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Judgment
Vide an advertisement notice issued by the Zonal Education Officer, Vailoo on the subject "opening of new primary schools under SSA 2009-10 bearing reference Nos. CEO Ang's No.: CEO/A/SSA/09/14459-61 dated 30th of November, 2009 and CEO Ang's No.: CEO/A/SSA/09/14462-64 dated 30th of November, 2009", applications were invited from the eligible unemployed youth having minimum qualification of 10+2 or above from the habitations of Peer Mohalla and Nai Basti for engagement of two ReTs in the newly opening primary schools. The notice directed that the applications alongwith all testimonials should reach in the office of Zonal Education Officer, Vailoo in duplicate within seven days, excluding holidays, after the publication of the advertisement notice in the newspaper. It also stipulated that no application will be entertained after the expiry of the last date. This notice was published in the newspaper running under the name and style of 'Srinagar Times' in its edition dated 6th of December, 2009.
The grouse of the petitioner is that the official respondents have appointed respondent No.7, namely, Nisar Ahmad Malik, for the post of ReT over and above his head, though he was not a graduate as portrayed in the panel itself which has been verified by the authorities of the University of Kashmir also before the official respondents and despite that the respondents have considered the respondent No.7 for the post and have issued formal appointment order in his favour on 21st of June, 2011 for which he was not entitled. The respondents, in exercise of malafide and arbitrary power, have deprived the petitioner of his right to man the post being highly qualified than that of the private respondent. On the above set of pleadings, the petitioner has filed the instant petition, seeking the grant of the following relief(s), in his favour:
i. "Writ of certiorari seeking quashment of appointment order of private respondent dated 21.6.2010 forming annexure P to the writ petition.
ii. Writ of mandamus commanding upon the respondents to issue formal orders of appointment in favour of the petitioner with all consequential benefits from which the private respondent was appointed i.e. 21.06.2011.
iii. Writ of mandamus commanding upon the respondent No.6 to clarify that whether in the light of communication dated 13th May 2010 the private respondent is a complete graduate when he was failing in environmental studies of B.A. 2nd year on the date of advertisement notice.
iv. Writ of mandamus commanding upon the respondents No. 5 and 6 that whether the failure of private respondent in environmental studies course of 2nd year makes him eligible for the purposes of issuance of degree certificate i.e. wherefrom he would have been deemed to be a graduate.
v. A direction to the private respondent to submit the provisional certificate which is being issued by the college authorities aftersuccessful completion of graduation upon the cut of date of advertisement notice."
Heard and considered.
Annexure "A" attached to the petition is a panel dated 12th of January, 2010, of eligible unemployed youth of the habitation/ village/ revenue village, Kretti, for the engagement of the ReT in the newly opened Primary School, Naibasti, Khretti. The respondent No.7 figures at S. No. 2 whileas the petitioner figures at S. No.3 in the said panel. The qualification shown as against the respondent No.7 is BA (without ESC) and about the petitioner, it is stated that he holds a degree of Graduation to his credit. Annexure "C" attached to the petition is a communication addressed by the Zonal Education Officer, Vailoo, to the Principal, Government Degree College for (Boys), Anantnag, Khanabal. It runs under the subject "prayer for seeking guidelines regarding the status of Environmental Studies in Degree course", wherein the Zonal Education Officer, Vailoo, has requested the Principal to clarify whether Environmental Studies is a compulsory subject or not and the date from which the above cited subject has been made compulsory and whether a degree without passing Environmental Studies is a complete one. It bears the endorsement made by the HOD, Zoology, which reads as under:
"With reference to the Univ No. F(Intro Env.Studies)Acad/KU/01 dated 28th of April, 2004, it is submitted that the University has made additional compulsory course (E. Science) in the 2nd year class. Hence, the degree of Graduation is incomplete without passing the E. Science subject."
Annexure "D" is a notification dated 28th April, 2004, issued by the University of Kashmir, Srinagar, which reads as under:
"Pursuant to directions from Hon'ble Supreme Court and UGC DO letter No. F 13-1/2000 (EA/ENV/COS-I) dated july, 2003, it is notified for the information of all the concerned that the Vice-Chancellor in anticipation of the approval of the Syndicate under powers vested in him under sub-section 4 of the section 13 of Kashmir & Jammu Universities Act, 1969 has authorized the introduction of six months module course for Environmental Studies at Under Graduate level in all the affiliated colleges with immediate effect. This shall be as an additional compulsory course in the second year class."
Page No.2 added to Annexure "D" attached to the petition provides the guidelines and syllabus for the compulsory course on Environmental Studies for under Graduate students of all branches of higher education and clause 9 of the same reads as under:
"The failure of a candidate in the Environmental Studies Course will not debar him/ her from promotion to the third year of the degree course. However, the degree will not be awarded unless he/ she passes the Course on Environmental Studies."
Annexure "E" is a communication dated 7th of April, 2010, of the Deputy Commissioner, Anantnag, addressed to the Chief Education Officer, Anantnag, directing him to furnish the file regarding engagement of ReTs in the newly opened School at Nai Basti Khreti, Zone Vailoo to his office forthwith with a further direction that no engagement orders fo ReTS shall be issued for the said school till further orders. Annexure "N" attached to the petition, which has a direct bearing on the determination of the matter, is a communication dated 13th May, 2010, issued by the Assistant Registrar (ACADEMIC), in favour of the Zonal Education Officer, Vailoo, Anantnag, Kashmir, which states that without passing the six months' module course of Environmental Studies, the Bachelors' degree is incomplete and the student cannot be considered for PG Admission even otherwise eligible. Page 2 to Annexure "P" is a communication dated 17th of May, 2013, issued by the Assistant Controller Exams, University of Kashmir, Srinagar, which provides that without qualifying the subject of Environmental Science, graduation is incomplete and this rule has been applied from the year 2003 to all the students. Registrar, University of Kashmir, Srinagar, respondent No.6 in this petition, has filed the objections to the instant petition, paragraph Nos. 2 and 3 being germane to the issue, are reproduced hereinbelow, verbatim:
2) That the respondent University on the recommendations of the Committee constituted for the purpose of issuance of Marks Certificate of 3rd Year in favour of the candidates failing in the compulsory Module of Environmental Science prescribed at 2nd year of G.G. Course authorized as under:
i. Marks Certificate of 3rd Year Class in favour of such of the students as have failed in the Environmental Studies Subject/ Paper be issued. However, the result position of said subject, be mentioned in the 3rd Year Marks Certificate, with the caption compulsory Environmental Science of 2nd Year Passed/ Failed;
ii. Degree of candidates shall be reckoned from the date the result of 3rd Year Class is/ was declared;
iii. Degree Certificate of such candidates shall not be issued unless they pass the said module/ subject;
3) That the respondent No.03 has already been informed by the Assistant Controller of Examination, University of Kashmir, Srinagar vide Communication No. F(Result-Veri) Tab/KU/2010 dated 16.04.2010 that the degree of the candidate, namely, Nissar Ahmad Malik i.e. Respondent No. 07 shall be reckoned from the date of the result of 3rd Year Class was declared."
Testing the instant case on the touchstone of the above, the application forms had to reach in the office of the Zonal Education Officer, Vailoo, within seven days from the date of the publication of the advertisement notice. The advertisement notice was published in the local daily, i.e. Srinagar Times in its publication dated 6th of December, 2009. The period of seven days would expire on 15th of December, 2009, after exluding the holidays. The tentative panel was forwarded by the Zonal Education Officer, Wailoo, on 12th of January, 2010, in which the respondent No.7 was shown to have obtained a degree of BA without Environmental Science, meaning thereby that he was not eligible for the post when he applied for it in view of the guidelines and the communications cited above which make it mandatory that Environmental studies is a compulsory course for an undergraduate student of all branches of higher education and a degree of graduation is incomplete without it.
In the backdrop of what has been said and done above, the instant petition is allowed, as a consequence of which, the order of appointment issued in favour of the respondent No.7 dated 21st of June, 2011, issued by the Respondent No.3/Chief Education Officer, Anatnag, is quashed. The respondents are directed to consider the case of the petitioner for his appointment as ReT in the newly opened Primary School, Naibasti, Khretti, on the basis of the panel framed by the Zonal Education Officer, Vailoo on 12th of January, 2010.
Writ petition disposed of as above.