Tahzeema Banoo vs State and Others

vHon'ble Mr. Justice Muzaffar Hussain Attar, J.—Zonal Education officer, Rajwar vide Notification No. 8034/ZEOR dated 27-2-2009

invited applications from the eligible candidates for filling up the post of Rehbare Taleem Teacher ( ReT ) in Upper Primary School, Chalpora,

which was caused due to resignation of one Bilquees Badroo. The advertisement notice is taken note of:

Office of the Zonal Education Officer, Rajwar

Sub: - Notification regarding the engagement of RT in UPS, Chalpora. Ref: - Chief Education Officer, Kupwara No. 27256 dated 21.2.2009.

Due to resignation of one Bilquees Badoo ReT UPS Chalpora of this zone, one post of RT became vacant in said school. In this connection

application of plain papers are invited from the eligible candidates of village Gorlaker-Chalpora having qualification 10+2 and above. The

application alongwith all requisite certificates should reach to this office within fifteen days from the date of publication of this notification in daily

news paper. No application after cut of date will be entertained.

Sd: Zonal Education Officer, Rawar.

No: 8034/ZEOR/Dtd: 7.2.2009.

The petitioner having B.A. B.Ed qualification was found to be meritorious candidate for being engaged as ReT. The claim of the petitioner for

being engaged as ReT was ultimately considered by the Director School Education, Kashmir and rejected vide Order No. 1309/DSEK/ of 2010

dated 17.6.2010 on the principal ground that under the SSA norms amended from 1.4.2008, all the vacancies in upgraded Primary Schools are to

be filled up from amongst the candidates having Math/ Science background.

Feeling aggrieved of the aforementioned order dated 17.6.2010 petitioner filed the present writ petition in which the Court issued notices to the

respondents for filing objection.

Objections have been filed.

Heard learned counsel for the parties.

Learned counsel for the petitioner submitted that in terms of aforementioned advertisement notice, the petitioner was eligible to seek

consideration for being selected and engaged as ReT against the vacancy which was caused due to the resignation of Balquees Badroo. Learned

counsel further submitted that at no point of time immediately after the issuance of notification or till the selection process was complete, it was

stated that the post which became available on account of Ms. Balquees Badroo, s resignation, was to be filled up in terms of amendment made in

the SSA Scheme Learned counsel for petitioner has placed on record one document dated 29.5.2009, which is enclosed as Annexure-D with the

supplementary affidavit, a perusal whereof reveals that Head Master, SSA Middle School, Chaliapora, Rajwar requested Zonal Education Officer,

Rajwar to depute one teacher having Arts background to the said School. The head Master further informed that the school is in need of

Urdu/History knowing teacher and rest of the classes are functioning normally. Learned counsel further submitted that the amendment made from

1.4.2008 will not be applicable to the case of petitioner.

Learned counsel for petitioner referred to Judgment of this Court dated 15-11-2010 passed in SWP No. 1945/2010. The same is taken on

record.

MRs. Goswami, learned Dy. AG referred to the amendment made in the SSA Scheme and submitted that this amendment having taken effect

from 1.4.2008, the engagement against ReT post was to be made from amongst the candidates having Science/ Math educational background and

the petitioner being not eligible in view of the aforementioned amendment, cannot be said to be aggrieved person and therefore cannot maintain the

petition.

MRs. Goswami, learned Dy AG also referred to communication No. Edu/NC/SE/278/07 dated 24-9-2008 of Special Secretary to

Government Education Department addressed to the State Project Director, SSA, and Srinagar. The said communication is taken note of and is

reproduced as under.

Please direct all Chief Education Officers for engagement of ReT teachers in newly upgraded Schools (from Primary to Upper Primary) with the

existing procedure under Ret Scheme wherever advertisement has been made, applications invited and panels have been formulated.

For the remaining quota of Up-gradations for which advertisements have not been floated, please direct all CEOs to issue notice for appointment

of candidates as ReT teachers having Math and Science background It should be clearly indicated in the advertisement notice that ""Only those

candidates having Mathematics and Science background should apply.

MRs. Goswami, learned Dy AG referred to reported judgment of this Court titled Mohd. Latief Bhat v. State of J&K and Ors 2010 (2) JKJ

HC 723 and submitted that in view of the law laid down by the Court, writ petition deserves to be dismissed.

Mr. K.L. Pandita, learned counsel for the private respondent-5 submitted that the writ petition in view of the amendment made in the SSA

Scheme, is not maintainable and petitioner das no right to seek any relief from this Court being not eligible candidate. Learned counsel also

submitted that respondent -5 being meritorious candidate, is to be considered for being engaged as ReT on the vacancy which became available

on the resignation of one Balquees Badroo.

The amendment made effective from 1.4.2008 in the norms of SSA Scheme is reproduced as under:-

NORMS FOR INTERVENTIONS UNDER SSA

S.No Intervention Norm

1 Teacher a. One teacher for every 40 children in primary

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 teaches 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 ratio of 40:1, the additional teachers

sanctioned under SSA will need to be

provide/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 1.4.2008.)

Advertisement notice dated 27-2-2009 is the basis on the which the selection process was initiated. The notification invited application from

eligible candidates having qualification 10+2 and above. The said notification did not state that the candidates having Science/Math educational

background alone are eligible for being engaged as ReT. The advertisement is representation to the eligible candidates and the authority is bound to

make selection on its terms and conditions. Terms and conditions of the said notification binds the authority which makes selection, and also binds

the candidates who seek selection/engagement. The authority issuing the notification cannot change criteria mid stream. The selection authority may

withdraw notification but definitely cannot change the criteria after the same is issued. This view is supported by the judgment of the Apex Court in

case titled Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another, In para -6 of the said judgment, the Apex Court ruled that:

...Any advertisement or notification issued/published calling for application constitutes a representation to the public and the authority issuing it is

bound by such representation. It cannot act contrary to it......

On the basis of the aforementioned notification, the petitioner was eligible to seek consideration for being selected /engaged as ReT. In terms

of communication dated 24.9.2008. all the CEOs were ordered to make engagement of ReT Teachers in newly upgraded School under the

existing procedure under ReT Scheme wherever advertisement has been made, applications invited and panels have been formulated. It was also

stated in the said communication that those posts for which advertisements have not been issued, all CEOs' to issue notice for appointment of

candidates as ReT teachers having Main/Science background. The State Government has implemented the SSA Scheme and administrative orders

are issued from time to time to make it operational.

The communication aforementioned discloses the policy decision of the State Government to give effect to the amendment made in SSA Scheme.

In this case, the tentative selection list was published 16-6-2009. In terms of the aforesaid communication, the selection/engagement for the post of

ReT were to be made on the basis of rules which exist prior to 1-4-2008 On the basis of communication dated 24-9-2008, selection was to be

made on the basis of amendment made in SSA Scheme but the terms and conditions of amended SSA Scheme having not been reflected in

advertisement notification, the selection in this particular case has to be governed by the terms and conditions of the notification itself The

amendment made in SSA Scheme was in force from 1 4.2008. In this amendment, it is provided that for recruitment of additional teachers at

upper primary level, the persons with Science /Math educational background were to be considered. However, in Norm (d), it is provided that 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. It become writ large on the face of record that 3rd Teacher in terms of Norm (d) would thus be a person having

Arts background. The Head Master in his communication has not projected need for having Math/Science educational background teacher but has

requested for Arts background teacher.

The school was thus in need of arts background teacher and that is why the advertisement notice does not restrict the zone of consideration to

Science/Math background candidates. The norm (d) of SSA scheme introduced from 1.4.2008 makes the selection process valid which is initiated

on the basis of advertisement notice taken note of in this judgment.

The judgment cited by MRs. Goswami is rendered in a particular fact situation thus does not support her contention.

The order of the Director School Education, Kashmir 17.6.2010 impugned in this petition is thus, not legal. The said authority has not applied

its mind to the entire conspectus of the case but has simply rejected the claim of the petitioner on the ground that only Science and Math

educational background candidates are eligible for being selected/engaged as ReT.

For the reasons mentioned above, this petition is allowed in the following manner:

(i) By issuance of writ of certiorari, Order No. 1309 DSEK of 2010 dated 17-6-2010 is quashed.

(ii) By issuance of writ of mandamus, respondents are directed to consider the petitioner for engagement as ReT in Upper Primary School,

Chalipora Education Zone Rajwar. Respondents to pass necessary orders of engagement within 15 days from the date copy of this order is served

upon them.