Ramesh Kumar vs State of Jammu & Kashmir and Others

With the consent of learned Counsel for both the sides, we intend to dispose of the instant Letters Patent Appeal at motion stage itself. Writ

Court record is also available for our perusal.

Admitted.

Through the instant appeal the Appellant, who got an appointment as Rehbar-e-Taleem (R-e-T) Teacher in Primary School Sharni in year

2000, has questioned the legality of the order dated 01.09.2008 (Annexure-A) of learned Single Judge whereby his appointment stands quashed

and private Respondent No. 7 (hereinafter to be referred to as 'writ Petitioner') has been appointed as R-e-T Teacher for the said school. All

consequential benefits flowing from the said appointment have also been granted to the writ Petitioner. The impugned order stands implemented, as

a result, Appellant has lost his job and the writ Petitioner has been appointed.

It needs to be mentioned here that the Appellant did not contest the writ petition before the learned Writ Court, so set ex-parte. However, his

services were regularized in accordance with the provisions of the Scheme and he came to be appointed/as General Line Teacher substantively for

the said school during the pendency of the lis in the month of November, 2005 after putting in five years of service.

We, while giving priority to the instant appeal, sought a clarification from the State in our order dated 02.02.2010, observing:

A good case for not only admission of the appeal has been made out but a very good case for stay of operation of judgment and order has also

been made out. However, taking into account, that the order appealed against has been implemented, as a result, Appellant has lost his job and the

writ Petitioner- Respondent has been appointed, we would require the State to supply the lacunae which was not supplied while filing the counter

affidavit.

The school is situated, as pleaded in the writ petition, in village Sharni. The State in its Affidavit has not indicated whether village Sharni is or is not

in a Revenue village and if it is not in a Revenue village, whether it is a Mohalla or a hamlet within a Revenue village. It has also not indicated that if

village Sharni is a Mohalla or a hamlet within a Revenue village, what is the name of that Revenue village. It has also not indicated whether the

village Rokali and village Chagsoo are parts of the same Revenue village where village Sharni is situated. We want the State to file such affidavit

within two weeks from today. List at the top of the list two weeks hence.

Records, as produced, are being returned, which shall be produced at the time of hearing.

In response, an affidavit has been filed by Chief Education Officer Doda stating therein that Sharni, Rokali and Chagsoo are different revenue

villages as certified by Tehsildar Thathri vide its letter No. 899/OQ dated 10.02.2010, copy thereof is placed on record.

Mr. Raghu Mehta, Advocate, appearing for the writ Petitioner has also moved an application bearing CMP No. 24/2010 for placing on record

the supplementary affidavit of the writ Petitioner. Learned Senior Advocate Mr. Goni did not object to taking of the same on record. So we allow

the prayer.

Heard learned Counsel for both the sides and perused the Writ record.

Mr. Goni contends that may be the Appellant did not contest the writ petition before the learned Writ Court and proceeded ex-parte, one

important fact that he was appointed as General Line Teacher substantively in accordance with the provisions of the Scheme in November, 2005

was not brought to the Court by the contesting parties. According to him, it was incumbent upon them to bring this important fact before the

learned Writ Court during the pendency of the lis and had it been so done, the complexion of the main case would altogether have been different.

He submits that the State has now chosen not to assail the order of the learned Writ Court and gave appointment to the writ Petitioner pursuant to

the direction. Therefore, on this flaw alone, the impugned judgment is not sustainable.

Joining issue on merits of the case, Mr. Goni submits that the main case set up by the writ Petitioner before the learned Writ Court was that her

village is at a less distance from village Sharni where the vacancy was assessed and that village Chagsoo, the village of the Appellant was far away

from Sharni and this is what has weighed with the learned Writ Court for ousting the Appellant whereas, admittedly, the Appellant was more

meritorious in qualifications than the writ Petitioner, which fact is otherwise evident from Annexure-K. According to learned Counsel, village Rokali

from where the writ Petitioner hails and village Chagsoo, the village of the Appellant, in fact, are not contiguous to village Sharni where the

deficiency had occurred and, therefore, both the villages, may be one falling at a distance of 2 kilometers and the other at a distance of 3

kilometers are to be considered as adjoining villages under the spirit of the Scheme. Therefore, the merit on the basis of qualifications of an

individual candidate shall prevail. This is what is done in the present case while appointing the Appellant. According to the learned Counsel, the

approach adopted by the learned Writ Court in quashing the appointment of the Appellant primarily on the basis of the distance from village Sharni

where the deficiency occurred, is not the correct approach, as such, the impugned judgment deserves to be set aside on merits as well.

Mr. Goni lastly submits that the Appellant by now has become overaged and will not be able to get any government job. His entire family is

dependent upon him, which includes minor children as well. Therefore, his case deserves an equitable tilt, more so when his regular appointment

was not made the subject matter of challenge before the learned Writ Court.

Mr. D.C. Raina, learned Sr. Advocate, oh the other hand, submits that the impugned judgment is absolutely in line with the Scheme, which has

co-relation with the distance. He submits that if one goes by the spirit of the Scheme, in the event of no local candidate available from the village

where the deficiency of staff is assessed, Village Level Committee can draw up panel from the adjoining village and in the present case the

adjoining village was village Rokali only, which was just 2 kilometers away from village Sharni and that village Chagsoo was 3 kilometers away

from the said village. This is the reason that even in the panel Annexure-K (attached with the memo of appeal), when list of candidates on the basis

or merit was prepared for the said school, the Appellant figured at serial No. 3 whereas the writ Petitioner was, at serial No. 1. So percentage of

the Appellant on the basis of his academic qualifications was not given weightage. According to Mr. Raina, another candidate namely Mohinder

Kumar is reflected at serial No. 5 in the list (Annexure-K) and his percentage is 56.50 i.e. much higher than of the Appellant, but the distance of

his residence to School is assessed as 6 kilometers. This shows that Village Level Committee was conscious of the fact that as per the Scheme,

distance of the residence of the candidate from the School where the vacancy was to be filled has to be given preference over and above the

qualifications. This is the reason that learned Writ Court found appointment of the Appellant as wrong and rightly quashed it.

Mr. Raina then submits that may be during the pendency of the lis, fact of regularization of the services of the Appellant as General Line

Teacher was not brought to the notice of the Writ Court, that by itself would not strengthen the case of the Appellant, if his initial appointment was

bad. A wrong, which has been done by ignoring the R-e-T Scheme operative at that stage, will not give him a right of regularization even if any

order in his favour has been passed subsequently by the concerned authority on the basis of length of his service.

Mr. Raina lastly submits that even on equity the Appellant has no case for the simple reason that equity when pitted against the fundamental

right, has to make way for enforcement of fundamental right. Therefore, it cannot be a case of showing any equitable tilt in favour of the Appellant.

Mr. Raina has relied upon the following two judgments:

1) Koshlya Devi Vs. State of Jammu & Kashmir and Others,

2) Susheel, Kumar v. State of Jammu & Kashmir and Ors. LPASW No. 131/2006

Since the dispute pertains to the appointment made under R-e-T Scheme, it would be relevant to keep in view the eligibility conditions

envisaged by the Scheme. The Scheme postulates that a person, who is meritorious amongst the candidates possessing the prescribed qualification,

belongs to the village where deficiency has occurred, is to be appointed. Now suppose no candidate having the prescribed eligibility qualification is

available in the village where the deficiency has occurred, would it mean that post shall remain vacant. The Scheme by itself takes care of such a

situation also by providing that in such eventuality a candidate from the 'adjoining village' may be appointed. Now let us conceive another situation.

Suppose the village where deficiency has occurred and a candidate having requisite qualification is not available and a candidate from adjoining

village is to be taken as the Scheme provides, is adjoined by more than one village and each village has candidates having the prescribed eligibility

qualifications, the question would arise in such like situation* as to how the selection can validly be made. The Scheme does not take care of such

a situation despite that it cannot be accepted that in such like situation, the framers of the Scheme intended to keep the post vacant. Going by the

intention of the framers of the Scheme that the vacancy occurring must be filled up for the welfare of the children of a particular village,

interpretation of the expression 'Adjoining village' would be necessary.

Dictionary meaning of the expression 'adjoining' as per Black's Law Dictionary is Touching; sharing a common boundary; Contiguous. It can be

read as adjacent also, which means lying near or close to but not necessarily touching.

As per Webster's Comprehensive Dictionary, expression 'adjoining' is synonyms to expression 'adjacent' which means lying next, bordering;

contiguous, lying near or close at hand.

As per Law Lexicon, the expression 'adjoining' means touching or contiguous, as distinguished from lying near or adjacent. Etymologically, the

word means touching or contiguous to, but the lexicographical meaning is close to; near to; contiguous.

'Village' in any case shall now be read as 'revenue village'. Reading the dictionary meaning of 'adjoining' and the meaning of the word 'village', the

expression 'adjoining village' would mean a village adjoining or near to the village in issue.

The above definitions, however, do not completely fit in the situation envisaged keeping in view the nature and context of the Scheme. In our

considered view, the expression 'adjoining village' as contemplated by the Scheme would mean the village or the villages surrounding the village

where the deficiency has occurred. The definition of 'adjoining village' cannot be restricted to a single village or a village nearer to the village where

deficiency has occurred. 'Adjoining village' would mean village/villages adjoining the village in issue where the deficiency has occurred irrespective

of number.

Now the next question would be that if eligible candidate more than one are available in more than one adjoining villages how the selection

would be made. The learned Writ Court adopted the 'principle of distance' only from the villages of the candidates to the village where deficiency

had occurred. This principle, in our view, is not the correct one for the reason that under this principle less meritorious candidate may steal a march

over the meritorious candidates available in the other adjoining village. It can be comfortably imagined that the intention of the Scheme is not to

appoint less meritorious candidate over and above the meritorious candidates, the intellectual development of the children of a particular village

being the heart beat of the Scheme.

The appointment of the Appellant, if appreciated in the light of the aforesaid discussion, the net result would be that it was not at all bad and

rather absolutely in consonance with the spirit of the Scheme in operation at that time for the reason that admittedly he was more meritorious in his

qualifications than the writ Petitioner. Therefore, in our considered view, the impugned judgment of the learned Single Judge quashing the

appointment of the Appellant deserves to be set aside.

Before parting with the judgment, we may observe here that the argument advanced by Mr. Raina with regard to the eligibility of Mohinder

Kumar falling at serial No. 5 having been more meritorious than even the Appellant and still not appointed on account of the distance of his village

from the School where deficiency occurred, appears to be attractive, but deserves to be rejected for the reason that said Mohinder Kumar had not

challenged the appointment of the Appellant. The present case, thus, has been appreciated with regard to the merit of the Appellant vis-a-vis writ

Petitioner only.

The judgments on which Mr. Raina has relied heavily in support of his submissions, in our view, are not at all applicable to the facts of the

present case, which has been dealt with by us altogether on different aspect.

Consequently, the appeal on hand is allowed and the impugned judgment of the learned Single Judge whereby appointment of the Appellant as

R-e-T Teacher in Primary School Sharni was quashed is set aside, resultantly, the writ petition of the writ Petitioner/Respondent No. 7 herein shall

stand dismissed. Service status of the Appellant shall be restored forthwith. The Appellant shall also be entitled to all consequential benefits except

the monetary one by deeming him in continuous service. The writ Petitioner, thus, shall stand ousted from the post held by her pursuant to the

impugned judgment.

Connected CMP(s) also stands disposed of accordingly.