Ashaq Hussain Bhat and Others vs State and Others

This appeal is directed against the judgment and order dated 17th May, 2010 of learned Single Judge passed in a bunch of writ petitions bearing

SWP Mos. 1457/2008, 1414/2008, 424/2009 and 965/2009. Petitioners' in SWP No. 1457/2008 are aggrieved of the said judgment.

Brief facts are as under:

A notification was published in daily newspaper inviting applications for engagement as ReTs in various schools. The Appellants in the present

appeal also applied for the said posts. The selection was made in terms of the rules and also in light of the Government order No. 278/07-Edu

dated 24.09.2007 under which preference was given to the candidates with Science and Maths background.

The present matter pertains to the Primary School Haranjguro and Primary School Danas. Private Respondent Nos. 6 & 7, who got selected in

the said process of selection are the candidates with science and math background. The Petitioners have been dropped. The reason given by the

official Respondents for not selecting them is that the Petitioners are not with science and math background as such, could not be considered and

selected in the process. A writ petition was filed by the Petitioners before this Court which alongwith other writ petitions was taken up for

consideration and ultimately dismissed vide order dated 17th May, 2010, impugned in the present appeal. In respect of the petition filed by the

present Appellants, learned Single Judge observed as under-

...In SWP 1457/2008, communication bearing No. EDU/NC/SE/278/07 dated 24.09.2008 (annexure p-9), issued by Special Secretary lo

Government, Education Department, has been called in question on the ground that the said authority had no jurisdiction to issue such

communication. The submission so made pales into insignificance for the reasons that the said authority has not taken any decision on its own nor

has it passed any order. The said authority has only conveyed to the subordinate authority as to what is contained in the amended SSA scheme

which has become effective from 01.04.2008, therefore, no fault can be found with the said communication. It is, in fact, the SSA scheme which is

to be enforced. The communication does not add or delete anything from the scheme.

Appellants are aggrieved of the said order. Various grounds have been taken to assail the judgment which are contained in para 7(a) to (e) of

the appeal.

Heard. We have considered the matter.

Mr. G.A. Lone, learned Counsel for the Appellants, has strenuously urged that the learned Single Judge has not properly appreciated the

matter. Learned writ court has not taken into account and consideration various pleas raised by the Petitioners in their petition. He submits that in

view of the stand taken by the Respondents in their reply, the court should have considered meaning of word 'background' used in the Government

order No. 278/07-Edu dated 24.09.2007. The court should have also considered how preference could be given to the candidates with science

and math background. Learned Counsel has also raised the issue whether the Government order under which the scheme is formulated and

approved by the Government can be repealed or altered by another order issued by a subordinate authority. The Government order No. 396 Edu

of 2000 dated 28.4.2000 could not, according to the learned Counsel, be repealed or superseded by the Order No. 278/07-Edu dated

24.9.2007. Learned Counsel has also referred to various observations made in the judgment impugned and submitted that the learned writ court

has not discussed all the issues raised in the petition.

On going through the well reasoned order of the learned Single Judge, we find no merit in the submissions of Mr. Lone. Learned writ court has

duly considered the expression 'background' occurring in SRO-208. The court has found that in terms of the Government orders science and math

specific educational background persons are alone to be considered for the post of ReT underlying the said scheme in upper primary schools. The

expression 'background' occurring in the Government order has, according to the learned Single Judge, to be considered in light of educational

qualification provided for the post. The expression 'background' in the fact situation of the scheme, has to be read in conjunction with the

educational qualification provided for seeking appointment to the post of teacher which is 10+2. The court has in this behalf observed as under:

...It appears that the purpose underlying the amendment is to provide science and math teachers to the upgraded primary schools. The educational

qualification is provided as 10+2. This qualification is also provided by the State Government under the J&K Education Subordinate Recruitment

Rules of 2008 notified vide SRO 208. Before these rule the rules of 1979 were occupying the field. In both these rules, the eligibility qualification

for appointment to the post of teacher is 10+2. The expression used in the amendment introduced in the SSA scheme as also in the advertisement

notifications that a candidate must be having science and math specific educational background, has to be, thus, read in conjunction with the basis

statutory qualification provided for the post. The teachers appointed under ReT scheme as also under the SSA scheme are being, ultimately,

absorbed as general line teachers in the Government service. The employer, in order to fulfill its commitment to provide education to the children,

has deemed it necessary from 01.04.2008 to have teachers with science and math specific educational background for new upper primary schools

and the same has to be considered in the backdrop of providing education to the children in these important streams. The science and math

specific educational background persons are, thus, alone to be considered for effectuating the purpose underlying the said scheme in upper primary

schools. The expression ""background"" occurring therein has to be considered in the light of educational qualification provided for the said post. The

expression ""background"" in the fact situation of the SSA scheme, has to be read in conjunction with the educational qualification provided for

seeking appointment to the post of teacher which is 10+2. A candidate who seeks appointment as teacher under the SSA scheme in the new

upper primary schools has to, thus, necessarily have the academic qualification of 10 + 2 with science and math. The purpose underlying the SSA

scheme can be achieved only by effectuating the same on ground level. The State Government and its authorities are duty bound to follow the

mandate contained in the SSA scheme. In view of this finding, the Petitioners, who have, admittedly, qualified 10+2 in arts stream, are not, thus,

eligible on the basis of amended SSA scheme and advertisement notifications.

We find a very just and proper stand has been taken by the learned Single Judge. We find that since ReTs appointed under the scheme are

ultimately absorbed as general line teachers in the Government service, the science and math educational background for the post is required and

has therefore, been properly prescribed in the Government order Candidate seeking appointment under the scheme in the new upper primary

schools has thus, necessarily to be with minimum academic qualification of 10+2 with science and math background. Any person with such

educational qualification and background has to be given preference over the other candidates who do not have such a background.

We also find that the present case is not a case where the Government order has superseded or altered the main scheme. It only provides

educational qualifications for upper primary schools and this could have validly been done by the Respondents. We, therefore, find due reasons in

the learned Single Judge's order in directing dismissal of SWP No. 1457/2008.

In these circumstances, we do not find any merit in the present appeal, which is hereby dismissed.