct thorough inquiry into the allegations made by the respondent No.6. The respondent No.3, in turn, called upon

the respondent No.4 to submit the report. The respondent No.4, vide his communication No ZEO/N/10/466 dated 23.06.2010, communicated to the

respondent No.3 that as per the records maintained in his office, the respondent No.6 had not applied for UPS Nebber, but, had submitted the

application form only for UPS Machana. It is further pointed out by the respondent No.4 that since there was no local candidate available for UPS

Machna Revenue village Deharna, as such, the penal was prepared at zonal level and in which respondent no.6 being a candidate with highest merit in

the medical stream was engaged. The reference has also been made by respondent no.7 to another communication of respondent No.4 issued vide his

No. ZEO/N/10/483 dated 06.07.2010 wherein the respondent no.4 has reiterated his earlier position that respondent no.6 who had filed a complaint

before the respondent No.2 had never applied for UPS Nebber nor did he ever raise any objection against the tentative panel in which his name was

not included. The respondent No.7 further claims that in order to comply with the directions of the respondent no.2, the respondent no.4 prepared a

panel indicating the name of the respondent No.6 also along with respondent no.7 for UPS Nebber which, however, was not signed by any of the

member of Village Level Education Committee. The objections raised by the VLC, which were submitted to respondent No.4 are also relied upon by

the respondent no. 7 in support of his defence. The respondent no.7 has further made a revelation in his reply affidavit. He submits that being

aggrieved of the empanelment of the respondent no.6 for UPS Nebber, the respondent No.7 filed SWP No. 1971/2000 in which this Court at the time

of issuing notice to the respondents also stayed the said panel. He submits that later on, on the assurance of the respondent no.2 that his grievance

would be redressed, the respondent no.7 withdrew the aforesaid writ petition on 21.10.2010.The respondent No.7 concluded his reply affidavit by

stating that since fresh panel prepared by respondent no.4 indicating the name of respondent no.6 for UPS Nebber was not accepted and signed by

Village Level Education Committee, as such, the respondent no.2 approved the selection of respondent No.7, which ultimately culminated into

issuance of formal order of engagement of respondent No.7 as RET in UPS Nebber. It is claimed that since 22.11.2010, he has been continuously

working and performing his duties in UPS Nebber whereas the respondent No.7 is serving in UPS Machna.

The record of SWP No. 1971/2010 filed by respondent No.7 challenging the empanelment of respondent No.6 for UPS Nebber which was later on

withdrawn was called for perusal at the instance of the petitioner. The petitioner during the course of arguments placed reliance on the reply filed by

the respondent No.6 in the aforesaid writ petition in which a categoric stand has been taken by the respondent No.6 that he being the resident of

village Yourdu where UPS Nebber is situated and which school happens to be nearest to his residence, had applied for the post of RET in UPS

Nebber and it was the father of respondent No.7, who did not accept the application form of the respondent No.6 for UPS Nebber, but, considered it

as one for UPS Machna. In short, the stand, which was taken by the respondent No.6 in the aforesaid writ petition was that he had infact applied for

UPS Nebber and not for Machna and it was only at the instance of respondent No.5, the things were manipulated in a manner that respondent No.6

was selected for UPS Machna and the way was paved for engagement of respondent No.7 for UPS Nebber.

Having heard learned counsel for the parties and perused the record, I am of the view that a very serious disputed question of fact arise for

determination in this petition. It is a specific assertion of the petitioner that respondent No.6 had applied for the post of RET in UPS Nebber, which

school falls in Revenue Village/Panchayat Yourdu. He submits that the respondent No.6 being a resident of village Yourdu with highest merit would

not have even thought of applying for UPS Machina, which school falls at a distance and is situated in a different village and Panchayat. He further

claims that apart from the respondent No.6, there was only one more candidate available in village Yourdu, who could have been considered for UPS

Nebber and it was respondent No.7. In presence of respondent No.6, the respondent No.7 could not have been engaged. Since the respondent no.6

was a most meritorious candidate in the Education Zone Marwah, as such, he could have been engaged for UPS Machina as well where due to non-

availability of the local candidate, the respondent No.4 has extended the zone of consideration to the zonal level. He, however, submits that he was

interested to serve in the school, which was quite nearby him and, therefore, had staked his claim for the post of RET in UPS Nebber. The specific

allegations have been made in the writ petition that all this was happened due to the manipulation made by the Dealing Assistant in the office of

respondent No.4, i.e, respondent No.5 to accommodate his son, i.e., respondent no.7. The candidature of the respondent no.6 was deliberately shifted

to UPS Machina and the respondent No.7 was selected and engaged in UPS Nebber being the only local candidate available in the village. This

allegation of the petitioner is supported by the record of the writ petition (SWP No. 1971/2010) filed by the respondent No.7 against the empanelment

of the respondent No.6 for UPS Nebber. In the aforesaid writ petition, the respondent No.6 had taken the same stand as has been urged by the writ

petitioner in this petition. It is also not in dispute that the respondent No.6, who was not selected for UPS Nebber and was instead selected for UPS

Machina had filed a complaint before the respondent No.2. The respondent No.2 got this complained investigated through respondent no.3. The

respondent No.2 had specifically asked the respondent No.3 to personally look into the complaint and held thorough inquiry into the allegations made

by the respondent No.6. The respondent no.3, however, delegated the authority to the respondent No.4, Zonal Education Officer and asked him to

inquire into the allegations. It may be noted that during the time of inquiry, which was held somewhere in the year 2010, the respondent No.5 was still

a Dealing Assistant in his office. The inquiry report did not support the allegations made by the respondent No.6. From the records, it further

transpires that the respondent no.2 was not satisfied with the inquiry made by the respondent no.4 and directed for submission of empanelment of

respondent no.6 for UPS Nebber. In response, the respondent No.4 submitted the fresh panel, which, of course, was not supported and signed by the

Village Level Education Committee. The respondent No.2 appears to have accepted the position that respondent No.6 had not applied for the post for

UPS Nebber and was, thus, rightly selected for UPS Machina on the basis of his merit at the zonal level. The official respondents as well as

respondent No.7 refute the allegations of the petitioner as they did when similar allegations were leveled by respondent No.6 against his exclusion

from the empanelment for UPS Nebber. The official respondents have produced the record to claim that the respondent No.6 never applied for UPS

Nebber. The Receipt Register too has been produced before this Court. From the perusal of the record, it clearly transpires that the candidates, who

responded to the Advertisement Notification submitted their application forms indicating their residents in Column No.5, which pertains to the

permanent address. They mentioned the names of their villages, blocks, Tehsils, Education Zone and District, but, kept the first row, which provides

for indicating the names of the post for which applied under the RET scheme, open without indicating the name of the School. The name of the school

appears to have been subsequently inserted. It is not clear as to whether the name of the school has been inserted later on by the candidates

themselves or by the office of the respondent No.4. I am saying so because there is variation in the handwriting as well as the ink used to fill up the

blank in the first row of the application form. From careful scrutiny of the record what transpires is that the candidates who responded to the

Advertisement Notification and submitted their application only gave their permanent address and did not indicate the School or the post for which

they submitted their application forms. The blank space in the first row of the application form was apparently filled up later by the office of

respondent no.4 having regard to the eligibility of the candidates to apply for the post. I am sure that the application form which was submitted by

respondent No.6 was considered for UPS Machina by filling up the blank space in the first row of the application form in the office of respondent

No.4. One also fails to understand as to why a person, who is eligible and entitled to be engaged in the school in his own village, would not apply for

the said village and instead submit his application form for some other distant school, situated in other village and Panchayat. More, when he is most

certain to make it to the top of panel.

Be that as it may, these facts are disputed question of facts and this Court in his extraordinary jurisdiction would not be in a position to ascertain. It

would equally be unfair to relegate the parties to remedy of civil litigation, which is not only time consuming, but, may not be affective given the fact

that respondent No.7 has already been in service for the last nine years. It may also be pertinent to note that the respondent No.2 too had called upon

the respondent No.3 to look into the allegations made by the respondent No.6 personally and conduct thorough inquiry, however, he did not ensure that

fair and transparent inquiry into the allegations made by the respondent No.6 is conducted by the respondent No.3. The respondent No.3 acting

contrary to the direction of the respondent No.2 entrusted the inquiry to respondent No.4 in whose office the alleged manipulation had been made by

the respondent No.5. The respondent No.4, in the given circumstances, could not have been expected to hold a fair inquiry. Unfortunately, the

respondent No.3 showed least concern to the directions of the respondent No.2 as also to the serious allegations made by the respondent no.6 against

the office of respondent No.4. To my mind, the inquiry has remained inconclusive and the respondent no.2 without taking inquiry into the logical

conclusion or asking the respondent No.3 to hold independent inquiry to the allegations proceeded to approve the panel and paved the way for

engagement of the respondent No.7.

Keeping in view the totality of the facts and circumstances of this case and with a view to render justice to the parties, I am of the view that this

petition needs to be disposed of by directing the respondent no.2 to constitute a Committee of the Officers headed by the Chief Education Officer,

Kishtwar to hold an inquiry into the allegations firstly leveled by the respondent No.6 in his complaint filed before the respondent No.2 and thereafter

made by the petitioner in this petition with regard to the exclusion of the respondent No.6 from the empanelment for UPS Nebber. The Committee

shall thoroughly inquire into the allegations and prepare its report after affording an opportunity of being heard to all the concerned including the

petitioner herein, the respondent No.6 and respondent No.7. The respondent No.2 shall appoint the Inquiry Committee as aforesaid within a period of

four weeks from the date a certified copy of this order is made available to it. The Committee so constituted would conclude its inquiry within two

months thereafter. Further action in the matter shall be taken by the respondent No.2 on the basis of the findings of Inquiry Committee within four

weeks. If, in the inquiry, the allegations made by the petitioner and the respondent No.6, which have been taken note hereinabove, are proved to be

correct and substantiated, as a follow up action, the respondent No.6 shall be shifted to UPS Nebber and the respondent No.7 ousted and in his place

petitioner shall be engaged as RET (medical stream) in UPS Machina. However, if the allegations leveled by the petitioner are found not based on

facts, the matter shall be given quietus and the respondents 6 and 7 shall be permitted to continue at their respective places. Ordered accordingly.

Disposed of as above along with connected CM(s).

Record be returned to the learned counsel for the official respondents against proper receipt.