Dismissed

Nalia Kousar v. State Th.Education Deptt.and Ors.

J&K HC7 Dec 2022SWP/1641/2013

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's writ petition challenging her exclusion from merit panels for R-e-T Teacher posts. The Court held that the petitioner cannot seek relief as the R-e-T Scheme was formally closed by a Government Order in 2018, which deemed all unissued recruitment panels cancelled ab initio, precluding any further adjudication or appointment.

What did the court decide?

Writ petition dismissed; connected applications dismissed; interim directions vacated.

Nalia Kousar Vs State Th.Education Deptt.and Ors. — Education and Admissions | J&K HC (2022)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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SWP No. 1641/2013 IA Nos. 1202/2015 and 2391/2013

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Nalia Kousar

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….Petitioner/Appellant(s)

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Through :- Mr. F.S. Butt, Advocate.

V/s

State & ors.

….Respondent(s)

Through :- Mr. Amit Gupta, AAG

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Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

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JUDGMENT

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Heard learned counsel for the parties.

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Vide Govt. Order no. 396 of Edu dated 28.4.2000, the Govt. of erstwhile State of Jammu and Kashmir came to introduce Rehbar-eTaleem (in short ‘R-e-T) Scheme meant for engagement and supply of teachers in middle and primary schools so as to ensure that the imparting of education in the schools located in far flung areas of the State of Jammu and Kashmir do not suffer for want of teachers. The emphasis of R-e-T Scheme was to engage educated youth with requisite qualifications of the villages in which the middle and primary schools are located so as to ensure that school of a particular village does not suffer deficit of teachers at any point of time as such the selection and engagement of the teachers under the said Scheme was also ‘village specific’. The policy principle was that the location of the school and

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2 SWP No. 1641/2013 IA Nos. 1202/2015 and 2391/2013

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the vicinity of the candidate to be selected for the engagement as teacher for the said school must be in close proximity to each other. This scheme got further operational improvement by virtue of directions issued in matters coming before this High Court and as such in terms of Govt. Order No. 394-Edu of 2006 dated 28.07.2006, the actuality of residence of a candidate in the village was defined and stated followed by Govt. Order no. 288-Edu of 2009 dated 08.04.2009 and addendum thereto by virtue of order dated 09.4.2009.

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The aforementioned backdrop became necessary as the present case relates to the dispute about the alleged non-residentship of the candidates placed in the merit panel ahead of the petitioner herein who came to wage two rounds of litigation for seeking an answer to her alleged challenge. Present writ petition is second round of that litigation.

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Vide an advertisement notice no. DIP/J-3892/10 dated 13.06.2010, the Chief Education Officer (CEO), Kishtwar carried out selection for engagement of R-e-T teachers for newly opened primary schools under Sarv Shiksha Abhiyan (SSA) in the District Kishtwar. Out of the list of the primary schools so named in the advertisement, two primary schools were namely Brar Pathan and Sirbhata both falling in revenue village Dool, Education Zone Nagseni

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In each of the above referred two schools, two posts each were advertised for selection. With respect to New Primary School Brar Pathan, in the merit list panel the petitioner figured at serial no. 4

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3 SWP No. 1641/2013 IA Nos. 1202/2015 and 2391/2013

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whereas the private respondent no. 7-Girja Devi figured at serial no. 1 as being MA B.Ed, Jamshed Bano at serial no. 2 as being BA B.Ed and Nishant Tabassum as being BA qualified. With respect to New Primary School Sirbhata, the petitioner figured at serial no. 3 whereas one Jamshed Bano with qualification as BA B.Ed figured at serial no. 1 followed by Nishant Tabassum being BA qualified at serial no. 2. In two merit panels for both the schools respectively one Ghulam Rasool S/o Mohd. Abdullah figured at serial no. 40 for Primary School Brar Pathan and at serial no. 38 for Primary School Sirbhata.

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Finding herself ousted from the prospect of engagement as R-e-T Teacher for either of the two above mentioned schools on account of the merit panels so prepared, the petitioner had come to approach this Court in the first round with a writ petition-SWP No. 2751/2010 posing challenge to the merit panel placements but the said writ petition came to be disposed of by this court vide its judgment and order dated 17.10.2012. As the petitioner in her said writ petition had disputed the residential status of the candidates, in particular that of private respondent no. 7 and of said Ghulam Rasool, as such this Court in terms of its judgment dated 17.10.2012 had come to direct the Deputy Commissioner, Kishtwar either to conduct enquiry himself or get it conducted by some other senior officer of the District by affording opportunity of hearing to the petitioner as well as the said two candidates along with production of documents and materials for final recommendation to be taken by the Deputy Commissioner, Kishtwar.

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4 SWP No. 1641/2013 IA Nos. 1202/2015 and 2391/2013

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Till the time of taking of final decision on the basis of the enquiry to be so conducted, the selection-cum-engagement was ordered to be kept in status quo. The enquiry was directed to be conducted with a reference to find out about the residential status of the petitioner and the said two persons above named.

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Pursuant to the directions of this Court, the then Deputy Commissioner, Kishtwar vide his Order no. ARA/K/2012/325 dated 22.10.2012 came to assign the enquiry to the Assistant Commissioner, (Revenue) Kishtwar who then was Mr. R.K. Shavan, the respondent no. 5 herein.

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On the basis of the assignment of the said enquiry, the official concerned took undue long time for coming up with an enquiry report no. DCK/SQ/2952-53/13 dated 28.05.2013 submitted to the Deputy Commissioner, Kishtwar in terms whereof the enquiry officer with respect to the residential status of the private respondent no. 7 came forward with an enquiry finding that the private respondent no. 7 on account of her permanent residence certificate, the resident of backward area certificate and also being actually residing in revenue village Dool at the time of applying for the post where New Primary School Sirbhata was located, was not non-resident of village Dool. With respect to the residential status of private respondent no. 6-Ghulam Rasool, the enquiry officer came up with the enquiry finding that the hamlet Sirbhata/Bathpura was having population of 300 souls and was at the distance of one kilometer away from the adjoining Hamlets of village Dool and therefore the empanelment of private respondent no. 6-

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5 SWP No. 1641/2013 IA Nos. 1202/2015 and 2391/2013

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Ghulam Rasool for alleged engagement ahead of the petitioner on account of actual residential status was genuine. This enquiry report came to be submitted to the Deputy Commissioner, Kishtwar who vide his Order No. ARA/K/2013/326-27 dated 06.06.2013 came to forward the same to the Director School Education, Jammu. The enquiry report so submitted before the Deputy Commissioner, Kishtwar was supposed to bear recommendation from the Deputy Commissioner, Kishtwar but without commenting anything upon the said enquiry the Deputy Commissioner, Kishtwar had forwarded the same to the Director School Education, Jammu for further necessary action.

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Before the Director School Education, Jammu could take any final call on the matter, the petitioner herein rushed to file the present writ petition on 29.07.2013 thereby challenging the enquiry report no. DCK/SQ/2952-53/13 dated 28.05.2013 submitted by the Assistant Commissioner, Revenue Kishtwar, and asked for quashment of the panel or any subsequent appointment of the respondent no. 7-Girja Devi and respondent no. 6-Ghulam Rasool to the post of R-e-T Teacher in New Primary Schools Brar Pathan and Sirbhata falling under Revenue Village Dool.

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The official respondents came forward with reply to the writ petition of the petitioners where from it is not forthcoming as to whether any final decision on the enquiry report so forwarded by the Deputy Commissioner, Kishtwar to the Director School Education, Jammu was ever taken or not and as such this Court has no factual basis to know as

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6 SWP No. 1641/2013 IA Nos. 1202/2015 and 2391/2013

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to whether the enquiry report so filed has been accepted and acted upon by the Director School Education, Jammu or the officials subordinate thereto for the purpose of ordering the engagement of respondent nos. 6 and 7 as R-e-T teachers in the respective two schools.

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The final adjudication of this writ petition has, however, come up at the time when the very R-e-T Scheme which originated in terms of Govt. Order no. 396-Edu of 2000 dated 28.04.2000 came to wind up in terms of Govt. Order no. 919-Edu of 2018 dated 16.11.2018 passed by the then Govt. of Jammu and Kashmir. Said Govt. Order no. 919-Edu for facility of understanding of its text and context is reproduced as under:

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“……Sanction is hereby accorded that:-

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(i) Formal closure of the Ret Scheme and the ReT recruitment/engagement process notified vide Govt. Order No. 396-Edu of 2000 dated 28.04.2000 along with subsequent modifications/amendments. However, the existing ReTs already appointed under the scheme or on ReT pattern shall continue to be governed under the erstwhile scheme till their regularization or otherwise;

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(ii) All advertisement notices for engagement of Rehbar-e-Taleem Teachers or panels prepared where no engagement orders have been issued shall and shall always be deemed to have been cancelled/withdrawn as ab-initio;

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(iii) No fresh advertisement for recruitment/engagement under any ReT Scheme(s) shall henceforth be issued……..”

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In the light of the closure of the R-e-T Scheme, it may not now lie at the end of the petitioner to insist for adjudication of her writ petition to the logical end given the fact that she has come up in second round and that

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7 SWP No. 1641/2013 IA Nos. 1202/2015 and 2391/2013

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too in the face of adverse enquiry report against her with respect to alleged claim in terms whereof she intended to dispute the residential status of the private respondents no. 6 and 7 whereas the enquiry so conducted pursuant to the directions of this Court did not find any deficiency/fault/shortcoming with respect to actual residential status of the respondents no. 6 and 7. It does not lie in the domain of this Court to substitute itself in place of the revenue officials who came forward with the respective inputs for the purpose of facilitating the enquiry officer to come up with the enquiry report which came to be forwarded by the Deputy Commissioner, Kishtwar to the Director School Education, Jammu as that would amount to become the decision maker

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in the case as if this Court is in a position of head of the local administration.

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Even if this Court would have felt inclined to examine threadbare the challenge of the petitioner in terms of factual aspect with respect to the findings of the enquiry officer in the impugned enquiry report, still the very fact that the R-e-T Scheme came to be put to a closure once for all by the then Govt. of Jammu and Kashmir w.e.f. issuance of Govt. Order no. 919-Edu of 2018 dated 16.11.2018, as such the petitioner cannot expect a relief of declaration in her favour from this Court to figure in the merit panel ahead of the private respondents no. 6 and 7 and consequently expect a direction for her empanelment and appointment as R-e-T teacher in either of the two schools. Doing so would be creating a class in favour of the petitioner vis-à-vis Govt. Order no. 919

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8 SWP No. 1641/2013 IA Nos. 1202/2015 and 2391/2013

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–Edu of 2018 in terms whereof any advertisement notice for engagement of R-e-T teacher or panels prepared where no engagement orders have not been issued is to be deemed to have been cancelled/withdrawn as ab initio.

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In view of what has been stated above, the writ petition of the petitioner fails on merits as well in view of intervention of Govt. Order No. 919Edu of 2018 dated 16.11.2018. The same is accordingly dismissed along with connected applications. Interim direction, if any, shall stand vacated.

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(Rahul Bharti) Judge

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JAMMU 07.12.2022 Naresh/PS

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Whether this judgment is reportable: Yes/No.

Nalia Kousar v. State Th.Education Deptt.and Ors.

Case brief

What is this about?

What did the court decide?

Nalia Kousar v. State Th.Education Deptt.and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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