Rajasthan High Court - Jodhpur
Shish Ram & Ors vs State Of Rajasthan & Anr on 21 March, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1494 / 2018
1. Shish Ram S/o Ram Kumar, Aged About 30 Years, R/o Village
Udansari, Post Gangiasar, Tehsil Fatehpur, District Sikar (Raj.).
2. Arun Agarwal S/o Hukam Chand Agarwal, Aged About 30 Years,
R/o Adarsh Nagar, Deoli Road, Tonk (Raj.)
3. Navneet Singh Dixit S/o Ramesh Chandra Dixit, Aged About 28
Years, R/o Village & Post Koyla, Tehsil Baran, District Baran.
4. Satpal S/o Mahander Kumar, Aged About 27 Years, R/o Ward
No.03, Near Ramdev Mandir, Village & Post Ramsara Nayaran,
Hanumangarh Town.
----Petitioners
Versus
1. The State of Rajasthan Through Its Secretary, Rural
Development and Panchayati Raj Department, Government
Secretariat, Jaipur, Rajasthan.
2. The Director, Primary Education, Rajasthan, Bikaner.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Hanuman Singh Choudhary
For Respondent(s) : Mr. Deepika Purohit with Mr. Dinesh Ojha for
Mr. P.R. Singh, AAG
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 21/03/2018
1. The petitioners have preferred this writ petition under Article 226 of the Constitution of India, claiming the following reliefs:
"(i). The action of the respondent while changing the criteria of preparation of merit list vide Clause 5 of General Instruction and Clause 10(2) of the amended advertisement No.01/2017 dated 11.09.2017 and accordingly issuing the cut off marks dt. 25.01.2018 (2 of 9) [CW-1494/2018] (Annexure-09) may kindly be declared bad in law, unjust, arbitrary and contrary to well settled law propounded in K. Manjushree's case by Hon'ble Apex Court and further violative to Article 14, 16 and 21 of the Constitution of India and the same be quashed and set aside; and/or
(ii) The respondents may kindly be directed to prepare the select list as per clause 10(2) of the principal advertisement No.01/2016 dated 06.07.2016 on the basis of maximum marks obtained in RTET-2011, REET- 2012 or REET-2015 only and if the petitioner's come in merit list, then they be offered appointment on the post of Teacher Grade III (Level-II); and/or
(iii) In alternate, the respondents may kindly be directed to provide weightage to the marks obtained by the aspirant obtained in Graduation while applying the statistical formula for normalization as per different universities/institutions for different years while evolving percentile formula as adopted in other examination like IIT, etc.
(iv) In alternate, the respondents may kindly be directed to conduct competitive examination and prepare the merit list as per marks obtained in the competitive examination alongwith 20% marks of TET Examination as adopted in earlier recruitment of Teacher Grade-III for the year 2012 and 2013."
2. The brief facts of this case, as noticed by this Court, are that the respondent/department issued an advertisement No.01/2016 dated 06.07.2016 for recruitment on the post of Teacher Grade-III Level-I (Classes I to V) and Level-II (Classes VI to VIII) through the Rajasthan Primary and Upper Primary School Teacher Direct Recruitment, 2016 for Non-TSP area under the Rajasthan Panchayati Raj Act, 1994 and the Rajasthan Panchayati Raj Rules, 1996 framed thereunder.
(3 of 9) [CW-1494/2018]
3. The bone of contention in the present writ petition is that certain instructions have been given in Clause 10(2) of the said advertisement dated 06.07.2016, which is reproduced as hereunder:
"10¼2½& jktLFkku v/;kid ik=rk ijh{kk ¼REET½ 2015 ,oa RTET 2011 o 2012 ds rhuksa o"kksZ dh ijh{kkvksa ds vf/kdre izkIrkadksa ds vk/kkj ij jkT; Lrjh; esfjV cukbZ tk;sxh-"
4. Learned counsel for the petitioners has pointed out that criteria of clause 10(2) was changed by way of the amended advertisement, in respect of the posts in question, issued on 11.09.2017, and a new condition was incorporated in Clause 10(2) of the advertisement, which reads as follows:
"10¼2½& jktLFkku v/;kid ik=rk ijh{kk ¼ REET/REET½ ¼RTET 2011, RTET 2012 & REET 2015 ½ esa vf/kdre izkIrkad izfr'kr dk 70 izfr'kr ,oa Lukrd ijh{kk esa dqy izkIrkad izfr'kr dk 30 izfr'kr fy;k tkdj dqy 100 izfr'kr esa ls jkT; Lrjh; eSfjV cukbZ tk;sxh- "
5. Learned counsel for the petitioners has pointed out that the Division Bench of this Hon'ble Court in Sher Singh Vs. State of Rajasthan (D.B. Civil Special Appeal No.1464/2016) had directed the respondents to amend the Rules regarding the eligibility for Subject Teachers. Paras 34 to 36 of the said judgment reads as under:-
"34. Within our Constitution, we have specifically demarcated the ambit of power and boundaries of the three organs of the society by laying down principles of separation of powers which have to be adhered for carrying out democratic functioning of the country. Subordinate legislations are framed by the executive by exercising the delegated powers conferred by the statute which is the rule making power. Thus, it is inappropriate for the Courts to issue a mandate to the State of its authorities to act in a (4 of 9) [CW-1494/2018] particular fashion and manner. We are afraid that the directions issued by the learned Single Judge would amount to legislate as to how the appointments should be made and what should be the qualification for the post of Teacher in the subjects and what should be the minimum qualification for appointment of a Teacher in a particular subject. However, suffice it to state that the decision to incorporate the marks obtained at various levels to treat a particular individual as eligible for appointment as a Teacher in a particular subject, would solely rest with the Government who may frame rules thereto and this Court cannot embark upon such an exercise.
35. The question, which arises for consideration of this Court, as noted above, is limited to as to how the merit is to be prepared. We find that as per the advertisement, which requires a candidate to have a particular minimum educational qualification and also to have REET eligibility, has decided to prepare merit only on the basis of the marks obtained in the REET which has resulted in causing ambiguity, confusion and administrative chaotic situation where a candidate may be able to secure appointment as a Teacher in a particular subject, even though he may not have studied that subject at all. Such cannot be the purpose of selection and we, therefore, hold that the advertisement condition of preparation of merit itself being vague and contrary to the purpose sought to be achieved, deserves to be set aside and we accordingly do so. It may also be noted that a subject Teacher of level-2 is also entitled for further promotion under the relevant educational service rules in that subject to the level of Teacher Gr. II in order to teach higher classes. If a candidate enters on the lower post, even without having the minimum qualifications in that subject, would amount to resulting in a chaotic situation.
36. The selection on the basis of the condition laid down in the advertisement, therefore, is held to be bad in law and the said criteria is declared as invalid with further directions to the authority to re-advertise the vacancies by preparing a valid criteria of merit for appointment of Teachers for level-2 i.e. for subject Teachers for Classes from VI to VIII afresh keeping in mind the purpose of selection of Teachers in a particular subject."
(5 of 9) [CW-1494/2018]
6. Learned counsel for the petitioners states that the aforesaid direction was to keep in mind the observations, but not to lay down a criteria of merit in favour of any particular subject.
7. Learned counsel for the petitioners has shown from his prayer clauses that condition No.10(2) of the amended advertisement was prejudicial to him, as the subject marks criteria, which has been stipulated by the respondents is prejudicial to the interests of the candidates, like the present petitioner, as it would result into his ouster from the merit, which has been re-determined by the respondents.
8. Learned counsel for the petitioners has relied upon the judgment of this Hon'ble Court at Jaipur Bench in Ramhari Meena & Ors. Vs. State of Rajasthan & Anr. (S.B. Civil Writ Petition No.12271/2016) decided on 03.11.2016, the relevant portion of which reads as under:
"It is true that in the fitness of thing, it would have been better that along with the marks secured in the Teacher Eligibility Test, same weightage ought to have been given in the marks secured by a candidate in the essential qualification prescribed for recruitment to the post of Teacher, but merely because State Government has not taken into consideration the marks obtained by the candidates in B.A. and B.Ed., it cannot be said that the selection criteria devised by the State Government is bad in the eye of law.
However, this Court shall impress upon the State Government that for the future recruitment, they should give due consideration to the marks obtained by a candidate in essential qualification. It is also left to the prerogative of the State Government that they should also give due consideration to the excellence achieved by a candidate in extra co-curricular activities, like NCC, (6 of 9) [CW-1494/2018] declamation, debate, fine arts and sports etc. However, this Court cannot become oblivious of the fact that the State Government abdicated its power to award marks for extra co-curricular activities to save themselves from the allegations of favouritism, litigation and other complications, which may have arisen."
9. Learned counsel for the respondents has refuted the aforesaid submissions made on behalf of the petitioners on the ground that Para 35 & 36 of the judgment in Sher Singh (supra) clearly cast an obligation upon the respondents to make a fresh advertisement as the Subject Teacher was required to be given preference, in lieu of his/her performance in the Subject concerned, in respect whereof he/she is seeking recruitment.
10. It is contended by learned counsel for the respondents that the Division Bench of this Hon'ble Court in the aforequoted judgment in Sher Singh & Ors. Vs. Dinesh Singh & Ors. (supra) has categorically held that a fresh criteria shall be laid down, while declaring the earlier criteria as invalid, so as to ascertain the merit for appointment of Subject Teachers afresh, keeping in mind the purpose of selection of Teachers in a particular Subject.
11. Thus, as per learned counsel for the respondents, the core intention of the Division Bench of this Hon'ble Court was that the Subject Teacher should have some merit on account of that particular Subject coupled with the qualification attained by him therefor.
12. Learned counsel for the respondents has thus, summarized that the aforementioned Condition 10(2) in the (7 of 9) [CW-1494/2018] advertisement dated 11.09.2017, which is the subject matter of the present assailment, is nothing, but a compliance of the order of the Hon'ble Division Bench in the case of Sher Singh (supra), whereby the Hon'ble Division Bench mandated the respondents to give preference to the merit secured by the candidate concerned in the particular Subject, in respect of which he/she was seeking appointment, and the Condition No.10(2) has therefore, rationalized such distribution of merit on the basis of marks obtained in the Subject concerned. The Condition 6-B also is for giving due preference to the Subject merit, in accordance with the spirit of the aforementioned judgment of the Hon'ble Division Bench.
13. The argument of the petitioners' counsel that the weightage to the marks obtained by the aspirant concerned in the Graduation, while applying the statistical formula or normalization as per different Universities and Institutions for different years, while evolving percentile formula, as adopted in the other Examinations, like IIT, was to be adopted, cannot be accepted in the present circumstances, where already the selection process is at the verge of its being re-conducted, while setting at naught the earlier process, in light of the judgment of the Division Bench of this Hon'ble Court in Sher Singh's case (supra). Moreover, the percentile formula and normalization process are statistical techniques to avoid discrepancies in wide evaluation, and the respondents have not been able to justify such action with any ground or fact. Infact the variation in the evaluation would result into prejudice to the aspirant concerned is not reflected at all in (8 of 9) [CW-1494/2018] the given circumstances.
14. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that initially, the advertisement dated 06.07.2016 contained Condition 10(2) giving the criteria for computing the merit only on the count of RTET Examination. The selection process was thereafter changed, as the Division Bench of this Hon'ble Court in the case of Sher Singh (supra), has considered such criteria as vague and arbitrary for appointment on the post of Subject Teachers, as it would render the merit of a particular Subject inconsequential, qua the candidates, who would have secured more marks for the Subject concerned, whereas the criteria for the merit was limited to RTET.
15. After due consideration and coming out heavily upon the criteria, the respondents were directed to amend their criteria, keeping in mind the observations of the Hon'ble Court that the Subject based merit was to be introduced, and thus, the same was exactly followed by the respondents. Upon doing so, a criteria of Subject merit to the tune of 30% was introduced by the respondents in their re-advertisement on 11.09.2017, whereby the weightage of REET was kept to 70% and that of graduation was kept to 30% for the purpose of determination of State level merit list.
16. On a bare reading of the judgment of the Hon'ble Division Bench in Sher Singh (supra), it is abundantly clear that the intention of the said precedent law was to evolve a merit criteria for benefiting the persons to be recruited in a particular (9 of 9) [CW-1494/2018] Subject, and which has been satisfactorily accomplished by the respondents by amending the criteria in question.
17. The precedent law of Ramhari Meena & Ors. Vs. State of Rajasthan & Anr. cited by learned counsel for the petitioners also goes against the petitioner, wherein the criteria was not held to be proper, but the Hon'ble Court restrained from making any changes in the ongoing selection process. However, the said judgment stood overruled by the judicial pronouncement made by the Hon'ble Division Bench in Sher Singh's case (supra), which is now governing the field.
18. In light of the aforesaid observations and discussion, no interference is called for in the present writ petition, and the same is accordingly dismissed.
(DR. PUSHPENDRA SINGH BHATI)J. /zeeshan/