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2013 DIGILAW 75 (JK)

Hilal Ahmad Bhat v. State & Ors.

2013-02-04

J.P.SINGH, MUZAFFAR HUSSAIN ATTAR

body2013
Muzaffar Hussain Attar, J.:-- Two posts of Rehbar-i-Taleem (ReTs) with mathematics and science background, became available in the upgraded Primary School, Gund Mam Dar, Beeru, Badgam. In order to supply the vacancies, Advertisement Notifica­tion was issued by the official respon­dents inviting applications from the residents of revenue village Gund Mam Dar. The minimum prescribed qualifi­cation was 10+2 with mathematics and science background. The writ peti­tioner -- appellant herein as also the private respondent No. 5 responded to the said Notification. Respondent No. 5 was selected for being appointed on the post of ReT with science background as he was possessed of 10+2 and was also a graduate. The appellant challenged the selection of the respondent No. 5 by medium of SWP 281/2011, which was dismissed by the learned Single Judge vide its judgment dated 06-11-2012 on the premise that respondent No. 5, be­sides having eligibility qualification of 10+2 was a science graduate, thus, pos­sessed of superior merit than that of the appellant, who was only having qualification of 10+2. It is this judg­ment, which is called in question in this LPA. 2. Learned counsel for the appellant submitted that the appellant is, admit­tedly, possessed of superior merit at 10+2 level than that of the private re­spondent. He submitted that the pri­vate respondent is an Arts graduate and not a. Science graduate. Learned coun­sel further submitted that since the vacancy to be supplied was subject spe­cific, viz. the candidate was required to have academic qualification in sci­ence subjects and since the respondent No. 5 was not a science graduate and in view of the superior merit of the appellant at 10+2 level, it was he (ap­pellant), who was to be selected/en­gaged as ReT. Learned counsel further submitted that the impugned judgment deserves to be set aside and the writ petition requires to be allowed. 3. Mr. Naik, learned AAG, appearing for official respondents, submitted that the private respondent is not a Science graduate but an Arts graduate. He also admitted that the appellant is pos­sessed of more merit than the private respondent at 10+2 level. He submit­ted further that on a mistaken notion, the writ Court was informed that the private respondent is a Science gradu­ate and it is for this reason that the writ petition has been dismissed. He also admitted that the appellant is pos­sessed of more merit than the private respondent at 10+2 level. He submit­ted further that on a mistaken notion, the writ Court was informed that the private respondent is a Science gradu­ate and it is for this reason that the writ petition has been dismissed. Learned counsel submitted that it has been the consistent view taken by this Court that when a post required to be filled up is subject specific, then the higher qualification has to be in the same subject and higher qualification in any other subject will not be consid­ered. Learned counsel, accordingly, supported the claim of the appellant -writ petitioner. 4. Mr. Nisar Ahmad, learned counsel for the private respondent, though, ad­mitted that at 10+2 level, the appellant is possessed of superior merit than that of the private respondent yet he stated that the appeal would require to be dismissed as the private respondent is a graduate, thus, possessed of su­perior merit than that of the appellant -- writ petitioner. Learned counsel also submitted that in view of the govern­ment order No. 1503-Edu of 2003 dated 01.10.2003, the B.A Arts qualification of the respondent No. 5, was to be con­sidered by the official respondents and it is for this reason that the said re­spondent was selected and engaged as ReT. Learned counsel referred to the Division Bench judgment of this Court dated 04-08-2011 passed in LPA 117/ 2011 titled Afroza Jan versus Feroz Ahmad Parray and others and submit­ted that the claim of the private respon­dent in respect of his graduation cer­tificate has to be accepted in view of the law laid down by the said judgment. Learned counsel, accordingly, prayed for dismissal of the appeal. 5. The respondent No. 5 at paragraph (3) of his objections filed against the writ petition has admitted that he has secured 255/600 marks at 10+2 level (Science) whereas the writ petitioner has secured 413/750 marks at 10+2 level (Science). The private respondent has further stated in the same para­graph that he is a graduate in Arts and has secured 819/1800 marks. In view of the admission of the private respon­dent No. 5 in his objections, it becomes writ large on the face of the record that the appellant is possessed of superior merit than that of the private respon­dent at 10+2 level. In view of the admission of the private respon­dent No. 5 in his objections, it becomes writ large on the face of the record that the appellant is possessed of superior merit than that of the private respon­dent at 10+2 level. Whether any credence can be given to a degree of gradu­ation in Arts subjects has to be ascer­tained in the facts of this case and in view of the stand of the Government. 6. The Commissioner Secretary to Govt., Department of School Education, in her affidavit filed on 18.10.2011, has stated that Rehbar-i-Taleem Scheme (RTS), which was launched vide Gov­ernment order No. 396-Edu of 2000 dated 28.04.2000, was stopped with immediate effect vide Govt. order No. 1670-Edu of 2003 dated 24.11.2003 and a centrally sponsored scheme called Sarva Shiksha Abhiyan Scheme (SSA) was launched. It is also stated in the said affidavit that in the SSA Scheme, the mode and pattern of RTS was adopted for filling up of the posts in the new Primary Schools and upgraded Pri­mary Schools. 7. The SSA scheme was amended in April 2008 and it was provided that from amongst every three posts, two posts must be filled up from amongst the can­didates, who are having science and mathematics background. The State Government, accordingly, issued in­structions to all the concerned authori­ties for filling up the posts created un­der SSA scheme in the aforementioned manner. The Government order No. 1503-Edu of 2003 dated 01-10-2003 pro­vided for giving of weightage to the qualification possessed by a candidate over and above the 10+2 qualification. The purpose of having a subject spe­cific teacher would be defeated in case a candidate having higher qualification in different subject is selected. A can­didate having higher qualification in Arts subject would not make any dif­ference to the students, who are to be taught science or mathematics sub­jects. Since the selection/engage­ment is to be made on the basis of re­spective merit of the competing candi­dates, so a higher qualification in a subject other than science and math­ematics is to be excluded and the com­parative merit of the competing candi­dates is to be determined on the basis of their qualifications in science and mathematics subjects respectively. Since the selection/engage­ment is to be made on the basis of re­spective merit of the competing candi­dates, so a higher qualification in a subject other than science and math­ematics is to be excluded and the com­parative merit of the competing candi­dates is to be determined on the basis of their qualifications in science and mathematics subjects respectively. The Government order No. 1503-Eduof 2003 dated 01.10.2003, on which whole hog reliance was placed by the learned counsel for the private respondent, will not change the fate of the case in his favour, in as much as, the said Gov­ernment order is to be read and inter­preted in a manner which would ad­vance the cause of amendment intro­duced in the SSA scheme in 2008, where-under, as already stated, it is specifically provided that from amongst three posts of teachers, one post with science background and one with mathematics background shall be filled up. The Government order of 2003 aforementioned provides that the higher qualifications have to be con­sidered. When, in the advertisement notification, it is specifically stated that one post with science and one with mathematics background is to be filled up, then a candidate's higher qualifi­cation has to synchronize with the tone and tenor of the said notification, which otherwise would mean that higher qualification has to be in the same subject. The argument of the learned counsel for the private respon­dent that even the higher qualification in Arts subjects have to be considered, cannot be, thus, accepted. 8. Learned counsel for the appellant as also learned counsel for the official respondents relied upon the judgment of the Division Bench of this Court passed in LPA 117/2011. Paragraph (12) of the said judgment does not advance the cause of the private respondent No. 5. 9. For our above stated reasons, we allow this Appeal in the following man­ner: The impugned judgment dated 06-11-2012 passed in SWP 281/2011 is set aside; SWP 281/2011 is allowed and order of selection/engagement of respon­dent No. 5 is quashed. Consequently, official respondents are directed to select and appoint the appellant -writ petitioner as Rehbar-i-Taleem in the upgraded Primary School, Gund Mam Dar, Beeru, Badgam, forthwith. 10. Disposed of along with connected CMPs. __________