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J&K High Court · body

2011 DIGILAW 401 (JK)

Tahzeema Banoo v. State

2011-08-08

MUZAFFAR HUSSAIN ATTAR

body2011
1. Zonal Education officer, Rajwar vide Notification No. 8034/ZEOR dated 27-2-2009 invited applications from the eligible candidates for filling up the post of Rehbar e Taleem Teacher ( ReT ) in Upper Primary School, Chalpora, which was caused due to resignation of one Bilquees Badroo. The advertisement notice is taken note of: "Office of the Zonal Education Officer, Rajwar Sub: - Notification regarding the engagement of RT in UPS, Chalpora. Ref: - Chief Education Officer, Kupwara No. 27256 dated 21.2.2009. Due to resignation of one Bilquees Badoo ReT UPS Chalpora of this zone, one post of RT became vacant in said school. In this connection application of plain papers are invited from the eligible candidates of village Gorlaker-Chalpora having qualification 10+2 and above. The application alongwith all requisite certificates should reach to this office within fifteen days from the date of publication of this notification in daily news paper. No application after cut of date will be entertained. Sd: Zonal Education Officer, Rawar No: 8034/ZEOR/Dtd: 7.2.2009" 2. The petitioner having B.A. B. Ed qualification was found to be meritorious candidate for being engaged as ReT. The claim of the petitioner for being engaged as ReT was ultimately considered by the Director School Education, Kashmir and rejected vide Order No. 1309/DSEK/ of 2010 dated 17.6.2010 on the principal ground that under the SSA norms amended from 1.4.2008, all the vacancies in upgraded Primary Schools are to be filled up from amongst the candidates having Math/Science background. 3. Feeling aggrieved of the aforementioned order dated17.6.2010 petitioner filed the present writ petition in which the Court issued notices to the respondents for filing objection. Objections have been filed. 4. Heard learned counsel for the parties. 5. Learned counsel for the petitioner submitted that in terms of aforementioned advertisement notice, the petitioner was eligible to seek consideration for being selected and engaged as ReT against the vacancy which was caused due to the resignation of Balquees Badroo. Learned counsel further submitted that at no point of time immediately after the issuance of notification or till the selection process was complete, it was stated that the post which became available on account of Ms. Learned counsel further submitted that at no point of time immediately after the issuance of notification or till the selection process was complete, it was stated that the post which became available on account of Ms. Balquees Badroo,s resignation, was to be filled up in terms of amendment made in the SSA Scheme Learned counsel for petitioner has placed on record one document dated 29.5.2009, which is enclosed as Annexure-D with the supplementary affidavit, a perusal whereof reveals that Head Master, SSA Middle School, Chaliapora, Rajwar requested Zonal Education Officer, Rajwar to depute one teacher having Arts background to the said School. The head Master further informed that the school is in need of Urdu/History knowing teacher and rest of the classes are functioning normally. Learned counsel further submitted that the amendment made from 1.4.2008 will not be applicable to the case of petitioner. 6. Learned counsel for petitioner referred to Judgment of this Court dated 15-11-2010 passed in SWP No. 1945/2010. The same is taken on record. 7. Mrs. Goswami, learned Dy. AG referred to the amendment made in the SSA Scheme and submitted that this amendment having taken effect from 1.4.2008, the engagement against ReT post was to be made from amongst the candidates having Science/Math educational background and the petitioner being not eligible in view of the aforementioned amendment, cannot be said to be aggrieved person and therefore cannot maintain the petition. 8. Mrs. Goswami, learned Dy AG also referred to communication No. Edu/NC/SE/278/07 dated 24-9-2008 of Special Secretary to Government Education Department addressed to the State Project Director, SSA, and Srinagar. The said communication is taken note of and is reproduced as under. "Please direct all Chief Education Officers for engagement of ReT teachers in newly upgraded Schools (from Primary to Upper Primary) with the existing procedure under Ret Scheme wherever advertisement has been made, applications invited and panels have been formulated. For the remaining quota of Up-gradations for which advertisements have not been floated, please direct all CEOs to issue notice for appointment of candidates as ReT teachers having Math and Science background It should be clearly indicated in the advertisement notice that "Only those candidates having Mathematics and Science background should apply." 9. Mrs. Goswami, learned Dy AG referred to reported judgment of this Court titled Mohd. Mrs. Goswami, learned Dy AG referred to reported judgment of this Court titled Mohd. Latief Bhat v. State of J&K and Ors 2010 (2) JKJ HC-723 and submitted that in view of the law laid down by the Court, writ petition deserves to be dismissed. 10. Mr. K.L. Pandita, learned counsel for the private respondent-5 submitted that the writ petition in view of the amendment made in the SSA Scheme, is not maintainable and petitioner das no right to seek any relief from this Court being not eligible candidate. Learned counsel also submitted that respondent -5 being meritorious candidate, is to be considered for being engaged as ReT on the vacancy which became available on the resignation of one Balquees Badroo. 11. The amendment made effective from 1.4.2008 in the norms of SSA Scheme is reproduced as under:- "NORMS FOR INTERVENTIONS UNDER SSA S.No Intervention Norm 1 Teacher a. One teacher for every 40 children in primary and upper primary b. At least two teachers in a primary school c. One teacher tor every class in the upper primary d. Of the three teaches sanctioned under SSA for every new upper primary school, one each will need to be a teacher with mathematics and science specific educational background. The teacher recruitment will be as perState Government's norms. e. Wherever there is a need for additional teachers at upper primary level, to maintain the pupil ratio of 40:1, the additional teachers sanctioned under SSA will need to be provide/recruited from Science/Mathematics education background. f. States will have to commit that they will redeploy existing Science/Mathematics qualified teachers to cover as many upper primary school as possible. (Ref : F 2-3/2005 - EE.3 dated 22nd February ,2008 for items (d) to (f) This amendment takes effect from 1.4.2008 Advertisement notice dated 27-2-2009 is the basis on the which the selection process was initiated. The notification invited application from eligible candidates having qualification 10+2 and above. The said notification did not state that the candidates having Science/Math educational background alone are eligible for being engaged as ReT. The advertisement is representation to the eligible candidates and the authority is bound to make selection on its terms and conditions. Terms and conditions of the said notification binds the authority which makes selection, and also binds the candidates who seek selection/engagement. The authority issuing the notification cannot change criteria mid stream. The advertisement is representation to the eligible candidates and the authority is bound to make selection on its terms and conditions. Terms and conditions of the said notification binds the authority which makes selection, and also binds the candidates who seek selection/engagement. The authority issuing the notification cannot change criteria mid stream. The selection authority may withdraw notification but definitely cannot change the criteria after the same is issued. This view is supported by the judgment of the Apex Court in case titled Ashok Kumar Sharma and others v. Chander Shekhar and another reported in (1997) 4 Supreme Court Cases 18 : 2010 (5) JKJ SC-679 In para -6 of the said judgment, the Apex Court ruled that: "....Any advertisement or notification issued/published calling for application constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it......" 12. On the basis of the aforementioned notification, the petitioner was eligible to seek consideration for being selected /engaged as ReT. In terms of communication dated 24.9.2008. all the CEOs were ordered to make engagement of ReT Teachers in newly upgraded School under the existing procedure under ReT Scheme wherever advertisement has been made, applications invited and panels have been formulated. It was also stated in the said communication that those posts for which advertisements have not been issued, all CEOs' to issue notice for appointment of candidates as ReT teachers having Main/Science background. The State Government has implemented the SSA Scheme and administrative orders are issued from time to time to make it operational. The communication aforementioned discloses the policy decision of the State Government to give effect to the amendment made in SSA Scheme. In this case, the tentative selection list was published 16-6-2009.In terms of the aforesaid communication, the selection/engagement for the post of ReT were to be made on the basis of rules which exist prior to 1-4-2008 On the basis of communication dated 24-9-2008, selection was to be made on the basis of amendment made in SSA Scheme but the terms and conditions of amended SSA Scheme having not been reflected in advertisement notification, the selection in this particular case has to be governed by the terms and conditions of the notification itself The amendment made in SSA Scheme was in force from 1 4.2008. In this amendment, it is provided that for recruitment of additional teachers at upper primary level, the persons with Science /Math educational background were to be considered. However, in Norm (d), it is provided that of the three teachers sanctioned under SSA for every new Upper Primary School, one each will need to be a teacher with Mathematics and Science specific educational background. It become writ large on the face of record that 3rd Teacher in terms of Norm (d) would thus be a person having Arts background. The Head Master in his communication has not projected need for having Math/Science educational background teacher but has requested for Arts background teacher. 13. The school was thus in need of arts background teacher and that is why the advertisement notice does not restrict the zone of consideration to Science/Math background candidates. The norm (d) of SSA scheme introduced from 1.4.2008 makes the selection process valid which is initiated on the basis of advertisement notice taken note of in this judgment. The judgment cited by Mrs. Goswami is rendered in a particular fact situation thus does not support her contention. 14. The order of the Director School Education, Kashmir 17.6.2010 impugned in this petition is thus, not legal. The said authority has not applied its mind to the entire conspectus of the case but has simply rejected the claim of the petitioner on the ground that only Science and Math educational background candidates are eligible for being selected/engaged as ReT. 15. For the reasons mentioned above, this petition is allowed in the following manner: (i) By issuance of writ of certiorari, Order No. 1309 DSEK of 2010 dated 17-6-2010 is quashed. (ii) By issuance of writ of mandamus, respondents are directed to consider the petitioner for engagement as ReT in Upper Primary School, Chalipora Education Zone Rajwar. Respondents to pass necessary orders of engagement within 15 days from the date copy of this order is served upon them.