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2013 DIGILAW 315 (JK)

Mohd. Arif v. State Of J&K

2013-05-17

MOHAMMAD YAQOOB MIR

body2013
1. Vide advertisement notice issued from the office of Chairman, Sarva Shikhsha Abhyan (Chief Education Officer), Poonch (J&K), applications have been invited from the permanent residents of the State of Jammu and Kashmir for the engagement of RET teachers at Village/Panchayat level which include two vacancies, i.e., one with Science background and another with Math background, to be supplied in upgraded Middle School, Neema Panyali of village Surhotti Zone Harni. The petitioner as well as respondent No. 5 amongst others have also applied. Tentative Select list for Science and Math Stream has been prepared, viz-a-viz, Science stream, same is approved by the Director School Education, Jammu whereas regarding Math Stream petitioner was tentatively selected but his selection was not approved as communicated to the Chief Education Officer, Poonch by the Joint Director, Directorate of School Education, Jammu vide his No. DDSEJ/RET/7098-7100 dated 3rd September, 2012. In the said communication, it has been observed that the panel has not been prepared and displayed as per the fresh instructions dated 28th March, 2012. In the letter dated 28th March, 2012, reference has been made to the judgment dated 12.4.2011 passed in SWP No. 1988/09 titled Feroz Ahmed Parray v. State and others and the judgment passed in LPA No. 117/2011 titled Afroza Jan v. State and ors, as was filed against the judgment dated 12.4.2011. In the Judgment dated 12.4.2011, it has been observed that: ". a candidate with math background is required to be appointed and inter se merit amongst the candidates could be a determining factor in making selection. Additional qualification of Post-graduation in Urdu was uncalled for as such an additional qualification had absolutely no relevance for the post which was to be filled up. A teacher for mathematics was to be selected on the basis of merit. Additional qualification in any other subject had no real nexus with the object." 2. Both the petitioner and respondent No. 5 have passed 10+2 with Math background and graduation in Arts and also done B.Ed. Their merit position at the levels such as 10+2, graduation and B.Ed is required to be noticed. All the three levels are as under:- Mohd Arif: 10+2 Graduation B.Ed. 240/600 (40%) 810/1650 (49.09%) 534/1000 (53.4%) Amjid Chaughtai: 10+2 Graduation B.Ed. 252/600 (42%) 795/1650 (48.18%) 525/1000 (52.25%) 3. Their merit position at the levels such as 10+2, graduation and B.Ed is required to be noticed. All the three levels are as under:- Mohd Arif: 10+2 Graduation B.Ed. 240/600 (40%) 810/1650 (49.09%) 534/1000 (53.4%) Amjid Chaughtai: 10+2 Graduation B.Ed. 252/600 (42%) 795/1650 (48.18%) 525/1000 (52.25%) 3. It is the stand of the respondents that since at the 10+2 level both the candidates have Math background but respondent No. 5 is superior in merit, so is selected. 4. It is not in dispute that the petitioner is superior in merit at graduation level as well as B.Ed level whereas respondent No. 5 is superior in merit at 10+2 level. 5. It shall be quite relevant first to examine as to whether the judgment rendered in SWP No. 1988/09 and up-held by the Division Bench while dismissing LPA No. 117/2011, applies to the facts of the present case. In the said judgment, both petitioner and the private respondent had Math background at 10+2 level as well as graduation level. The writ petitioner had additional qualification, i.e., Post-graduation in Urdu subject. Writ petitioner has secured 46.66% and 47.16 marks respectively at 10+2 and graduation level whereas the respondent therein had secured 50.33% and 58.66% respectively at 10+2 and graduation level. So admittedly, the respondent was having superior merit. The contention of the writ petitioner was that since he possessed additional qualification, i.e, M. A in Urdu, therefore, he has a preference. This issue was dealt with and it was held that the additional qualification, i.e., M. A in Urdu has no nexus with the object when the requirement is to appoint a candidate with Math background. The contention was accordingly repelled in LPA No. 117/2011 titled Afroza Jan v. Feroz Ahmed and others. At para 12, it has been observed: "the only other question to be examined is whether the possession of M.A. degree in Urdu by the appellant can ensure any special preference to be accorded to the appellant while considering her claim for engagement as ReT for Maths subject". It was held that: "In our considered opinion in the absence of any other statutory prescription or the prescribed rule or regulation notified by the respondent-State, the claim of the appellant cannot be countenanced." 6. So in the given facts and circumstances, it was held that to possess qualification in a subject other than the one required shall have no preference. So in the given facts and circumstances, it was held that to possess qualification in a subject other than the one required shall have no preference. In the said judgment, Government Order No. 1503-Edu of 2003 dated October 1, 2003 was referred to, in terms whereof, guidelines/norms for engagement as RET have been issued. The guidelines Nos. 1, 3, 4 and 6, for the purpose of the said case were referred therein. Guideline No. 4, for the purpose of the case in hand, shall be relevant to be quoted: "4. B.Ed/M.Ed. practically carry a professional edge vis-`-vis an (academic) P.G. degree Extra weightage be allowed, therefore, to B.Ed/M.Ed, consistent with its role and relevance in the teaching, learning process." 7. The letter (guidelines) issued by the Additional Secretary to Government, School Education addressed to Director School Education, wherein observations made in the judgment dated 12.4.2011 passed in SWP No. 1988/09 has been quoted and then the decision of the judgment of having been up-held in LPA No. 117/2011 has been made mention of. 8. Relevance of additional qualification which is not the subject specific is settled but at the same time, in the instant case, the factual position is a bit different, i.e., both the candidates, appellant as well as respondent No. 5 possessed Math background only at 10+2 level. Both are graduates in Arts but both have technical qualification of B.Ed. In terms of Guideline No. 4, as quoted above, issued vide Government Order No. 1503-Edu of 2003 dated 01.10.2003, it is amply clear that extra weightage be allowed to B.Ed/M.Ed. The position of the appellant and respondent No. 5 has to be adjudged keeping in view the superior merit in the technical qualification of B.Ed because it has extra weightage. This aspect of the case was not in issue in the judgment as rendered in SWP No. 1988/09 or in LPA No. 117/2011 and it is in the same background in para 12 of the LPA judgment, it is made clear that only other question to be examined was whether the possession of M.A degree in Urdu can ensure any special preference which has been answered in negative. The wording employed would show that other issues such as possession of technical qualification which has an edge has to be considered by the authorities concerned, that consideration is not closed by the said judgment. 9. The wording employed would show that other issues such as possession of technical qualification which has an edge has to be considered by the authorities concerned, that consideration is not closed by the said judgment. 9. Suppose one candidate is graduate with Math background and is superior in merit at graduation level as against another candidate who also possesses technical qualification of B.Ed, it is the candidate with technical qualification, i.e., B.Ed who has to be given extra weightage. When it is so, out of the two candidates possessing technical qualification of B.Ed, the candidate with superior merit at B.Ed level automatically shall have a preference. Applying the said principle, in the instance case, admittedly, it is the petitioner, who has superior merit at B.Ed level. So that position of the petitioner has to be considered. 10. In the aforesaid background, the writ petition is allowed. The respondents are directed to re-consider the position of the petitioner and respondent No. 5 in the light of the observations made hereinabove and select and engage the meritorious candidate. The said exercise be undertaken and completed within a period of six weeks.