Yasir Arafat and Others vs State and Others

Mohammad Yaqoob Mir, J.—Vide advertisement notice dated 22.7.2013, issued by respondent No. 4 (Zonal Education Officer, D.H.

Pora), applications have been invited from the eligible candidates for engagement as ReTs in Middle School Checki-Wattoo. The unit of selection

has been shown as Revenue Village Wattoo with a condition that if eligible candidates are available in the Habitation Checki-Wattoo, they will be

given preference in terms of Govt. Order No. 288 dated 08.04.2009. A corrigendum notice has been published in Daily Newspaper Greater

Kashmir in its issue dated 28th July, 2013 wherein it has been made clear that the unit of selection for engagement of ReTs at Govt. Middle

School, Checki-Wattoo will be on revenue village basis. Then again one more corrigendum notice has been issued as published in Daily

Newspapers Greater Kashmir in its issue dated 30th September, 2013, wherein it has been provided that the unit of selection for engagement of

02 ReTs at MS Checki-Wattoo will be made in terms of Govt. Order No. 288 dated 08.04.2009, as such, earlier corrigendum issued stands

cancelled. It is this corrigendum notice published on 30th September, 2013, which is sought to be quashed on the ground that Checki-Wattoo is

not a Habitation, therefore, all the candidates of Revenue Village Wattoo are eligible to be considered for selection.

Government order No. 288-Edu of 2009 dated 08.04.2009 [Refer 2012 (16) JKS JK-701] reads as under:

Government of Jammu and Kashmir

Civil Secretariat Education Department

Subject: Rehbar-e-Taleem Scheme to ensure people's participation in the management of Education at grass root level.

Government Order No. 288-Edu of 2009

Dated: 08-04-2009

The following explanation is added below Eligibility condition No. 1 laid down in Government Order No. 396-Edu of 2000 dated 28-4-2000

(Rehbar-e-Taleem Scheme):

Explanation:-

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 kilometre away from other's and having a population of more than 300 persons, shall be entitled to seek

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

The above explanation shall have prospective effect.

By order of the Government of Jammu and Kashmir.

Sd/-

Secretary to Government,

Education Department.

In terms of aforesaid explanation to call a particular area of the revenue village a Habitation, twin conditions are to be satisfied, (1) the locality must

be one kilometre away from other Habitations, and, (2) it must have population of 300 persons.

The question for determination is as to whether Checki-Wattoo is a Habitation of Revenue Village Watoo, if yes, then unit of selection shall be

Habitation. In case it does not qualify as a Habitation, then unit of selection shall be revenue Village Wattoo. According to learned counsel for the

petitioners, Wattoo is a revenue Village, it does not have any Habitation. In support of this submission, has relied on the report of Patwari and

Naib Tehsildar dated 31st May, 2014. The report of the Patwari is that as per records, Wattoo is recorded as one village, no separate Habitation

is recorded, however, it has different Mohallas. Naib Tehsildar has reported that as per records Wattoo is a big revenue village, it does not have

any separate Habitation.

According to the counsel appearing for respondents No. 1 to 5, Checki-Wattoo is a Habitation. In support of this contention relied on Para 7 of

the reply, which is set out below in extenso:

In reply to para 7, it is submitted that due to the dispute among the habitants of Watoo and Checki Watoo, the respondent No. 3 ordered enquiry

in the matter in order to ascertain factual position whether Checki Watoo is qualifying for Government Order No. 288-Edu or not. The respondent

No. 3 nominated Deputy Chief Education Officer, Kulgam as enquiry officer and Principal, Government Higher Secondary School DH Pora. After

the receipt of relevant documents by the enquiry committee and after spot verification of habitation, the Dy. CEO vide his No. DYCEO/K/223

dated 5.9.2013 reported to respondent No. 3 for further course of action. On the strength of said report, the respondent No. 3 directed answering

respondent vide letter No. CEO/K/8201/13 dated 6.9.2013 that as per previous openings in Checki Watoo has been considered as a habitation

and it is observed that present engagement of ReTs in Middle School, Checki Watoo may also be considered on habitation basis strictly as per

Government Order No. 288-Edu of 2009 dated 8.4.2009 and as per standing norms in vogue.

Learned counsel for respondents No. 10 and 11 submits that the issue is already clinched by this court in a judgment rendered in SWP No.

1925/2011 and 147/2011 with lead case titled Mushtaq Ahmad Thoker v. State and Ors. decided on 02.01.2013 [2013 (1) JKJ 38 [HC]].

While considering the rival submissions, the issue 'as to whether Checki--Wattoo constitutes a Habitation' is not open to be determined afresh.

In the reported judgment, which has not been challenged, the issue was as to whether Sofi Mohalla of Revenue village Wattoo constitutes a

Habitation. For determination of that issue, petition (SWP) No. 1864/2010 was filed which was disposed of on 22.3.2011 with the direction to

the Deputy Commissioner to verify on spot, through senior officer of the department, as to whether Sofi Mohalla is a separate Habitation. The

Deputy Commissioner appointed Assistant Commissioner (R) as enquiry officer who submitted his report on 08.06.2011 stating therein that the

revenue village Wattoo comprises of two parts Viz. Wattoo and Checki Wattoo, the distance between the two is approximately one kilometre. He

had concluded that Sofi Mohalla constitutes a Habitation. The said position was again challenged by medium of two writ petitions i.e. SWP Nos.

1925/2011 and 1475/2011. On proper appreciation of the entire material and the report of the enquiry officer, what was concluded is that revenue

village Wattoo comprises of two parts viz. Wattoo and Checki Wattoo. Then in Para 11 it was concluded that Checki Watoo comprises of three

Mohallas i.e. Thoker Mohalla, Sofi Mohalla and Magray Mohalla, which together constitute ""Habitation"".

In view of the findings recorded in the reported judgment i.e. Checki Wattoo is a Habitation based on proper scrutiny of records and the report

of the enquiry officer of the level of Assistant Commissioner, it is not open to say that Checki Watoo is not a Habitation. Reports of Patwari and

Naib Tehsildar dated 31st May 2014 are routine reports wherein it is said that Habitations are not separately recorded in the revenue records but

Patwari in his report has stated that the revenue village Watoo has different Mohallas. The Patwari and Naib Tehsildar have not analysed the

position in the light of Govt. Order No. 288-Edu of 2009 dated 08.04.2009. In view of determination of the issued in the reported judgment, such

reports cannot have precedence over full-fledged enquiry report as submitted by the Assistant Commissioner and applied in the reported

judgment.

The corrigendum issued providing for Habitation as a unit of selection is inconsonance with Govt. Order No. 288-Edu of 2009 dated

08.04.2009. The selection process has been halted unnecessarily, same shall be concluded with reasonable dispatch. For the stated reasons,

petition is without merit, as such, dismissed along with connected CMP.