Rajasthan High Court - Jodhpur
State Of Raj vs Smt.Pushpa & Anr on 8 April, 2010
Bench: Jagdish Bhalla, Dinesh Maheshwari
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
..
:: JUDGMENT ::
D.B. CIVIL SPECIAL APPEAL (WRIT) NO.532/2002.
R.P.S.C., Ajmer Vs. Smt.Pushpa Panwar & Anr.
....
D.B. CIVIL SPECIAL APPEAL (WRIT) NO.531/2002.
R.P.S.C., Ajmer Vs. Hari Kishan Goyal & Anr.
....
D.B. CIVIL SPECIAL APPEAL (WRIT) NO.624/2002.
State of Rajasthan Vs. Smt.Pushpa Panwar & Anr.
....
D.B. CIVIL SPECIAL APPEAL (WRIT) NO.625/2002.
State of Rajasthan Vs. Hari Kishan Goyal & Anr.
....
Date of Judgment ::: 8th April 2010.
PRESENT
HON'BLE THE CHIEF JUSTICE MR. JAGDISH BHALLA
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Tarun Joshi for
Mr. J.P.Joshi,for the appellant RPSC.
Mr. Anand Purohit, Additional Advocate General with
Mr. Pradhyuman Singh, Assistant to AAG, for the appellant
State of Rajasthan.
Mr. S.N.Trivedi, for the respondents.
.....
BY THE COURT (per Hon'ble Dinesh Maheshwari J.):
These four intra-court appeals, preferred against the common order dated 26.07.2002 passed by the learned Single Judge of this Court in the writ petitions (CWP Nos. 372/2002 and 373/2002) filed by the private respondents, involving identical issues on similar facts, have been considered together; and are taken up for disposal by this common order.
In brief, the relevant facts and the background aspects of the mater are that the Rajasthan Public Service 2 Commission (RPSC) issued an advertisement dated 31.05.2001 inviting applications for recruitment to the posts of lecturers in various subjects under the College Education Department of the Government of Rajasthan. The applications were to be submitted under this advertisement by 01.08.2001 in the prescribed form to be made available by the RPSC from 25.06.2001. The eligibility conditions for the candidates in relation to the different posts were specified in this advertisement; and the conditions relevant for the present purpose read as under :-
"अच शकण क अभ लख क स थ सम न त व षय म ककस रत य व शव द लय स कम स कम 55 पततशत अ&क अथ समकक गड सह*त अध स- तक उप ध य ककस व दश व शव द लय स उसक समकक उप ध ।
अभयथ3 क4 उपर4क अ*6त ओ& क अततररक व शव द लय अ-9द - आय4ग (य.< ज .स .) अथ स .एस.आई.आर. द र व त-हद6 ष रप स आय4नजत वय खय त पद कE प तत परGक अथ व शव द लय अ-9द - आय4ग द र पतय वपत और र जय सरक र द र प ध कKत/म य ककस अ य एज स द र आय4नजत ऐस *G क4ई परGक उत 6 *4- च ह*ए ।
ऐस अभयथ3 नज *O- हद- &क 31-12-93 तक प .एच.ड . उप ध *त9 श4 प जम कर हदय4 *4 य एम.कPल. परGक उत 6 कर लG *4 उ * य.< ज .स ., स .एस.आई.आर. द र आय4नजत वय खय त पद कE प तत परGक अथ य.< ज .स . द र उसक समकक पतय वपत प तत परGक उत 6 कर- स < ट *4ग ।"
The term "good academic record" ("अच शकण क अभ लख") as occurring in the aforesaid eligibility conditions was also defined in the advertisement in the following terms:-
"पद कम स&खय 1 स 24 तक क भलए अच शकण क
अभ लख क व र :-
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(1) एम.कPल. उप ध य अध स- तक सतर स उचचतर
क4ई म यत प प उप ध प प अभयधथ6यO क4
अध स- तक उप ध सतर पर य- < तम 55 पततशत
अ&क प प *4- च ह*ए ।
य
(2) अभयथ3 ज4 एम.कPल. उप ध य अध स- तक
सतर स उचचतर क4ई म यत प प उप ध प प -*G&
* त4 अध स- तक उप ध म य<-तम 55 पततशत
अ&क पप *4 ए & पथम उप ध
( .ए./ .एसस ./ .क म.) कम स कम हदत य श
म उत 6 *4- च ह*ए ।"
A relaxation of 5% in the post graduation marks was also provided in relation to the candidates belonging to the Scheduled Castes/ Scheduled Tribes category.
The writ-petitioners Smt.Pushpa Panwar and Shri Hari Kishan Goyal, the private respondents herein, said to be the candidates belonging to the Scheduled Castes category, having obtained the requisite marks in post graduation with reference to the relaxation provided, and having cleared the State Level Eligibility Test (SLET) and/or the National Eligibility Test (NET), but not having secured second division marks in graduation, proceeded to submit their applications under the advertisement aforesaid for the posts of lecturer in Hindi and Public Administration respectively. The applications so submitted were rejected by the RPSC by the respective communications dated 02.01.2002 and 08.01.2002 essentially on the ground of the writ-petitioners having not secured second division marks in graduation.
The writ-petitioners approached this Court by filing the writ petitions aforesaid on 22.02.2002 with the submissions 4 that they were possessing all the essential qualifications like that of post graduation with requisite marks and that of having cleared the requisite eligibility tests (NET/SLET); and denial of their candidature only on the ground of not possessing graduation (B.A.) degree with second division was illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. On the other hand, the appellants herein, the RPSC and the State Government, contended that the condition regarding "good academic record" as incorporated in the advertisement was not contrary to the Rules; and that the definition of "good academic record" as provided in the advertisement had been the one that was suggested by the Director, College Education and was duly approved by the State Government in its communication dated 19.07.1993. According to the said communication, the definition of "good academic record" was that a candidate holding M.Phil degree or any other recognised degree beyond Master's Level should possess at least 55% marks in Master's Degree; and the candidate not holding M.Phil or other higher degree beyond Master's Level should possess 55% marks in Master's Degree and a second class in the first degree examination, i.e., B.A., B.Sc., or B.Com. The appellants contended and the candidature of each of the writ-petitioners had rightly been rejected because of not possessing second division in graduation.
The learned Single Judge of this Court considered the two writ petitions together in the impugned order dated 5
26.07.2002 and expressed the opinion that when a person steps further or gets higher degree, the lower degree losses importance and rejection of the candidature with reference to graduation marks was nothing but arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India. The learned Judge further observed that when the candidate has cleared the eligibility tests for lecturership, i.e., NET/SLET, imposing of any other condition, especially the present one, of possessing second division in graduation, was arbitrary and unreasonable; and the said condition had no nexus with the object sought to be achieved. The learned Single Judge said,-
"In my considered opinion, when the petitioner has secured 55% marks in post graduation examination in the subject concerned and furthermore when, she has qualified the National Educational Test Eligibility for Lecturership conducted by the University Grants Commission and State Level Eligibility Test for Lecturership, 1999 conducted by the RPSC, therefore, rejection of the candidature of the petitioner for the post of Lecturer in Hindi on the ground that she did not possess graduation (BA degree) with second division, is absolutely per se illegal and arbitrary."
On a submission made on behalf of the appellants that in the absence of the statutory rules, the condition of passing the graduation with second division as laid down by way of executive instructions should prevail per the authority available with the Government under Article 162 of the Constitution of India, the learned Single observed that executive instructions must be consistent with Articles 14 and 16 of the Constitution of India; and, finding the condition regarding securing of second division in graduation illegal and arbitrary, proceeded to strike it down thus:
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"Thus, it is held that the condition that a candidate must possess graduation degree with second division is not in consonance with the spirit of Article 14 of the Constitution of India and thus, it is violative of Articles 14 and 16 of the Constitution of India being unjust and unfair criteria and the same is struck down."
As a result of the aforementioned discussion and findings, the learned Single Judge allowed the writ petitions; quashed the impugned communications in rejection of the candidature of the respective writ-petitioners; and directed the RPSC to consider their candidature for the posts applied for under the advertisement dated 31.05.2001.
Assailing the order passed by the learned Single Judge, it has been contended on behalf of the appellants that the candidature of each of the writ-petitioner was rightly rejected for not possessing second division marks in graduation (B.A.); and the learned Single Judge has erred in quashing the condition prescribed in the advertisement treating it to be arbitrary and illegal despite no specific challenge having been made by the writ-petitioners. It is further submitted that the findings and the conclusions of the learned Single Judge remain contrary to law because the object has been to select the best of the talents. It is submitted that prescribing of the eligibility condition rests with the Rule making authority and the said condition, having duly been prescribed by the authority concerned, called for no interference. It has also been submitted that the said condition regarding good academic record in graduation has been provided in view of the norms prescribed by the University Grants Commission 7 (UGC) in its Notification dated 19.09.1991 on the qualifications required of a person to be appointed to the teaching staff of the University and the affiliated institutions.
On the other hand, while supporting the order passed by the learned Single Judge, the learned counsel for the private respondents (writ-petitioners) contended that such a condition regarding "good academic record", being not available in the Rules, could not have been prescribed by the respondents in the advertisement. The learned counsel further submitted that such a condition has no nexus with the object sought to be achieved; and that the marks obtained in graduation rather become redundant with a candidate having obtained post graduation degree with requisite number of marks and then, having cleared the requisite eligibility tests (NET/SLET) too. The learned counsel submitted in the alternative that in any case, the candidature of the writ-petitioners deserve not be rejected altogether with reference to the offending condition and even if the respondents take the said condition into account, they could, at the most, give preference to the candidates having higher marks in graduation but could still consider the candidature of the writ-petitioners thereafter.
Having given a thoughtful consideration to the rival submissions and having examined the record with reference to the law applicable, we are, with respect, unable to concur with the views of the learned Single for more than one reason.
The very first reason wherefor we are unable to subscribe to the views expressed in the impugned order is that 8 the rules applicable to the recruitment in question and relevant for the purpose of the issues involved in these matters appear to have escaped attention of the learned Single Judge. It appears that while dealing with these matters, the consideration of the learned Single Judge remained confined to a part of the niceties of the expression "good academic record" as occurring in the advertisement; and the significant aspects of the matter got overlooked that the impugned condition in the advertisement has its genesis and roots in the rules applicable to the recruitment in question and that the relevant rules were not even under challenge.
The advertisement in question was issued for the purpose of recruitment to the posts of lecturers under the College Education Department of the Government of Rajasthan governed by the Rajasthan Educational Service (Collegiate Branch) Rules, 1986 ('the Rules of 1986'). Every relevant aspect of the terms and stipulations in the advertisement in question was, therefore, necessarily required to be viewed with reference to the Rules of 1986 and could not have been examined beyond and de hors the Rules ibid. For the issues raised in these matters, appropriate it shall be to refer in brief to the salient features from the relevant parts of the Rules of 1986. Earlier, the following were stated to be the requirements towards academic and technical qualifications and experience in Rule 11 of the Rules of 1986:-
"11. Academic and Technical Qualifications and Experience.- A candidate for direct recruitment to the posts enumerated in the Schedule shall in addition to such experience as is required possess 9
(i) the qualification given in column 4 of the schedule; and
(ii)working knowledge of Hindi written in Devnagri script and knowledge of Rajasthani Culture."
The post of lecturer has been specified at serial number 5 in the Schedule appended to the said Rules of 1986; and the minimum qualification in relation to this post of lecturer was earlier stated in column number 4 of the Schedule in the following terms:-
"As laid down from time to time by the University of Rajasthan."
However, the fact of the matter had been that Rule 11 and the relevant part of the Schedule ibid came to be amended by the notification dated 17.06.1993 that reads as under:-
"In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following amendment in the Rajasthan Education Service (Collegiate Branch) Rules, 1986, namely-
AMENDMENT
1. At the end of clause (i) of rule 11, of the said rules, the following shall be added, namely:-
"have qualified the eligibility test specifically conducted by the University Grants commission/ Council for Scientific and Industrial Research or a similar test accredited by the University Grants Commission and conducted by any other agency authorised/accepted by the State Government; and"
2. Amendment of Schedule.- The existing entry in Col. No. 4 against Serial No. 5 in the Schedule appended to the said rules shall be substituted by the following, namely:-
"Qualifications as laid down from time to time by the University Grants Commission.
or 10 Where no qualifications have been prescribed by the University Grants Commission for the posts in certain subjects, the qualifications, as prescribed by the State Government through a notification in consultation with the University Grants Commission and/or the University where that particular subject is being taught."
It is also noticed that the UGC, in its notification dated 19.09.1991, proceeded to make the regulations under Section 26 (1)(e) read with Section 14 of the University Grants Commission Act, 1956 providing for the qualifications required of a person to be appointed to the teaching staff of a University and the affiliated institutions; and, in relation to the posts of lecturer in various streams including Arts, Science, Social Sciences etc., the UGC provided the qualifications in the following manner:-
"Good academic record with atleast 55% marks or an equivalent grade at Master's degree level in the relevant subject from an Indian University or an equivalent degree from a foreign University. Candidates besides fulfilling the above qualifications should have cleared the eligibility test for lecturers conducted by UGC, CSIR or similar test accredited by the UGC."
It appears that the Rules of 1986 were duly amended on 17.06.1993 to bring them in conformity and accord with the requirements as laid down by the UGC for the posts of lecturer. By the notification dated 17.06.1993, Rule 11 ibid was amended so as to provide for the requirement of eligibility test (NET/SLET) as prescribed by the UGC; and the Schedule ibid was also amended so as to alter the qualifications for the post of lecturer to be that "as laid down from time to time by the University Grants Commission" and, where no 11 qualifications had been prescribed by the UGC, to be that "as prescribed by the State Government through a notification in consultation with the University Grants Commission and/or the University" .
A comprehension of the Rules of 1986 as applicable and the qualifications as laid down by the UGC puts it beyond the pale of doubt that besides the requirement of eligibility test (NET/SLET), and besides the requirement of a post graduation degree with 55% marks, "good academic record"
had been another but integral part of the essential qualifications for the post of lecturer; and it cannot be said, as assumed by the learned Single Judge, that merely the marks in the post graduation would have been decisive and the other aspects of academic record were totally redundant. Contrary to what has been assumed by the learned Single Judge, in view of the position emanating from the statutory rules and notifications as discussed supra and in view of the fact that the qualifications so laid down by the UGC and the amended Rules were not even put to challenge in the writ petitions, the indisputable position had been that "good academic record with at least 55% marks in post graduation" (apart from the requirement of clearing the eligibility test) as envisaged by UGC was a part of essential qualifications for the post of lecturer; and there was no reason that the requirement of "good academic record" could have been dispensed with merely for a person having the requisite marks in post graduation.12
Once "good academic record" became a part of essential qualifications for the post of lecturer; and when this term had otherwise not been defined in the rules, a suitable definition was called for in order to fill in the gap and to make the rules workable. Hence, the action on the part of the State Government to define the term "good academic record"
remains unexceptionable.
It is not that the Government proceeded to define the term "good academic record" in an arbitrary or whimsical manner. The term "good academic record" as occurring in the qualifications prescribed by the UGC was the matter of anxious consideration of the Government in its College Education Department as would appear from the communication dated 28.06.1993 from the Director, College Education to the Secretary to the Government (placed on record as Annexure R/1 with the reply filed on behalf of the State) and from its response as stated by the Secretary to the Government on 19.07.1993 (placed on record as Annexure R/1 with the reply filed on behalf of the RPSC). It was found that this term had been in vogue ever since the year 1976 and earlier, the definition as given in the University of Rajasthan Hand-Book was being followed. In order to avoid larger deviation and in order to maintain consistency, the term was suggested, and approved, to be defined in the same manner as had been spelt out in the advertisement in question (as reproduced hereinbefore).
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Apart from the aforesaid, we find it difficult, with respect, to approve the exception as taken by the learned Single Judge to the definition of the term "good academic record" because, in the first place, laying down of requisite qualifications and necessary explanations is essentially within the authority and competence of the employer; and the Court would ordinarily be not interfering with the same nor would be suggesting as to what the qualifications ought to be. Secondly, after having examined the definition of the term "good academic record"
as provided by the appellants, we are unable to find even a wee bit of arbitrariness or illegality therein; and we are unable to find any basis and any principle wherefor the definition as prescribed by the appellants could be said to be violative of any constitutional mandate so as to call for interference by the Court. In this regard, again, it appears that the learned Single Judge has examined only a part of the definition in question and omitted to read it as a whole.
The hindi version of the impugned definition as appearing in the advertisement has already been reproduced hereinbefore wherefrom it is clear that the definition of the term "good academic record" was provided with two alternative prescriptions: one, that the candidate must be having 55% minimum marks in Master's Degree if holding a M.Phil Degree or any other recognised degree beyond the Master's level; and second, in relation to such candidates who are not having M.Phil or other higher degree beyond Master's level that they must possess 55% marks in Master's Degree 14 and a second class in the first degree (B.A./B.Sc./B.Com.). Thus, even the questioned stipulation of minimum second division in the first degree of graduation has not been provided in relation to the candidates who had otherwise obtained any other degree beyond post graduation, namely, M.Phil or any other recognised one. To say the very least, in relation to a candidate for the post of lecturer who is not having any other degree beyond the Master's Level, the requirement of second division in graduation for the purpose of "good academic record" cannot be termed to be fanciful or arbitrary or violative of any constitutional mandate. It is also wrong to contend that the condition has no nexus with the object ought to be achieved. Such a condition could only be said to be rather a necessary one so as to filter out the undeserving and lessor meritorious candidates.
The argument that the marks obtained in graduation are rendered redundant with a candidate having obtained post graduation degree with requisite number of marks and then, having cleared the requisite eligibility tests (NET/SLET) does not carry any force. Post graduation as well as eligibility tests (NET/SLET) are the requirements applicable to all the candidates as the very basic eligibility conditions. Coupled with them has been the requirement of "good academic record" that a candidate ought to possess. If merely the post graduation and eligibility tests are held sufficient, the requirement of "good academic record" shall be rendered otiose; and no such construction could be put on the relevant 15 provisions so as to make one of the essential conditions totally redundant.
We have noticed another aspect, of shortcomings in the conduct, wherefor the writ-petitioners were disentitled to any relief from the writ Court. The requirements and the eligibility conditions had been spelt out in the advertisement in question in no uncertain terms; the advertisement was issued on 31.05.2001 and the applications were to be submitted by 01.08.2001. The writ-petitioners were aware of their position and were aware of the fact that they were not answering to the requirement of having "good academic record", an essential eligibility condition. A genuine grievance against the condition aforesaid, if at all, would have been made by the writ- petitioners immediately upon the issuance of the advertisement or at least simultaneously with making of the applications to the RPSC. However, the writ-petitioners did not challenge the said condition in the advertisement at the relevant stage and, instead, took their chance, made the applications to the RPSC despite being aware of fact that they were ineligible in terms of the said advertisement, and then, came out with challenge to the condition in the advertisement by the filing these petitions on 22.02.2002, only after receiving the rejection letters. In the totality of the facts and circumstances, the conduct of the writ-petitioners appears lacking in bona fide and the writ petitions ought to have been dismissed on this count alone. However, we do not wish to dilate further on this aspect because, as noticed, even on 16 merits, the writ-petitioners have no case; and we are clearly of the opinion that there has not been any reason to interfere with the questioned condition.
The submission as made in the alternative by the learned counsel for the private respondents (writ-petitioners) has only been noted to be rejected. Once the writ-petitioners are found lacking in the basic eligibility condition, there could arise no question of any direction for consideration of their candidature at any level or stage.
Accordingly, and for the reasons foregoing, the appeals deserve to be and are allowed; the impugned order dated 26.07.2002 is set aside; the writ petitions filed by the private respondents (CWP Nos. 372/2002 and 373/2002) stand dismissed. However, in the circumstances, the parties are left to bear their own costs.
(DINESH MAHESHWARI),J. (JAGDISH BHALLA),CJ. /Mohan/