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2013 Supreme(J&K) 13
JAMMU & KASHMIR HIGH COURT
Mohammad Yaqoob Mir, J.
Mushtaq Ahmad Thoker -Appellant
Versus
State & Ors. -Resopndent
SWP No.1925/2011 C/WSWP No.1475/2011, CMP No.2433/2011
Decided On : 02-01-2013
Mr. M. Ashraf Wani, Advocate for the Petitioner.
Mr. S. A. Naik, AAG (R-1 to 4, 6 , 7) , Mr. Saqib Amin (for R-5)
The central legal point established in the judgment is that the eligibility criteria for Habitations as specified in the government order must be strictly followed for the engagement of ReT teachers, and any deviation from these criteria would render the engagement invalid.
Headnote:
Habitation - Engagement of ReT teachers - Govt. order No.228-Edu of 2009 - 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 others and having a population of more than 300 persons, shall be entitled to seek engagement as Rehbar-e-Taleem in a local school.
Fact of the Case:
The dispute arose from the engagement of ReT teachers in a newly created Primary School at Sofi Mohalla, where the petitioner and respondent No.5 had applied. The petitioner challenged the engagement order favoring respondent No.5, arguing that Sofi Mohalla did not constitute a separate Habitation within the revenue village Watoo as per the relevant government order.
Finding of the Court:
The court found that the conditions for a Habitation to be eligible for engagement as ReT teachers were not satisfied in the case of Sofi Mohalla, as it was not one kilometer away from other habitations and did not have a population of over 300 persons. The court also noted that the Assistant Commissioner and Deputy Commissioner had wrongly concluded that Sofi Mohalla could be considered a Habitation, leading to the engagement of respondent No.5.
Issues: The main issue was whether Sofi Mohalla constituted a Habitation as per the relevant government order, and whether the engagement of respondent No.5 was valid in light of the eligibility criteria for Habitations.
Ratio Decidendi: The court held that the conditions specified in the government order must be strictly adhered to for a Habitation to be eligible for engagement as ReT teachers. It found that the Assistant Commissioner and Deputy Commissioner had wrongly interpreted the criteria, leading to the erroneous engagement of respondent No.5.
Final Decision: The court quashed the engagement order in favor of respondent No.5 and directed the official respondents to consider the petitioner for engagement as ReT against an available vacancy within six weeks. If no vacancy was available, the engagement order of respondent No.5 would stand quashed, and the petitioner would be adjusted against the same vacancy.
2. Petitioner as well as respondent No.5 have applied for being engaged. Petitioner apprehending exclusion in view of being inferior in merit to the respon#31;dent No.5, filed writ petition(SWP) No.1864/2010) projecting therein that Sofi Mohalla, where the school is situated, is not a separate Habitation within revenue village Watoo but is a smAli Mohalla with a population of less than three hundred persons and is at a distance of half a kilometre from others, therefore, does not constitute Habitation within the meaning of explanation as notified in terms of Government order No.288-Edu of 2009. The said petition has been disposed of vide judgment dated 22.3.2011 with the direction to the Deputy Commissioner that he shall get the spot verification conducted through senior officer of the department so as to ascertain as to whether Sofi Mohalla is a separate Habitation, in the process both the parties shall be heard, based on such enquiry report, appointment shall be made.
3. In compliance thereto, Deputy Commissioner has appointed Assistant Commissioner(R) as enquiry officer who has submitted his report on 08.06.2011, wherein he has stated that the revenue village Watoo comprises of two parts Viz. Watoo and Checki Watoo, the distance between the two is approximately one kilometre. Then has stated in the report that in Checki Watoo, both petitioner as well as private respondent reside in different Mohallas, petitioner lives in Thoker Mohalla and the private respondent lives in Sofi Mohalla. The distance between Sofi Mohalla and Thoker Mohalla is about half a kilometre, separated by main road (Kulgam-Aharbal Road) and natural barrier in the form of rivulet. The distance from centre of village Watoo to Sofi Mohalla is more than one kilometre, just adjoining Sofi Mohalla is Magray Mohallaand these two Mohallas are contigu#31;ous and have no definite demarcation/natural barrier. The SofiMohalla and Mag-ray Mohalla have the population of approximately 190 souls. Finally has concluded that Sofi Mohalla can be considered as a Habittion, both in terms of distance (over one kilometre from main Watoo village) and a population of over 300 souls including population of adjoining Mohalla.
4. Based on this report, the Deputy Commissioner has passed order dated 29.06.2011 holding therein that respondent Mohammad Azad Magray, who pos#31;sesses certificate, is approved for appointment as ReT in newly created Primary School at SofiMohalla, the Chief Education Officer, Kulgam will issue formal order.
5. The respondent Chief Education Officer has issued a tentative select list showing respondent No.5 selected, which has been challenged by medium of SWP No.1475/2011. Vide interim direction dated 16.07.2011, tentative selection of respondent No.5 was directed not to be given effect till next date before the Bench. The direction has remained to be extended, as a result thereof engagement order in favour of respondent No.5 has been issued on 18.07.2011.
6. Confronted with the same position, the petitioner has filed the instant petition i.e. SWP No.1925/2011 wherein engagement order favouring respondent No.5 has been challenged.
7. The question which arise for consideration is as to whether Sofi Mohalla constitutes Habitation. In this connection explanation notified vide Govt. order No.228-Edu of 2009 is relevant to be quoted:
"Explanation:-
"Village means a Revenue Village. However, where habitations in a Reve#31;nue Village are scattered, a candidate belonging to a Habitation popularly known as a village, at
