Rakesh Digra vs State and Ors.

Vide Government Order No. 396/Edu of 2000 dt. 28th of April'2000, sanction was accorded to launch the Scheme of RehbareTaleem

(hereinafter called the Scheme) with the following objectives:

Promoting the decentralized management of elementary education with the community participation and involvement.

To ensure accountability and responsiveness through a strong backup and supervision through the community and

To operationalize effectively the schooling system at the gross root level.

The said Scheme was to effectuate the provision of services of Teaching Guides in the Primary and Middle Schools to make up the deficiency of

the staff as per the existing norms. The said teaching guides were to be designated as ""RehbareTaleem' teachers and were to ensure the over all

development of the personality of children. These teaching guides were to be drawn from the local community for interface and interaction with the

community to secure universal management and to check the incidence of dropouts. For the purpose of selection of RehbareTaleem, there is a

composition of Village Level Committee (hereinafter referred to as VLC) with the Zonal Education Officer (In short ZEO) as its Convenor. The

said composition of VLC for the purpose of implementation of the Scheme is as under:

a. Two parents of the children studying in the institutions within the village provided they are literate.

b. Two persons to be nominated from the village, who have social standing.

c. A representative of Women/Scheduled Caste/Scheduled Tribe.

d. Zonal Education Officer.

The VLC is to assess the requirement of the teachers in the Primary/Middle Schools within the area of their operation in due regard to approved

norms of staffing and the Roll. On the basis of the said assessment, the VLC is to draw up a panel of eligible and qualified persons of the village.

The eligibility for engaging RehbareTaleem under the Scheme is as under:

i. RehbareTaleem should be the permanent resident of the State.

ii. He or she should belong to the village where there is assessed deficiency of staff. On certification of VLC that no local candidate from the village

is available, VLC can draw up the panel from the adjoining village.

iii. He or she should possess the minimum qualification of 10+2.

iv. The candidate shall as far as possible fulfill the age qualification as prescribed by the State Government.

v. Due consideration shall be given by the VLCs to the Scheduled Castes and Scheduled Tribes.

Petitioner in the present case came to be engaged as 3rd teacher under the Scheme in Government Girls Primary School, Barnai, vide Order No.

ZEOJ/1053 dated 5th of Nov'03. He joined the services on 17th of Nov' 03.

The grievance of the petitioner is that the name of respondent No. 5 did not figure in the panel which was prepared by the Village Level Committee

but he later on came to be engaged as 3rd Teacher vide Order No. ZEOJ/1626 dt. 5th of Feb'04 and this has been done on the basis of the

communication of the Director School Education, Jammu, dated 19th of Dec'03 and conveyed through Chief Education Officer, Jammu's letter

No. CEOJ/39792 dt. 31st of Jan'04. It is stated that the petitioner was selected by the competent authority on the basis of the recommendation

made by the Village Level Committee but the respondent No. 5 has been wrongly selected and engaged as 3rd Teacher against the same vacancy.

It is stated that no show cause notice or reason has been given in discontinuing the engagement of the petitioner.

Official respondents have filed counter stating therein that in pursuance to notification No. 1290711 dated 17th of July'03, published in newspaper

on 19th of July'03 for the appointment of 3rd teachers, a combined panel for Girls Primary School, Dharmal, Govt. Primary School, Barnai and

Govt. Girls Primary School, Barnai, Zone, Jammu was prepared. It is stated that name of respondent No. 5 could not be shown in the said panel

due to oversight. It is stated that on the basis of the panel prepared, one Ravi Kumar was appointed in Girls Primary School, Dharmal, Karan

Singh, was appointed in Government Primary School, Barnai and the petitioner was appointed in Girls Primary School, Barnai. It is stated that

there after a representation was filed by the respondent No. 5 that he being higher in merit has been left out. Accordingly on the basis of the higher

qualification of respondent No. 5, his name was included in the panel by the Zonal Education Officer and was accordingly appointed in place of

Ravi Kumar who was working in Girls Primary School, Dharmal. However, Ravi Kumar made a representation that Dharmal and Barnai are two

independent villages and therefore, he belonging to village Dharmal cannot be ousted as the respondent No. 5 being resident of Barnai cannot be

appointed in the school situated at Dharmal. It was on the basis of the aforesaid representation filed by Mr. Ravi Kumar that the matter was

looked into and after coming to know that Dharmal and Barnai are two independent villages, Suresh Kumar who was resident of village Barnai has

been engaged as 3rd teacher in place of the petitioner being higher in merit.

After hearing learned counsel for the parties and perusing the record, I am of the considered opinion that this petition deserves to be succeeded.

Under the Scheme, the panel was prepared by the Village Level Committee. In the said panel, the name of the respondent No. 5 did not figure as

the said respondent had not applied within the stipulated period. This fact is also clear from the counter filed by the then Zonal Education Officer,

(respondent No. 7) who issued appointment/engagement order in favour of respondent No. 5. The said officer was directed to be impleaded as

party respondent vide order dt. 3rd of Nov'06. In the counter filed by the said respondent, it has been stated as under:

That in response to the contents of para five of the writ petition, it is most humbly submitted that a panel was prepared of the eligible candidates

for appointment as teacher under RET scheme comprising Karan Singh, Rakesh Digra, Ravi Kumar, Pawan Kumar and Suresh Kumar. It is

important to mention here that the whole record was forcibly taken away by Ravi Kumar Khajuria, Sarpanch of village Barnai who was interested

for selection of candidates of his choice. In this regard a letter No. ZEO/J/128788 dated 17th of December 2003 was written to the Chief

Education Officer, Jammu and he was informed regarding the act of said Sarpanch whereby he had taken away all the record of candidates......As

per the verbal request of the higher officers again fresh documents were summoned from the candidates who submitted their record except Suresh

Kumar and again a panel was prepared as per the qualification of the candidates, in the said panel, Karan Singh figured at S. No. 1, Rakesh Digra

at S. No. 2, Ravi Kumar at S. No. 3, Pawan Kumar at S. No. 4 and Suresh Kumar at S. No. 5 as he submitted his documents after quite some

time................

A perusal of the record further shows that respondent No. 5 has been engaged under the directions of the Education Minister. The said respondent

had represented before the Minister concerned on 19th of Nov'03. On the said representation, the Minister concerned has passed following order:

May enquire and let me know.

The official respondents have also fabricated the record to show that the application of respondent No. 5 was received in time.

Mrs Neeru Goswami, learned Dy. AG, has produced the receipt register maintained by the official respondents. The application of respondent

No. 5 has been shown to be entered at S. No. 291. The next entry to this is S. No. 292 of one Renu Bala Nargotra. After the said entry of Renu

Bala Nargotra at S. No. 292, the next two entries are again 291 and 292. But against these entries, words ""A"" and ""B"" have been shown slightly

pointing upwards and that too in a different ink showing these entries as 291A and 292B. This shows that there was some space between the

entries 290 and 292B and that space has been utilized by the official respondents by making the entries as 291 and 292 showing receipt of some

applications. In whole of the receipt register, only these two entries have been shown as 291A and 292B.

At the hearing when it was pointed out to the learned Dy. AG, appearing for official respondents why the entries after 291 and 292 have been

shown as 291A and 292B when there was already entry of 291 and 292 and when these entries (291A and 292B) could be entered as 293 and

294, she was unable to explain.

As indicated above, respondent No. 5 was not in the panel nor he was engaged because he had not applied within the stipulated period. On the

basis of the panel prepared by the official respondents, the petitioner was engaged vide order passed by the Zonal Education Officer on 5th of

Nov'03. Subsequently, in pursuance to Director School Education Jammu's order No. DCJ/Sq/0304/2174 dt. 19th of Dec'03 and Chief

Education Officer, Jammu's Order No. CEOJ/39792 dt. 31st of Jan'04, respectively, the respondent No. 5 was engaged as 3rd teacher in

Primary School, Barnai and the services of the petitioner were disengaged. The said act on the part of official respondents clearly establishes that

they have favoured respondent No. 5 and engaged him as 3rd teacher under the Scheme on the basis of the directions issued by the Minister

concerned and in doing so, the official respondents, as noticed above, have also fabricated the record and made the entries in the register on a

back date. Even, before disengaging the services of the petitioner, he has not been given any show cause notice or opportunity of being heard. The

said act of official respondents is thus against the principles of natural justice.

In AIR 2005 SC 2090, Canara Bank vs. V.K. Awasthy, the Apex Court has held as under:

Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into

the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals

and human values. The administration of Justice is to be freed from the narrow and restricted considerations which are usually associated with a

formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

The expressions 'natural justice' and legal justice' do not present a watertight classification. It is the substance of justice which is to be secured

by both and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal

justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Back

master said, no form or procedure should ever be permitted to exclude the presentation of a litigants' defence.

The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasijudicial body embarks

on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled.

The first and foremost principles is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard.

Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet.

Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such

reasonable opportunity, the order passes becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before

any adverse order passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The

concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition

of this principle found its way into the 'Magna Carta The classic exposition of Sir Edward Coke of natural justice requires to Vocate interrogate

and adjudicate'. In the celebrates case of Cooper vs. Wandsworth Board of Works (1963 (143) ER 414), principles was thus stated:

Even God did not pass a sentence upon Adam, before he was called upon to make his defence ""Adam"" says God, ""Where are thou has thou not

eaten of the tree whereof I commanded tree though should not eat"".

Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept,

like polishing of a diamond.

In para 12 of the aforesaid judgment, the Apex Court has further held as under:

What is meant by the term 'principles of natural justice' is not easy to determine. 'Lord Summer (then Hamilton, L.J.) in Ray vs. Local Government

Board (1914) 1 KB 160 at p.199 : 83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education &

Registration of U.K. vs. Sanckman (1943 AC 627): (1948) 2 All ER 337), Lord Wright observed that it was not desirable to attempt 'to force it

into any procusteam bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in

the controversy and further that it should give 'a full and fair opportunity' to every party of being heard.

In the present case, as noticed above, the petitioner was selected and engaged as 3rd Teacher under the Scheme on the basis of the panel

prepared by the Village Level Committee. He joined the services on 17th of Nov'03, in pursuance to the engagement order issued by the

competent authority on 5th of Nov'03 and accordingly performed his duties. His services, however, came to be disengaged by the official

respondents and this has been done without issuing any notice to him or without affording any opportunity of being heard. The name of respondent

No. 5 who stands engaged in place of the petitioner, did not figure in the original panel which was prepared by the authorities concerned as he had

not applied within the stipulated period. More over, as indicated above, the official respondents have fabricated the record just to favour private

respondent No. 5.

In view of the above, this/petition is accepted with a cost of Rs. 20, 000/ to be paid by the official respondents to the petitioner. The petitioner

shall also be entitled to all the consequential benefits including the monetary benefits.) The selection of private respondent is set aside and the

official respondents are directed to allow the petitioner to continue in the school wherefrom he was disengaged within a period of one week from

the date, a copy of this order is made available to official respondents by the petitioner. The cost including the other monetary benefits as directed

above shall be released in favour of the petitioner within a period of two months from the date, he joins his services in the school concerned. The

respondentState, however, shall be at liberty to recover the cost as also other monetary benefits to be released in favour of the petitioner from the

erring officials after holding a proper enquiry into the matter.

Disposed of accordingly.