Mohd. Latief Bhat vs State of Jammu & Kashmir and Others

Muzaffar Hussain Attar, J.—The State Government in exercise of its Constitutional power under Article 162 of Constitution of India by

issuance of Government Order No. 396-Edu of 2000 dated 28-04-2000, launched a Scheme called as Rehbar-e-Taleem Scheme (""ReT

Scheme""). The ReT Scheme provided for making engagement to the post of teaching guides from within local area viz. village in the case the

school was located in village and ward in the case the school was located in the urban area and all eligible candidates from the said local areas

would be eligible for seeking consideration for being selected and engaged as ReTs. The said scheme has since been wound up.

The Central Government in pursuance of achieving its goal for providing the education to every child has launched the scheme called Sarva

Shiksha Abhiyan Scheme (for short ""SSA Scheme""). Under the said scheme, the major share of funds is being provided by the Central

Government to the State Government. The SSA Scheme enables the State Government to create the new Primary Schools and Upgrade Primary

Schools to the level of Middle Schools (Upper Primary Schools). An amendment was made in the SSA Scheme which has come into effect from

01.04.2008 and is noticed as under:

Norms for interventions under SSA

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Intervention Norm

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Teacher a. One teacher for every 40 children and upper primary.

b. At least two teachers in a primary School.

c. One teacher for every class in the upper primary

d. Of the three teachers sanctioned under SSA for every new upper

primary school, one each will need to be a teacher with

mathematics and science specific educational background. The

teacher recruitment will be as per State Government's norms.

e. 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 educational

background.

f. States will have to commit that they will redeploy existing

Science/mathematics qualified teachers to cover as many upper

primary schools as possible.

(Ref: F. 2-3/2005-EE.3 dated 22nd February, 2008 for items (d) to

(f) this amendment takes effect from 01.04.2008.

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It is provided that from the three posts of Teachers sanctioned under SSA Scheme for every new Upper Primary School, each will need to be a

Teacher with Mathematics and Science specific Education background. It is further provided that the Teachers recruitment will be as per

Government norms.

The subject matter of dispute in this case is notification No. ZEO/HCG/3811/2009 dated 27.02.2009. Through this notification, it was brought

to the notice of all concerned that sanction has been accorded to the upgradation of Primary School, Khokerhama, Lakhdipora and Tangam Zone

H.C. Gam to the level of Middle Schools. It was also notified that department is going to engage teachers in each school under ReT pattern and in

sequel thereto the unemployed person having qualification 10+2 and above belonging to the revenue villages were directed to submit their

application on plain paper along with testimonials within ten days in the office of Zonal Education Officer, H. C. Gam from the date of publication

of the notification in newspaper.

Petitioner as also private Respondents responded to the said notification and a panel of eligible candidates for engagement in Middle School H.

C. Gam was framed. Petitioner figured at Serial No. 1 of the said panel as he is possessed of education qualification 10+2 (in Science), B.A. and

B.Ed. whereas Respondent No. 5 figured at Serial No. 4 as he is possessed of academic qualification B. Sc. The proposed tentative selection list

of candidates for engagements as ReTs in the District Kulgam under SSA Scheme 2008-09 was issued, Respondent No. 5 figured at Serial No. 8

of the said proposed tentative list, proposed to be engaged as Science teacher.

This petition is filed challenging the said notification to the extent of empanelling Respondent No. 5 as proposed candidate for engagement as

ReT under SSA Scheme for the post of Science teacher.

On notice issued in the writ petition, official Respondents as well as private Respondent have filed reply affidavit/objections.

Heard learned Counsel for parties. Considered the matter.

Mr. Jahangir, learned Counsel for Petitioner while referring to Government Order No. 1503-Edu of 2003 dated 01.10.2003 submitted that in

view of the criterion fixed by the Government, Petitioner, who is possessed of B.Ed. qualification, is to be considered and engaged as ReT under

SSA Scheme for the reason that in the tentative selection list candidates are only possessed of Graduation Degree whereas Petitioner is possessed

of additional qualification of B.Ed. Learned Counsel while referring to paragraph 4 of the aforementioned Government Order submitted that in

view of norms fixed by the Government Order, in between two competing candidates, it is the Petitioner who is to be selected and engaged as

teacher under SSA Scheme. Learned Counsel also submitted that a communication issued by Director School Education, Kashmir placed on

record by private Respondents along with reply affidavit cannot be considered for the disposal of the case on the ground that the said

communication has been issued after the selection process was initiated by issuance of advertisement notification in this case. Learned Counsel

accordingly submitted that though Director has clarified the position that a person being possessed of B. Sc./B. A (Math) will be appointed as

teacher under SSA Scheme when pitted against a candidate who is possessed of 10+2 (in Math or Science) and is also Graduate plus B.Ed., but

norms having been fixed after initiation of selection process in this particular case, these norms cannot be applied for the selection of teacher in the

present case. Learned Counsel has also produced a zerox copy of circular dated 15.01.2010 issued by Secretary to Government, Education

Government along with a zerox copy of relevant page of SSA Scheme to substantiate his argument that for making appointment in respect of Math

or Science teacher same would depend upon the requirement in that particular School. Learned Counsel thus submitted that unless it is shown that

there is requirement of engaging a Science teacher in the Middle School, Lakhdipora, Petitioner cannot be excluded from consideration and in

view of B.Ed. qualification possessed by him, he deserves to be. engaged as teacher under SSA Scheme in the aforementioned School. Zeorx

copies of the relevant page of SSA Scheme and circular are taken on record.

Mr. Kawoosa, ld. Additional Advocate General submitted that on the terms of advertisement notification, annexure B of the writ petition, a

candidate having Math and Science subjects alone could apply for seeking appointment to the post of teacher in Middle School Lakhdipora.

Learned Counsel further submitted that in view of the amendment made in the SSA Scheme, which has came into effect from 01.04.2008, the two

posts which are required to be filled up in an upgraded Primary School one post of teacher is to be filled up by a candidate having Mathematic

subject while as other having Science. Learned Counsel further submitted that this Court in SWP No. 1815/2009 issued a direction on

27.11.2009 requiring the Secretary School Education, State of J&K, to clarify the position about the making of engagement of teacher under SSA

Scheme. Learned Counsel further submitted that an affidavit has been filed by Secretary School Education on 10.02.2010 in the aforementioned

writ petition before the Court. Learned Counsel has produced the zerox copy of the affidavit and invited the attention of the Court to paragraph 3

thereof, which is reproduced as under:

That the Primary Schools which are being upgraded to the level of Upper Primary Schools/Middle Schools in the State under Sarva Shiksha

Abhiyan Scheme, it is submitted that as per the revised guidelines of SSA Scheme (amended) with effect from 01.04.2008, only candidates with

Math and Science specific qualification are eligible to be engaged in such Upper Primary Schools/Middle Schools. The candidates who are having

higher qualification in the specific subjects i.e. Math/Science are being engaged. Thus, a candidate having Arts background is not eligible for

consideration. It is submitted that a candidate having qualification B. Sc, B. Ed. possessed superior merit/qualification than M. A. (Education). This

position has been already cleared to the Director School Education, Kashmir vide communication No. Edu/NC/SE/415/2008 dated 07.08.2009

issued by the Additional Secretary to Government, Education Department.

Learned Counsel also referred to the circular dated 15.01.2010 produced by learned Counsel for Petitioner, and submitted that in the said

circular it is provided that requirement of ReT/Teaching Guides in Upper Primary School has to be made by considering candidates with Science

or Math background depending upon the requirement of Math and Science teacher(s) in a particular school as per revised guidelines of SSA

Scheme. Learned Counsel while referring to paragraph 2 of the said circular further submitted that this circular would come into operation only in

the case of replacement of ReT/Teaching guides in Upper Primary School and not at the initial stage when engagement is to be made in newly

upgraded upper Primary School. Leanred counsel further submitted that the stand taken by the Secretary School Education in the aforementioned

affidavit is being followed by all the authorities in making engagements under SSA Scheme. Learned Counsel further submitted that this Court has

also relied upon the said affidavit by deciding the like cases in which almost identical issues had cropped up for consideration of the Court. Copy

of the affidavit is taken on record.

Mr. Manzoor learned Counsel for Respondent No. 5 invited the attention of the Court to the communication dated 27.05.2009 which has

emanated from the Office of the Director School Education and addressed to all the Chief Education Officers. As stated in this judgment, in the

said communication it is made clear that in case a candidate having 10+2 (Math or Science) is further armed with Graduation Degree in (Math or

Science) and is pitted against the candidate having 10+2 (in Science or Math) plus B.A. (Arts) plus B.Ed., then candidate having B.Sc.

qualification is to be engaged in comparison to the other candidate. Learned Counsel while referring to the said communication indicated that

decision to follow such a pattern was taken on 19.05.2009 when issue was discussed with Secretary School Education.

In the process of recruitment, it is prerogative of the employer to create the posts and fix the norms for filling up of such posts. The fixation of

norms, though not challenged in this case, can be challenged by an aggrieved person on valid grounds and Court of law can interfere if it arrives at

a conclusion that the norms are illegal or arbitrary. In this case the entire thrust of the argument of learned Counsel for Petitioner is on Government

Order No. 1530-Edu of 2003 dated 01.10.2003. Learned Counsel while referring to paragraph 4 of the said order submitted that extra weight-

age is to be given to the Petitioner who is possessed of B. Ed. qualification.

The State Government is duty bound to follow the norms provided under the SSA Scheme. However, Government may not be precluded

from providing additional norms but the said norms again have to be inconsonance with the norms fixed under the SSA Scheme. The paragraph 4

of the Government Order (supra), if presumed to be in force, will not, however, give any additional advantage to the Petitioner for being possessed

of B.Ed. qualification in the present case. Under the ReT scheme, there was no provision or norm made that teachers having Science or Math

background would be either considered for engagement or would be given preference for such engagement. Under the ReT Scheme, all the

candidates who were possessed of 10+2 and above irrespective of discipline to which they belonged to would become eligible for seeking

consideration for being selected and engaged as ReT.

The SSA Scheme is totally different Scheme launched by the Central Government. The State Government which is being provided major funds

by the Central Government to effectuate the said scheme on the ground level is duty bound to follow the mandate and norms contained in said

scheme. An amendment has been made in the norms of SSA Scheme from 01.04.2008 which provide that two teachers with Math and Science

specific educational background ought to be appointed in every new Upper Primary School. The State Government and all the authorities thereof

are duty bound to follow the mandate of the scheme in letter and spirit. No authority at any level can either consider or make appointment in newly

Upper Primary Schools in breach of mandate of the SSA Scheme.

The Government Order No. 1503-Edu of 2003 which provided for extra weightage to B.Ed. may come into play when two Science

candidates being possessed of identical academic qualifications would be pitted against each other. The very purpose of the amendment carried

out in the scheme with effect from 01.04.2008 would be defeated if a candidate who is possessed of academic qualification of 10+2 with Science

subjects but is having degree of Graduation in Arts subjects and also possessed of B.Ed. qualification is given preference over a candidate who is

possessed of B. Sc. qualification.

The purpose and intendment of the amendment carried out in the norms of the scheme is to provide a Science or Math teacher to newly Upper

Primary School. It would be in the interest of student community to appoint a candidate having higher academic qualification in Science in

comparison to person having higher academic qualification in Arts subjects. The purpose under lying the SSA Scheme is not primarily to generate

and provide employment but to accomplish the cherished goal of providing education to all the boys and girls. For attaining such a cherished noble

goal, the norms of the SSA Scheme ought to be effectuated in the right earnest and in accordance with spirit under lying the Scheme. The decision

to give appointment to a person having B .Sc./B.A Math vis-'-vis a person possessed of 10+2 (Math or Science) plus B.A. (without Math) plus

B.Ed. is taken on 19.05.2009. Even though the said decision would not have been taken on the said date, all the authorities were duty bound to

follow the norms as provided by the amendment made in the SSC Scheme with effect from 01.04.2008. The Court has to give effect to the said

amendment made in the SSA Scheme. The advertisement notice was issued on 27.02.2009. It is to be inconsonance with the amendment made in

the SSA Scheme.

The circular on which reliance is placed by learned Counsel for Petitioner, would show, as rightly submitted by Mr. Kawoosa, that question of

requirement of Science/Math teacher in a school would arise only when a teacher is to be replaced. In this case a teacher is to be appointed for the

first time. The reliance thus placed on the said circular in the fact and circumstances of this case is misplaced. The selection and appointment is to

be made accordingly. The Respondents while making tentative selection has thus not committed any illegality.

For the above stated reasons, this writ petition being meritless is accordingly.