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J&K High Court · body

2017 DIGILAW 481 (JK)

Bhagwan Singh v. State

2017-07-28

B.S.WALIA

body2017
JUDGMENT : 1. Advertisement (Annexure-B) dated 18.04.2009 was issued for two posts of RET for GPS Seri Kotla, District Kathua. Condition No.4 stipulated that the applicant must possesses minimum qualification of 10+2 or above in any stream for RET in PS/ZRP/CRP and 10+2 or above with math/science stream for RET in UPS. 2. Learned counsel contends that the requirement for the post in question was 10+2 or above with math/science stream. Consequently, candidates possessing either math or science stream were eligible for appointment but the petitioner despite possessing the qualification of science stream was not appointed and only one candidate at Serial No.1 of the Select list (Annexure-E) having qualification of math stream was appointed as RET. Learned counsel further contends that instead of appointing the petitioner against the 2nd post, the respondents issued another Advertisement (Annexure-F) for the 2nd post of RET as had not been filled up in terms of Advertisement (Annexure-B). 3. Grievance of the petitioner is that the qualification for the post of RET was changed in Advertisement (Annexure-F) by providing that 10+2 and above with Science (Bio) stream were eligible for the post of RET (Science) in UPS. In other words, challenge is to the sub-classification of Science Stream restricting eligibility to a person possessing Science Stream with biology. 4. Learned AAG contends that Advertisement (Annexure-B) was dated 18.04.2009 whereas norms for recruitment to the post of RET had been revised under the orders of MHRD with effect from 01.04.2008 and as per the revised norms, one teacher with math background and one teacher with science specific educational background alone could be appointed in Upper Primary School (Middle School). 5. Relevant extract of Letter dated 22.06.2009 referred to by learned AAG is reproduced hereunder :- “Government of Jammu and Kashmir, Education Department, Civil Sectt. The Director, School Education, Jammu. No:-Edu/PS/Secy/11/2009 Dated:-22-06-2009 Subject:- Regarding merit to be adopted in RET selection after adopting Math and Science subject in upgraded Middle Schools(UPS) under SSA Scheme. Madam, Kindly refer to your letter No.DSEJ/RET/593 and dated 15.06.2009 regarding the subject cited above. SSA is a Centrally sponsored scheme and the various activities/interventions including opening/upgradation of primary schools have to be carried out as per the directions of the MHRD, Deptt. Of School Education and Literacy. In case of a conflict between any guidelines issued by the State and the MHRD the directions of MHRD shall prevail. MHRD, Deptt. SSA is a Centrally sponsored scheme and the various activities/interventions including opening/upgradation of primary schools have to be carried out as per the directions of the MHRD, Deptt. Of School Education and Literacy. In case of a conflict between any guidelines issued by the State and the MHRD the directions of MHRD shall prevail. MHRD, Deptt. Of School Education & Literacy has amended the framework for implementation of SSA w.e.f. 1.4.2008 and revised norms for engagement of teachers for upper primary schools (Middle Schools). Under the revised norms one teacher has to be with Mathematics and one teacher with Science specific educational background. Wherever there is a need for additional teachers at upper primary level, to maintain the pupil teacher ratio of 40:1, the additional teachers sanctioned under SSA will need to be provided/recruited from Science/Mathematics education background. The States have also to deploy the existing Science/Math qualified teachers to cover as many as upper primary schools as possible. The amendment has been brought about with the clear objective of taking care of the academic interests of the students studying in upper primary classes where the courses is prescribed for Science and Mathematics are not easy to be taught. In view of the above revised norms for engagement of teachers in upper primary schools, Science and Math teachers with higher scientific/mathematics qualification have to be given priority in keeping with the spirit behind the revised rule. Yours faithfully, Secretary to Government Education Department” 6. Learned AAG has also referred to note in the tentative panel for engagement of RETs in UPS/NPS Seri Kotla in Revenue Village/Panchayat of Zone Kathua i.e. Annexure-E wherein it is mentioned that candidate in medical stream was not available in the village. Elaborating further, learned AAG contended that medical stream implied possession of qualification in subjects of Physics, Chemistry, Botany & Zoology whereas the petitioner was having qualification of science stream only in the subjects of Math, Chemistry and Physics. In other words, the petitioner had undertaken the non-medical stream and not the medical stream so as to possess the requisite subjects in Science needed for teaching middle classes in the Upper Primary School (Middle School). 7. In other words, the petitioner had undertaken the non-medical stream and not the medical stream so as to possess the requisite subjects in Science needed for teaching middle classes in the Upper Primary School (Middle School). 7. Learned AAG further contended that SSA was a Centrally sponsored scheme and various activities/interventions including opening/up-gradation of primary Schools had to be carried out as per the directions of MHRD, Department of School Education and Literacy and further that in case of a conflict between any guidelines issued by the State and the MHRD the directions of MHRD were to prevail. Learned AAG contended that once MHRD Department had amended the framework for implementation of SSA w.e.f. 01.04.2008 and as per the revised norms, one teacher had to be with Mathematics and one teacher with Science specific education background, no challenge could be laid to the action of the official respondents in re-advertising the post vide Annexure-F and providing for the qualification of Science with Biology. 8. I have considered the submissions of learned counsel for the parties and am of the considered view that no doubt, the Advertisement (Annexure-B) stipulated that recruitment to the post of RET was to be made from amongst the candidates possessing Math/Science stream. However, the aforementioned Advertisement (Annexure-B) dated 18.04.2009 resulted in appointment of only one candidate to the post of RET in the math stream. The reasons for the same is that with effect from 01.04.2008, the norms for recruitment and appointment of RETs in Upper Primary School/Upgraded Upper Primary Schools/Middle Schools had been revised providing for engagement of RET with Math background and one RET with Science background. Besides as has been clarified by learned AAG, science stream implied possession of educational qualification of Physics, Chemistry, Biology i.e. Zoology & Botany whereas the petitioner possessed only the subject of Physics and Chemistry alongwith Math at the 10+2 level. 9. In the circumstances, once the norms itself were changed w.e.f. 01.04.2008 as is evident from Letter dated 22.06.2009 providing for recruitment of one RET from math stream and one RET from science stream and as per respondents requirement for science stream included subjects of Physics, Chemistry, Biology i.e., Zoology & Botany then no exception can be found to the action of the respondents in re-advertising the post vide Advertisement (Annexure-F) and stipulating the requirement of Biology in the science stream as per requirement. In fact, the right of the employer to choose the qualification which a candidate is required to possess for fulfilling the requirement of teaching is immune from challenge, unless and until it can be shown to be mala fide or based on extraneous consideration. Same is not the position here. 10. Learned AAG has clarified that since the requirement was for teaching the subject of science i.e., biology. Therefore, no exception can be found to the stipulation of requirement in Annexure-F as also of not having made the recruitment to the post of RET against the 2nd post in terms of Advertisement (Annexure-B), since no candidate was available in the science stream having subjects of Biology i.e., Zoology and Botany. 11. Learned counsel for the petitioner has contended that in fact, as per qualifications stipulated in Advertisement (Annexure-B), a person possessing math/science stream was eligible and the petitioner possessed the eligibility qualification of having science stream, therefore, there was no reason as to why the petitioner could not be appointed against the 2nd post. Further that, there was no rationale for stipulating requirement of subject of Biology for teaching. 12. I am unable to agree with the contention of learned counsel for the petitioner for in the absence of the petitioner having shown that there was no requirement for the respondents to appoint a teacher to teach Biology, the contention does not merit acceptance. It would have been a different position altogether, had it been shown that there was no requirement for teaching biology. However, as has been reiterated by the learned AAG, the stipulation of biology as a subject was on account of the requirement to teach Biology in Upper Primary School. 13. In the light of the position as noted above, there is no merit in the writ petition and the same is dismissed.