Jyoti Sharma vs State And Ors

Sanjeev Kumar, J

Vide Advertisement Notice dated 20.01.2010 read with Corrigendum dated 26.02.2010, the respondent No.3 invited applications for engagement of

Rehbar-e-Taleem teachers for different schools in different Education Zones. The posts notified for selection included two posts of ReTs for Primary

School Patyari falling in Education Zone Vijaypur. Apart from other terms and conditions, the Condition No.5 provided that the candidate to be

appointed should be actually and physically residing in the village where the appointment of the Rehbar-e-Taleem is to be made. The petitioner claims

that since at the time of issuance of the advertisement notification, she was actually and physically residing in village Patyari and was otherwise

eligible on all counts, as such she applied for the post along with six more candidates, including respondent No.6. A Tentative panel on merit of the

candidates was prepared by the Zonal Education Officer concerned. The petitioner was placed at Serial No.1, whereas the respondent No.6 was

placed at Serial No.4. On the basis of the aforesaid merit, a tentative select panel consisting of two candidates only was issued by the respondents and

displayed in village Patyari for seven days w.e.f. 22.06.2010 for general information of the public of the area and for calling the objections, if any, from

the aggrieved candidates. It is submitted that the respondent No.6 objected to the inclusion of the petitioner‟s name in the select panel displayed by the

respondents on the ground that the petitioner was not resident of village Patyari. It is claimed that respondent No.6, after realizing that the objection by

him was without any substance and baseless, on his own withdrew his objection by filing an application supported by an affidavit. Since there was no

objection to the empanelment of the petitioner, the panel was submitted by the Zonal Education Officer concerned to the respondent No.2 for

approval. The respondent No.2, after completing the requisite formalities, approved the panel, vide his communication No.DSEJ/R-e-T/6684 dated

23.08.2010, as a result whereof, the petitioner was engaged as Rebhar-e-Taleem in the Primary School Patyari. She claims that she joined on the post

in September 2010 and, ever since, she is continuously working in the school, which is operating from her house. The respondent No.6, after a gap of

about two years, challenged the selection of the petitioner in SWP No.765/2012, which was disposed of by a Single Bench of this Court, vide judgment

dated 04.06.2014, and a direction was issued to the Deputy Commissioner, Samba to conduct fresh inquiry with regard to actual and exact residence

of the petitioner herein within a period of one month. The Deputy Commissioner was also directed to afford an opportunity of being heard to both the

parties and permit them to produce documentary evidence, if any, in respect of their claims. The Court further directed that the competent authority in

the Education Department shall pass appropriate orders on the basis of report to be submitted to it by the Deputy Commissioner, Samba after

conducting the enquiry. The Deputy Commissioner, Samba, it is claimed, did not conduct the inquiry himself, as directed, but got the same conducted

through the respondent No.5, i.e. Additional Deputy Commissioner, Samba, in which the latter concluded that the petitioner Jyoti Sharma was not

residing in village Patyari prior to 2010, when the post of ReT was advertised for the said village. It is this report of the ADC, Samba, which is

assailed by the petitioner in this petition. This court vide its order dated 19.02.2015, while issuing notice to the respondents after admission of the

petition, also directed the maintenance of status quo. The petitioner claims that the petitioner has been in continuous service ever since her

appointment and has now completed almost nine years.

The petitioner has challenged the report of the ADC, Samba, inter alia, on the ground, that ADC, Samba, had no jurisdiction to conduct any enquiry,

as the direction of the Court was to the Deputy Commissioner to hold the enquiry himself. The report of the enquiry has further been challenged, on

the ground, that ADC, Samba, who conducted the enquiry did not consider the relevant material before coming to his conclusions. He mainly relied

upon the documentary evidence but did not visit the spot and examine the locals of the area. The fact that the petitioner, after her marriage in village

Patyari w.e.f. 30.11.2007, has been actually and physically residing in the village and the house, where the school is operating, belongs to the petitioner

have not been taken into consideration by the respondent No.5. The ADC Samba, deliberately omitted to consider the report of the Patwari dated

11.02.2001, ration cards for the year 2005, 2010 and 2012, voter ID card of the petitioner and Chowkidara receipts w.e.f. 2001 till the date of enquiry

and, therefore, landed into returning an erroneous finding that petitioner at the time of appointment was not actually and physically residing in the

village concerned.

The respondents No.1 to 5 have not filed their objections. However, reply affidavit has been filed by respondent No.6, who, in his reply, has

supported the report of ADC, Samba, impugned in the petition. It is claimed that ADC, Samba, conducted the enquiry after associating both the

petitioner and the respondent No.6 in the enquiry. Both were given ample opportunity to produce their documentary evidence and the documentary

evidence produced by them were evaluated by the ADC, Samba, who after threadbare discussion on all aspects and taking into consideration the

material brought before him, arrived at the conclusion that the petitioner, at the time of issuance of advertisement notification, was not actually and

physically residing in village Patyari and, therefore, had no claim for the post, against which, she had been appointed/engaged.

Heard learned counsel for the parties and perused the record.

The process of selection for filling up two posts of ReT in Primary School, Patyari in Education Zone Vijaypur was set in motion by the Chief

Education Officer, Samba vide advertisement notification dated 20.01.2010. The advertisement notification was followed by a Corrigendum issued on

26.02.2010, in which, it was clarified that the two posts of ReT notified for selection in Primary School Patyari (Sarna), as indicated in the

advertisement notification dated 20.01.2010, were for Primary School Patyari and not Primary School Patyari (Sarna). It may be noted that Patyari

and Sarna are two different revenue villages and, as per the notification read with Corrigendum, the school in question is in village Patyari and not

Sarna and, therefore, candidates belonging to village Patyari alone were entitled to apply and seek consideration. The Condition No.5 of the

advertisement notification which has some relevance to the controversy raised in the petition is reproduced hereunder:

“(5) The applicant shall be selected on the basis of strict merit at village level/ panchayat/ zone level as per the direction issued vide Government

Order No.1630-Edu of 2003 dated 12.11.2003. The Panchayat Level/Zonal Level Panel shall be drawn, only if, no eligible candidate at village

level/ward level applies against this advertisment notice. The candidate to be appointed should be actually/presently residing in the village where the

appointment is to be made for the engagement of the RETs.â€​

From reading of the aforesaid stipulation in the advertisement notification, it is clear that apart from other eligibility conditions, the candidate applying

for the post was under an obligation to show that he was actually/presently residing in the village where the engagement of ReT was to be made. The

petitioner claiming to be the resident of village Patyari and actually and physically residing in the said village at the time of issuance of advertis ement

notification submitted his application form for the aforesaid two posts. Initially, her claim was accepted and in view of her higher merit she was placed

at serial No.1 of the panel of selection. The panel of selection after undergoing through different processes culminated into the approval by the

respondent No.2 and the issuance of the engagement letter in her favour in September 2010. The petitioner joined her services and as claimed by her

she is continuously working ever since. She also claims and which claim is not refuted that the Primary School Patyari is operating from the residence

of the petitioner which is situated in village Patyari. It is interesting to note that despite the fact that the panel indicating the name of the petitioner as

one of the selected candidates, came to be approved by the respondent No.2 in the year 2010 and in which year engagement order in favour of the

petitioner was also issued, the respondent No.6 waited for almost two years and challenged the selection of the petitioner in SWP No.765/2012. There

is no explanation forthcoming from the objections of the respondent No.6 with regard to this delayed filing of the writ petition. The respondent No.6,

while responding to paragraph 6 of the „brief facts‟ narrated in the writ petition, only submits that it is only on the failure of the authorities to look

into the genuineness of the documents of the petitioner, the answering respondent was constrained to file SWP No.765/2012. The respondent No.6

has nowhere stated as to where he was for all these years. There is another interesting aspect, which cannot be ignored by this Court. As claimed by

the petitioner, the respondent No.6 initially objected to the inclusion of the name of the petitioner in the select panel but later on realizing that petitioner

was the resident of the village Patyari withdrew his objections by filing written application supported by an affidavit. In response to the aforesaid

averments made by the writ petitioner in para 4 of the „brief facts‟ in the writ petition, the respondent No.6 has pleaded that he was coerced by the

ZEO concerned to withdraw his written complaint. He has, however, submitted that there could be no estoppel against fundamental rights and,

therefore, the petitioner cannot take the benefit of the application submitted by the respondent No.6 for withdrawal of objection raised by him to the

selection of the petitioner. From the reply affidavit filed by the respondent No.6, two things vividly come to the fore. First, that the objection, which he

has raised to the empanelment of the petitioner, which was later on withdrawn by him, was done by him by submitting the written application

supported by an affidavit duly signed by him. Fortunately, the respondent No.6 has not denied having made such application and affidavit. He further

claims that he was made to submit an application and affidavit in favour of the petitioner by the ZEO concerned and he did it under coercion and

pressure. This plea of the respondent No.6 is too specious to be accepted. It is not his case that he represented to the higher authorities with regard to

force and coercion allegedly applied by the ZEO concerned in submitting the application for withdrawal or approached police authorities in this regard

nor has he any explanation for filing the writ petition after two years of the engagement of the petitioner. All these facts when considered in true

perspective lead to only one conclusion that respondent No.6, though raised the objection at one point of time was later satisfied with regard to the

justification of the engagement of the petitioner. He belatedly filed the writ petition and succeeded in getting a direction to the Deputy Commissioner,

Samba, to hold an enquiry. In the enquiry, the Deputy Commissioner after getting the enquiry conducted, however, found that the petitioner, at the

relevant point of time, was not actually residing in the village concerned. The findings of fact returned by DC/ADC, Samba, has once again put the

appointment of the petitioner in jeopardy. This Court cannot lose sight of the fact that the petitioner has been continuously in service for the last nine

years and has, thus, become eligible for regularization as General Line Teacher. That apart, as rightly contended by the learned counsel for the

petitioner that direction by this Court in SWP No.765/2012, was to the Deputy Commissioner, Samba, to conduct the fresh enquiry and, therefore, the

DC Samba could not have delegated this power to the ADC Samba. From the perusal of the enquiry report impugned in this petition, it clearly

transpires that the DC, Samba, has not applied its own mind and has virtually accepted the report submitted by the ADC, Samba, and has concluded

that the petitioner before the issuance of advertisement notice was not the resident of village Patyari. Learned counsel for the petitioner has placed on

record various documents which indicate that petitioner has a land and house in village Patyari and has also been residing there. Some of the

documents on record also indicate that she has a house in Sarna as well. The documents placed on record by both the parties some of which have

been taken note of by DC, Samba, do not present a very clear picture about the actual and physical residence of the petitioner at the time of issuance

of the advertisement notification but taking into consideration the conduct of the respondent No.6 as noted hereinabove, i.e. his act of withdrawing the

objection raised by him against the empanelment of the petitioner for selection and his remaining quiet for almost two years before raising his

grievance by way of SWP No.765/2012, coupled with the fact that the petitioner, after having been engaged, is continuously performing her duties for

the last nine years and that building where the school is housed is a house belonging to the petitioner, I am inclined to accept this petition and quash the

impugned enquiry report prepared by the ADC Samba (the respondent No.5) and finalized by the respondent No.4. Ordered, accordingly.

The case of the petitioner for her regularization if not already considered shall be considered by the respondents in accordance with rules.

The writ petition is disposed of as above.