Sunita Rajput vs State and Others

Hasnain Massodi, J.—Letters Patent Appeal on hand is directed against the writ Court Judgment dated 13th December, 2010 in SWP No.

351/2006, whereby writ petition has been dismissed and a candidate though actually not residing in the village, held eligible to be engaged as ReT

under Sarva Shiksha Abhiyan (SSA) Scheme. The Appeal arises against the following backdrop. Director School Education vide advertisement

notice No. DSEJ/ReT/4811-17 dated 29th June, 2004, invited applications from the eligible candidates amongst others for the position of ReT in

Middle School Babliana. Block Satwari. Sunita Rajput (hereinafter referred to as appellant in LPA(SW) No. 183/2010) and Renu Manhas

(hereinafter referred to as respondent No. 5, in LPA(SW) No. 183, 2010) were amongst the candidates who responded to the advertisement

notice. However, the appellant did not find place in the selection list and was not engaged against the advertised position. The respondents 1 to 4

instead selected/engaged, respondent No. 5 against the said post.

The appellant questioned selection and engagement of respondent No. 5, as ReT in the aforesaid School, primarily on the ground that

respondent No. 5, as also other candidates shown ahead of the appellant in the panel were not residents of village Babliana and therefore, were

not eligible for the advertised position. It was pleaded that respondent No. 5 was married outside village and her candidature was also opposed by

Village Level Committee. The appellant in the said background sought writ of certiorari quashing selection and engagement of respondent No. 5 as

also writ of mandamus commanding official respondents to engage appellant against the aforesaid position.

The writ petition was opposed by the respondents on the grounds that though Village Level Committee objected to the inclusion of respondent

No. 5, in the panel on the ground that she was not actually residing in village Babliana, the objection was overruled by the Director School

Education-the authority competent to approve the panel and respondent No. 5 was, accordingly, engaged as ReT in Middle School Babliana.

The writ Court placing reliance on Judgments rendered in Javid Iqbal Lone v. State of J.& K. in LPA (SWP) 94/2005 decided on 3rd

October, 2005, Ranjat Sharma v. State and Ors. in SWP No. 2014/2003 decided on 6th September, 2004, Dharamveer Singh v. State in SWP

No. 363/2001 (reported in Dharamvir Singh Vs. State and Others, in LPA No. 131/2005 decided on 22nd December, 2006, held that a

candidate from a village does not lose his right to be considered for ReT position, available in local School, merely on the ground that such

candidate does not actually reside in the village. Writ Court further held that the lady married outside the village would not be deprived of her right

to be considered for ReT position available in the School of the village to which she belongs i.e. where she resided before her marriage.

The writ Court Judgment is questioned in Letters Patent Appeal No. 183 of 2010 on the grounds set out in the memorandum of appeal.

Smt. Rajni Sharma (hereinafter referred to as appellant in LPA (SW) 125/2009) and Smt. Parminder Kour (hereinafter referred to as

respondent No. 7 in LPA (SW) 125/2009), respond to the advertisement notice issued by the competent authority, inviting applications from the

eligible candidates for ReT position in Government Primary School, Haripur, Education Zone, Satwari. Though the appellant was empanelled and

had merit higher than respondent No. 7, yet she was not engaged, as the Village Level Committee reported that the appellant was not actually

residing in village Haripur and was married at village Alora, Panchayat, Sohanjana.

The appellant in LPA (SW) 125/2009, questioned order No. ZEO/S/RT/1181-82 dated 23-01-2004, whereby respondent No. 7 was

engaged as ReT in Government Primary School, Haripur in SWP No. 1647/2004. The stand taken was that as the appellant had higher merit as

compared to that of respondent No. 7 and belonged to village Hiripur, she deserved to be engaged against the advertised position. The appellant

insisted that her marriage at village Alora would not disentitled her of a right to be engaged against the advertised position as the Government order

No. 396 of Edu 2000 dated 28-04-2000 did not require ""actual residence"" in the village where the school existed. Reliance was placed by the

appellant in LPA No. 125/2009 on law laid down in Ranjat Sharma Vs. State of Jammu & Kashmir and Others, , Dharamvir Singh Vs. State and

Others, and Sanjay Kumar v. State of J.& K. and Ors., 2001(1) J &KLR 141.

The respondents resisted the writ petition on the ground that in view of explanation added to Government order 396 of Edu 2000 dated 28-04-

2000 in compliance of the direction passed in Ranjat Sharma v. State and Ors. (LPA) (SW) 215/2004 vide Government Order No. 394-Edu of

2006 dated 28-07-2006 only a candidate actually residing in the village/habitation where the school having ReT vacancy, has a right to be engaged

as ReT. It was pointed out that as the appellant as reported by Village Level Committee was married in a different village and therefore, not

actually residing in the village where the school was located, she had no right to be considered for the advertised position.

The writ Court after making a discussion of the object and purpose of ReT/SSA Scheme and noticing the observations made in LPA (SW)

215/2004 as also the Government order No. 394-Edu of 2006 dated 28-07-2006, held rejections of appellant's claim ""in consonance with the

spirit of the Scheme"" and, accordingly, dismissed the writ petition.

The Judgment of learned single Judge dated 18th April, 2009, is called in question in LPA (SW) No. 125/2009 on the ground that

interpretation placed by the writ Court on expression ""belongs to"" runs contrary to the observation made in Ranjat Sharma v. State and Ors.

LPA(SW) No. 94/2005. The appellant claims to have applied much before explanation was added vide Government order 396 -Edu 2008 dated

28-07-2006 to Government order No. 396 of Edu 2000 dated 28-04-2000 and therefore her case was to be considered in absence of the

explanation so added.

We have gone through the appeals as also the writ records and have heard learned counsel for the parties.

Primary education is, to play a key role in human resources development. To achieve a higher level and realize new goals in the area, thrust

obviously is to be universalisation of elementary education. The, State alive to the directive principles of state policy embodied in para 4 of the

Constitution and that right to education is an integral part of right to life and personal liberty, guaranteed under Article 21 Constitution of India, has

over the years embarked on an ambitious plan to set up schools at primary level in every nook and corner of the State. However, it has been

realized that mere quantity expansion in schooling system is not to yield desired results and universalisation of elementary education continues to

remain a distant dream. The studies made by the experts to find out the problem areas, identity absenteeism of teachers particularly in the remote

and backward areas and lack of supervision at local level, as two main problems that thwart progress. The remedy to the problem came in shape

of Rehbar-e-Taleem (ReT) Scheme, sanctioned by the State Government vide order No. 396 of Edu 2000 dated 28-04-2000. The scheme

provided for two-pronged response remedy to the problem confronted by the schooling system. It, read with circular No. Edu/Plan-184/2000

dated 17-02-2000, conceptualized engagement of ReT to make up the deficiency of the staff at the elementary level of education. A Village Level

Committee comprising of two parents of the children studying in an institution, within the village, two persons nominated from the village having

social standing a representative of women/scheduled cast/scheduled tribe headed by the Zonal Education Officer/head of the Institution to be

associated with supervision and management of the school, came as a response to the lack of supervision at local level.

The Government order delineates duties of a Village Level Committee as under:-

i. ""VLC shall assess the requirement of teachers in the Primary/Middle schools within the area of their operation in due regard to the approved

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

ii. After the assessment of the requirement, the meeting of VLC shall be conveyed by the ZEO. But in case meeting is not convened by ZEO within

reasonable time then on the requisition of three non-official members, the meeting of VLC shall be held. It would be obligatory for ZEO to hold the

meeting. The quorum shall be four, of which three should be non-official members. The panel also drawn up should be one and a half times of the

assessed requirement of Rehbar-e-Taleem and in order of merit.

The Government order likewise visualizes the role of ReT in achieving the goal of universalisation of elementary education in following words.

Drawn from the local community, the accountability of the teacher called as 'Rehbar-e-Taleem' would be immediate providing from constant

interface and interaction with community to secure universal enrolment and to check the incidence of the drop outs.

The Government order, whereby ReT Scheme has been sanctioned, therefore, insists on appointment/engagement of a local candidate as

Rehbar-e-Taleem so that he is available to the student community with least difficulty, has not to embark on a journey every morning to attend the

school and is left with no excuse to stay away from his duty. The expression, ""belongs to"" the village is to be understood in the background of the

role expected a ReT to play as reproduced above and the duty placed on Village Level Committee to ""draw up"" a panel of ""eligible, qualified

persons form the village"", having regard to the purposes of the scheme. We have to go for purposive interpretation of the expression, ""belongs to

the village and not divorced from the object sought to be achieved. It would therefore, follow that to be eligible for ReT position in a local school,

the candidate must be actually residing in the village/habitation where the school is established. The right of consideration for ReT position is linked

with actual residence in the village/habitation and not birth in such village/habitation or any other like connection with the village.

For a girl married in another village or town it would not be possible to perform the duties of ReT conceptualized under Government order No.

396 of Edu 2000 dated 28-04-2000, in a school in her parental village, in the manner such duties would be performed by a candidate ""actually

residing"" in that village/habitation, though she may have emotional bonds with her parental village. Interpreting the expressions ""belongs to"" drawn

from the local community, ""the accountability of the teacher called as 'Rehbar-e-Taleem' would be immediate providing from constant interface and

interaction with community to secure universal enrolment and to check the incidence of the drop outs"", in such a manner as to hold that a candidate

not actually residing in a village/habitation would be eligible for ReT position in such village/habitation, only because he has some kind of connection

with the village, is bound to frustrate the very object of ReT scheme. For such a proposition would entitle even a candidate actually residing

hundred kilometres away e.g. a girl married in a village hundred kilometres away from the Milage where ReT position is available, eligible for such

position and render ReT scheme incapable of redressing the mischief of absenteeism in schools, proposed to be redressed by augmenting the

teaching staff by a local appointee.

The State Government has rightly vide order No. 394 -Edu of 2006 dated 28-07-2006 added following explanation to Government order

No. 396 of Edu 2000 dated 28-04-2000.

Explanation: the word 'belong' and ""local candidate"" shall mean that the candidate to be appointed should be actually residing at the time of

appointment in the village where the appointment is to be made

ReT Scheme achieved the intended object to meet the staff requirements of school located in difficult inaccessibly and far flung areas where

teachers from other places would not ordinarily attend the duties, and was accordingly, closed. It was followed by Sarva Shiksha Abhiyan (SSA)

Scheme-a centrally sponsored Scheme-to attain universalisation of elementary education by community ownership of school system. Since the

goals set out in SSA Scheme are identical to the objectives of ReT Scheme, the State Government vide order No. 1678 Edu of 2003 dated 4th

December, 2003, while introducing SSA Scheme decided to follow ReT Scheme in the matter of recruitment of teacher teaching guides. The

above discussion, therefore, is relevant to engagement/appointments made under SSA Scheme.

The view taken by the writ Court in SWP No. 351 2006 titled Sunita Rajput v. State and Ors., against the backdrop of above discussion is in

conflict with the purpose and object of ReT/SSA Scheme. The view taken by the writ Court that a candidate though not actually residing in the

village where the school, having ReT position vacant is located would still be eligible for such position, in case he has his roots in the village or

some other connection with the village is untenable for the simple reason that such a view offends letter and spirit of Government order No. 396 of

Edu 2000 dated 28-04-2000 read with No. 394 - Edu of 2006 dated 28-07-2006.

The argument that ""explanation"", clarifying meaning of expression ""belongs to the village"" was made in the year 2006, while selection process in

question was initiated and concluded much earlier, would not make any difference. The ""explanation"" to a legal provision does not create any new

rights. The ""explanation"" on the other hand explains words, phrases and expressions as these stood on the date the rules came into existence and is

to be given effect from such date.

For the reasons discussed we do not feel persuaded to agree with the view taken by the learned single Judge in SWP No. 351/2006 titled

Sunita Rajput v. State and Ors. The view taken by learned single Judge in SWP No. 1647/2004 titled Rajni Sharma v. State and Ors., on the

other hand is in accordance with law and does not call for any interference.

Viewed thus, LPA No. 183/2010 is allowed and the writ Court order dated 13-12-2010 is set aside. Resultantly, order No.

DSET/RET/5867 dated 31-05-2005, is quashed and the official respondents directed to engage the appellant in LPA No. 183/2010 as ReT in

Middle School, Babliana, against the vacancy that becomes available in wake of quashment of the aforesaid order. The respondents shall comply

with the order within four weeks by 30th April, 2013.

LPA No. 125/2009 is dismissed. The Village Level Committee as discussed above, is assigned a pivotal role vide Government order No. 396

of Edu 2000 dated 28-04-2000, in preparation of panel for ReT vacancy(ies) proposed to be filled up. Once the Village Level Committee rejects

the candidature of the private respondent as also the candidates figuring at serial No. 1 and 3 on the ground that they were not actually residing in

the village, there was no reason for Director School Education, Jammu-respondent No. 3 in the appeal to selectively act on the recommendations

of the Village Level Committee and while ignoring candidates at serial No. 1 and 3 in the panel engaged private respondents, overruling such

recommendations. On taking a holistic view of ReT/SSA Scheme, it becomes clear that the recommendations made by Village Level Committee

cannot be rejected and orders passed contrary to such recommendations by an officer in the education department at any level including that of

Director School Education. In such a case, right course would be to return the recommendations, in case the recommendations are found contrary

to the rules and ask the Village Level Committee to consider the matter afresh in view of the observations made by. The Director School,

Education, therefore acted against spirit of the Scheme, while passing engagement order in favour of private respondents notwithstanding the view

taken by the Village Level Committee that she was not eligible as she was married in a village other than one where the school having ReT position

vacant, was located.