Rajasthan High Court - Jodhpur
Sita Dangi vs State Of Rajasthan & Ors on 5 April, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 14204 / 2017
Sita Dangi W/o Shri Roshan Dangi, Aged About 42 Years, R/o
Village Sapetiya, Panchayat Samiti Badgaon, District Udaipur,
Rajasthan.
----Petitioner
Versus
1. The State of Rajasthan Through the Secretary, Department of
Education, Government of Rajasthan, Jaipur, Rajasthan.
2. The Director, Elementary Education, Bikaner, Rajasthan.
3. The District Education Officer, Elementary Education, Udaipur,
Rajasthan.
----Respondents
Connected With
S.B. Civil Writ Petition No. 14144 / 2017
Shyam Lal Meghwal Son of Verdi Chand Meghwal, Aged About 46
Years, Resident of C/o Heera Lal Jain Karawali, Tehsil Salumber,
District Udaipur.
----Petitioner
Versus
1. State of Rajasthan Through the Secretary, Gramin Vikas and
Panchayat Raj Department, Govt. of Rajasthan, Jaipur.
2. Director, Elementary Education, Rajasthan, Bikaner.
3. District Education Officer, Elementary Education, Udaipur.
----Respondents
S.B. Civil Writ Petition No. 14197 / 2017
Padama Sharma W/o Aarogya Shekhar, Aged About 43 Years, R/o
75, Bhattiyani Chohatta, Hotel Shakti Palace, Udaipur, Rajasthan.
----Petitioner
Versus
1. The State of Rajasthan Through the Secretary, Department of
Education, Government of Rajasthan, Jaipur, Rajasthan.
2. The Director, Elementary Education, Bikaner, Rajasthan.
3. The District Education Officer, Elementary Education, Udaipur,
(2 of 9)
[ CW-14204/2017]
Rajasthan.
----Respondents
S.B. Civil Writ Petition No. 14258 / 2017
Smt. Neelima Rawal W/o Shri Naveen Vallabh, Aged About 43
Years, R/o 16/1392, Nai Basti, Near DIET Office, Goverdhan Vilas,
Udaipur.
----Petitioner
Versus
1. The State of Rajasthan Through the Secretary, Department of
Education, Government of Rajasthan, Jaipur.
2. The Director, Elementary Education, Bikaner, Rajasthan.
3. The District Education Officer, Elementary Education, Udaipur,
Rajasthan.
4. The Block Elementary Education Officer, Panchayat Samiti
Girwa, District Udaipur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Vinod Choudhary on behalf of
Mr. Kuldeep Mathur &
Mr. Arjun Purohit
Mr. Rajat Dave
For Respondent(s) : Mr. P.R. Singh, Addl. Advocate General
assisted by Ms. Deepika Purohit
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 05/04/2018
1. Counsel for the parties agree that the controversy involved in these writ petitions is covered by judgment rendered by this Court dated 07.5.2014 in Jagdish Parmar Vs. State of Rajasthan & Ors., reported in 2014 (4) CDR 1967 (Raj.), which is quoted hereunder :
(3 of 9) [ CW-14204/2017] "1. The petitioner by this writ petition has sought quashment of his impugned termination order dtd. 2.9.2011 while he was working on probation appointed under the Rajasthan Panchayati Raj (Prabodhak) Rules, 2008 passed by the Additional Chief Executive Officer and Dist. Education Officer, Elementary Education, Zila Parishad, Barmer on the ground that his continuous teaching experience of 5 years as condition for said appointment on the post of Prabodhak was not fulfilled by him and the experience certificate issued by the Rajasthan Public Upper Primary School, Arat Ka Jao, Siwana, Dist.
Barmer was only for the period from 23.2.2002 to 16.5.2006, which was only for 4 years, 2 months and 21 days, less than requisite 5 years.
2. The present writ petition has been filed on the ground of another and subsequent experience certificate obtained by the petitioner from the said Rajasthan Public School Upper Primary School, which was also later on impleaded as respondent No. 4 in the present writ petition that for the period from 20.6.2006 to 30.5.2007, the petitioner obtained the training for the course of B.Ed. and has rejoined the said School from 2.7.2007 and from 2.7.2007, he is working as on the date of issuance of the said School Certificate Annex. 2 dtd. 14.6.2008. The petitioner is said to have undergone B.Ed. Course in one Rahmat-e-Alam College of Education, Rehmatabad-Anchidora, Anantnag, University of Kashmir during this period of 20.6.2006 to 30.5.2007.
3. The learned counsel for the petitioner, Mr. Mukesh Rajpurohit submitted that this Court in the case of Smt. Vishnu Kanwar and 157 Ors. V/s. State of Rajasthan reported in 2009 WLC (Raj.) UC 186 has held that experience of B.Ed. Course can be treated at par with the teaching experience required under the aforesaid 2008 Rules for appointment on the post of Prabodhak. It was also so held in the case of Shankar Lal V/s. State of Rajasthan and ors. - SBCWP No. 6766/2008 - decided on 15.10.2008. The relevant portion from the two judgments cited at Bar are quoted below for ready reference:
As a matter of fact, the break in service is the period in which the relationship of master and servant does not survive due to some positive act, either by the employee or by the employer. The period of leave due to unavoidable circumstances or to say the circumstances beyond the control of the employee or the employer cannot be treated as break in service. Similarly if the (4 of 9) [ CW-14204/2017] leave is sanctioned one, then that too maintains the relationship of master and servant. The period of availing sanctioned leave, thus, cannot be excluded from the term of continuous service.
In view of whatever said above, all these petitions for writ are allowed. The respondents are directed to consider the period consumed by the petitioner's in undergoing training necessary for appointment as Prabodhak, the period of leave sanctioned or the leave availed for the reasons beyond control as part of teaching experience acquired. The period aforesaid is also not required to be considered as break in service. As such, the respondents should act expeditiously to give effect to the select list relating to the petitioners and also relating to the persons similarly situated, as far as possible within a period of one and half month from today by giving appointment to them, if they are otherwise eligible. It shall be open for the respondents to demand original documents and other relevant facts from the petitioners to get satisfied about their claim for the period relating to teaching experience and leave in question.
Suffice it to mention here that the interpretation of term "experience" under Rule 2(1) relates to promotion from one service to another or within the service from one category to another or to Senior Posts in the case a person is holding a lower post. For the purpose of promotion, the period of training is required to be taken into consideration as experience, however, the Rules are silent regarding consideration of training as experience for direct recruitment. The term "teaching experience" as interpreted under Rule 2(k), though not refers that what shall be the teaching experience, but that is quite broad. It refers inclusion of experience gained in supervisory capacity in any recognised educational institution or project as teaching experience. Meaning thereby, the teaching experience includes the experience of teaching as well as the experience gained in supervisory capacity with a recognised institution. A person undertaking training for holding a teaching post after selection to a post concerned then that certainly stands on a better pedestal for considering "teaching experience" than the experience gained in supervisory capacity. The period spent for training is already treated as part of experience under the Rules of 2008, for the purpose of promotion and, therefore, in totality of the facts and legal position as stated above, I do not find any just reason to deny the post selection training relating to a teaching post as a (5 of 9) [ CW-14204/2017] "teaching experience". The petitioner in view of whatever said above is certainly having a "teaching experience" of more than five years on inclusion of the training relating to post of Para Teacher. He is, thus, entitled to be considered for appointment as Prabodhak.
The argument for getting relaxation with the experience too is having merit as the shortage of five days experience is due to an error of a Panchayat Raj Institution and for that the respondents while making appointment as Prabodhak with a Panchayat Raj Institution must protect the petitioner from an undue hardship. If the respondents do not extend the relaxation in experience, then the petitioner for no fault on his part shall be deprived of from his valuable right to be considered for appointment as Prabodhak.
Accordingly, this petition for writ is allowed. The rejection of the petitioner's candidature on the count of lacking experience is declared illegal. The respondents are directed to consider the candidature of the petitioner for appointment on the post of Prabodhak in District Jodhpur and appointment be accorded to him if he stands in merit and is otherwise eligible to hold the post of Prabodhak. Compliance of the directions given above is required to be made within a period of two months from today.
4. Mr. Mukesh Rajpurohit, learned counsel for the petitioner, therefore, submitted that the said period of course of B.Ed.
undertaken by him in the University of Kashmir in the aforesaid Rahmat-e-Alam College of Education College deserves to be treated at par with the teaching experience requisite for appointment on the post of Prabodhak and therefore, the termination of petitioner from the services vide order dtd. 2.9.2011 was illegal and the petitioner deserves to be reinstated back in service.
5. On the other hand, Mr. B.L. Bhati, learned counsel for the respondent--Education Department and Mr. R.S. Mankad, appearing for the respondent No. 4 - Rajasthan Public Upper Primary School submitted that the impugned termination order is valid and the experience of B.Ed. course allegedly undergone in the University of Kashmir in the aforesaid Rahmat-e-Alam College of Education, Rehmatabad-Anchidora, Anantnag and that too with the break of continuous experience between the period from 16.5.2006 till 20.6.2006 and thereafter upon reappointment in the same School of the petitioner from (6 of 9) [ CW-14204/2017] 2.7.2007 is not sufficient to construe the same as continuous 5 years' teaching experience and therefore, the impugned termination order is liable to be sustained and cannot be quashed.
6. I have heard the learned counsels for both the parties and perused the record and the judgments cited at the Bar.
7. The experience certificate, Annex. 1 dtd. 14.6.2008 was also countersigned by the respondent - District Education Officer, Elementary Education, Barmer, in which the said respondent No. 4--Rajasthan Public Upper Primary School has given the experience certificate for the present petitioner for the period from 23.2.2002 to 16.5.2006 only which is less than 5 years. It appears that the petitioner obtained another experience certificate Annex. 2 dtd. 14.6.2008 of the same date as Annex. 1 with a "Note" appended therein that from the period from 20.6.2006 to 30.5.2007, the petitioner obtained B.Ed. Training. This was purportedly done upon the petitioner producing the certificate of University of Kashmir in Rahmat-e-Alam College of Education, Rehmatabad-Anchidora, Anantnag before the said respondent No. 4-Rajasthan Public Upper Primary School. Though the respondent No. 4--Rajasthan Public Upper Primary School itself does not provide any B.Ed. Training and the said 'Note' appears to have been given without any verification of the fact that the petitioner had actually obtained B.Ed. Degree from the University of Kashmir in Rahmat-e-Alam College of Education, Rehmatabad-Anchidora, Anantnag.
8. This Court suspects as to why a person living in the western part of Rajasthan who also got appointment as Prabodhak in the State Government and when upon verification of experience certificate Annex. 1, it was found that the previous teaching experience is falling short than the requisite 5 years, to fulfill that gap, the said certificate of University of Kashmir was produced later on. There is no mention in the certificate, Annex. 2 that the B.Ed. Course was either given by the said respondent No. 4 - Rajasthan Public Upper Primary School nor before the counter-signature appended by the Dist. Education Officer, Elementary Education, Barmer in the experience Certificate, Annex. 2, he made any enquiry. The experience certificate, Annex. 2 has been issued on the very same date on 14.6.2008, while the Annex. 1 certificate is also of 14.6.2008, but a 'Note' emerged therein in Annex. 2 signed by the Head Master of the said School and counter-signed by the Dist. Education Officer.
(7 of 9) [ CW-14204/2017] While all these are questions of facts and enquiry cannot be launched into the veracity of these certificates at this stage, while exercising jurisdiction under Article 226 of the Constitution of India, but it was expected of the respondent-- Appointing Authority of the State, namely, Dist. Education Officer, Elementary Education, Barmer to have made proper verification of the said documents and veracity of the same before counter-signing the so called experience certificate issued on the same date by the private respondent No. 4-- Rajasthan Public Upper Primary School appending an additional 'Note' therein purportedly to cover up the case of the petitioner of experience over 5 years, so that his termination on the ground of his experience falling short than 5 years can be questioned before this Court.
9. It is true that there is no prohibition in a person belonging to the western part of Rajasthan to undertake such a course of B.Ed. from the University of Kashmir in Rahmat-e-Alam College of Education, Rehmatabad-Anchidora, Anantnag, even though such course is very much available in all the parts of Rajasthan also but it is a matter of enquiry specially when no supporting evidence is available on record to establish that the present petitioner had actually undertaken this course by running within the State of Kashmir during that period. The migration certificate issued by the University of Kashmir produced by the petitioner along with the additional affidavit filed in this Court later on 7.9.2011, after filing the present writ petition on 5.9.2011 also, prima face indicates that all these relevant documents were not produced before the appointing authority along with the application seeking appointment as Prabodhak, who could verify the same at that point of time itself. Now when the appointment is terminated on this ground, all these documents are sought to be produced by the petitioner, which have remained absolutely unverified at the level of respondents. The private respondent No. 4-Rajasthan Public Upper Primary School prima facie had no authority to append such a 'Note' on Annex. 2 experience certificate of the same date of 14.6.2008 and that the petitioner was undergoing B.Ed. Training from 20.6.2006 to 30.5.2007 at least without verifying the truth or the veracity of the certificate by Rahmat-e-Alam College of Education produced before the said School. The Dist. Education Officer, Elementary Education, Barmer also appears to have counter-signed the said experience certificate of school without any proper verification.
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10. The matter is thus, required to be sent back to these authorities for proper verification of the facts of petitioner having undergone the training of B.Ed. Course from University of Kashmir in Rahmat-e-Alam College of Education for the said period from 20.6.2006 to 30.5.2007. Unless such a verification is made and fact is established, the benefit of judgments of this Court cited supra cannot be extended to the petitioner.
11. Therefore, the writ petition is disposed of with a liberty and direction to the petitioner to approach the respondent--Director, Elementary Education, Bikaner and produce all the relevant documents in support of his representation and the claim of having acquired 5 years' continuous teaching experience including the training of B.Ed. Course in the University of Kashmir and the said Director, Elementary Education, Bikaner after proper enquiry and verification into such relevant documents and by summoning the petitioner, the Head Master of the Rajasthan Public School Uchch Prathmik Vidhyalaya, Arat Ka Jao, Siwana, Dist. Barmer and the Dist. Education Officer, Elementary Education, Barmer, will pass appropriate speaking orders in accordance with law for arriving at the conclusion whether such certificate of B.Ed. Course produced by the petitioner of Rahmat-e-Alam College of Education of University of Kashmir are genuine documents or not and if they are found to be genuine, he will be further free to pass appropriate fresh orders in accordance with law considering the case of the petitioner for reinstatement in service. However, on the other hand, if the said certificates are found to be false and forged, the said Director, Elementary Education, Bikaner will be free to file FIR or a criminal complaint against the petitioner as well as Head Master of respondent No. 4--Rajasthan Public School Uchch Prathmik Vidhyalaya and the Dist. Education Officer, Elementary Education, Barmer and the further fate of the present case shall be subject to the regular trial by the competent court in accordance with law. No order as to costs. A copy of this order be sent to the parties concerned forthwith."
2. In light of aforequoted judgment, these writ petitions are disposed of in the same terms. The respondents are directed to consider case of petitioners within a period of 60 days from (9 of 9) [ CW-14204/2017] today. The petitioners shall be free to raise any other point when such consideration is made in accordance with the aforementioned precedent law, which shall also be dealt with by the respondents.
Any termination order made in past shall not come in way of fresh adjudication and the petitioners shall continue in service till final determination is made as interim order was already operating in their favour throughout the writ petition.
(DR. PUSHPENDRA SINGH BHATI), J.
Sanjay