Jammu & Kashmir High Court - Srinagar Bench
Mohammad Syed Khan vs State And Ors on 18 September, 2017
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HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR
Case No: SWPs 1754/2013 & 1237/2013 Dated : 18th of Sept, 2017
MOHAMMAD SYED KHAN VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No
FOR THE PETITIONER/s : MR. B.A.MISRI
FOR THE RESPONDENT/s: . M/S. A.M.MIR, Dy.AG & MUFTI MERAJ-U-DIN
(M.K.HANJURA-J) 01/ This order will dispose of two writ petitions bearing NOs. SWP 1754/2013 & SWP 1237/2013, filed by the petitioner - Mohammad Syed Khan. In SWP No. 1754/2013, the petitioner seeks the issuance of a writ of Certiorari, for quashing the selection list published on 05-09-2013, in so far as it relates to the selection/engagement of respondent No.5 as Rahbar-i-Taleem (ReT) in Primary School Moriyan. In SWP No. 1237/2013, the petitioner craves the indulgence of this Court in issuing a writ of mandamus, to entertain his candidature for selection to the post of ReT in the said School.
02/ The petitioner has pleaded in his petitions that the respondent No.4, Zonal Education Officer, Boniyar, invited applications from the eligible candidates for filling up the post of ReT in the BPS, Moriyan, Boniyar. He belonged to the same area. He applied for the post of ReT within the period stipulated in the notification. However, the respondent No.4, did not entertain his application form. Aggrieved by the refusal to acknowledge and accept the application form, he filed a representation before the respondent 2 No. 3, Chief Education Officer, Baramulla, who, in turn, endorsed the same to the respondent No.4 for looking into the matter. He has further stated that despite instructions from the superiors, the respondent No.4, without any rhyme and reason, refused to entertain his application form.
03/ The petitioner has proceeded to state that thereafter he filed a representation before the Deputy Commissioner (DC), Baramulla, for the redressal of his grievances on the basis of his merit and eligibility. Vide his order dated 03-07-2013, the DC, Baramula, referred the case to respondent No.3 with the direction to enquire into the matter and take appropriate action. However, no action was taken in the matter.
04/ The petitioner has pleaded further that he was denied the opportunity to compete in the process of selection, though he did not suffer from any disability on account of merit, eligibility or habitation. His residential status has been authenticated by the Numberdar of the Village Education Committee. However, to his dismay, the respondent No.4, wrongfully and arbitrarily, refused to entertain his application. It is further contended in the writ petition that in order to protect the interest of the respondent No.5, who appears to be a candidate of choice for him, the respondent No.4 acknowledged the application forms of only four candidates and excluded him from the process of selection, though he was far ahead of them in terms of merit. Having miserably failed to attract the positive attention of the respondents for the redressal of his grievances, he (the petitioner) was constrained to file a writ petition
- SWP 1237/2013, wherein the Court, in terms of its order dated 10-07-2013, directed the respondents to accept his application and consider his case along with all other eligible candidates. It was 3 only on the intervention of the Court, that his application was entertained. However, his agony did not end here. The respondents, on 05-09-2013, published a tentative selection list in a daily news paper, wherein the respondent No.5 was shown to be selected as ReT teacher in the Primary School, Moriyan. He filed objections to the said list but the same were never considered by the respondents. They maintained the selection of the respondent No.5, though he was superior than him in the order of merit. He secured 52% marks at the graduation level as against 47% marks obtained by the respondent No.5 and that his pleadings are supported and substantiated by documentary proof attached to the writ petition. At the end, the petitioner has prayed that the writ petitions be allowed and the reliefs sought therein be granted in his favour.
05/ Reply has been filed by the respondent No.5, wherein he has pleaded that he fulfills the criteria laid down in the notification issued by the ZEO, Boniyar, dated 08-06-2013. He has further stated that he obtained 247 marks out of 600 marks (41.10%), whereas the petitioner has secured 243 marks out of 600 marks (40.5%). Therefore, compared to him, the petitioner is less meritorious and stands on a lower pedestal. It is further stated in the objections that the petitioner does not reside in the habitation zone of the village where the post of ReT fell vacant. The petitioner hails from Pathgran, Halqa Bimyar and not from Moriyan, Boniyar, as is evident from annexure (R4) attached to the objections, where he figures at S.No.64. The respondent No.5 has pleaded further that the proof of his habitation in the village, where the post had to be filled up, has been authenticated by various officials connected with the process of selection, such as, 4 Sarpanch, Member Village Education Committee and the Numberdar, vide their communication dated 13-06-2013. The petitioner has raised an unnecessary and unwarranted objection. It is further contended in the objections that a thorough enquiry has been conducted in the matter by the respondent No.4 and he has made it clear in his communication dated 27-09-2013, addressed to the respondent No.3, that the answering respondent No.5 belongs to the habitation where the vacancy had to be filled as per the advertisement notice. The respondent No.4 visited the spot personally and found that the answering respondent No. 5 and not the petitioner belongs to the habitation, Moriyan. The respondent No.5 has, accordingly, prayed that the petitions of the petitioner be dismissed.
06/ Heard & considered.
07/ Vide Government order No. 296-Edu of 2000 dated 28-04-2000, the Government of J&K accorded sanction to the launch of the scheme running under the head "The scheme of Rehbar-i-Taleem". This scheme was floated with the object to promote the decentralized management of elementary education by seeking community participation and involvement ; to ensure accountability and responsiveness by a strong backup and supervision through the community ; and to operationalize effectively the schooling system at the grass root level. The scheme not only envisaged the provision of the services of teaching guides in the primary and middle schools that suffered from the paucity of the staff but it also made a provision to oversee and ensure the overall development of the personality of the children in their units and teens receiving knowledge at the basic level in the elementary schools. Drawing the teaching guides 5 from the local community, has the underlying object to secure the management of the schools through the locals and to check the incidence of drop-outs.
08/ In the petition at hand, a notification dated 22-05-2013, came to be issued by the ZEO, Boniyar, inviting applications on plain papers from the eligible candidates for filling up the vacancies under the ReT pattern as per the details contained therein. In Boniyar Zone, one vacancy had to be filled up from the habitation called Moriyan, for BPS Moriyan. The notification provided that the minimum qualification required for the post shall be 10+2. It was also stipulated in the notification that the applications should reach the office of the ZEO, Boniyar, within a period of 10 days from the date of the publication of the notification along with the documents as provided therein. The notification was published in the daily Kashmir Uzma, in its edition dated June, 08, 2013. 09/ The respondent No.5 responded to the notification and filed his application for appointment to the post of ReT. The petitioner sought the indulgence of the court in participating in the selection process and by order dated 10-07-2013, of this Court, he was permitted to do so. The CEO, Baramulla, vide his notification dated DIPK-6924 of 2013 dated 05-09-2013, attached to the petition as Annexure K-19, declared that the respondent No.5 has emerged to be a prospective candidate for engagement as ReT in Primary School, Moriyan. It was also stipulated in the notification that any person aggrieved with his/her merit status may represent in writing, with documentary evidence before the concerned ZEO within 07 days from the date of the publication of the notification, whereafter no representation will be entertained. The petitioner filed his objections before the ZEO concerned, stating therein that 6 the selection of one Syed Mohammad Shafi - respondent No.5 herein, has been made to his detriment as he (the petitioner) also belongs to the same village in which the respondent No.5 resides. Since his representation was not considered, he filed two writ petitions, seeking the reliefs as detailed herein before in this order. 10/ It needs must be said that for the purpose of determining the eligibility of candidates for appointment as ReTs, the basic qualification is 10+2. However, the competent authority, in April, 2008, made a policy decision for appointment/engagement of ReTs in Primary Schools/Upper Primary Schools and decided to lay stress on engagement/appointment of ReTs from amongst the eligible candidates having Mathematics and Science background. This change was effectuated with the underlying object to promote literacy and to improve the standard of the functioning of the schools. The scheme emphasized the need to appoint an ReT having the background of Mathematics and Science, teaching either at the primary or upper primary level. It spelled out the need to give preference to a candidate with Mathematics or Science at the graduation level and Mathematics and Science at the level of 10+2.
11/ In the present case, the petitioner passed his 10+2 examination in Bi-annual 2011, with General English, Economics, Political Science and Urdu, as his subjects. This is brought to the fore from Annexure A-7, attached to one of the petitions, which is in the form of the marks certificate of Higher Secondary Part II, issued by the State Board of School Education. He obtained 243 marks out of 600 marks. The respondent No.5, on the other hand, completed his Higher Secondary Part, II, examination with General English, Biology, Chemistry and Physics as his subjects.
7This is evident from Annexure R-1, i.e., his marks certificate, attached to the objections. He secured 247 marks out of 600 marks. He completed his B.Sc. final examination securing 846 marks out of 1800 marks in the subjects General English, Zoology, Chemistry and Botany. The petitioner, on the other hand, completed his graduation from the Indira Gandhi National Open University (IGNOU) in the Arts stream. He secured 623.45 marks out of 1200 marks with an overall percentage of 51.75. 12/ Taking into consideration the above, the respondent No.5 steals a march over the head of the petitioner, having an upper edge in terms of the percentage of marks obtained in 10+2 examination, which, as is repeated and reiterated here, is the basic qualification for the appointment/engagement of an ReT. Both, the petitioner and the respondent No.5, have completed their graduation but the fact of the matter is that the respondent No.5 has passed his graduation in the science stream. Indisputably, the respondent No.5 has more marks in the basic qualification than that of the petitioner and both of them being graduates, the engagement/appointment of the respondent No.5, cannot, under the circumstances, be assailed in any manner whatsoever. The petitioner cannot claim preference over the respondent No.5, who has passed his 10+2 examination and B.Sc. in the science stream and obtained more marks than him in 10+2.
13/ Assuming it for the sake of arguments that such preference to the candidates invited for appointment can be given only if the notification discerns such a need, still then the petitioner cannot succeed in his claim on the ground that he has a favourable margin in the order of merit at the graduation level and thus an extra weightage should be given to him in the mater of the determination 8 of his case. The term "extra weightage" denotes and conveys effective indulgence within the same scales. It specifies the grant of privilege and accord of importance and significance to the additional qualification by applying a fixed and a uniform standard. By the application of uniform standard, the higher qualification of the petitioner and the respondent NO.5 here in this case (both of whom are graduates), has to be treated on the same pedestal, irrespective of who has been meritorious at that level. The basic qualification for the post, that is 10+2 will govern the field in the matter of finding out who is at an advantageous position and it will satisfy the required intention of the rule. The aim, object and import of the Government order No. 1530-Edu of 2003 dated October, 01, 2003, is not to favour a person who has obtained higher marks at the graduation level in a case like the present one but the marks, obtained in the basic required qualification, will rule the roost. Such an argument is an argument in despair.
14/ Looking at the petitions of the petitioner from another perspective, the petitioner does not belong to the habitation Moriyan, for which the appointment/engagement of ReT had to be filled up in BPS, Moriyan. Annexure R-3, to the objections, which is a list of Household Survey of habitation Moriyan, Halqa Bimyar, issued by the village Guard, the Sarpanch, the Panch, Ward No.3, Halqa Boniyar, bears testimony to the fact that the respondent NO.5 belongs to the habitation Moriyan. The Numberdar of the village Boniyar, Mr. S.S.Lal, has also certified so. The petitioner, on the other hand, as gets revealed from annexure R-4, resides at Pathgram, Halqa Bimyar and not in the habitation Moriyan. The claim of the petitioner, therefore, appears 9 to be completely misconceived, in as much as, he does not belong to the habitation for which the engagement/appointment of ReT was notified and, therefore, does not satisfy the eligibility criteria, laid down for filling up the vacancy. The basic unit to determine the eligibility of a candidate under the scheme, among other things, is the village to which a person belongs and not the Halqa, which usually is a combination of more than one village. 15/ The cumulative effect of all that has been said and done above is that the petitioner fails in satisfying the Court that he has the higher merit than that of the respondent No.5 in terms of qualification or that he resides in the village for which the vacancy had to be filled up. Therefore, the petitions of the petitioner merit dismissal and are, accordingly, dismissed along with all connected IAs. Interim direction, if any, shall stand vacated. TARIQ Mota SRINAGAR.
18-09-2017 (M.K.HANJURA)
JUDGE
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