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J&K High Court · body

2010 DIGILAW 291 (JK)

Masood Ahmad Bhat v. State

2010-05-14

Sunil Hali

body2010
1. Appointment to the post of ReT Teacher in Village Aragam is the subject matter of controversy in the present writ petition. Selection of the private respondents 4 to 7 has been questioned in this writ petition by the petitioner. 2. Advertisement in the year 2000 for filling the post of Rehbar-e-Taleem in village Aragam Bandipora was issued by the respondents. Twenty two candidates are stated to have applied for their selection/appointment as Rehbar-e-Taleem teachers. A select list was prepared by the respondents. Due to availability of only two posts, two candidates Sanjay Kumar and Ghulam Noorani Khan were engaged as Relibar-e-Taleem teachers on 27th of September, 2000. Another advertisement notice came to be issued in the year 2002 for filling two more posts of Rehbar-e-Taleem in village Aragam. The petitioner applied afresh in pursuance to the advertisement notice. No selections were made on the basis of the said advertisement notice, instead panel of 2000 was operated and respondents 4 to 6 were appointed as Rehbar-e-Taleem teachers. The grievance of the petitioner is that the basic qualification for appointment as Rehbar-e-Taleem is 10+2, and the upper age limit provided is the same as in the case of Govt. service which at that time was 35 years. His contention is that the petitioner was meritorious than the private respondents on the basis of his qualification in 10+2 and was entitled to be appointed as ReT. His other contention is that respondent No.6 was appointed as ReT when she was about 35 years of age on the date of her selection in the year 2002. 3. On the other hand the stand of the respondents is that the private respondents having better qualification than the petitioner as they had qualified B.A. Pal 1st at the time of their selection to which preference was given to them over the petitioner for having the qualification B.A. Part 1st in terms of the direction passed on 16.12.2002 by Director School Education. The order contemplates that in case of two persons having passed 12th class and 13th class, the one with the higher qualification was to be preferred. 4. Regarding the second contention that the respondent was over-aged at the time of selection, it is contended that what is conceived by the scheme is that the candidate should as far as possible fulfill age qualification as prescribed by the State Govt. 4. Regarding the second contention that the respondent was over-aged at the time of selection, it is contended that what is conceived by the scheme is that the candidate should as far as possible fulfill age qualification as prescribed by the State Govt. According to the respondents as far as possible are not prohibitory in nature but connote a discretion vested in the prescribed authority. 5. I have heard learned counsel for the parties. The admitted position is that the petitioner possesses higher merit in 10+2 than the respondents who stand selected. However, it is contended that respondent-Saif-ud-din Bhat was B.A. 2nd and Aisha Bano who was at serial No. 12 were considered for appointment by the then ZEO on the ground that they have passed B.A. 2nd year and their higher qualification was to be preferred over the petitioner. 6. For the purposes of determining the eligibility for appointment, the basic qualification is an essential qualification. Preference can be given to a candidate with higher qualification for which some additional marks are required to be given in this behalf. The advertisement notice must clearly reflect this fact. No such thing is visible either from the stand of the respondents or in the advertisement notice which provides that preference will be given to those persons who have higher qualification. By issuance of a Govt. Order dated 16.12.2002, preference has been given to the persons who possess higher qualification than prescribed under the advertisement notice i.e. 10+2. This order has been passed after the selection was concluded. Any such decision should precede and not proceed the same. I am not inclined to agree with the learned counsel for the respondent in this behalf that preference could be given to the respondents for having passed their B.A. Part 1st. 7. The other aspect of the matter is that this qualification has been acquired by them after 2000 i.e. the date when the advertisement notice was issued. Nothing is visible from the record or from the stand of the respondents as to when this qualification was acquired by them. The petitioner in Para No. 5 of his rejoinder affidavit has stated that the respondent No. 6 had not passed B.A. 2nd Year in the year 2000 when the panel of candidates was prepared by the official respondents. Nothing is visible from the record or from the stand of the respondents as to when this qualification was acquired by them. The petitioner in Para No. 5 of his rejoinder affidavit has stated that the respondent No. 6 had not passed B.A. 2nd Year in the year 2000 when the panel of candidates was prepared by the official respondents. This being the position no benefit could be given to her on the basis of qualification which she had acquired after selection process was concluded. Be that as it may, the fact of the matter is that she came to be appointed on 26th of February, 2002 on the basis of having higher qualification which was relatable to an order passed on 10th December, 2002. It clearly reveals that at the time when the panel was prepared in pursuance of the advertisement issued, this order was not in existence. As such, no benefit can be given to respondent on the basis of said order. The other contention raised by the petitioner that the respondent was overaged, it may not be necessary for this court to enter into this arena. Even if it is assumed that the respondent No. 6 was over-aged the age could be relaxed by the respondents. Since age is not an essential qualification for recruitment, the Govt. has the power to relax the same. 8. I therefore, allow this writ petition. However, it will not be appropriate for this court to set-aside the selection of the private respondents at this stage. The interests of justice will be served in case a direction is issued to the respondents to consider the case of the petitioner for appointment against any vacancy which is available in the said village within a period of three months from the date copy of this order is received by them. In case no such vacancy is available then the selection of the private respondent who is lowest in the merit on the basis of 10+2 qualification may be quashed and petitioner be appointed instead on the said post. He shall also be given notional benefit of seniority only from the date the respondents were promoted.