Shaheen Akhtar vs State of J&K

Mr. Tashi Rabstan, J.—By the medium of this petition, the petitioners are seeking quashment of Corrigendum dated 27.02.2012, whereby it

has been clarified that instead of ""Village/Panchayat"" in Clause 05 of the Advertisement Notice No. CEO/P/SSA/4431-52 dated 12.07.2011, it

will be read as ""Revenue Village"" in case of Municipal area at ward level. The petitioners are also seeking to quash the selection of private

respondents as Rehbar-e-Taleem Teachers on the basis of said Corrigendum.

The facts-in-brief are that the Chief Education Officer, Poonch issued Notification No. DIP/JK-6152 dated 12.07.2011 inviting applications

from eligible candidates for filling up posts of Rehbar-e-Taleem Teachers in various Primary Schools of District Poonch at Village/Panchayat level.

In the said advertisement two posts were also advertised for Primary School Nabinar, Mankote. It is stated that Village Mankote is bifurcated in

two panchayats, i.e Upper Panchayat and Lower Panchayat Habitation Nabinar exists in Upper Panchayat. Both the petitioners, who belong to

habitation Nabinar, applied for the said post and they being meritorious figured at Sr. Nos. 1 & 2 in the panel. The grievance of petitioners is that

after preparation of the panel, official respondents issued Corrigendum dated 27.02.2012 Whereby it has been clarified that instead of

Village/Panchayat"" in Clause 05 of the Advertisement Notice dated 12.07.2011, it will be read as ""Revenue Village"". Thereafter, on the basis of

said Corrigendum, the official respondents prepared a new panel on the recommendations of Village Level Committee and selected the private

respondents.

The contention of learned counsel for petitioners is that in view of Government Order No. 288-Education of 2009 dated 08.04.2009 read with

Communication No.DESJ/RET/2430 dated 24.01.2011, only the local candidates of a habitation, where the school is located, have to be

appointed on the recommendation of the Village Level Committee. His further contention is that the petitioners belong to habitation Nabinar where

the school is located and the population of said habitation is more than 300 souls, which is more than one kilometer away from other habitations of

Upper Panchayat Mankote. He, therefore, contended that in view of said Government order, the petitioners were required to be appointed as

Rehbar-e-Taleem Teachers in Primary School Nabinar having more merit than others. His further contention is that the private respondents have

no right to be appointed against the said post as they belong to other habitations/panchayats, because in terms of communication dated

24.01.2011, in case of non-availability of candidates in the concerned habitation, where the school is located, only then the candidates from other

habitations/panchayats of a revenue village could be considered for appointment.

Objections have been filed on behalf of respondents 1 to 4. It is averred that the Corrigendum-in-question came to be issued in the light of

Government Order No. 396-Education of 2000 dated 28.04.2000, explained vide Govt. Order No. 583-Education of 2005 and clarified vide

Circular No. DSEJ/12631-40 dated 18.01.2012. It is further averred that Communication No. DSEJ/RET/2430 dated 24.01.2011 issued by the

Joint Director (DSE), Jammu was later on came to be rescinded by the Director School Education, Jammu vide No. DESJ/Legal/4872-86 dated

10.10.2011. Further, it is averred that the earlier panel prepared at the recommendations of the Village Level Committee in pursuance of

advertisement notice dated 12.07.2011 could not be operated in view of issuance of corrigendum dated 27.02.2012. Thereafter, a fresh panel

was prepared by the Village Level Committee in the light of Corrigendum-in-question.

Objections have also been filed on behalf of respondents 5 & 7. It is averred that at though the advertisement specifically provided for village-

wise application forms, yet the concerned Zonal Education Officer had been accepting the application forms at Panchayat level in violation of

norms and against the intent of Government Order No. 1639-Education of 2003 dated 12.11.2003, which specifically provided that the first level

of selection of Rehbar-e-Taleem Teacher would be Revenue Village and, in case of nonavailability of eligible candidates, the area of selection was

to be extended to zonal level by re-advertising the posts. Thus, it is averred that after raising the issue, Director School Education, Jammu issued

Circular dated 18.01.2012 for re-advertising such vacancies where the panels have been prepared in violation of the norms. It is contended that

accordingly Corrigendum dated 27.02.2012 came to be issued clarifying that instead of ""Village/Panchayat"" in Clause 05 of the Advertisement

Notice dated 12.07.2011, it will be read as ""Revenue Village"" in case of Municipal area at ward level.

I have heard learned counsel appearing for the parties, perused the pleadings and the record produced by learned counsel appearing for official

respondents.

The need for issuance of corrigendum dated 27.02.2012, as projected by the official respondents and as was their specific stand in the

objections, was in the light of Government Order No. 396-Edu of 2000 dated 28.04.2000 read with Order No. 563-Edu of 2005 dated

24.08.2005 and Circular dated 18.01.2012. It was pleaded by them that in Eligibility Condition (ii) in order dated 28.04.2000 it has specifically

been mentioned that the candidate ""should belong to the village where there is assessed deficiency of staff."" Further, it was pleaded by them that in

Government Order No. 563-Edu of 2005 dated 24.08.2005 it has been specifically clarified that the expression ""village"" used in the

instructions/orders shall always be deemed to have meant a ""Revenue Village"". Thus, it was pleaded by the official respondents that in view of

aforementioned Government orders, the corrigendum-in-question was issued and, accordingly, the applications were re-invited from the eligible

candidates of Village Mankote for filling up two posts of Rehbar-e-Taleem Teachers in Primary School Nabinar.

Here, it is to be seen that in order to give wider/ explicit explanation to the eligibility conditions as laid down in Government Order No. 396-Edu

of 2000 dated 28.04.2000, following explanation below Eligibility Condition No. 1 was added in the aforesaid order vide Government Order No.

288-Edu of 2009 dated 08.04.2009 issued by the Secretary to Government, Education Department on behalf of Government of J&K:

Village means a Revenue Village However, where habitations in a Revenue Village are scattered, a candidate belonging to a habitation, popularly

known as a village at least one kilometer away from other habitations and having a population of more than 300 persons shall be entitled to seek

engagement as Rehbar-e-Taleem in a local School.

Admittedly, with the issuance of order dated 08.04.2009, the afore quoted explanation has become part and parcel of basic order dated

28.04.2000 (supra), but the official respondents while contesting the petition and defending the corrigendum-in-question did not bring the factual

position before the Court and only projected Eligibility Condition (ii) that the candidate ""should belong to the village where there is assessed

deficiency of staff', thus have put the Court in dark about the afore-quoted explanation added to order dated 28.04.2000. Even in Circular dated

18.01.2012, relied upon by the official respondents, it has specifically been admitted by the Director School Education, Jammu that Government

Order No. 396-Edu of 2000 (supra) is very much clear and self explanatory. Further, Government Order No. 288-Edu of 2009 dated

08.04.2009 was issued by the Secretary to Government, Education Department on behalf of Government of J&K, whereas Corrigendum dated

27.02.2012 was issued by the Chief Education Officer, Poonch, therefore the said Government order has much more significance than the

corrigendum-in-question. The Chief Education Officer, Poonch has no authority to issue such a Corrigendum so as to steal a march over the

orders issued by the Government or overrule order dated 08.04.2009 issued by the Government of J&K.

Further, it has not been denied by the official respondents that Village Mankote is bifurcated in two panchayats i.e., Upper Panchayat and

Lower Panchayat, and Primary School Nabinar exists in Upper Panchayat. It has also not been denied by them that both the petitioners belong to

Habitation Nabinar, whereas private respondents belong to other habitations/panchayat of Village Mankote. It is the specific case of petitioners

that the population of habitation Nabinar, where the school is located, is more than 300 and the same is more than one kilometer away from other

habitations of Upper Panchayat Mankote. The said facts have also not been denied by the official respondents. Therefore, in view of order dated

08.04.2009 (supra) the petitioners were required to be appointed as Rehbar-e-Taleem Teachers in Primary School Nabinar having more merit

than others in the habitation they belong to.

Here, I would like to quote paragraph-5 of the objections filed by the State respondents on 04.12.2012 in SWP No. 584/2012. What was

the stand of State respondents is reproduced hereunder:

That in reply to para No 6. it is submitted that the official respondents had prepared the panel on habitation basis in light of Govt. Order No.

288-Edu of 2009, dated 08.04.2009 and displayed the same in the revenue village Ramkot vide ZEO/B/972 dated 26.08.2010 that is why the

petitioners figured at serial No. 5 and 6 despite high merit amongst all the 12 applicants. The panel has been prepared at habitation level rather that

village level.

In SWP No. 584/2012, the State respondents had took a categorical stand that the petitioners therein although were meritorious among all

twelve candidates and would have figured in the select list had the same been prepared at village level, but the petitioners reside at Ramkot Town

which was at least one kilometer away from habitation Korithial where the school was located, therefore, they were not found eligible for being

considered for Rehbar-e-Taleem posts in the light of Government Order No. 288 Edu of 2009 dated 08.04.2009.

In the present case, objections on behalf of official respondents came to be filed on 04.02.2014. Here the official respondents have taken a U-

turn by taking altogether a different stand than the one taken in SWP No. 584/2012. It is to be seen here that Government Order No. 396-Edu of

2000 dated 28.04.2000, Govt. Order No. 583-Edu of 2005 dated 24.08.2005 and Circular No. DSEJ/12631-40 dated 18.01.2012, which are

being relied on by the official respondents to deny/reject the claim of petitioners herein, were certainly in existence when objections in SWP No.

584/2012 (supra) came to be filed by them on 04.12.2012. The official respondents have taken altogether two contradictory stands in both the

petitions in respect of the identical controversy. It seems the State respondents are filing objections without proper application of mind, as per their

own whim and fancy and according to their own comfort. It is nothing but misleading the Court by taking a vague stand.

Therefore, in view of the above discussion, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed and the

Corrigendum dated 27.02.2012 issued by the Chief Education Officer, Poonch, is hereby quashed. Consequently, the selection/appointment of

private respondents, if any, in Primary School Nabinar, Mankote in pursuance to Notification No. DIP/JK-6152 dated 12.07.2011 read with

Corrigendum dated 27.02.2012 is set aside. State respondents are directed to consider the claim of petitioners for their selection as Rehbar-e-

Taleem Teacher in terms of the earlier panel, prepared in pursuance to Notification No. DIP/JK-6152 dated 12.07.2011, and issue relevant

orders in this regard within a period of one month from the date a copy of this order is served upon them. Miscellaneous applications, if any,

accordingly stand disposed of.

Before parting, I would like to observe here that the State respondents have not only denied the petitioners their rightful claim, but have also

tried to mislead the Court, as a result of which the petitioners have to suffer a lot. Since the delay in offering appointment to the petitioners rests

squarely on the respondents, they are directed to bear and pay the costs to the petitioners within a period of one month from today after proper

verification and identification, which are quantified at rupees thirty thousand. The same shall be paid to the petitioners in equal proportion. It is

made clear that in case the State respondents fail to deposit the costs in the Registry within the aforesaid period, Registrar (Judicial) is directed to

frame a separate robkar against them, and after issuing notice to them, list the same before the Court.