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2013 DIGILAW 483 (JK)

Preeti Sharma v. State Of J&K

2013-08-27

ALI MOHAMMAD MAGREY, Virender Singh

body2013
Per Virender Singh, J. 1. The instant Letters Patent Appeal is directed against the judgment/order dated 08.08.2013 passed by learned Single Judge in SWP No. 1989/2010 whereby the writ petition filed by the appellant (hereinafter to be referred to as `petitioner') against canceling her engagement and in her place appointing private respondent No. 6 (Nek Ram S/o Jakar Ram) as Rehbar-e-Taleem (R-e-T) in mathematics in Upper Primary School, Gajore, in terms of advertisement notice Notification No. DIP/J-8483 dated 08.02.2010 stands dismissed. 2. In terms of the aforesaid notification, two vacancies of R-e-T in UPS Gajore, one each in Science and Math stream, were advertised. Name of the petitioner was recommended for engagement of R-e-T in Math by Chief Education Officer, Reasi, which was approved by Director School Education. Subsequently, Director School Education realized that in terms of the administrative direction issued vide Order No. Edu/PS/Secy/11/2009 dated 22.06.2009 for the engagement of teachers in Upper Primary Schools for Science and Math, higher Science/mathematics qualification have to be given priority and in the case of the petitioner, she had math background only upto level of 10+2 as against private respondent No. 6 who was Graduate with math as one of the subjects, consequently passed an order dated 13.08.2010 canceling the engagement of the petitioner and appointing respondent No. 6 as R-e-T in UPS, Gajore, aggrieved thereof, the petitioner filed SWP No. 1989/2010, which has now been dismissed by the learned Writ Court following the judgment of Division Bench of this Court in case titled `Javeed Ah. Khanday v. State of J&K & Ors.' reported as 2012 (3) JKJ [HC] 594 : SLJ 2012 1059 3. The case of the petitioner was also tested on the touch stone of violation of principles of natural justice and finding returned against her is based on the rationale that giving an opportunity of being heard to her would have been a sheer formality as the result would still remain the same for the reason that the petitioner could not steal march over private respondent No. 6 for engagement in the aforesaid school as Math teacher having mathematics background only up to the level of 10+2 whereas private respondent No. 6 was a graduate degree holder with mathematics as one of the subjects, which certainly was the higher qualification in a particular required stream. 4. Heard Mr. 4. Heard Mr. Malik, learned counsel for the petitioner and gone through the grounds carved out in the memo of appeal. 5. Mr. Malik submits that the petitioner is B.Ed. carrying professional edge vis-a-vis private respondent No. 6, therefore, she had preferential right over him, whose qualification is only B.A. According to learned counsel, simply that private respondent No. 6 was having mathematics as one of the subjects in his graduation, it would not be a ground to take it as a higher qualification in that stream when he had no teaching experience. Strengthening his arguments, learned counsel submits that the petitioner had studied math also at B.Ed. level and got training as to how to teach math while doing B.Ed. course whereas private respondent No. 6 was lacking this experience. 6. The other grievance projected by learned counsel for the petitioner is that despite the fact that the petitioner has relied upon two judgments of Hon'ble Supreme Court to strengthen his case, reference thereto also made in one of the grounds carved out in the writ petition but the learned Writ Court has not considered the said judgments while deciding the writ petition. Learned counsel draws our attention to one of the grounds of the writ petition and once again relies upon the following two judgments of Hon'ble Supreme Court:- `Ram Vijay Kumar & Ors. v. State of Bihar & ors. reported as (1998) 9 SCC 227 ' `Andhra Kesari Educational Society v. Director of School Education & ors.' reported as `Supp 3 SCR 893'. 7. Learned counsel submits that it is held in Andhra Kesari Education Society's case (Supra) that teachers should be subjected to rigorous training with rigid scrutiny of efficiency as it has greater relevance to the needs of the day and ill trained or substandard teachers would be detrimental to our educational system, which is punishment to our children. He contends that the petitioner having B.Ed. qualification to her credit and subjected to required training would certainly be beneficial to the children, therefore, she deserves to be engaged as R-e-T in the aforesaid school in place of respondent No. 6, who has no such training/efficiency to his credit except that he is B.A. with mathematics as one of the subjects. 8. Arguments advanced by Mr. qualification to her credit and subjected to required training would certainly be beneficial to the children, therefore, she deserves to be engaged as R-e-T in the aforesaid school in place of respondent No. 6, who has no such training/efficiency to his credit except that he is B.A. with mathematics as one of the subjects. 8. Arguments advanced by Mr. Malik, appear to be same what attractive but deserve to be rejected when tested on the touch stone of order No. Edu/PS/Secy/11/2009 dated 22.06.2009, reference thereto made hereinabove and the controversy already set at rest by Division Bench of this Court in Javeed Ah. Khanday's case (Supra) wherein paras 6, 7 & 8, it is observed thus:- "6. Sarva Shikha Abhiyan (SSA) is aimed at achieving the object of universal education at elementary level within fixed time frame. The object is to make the fundamental right to free and compulsory education to the children of 6-14 years of age group, incorporated by 86th amendment in the Constitution, realty. The Programme is implemented in partnership with the State Government. In the State of Jammu and Kashmir, the Programme succeeded Rehbar-e-Taleem of Education Guide Scheme launched vide Government Order No. 96-Edu of 2000 dated 24th April, 2000. It is important to note that the SSA programme does not merely aim at achieving the target of universal elementary education within the set time frame, but one of its objects is to meet the demand for quality based education and to bridge the gap between different sections of the society. The object of, quality based education made it necessary to place extra focus on teaching Science and Mathematics at the Primary School Level, so as to achieve holistic literacy and numeracy improvement at primary level that would combine language and Social Science with Mathematics and Science. 7. The Programme was given a fresh look in the year 2008 and on 1st April, 2008, a revised SSA Scheme was notified making it necessary to fill up all Rehbar-e-Taleem positions that become available where a Rehbar-e-Taleem in place vacates the position of position become available because of up-gradation of Primary School/Education guarantee centre, from amongst the eligible candidates having Mathematics and Science back ground. 8. 8. In the said back ground a candidate having highest qualification in the respective disciplines i.e, Mathematics and Science is to have an edge over a candidate having such subjects at a lower level. To illustrate a candidate having Masters Degree in Mathematics and Science to his credit is to be given preference over a candidate having Mathematics at Graduation level irrespective of other qualification is possessed by such candidate. Similarly a candidate having Mathematics and Science at 10+2 level, ignoring any additional qualification including M.Ed. or B.Ed. possessed by such candidate. In short the preference is attached to the level of proficiency/qualification in Mathematics and Science." 9. Reference with advantage may be made to a recent judgment of Division Bench of this Court in case titled `Farooq Ahmad Beigh v. State & ors.' wherein while referring to Javeed Ahmad Khanday's case (Supra) the Court also considered another judgment rendered in `Pinky Devi v. State of J&K & ors.' reported as ` 2013 (2) JKJ [HC] 279 : 2012 Legal Eagle (JK) 427', where the Division Bench has relied upon another decision rendered by Division Bench in `LPA No. 117/2011 in case titled `Aforza Jan v. Feroz Ahmad Parray & ors.' and `Kounser Ashraf v. State & ors.' wherein the Division Bench had an occasion to deal with two communications addressed by Director School Education, Kashmir, SSA unit to all the Chief Education Officers stream lining the procedure for considering the candidate for an appointment as R-e-T as Math/Science teacher having higher qualification with regard to a particular stream. 10. In the aforesaid case admitted position before the Court was that the petitioner had mathematics at 10+2 level and then B.A. degree to his credit whereas private respondent therein had 10+2 with mathematics as one of the subjects to his credit but the private respondent had higher merit at 10+2 level vis-a-vis the petitioner and when he was not included in the panel by giving extra weight-age to the petitioner to his B.A. degree, he objected by filing objections and ultimately he was empanelled on the basis of higher merit at 10+2 and the petitioner deleted from the panel which action was questioned by him through the writ petition which ultimately came to be dismissed by the learned Single Judge and the said judgment subsequently upheld by the Division Bench of this Court also following the ratio of Javeed Ah. Khanday's case (Supra). 11. The case at hand is to be tested on aforesaid rationale only for the purposes of appointment of R-e-T in any Upper Primary School for two streams vis Science and Mathematics as this appointment is based on Sarva Shiksha Abhiyan (SSA) Scheme, which is aimed at achieving the object of universal Education at elementary level within fixed time frame. It is not a regular appointment of a teacher as R-e-T can be removed any time with the span of five years on the basis of the performance and becomes entitled to be appointed as general line teacher only after the satisfactory performance of long five years. In terms of the Scheme (SSA) some meager amount as honorarium is paid to R-e-T monthly. Therefore, the aforementioned two judgments of Hon'ble Supreme Court on which Mr. Malik wants to rely in support of his case, in our view, would not put the case of the petitioner on any advantageous position. 12. Viewed thus, we do not find any infirmity in the impugned judgment rendered by learned Single Judge on any count warranting our interference through the instant Letters Patent Appeal. Accordingly, it is dismissed along with CMA No. 168/2013.