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J&K High Court · body

2012 DIGILAW 726 (JK)

Ishfaq Ahmed Ganaie v. State & Ors.

2012-11-22

MOHAMMAD YAQOOB MIR

body2012
1. Two vacancies of RET teachers one with Math and another with Science background are required to be supplied in newly upgraded Primary School, Gujarnad (Chokerpati). In response to the Advertisement Notice No. ZEO/6/345/11 dated 07.01.2011 issued from the office of Zonal Education Officer, Qazikund, amongst others, petitioner and respondents 5 and 6 also applied. 2. The list of all eligible candidates has been prepared by Zonal Education Officer. Respondent No.5 was recommended for selection on Science basis whereas petitioner was recommended for selection on Math basis. 3. Since the petitioner and respondent No.5 have both Science as well Math background, whereas respondent No.6 has only Science background, in 10+2. Respondent (Chief Education Officer), Anantnag sought instructions from Director School Education, Kashmir vide his letter No. CEO/A/Per/17789 dated 22.02.2011. In response thereto, he has been conveyed to proceed in the matter as per merit of the candidates at 10+2 level vide communication dated 27.04.2011 issued by the Deputy Director (Planning), Directorate of School Education, Kashmir. Consequently, tentative list has been issued by the Chief Education Officer, Anantnag, wherein respondent No.5 is shown selected as RET teacher for Math vacancy whereas respondent No.6 is shown selected as RET teacher for Science vacancy, as against the said tentative list, objections have been invited from all the concerned. 4. Recommendation in favour of the petitioner for selection as against the Math vacancy appears not to have been accepted, therefore, hence, the instant petition. 5. Learned counsel for the petitioner would contend that respondent No.5-Sabiya Hassan while responding to the Advertisement Notice has filed application wherein she has specifically requested that she be considered for engagement as RET teacher on Science basis as she has approximately 74% marks in Science subjects, therefore, she should have been selected against the same vacancy. 6. 5. Learned counsel for the petitioner would contend that respondent No.5-Sabiya Hassan while responding to the Advertisement Notice has filed application wherein she has specifically requested that she be considered for engagement as RET teacher on Science basis as she has approximately 74% marks in Science subjects, therefore, she should have been selected against the same vacancy. 6. The position of the petitioner and respondents 5 and 6 is clearly indicated in the letter dated 22.02.2011 addressed to the Director School Education, Kashmir by the Chief Education Officer, Anantnag wherein qualifying marks, percentage of marks and subjects in which petitioner and respondents 5 and 6 have passed 10+2 Examination, is clearly indicated in the tabulated form, the same is reproduced hereunder:- S.No. Name of the candidate Qualification Marks Percentage Subject 01 Subiya Hassan 10+2 Science with Math as 5th subject 536/750 71.46 English, Physics, Chemistry, Biology, Math 02 Mashqoor Rafiq 10+2 5th subject Computer Science 268/500 53.6 English, Physics, Chemistry, Biology, Computer science 03 Ishfaq Ahmed Garde 10+2 Science with Math as 5th subject 345/750 46.00 English, Physics, Chemistry, Biology, Math 7. In case of Non-Medical stream, candidate must have Physics, Chemistry and Mathematics as subjects whereas in case of Medical stream, the subjects are Physics, Chemistry and Biology. Both the petitioner and respondent No.5 in 10+2 have passed subjects Physics, Chemistry, Biology whereas 5th subject which they have passed was Mathematics, therefore, they fall within both categories, i.e., they have Science as well as Math background as such are eligible against both vacancies. Respondent No.6 as reflected herein above, has passed subject Physics, Chemistry, Biology in 10+2 whereas 5th subject was Computer Science. So her candidature is to be considered only against the vacancy with Science background. 8. Respondent No.5 being meritorious, has superior right to get engaged either against Science or Math vacancy. In case she is selected against Science vacancy, then petitioner has to be selected as against Math vacancy, as there is no other candidate with Math background. In case respondent No.5 is selected against the Math vacancy then petitioner has to be considered as against Science vacancy, but his merit in Science being inferior to respondent No.6 will get excluded. 9. Whether choice of respondent No.5, to be considered only against the Science vacancy is permissible, if answer is in affirmative, then the petitioner has a right to be engaged against Math vacancy. 9. Whether choice of respondent No.5, to be considered only against the Science vacancy is permissible, if answer is in affirmative, then the petitioner has a right to be engaged against Math vacancy. If answer is in negative then selection of the petitioner as against Science vacancy is impossible. 10. It is for the petitioner to project before the authority concerned in his objections as to how the candidature of respondent No.5 is only to be considered against Science vacancy. The process of selection as yet has not been completed. Prematurely writ jurisdiction has been invoked. 11. In the judgment rendered by Hon'ble Apex Court in case Mrs. Kunda S. Kadam and others v. Dr. K.K. Soman and others reported in AIR 1980 SC 881 , wherein challenge to the recommendation before the decision was taken by the Municipal Corporation or thereafter confirmation of the Government was held to be premature. It shall be quite relevant to quote following portion from para No.3 of the judgment:- "..We are not called upon to state what the powers of the Corporation in such a situation are. It was also open to the State Government even if the Corporation had made an appointment to confirm or not to confirm it, depending on its own view of the matter. We mention all this only to emphasis that it was too early for a writ petition to be entertained and decided on the merits." 12. In one more judgment rendered by the Hon'ble Apex Court in M.V. Thimmaiah and others v. Union Public Service Commission and others reported in (2008) 2 SCC 119 wherein in para No.22, the Hon'ble Apex Court has observed that "we may at the very outset observe that the Court while considering the proceedings of the Selection Committee does not sit as a court of appeal. Courts have limited scope to interfere, either selection is actuated with mala fide or statutory provisions have not been followed". 13. In the petition on hand, learned counsel for the petitioner has projected that to consider the candidature of respondent No.5 as against Math vacancy is with a design to exclude the petitioner so as to pave way for inclusion of respondent No.6. At this stage, no such material has been placed on record, which would indicate that there is any design to exclude the petitioner. 14. At this stage, no such material has been placed on record, which would indicate that there is any design to exclude the petitioner. 14. The problem arose in view of qualification of the petitioner and respondent No.5 which enables their consideration as against both Science and Math vacancy and it is in the same background guidance has been sought from the Director School Education, Kashmir, therefore, at this stage, it cannot be said that the act of the official respondents is actuated with malafide or there is any breach of statutory rules. 15. Viewed thus, petition being premature, it shall be open to the petitioner as well as other candidates who had responded to the Advertisement Notice dated 07.01.2011 to project their grievance as against tentative select list which is subject to objections from all the concerned. 16. The respondent authority while considering the objections as invited against the tentative selection of respondents 5 and 6, shall have to apply reasonable yardstick for selecting respondent No.5 as RET teacher against the vacancy with Science or with Math background because, dependent thereon, is the selection of petitioner or the respondent No.6. 17. The process of selection undertaken be completed with promptitude. 18. Disposed of as above along with IA No. 2185/2011, reserving right to the petitioner to re-agitate if cause survives. 19. Records as produced by the learned counsel for the Education Department be returned to him.