Meena Sharma vs The State Of Jammu And Kashmir

3 The RET Scheme was notified by the State Government on 28 April 2000. Some of the salient features of the Scheme are extracted from the Digitally signed by SANJAY KUMAR Date: 2019.12.10 judgment of the High Court:

The scheme shall be effectuated for provision of services of Teaching guides called „Rehbar-e-Taleem‟ in the Primary andMiddle Schools to make up the deficiency of the staff as per the existent norms. Concept of Rehbar-e-Taleem The person to be provided to make up the deficiency of the staff at the elementary level of education will be designated as Rehbar-e-Taleem. The underlying objective is to posit the role of the teaching guide as catalyst for quality education and to ensure the overall development of the personality of the children. Drawn from the local community, the accountability of the teacher called as „Rehbar-e-Taleem‟ would be immediate providing for constant interface and interaction with the community to secure universal enrolment and to check the incidence of drop outs. Role of Village Level Committee Rehbar-e-Taleem (Teaching Guide) shall be engaged by VLC conceptualized vide Circular order No.Edu/Plan-184/2000 dated 17.02.2000. However, for the purpose of selection of Rehbar-e-Taleem, the composition of VLC as visualized in the aforesaid Circular shall be modified to the extent of associating ZEO in place of Headmaster as the Convenor.

Xxxxxxxx i/ VLC shall assess the requirement of teachers in the Primary/ Middle Schools within the area of their operation in due regard to the approved norms of staffing and the Roll. On the basis of the said assessment, VLC would draw up a panel of eligible qualified persons from the village.

certification of VLC that no local candidate from within the village is available, VLC can draw up the panel from the adjoining village."

4 By a Government Order dated 24 August 2005, the expression “village” was clarified thus:

5 The two villages in question in the present case are Chak Koura, to which the appellant belongs and the village of Bakore, to which the fifth respondent belongs. Both these villages are situated on the international border at a distance of four kilometers. There was no school in the village of Chak Koura to which the appellant belongs. An advertisement was issued on 23 November 2001 by the Zonal Education Office seeking applications from local candidates of the villages where the educational institution(s) were situated for engagement as RET teaching guides. Two posts were vacant, one each in the Middle School for Boys and Girls at Bakore. Fourteen applications were received. A panel was formed in which the first nine candidates belonged to village Bakore and the rest to the adjoining village of Chak Koura. The panel was submitted to the Deputy Commissioner Jammu. The residents of Chak Koura raised an objection on the ground that the persons belonging to the village of Bakore 4 were placed above them. A meeting of the Village Education Committee 2 was held on 15 December 2002. A decision was taken to prepare a combined panel for the two villages in view of the topography of the two adjacent villages and to furnish an opportunity to the educated youth of village Chak Koura in which there was no school. A Select List was prepared in December 2002 including candidates of both the villages. The Select List consisted of fourteen candidates including the appellant at Serial No 1 and the fifth respondent at Serial No 7. 6 In the meantime, a fresh notification was issued on 19 July 2003 for inviting applications. In July 2003, the appellant instituted a Writ Petition 3 before the High Court challenging the fresh notification. On 7 August 2003, appointment orders were issued to two candidates, both of whom were residents of village Chak Koura in accordance with their position in the Select List. The High Court adjudicated on the Writ Petition filed by the appellant on 9 September 2003 by directing the authorities to make appointments on the basis of the panel of recommended candidates “subject to verification of habitation”.

7 The appellant filed a contempt petition for non-compliance of the directions. Faced with the Contempt Petition, the Director of School Education, Jammu granted approval on 21 November 2007 to the engagement of the appellant as an RET teacher in the Middle School at Bakore against an available vacancy. The Contempt Petition was disposed of on 22 November 2007. The order of appointment was 2 “VEC” 3 SWP 84 of 2003 5 communicated to the appellant on 3 December 2007. 8 In 2009, the fifth respondent filed a Writ Petition 4 before the High Court. The appellant was not impleaded as a party to the Petition. The averments contained in paragraph 12 of the Writ Petition, would indicate that the fifth respondent was aware of the Select List which had been drawn up for appointment to the post of RET. The Select List was, in fact, annexed as Annexure A4 to the Writ Petition. Paragraph 12 of the Writ Petition read as follows:

9 Annexure A4 was the Select List containing the panel of candidates for engagement as RET guides in village Bakore. It needs to be noted at this stage that initially on 7 August 2003, the candidates at Serial Nos 2 and 3 of the Select List had been appointed. They resigned in September 2007. The name of the appellant was shown at Serial No 5 of the Select List while the fifth respondent was shown at Serial No 14. The fifth respondent did not implead the appellant as a party to the proceedings which were instituted in 2009 and instead, chose to implead two other 4 SWP 577 of 2009 6 candidates, Sunita Rajput and Samita Rani, who were placed below the appellant at Serial Nos 9 and 10 of the Select List. 10 In January 2011, the fifth respondent instituted a second Writ Petition 5 challenging the order dated 3 December 2007 appointing the appellant as an RET teaching guide.

11 On the completion of five years’ engagement as an RET teacher, the appellant was regularized as a general line teacher on 14 January 2013. The appellant was transferred from Bakore on 24 July 2014 after her regularization.

17 In assessing the rival submissions, the central aspect of the case which needs to be emphasised is that after the appointment of the appellant on 3 December 2007, the first challenge to her appointment was four years later in the Writ Petition of 2011. The fifth respondent filed a Writ Petition earlier in 2009, but chose not to implead the appellant or to challenge her appointment. Though the fifth respondent claims that she was unaware of the appointment of the appellant, this explanation cannot be accepted for the reason that the Select List was annexed at Annexure A4 to the first Writ Petition. A diligent enquiry would have revealed that the appellant had been appointed in the meantime. The appellant was appointed after the first two candidates who had been appointed as teaching guides under the RET Scheme resigned from the position. The four year delay on the part of the fifth respondent in contesting the appointment of the appellant, disentitled her to claim any relief. 18 Apart from this, the appellant was regularized in service in 2013 before the judgment of the learned Single Judge holding that she was not eligible for appointment on the ground that she did not belong to the revenue village. The VEC took a bona fide decision to draw up a combined list for the two villages because Chak Koura had no school. Moreover, the challenge to the appointment of the appellant will not be of any benefit to the fifth respondent. The fifth respondent cannot claim a right of appointment on the basis of a Select List of 2003 after a lapse of sixteen 10 years. The Select List cannot have any indefinite life so as to be operated at an uncertain future date. In any event, we are of the view that if a bona fide decision was taken by the government to approve the appointment of the appellant following the decision of the High Court, this cannot be faulted. In deciding as to whether a fit and proper case was made out before the High Court under Article 226 of the Constitution, an important consideration is the proximity of the two villages and the fact that there was no school in village Chak Koura to which the appellant belonged. It is also significant to note that the initial appointments of the candidates were also of persons belonging to the village of Chak Koura. 19 For the above reasons, we have come to the conclusion that the Writ Petition which was filed by the fifth respondent suffered from an unexplained delay. Even on merits the appointment of the appellant is not vitiated. In the meantime, equities have ensued in favour of the appellant who has been regularized in service and has continued after regularization for nearly six years. The fifth respondent cannot at this stage claim a vested right to appointment on the basis of the Select List of 2003. 20 Accordingly, we allow the appeal and set aside the impugned judgment and order of the High Court dated 31 December 2018. In 11 consequence, the Writ Petitions filed by the fifth respondent shall stand dismissed. There shall be no order as to costs.

December 03, 2019