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2013 Supreme(J&K) 8
JAMMU & KASHMIR HIGH COURT
Mohammad Yaqoob Mir, J.
Mushtaq Ahmad Thoker -Appellant
Versus
State & Ors. -Resopndent
SWP No. 1925/2011, c/w SWP No. 1475/2011, CMP No. 2433/2011
Decided On : 02-01-2013
For the Petitioner: Mr. M. Ashraf Wani.
For the Respondents Nos. R-1 to 4,6 & 7: Mr. S. A. Naik, AAG.
For the Respondents No. R-5: Mr. Saqib Amin.
The central legal point established in the judgment is that the conditions for a Habitation, as defined by the government order, must be met for engagement as ReT teachers.
Headnote:
Habitation - Engagement of ReT teachers - 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. - Sections 1, 2, 3 of the Government order No. 228-Edu of 2009
Fact of the Case:
The petitioner and respondent No. 5 applied for engagement as ReT teachers in a newly created Primary School. The petitioner challenged the engagement order favoring respondent No. 5, arguing that Sofi Mohalla, where the school is situated, does 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 as per the government order were not satisfied, as the distance between Thoker Mohalla and Sofi Mohalla was only half a kilometer, and the combined population of Sofi Mohalla and Magray Mohalla was only 190 souls.
Issues: The main issue was whether Sofi Mohalla constituted a Habitation as per the relevant government order.
Ratio Decidendi: The court held that the conditions for a Habitation, as defined by the government order, were not met, and the engagement order in favor of respondent No. 5 was based on wrong conclusions drawn by the enquiry officer and acted upon wrongly by the Deputy Commissioner.
Final Decision: The engagement order in favor of respondent No. 5 was quashed, and the official respondents were directed 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.
Vide advertisement notice issued by respondent No. 4 (Zonal Education Officer, D.H.Pora), applications have been invited from the eligible candidates for engagement as ReT teachers in newly created Primary Schools which include newly created school in Sofi Mohalla (Checki Watoo) revenue village Watoo where two vacancies are to be supplied. Eligible candidates from the concerned Habitation, in terms of the advertisement notice, are to be given preference.
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 respondent 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 small Mohalla with a population of less than three hundred persons and is at a distance of half a kilometer 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 kilometer. 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 kilometer, 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 kilometer, just adjoining Sofi Mohalla is Magray Mohalla and these two Mohallas are contiguous and have no definite demarcation/natural barrier. The Sofi Mohalla and Magray Mohalla have the population of approximately 190 souls. Finally has concluded that Sofi Mohalla can be considered as a Habitation, both in terms of distance (over one kilometer 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 possesses certificate, is approved for appointment as ReT in newly created Primary School at Sofi Mohalla, 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 Revenue Village are scattered, a candidate belonging to a Habitation popularly
