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2010 Supreme(J&K) 321
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Sunil Hali, J.
Masood Ahmad Bhat -Appellant
Versus
State & Ors. -Resopndent
SWP No. 358-2006
Decided On : 14-05-2010
M.A. Qayoom, J.A. Kawoosa, Z.A. Shah.
The main legal point established in the judgment is the importance of qualifications and the timing of orders in relation to the selection process for ReT teacher appointments.
Headnote:
ReT Teacher Appointment Controversy - ReT Teacher Appointment - [Govt. Order dated 16.12.2002, 10+2 qualification, B.A. Part 1st qualification] - The court discussed the controversy surrounding the appointment of ReT teachers, focusing on the qualifications required and the preference given to candidates with higher qualifications. The court highlighted the importance of the advertisement notice reflecting the preference for higher qualifications and the timing of the Govt. Order in relation to the selection process. The court emphasized that qualifications acquired after the selection process should not be considered for preference.
Fact of the Case:
The controversy revolved around the appointment of ReT teachers in Village Aragam. The petitioner challenged the selection of private respondents 4 to 7, citing discrepancies in qualifications and age limits.
Finding of the Court:
The court found that the petitioner possessed higher merit in 10+2 qualifications compared to the selected respondents. However, the court also noted the preference given to candidates with higher qualifications and the timing of the Govt. Order in relation to the selection process.
Issues: The issues involved the qualifications required for ReT teacher appointment, the preference given to higher qualifications, and the timing of the Govt. Order in relation to the selection process.
Ratio Decidendi: The court emphasized the importance of the advertisement notice reflecting the preference for higher qualifications and highlighted that qualifications acquired after the selection process should not be considered for preference.
Final Decision: The court allowed the writ petition and directed the respondents to consider the petitioner for appointment against any available vacancy in the village. If no vacancy was available, the selection of the lowest merit private respondent based on 10+2 qualifications would be quashed, and the petitioner would be appointed instead.
2. Advertisement in the year 2000 for filling the post of Rehbar-e-Taleem in village Aragam Bandipora was issued by the respondents. Twenty two candidates are stated to have applied for their selection/appointment as Rehbar-e-Taleem teachers. A select list was prepared by the respondents. Due to availability of only two posts, two candidates Sanjay Kumar and Ghulam Noorani Khan were engaged as Relibar-e-Taleem teachers on 27th of September, 2000. Another advertisement notice came to be issued in the year 2002 for filling two more posts of Rehbar-e-Taleem in village Aragam. The petitioner applied afresh in pursuance to the advertisement notice. No selections were made on the basis of the said advertisement notice, instead panel of 2000 was operated and respondents 4 to 6 were appointed as Rehbar-e-Taleem teachers. The grievance of the petitioner is that the basic qualification for appointment as Rehbar-e-Taleem is 10+2, and the upper age limit provided is the same as in the case of Govt. service which at that time was 35 years. His contention is that the petitioner was meritorious than the private respondents on the basis of his qualification in 10+2 and was entitled to be appointed as ReT. His other contention is that respondent No.6 was appointed as ReT when she was about 35 years of age on the date of her selection in the year 2002.
3. On the other hand the stand of the respondents is that the private respondents having better qualification than the petitioner as they had qualified B.A. Pal 1st at the time of their selection to which preference was given to them over the petitioner for having the qualification B.A. Part 1st in terms of the direction passed on 16.12.2002 by Director School Education. The order contemplates that in case of two persons having passed 12th class and 13th class, the one with the higher qualification was to be preferred.
4. Regarding the second contention that the respondent was over-aged at the time of selection, it is contended that what is conceived by the scheme is that the candidate should as far as possible fulfill age qualification as prescribed by the State Govt. According to the respondents as far as possible are not prohibitory in nature but connote a discretion vested in the prescribed authority.
5. I have heard learned counsel for the parties. The admitted position is that the petitioner possesses higher merit in 10+2 than the respondents who stand selected. However, it is contended that respondent-Saif-ud-din Bhat was B.A. 2nd and Aisha Bano who was at serial No. 12 were considered for appointment by the then ZEO on the ground that they have passed B.A. 2nd year and their higher qualification was to be preferred over the petitioner.
6. For the purposes of determining the eligibility for appointment, the basic qualification is an essential qualification. Preference can be given to a candidate with higher qualification for which some additional marks are required to be given in this behalf. The advertisement notice must clearly reflect this fact. No such thing is visible either from the stand of the respondents or in the advertisement notice which provides that preference will be given to those persons who have higher qualification. By issuance of a Govt. Order dated 16.12.2002, preference has been given to the persons who possess higher qualification than prescribed under the advertisement notice i.e. 10+2. This order has been passed after the selection was concluded. Any such decision should precede and not proceed the same. I am not inclined to agree with the learned counsel for the respondent in this behalf that preference could be given to the respondents for having passed their B.A. Part 1st.
7. The other aspect of the matter is that this qualification has bee
