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2010 DIGILAW 309 (JK)

Laquat Hussain v. State Of J&K

2010-05-24

Hasnain Massodi, J.P.Singh

body2010
1. The appellants-petitioners before the Writ Court, aggrieved of communication No. Edu-NC/SE/278/07 dated 24th September 2008 addressed by Special Secretary Education to the Government and advertisement notice dated 25th September 2008 issued by respondent No. 4 and 5 inviting applications for two posts of ReT teachers for upgraded Government Primary School, Tarbone as also such other advertisements notices in respect of other schools of zone Karnah Tangdar, filed a writ petition seeking inter-alia Writ of certiorari quashing the communication dated 24th September 2008 and said advertisement notices issued by the respondents. 2. The petitioners case before the Writ Court was that the respondents had no power or authority to prescribe "Science" and "Mathematics" back-ground as eligibility criteria for the advertised posts. It was pleaded that under ReT Scheme, sanctioned vide Government order No. 396 of Edu-of 2000 dated 28th April 2000 the eligibility criteria for appointment against ReT teachers was 10+2 and the respondents had no authority to make any additions and alterations to the eligibility criteria so laid down, including one insisting on background of a particular subject(s). The appellants pleaded that under Sarva Shikhsha Abhiyan (for short SSA) the recruitment of teachers was to be governed by ReT, Scheme of 28th April 2000 and the respondents by insisting on "Science" and "Mathematics" back-ground had violated the Scheme and practically excluded the petitioners/appellants and others from the Zone, having similar qualification, from consideration for the advertised posts in as much as the petitioners/ appellants were not having the Mathematics and Science back ground, though otherwise fulfilled the eligibility criteria laid down under ReT. Scheme. 3. The appellants /petitioners case did not meet any success in Writ Court and the writ petition was dismissed vide order dated 26th November 2008. The Writ Court did not find any infirmity in the advertisement notice dated 25th September 2008 and other such advertisement notices issued by the respondents for other upgraded Government Primary Schools of the zone, as also the communication letter No. Edu- NC/SE/278/07 dated 24th September 2008 which required the respondents to invite applications only from the candidates who had 10+2 qualification with Mathematics and Science subjects. The Writ Court while declining indulgence observed:- ".....................[Appointment] engagement of Rehbar-i-Taleem has to be made as per the required qualification prescribed in the advertisement notice and requirement of the respondents is the Rehbar-i-Taleem in Math and science subjects. The Writ Court while declining indulgence observed:- ".....................[Appointment] engagement of Rehbar-i-Taleem has to be made as per the required qualification prescribed in the advertisement notice and requirement of the respondents is the Rehbar-i-Taleem in Math and science subjects. It should be a different situation if introduction of appointment of Rehbar-i-Taleem is simply to officer appointment to the unemployed youth but policy of the Government reveals providing teaching aids to the students and teaching aid has to be in the discipline of requirement]" 4. The appellants question order of the Writ Court dated 26.11.2008 on the grounds set out in the memorandum of appeal. The appellants in particular plead that the communication No. Edu-NC/SE/278/07 dated 24th September 2008 whereby all Chief Education Officers were asked to invite applications for appointment against Rehbar-i-Taleem teachers only from those candidates having Mathematics and Science back ground, is discriminatory in character and thus violative of Article 14 of the Constitution of India. It is reiterated that the said communication amounts to exclusion of the petitioners/appellants as a class from consideration for the vacant posts of Rebbar-i-Taleem teachers, sought to be filled up by the respondents. 5. We have heard Learned Counsel for the parties and have gone through the writ record. 6. Rehbar-e-Taleem Scheme has been conceived to ensure the peoples participation in management of education at the gross root level. The object of the Scheme is to make up the deficiency of the staff at the elementary level of education and to achieve the object, to draw human resources from the local community and utilize services of a person appointed as a teaching guide or Rehbar-i-Taleem as a catalyst for quality education and over all development of personality of the children. The Scheme devises the mode and manner in which Rehbar-i-Taleem (teaching guide) is to be appointed and lays down the minimum qualification for engagement as Rehbar-i-Taleem (teaching guide) as 10+2. The Rehbar-i-Taleem Scheme has been fore runner of SSA and while introducing SSA, it has been decided to follow Rehbar-i-Taleem Scheme in the matter of recruitment of teachers/teaching guides. The role to indentify the deficiency of the staff at elementary level under SSA as also Rehbar-i-Taleem Scheme is set apart/assigned to the respondents. The Rehbar-i-Taleem Scheme has been fore runner of SSA and while introducing SSA, it has been decided to follow Rehbar-i-Taleem Scheme in the matter of recruitment of teachers/teaching guides. The role to indentify the deficiency of the staff at elementary level under SSA as also Rehbar-i-Taleem Scheme is set apart/assigned to the respondents. In other words, it is for the respondents to identify the deficiency of the staff at the elementary level of the education and thereafter take steps to make up the deficiency. When the respondent is said to be clothed with the power to identify the deficiency of the staff, such power obviously includes power to identify the subject areas in which such deficiency is come across. In any case the existence and extent of deficiency, nature of deficiency and the steps to be taken to make up the deficiency are matters warranting policy decision by the respondent. The respondents have available necessary inputs, expert opinions and statistics that are to be taken into consideration while formulating a policy decision. The judicial review of the policy decisions like one in question is limited to the matters where arbitrariness, favoritism, gross procedural impropriety or colorable exercise of power is pleaded and established. It is pointed out by the Writ Court and rightly so that the object of SSA or Rehbar-i-Taleem Scheme is not only to provide employment to unemployed youth, but to make up the deficiency of the staff and provide adequate teaching aids to the students. There is thus no reason to label the policy decision taken by the respondents as tainted with arbitrariness or malafidiness. It is well settled law that the devising and formulating policy is an exclusive domain of the Government and the scope for judicial review is restricted in such matters. It would be, apt to reproduce following observations made by Supreme Court though in a different context, in M/S. Dhampur Sugar (Kashipur) Limited v. State of Uttranchal and Others (2007) SCW 6169:- "It is well settled that public authorities must have liberty and freedom in framing policies. Although the discretion is not absolute, unqualified, unfettered or uncanalised and judiciary has control over all executive actions, it is also well established that courts are ill equipped to deal with these matters. Although the discretion is not absolute, unqualified, unfettered or uncanalised and judiciary has control over all executive actions, it is also well established that courts are ill equipped to deal with these matters. In complex social, economic and commercial matters, decisions have to be taken by Governmental authorities keeping in view several factors, and it is not possible for courts to consider competing claims and conflicting interests and to conclude which way the balance tilted. There is no objective, judiciable or manageable standards to judge the issues nor can such questions be decided on prior considerations". 7. The appellants/petitioners, in the petition sought to throw challenge to the policy decision taken by the respondents as regards the eligibility criteria for the ReT/SSA candidates -- a decision that fell within exclusive domain of the respondents. The policy decision questioned in the writ petition does not suffer from any such infirmity as would call for intervention. The arguments advanced by the Learned Counsel for the parties that as the communication in question expressly carved out exception in case of a selection process already initiated, the respondents ought to have received applications for the advertised posts from the appellants in as much as the requirements of "Science and Mathematics back ground" was not made applicable in case of the appellants, is bereft of any merit. In the first place the communication in question was addressed on 24.9.2008 and the advertisement notice impugned in the petition were issued on 25th September i.e. after the aforesaid communication. Secondly, the communication only exempted the cases where the panels stood formulated, from the operation of recommended eligibility criteria. The Writ Court thus rightly declined indulgence and dismissed the writ petition. 8. We for the reasons discussed above, find no merit in this Letters Patent Appeal and accordingly dismiss the appeal.