Javida Akhter vs State and Others

Hasnain Massodi, Judge

Heard. Admit.

The petition, in view of the short controversy involved, is at the request taken up for final disposal at its threshold.

The dispute between the parties relates to domicile/place of the residence of the petitioner. The Zonal Education Officer, Kunzar--respondent

No. 6 herein vide advertisement notice No. ZK/4634-36 dated 11.12.2009 invited applications from the eligible candidates belonging to revenue

village Kralwath, for two posts of R.e.T lying vacant in the local school. The petitioner responded to the advertisement notice and so did the

respondent No. 7. The petitioner accordingly was included in the list of candidates who applied for the available vacancies. However, the

respondent No. 6 scored out her name from the list on the ground that the petitioner had not submitted her Present Residence Certificate and that

as per the verification made by the respondent No. 6, the petitioner was presently residing at Model town Sopore, and not eligible for the

advertised post.

The petitioner aggrieved with her non-inclusion in panel of the eligible candidates prepared by respondent No. 6, filed writ petition registered as

SWP No. 2082/2009. The petitioner's grievance was that she was not in a position to get Present Residence Certificate because of the Circular

issued by Sub Divisional Magistrate Sopore forbidding all the Tehsildars including Tehsildar Tangmarg for issuance of such Certificate. It is

pertinent to point out that the Permanent Residence Certificate/State Subject Certificate was duly enclosed by the petitioner with her application

and as per said Certificate petitioner was a resident of village Kralwath. The writ petition was disposed of, on 1st. February 2010 with a direction

to the respondents to accord consideration to the petitioner's case and finalise selection thereafter.

However, the respondents proceeded with the selection process and prepared a panel of two candidates-respondent No. 7 and one Ashiq

Hussain Lone. The petitioner once again approached this Court with SWP No. 101 of 2010, the writ petition was disposed of, with a direction to

the Deputy Commissioner Baramulla to inquire into the matter and conclude inquiry within one month. The Deputy Commissioner Baramulla first

appointed Shri Mohamad Akbar Project Officer, DRDA, Baramulla as Inquiry Officer and later entrusted the inquiry to Shri Showket Ahmad Dar

Additional District Development Commissioner Baramulla, The Deputy Commissioner instead of arriving at his own conclusion vide No.

DCB/2011/457 dated 26.01.2011 forwarded both the inquiry reports i.e. one rendered by Shri Mohamad Akbar Project Officer, DRDA, and

other by Shri Showket Ahmad Dar Additional District Development Commissioner Baramulla to the Chief Education Officer for his perusal and

further necessary action. It is pertinent to point out that the first Inquiry Officer-Project Officer DRDA Baramulla concluded that the petitioner and

her husband Shri Irfan Ahmad had not permanently shifted from the village Kralwath and were not to be deprived of their rights as residents of

village Kralwath. The Second Inquiry Officer-Additional District Development Commissioner opined that the petitioner was not actually residing in

village Kralweth at the time she applied for the post in question but had temporarily shifted from village Kralwath to Sopore. The Second Inquiry

Officer left her validity of candidature to the decision of the officers of Education Department.

The petitioner apprehending that the respondents may go ahead with the appointment of private respondents on the basis of the Second inquiry

report has filed the instant writ petition praying for following reliefs:-

(a) A writ of mandamus commanding upon the respondents to appoint the petitioner against the post of ReT in the light of inquiry report submitted

by Project Officer District Rural Agency Baramulla vide No. DRDA/Bla/1074 dated 11.10.2010 forming annexure-P/10 to the writ petition.

(b) A writ of certiorari seeking quashment of 2nd inquiry report submitted by Additional District Development Commissioner Baramulla, vide his

No. ADDC/Bla/623 dated 10.01.2011.

(c) A writ of mandamus commanding upon the respondents not to come under the political influence by giving undue advantage to the private

respondent who is lower in merit than that of the petitioner.

(d) A writ of mandamus commanding upon the respondents to appoint the petitioner from the date she was due for appointment with all

consequential benefits.

The respondents oppose the writ petition on the grounds that the inquiry conducted by Additional District Development Commissioner and

other inputs from the local Revenue Agency having established beyond doubt that the petitioner was not residing at village Kralwath at the time she

applied for the advertised post, the official respondents were within their power to finalise the selection having regard to the inquiry report and

other material available to the respondents.

I have gone through pleadings and have heard Counsel for the parties.

It is pertinent to point out that in terms of Sarva Shiksha Abhiyan Scheme, engagement of a ReT having regard to the role, expected to be

played by him to achieve the objects of the Abhiyan is to be drawn from the local habitation or revenue village, as the case may be. The question

arises whether a candidate who because of personal reasons has temporarily shifted his residents from the habitation or revenue village, as the case

may be, to an urban area is automatically disentitled from competing for the available position of Rehbar-e-Taleem in the local school. It is fact of

common knowledge that people from rural areas migrate to urban areas for different reasons including better educational avenues for their children,

in pursuit and in connection with employment, or to set up a business. Such migration may be temporary or permanent. The person migrating may

have an intention to go back and resume residence in his village once he achieves short term target(s). In some of case such migration may be

permanent and the person migrating having no intention to return to his village to resume his residence in the village. In any case the determining

factor is intention of the persons migrating from the villages.

In the present case though the inquiry reports are in some respects conflicting, still there is an agreement between the Inquiry Officers that the

petitioner has only temporarily shifted from village Kralweth and set up a temporary residence at Model town Sopore. The inquiry reports do not

help us to know whether the petitioner has set up a Permanent Residence at Model town Sopore and has no intention to resume residence at

village Kralweth, or the petitioner's intention is to return to her village and start residing at her native place. Since this question is likely to come up

in a number of cases, it would be appropriate to lay down guidelines for determination of the question before the parties are pushed to unnecessary

and avoidable litigation.

The intention of a person migrating from a village or habitation of a village to a town or a city to reside in such town or city for a brief/short

period or to permanently settle in such town or city is gatherable from a number of attending circumstances. The facts to be considered to gather

intention of such migrant are his decision to retain the residential house and landed property at his native place, construction of a residential house in

the town or city where he has migrated. Whether such a migrant applies for Ration Card in town or city, surrenders his Ration Card pertaining to

his native place, opts for his enrollment in the Voter list in the town or the city where he has migrated, gets his name deleted from the voter list

pertaining to his native place some are of the factors that deserve to be considered while concluding whether he had an intention to permanently

migrate to the town or city. The list of afore identified factors however is only illustrative not exhaustive.

It is the Tehsildar (Territorial) who is competent to inquire into the matter and arrive at a conclusion of-course after affording such a migrant an

opportunity of being heard and having regard to the inputs he gets from his field agency including local Patwari. The Zonal Education Officer has

neither expertise nor the necessary information available to decide whether a person who has migrated from his village or habitation to a town or a

city intends to temporarily set up a residence in a town or city or has permanently so migrated.

From the above discussion it emerges that the Chief Education Officer/Zonal Education Officer whenever necessary is to ask the candidate

whose eligibility is disputed on the basis of his having migrated from his native place to a city or town or another village to get Present Residence

Certificate from the Tehsildar (Territorial) within whose jurisdiction the revenue village falls. It is pertinent to point out that whenever the migration

is only temporary and it is discernible from the available material that such person intends to resume resident in village or habitation he deserves to

be considered for the available vacancy of Rehbar-e-Taleem in the local school.

In the present case the Circular, issued by Sub Divisional Magistrate Sopore, directing all the Tehsildar not to issue such Certificates is

unwarranted and not to stand in way of Tehsildars concerned to consider the matter issue or decline to issue Present Residence Certificate. The

guidelines that are required to be followed to achieve the object of SSA Scheme may thus be summarised as under.

(I) The Chief Education Officer/Zonal Education Officer shall where-ever it is necessary to verify present residence of an aspirant for ReT, ask for

Present Residence Certificate from such aspirant to be submitted before the tentative panel of the candidates is prescribed.

(II) The Present Residence Certificate shall be issued by Tehsildar (Territorial) and to rule out any confusion or uncertainty no other certificate from

any other authority shall be entertained.

(III) The Tehsildar before issuance of the certificate shall inquire into the matter and take into account all the above mentioned factors, the report of

his Field Agency and other factor that are found relevant to inquiry.

For the reasons discussed the writ petition is disposed of, with a direction to the Tehsildar (Territorial) Tangmarg-respondent No. 5 herein to

accord consideration to the petitioner's case for grant of Present Residence Certificate having regard to the observations made herein above and all

inputs, reports that may be available by his field staff. The Tehsildar (Territorial) shall give adequate opportunity to the petitioner as also any other

person who objects to grant of such certificate in favour of the petitioner to project their stand, and shall in any case pass order warranted under

facts and circumstances of the case within four weeks from the date copy of this order is served on him. The Chief Education Officer and Zonal

Education Officer shall on receipt of order of Tehsildar (Territorial) finalise the selection in light of such order and issue engagement order in favour

of the candidate entitled to be engaged. Till then the selection process shall be put on hold.

The writ petition is disposed of, along with connected CMP(s).