Mushtaq Ahmad Bhat vs State of J. and K.

Tashi Rabstan, J.—At the consensus of learned counsel for parties, the writ petitions on hand were admitted to hearing on 20th December

2013, taken up for final consideration and reserved for judgment. Advertisement Notification No. ZEO/KH/SSA/1370 dated 20th October 2012,

Zonal Education Officer, Khan Sahib-respondent No. 4 herein, issued, inviting applications from eligible candidates for engagement of Rehbar-e-

Taleems (ReTs) by way of replacement in Primary School Kash Mohalla, Kachwari and Primary School Bujran Mohalla, Thezwooder, with

minimum qualification of 10+2 and above. The unit of selection in terms of said advertisement notification has been shown on the basis of

habitation"" merit.

After applications were received, a List of candidates was recommended by Zonal Education Officer for engagement of ReTs on the basis of

merit determined from their credentials and published in daily newspapers inviting objections there-against, in which Mr. Fayaz Ahmad Kalas son

of Mohammad Shafi Kalas and Ghulam Hassan Bitty son of Manga Bitty have been recommended to be engaged as ReTs in PS Kash Mohalla

Kachwari Zone Khansahib and PS Thezwooder Zone Khansahib respectively.

Mr. Mushtaq Ahmad Bhat - petitioner and in SWP No. 62/2013 and Ms. Nusrat Maqbool Shah-petitioner in SWP No. 52/2013, aggrieved of

their exclusion from the List and inclusion of Fayaz Ahmad Kalas and Ghulam Hassan Bitty, have come up with writ petitions on hand.

In terms of this Court order dated 29th June 2013 both the writ petitions, after both were found on same subject matter, have been clubbed and

taken together.

In both writ petitions it is pleaded that petitioners are meritorious than private respondents. Petitioners, it is averred, filed application forms

pursuant to advertisement notification No. ZEO/KH/SSA/1370 dated 30.2012 but their applications were not entertained as petitioners were

informed that only those candidates' applications would be received who belong to the ""habitation"", in which the Schools are located and that since

petitioners applied on ""village"" basis their applications would not be entertained. The petitioners plead that in revenue concerned revenue village

there is neither any pati or habitation exist nor does it fulfill the requirement of Government Order No. 288-Edu of 2009 dated 08.04.2009. Non-

receipt of applications forms, according to petitioners, forced petitioners to file civil suits before the court of Sub Judge, Budgam, in which they

prayed for a direction to accept their applications forms. It is averred that respondents were put to notice and that respondent No. 4, who was

present before the court below, on 14.11.2012 was directed to accept petitioners' application forms and in view of directions, petitioners'

application forms were received and receipt issued. In view of receipt of application forms, petitioners' suits were disposed of.

It is contended that respondents have completed the formality by accepting petitioners' application forms. The selection/appointment list in favour

of private respondents was issued on 31.12.2012 and published in daily newspaper ""Greater Kashmir"", to which objections were filed by

petitioners. It is pleaded that petitioners again approached respondent No. 3 for confirming the decision taken by respondents on objections raised

by petitioners, they have been informed that there was no genuine objections raised by petitioners and that the selection list has been approved and

same has been recommended to respondent No. 2 for issuance of appointment orders in favour of selectees. The petitioners impugn advertisement

notification No. ZEO/KH/SSA/13370 dated 30.10.2012 and subsequent process of selection list issued in favour of private respondents for the

position of ReTs on the grounds that impugned select list itself mentions that private respondents are residents of Kachwari at Serial Nos. 3 & 4,

thus it is admitted that no habitation exists as on date vitiates the selection process initiated by respondents; that petitioners have applied before the

revenue officials for giving details as per record of rights whether there exists any habitation as mentioned by respondents in advertisement notice,

the applications were entertained and report was sought from concerned Parwari, who reported that Kachwari is a recorded revenue village and

no pati or habitation exist and respondent No. 5 has issued certificate in this behalf which was served to respondent selection authority but all in

vain; that notification dated 18.03.2010 was issued for appointment of ReT in same village and zone for selection was on ""revenue village"" and

selection process was finalised and appointment order was issued in his favour vide order dated 01.09.2010; that on the basis of same notification,

two more candidates were selected in village Kachwari on revenue village basis; that the selection was questioned by aggrieved party before court

of Sub Judge, Budgam, in a civil suit for a decree declaring selection of those selectees as null and void on the ground urged that the selection

process had not been adhered as per norms of the scheme and zone for consideration as per Government order No. 288-Edu of 2009, is

habitation; that official respondents filed written statement/objections resisting that suit deserves dismissal as there exists no habitation which is

evidenced by the copy of communication addressed to Public Prosecutor on 13.01.2011 and that para 2nd of the same is important for

adjudication of the matter.

Petitioners, on the edifice of case set up in writ petitions, seek quashment of advertisement notice No. ZEO/KH/SSA/1370 dated 30.10.2012 and

subsequent selection list issued vide notification published in daily newspaper Greater Kashmir in its issue dated 31st December 2012 and

consequent appointment for the position of ReT for Primary School Kash Mohalla, Kachwari, and Primary School, Bujran Mohalla, Thezwooder.

Petitioners also sought writ of mandamus, commanding respondents to issue fresh advertisement notice strictly in terms of Rehbar-e-Taleem

Scheme and allow all candidates of village Kachwari to participate in the selection process as also to consider petitioners' applications and all other

eligible candidates for the position of ReTs on revenue village basis.

The State of J & K and its functionaries - respondents 1 to 4 herein, in their Reply, have resisted writ petitions on the grounds that

advertisement notification was issued by respondent No. 4 and published in newspaper ""Kashmir Uzma"" vide No. ZEO/KH/SSAA/1370 dated

30.10.2012, inviting applications from eligible candidates having qualification of 10+2 and above for engagement of ReTs (replacement) in Primary

School Kash Mohalla, Kachwari and Primary School Bujran Mohalla, Thezwooder from the concerned ""habitation, that in response to said

notification three candidates of Kashmohalla Kachwari applied for ReT in Primary School Kash Mohalla, Kachwari and two candidates applied

for ReT in Primary School Bujran Mohalla, Thezwooder; that petitioners; also approached respondent No. 4 to accept their applications on the

plea that they too are residents of village Kachwari, however, their applications were not authenticated by Village Education Committee

(VEC/Panch Body of Kashmohalla, hence their applications were turned down; that feeling aggrieved, petitioners filed suit before the court of Sub

Judge Budgam, which was disposed of by Sub Judge, Budgam on 14.11.2012 with a direction to respondent No. 4 to entertain petitioners'

applications but with a direction that accepting/receiving petitioners' applications by respondent No. 4 will not confer any right of appointment to

petitioners against the position in question, if they are not otherwise found eligible for the position of ReT; that in compliance to directions of Sub

Judge, petitioners' applications were accepted, however, during scrutiny, petitioners were found ineligible for the position of ReT as petitioner

(Mushtaq Ahmad Bhat) belongs to Gohidragan, which is a separate habitation of the Village Kachwari while as the post was advertised on basis of

Kashmohalla habitation of Village Kachwari, duly authenticated by Tehsildar concerned and SDM of Block, which is 2.5 kilometers away from

petitioner's residence and based on large number of population. In respect of petitioner (Nusrat Maqbool Shah) it is stated by respondents that she

belongs to Dragger habitation, which is a separate part of the village Kachwari, while as the post was advertised on basis of Thaziwooder

habitation of village Kachwari, duly authenticated by Tehsildar concerned and SDM of Block which is a far flung habitation based on large number

of S.T. population. It is maintained by respondents that VEC/Panch Body has not recommended petitioners' case and accordingly respondent No.

4 framed Panel of meritorious candidates i.e. private respondents and submitted it to respondent No. 2 vide No. ZEO/KH/SSA/1439 dated

17.1.2012 for further necessary action. It is insisted that petitioners were not eligible for the ReT position as they belong to other habitations, which

are far away from the habitation, in which engagement of ReTs is to be made and that certificate signed by the Sarpanch which was produced by

petitioner (Nusrat Maqbool Shah), was later on withdrawn on the written statement of the said Sarpanch.

It is contended that advertisement was issued on the basis of ""habitation"" as the unit of selection in terms of Government Order No. 288-Edu of

2009 [Refer 2012 (16) JKS JK-701] dated 08.04.2009, which clearly provides that where habitations in a revenue village are scattered, a

candidate belonging to a habitation, popularly known as a village, at least one kilometre away from other habitations and having a population of

more than 300 persons shall be entitled to seek engagement as ReT in a local school. It is maintained by respondents that Kashmohalla and

Thaziwooder are separate habitations, duly authenticated by Tehsildar concerned and SDM of the block, which are far flung habitation based on

large number of population, comprising of more than 300 souls and is at a distance of more than 2.5 and 2 kilometres respectively from the

residence of petitioners as per the report of VEC/Panch Body as well as the certificate issued by Engineering Wing, thus, petitioners are not eligible

to be considered for the position of ReT. It is averred that the plea of petitioner, seeking consideration against the position in question by taking the

whole revenue village as the zone of consideration is factually as well as legally misconceived. Both in law as well as on facts, the relief claimed by

petitioners is impermissible.

Shri Fayaz Ahmad Kalas - respondent No. 6 in SWP No. 62/2013, in his reply, states that the unit of selection is ""habitation"" and not ""revenue

village"". It is insisted that petitioner (Mushtaq Ahmad Bhat), being resident of Gohidraggen Kachwari, which is a separate habitation and almost

2.5 kilometres distance from Kashmohalla, is not eligible for ReT as he is not resident of said habitation and rightly his application was not

accepted by official respondents. It is contended that petitioner, who has admitted in his petition at paragraph C, that he is resident of said village

and in this behalf when his application was not accepted he filed a civil suit before court of Sub Judge, Budgam, and on the directions of Sub

Judge, Budgam, petitioner's application was accepted but it was made clear that mere accepting of application form will not confer any right of

appointment to plaintiff against said post, if he is not otherwise eligible for the position of ReT and that said order will not come in the way of

official respondents in making engagement under rules and in accordance with law having bearing on the matter. It is made mention of that

petitioner has not challenged advertisement notice in the said suit, he has abandoned his right if any accrued to him, and, therefore, petitioner

cannot challenge advertisement notice in the writ petition and that even otherwise also court of Sub Judge, Budgam, has left official respondents

free to issue appointment in accordance with rules. It is averred that selection has been made strictly as per advertisement notice and directions of

civil court and that petitioner has not challenged the judgment of civil court. It is maintained by respondent that habitation of Kash Mohalla has

population of 900 souls and distance between Kashmir Mohalla to the residence of petitioner i.e. Gohi Draggen is more than 2.5 kilometers,

besides petitioner has participated in the selection and now he cannot be allowed to change the position when he did not find his name in the

selection list.

Shri Ghulam Hassan Bitty - respondent No. 6 in SWP No. 52/2013, states that petitioner filed a civil suit before the court of Sub Judge,

Budgam, wherein she has sought declaration as well as injunction and that the said suit was decreed on 14.11.2012 with a direction to official

respondents to accept petitioner's application form but it was made clear that acceptance or receiving of application will not confer any right of

appointment to petitioner against the position in question if she is not otherwise eligible for the position and that the order of Sub Judge, Budgam,

will not come in the way of official respondents to make engagement under rules and in accordance with law having bearing on the matter. It is

insisted that the habitation, in which petitioner resides, is far away from the habitation, in which engagement of ReT is to be made. It is averred that

petitioner, when his applications was not received by official respondents, filed civil suit before the court of Sub Judge, Budgam, in which he has

not challenged the advertisement notice and that the court of Sub Judge, Budgam, disposed of petitioner's civil suit with a direction to official

respondents to receive petitioner's application but it was made clear by Sub Judge, Bugam, that mere receiving/acceptance of application will not

confer any right of appointment to petitioner against the position in question if petitioner is not otherwise eligible for the position and that the order

of Sub Judge, Budgam, will not come in the way of official respondents to make engagement under rules and in accordance with law having

bearing on the matter. It is asserted that petitioner has filed writ petition on same facts, which were taken by her in her earlier decreed civil suit and

that petitioner has not challenged the order of Civil Court, wherein right of petitioner has not been determined but without seeking liberty she has

again agitated the same matter before this Court, thus, writ petition is hit by doctrine of res judicata. It is also averred that revenue village Kachwari

is a big village scattered within a radius of more than 08 kilometres and the village is having so many Pattis (habitations). The school, according to

respondent, is located at Bujran Mohalla and the whole population comprises of more than 500 souls in the form of ST category and that petitioner

is resident of Dragger Mohalla, which is at a distance of more than 02 kilometres from the Bujran Mohalla, Thaziwooder and that the village is

scattered, divided by Nalla and Jungle, as such, selection was to be made on the basis of habitation. It is also submitted that petitioner does belong

to Dragger Kashwari, which is a different habitation of revenue village Kachwari and that petitioner's application was received only on the

directions of Sub Judge, Budgam, as her application form was not accepted by official respondents because petitioner does not qualify for

selection on habitation basis, thus, the Panel was prepared on habitation basis, to which objections were sought. It is pleaded that petitioner,

without waiting for the outcome of the objections, has filed writ petition on hand, which is premature. It is maintained that selection of respondent

was approved by VEC and petitioner's case has been rejected by VEC inasmuch as petitioner being resident of Dragger, which is other habitation.

Distance, it is maintained, between Dragger and Bujran Mohalla as measured by R & B Department also establishes that distance between two is

more than 2 kilometres and that the population of said habitation is more than 500 souls and same has also been certified by the Lumberdar and

Village Guard (Chowkidar), thus, the Bujran Mohalla fulfils the twin requirements of Government order No. 288-Edu of 2009. It is pleaded that

petitioner has annexed a document issued by SDM Khan Sahib, which reflects that there are so many Mohallas in Kachwari Revenue Village.

Heard. Considered.

Petitioners' claim is that selection in pursuance of advertisement notification No. ZEO/KH/SSA/1370 dated 30.10.2012, impugned in the writ

petitions on hand, should be made on ""revenue village"" basis and not on ""habitation"" basis. The petitioners responded to advertisement notice, in

which it is clearly mentioned that unit of selection shall be on ""habitation"" basis and that in the event candidate will not be available from the

concerned habitation, the posts will be re-advertised, wherein the selection process will be extended upto Revenue Village level. The petitioners

herein, notwithstanding that advertisement notice provides zone of consideration for selection to be made on ""habitation"" basis, approached official;

respondents with their applications but said applications were not accepted on the ground that petitioners did not belong to the ""habitations"", in

which the Schools are located. The petitioners, feeling aggrieved of non-acceptance of their application forms, approached court of Sub Judge,

Budgam, but sought only the relief for acceptance of their application forms for the position in question. The Sub Judge, Budgam, while disposing

of petitioners' suit(s), directed official respondents to accept petitioners' applications, but it was made clear that mere acceptance of petitioners'

applications will not confer any right of appointment on petitioners against the positions in question. Accordingly, petitioners' applications were

accepted. It is pertinent to point out here that petitioners, at the relevant point of time, did not throw challenge to advertisement notice but

participated in the selection process and when they did not find place in the selection list, they come up with writ petitions on hand throwing

challenge to the whole process. The process of selection initiated on the terms and conditions of advertisement notice; impugned in the writ

petitions, culminated in recommendations made by VEC, followed by selection of private respondents. Once petitioners participated in the process

of selection on the terms and conditions of advertisement notice, they have, therefore, accepted the terms and conditions of the advertisement

notice. Now, at this stage, when finding to be excluded as having not been considered on ""revenue village"" basis by VEC, they question the

advertisement notice. In the aforesaid background, to upset the entire process so undertaken and completed shall be unwarranted. The petitioners

in fact have acquiesced because of having participated in the entire process.

It is reiterated here that petitioners, after issuance of advertisement notice, approached respondents with their applications to be accepted and

entertained on ""revenue village"" basis but their applications were not accepted by official respondents on the ground that applications were being

received on ""habitation"" basis and not on ""revenue village"" basis. Against non-acceptance of applications, petitioners approached civil court but

they did not question advertisement notice qua the condition of zone of consideration as ""habitation"". Their suit(s) were decreed only to the extent

of acceptance of petitioners' application forms. Petitioners at relevant point of time did not question the condition ""habitation"" but participated in the

selection process, thus, they accepted the terms and conditions of advertisement notice including zone of consideration as ""habitation"". A cursory

glance of advertisement notice divulges that respondent department invited applications on ""habitation"" basis. Petitioners, private respondents along

with other candidates applied for the positions in question, participated in the selection process. They remained calm and contented till selection

culminated into issuance of selection list and once petitioners did not find place in the selection list, they come up with writ petitions on hand. This

Court in Gous-un-Nisa v. State and others 2012 (4) JKJ [HC] 761 while dismissing the writ petition, pointed out that law in this regard is settled

that a candidate, who participates in selection process, cannot question the same later on when the process is over. It is worthwhile to record here

that in terms of advertisement notice, candidates hailing from ""habitation"" only had to apply. If petitioners were aggrieved of advertisement notice to

the extent of ""habitation"", they should have questioned the same at relevant point of time. But they did not do so. The terms and conditions of the

advertisement notice is representation to the eligible candidates and the authority is bound to make selection in its terms and conditions. Similarly

terms and conditions also bind the candidates who seek selection. Unless and until such advertisement is withdrawn, its terms and conditions

cannot be permitted to be observed in breach. In the, instant case terms and conditions of advertisement notice provide zone of consideration as

habitation"", thus, on the basis of said condition, petitioners as also private respondents applied to the positions of ReTs on ""habitation"" basis. The

petitioners, having participated in the selection process on the basis of terms and conditions notified by respondent department, are estopped under

law to question the same criteria/terms and conditions at this stage. This view is also substantiated by Hon'ble Supreme Court in case titled

Dhananjay Malik and Others Vs. State of Uttaranchal and Others, wherein it has been held that petitioner after having participated in the selection

process on the basis of notified criteria cannot turnaround and challenge the same. Thus, the law laid down in the said case disentitle petitioners

herein to claim relief on the grounds projected in the writ petitions.

The question is whether the selection of private respondents made on the basis of recommendations of Village Education Committee (VEC) is

legally permissible. The Division Bench of this Court in LPASW No. 115/2007 titled Ghambir Chand and Anr. v. Parbhat Singh & Ors., decided

on 07.03.2009 held that the candidates, who are residing in the area where the school is situated, have a preferential right. It is advantageous to

reproduce relevant portion of the said judgment, herein:

According to the scheme for granting such appointments, it is the village level committee of the village which alone is entitled to prepare the panel

for appointment. Constitution of the village level committee, as prescribed, requires that every member thereof, excepting the Zonal Education

Officer, shall be resident of that village.

Even otherwise, the purpose of the ReT Scheme is to appoint all those candidates who are residing within the vicinity. In terms of Government

Order Nos. 396-Edu of 2000 dated 28.04.2000 and No. 288-Edu of 2009 dated 8.4.2009; the selection is to be made from those who are

residing within the vicinity, where the school is located. The Village Education Committee recommended selection/engagement of private

respondents on ""habitation"" basis. The settled law on the subject is that ""writ jurisdiction is not justified to upset the recommendation of engagement

by the prescribed committee/officer"". In this regard reliance is had from judgment passed in case titled Rashmi Raina Vs. State, . It has also been

observed in Sunita Rajput Vs. State and Others, that Village Level Committee is assigned a pivotal role in preparation of Panel for ReT

vacancy(ies) proposed to be filled up and its recommendations cannot be rejected.

The above discussions, thus, make contours of controversy clear and dispel all doubts regarding merits of the case projected in writ petitions

on hand. In the circumstances and for the reasons discussed above, writ petitions are meritless and destined to fail. The petitions are, accordingly,

dismissed along with connected CMP(s), The respondents are free to proceed ahead in the subject matter of selection process, of course, in

accordance with rules governing the field.