Reserved On: 03.11.202 vs State Of Jk (School Education)
2021 Latest Caselaw 1504 j&K/2

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                                                     S. No. 149
                                                     After Notice Matters
 HIGH COURT OF JAMMU &KASHMIR AND LADAKH
                AT SRINAGAR
                                                            SWP No. 78/2015
                                                   Reserved on: 03.11.2021.
                                         Date of Pronouncement: 25.11.2021
 Sajad Ahmad Bhat                                        ...Petitioner(s)
                        Through:       Mr. N.A. Beigh, Sr. Advocate with
                                       Mr. Manzoor Ahmad, Advocate.
      V/s
 State of JK (School Education)                            ..... Respondent(s)
                        Through:       Mr. Bhat Fayaz, Advocate, For R-5.
 CORAM:
            HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE.
                          ORDER

1. In the instant petition, the petitioner on the foundation of the case setup implores for following reliefs: -

i. A writ of mandamus directing the respondents to submit the entire record pertaining to the case, to the Hon'ble Court; ii. A writ of certiorari quashing the Re-Advertisement Notice No. ZEO/K/4308-14 dated 01.01.2015;

iii. A writ of mandamus directing the respondents to consider the case of petitioner for relaxation of age by 3 months and 4 days, in terms of earlier notification;

OR In alternative

a) A writ of certiorari quashing the Re-advertisement Notice No. ZEO/K/4308-14 dated 01.01.2015;

b) A writ of mandamus directing the respondents to issue fresh advertisement notice on habitation basis and consider the pending application of petitioner alongwith other eligible candidate for the said post of ReT post;

2. The facts those stem out from the petition are that respondent No. 4 issued an advertisement notice No. DIPK-4176 dated 23.07.2014 for filling up the post of Rehbar-e-Taleem (ReT), with math background in Upper Primary School at Sindona, on habitation basis.

3. It is being stated that the petitioner having the requisite academic qualification and being resident of habitation Sindona applied for the post although on the date of issuance of the advertisement notice, the petitioner was more than 18 years old but taking his age as on 01.01.2014, he was short by three months and four days and that since

he was the only candidate available from the habitation as such, his case for relaxation of age ought to have been processed, but instead the respondents issued re-advertisement notice for the post in question on revenue village basis instead of habitation basis.

4. The issuance of the re-advertisement notice No. ZEO/K/4308-14, dated 01.01.2015 is being thrown challenge to by the petitioner inter alia, on the following grounds: -

a. Because the petitioner having his academic qualification as 10+2 (non-Medical) with Math background and he being a resident of concerned habitation with 18 years of age, on date of publication of notification on 25.07.2014, ought to have been granted relaxation of 3 months and 4 days as he was less than 18 years on the relevant date i.e., 01.01.2014, in view of his being otherwise the only eligible candidate form habitation;

b. Because the habitations in the said revenue village are scattered and in habitation is more than 2 Kms. away from other habitations also and therefore the respondents should have issued the said notification for filling up the ReT post on habitation basis, in terms of Govt. Order No. 288 dated 08.04.2009 like they did earlier; c. Because admittedly there are candidates available from habitation especially the petitioner who earlier fell short of 3 months and 4 days and since the re-advertisement has been issued after more than 5 months on revenue village basis, it violates not only the said Govt. order No. 288 of 2009 but also takes away his right of preferential claim in terms of the said order; and d. Because the respondents seem to have re-advertised the post on revenue village basis with some malice aforethought, to the disadvantage of the petitioner, with simple object to select and appoint some blue-eyed person in preference to petitioner against the mandate of law as also against his valid interests.

5. It is pertinent to mention here that during the pendency of the petition one Fayaz Ahmad Lone S/o Ghulam Ahmad Lone R/o Dard Harie, Kralpora, Kupwara, laid MP No. 515/2015 for impleadment as party respondent in the petition which MP came to be allowed in terms of order dated 02.12.2016. Further in terms of the said order reply filed by respondents 1 to 4 upon request of the counsel for newly added respondent No. 5 came to be treated as reply on his behalf as well.

6. Respondents No. 1 to 4 have filed objections wherein it is being stated that one post of ReT fell vacant in UPS Sindona, Dard Harie, due to death of one ReT namely Sajad Ahmad Lone on 24.04.2014 and accordingly came to be advertised through publication in daily newspapers 'Aftab' and 'Tameel-e-Irshad' dated 25.07.2014 and

26.07.2014 on habitation basis in terms of Government order No. 288- Edu of 2009 dated 08.04.2009.

7. It is being stated that in response to the said notification only one candidate, the petitioner herein applied for the post within cut-off date, however upon scrutiny of the certificates, the petitioner was found to be underage as on 01.01.2014, thus not eligible, in that the age of a candidate for recruitment as ReTunderReT Scheme is to be counted as per general rules applicable to the State and in terms of Article 37 of J&K CSR, maximum and minimum age is to be determined on 1st of January of the particular year, in which advertisement for recruitment is made.

8. It is being further stated in the objections that the post was therefore re-advertised by respondent No. 4 on revenue village basis through publication in daily newspaper, 'Kashmir Uzma' dated 03.01.2015 and that in response thereto two applications were received up to the cut-off date.

9. It is being further stated that in view of a Division Bench judgment of this Court passed in case titled as "Altaf Ahmad Sheikh V. State and Ors. being LPA No. 20/2009, the petitioner was not found eligible for consideration as he was underage at the time of initial advertisement notice and thus had no right to claim appointment. The petition, thus is prayed to be dismissed.

10. It is significant to mention here that a supplementary affidavit has been filed by the petitioner wherein an official communication addressed by the Chief Education Officer, Kupwara to the Zonal Education Officer, Kralpora bearing No. Estt/7153-54 dated 19.06.2015 has been sought to be placed on record contending therein that the communication revealed, that the re-advertisement notice had been issued by respondent No. 4 at his own level without approval and taking into confidence respondent No. 3.

11. Perusal of the record, however, would reveal that the said affidavit accompanying the application has been filed by the petitioner on 17.08.2015 being MP No. 01/2015. Record of proceedings would, however, reveal that the said application has neither been considered nor allowed by the court.

12. Be that as it may, the short grievance projected by the learned counsel for the petitioner while making his submissions in line and tune with the contentions raised and grounds urged, firstly, is that the official respondents ought to have considered the candidature of the petitioner pursuant to the initial advertisement notice dated 25.07.2014 by granting relaxation to the age of the petitioner being short of three months and four days as on 01.01.2014 and proceeded with the selection thereof and secondly, even if no such relaxation was permissible, the official respondents ought not to have re-advertised the post on revenue village basis in view of Government order No. 288-Edu of 2009 dated 08.04.2009.

13. Before proceeding to deal with the submissions of the learned counsel for the petitioner, it would be relevant and significant to refer to the Government order No. 288-Edu of 2009 dated 08.04.2009 which reads as under: -

"The following explanation is added below Eligibility condition No. 1 laid down in Government Order No. 398 of Edu 2000 dated 28.04.2000 (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 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.‟ The above explanation shall have prospective effect."

14. A bare perusal of the order dated 08.04.2009 supra would manifestly demonstrate that while making a selection cum appointment against a post of ReT in a revenue village where habitations 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.

15. A further perusal of the Government order dated 08.04.2009 supra would further reveal that same has been issued by adding an explanation below the eligibility condition No. 1 laid down in Government order No. 398 of Edu 2000 dated 28.04.2000 (Rehbar-e- Taleem Scheme).

Thus, a reference to the eligibility clause of the scheme also becomes imperative hereunder: -

Eligibility i/ Rehbar-e-Taleem should be permanent resident of the State of J&K.

ii/ He or she should belong to the village where there is assessed deficiency of staff. One the certification of VLC that no local candidate from the Village is available, VLC can draw up the panel from the adjoining village.

16. A bare perusal of condition 2 supra of the eligibility would suggest that if no local candidate from the village is available VLC can draw panel from the adjoining village. The drawing of a panel in ordinary course would suggest re-advertising of the post and extending the zone of consideration to the adjoining village. The intent behind the explanation appendedto the Government order supra can never said to be that in all cases and for all times the post has to be reserved for the habitation where there is assessed deficiency, in the event there is no eligible candidate available.Such kind of interpretation would be absurd and cannot by any sense of imagination said to be in tune with the aims and objects of the scheme. A clarification thus seemingly in this regard issued by the Government vide order No. 563-Edu dated 24.08.2005 augments the aforesaid position, and the order reads as under:

"In amplification of: -

. Circular instructions issued vide No. Edu/Plan- 184/2000 dated 17.02.2000.

. Govt. Order No. 396 of Edu 2000 dated 28.04.2000, and . Other orders/instructions in the matter, issued from time to time, thereafter, It is hereby clarified/re-affirmed that the expression "Village" used in the instructions/orders aforesaid shall mean, and shall always be deemed to have meant, a Revenue Village."

Word „village‟ used in the Scheme thus means a „Revenue Village‟."

17. The said principle even has been acknowledged, endorsed and upheld by this Court in case titled as "Shakeel Ahmad Bhat and Anr V. State of J&K and Ors." reported in (2006) 1 SLJ 262, wherein at paragraphs 15 and 16 following has been provided: -

15. Learned counsel for the petitioner, in support of his arguments, has referred Division Bench Judgment of this Court dated 13.08.2002 delivered in SWP No. 439/2001 titled Zahida Banoo Vs. State of J&K and Others, and stated that the candidates hailing from the habitation where the school is to be set-up are to be considered and not from entire village. He referred para-10 of the judgment.

16. It is useful to reproduce para-10 of the said judgment herein:

"10. The phraseology employed in drafting the clause is explicit and admits no ambiguity in deducting the world "VILLAGE" has to be understood in popular English parlance and such reading makes it clear that right of consideration for engagement flows to the State subjects belonging to the village where assessed deficiency exists and in absence of a local candidates to the inhabitants of the adjoining villages which is the only true interpretation and no other interpretation can be placed on the clause."

Their Lordships have held that candidate(s) hailing from village is/are to be considered and in case local candidate(s) of the village is/are not available then candidates hailing from adjoining village are to be considered. It is nowhere provided that candidate(s) hailing from Mohalla or Patti of a village where school is located is/are to be considered and the candidates of other Patti(s) or Mohalla(s) of the village are not to be considered.

18. Law is no more res integra that when a post is advertised for recruitment the only right, which a candidate desirous of selection and appointment against the said post has the right of participation and equal consideration. The rules of recruitment may permit preferential treatment to a candidate based on higher qualification or other valid grounds. This however, does not mean that it confers a right to be selected and appointed irrespective of other relevant considerations. Admittedly, the petitioner herein was lacking eligibility at the time of issuance of initial advertisement notice dated 23.07.2014 and the respondents thus while issuing subsequent advertisement notice dated 01.01.2015 followed the mandate provided in the scheme by extending the zone of consideration for having selection and appointment of most meritorious candidate. The petitioner herein cannot be said to have been prejudiced by any sense of imagination upon issuance of said re-advertisement notice, in that, the petitioner indisputably can seek consideration for selection and appointment thereto.

19. Having regard to what has been observed, considered and analyzed herein above, the case setup by the petitioner in the instant petition is misconceived. Resultantly, the writ petition fails and is accordingly dismissed.

20. Dismissed along with all connected CM(S).

(Javed Iqbal Wani) Judge SRINAGAR 25.11.2021 "Junaid"