1 Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1885 of 2005 (S/S) Maharaj Singh S/o Gokul Singh R/o Village Hatnoor, P.O. Kandakhal Block Dwarikhal, Distt. Pauri Garhwal. . Petitioner ...………… [ Versus 1. District Education Officer, Pauri Garhwal. 2. Block Education Officer Block Dwarikhal, District Pauri Garhwal. 3. Village Education Committee, Village Hatnoor, P.O. Kandakhal Block Dwarikhal, District Pauri Garhwal. 4. Additional District Education Officer, Pauri Garhwal. 5. Smt. Mamta W/o Sri Sanjay Naithani R/o Gram Sabha Manpur, Nyay Panchayat Devi Sukhro, Tehsil Kotdwar, District Pauri Garhwal. ...…………. Respondents Mr. Anil Dabral, learned counsel for the petitioner. Mr. Bindesh Kumar Gupta, Addl. Advocate General for respondents No. 1, 2 and 4. Mr. Pradeep Lohani, learned counsel for respondent No. 5. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 2 13.12.2005 (copy Annexure –7 to the writ petition), whereby respondent No. 3 directed respondent No. 5 Smt. Mamta to undergo one month’s training in the District Institute of Education and Training, Pauri Garhwal, as Shiksha Mitra in Primary School Hatnoor. 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit filed by the parties. 3) Brief facts of the case, as narrated in the writ petition, are that the petitioner is an unemployed youth of Village Hatnoor, who is qualified for being considered for appointment as Shiksha Mitra. He is M.A., B.Ed. from Hemvati Nandan Bahuguna Garhwal University, Srinagar. For appointment of Shiksha Mitra in primary schools, an advertisement dated 08.08.2005 was published in daily newspapers, by which applications were invited through Village Education Committees from the eligible candidates belonging to the concerned Village Panchayats. The applications were made by five candidates including the petitioner and respondent No. 5 to the Village Education Committee (respondent No. 3) for appointment as Shiksha Mitra in Village Hatnoor. According to the petitioner respondent No. 5 is not a domicile of Village Hatnoor. It is further stated that she had got entered her name in family registers of two villages namely, Hatnoor and Manpur, and got selected as Shiksha Mitra in Primiary School Hatnoor. Challenging that she is not eligible for appointment as Shiksha Mitra in Primary School Hatnoor, this writ petition has been filed. 3 4) Counter affidavit has been filed on behalf of respondent No. 2, Block Education Officer, Block Dwarikhal, District Pauri Garhwal, who has admitted that five applications were received by the Village Education Committee, Hatnoor, in response to the advertisement dated 08.08.2005, for appointment as Shiksha Mitra in Primary School, Hatnoor. The respondent No. 5 Smt. Mamta Naithani obtained maximum 44.34 per cent quality points. Next was the petitioner Maharaj Singh, who secured 39.37 per cent quality points, and the third was Km. Geeta Rawat, who secured 34.79 per cent quality points. The names of these three candidates were sent as per merit to the Block Education Officer, Block Dwarikhal, for considering their appointment as Shiksha Mitra in Primary School, Hatnoor. It is further stated in the counter affidavit that all the above three candidates were permanent resident of Village Panchayat, Hatnoor, and the remaining two namely, Subandhu Dabral and Anoop Kumar were not residents of Village Panchayat, Hatnoor, and their names were not recommended. 5) Respondent No. 5 Smt. Mamta Naithani filed her separate counter affidavit stating that her father-in-law Sambhu Prasad owns land and house in Village Manpur (Village Panchayat, Devi Sukhro) as well as in Village Vistana (Village Panchayat, Hatnoor), as such, there is no illegality in her name being recorded in the family registers of both the villages. It is denied by her that she got manipulated her appointment as Shiksha Mitra. It is further stated by her that she is fully eligible to be appointed as Shiksha Mitra in Primary School, Hatnoor. 4 6) In the rejoinder affidavit filed on behalf of the petitioner, the averments made in the writ petition are reiterated. Copy of statement dated 03.03.2006 of Smt. Mamta Naithani given to Patwari is filed as Annexure R.A. 1 to the rejoinder affidavit. 7) Admittedly, the posts for appointment as Shiksha Mitra in District Pauri Garhwal were advertised in the daily newspapers through advertisement dated 08.08.2005, which included the Primary School, Hatnoor. As per the terms published in the advertisement, the applications were invited through Village Education Committee from the residents of the concerned Village Panchayat. It is also not disputed that the petitioner Maharaj Singh as well as respondent No. 5 Smt. Mamta Naithani both are educationally qualified for the post advertised. It is also not disputed that petitioner is domicile of Village Panchayat, Hatnoor. The question has been raised as to the fact, whether, the respondent No. 5 Smt. Mamta Naithani is a genuine domicile within the limits of Village Panchayat Hatnoor, or not? Petitioner’s case is that respondent No. 5 lives in Village Manpur (Village Panchayat Devi Sukhro) and not in Village Vistana (Village Panchayat Hatnoor). On the other hand, stand taken by respondent No. 5 Smt. Mamta Naithani is that, though, she lives with her husband and in-laws in Village Manpur (Village Panchayat, Devi Sukhro), but her father-in-law has ancestral property also in Village Vistana (Village Panchayat Hatnoor) i.e. the place to which her husband and father-in-law originally belonged, as such, though, she is residing in Village 5 Manpur, but she has not lost her domicile of her original Village where she had gone after marriage with her husband. 8) From the above facts it is clear that it is admitted to respondent No. 5 that she lives in Village Manpur (Village Panchayat Devi Sukhro). Now, the question for determination before this Court is whether, she was eligible to apply for the post of Shiksha Mitra in the Primary School, Hatnoor, on the ground that her husband and father-in-law originally belonged to Village Vistana (Village Panchayat Hatnoor). Learned counsel for the petitioner drew attention of this Court to the principle of law laid down in Bhagwan Dass and another Vs. Kamal Abrol and others; 2005 (5) SCALE Pg. 179, in which the Apex court has interpreted the word ‘resident of’ in connection with the candidates for allotment of a petrol pump in District Kangra (H.P.). The Supreme Court in said case distinguishes between the de facto resident and de jure resident. The Supreme Court further says that a person who normally resides elsewhere but has ancestral property at the place where he occasionally goes cannot be said to be an eligible person by claiming him as a resident of such an ancestral place. In view of above position of law, since, in the present case respondent No. 5, admittedly, lives in Village Manpur, which is in a different Village Panchayat, cannot be said to be eligible for the purposes of consideration of her case for appointment of Shiksha Mitra in Primary School, Hatnoor within limits of Village Panchayat Hatnoor. At this stage, this Court thinks it pertinent to mention here that generally, in the primary 6 schools of interior hills either teachers do not join their duties or get themselves transferred. That leaves the schools without teachers. To meet that situation Shiksha Mitra Scheme was introduced with an object to provide local qualified teachers in the schools so that children in the villages of interior areas may get the teachers. Since, respondent No. 5, admittedly, lives in Village Manpur (Village Panchayat Devi Sukhro) and as such, cannot be said to be local resident of Village Panchayat, Hatnoor, wherein the primary school in question is situated. Therefore, this Court has no hesitation in holding that the petitioner, in the circumstances, has a right to be considered for appointment as Shiksha Mitra in Primary School, Hatnoor, as against respondent No. 5, Smt. Mamta Naithani though, her husband ancestrally belongs to that Village Panchayat but for several years living in different Village Panchayat. 9) For the reasons as discussed above, this writ petition deserves to be allowed. The writ petition is allowed. The impugned order dated 13.12.2005 (copy Annexure –7 to the writ petition) passed by respondent No. 3, is quashed. The authorities concerned are directed to consider the case of the petitioner for his appointment as Shiksha Mitra in Primary School, Hatnoor. (Prafulla C. Pant, J.) [ Dt. May 12, 2008. H.Negi