Jammu & Kashmir High Court - Srinagar Bench
Mir Jehangir vs State Of J&K And Ors on 5 August, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
LPA No. 101 of 2013
IA No. 145 of 2013
Mir Jehangir
Petitioners
State of J&K and ors.
Respondents
!Mr. Zahoor Ahmad Shah, Advocate
^Mr. S. A. Naik, Advocate
Mr. Z. A. Qureshi, Advocate
Honble Mr. Justice M. M. Kumar, Chief Justice
Honble Mr. Justice Dhiraj Singh Thakur, Judge
Date: 05/08/2013
: J U D G M E N T :
M. M. Kumar, CJ
1. The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 02.05.2013 passed by a learned Single Judge of this Court, allowing SWP no. 474/2010 relatable to the instant appeal.
2. The selection and appointment of appellant- Mir Jehangir on the position of Rehbar-e-Taleem in the upgraded Primary School, Dogripora, has been set aside. The basic reason for setting aside the appointment is that the appellant had the qualification of 10+2 with science like the writ petitioner- respondent no.5- Wasim Ahmad Mir. The appellant had secured 45.05% marks in 10+2 whereas the writ petitioner- respondent no.5 had secured 76.53% marks. However, on the basis of B.A qualification acquired by the appellant he was selected and was considered more meritorious then the writ petitioner- respondent no.5. The Writ Court found that the B.A degree acquired by the appellant would not be relevant because it is not in science stream. The view of the Writ Court is explicit from the following paras of the impugned judgment:-
The respondents justified selection of respondent no.5 on the ground that in addition to 10+2 with Science, he had Bachelors Degree in Arts to his credit. It is well settled that in case of selection against ReT position in Science or Math stream, merit at 10+2 level in the concerned subject would be decisive unless a candidate has done Graduation or acquired higher qualification in Science or Math stream, as the case may be. Respondent no.5, obviously, could not get any extra weightage for B. A. Degree to his credit and had no right to be selected against advertised position i.e. ReT in Science Stream in upgraded primary School Dogripora, Dangiwacha. Needless to point out that petitioner has secured 76.53% marks at 10+2 level as against 45.05% secured by respondent no.5.
Learned counsel for official respondents is fair enough to admit that petitioner is more meritorious as against respondent no.5 and deserves to be considered for selection.
In the above background, petition merits to be accepted and is, accordingly, allowed and selection and engagement, if any, pursuant to such selection, of respondent no.5, impugned in the petition, is set- aside. Respondents 1 to 4 are, accordingly, directed to accord consideration to the petitioners selection against advertised position i.e. ReT Science Stream in upgraded Primary School Dogripora in accordance with rules.
3. We have heard learned counsel for the parties at a considerable length and have perused the record.
4. It is admitted case of the parties that the Zonal Education officer, Dangiwacha (Baramulla) invited applications for filling up two posts of ReT in newly upgraded Primary School, Dogripora vide advertisement dated 19.12.2009. A panel was framed and notified selecting two candidates in each of the streams, namely, Math and Science. The name of the appellant figured in the science stream and thereafter he was appointed. It is also conceded fact that at 10+2 level the writ petitioner- respondent no.5 has secured 76.53% marks whereas the appellant, who was selected, has secured 45.05% marks. It has also not been disputed that the B.A degree acquired by the appellant is not in the science stream. It is well settled by a catena of judgments of this Court that in order to succeed for consideration of a higher qualification for selection against the position of Rehbar-e-Taleem the higher qualification has to be in the same stream for which the position is advertised. Therefore, the B.A degree acquired by the appellant should not be relevant consideration allowing him to steal march over more meritorious candidates, like the writ petitioner- respondent no.5. For the aforesaid view we place reliance on a recent Division bench judgment of this Court rendered in case of Javeed Ahmad Khanday v. State of J&K and ors (LPA no. 114/2010 decided on 03.07.2012).
5. Mr. Zahoor A. Shah, learned counsel for the appellant has repeatedly made submissions that the writ petitioner-respondent no.5 did not challenge the appointment letter of the appellant. It may be true that there was no specific challenge to the appointment letter but that by itself would not make any difference once it was found that the appellant was not entitled to any preference on the basis of B.A Degree acquired by him in an irrelevant stream. Moreover a copy of the appointment order is never communicated to other candidates who may not have been selected. Even the selected candidates are not served with a copy of the appointment letter. Such an argument would not cut any ice and we have no hesitation in rejecting the same.
6. As a sequel to the above discussion, it is patent that the view taken by the learned Writ Court does not suffer from any legal infirmity warranting interference in this jurisdiction.
7. The appeal thus does not warrant admission and is accordingly dismissed along with connected application.
(Dhiraj Singh Thakur) (M. M. Kumar)
Judge Chief Justice
Srinagar
05.08.2013
Anil Raina, Secy