Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 654 (JK)

Masroor Jabar Ganai v. State Of J&K

2013-11-12

ALI MOHAMMAD MAGREY

body2013
1. Petitioner had offered his candidature pursuant to advertisement notice no. DIPK-15968 issued by Zonal Education Officer published in a local daily on 26.01.2012 inviting applications for filling up two ReT posts, one with Science and the other with Mathematics background, available in P/S Cheki-Kanganhall upgraded upto Upper Primary status. The petitioner states to be possessing Mathematics at the 10+2 level and Graduation in Arts. In the Panel of six candidates drawn up, the first three candidates belonged to Science stream and the remaining three to the Mathematics stream. Admittedly, all the three candidates against the post meant for Mathematics stream, possessed Mathematics only at the 10+2 level; however, petitioner, in addition, possessed Graduation in Arts as well. The petitioner's name was shown at serial no. 4 of the Panel, i.e., at the top of the three candidates belonging to the Mathematics stream. 2. It appears that the advertisement notice was withdrawn, but it is not clear at what stage - whether before the Panel was drawn or earlier to that. Be that as it may, petitioner herein in collaboration with another candidate filed writ petition, SWP no. 1410/2012, challenging withdrawal of the advertisement notice. That petition was disposed of by a Coordinate Bench of this Court in terms of order dated 27.12.2012 observing and directing as under: "...It is stated that due to clerical error feeding school shown, i.e. C. Traphoo has already been projected as feeding school for another upgraded school. The ML A had recommended that Shangus Chei Trahpoo may be considered as feeding school for upgradation of P/S Cheki Kanganhall instead of P/S SSA Trahpoo for which P/S Akhran and P/S Chan Mohalla have been already projected as feeding schools for its upgradation vide communication of Zonal Education officer bearing No. ZEO/A/2348/2010 dated 27.03.2010. The matter is pending consideration before the respondents as is clearly indicated in para-5 of the reply. In view of this position, let the respondents take the decision as shall be warranted within four weeks and then to proceed ahead with the process of selection in accordance with the advertisement notice already issued." 3. The matter is pending consideration before the respondents as is clearly indicated in para-5 of the reply. In view of this position, let the respondents take the decision as shall be warranted within four weeks and then to proceed ahead with the process of selection in accordance with the advertisement notice already issued." 3. In the present petition the grievance projected by the petitioner is that pursuant to the aforesaid Court order dated 27.12.2012 the respondents were required to proceed ahead in the matter as per the advertisement notice, but during the pendency of the enquiry there has been a change in the criteria of making selections whereby selection of ReT is to be made on the basis of merit obtained in the Science / Mathematics subjects with no weightage to any higher qualification in other subjects; whereas earlier the norm was that even Graduation in Arts would be given weightage if a candidate would possess Science or Mathematics at 10+2 level. The claim of the petitioner is that at the time of issuance of the advertisement notice, the earlier norm was applicable and that, since the norm has changed after the issuance of the advertisement notice, rather during the pendency of the decision making process, the instant selections cannot be governed by the new norm as the same would be impermissible. Petitioner in this connection has placed reliance on a communication dated 16.01.2013 addressed by Chief Education Officer, Anantnag, to the Director, School Education, Srinagar, seeking his guidance in the matter. 4. The respondents in their reply have stated that in terms of the judgment dated 12.04.2011 passed by this Court in SWP no. 1988/2009, titled Feroz Ahmad Parray v. State & others, the Administrative Department vide communication No. Edu/Legal/K/214/2011 dated 28.03.2012 directed respondent no. 2 that candidates possessing highest merit in Science / Math subject for which post is advertised shall have substantial claim and higher qualification in other subjects does not make any claim for the post of ReT in Upper Primary Schools. It is also stated that in another writ petition, SWP no. 663/2010 titled Yasmeena Aziz v. State and others, decided on 17.10.2012, the Court directed to select the candidate as ReT in Science stream with superior merit ignoring the higher / additional qualification of MA Islamic Studies possessed by the contesting respondent therein. 5. It is also stated that in another writ petition, SWP no. 663/2010 titled Yasmeena Aziz v. State and others, decided on 17.10.2012, the Court directed to select the candidate as ReT in Science stream with superior merit ignoring the higher / additional qualification of MA Islamic Studies possessed by the contesting respondent therein. 5. I have heard learned counsel for the parties and considered the matter. 6. Admittedly, three candidates were empanelled against one post of ReT in Mathematics stream. It would be advantageous to quote hereunder the merit position of each of the three candidates as reflected in the aforesaid Panel: Name Qualification 10+2 BA/BSc/B.Com Marks %age Marks %age Masroor Jabar B. A. 10+2 Math 329/750 43.86 873/1800 48.5 Muneeb Ahmad Ganie 10+2 Sci Math 568/750 75.73 - - Yaseenul (sic) 10+2 Sci Math 340/750 45.33 - - The petitioner figuring at serial no. l of the panel, admittedly, has secured the lowest percentage of marks in Mathematics at 10+2 level, though he is the only candidate possessing the additional / higher qualification of B. A. amongst the three candidates. The contention raised by the learned counsel for the petitioner is that at the time of issuance of the advertisement notice the norm was that whatever be the merit in Science / Mathematics subject at 10+2 level, a candidate possessing higher / additional qualification would get preference for appointment over the others. But this norm has changed subsequent to the process of selection was almost completed. Therefore, according to the learned counsel, the instant selections would be governed by the earlier norm. Learned counsel for the petitioner, in this behalf, has referred to communication dated 20.04.2009 addressed by Directorate of School Education to the Chief Education Officer, Anantnag, which states that the candidate having 10+2 (with Science / Math) and BA as an additional qualification shall have to be given preference over the candidate having qualification 10+2 (Science /Math) only even though the candidate has got more score in 10+2. In the aforesaid communication, reference has also been made to the decision of the Court dated 10.04.2009 rendered in SWP no. 171/2009 titled Rayees Ahmad Dar v. State. 7. In the aforesaid communication, reference has also been made to the decision of the Court dated 10.04.2009 rendered in SWP no. 171/2009 titled Rayees Ahmad Dar v. State. 7. The petitioner has also placed on record a copy of communication dated 28.03.2012 written by Additional Secretary to Government, School Education Department to the Director, School Education, Srinagar, whereby, referring to the decision of a Coordinate Bench of this Court dated 12.04.2011 in SWP no. 1988/2009 titled Feroz Ahmad Parray v. State of J&K and dismissal of the LPA arising out of the said judgment by a Division Bench of this Court, the Director has been informed that candidates possessing highest merit in Science / Math subject for which post is advertised shall have substantial claim and higher qualification in other subjects does not make any claim for the post of ReT in Upper Primary Schools. 8. Now, the question is whether this norm can be applied to the instant selection process conducted pursuant to an advertisement notice issued on 26.01.2012? To find answer to the said question, it becomes imperative to refer to the Advertisement notice which extracted below: "Pursuant to Chief Education Officer Anantnag's Order No. CEO/A/SSA/4524-26 dated 23/01/2012 P/S Cheki-Kanganhall upgraded upto upper primary status along with two ReT posts with Science and mathematics background wherein applications of eligible candidates have been invited from candidates having qualification 10 + 2 and above hailing from Revenue Village Kanganhall. The applications should reach this office within ten days from the date of publication of this notification in daily news papers..." A plain reading of the aforesaid notification makes is abundantly clear that it did not speak of any norm that would be applicable to the selection process to be undertaken pursuant thereto. On the other hand, it expressly spoke of upgradation of P/S Cheki-Kanganhall upto Upper Primary status alongwith two ReT posts with Science and Mathematics background and invited applications from eligible candidates having the qualification of 10+2 and above for the said two positions. On the other hand, it expressly spoke of upgradation of P/S Cheki-Kanganhall upto Upper Primary status alongwith two ReT posts with Science and Mathematics background and invited applications from eligible candidates having the qualification of 10+2 and above for the said two positions. Once the advertisement notice did not speak of any particular norm to be applied, it does not confer any privilege, muchless a right, upon a competing candidate to ask for application of a particular norm to his case, especially so when the norm sought to be applied has been held to be irrelevant to the basic and avowed object of the scheme under which such appointments are made. 9. Mr. Allaudin, learned Government counsel, in this connection, has referred to and relied upon a decision of the Division Bench of this Court in Javeed Ahmad Khanday v. State of J&K & ors., 2012 (3) JKJ 594 . In the said judgment, the Division Bench has exhaustively and elaborately dealt with the aims and objects of the Sarva Siksha Abhiyan. I deem it appropriate to quote hereunder the relevant paragraphs of the judgment: "6. Sarva Siksha 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, a realty. The Programme is implemented in partnership with the State Government. In the State of Jammu and Kashmir, the Programme succeeded Rehbar-e-Taleem or 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. 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 or 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. In the said back ground a candidate having highest qualification in the respective disciplines i.e. Mathematics or 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 or 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 or Science at Graduation level is to be given preference over a candidate having Mathematics or 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 or Science. 9. The 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, noticed in Kounser Ashraf v. State and Others 2012 (1) JKJ [HC] 111. It would be profitable to extract the two communications: (I) Government of Jammu and Kashmir Director 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. M.Sc/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 maintained at (C) the comparative at the PG level is to be considered for the determination of the merit. * MSc/MA (Math), (for situation A) * BSc/BA (Math, (for situation B) For the situation maintained at (C) the comparative 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 Dt. 07.08.2009 Subject:- Determination of qualification / merit for engagement of ReTs. Ref:- Director School Education, Kashmir letter No. DSEK/T/Legal/236-Misc/3926 dated 22.07.2009 and 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 Resources Development, Department of School Education and 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 /Mathematic subjects will have to be given preference. Accordingly, in the above referred three cases: 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 candidates shall have priority over the candidate having MA (Education). Yours faithfully, Additional Secretary to Government, Education Department. 10. In the case in hand the appellants have Mathematics at 10+2 level while as the respondents have Mathematics at the Graduation level. The respondents therefore have an edge over the appellants and have been rightly selected for the advertised posts. The B. Ed degree to the credit of appellants does not brighten up their chances as against the respondents for the simple reason that the degree loses its significance in view of the higher qualification in Mathematics to the credit of the respondents. The professional degree like B.Ed or M.Ed is to have relevance only where the competing candidates have Mathematics or Science at the same level. To illustrate, if two candidates with M.Sc Mathematics or Science aspire for a Rehbar-e-Taleem position and one of them has also B.Ed. degree to his credit, the candidate with M.Sc, and B.Ed degree is to have edge over the candidate with M.Sc degree. To illustrate, if two candidates with M.Sc Mathematics or Science aspire for a Rehbar-e-Taleem position and one of them has also B.Ed. degree to his credit, the candidate with M.Sc, and B.Ed degree is to have edge over the candidate with M.Sc degree. The reliance on Govt. Order no. 1583-Edu of 2003 dated 01.10.2003, is grossly misplaced for the reason that the order was made when SSA Scheme was yet to be revised and there was no requirement of filling up the available Rehbar-e-Taleem positions from the candidates having Mathematics and Science educational background." 10. Given the factual background detailed out, and the law laid down, in the aforesaid judgment, the contention raised by learned counsel for petitioner that the selection was to be held in accordance with a norm whereby higher qualification in subjects other than Mathematics or Science was to be given weightage is misplaced. Reference to the decision in SWP No. 171/2009, Rayees Ahmad Dar v. State, rendered on 10.04.2009 and mentioned in the communication dated 20.04.2009 addressed by Directorate of School Education to the Chief Education Officer, Anantnag, is insignificant and irrelevant in view of the subsequent judgments rendered on the issue. It is also not a case where the norms of selection have been changed midstream. As mentioned above, from the communication dated 28.03.2012 addressed by the Additional Secretary to Government, School Education to the Director, School Education, Srinagar, relied upon by the learned counsel for the petitioner, it becomes axiomatic that a Coordinate Bench of this Court in SWP No. 1988/2009 titled Feroz Ahmad Parray v. State of J&K & ors., had decided the issue on 12.04.2011, i.e., much earlier than the issuance of the advertisement notice in the instant case. The Letters Patent Appeal filed in that case, as per the said communication, too, had been dismissed. Therefore, it cannot lie in the mouth of the petitioner that there was any other norm applicable at the time of issue of the advertisement notice, or that the candidates had not to be subject to the norm as enunciated by the judgment dated 12.04.2011 rendered by a Coordinate Bench of this Court in Feroz Ahmad Parray v. State of J&K (supra). 11. In view of the above, there is no merit in this petition. It deserves to be dismissed. 12. Dismissed alongwith the connected CMPs. Interim direction, if any, subsisting shall stand vacated. 11. In view of the above, there is no merit in this petition. It deserves to be dismissed. 12. Dismissed alongwith the connected CMPs. Interim direction, if any, subsisting shall stand vacated. No order, however, as to costs.