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Jammu High Court
Sanjay Kumar vs State Of Jammu & Kashmir And Ors. on 11 October, 2000
Bench: T Doabia


JUDGMENT

1. Rehbar’ in the traditional concept means a person who enlightens, illumines, guides, paves the path of light, unfolds the bright horizon amidst the encircling gloom, expands his aura enigmatically reaching the true follower and also the one who transfers his sense of originality, duty of accountability and progressive creativity to the dutious disciple leaving his lively foot prints on the sands of time. If the ancient scriptures are to be taken into consideration, then a “Rehbar’can be put on the same pedestal as a ‘Guru’ was put in the Shashtras making him equivalent to guide. In turn, making the disciples follow him with reverence and acts of veneration.

2. The dictionary meaning of the words “Reh” and ‘Rahbar’ as found in Standard Twentieth Century Dictionary is as under:

“Way path passage, means of access, method, manner, mode; fashion, show the way, guide, deceive, prevaricate, leader, mentor, guidance leadership, mend one’s ways, be brought round, bring (someone) round reform, bring on the right path, form an acquaintance with establish relations (with), wait, expect, look for..”

3. The destiny of this nation is now being shaped in class rooms. In a world based on science and tenchnology, it is the education that determines the level of prosperity, welfare and security of the nation and of the people who constitute it. To some people what is of importance is the number of schools, the number of scholars, question of fees, the co-relation of private and Government schools. At the same time, the general feeling is the same as was commented upon by Locke; “Schools fit us for University rather than for the world. “Huxley was of the view that “Education should enable an average boy of fifteen or sixteen to read and write his own language with ease and accuracy and with a sense of literary excellence derived from the study of our classic writers; to have a general acquaintance with the history of his own country and with the great laws of social existence; to have acquired the rudiments of the physical and psychological sciences and a fair knowledge of elementary arithmetic and geometry. He should have obtained an acquaintance with logic rather by example than by precept; while the acquirement of the elements of music and drawing should have been pleasure rather than work.” There is also a feeling that the great mistake in education is the worship of book-learning the confusion of instruction and education. The system strains the memory instead of cultivating the mind. The children in elementary schools are wearied by the mechanical act of writing and interminable intricacies of spelling. They are oppressed by columns of dates, lists of kings and places, which convey no definite idea to mind and convey no near relation to their daily wants and occupation. Education should be a harmonious development of mind. It begins in the nursery and then at school but does not end there. It continues in life. Every person has two educations-one which he received from others and one which he gives himself, which is more important. The first education i.e. in the matter of receiving education from others, an effort has been made through the present scheme i.e. ‘Rehbar-e-Taleem’ now formulated. It is hoped that this education which is received by the young children would prepare them for much more important education which they are to give to themselves throughout the later period of their lives.

4. The salient features of this scheme be noticed.

5. The Rehbar-e-Taleem provides promoting decentralized management of elementary education with the community participation and involvement. The idea behind is to ensure accountability and responsiveness through its strong back-up and supervision through the community at grass root levels. Another purpose which is indicated in the preamble of the scheme is to operationalise effectively the schooling system at village level. The main object is said to highlight the role of a teacher as a teaching guide and to improve the quality of education. In this process, the village level committees are to participate. The village Level Committee is to consist of the parents of the school going children and also a representative of women/Social Caste/Social Tribes. The Zonal Education Officer is the convenor. The eligibility criteria has been indicated in the Scheme. The selection is almost on mathemetical basis. A person who possesses the highest qualification in the area is to be appointed under this Scheme. He is to get an honorarioum of Rs.1500 for two years. Thereafter, he is to get an honorariom of Rs.2000/- per month. This also ensures to some extent the later, adjustment in the regular scheme. This aspect of the matter is dealt with in the last para of the Scheme. There appears to be a genuine effort to involve the local population in a process which would ultimately built up the future citizens of this country. The Scheme is, however, silent on several aspects as to who is going to control this class of educators in case they fail to discharge the solemn obligations which are going to be placed on them, What are their service conditions, who is their controlling authority, by what Regulations, they are going to be governed in the matter of discipline including leave and holidays, has not been dealt with in this Scheme. These are some of the matters regarding which nothing has been said in this Scheme. In this regard, it would be apt to refer to a decision of the Supreme Court of India in the case of State of M.P. and anr. v. Dinesh Kumar and others in Civil Appeals No.4002/94. In the above case under a Scheme framed by the State of Madhya Pradesh, teachers were going to be appointed by the concerned Panchayats. The High Court of Madhya Pradesh pointed out some defects in the scheme adopted by the State of Madhya Pradesh. An appeal was preferrred before the Supreme Court of India. This appeal as indicated above bears No.4002/94. This was decided by the Supreme Court alongwith Civil Appeals No.4033 and 4034/94, on 21st Oct’97, with the following observations:

“These appeals were argued at length. The State of Madhya Pradesh stated that they would take steps to make apropriate amendment in the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 and frame proper rules in order to remove the defects which were pointed out by the High Court in the impugned judgment. This is recorded in the order of 3.8.97. The appellants have now filed an affidavit to the effect that the State Government has amended the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 by Madhya Pradesh Ordinance No.4 of 1997 called the Madhya Pradesh Panchayat Raj (Sanshodhan) Adhyadesh, 1997 and they have also passed Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service), Rules, 1997 in exercise of power conferred by sub-section (1) of section……. Of Madhya Pradesh Panchayat Raj Adhiniyam, 1993. The ordinance and the Rules are annexed to affidavit. The apellants further state that in accordance with the Rules so framed, they will start that process of selection of Shiksha Karmis in all Grads as per the Rules now annexed in January, 1998, and will complete the process by the end of June, 1998. The existing Shiksha Karmis will also be entitled to apply in accordandce with these rules. The appellants has drawn our attention to Rule 5(9)(1)(b) which provides for grant of 25% marks for teaching experience in the schools of concerned Janpad Panchayat or Zila Panchayat. The appellants have no objection to similar marks being given for equivalent teaching experience in any other rural school also. We, therefor, direct that benefit of this clause should also be given to those possessing similar teaching experience in other equivalent rural schools, Under schedule II to these rules, Note 3 provides for relaxation in the upper age limit upto three years for the candidates who have worked atleast for three years in the educational institutions under the supervision of the Janpad Panchayat or Zila Panchayat concerned. In view therefore no further relaxation in regard to age is necessary:

In the premises, learned counsel for the appellants states that the appeals have now become infructuous.

The appeals are accordingly dismissed with the above directions. The existing Shiksha Karmis will continue till 30.4.98 when the academic session ends.”

6. State of Madhya Pradesh had framed rules known as Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997. These Shiksha Karmis were to be appointed by Zila Panchayats for teaching in the schools under their respective controls. These rules deal with the classification and scale of pay, method of selection and recruitment, Probation and confirmation, discipline and control and other general conditions of service. A remedy of appeal was also provided under R.12 of the rules. As indicated above, these rules came to be enforced in terms of the decision given by the High Court of Madhya Pradesh which decision was the subject matter of challenge in the Supreme Court of India. The Supreme Court disposed of the appeal in view of the fact that the State had ensured that steps would be taken in terms of the judgment given by the High Court of Madhya Pradesh.

7. The circumstances under which above decisioin was given by the Supreme Court be noticed:

8. Part IX of the constitution in the shape of Art. 243 came to be inserted by the Constitution. 73rd Amendment Act of 1992, certain powers came to be conferred on Panchayats, In terms of Art. 243G, XI Schedule, Entry 17 was added. This dealt with education including primary and secondary schools. It was in pursuance of this Constitutional amendment, the entry referred to above and the consequent power came to be conferred on Panchayats, litigation came to the High Court of Madhya Pradesh and consequently came to the Supreme Court. No doubt, such a provision is not applicable in the State of Jammu and Kashmir but what has been noticed above would be aplicable to the facts of this case also.

9. In the present case also, as indicated above, there is no provision which provides for discipline and control as to what are the general conditions of service, as to how this tenure is to be brought to and end, has not been dealt with at all. Therefore, the State would take notice of the judgment given by the Supreme Court in Civil Appeal No. 4002/94,decided on 21st Oct’97, which judgment has been reproduced above and take remedial measures. The rules on the subject were obtained from the registry of Madhya Pradesh High Court. A copy of the judgment of the Supreme Court referred to above and a copy of the rules, a reference of which has also been made above, are being taken on record as annexuresc.1 and c.2.

10. The State of Jammu and Kashmir is accordingly directed to take notice of these rules and would see to it that the criteria is recast in terms of the decision of the Supreme Court of India, which decision has been reproduced above and copy of which, as indicated above is taken on record as annexure c.1.

11. Another challenge to the scheme has also been made. This is on the ground that some of the appointments which were supposed to be made through regular channel are going to be diverted and made through this scheme. Regarding this, a statement was made by the counsel appearing for the respondents that this is not contemplated by this Scheme, therefore, the scheme as it is cannot be faulted.

12. In view of the above, it is not thought apt to deal further with the above issue. The State authorities would, however, see to it that the appointments which were to be made through regular process would not be made under this Scheme.

13. The different situation which have arisen in the implementation of this Scheme are the subject matter of challenge in various writ petitions. This aspect of the matter be now noticed and each of the writ petition is being dealt with on the basis of the facts as projected therein.

14. SWP No.1306/2000:

15. This petition has been preferred by Sanjay Kumar. The break up of the merit position has been indicated in annexure R.B of the objections filed by the State Counsel. The petitioner being possessing the qualification of 10+2, has been given 41 % marks. The candidate who has been selected is B.Sc on this basis of the qualification, he was given 59% marks. If this be the position, then this petitioner can have no valid grievance. This petition shall therefore, stand dismissed.

16. SWP No.1303/2000:

17. The name of the village regarding which the appointment is being sought is Kansoo. The stand of the respondents is that no person has been appointed in this village under the aforementioned scheme. This is because two teachers stand already appointed and these have been appointed under the regular grade and not under the present Scheme. If above be the position, then the petitioner cannot claim any relief. This petition shall also stand dismissed.

18. SWP No.1208/2000:

19. In this petition, there is a disputed question of fact. This is as to whether the petitioners did submit their applications. The respondents have taken an objection that the applications were not filed by the petitioners. A supplementary affidavit has, however, been filed in Court today asserting that the petitioners had applied for the same. In view of the above, it would be apt to direct Deputy Commissioner and District Development Commissioner, Doda, to examine this disputed question of fact. The question as to whether the petitioners had submitted their applications would be gone into by the District development commissioner. Doda. In case the above officer is of the opinion that the matter is required to be looked into by the Deputy commissioner, Doda, then the matter can be referred to him. The petitioners would appear before the District Development Commissioner, Doda on 13th Nov’2000. A copy of the objections preferred by the State, a copy of the supplementary affidavit alongwith a copy of this order would be made available to the said officer by the petitioners. The said officer would hear both the sides and pass a speaking order. Let this be done at the earliest and not later than 30th Dec’2000.

20. SWP No.1599/2000:

21. Petitioner belongs to village Dhannu. The candidate who has been selected is Munish Kumar, respondent No.5 to the writ petition. He belongs to village Balgram.

22. The case of the State is that village Dhannu is a Moraha of Balgram i.e it is a sub village. It is submitted that the main revenue estate (village) is Balgram.

23. The learned counsel for the petitioner, however, submits that the stand taken by the State is incorrect. It is submitted that village Dhannu and village Balgram have different Village Level Committees and both these places have been treated as independent village.

24. In view of the above, respondent No.3 in this petition would go into the question as to whether there are two Village Level Committees in these two areas referred to above. Petitioner would appear before the said officer on 13th Nov’2000. The said officer would, after hearing the petitioner, decide the matter. Hearing would also be given to respondent No.5 in this petition. He would be served a notice for appearing before the said officer on the date fixed above. Whatever is the result, that would naturally abide the events.

25. This petition shall stand disposed of.

26. SWP 1488/2000 :

27. The claims of the petitioner have been negatived merely on the ground that she is married to a person who is serving in the city of Jammu. The fact that she belongs to village Dhar Jankar, is not being disputed.

28. Merely because the petitioner is married to a person who is serving in Jammu City, would not divest her or of her right to be considered in the village to which she belongs. The stand taken by the respondents in this regard is not apt. As a matter of fact, under similar circumstances in the case of Joginder Singh V. State through Commissioner-cum-Secretary, 2000(3) SCT 24, the view expressed is that merely because the lady marries in other district would not take away her right of appointment in the area to which she belongs. The ratio of the above judgment would apply to the facts of this case also. The respondent authorities are accordingly directed to consider the claims of the petitioner by considering her residence to be village Dhar Jankar. A decision would be taken and conveyed to the petitioner within a period of two months from the date, a copy of this order is made available to the respondent authorities by the petitioner.

29. The petitioiner belongs to village Masyal, block Khour, Tehsil Akhnoor, district Jammu. In this petition he has challenged the appointment of respondent No.7 Shushma Devi.

30. Respondents have filed objections.

31. The stand taken by them is that the claims of the petitioner were considered but on account of his low merit, he was not appointed. The merit is given as under;

“i Jagdish Lal 10+2 251/600

ii Sushma Devi 10+2 333/600”

32. The learned counsel for the petitioner submits that respondent Sushma Devi does not belong to village Masyal, and therefore, she could not be appointed under this Scheme in this area.

33. Respondents have placed on record, the State subject copy of the said respondent Sushma Devi. This certificate shows that she is the resident of village Khour Moura Narayana, Teh. Akhnoor.

34. If above be the position, then the petitioner is right in his submission that the above respondent belongs to some other area.

35. The learned counsel for the respondent State Further submits that this issue was settled after taking into consideration the statement of village Lumbardar. This village Lumbardar is again of village Khour Moura. The respondents have also placed reliance on some revenue record.

36. Prima facie, the stand taken by the petitioner appears to be correct. However, with a view to resolve the issue, the matter is directed to be looked into by respondent No.5 in the writ petitioin. He would accordingly issue a notice to respondent No.7 for appearing before him on 20th Nov’2000. The petitioner would also appear before the said officer on the date mentioned above. The Deputy commissioner, Jammu, i.e. respondent No.5, would look into the matter and would pass a speaking order after hearing both the sides. The resultant order would be passed by 30th Dec’2000. Whatever is the decision arrived at by the said officer, would naturally abide the events.

37. Disposed of as such.

38. Appointment of respondent No. Bashir Ahmad is the subject matter of challenge in this petition. This is on the ground that the said respondent belongs to village Chakra. It is submitted that the petitioner being the resident of village Dhandal, Tehsil and District Doda, should have been considered. It is also urged that the name of the petitioner was duly recommended by the Vilage Level Committee of the above village.

39. The learned counsel for the respondent – State submits that village Chakra is a sub village of Dhandal and there is one Village Level Committee for both these areas.

40. If above be the position, then it cannot be said that respondents in making the selection of respondent No.5, have committed any error.

41. In view of the above discussion, the State would take notice of the judgment given by the Supreme Court, referred to above, and also. If so advised, take some assistance from the rules framed by the State of Madhya Pradesh, because these rules have obtained approval of the Supreme Court. The State Government is accordingly directed to remove the lacunas pointed out above by 31st March’2001. So far as the present appointments are concerned, these would continue to be regulated as per the previous policy, but the future selections to be made, should be made in a manner that it does not runs counter to the view expressed by the Supreme Court in the case referred to above.

42. Disposed of as such.


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