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J&K High Court · body

2012 DIGILAW 18 (JK)

Kounsar Ashraf v. State & Ors.

2012-01-31

HASNAIN MASSODI

body2012
1. Sanction was accorded vide order No. CEOK/SSA/09/6675-78/09 dated 20.02.2009 to Up-gradation of Primary School Chancer Education Zone H.C.gam, Kulgam to the level of Middle School. The up- gradation resulted in availability of two Rehbar-e-Taleem vacancies — one in Math stream/background and another in Science stream/background. The Zonal Education Officer H.C.gam Kulgam -respondent No. 5 herein, accordingly vide Advertisement dated 21.02.2009 invited applications from eligible candidates for the available posts. 2. The petitioner and respondent No. 6 responded to the Advertisement Notice and offered their candidature for Rehbar-e-Taleem in Math stream/background. The respondent No. 5 on going through the academic record of the aspirants for the advertised job prepared a tentative list/panel of the candidates vide ZEO/HCG/ 4696/09 dated 15.07.2009. The tentative list/ panel was duly forwarded to the Chief Education Officer — respondent No. 3 in the petition, and notified in a local daily on 07.08.2009. The petitioner did not find place in tentative list/panel. Aggrieved with her non-inclusion /non-empanelment the petitioner has filed instant writ petition. The petitioner's case is that as she has B.Sc B.Ed degrees with Mathematics at 10+2 level to her credit, she has a better claim to the advertised position as against respondent No. 6 who has done his Masters in Mathematics without any technical qualification like B.Ed/M.Ed degree to his credit degree like . It is insisted that in view of the norms laid down under Government order No. 1583-Edu of 2003 dated 01.10.2003 a candidate with B.Ed, degree is to be given preference over a candidate with Masters Degree. 3. The petitioner on the strength of the case set up, seeks following reliefs; (A) Writ, order or direction in the nature of certiorari for quashment of the select list/penal issued by respondent No. 3 empanelling respondent No. 6 for appointment as R.e.T under S.S.A in upgraded Middle School Chancer Tehsil and District Kulgam. (B) Mandamus commanding the respondents to select and engage the petitioner as R.e.T. in upgraded Middle School Chancer Tehsil and District Kulgam. (C) Prohibit the respondents from confirming the empanelment of respondent No. 6 and from making engagement /appointment in favour of respondent No. 6 on the basis of impugned panel/select list. 4. The writ petition is opposed by the respondents 1 to 5 on the grounds that the Government order dated 01.10.2003 has no role to play in case of posts available under Revised SSA Scheme of 2008. 4. The writ petition is opposed by the respondents 1 to 5 on the grounds that the Government order dated 01.10.2003 has no role to play in case of posts available under Revised SSA Scheme of 2008. It is pointed out that the requirement of filling up Rehbar-e-Taleem positions that become available because of up-gradation of Primary Schools under Revised SSA Scheme from Mathematics and Science streams/background is introduced by Revised SSA Scheme 2008 and the Director School Education, Kashmir towards implementation of the revised Scheme and to attain the desired object has vide No. DSEK/legal/91/09/3651-60 laid down guidelines for filling up such vacancies. It is averred that in terms of instructions dated 26th May 2009 extra weight-age is to be given to the B.Ed only where the competing candidates have equal qualification and one of the candidates has also B.Ed/M.Ed to his/her credit. The stand taken by the respondent No. 1 to 5 is that where a candidate competing for vacancy of an additional teacher in upgraded Primary School under the Mathematics stream/background with B.Sc. in Mathematics/Science and with also B.PM and another candidate has M.Sc/M.A. in Mathematics/Science, the candidate with M.Sc/M.A. in Mathematics/Science is to be given preference over a candidate with B.Sc. in Mathematics/Science though having also B.Ed. Degree to his credit. 5. The respondent No. 6 opposes the writ petition on the ground that the Government order No. 1503 of 2003 dated 01.10.2003, sought to be relied upon by the petitioner relates to appointment of Rehbar-e-Taleem's in general and not the engagements to be made under Revised SSA Scheme of 2008. The respondent No. 6 like respondent No. 1 to 5 insists that the weightage and preference amongst aspirants against Rehbar-e-Taleem positions in Mathematics and Science stream/ background is to be governed by Director School Education order No. DSEK/legal/91 /09/3651-60 dated 27.05.2009. It is claimed that in view of the aforesaid guidelines, the respondent No. 6 having M.A. /M.Sc Mathematics Degree to his credit has a preferential right to be considered for engagement as Rehbar-e-Taleem in Mathematics stream/background in the Middle School (Upgraded Primary School) Chancer Kulgam. It is further averred that the writ petition is premature and not maintainable as the petitioner has rushed to question tentative list/panel without exercising his right to file objections to the panel before the competent Authority. 6. It is further averred that the writ petition is premature and not maintainable as the petitioner has rushed to question tentative list/panel without exercising his right to file objections to the panel before the competent Authority. 6. I have gone through the pleadings and have heard learned counsel for the parties. 7. Sarva Shiksha Abhiyan (SSA) — Universal Education Mission as the name would suggest is Government of India's programme for achievement of universal elementary education in a fixed time frame. The scheme aims to improve enrolment, retention, and the quality of education to enable children to achieve grade appropriate levels of learning. It also aims to eliminate gender differences and gaps between different social categories. It reflects the will of the State to make the fundamental right to free and compulsory education to the children of 6-14 years of age group incorporated by 86th Amendment to the Constitution, a reality. The programme is implemented in partnership with the State Government. 8. In the State of Jammu and Kashmir before SSA programme was conceived, the State Government Vide Government Order No. 396 EDU Dated 24th April, 2000, launched a similar scheme with almost same objects under the name and style as "Rehbar-e-Taleem" or "Education Guide Scheme". The objects of the scheme of ReT were to promote decentralised management of Elementary Education with community, participation and involvement, to ensure accountability and responsiveness through supervision by the Committee and to operationalize effectively the schooling system at the grass roots level. The ultimate object R.e.T scheme as SSA programme, was universalization of Education. With the initial objects achieved and SSA Programme conceived and implemented, the Rebhar-e-Taleem Scheme was closed to leave way for SSA Programme. The SSA Programme, therefore, assumed the role of a successor scheme to Rebhar-e-Taleem Scheme. Though Rebhar-e-Taleem Scheme was closed, yet it was decided to follow the procedure adopted for engagement of ReTs while filling up the vacancies/post positions of teachers created under SSA Programme for new primary schools/upgraded primary schools and Education Guarantee Centre Schemes and the vacancies/positions of third teacher created for innovative activities in already established posts. Though Rebhar-e-Taleem Scheme was closed, yet it was decided to follow the procedure adopted for engagement of ReTs while filling up the vacancies/post positions of teachers created under SSA Programme for new primary schools/upgraded primary schools and Education Guarantee Centre Schemes and the vacancies/positions of third teacher created for innovative activities in already established posts. It is pertinent to point out that the Central Government in partnership with the State Government's proposed to achieve the ultimate object of universalization of Elementary Education by opening new Primary Schools and upgrading the existing Primary Schools as also supplementing manpower and infrastructural resources in the existing schools and the schools to be set up. 9. The State Government while according sanction to implementation of SSA Programme vide Government Order No. 1368 — EDU of 2002 dated 15th November, 2002, sanctioned opening of 840 new primary schools in the State and creation of 1680 posts of Teachers (two per school). It is important to note that SSA Programme did not merely aim at achieving the target of universal elementary education within a set time frame but also has amongst its objects, to meet the demand for "quality based education" and to bridge the gap between different sections of the society. It was soon realised that to achieve the object of basic qualification and to develop the scientific approach amongst the students at the primary level, there should be extra focus on teaching Science and Mathematics. It was recommended that the focus must be on promoting holistic, literacy and numeracy improvement in the early and upper primary grades that combines language as well as Math and Science teaching. The revised SSA Scheme of 2008, therefore, laid down that all posts of ReTs that become available either because an ReT in place vacates the position or because of up-gradation of Primary School/ Education Guarantee Centre be filled up from amongst the eligible candidates having Mathematic and Science background/Mathematics and Science specific subjects. 10. The background of the Scheme has been traced and its salient features looked at, only to emphasise the object and purpose of making a provision for selection of candidates to available vacancies/positions of ReTs only with Mathematics and Science background. 10. The background of the Scheme has been traced and its salient features looked at, only to emphasise the object and purpose of making a provision for selection of candidates to available vacancies/positions of ReTs only with Mathematics and Science background. This is bound to help us to understand why such provision was made and what qualification, our social planners expected the appointing Authority to consider and give preference while selecting most meritorious of the eligible candidates for the available vacancies/positions of ReTs. 11. Having regard to the object of the revised scheme and extra focus on Mathematics and Science teaching at primary and above primary level, it is to be held that the candidate having highest qualification in the concerned subject i.e. Mathematics/Science is to be given preference to the candidate having low qualification in the subject notwithstanding his/her having any additional qualifications. 12. So viewed, a candidate with an M.Phil in Mathematics is to have an edge over a candidate with M.Sc in Mathematics and a candidate with M.Sc in Mathematics, a preferential right as against a candidate with B.Sc in Mathematics and so on and so forth. Same is true about the Science stream or discipline. When a candidate with Mathematics/Science background is pitted against a candidate with Mathematics and Science background but at a lower level and also with additional qualification, the candidate with Mathematics/Science at a higher level is to have preference over a candidate with Mathematics at a lower level, though also having an additional qualification. To illustrate, a candidate having M.Sc in Mathematics/Science is to have an edge over a candidate with B.Sc in Mathematics or Science with B.Ed or M.Ed or M.A In any other discipline say English and a candidate with B.Sc. in Science/Mathematics is to have a preferential right to be engaged as ReT over a candidate having B. A Degree to his credit with Mathematics /Science at 10+2 level and also a B.Ed, M.Ed or M.A Degree. To sum up, the preference is to be attached to the qualification in Mathematics/Science. 13. The above principle finds expression in Director School Education's Communication No. DSEK/Legal/91/09/3651-60 dated 27.05.2009 addressed to all Chief Education Officers and Additional Secretary to Government Education Department's Communication No.Edu/NC/SE/415/2008 dated 07.08.2009 to the Director School Education. To sum up, the preference is to be attached to the qualification in Mathematics/Science. 13. The above principle finds expression in Director School Education's Communication No. DSEK/Legal/91/09/3651-60 dated 27.05.2009 addressed to all Chief Education Officers and Additional Secretary to Government Education Department's Communication No.Edu/NC/SE/415/2008 dated 07.08.2009 to the Director School Education. It would be profitable to extract the two communications; (I) "Government of Jammu and Kashmir Directorate of School Education Kashmir(SSA Unit) The Chief Education Officer, (All) No:- DSEK/Legal/91/09/3651-60 dated 27.05.2009 Subject:- Selection of ReTs in newly up-graded schools. Sir, Kindly refer to the subject cited above. In this connection the determination of merit in the below mentioned cases was discussed with Secretary Education on 19.05.2009. A) BSc (Science or Math) + B.Ed v. MSc/MA (Math) B) 10+2 (Math and Science) + BA (without Math) + B.Ed v. BSc/BA Math. C) For New Opening slots (MA Education + B.Ed v. MSc B.Ed) In the above referred situations, the candidates with following qualification are to be given preference. MSc/MA(Math), (for situation A) BSc/BA (Math, (for situation B) For the situation mentioned at (C) the comparative merit at the PG level is to be considered for the determination of the merit. Director School Education Kashmir" (II) "Government of Jammu and Kashmir Education Department; Civil Secretariat To The Director, School Education, Kashmir. No:- Edu/NC/SE/415/2008 Dated.07.08.2009 Sub:- Determination of qualification/merit for engagement of ReTs. Ref: Director School Education Kashmir's letter Nos. DSEK/T/Legal/236-Misc/3926 Dated 22/07/2009 & DSEK/T/Legal/223-Misc/3940-50 Dated 28.07.2009 Madam, In reference to above noted letters I am directed to convey that Ministry of Human Resource Development, Department of School Education & Literacy, Government of India Vide its communication bearing No: F.2-3/2005-EE.3 dated 22nd February 2008 has prescribed following mode of selection for teachers under SSA with effect from 01.04.2008 the relevant portion of which is reproduced as under: "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." In view of the above rule position the candidates having higher qualification in Science/Mathematics subjects will have to be given preference. Accordingly, in the above referred three case: 1. B.Sc (Non Medical)', M.Sc Statistics shall have an edge over BA (Math), B.Ed, MA Economics; 2. M.Sc Zoology, B.Ed, shall have preference over B.SC. M.Ed and; 3. B.Sc. B.Ed candidate shall have priority over the candidate having MA (Education). Accordingly, in the above referred three case: 1. B.Sc (Non Medical)', M.Sc Statistics shall have an edge over BA (Math), B.Ed, MA Economics; 2. M.Sc Zoology, B.Ed, shall have preference over B.SC. M.Ed and; 3. B.Sc. B.Ed candidate shall have priority over the candidate having MA (Education). Yours faithfully, Addl Secretary to Government, Education Department" ********* 14. In the present case, the petitioner admittedly has B.SC and B.Ed degree to her credit with Mathematics at 10+2 level. The respondent no.6, on the other hand, has done his Masters in Mathematics. The respondent no.6, having regard to the above discussion, and in particular, guidelines embodied in Communication Nos. DSEK/Legal/91/09/3651-60 dated 27.05.2009 and Edu/NC/SE/415/2008 dated 07.08.2009, has indisputably an edge over the petitioner and has been rightly empanelled for the available vacancy of ReT in up-graded School, Chancer, Tehsil and District, Kulgam. Reliance placed by counsel for the petitioner on Government Order No.1583-EDU of 2003 dated 01.10.2003, to urge that the petitioner having B.Ed degree to her credit, has an edge over the respondent no.6, is grossly misplaced. It is rightly pointed out by counsel for the respondents that Government Order No. 1583-EDU of 2003 dated 01.10.2003 was issued much before SSA Scheme, was revised with effect from 1st April, 2008, and emphasis laid on engagement of candidates with Mathematics and Science background against available vacancies of ReTs and the SSA Scheme. The aforementioned Government Order cannot be expected to visualize the situation/policy decision taking half a decade after the Order was made. In 2003, there was no requirement of engagement of a candidate viz Mathematics/ Science background against the available vacancies/positions of ReT under SSA Scheme. Once, there has been a policy shift and to achieve the object of "quality based education" extra emphasis on engagement of candidates with Mathematics and Science background as ReT under SSA Scheme, Government Order No. 1583-EDU of 2003 dated 01.10.2003, looses relevance and as held in "Mohammad Latief Bhat v. State of J&K and ore." 2011(1) SLJ 144 :2010 (2) JKJ HC-723, may be of relevance, when two candidates having similar degrees in Mathematics or Science, one of them also having a B.Ed/M.Ed degree are pitted against each other for an available vacancy in Mathematics or Science stream. It would be profitable to extract hereunder para-16 of the judgement. It would be profitable to extract hereunder para-16 of the judgement. It reads; "The Government Order No.l503-Edu of 2003 which provided for extra weightage to B.Ed, may come into play when two science candidates being possessed of identical academic qualifications would be pitted against each other. The very purpose of the amendment carried out in the scheme with effect from 01.04.2008 would be defeated if a candidate who is possessed of academic qualification of 10+2 with Science subjects but is having degree of Graduation in arts, subjects and also possessed of B.Ed, qualification is given preference over a candidate who is possessed of B.Sc. qualification." 15. The petitioner cannot draw any support from "Shafeeqa Akhter and anr. v. State of Jammu and Kashmir and ors." 2010 (2) JKJ HC-1, for the simple reason that the facts of the reported case are markedly different form the facts of the present case. In the reported case, the candidate holding M.A.(Education) degree was held not to be entitled to any preferential right to be engaged against ReT position/vacancy as against a candidate having B.Ed/M.Ed, degree to his credit. The question of background in Mathematics/Science did not at all arise in the afore-stated case. 16. In view of the position emerging from the above discussion, it is not necessary to dilate on objection as regards maintainability of the writ petition. Though, there appears to be merit in the plea raised in opposition to the writ petition that the panel being tentative in character and subject to objections from all the aspirants including the present petitioner, the right course for the petitioner was to exhaust the remedy of filing objections against the panel before the competent authority and rush to the Court, thereafter. 17. For the reasons discussed, the petitioner is not entitled to any preferential right to be empanelled for the available vacancy of ReT in up-graded School, Chancer, Tehsil and District, Kulgam as against the respondent no.6 and the claim set up in the writ petition is bereft of any merit. 18. The writ petition is, accordingly, dismissed. The interim direction, if any, is vacated. Resultantly, the respondents shall proceed with the selection process, so that the students of the aforesaid School no more suffer because of non-availability of a teacher with background in Mathematics/ Mathematics Teacher.