HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 131 OF 2008 Ramesh Kumar Petitioners State of Jammu & Kashmir and others. Respondent !Mr. M. A. Goni, Sr. Advocate with Mr. Ajay Singh Kotwal, Advocate. ^Mr. Gagan Basotra, Addl. AG for respondent Nos. 1 to 6. Mr. D. C. Raina, Sr. Advocate with Mr. Raghu Mehta, Advocate for respondent No.7. Honble Mr. Justice Virender Singh, Judge Honble Mr. Justice Sunil Hali, Judge Date: 05.03.2010 :J U D G M E N T:
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
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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 exparte.
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
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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 exparte,
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
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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.
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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, on 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 of 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
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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 Versus State of J&K and others, 2007
(1) JKJ 102 (HC)
2) Susheel Kumar Versus State of Jammu & Kashmir
and others (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
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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
Blacks 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 Websters 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
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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.
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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-`-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
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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.
( Sunil Hali ) ( Virender Singh )
Jammu Judge Judge
05.03.2010
Narinder
