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2013 DIGILAW 389 (JK)

Shahzada Akhter v. Aamir Hussain Malik

2013-07-09

Hasnain Massodi, M.M.Kumar

body2013
Per Massodi, J. 1. Zonal Educational Officer, Dooru - Respondent no. 5 herein, vide advertisement notice dated 17th January, 2013 invited applications from the eligible candidates for the ReT positions in Mathematics and Science stream in upgraded Primary School, Parraypora-vio. Appellant and respondent no. 1 were amongst the candidates who responded to the advertisement notice and offered their candidature for the advertised posts under Mathematics stream. The appellant claimed to have passed 10+2 examination with mathematics as one of the subjects and to have PG degree in Arts to his credit. The respondent no. 1 also had mathematics as one of subjects at 10+2 level. He further disclosed in his application That he had appeared in B.Sc. final year examination, though the results were awaited on the date i.e. 27th January, 2013, he submitted his application. 2. The appellant found place in the select list notified vide no. CEO/A/Per/47135-37/13 dated 22.03.2013 published in a local daily on 25.03.2013. The respondent no. 1 aggrieved with his non-selection filed writ petition being SWP no. 489/2013 and on the strength of averments made in the petition sought a writ of certiorari quashing the selection list dated 22.03.2013 and also sought direction to the respondents to re-frame the panel and give weightage to the B.A. degree to his credit. 3. The case set up by the respondent no. 1 before the writ court was that his B.A final year result was declared in the afternoon of 27th January, 2013 and he was shown to have passed the examination in second division and therefore an extra weightage was required to be given to B.A degree with mathematics to his credit on the last date of receipt of applications/cut-off date. Respondent no. 1 claimed to have approached the official respondents with a representation on 28th January, 2013 informing respondents and in particular Zonal Educational Officer, Dooru (Res. No. 5 herein) that as he was declared successful in B.A examination on the last date of receipt of the applications, qualification/degree, so obtained was to be taken into account while finalizing the selection process. 4. The official respondents opposed the writ petition on the ground that as the respondent no. No. 5 herein) that as he was declared successful in B.A examination on the last date of receipt of the applications, qualification/degree, so obtained was to be taken into account while finalizing the selection process. 4. The official respondents opposed the writ petition on the ground that as the respondent no. 1 did not have B.A degree on the cut-off date, the said degree was not to be taken into account while framing the selection list and that as the appellant had higher merit at 10+2 level as against the respondent no. 1, the appellant was rightly selected for the advertised position. The official respondents, however, admitted that the respondent no. 1 approached the Zonal Educational Officer on 28th January, 2013 and requested that B.A final degree obtained by him be included in his academic record. It is also admitted that the respondent no. 1 in his application indicated that he had appeared in B.A final examination and his result was awaited at the time the application for ReT position was submitted. The appellant entered appearance through our counsel on 5th April, 2013. However reply was not filed on her behalf. 5. The writ court took the view that academic qualification claimed by the candidate has reference to last date of receipt of applications fixed in the advertisement notice and that as the respondent no. 1 had acquired B.A degree on the last date of receipt of applications, the respondents were not justified in denying weightage whatever due to the B.A degree while making the selection. 6. Learned Single Judge accordingly allowed the writ petition and set aside the selection list to the extent of selection of the appellant. The respondents were directed to re-frame the panel and give weightage to B.A degree to the credit of respondent no. 1. 7. The writ court judgment dated 20th May, 2013 is questioned in the Letters Patent Appeal on hand on the grounds set out in the memorandum of appeal. 8. We have gone through appeal, the writ court order and writ record. We have heard learned counsel for the parties at length. 9. There is hardly any dispute on facts between the parties. It is admitted case of the parties that appellant and respondent no. 8. We have gone through appeal, the writ court order and writ record. We have heard learned counsel for the parties at length. 9. There is hardly any dispute on facts between the parties. It is admitted case of the parties that appellant and respondent no. 1 with mathematics as one of the subjects at 10+2 level, responded to the advertisement notice dated 17th January, 2013 published on 21st January, 2013 in the local daily inviting applications from eligible candidates for Ret position in Mathematics/Science stream available in upgraded Primary School, Parraypora-Vio. It is also admitted that selection in terms of the advertisement notice was to be made on habitation basis and that both the appellant as well as respondent no. 1 belong to the habitation where upgraded Primary School was established by the respondent department. It is well settled by now that a candidate having higher qualification in Mathematics or Science subject is to have an edge over the candidate with lesser qualification or 10+2 qualification with Science/mathematics as one of the subjects at said level. To illustrate, a candidate with mathematics at PG level is to be preferred over a candidate with mathematics at graduation level and a candidate with mathematics at graduation level is to be preferred over a Candidate having mathematics as one of the subjects at 10+2 level. Same is true about Science stream. 10. The present controversy has its roots in the order of preference to be observed by the Selection Committee/Authority while making the selection for ReT position in an upgraded Primary School. 11. The case set up by the respondent no. 1 before the writ court was that his BA degree with mathematics as one of the subjects was unjustifiably ignored by the official respondents while making selection for the advertised Ret position. He insists that his BA final year result was declared on the last date of submission of application and he declared successful. The appellant on the other hand pleads that BA (final) qualification in question would not earn the respondent no. 1 any extra weightage as the degree was acquired after the cut-off date. Having regard to the controversy involved, the dated and events of selection process assume important and call for a closer look. 12. The advertisement notice dated 17th January, 2013 was admittedly published in a local daily on 21st January, 2013. 1 any extra weightage as the degree was acquired after the cut-off date. Having regard to the controversy involved, the dated and events of selection process assume important and call for a closer look. 12. The advertisement notice dated 17th January, 2013 was admittedly published in a local daily on 21st January, 2013. The notice did not fix any particular date as last date for receipt of applications. In terms of advertisement notice, the applications were to reach the office of Zonal Educational Officer, Dooru within seven days from the date of publication of the notice. 13. A bare look at the advertisement notice would reveal that an aspirant for the advertised ReT position was to submit his application by or on 28th January, 2013. The respondent no.4 by making use of word "from" is to be taken to have excluded the date of publication from the period of seven days within which an aspirant for the advertised position was to respond to the advertisement notice. In other words the period of seven days is to be counted from 22nd January, 2013 and obviously would end on 28th January 2013. Even if the period of seven days is held to run from the date of publication of advertisement notice i.e. 21st January 2013, the last date would fall on a public holiday and in terms of Section-10 of the General Causes Act, a candidate for the advertised position would have a right to submit the application on the next day afterwards on which the office is open. In the present case, as 27th January, 2013 was public holiday the cut-off date would be 28th January, 2013. It is well settled law that the qualification to the credit of a candidate for the advertised position is to have reference to the cut-off date on last date fixed for receipt of applications and not the date of submission of application by the candidate for the advertised position. 14. The respondent no. 1 was declared successful in BA final examination at 4.45 PM on 27th January, 2013. Once 28th January, 2013 is taken to be the cut-off date for submission of application, the petitioner is to be held to have acquired BA qualification before the cut-off date. Even in worse scenario for the respondent no. 14. The respondent no. 1 was declared successful in BA final examination at 4.45 PM on 27th January, 2013. Once 28th January, 2013 is taken to be the cut-off date for submission of application, the petitioner is to be held to have acquired BA qualification before the cut-off date. Even in worse scenario for the respondent no. 1 i.e. holding 27th January, 2013 as the cut-off date for submission of applications for the advertised position, ignoring mandate of Sections 9 and 10, the General Causes Act, 1920 AD (i.e. including the date of publication within the period of seven days stipulated under the advertisement notice) the BA final degree qualification acquired by the respondent no. 1 deserved to be taken into account and given weightage due to it, in terms of norms/guidelines for selection against ReT position. The respondent no. 1 admittedly submitted his application at 2:30 PM on 27th January, 2013. He made it clear in the application itself that he had appeared in BA final examination and his result was awaited. The BA final result was declared at 4.45 PM on 27th January, 2013. The appellant had therefore acquired BA qualification on the cut-off date. The cut-off date i.e. 27th January, 2013 obviously does not come to an end at 2:30 PM when the respondent no. 1 submitted, his application or before 4:45 PM i.e. the time when result was declared. It would end only at 12:00 AM in the night intervening 27th, 28th January, 2013. A candidate acquiring qualification before 12:00 AM in the night intervening 27 and 28th January, 2013 would be entitled to the credit/weightage whatever due to the qualification so acquired. It may be reiterated at the cost of repetition that acquisition of qualification has neither reference to date or time of submission of application nor to the end of schedule office hours on the last date of receipt of application. 15. What emerges from above discussion may be concretized into legal proposition that acquisition of qualification does not have reference to the time and date of submission of application for advertised vacancy or the scheduled office hours and qualification acquired before or on the cut-off date is to be taken into account by the Selection Committee/Authority while assessing merit of a candidate aspiring for the advertised post. 16. 16. Against the said backdrop, BA (final) qualification with Mathematics as one of the subjects was to be considered by the Selection Committee/Authority while finalizing the selection process that was concluded on 22nd March, 2013. 17. So viewed, we do not find any ground made out by the appellant as would persuade us to take a view different from one taken by Learned Single Judge. The Letters Patent Appeal is therefore, without any merit and is accordingly dismissed.