{"id":85577,"date":"2010-03-05T00:00:00","date_gmt":"2010-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramesh-kumar-vs-state-of-jk-and-others-on-5-march-2010-3"},"modified":"2016-08-14T13:44:06","modified_gmt":"2016-08-14T08:14:06","slug":"ramesh-kumar-vs-state-of-jk-and-others-on-5-march-2010-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramesh-kumar-vs-state-of-jk-and-others-on-5-march-2010-3","title":{"rendered":"Ramesh Kumar vs State Of J&K And Others on 5 March, 2010"},"content":{"rendered":"
Jammu High Court<\/div>\n
Ramesh Kumar vs State Of J&K And Others on 5 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nLPASW No. 131 OF 2008    \nRamesh Kumar   \nPetitioners\nState of Jammu & Kashmir and others.  \nRespondent  \n!Mr. M. A. Goni, Sr. Advocate with Mr. Ajay Singh Kotwal, Advocate.\n^Mr. Gagan Basotra, Addl. AG for respondent Nos. 1 to 6. Mr. D. C. Raina, Sr.\nAdvocate with Mr. Raghu Mehta, Advocate for respondent No.7. \n\nHonble Mr. Justice Virender Singh, Judge\nHonble Mr. Justice Sunil Hali, Judge\nDate: 05.03.2010 \n:J U D G M E N T: \n<\/pre>\n
With the consent of learned counsel for both the sides, we
\nintend to dispose of the instant Letters Patent Appeal at motion
\nstage itself. Writ Court record is also available for our perusal.
\nAdmitted.\n<\/p>\n
Through the instant appeal the appellant, who got an
\nappointment as Rehbar-e-Taleem (R-e-T) Teacher in Primary
\nSchool Sharni in year 2000, has questioned the legality of the
\norder dated 01.09.2008 (Annexure-A) of learned Single Judge
\nwhereby his appointment stands quashed and private respondent
\nNo.7 (hereinafter to be referred to as writ petitioner) has been
\nappointed as R-e-T Teacher for the said school. All consequential
\nbenefits flowing from the said appointment have also been granted
\nto the writ petitioner. The impugned order stands implemented, as
\n2<\/span>
\na result, appellant has lost his job and the writ petitioner has been
\nappointed.\n<\/p>\n
It needs to be mentioned here that the appellant did not
\ncontest the writ petition before the learned Writ Court, so set exparte.
\nHowever, his services were regularized in accordance with
\nthe provisions of the Scheme and he came to be appointed as
\nGeneral Line Teacher substantively for the said school during the
\npendency of the lis in the month of November, 2005 after putting
\nin five years of service.\n<\/p>\n
We, while giving priority to the instant appeal, sought a
\nclarification from the State in our order dated 02.02.2010,
\nobserving:-\n<\/p>\n
A good case for not only admission of the
\nappeal has been made out but a very good
\ncase for stay of operation of judgment and
\norder has also been made out. However,
\ntaking into account, that the order appealed
\nagainst has been implemented, as a result,
\nappellant has lost his job and the writ
\npetitioner- respondent has been appointed,
\nwe would require the State to supply the
\nlacunae which was not supplied while filing
\nthe counter affidavit.\n<\/p>\n
The school is situated, as pleaded in the
\nwrit petition, in village Sharni. The State in
\nits Affidavit has not indicated whether
\nvillage Sharni is or is not in a Revenue
\nvillage and if it is not in a Revenue village,
\nwhether it is a Mohalla or a hamlet within a
\nRevenue village. It has also not indicated
\nthat if village Sharni is a Mohalla or a
\nhamlet within a Revenue village, what is the
\nname of that Revenue village. It has also
\n3<\/span>
\nnot indicated whether the village Rokali and
\nvillage Chagsoo are parts of the same
\nRevenue village where village Sharni is
\nsituated. We want the State to file such
\naffidavit within two weeks from today.\n<\/p>\n
List at the top of the list two weeks hence.\n<\/p>\n
Records, as produced, are being returned,
\nwhich shall be produced at the time of
\nhearing.
\nIn response, an affidavit has been filed by Chief Education
\nOfficer Doda stating therein that Sharni, Rokali and Chagsoo are
\ndifferent revenue villages as certified by Tehsildar Thathri vide its
\nletter No.899\/OQ dated 10.02.2010, copy thereof is placed on
\nrecord.\n<\/p>\n
Mr. Raghu Mehta, Advocate, appearing for the writ petitioner
\nhas also moved an application bearing CMP No.24\/2010 for
\nplacing on record the supplementary affidavit of the writ petitioner.
\nLearned Senior Advocate Mr. Goni did not object to taking of the
\nsame on record. So we allow the prayer.\n<\/p>\n
Heard learned counsel for both the sides and perused the
\nWrit record.\n<\/p>\n
Mr. Goni contends that may be the appellant did not contest
\nthe writ petition before the learned Writ Court and proceeded exparte,
\none important fact that he was appointed as General Line
\nTeacher substantively in accordance with the provisions of the
\nScheme in November, 2005 was not brought to the Court by the
\ncontesting parties. According to him, it was incumbent upon them
\nto bring this important fact before the learned Writ Court during
\nthe pendency of the lis and had it been so done, the complexion of
\nthe main case would altogether have been different. He submits
\n4<\/span>
\nthat the State has now chosen not to assail the order of the learned
\nWrit Court and gave appointment to the writ petitioner pursuant to
\nthe direction. Therefore, on this flaw alone, the impugned
\njudgment is not sustainable.\n<\/p>\n
Joining issue on merits of the case, Mr. Goni submits that
\nthe main case set up by the writ petitioner before the learned Writ
\nCourt was that her village is at a less distance from village Sharni
\nwhere the vacancy was assessed and that village Chagsoo, the
\nvillage of the appellant was far away from Sharni and this is what
\nhas weighed with the learned Writ Court for ousting the appellant
\nwhereas, admittedly, the appellant was more meritorious in
\nqualifications than the writ petitioner, which fact is otherwise
\nevident from Annexure-K. According to learned counsel, village
\nRokali from where the writ petitioner hails and village Chagsoo, the
\nvillage of the appellant, in fact, are not contiguous to village Sharni
\nwhere the deficiency had occurred and, therefore, both the villages,
\nmay be one falling at a distance of 2 kilometers and the other at a
\ndistance of 3 kilometers are to be considered as adjoining villages
\nunder the spirit of the Scheme. Therefore, the merit on the basis of
\nqualifications of an individual candidate shall prevail. This is
\nwhat is done in the present case while appointing the appellant.
\nAccording to the learned counsel, the approach adopted by the
\nlearned Writ Court in quashing the appointment of the appellant
\nprimarily on the basis of the distance from village Sharni where the
\ndeficiency occurred, is not the correct approach, as such, the
\nimpugned judgment deserves to be set aside on merits as well.
\nMr. Goni lastly submits that the appellant by now has
\nbecome overaged and will not be able to get any government job.\n<\/p>\n
5<\/span><\/p>\n
His entire family is dependent upon him, which includes minor
\nchildren as well. Therefore, his case deserves an equitable tilt,
\nmore so when his regular appointment was not made the subject
\nmatter of challenge before the learned Writ Court.
\nMr. D. C. Raina, learned Sr. Advocate, on the other hand,
\nsubmits that the impugned judgment is absolutely in line with the
\nScheme, which has co-relation with the distance. He submits that
\nif one goes by the spirit of the Scheme, in the event of no local
\ncandidate available from the village where the deficiency of staff is
\nassessed, Village Level Committee can draw up panel from the
\nadjoining village and in the present case the adjoining village was
\nvillage Rokali only, which was just 2 kilometers away from village
\nSharni and that village Chagsoo was 3 kilometers away from the
\nsaid village. This is the reason that even in the panel Annexure-K
\n(attached with the memo of appeal), when list of candidates on the
\nbasis of merit was prepared for the said school, the appellant
\nfigured at serial No.3 whereas the writ petitioner was at serial No.1.
\nSo percentage of the appellant on the basis of his academic
\nqualifications was not given weightage. According to Mr. Raina,
\nanother candidate namely Mohinder Kumar is reflected at serial
\nNo.5 in the list (Annexure-K) and his percentage is 56.50 i.e. much
\nhigher than of the appellant, but the distance of his residence to
\nSchool is assessed as 6 kilometers. This shows that Village Level
\nCommittee was conscious of the fact that as per the Scheme,
\ndistance of the residence of the candidate from the School where
\nthe vacancy was to be filled has to be given preference over and
\nabove the qualifications. This is the reason that learned Writ
\n6<\/span>
\nCourt found appointment of the appellant as wrong and rightly
\nquashed it.\n<\/p>\n
Mr. Raina then submits that may be during the pendency of
\nthe lis, fact of regularization of the services of the appellant as
\nGeneral Line Teacher was not brought to the notice of the Writ
\nCourt, that by itself would not strengthen the case of the appellant,
\nif his initial appointment was bad. A wrong, which has been done
\nby ignoring the R-e-T Scheme operative at that stage, will not give
\nhim a right of regularization even if any order in his favour has
\nbeen passed subsequently by the concerned authority on the basis
\nof length of his service.\n<\/p>\n
Mr. Raina lastly submits that even on equity the appellant
\nhas no case for the simple reason that equity when pitted against
\nthe fundamental right, has to make way for enforcement of
\nfundamental right. Therefore, it cannot be a case of showing any
\nequitable tilt in favour of the appellant.\n<\/p>\n
Mr. Raina has relied upon the following two judgments:-\n<\/p>\n
1) Koshlya Devi Versus State of J&K and others, 2007
\n(1) JKJ 102 (HC)\n<\/p>\n
2) Susheel Kumar Versus State of Jammu & Kashmir
\nand others (LPASW No.131\/2006)
\nSince the dispute pertains to the appointment made under
\nR-e-T Scheme, it would be relevant to keep in view the eligibility
\nconditions envisaged by the Scheme. The Scheme postulates that
\na person, who is meritorious amongst the candidates
\npossessing the prescribed qualification, belongs to the village
\nwhere deficiency has occurred, is to be appointed. Now
\nsuppose no candidate having the prescribed eligibility qualification
\n7<\/span>
\nis available in the village where the deficiency has occurred, would
\nit mean that post shall remain vacant. The Scheme by itself takes
\ncare of such a situation also by providing that in such eventuality
\na candidate from the adjoining village may be appointed. Now let
\nus conceive another situation. Suppose the village where
\ndeficiency has occurred and a candidate having requisite
\nqualification is not available and a candidate from adjoining village
\nis to be taken as the Scheme provides, is adjoined by more than
\none village and each village has candidates having the prescribed
\neligibility qualifications, the question would arise in such like
\nsituation, as to how the selection can validly be made. The
\nScheme does not take care of such a situation despite that it
\ncannot be accepted that in such like situation, the framers of the
\nScheme intended to keep the post vacant. Going by the intention
\nof the framers of the Scheme that the vacancy occurring must be
\nfilled up for the welfare of the children of a particular village,
\ninterpretation of the expression Adjoining village would be
\nnecessary.\n<\/p>\n
Dictionary meaning of the expression adjoining as per
\nBlacks Law Dictionary is Touching; sharing a common
\nboundary; Contiguous. It can be read as adjacent also, which
\nmeans lying near or close to but not necessarily touching.
\nAs per Websters Comprehensive Dictionary, expression
\nadjoining is synonyms to expression adjacent which means
\nlying next, bordering; contiguous, lying near or close at hand.
\nAs per Law Lexicon, the expression adjoining means
\ntouching or contiguous, as distinguished from lying near or
\n8<\/span>
\nadjacent. Etymologically, the word means touching or contiguous
\nto, but the lexicographical meaning is close to; near to; contiguous.
\nVillage in any case shall now be read as revenue village.
\nReading the dictionary meaning of adjoining and the meaning of
\nthe word village, the expression adjoining village would mean a
\nvillage adjoining or near to the village in issue.
\nThe above definitions, however, do not completely fit in the
\nsituation envisaged keeping in view the nature and context of the
\nScheme. In our considered view, the expression adjoining village
\nas contemplated by the Scheme would mean the village or the
\nvillages surrounding the village where the deficiency has occurred.
\nThe definition of adjoining village cannot be restricted to a single
\nvillage or a village nearer to the village where deficiency has
\noccurred. Adjoining village would mean village\/villages adjoining
\nthe village in issue where the deficiency has occurred irrespective
\nof number.\n<\/p>\n
Now the next question would be that if eligible candidate
\nmore than one are available in more than one adjoining villages,
\nhow the selection would be made. The learned Writ Court adopted
\nthe principle of distance only from the villages of the candidates to
\nthe village where deficiency had occurred. This principle, in our
\nview, is not the correct one for the reason that under this principle
\nless meritorious candidate may steal a march over the meritorious
\ncandidates available in the other adjoining village. It can be
\ncomfortably imagined that the intention of the Scheme is not to
\nappoint less meritorious candidate over and above the meritorious
\ncandidates, the intellectual development of the children of a
\nparticular village being the heart beat of the Scheme.\n<\/p>\n
9<\/span><\/p>\n
The appointment of the appellant, if appreciated in the light
\nof the aforesaid discussion, the net result would be that it was not
\nat all bad and rather absolutely in consonance with the spirit of
\nthe Scheme in operation at that time for the reason that admittedly
\nhe was more meritorious in his qualifications than the writ
\npetitioner. Therefore, in our considered view, the impugned
\njudgment of the learned Single Judge quashing the appointment of
\nthe appellant deserves to be set aside.\n<\/p>\n
Before parting with the judgment, we may observe here that
\nthe argument advanced by Mr. Raina with regard to the eligibility
\nof Mohinder Kumar falling at serial No.5 having been more
\nmeritorious than even the appellant and still not appointed on
\naccount of the distance of his village from the School where
\ndeficiency occurred, appears to be attractive, but deserves to be
\nrejected for the reason that said Mohinder Kumar had not
\nchallenged the appointment of the appellant. The present case,
\nthus, has been appreciated with regard to the merit of the
\nappellant vis-`-vis writ petitioner only.\n<\/p>\n
The judgments on which Mr. Raina has relied heavily in
\nsupport of his submissions, in our view, are not at all applicable to
\nthe facts of the present case, which has been dealt with by us
\naltogether on different aspect.\n<\/p>\n
Consequently, the appeal on hand is allowed and the
\nimpugned judgment of the learned Single Judge whereby
\nappointment of the appellant as R-e-T Teacher in Primary School
\nSharni was quashed is set aside, resultantly, the writ petition of
\nthe writ petitioner\/ respondent No.7 herein shall stand dismissed.
\nService status of the appellant shall be restored forthwith. The
\n10<\/span>
\nappellant shall also be entitled to all consequential benefits except
\nthe monetary one by deeming him in continuous service. The writ
\npetitioner, thus, shall stand ousted from the post held by her
\npursuant to the impugned judgment.\n<\/p>\n
Connected CMP(s) also stands disposed of accordingly.
\n( Sunil Hali ) ( Virender Singh )
\nJammu Judge Judge
\n05.03.2010
\nNarinder<\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court Ramesh Kumar vs State Of J&K And Others on 5 March, 2010 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-85577","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nRamesh Kumar vs State Of J&K And Others on 5 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramesh-kumar-vs-state-of-jk-and-others-on-5-march-2010-3\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramesh Kumar vs State Of J&K And Others on 5 March, 2010 - 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