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2003 DIGILAW 213 (RAJ)

Badri Lal Joshi v. State

2003-02-10

P.C.TATIA

body2003
Honble TATIA, J.–Heard learned counsel for the parties. (2). Brief facts of the cases are that an advertisement was issued and published in Rajasthan Patrika on 8.8.98 inviting applications for the post of Physical Training Instructor Gr. III (Male). The qualification for recruitment to the post of Physical Training Instructor Gr. III (Male) was shown as candidate must possess certificate of Senior Secondary issued by a Board recognized by the State Government and the Secondary certificate in five subjects issued by a Board recognized by the State Government, out of which atleast 3 subjects should be mathematics, English and Hindi. In addition to this, the candidates should possess certificate in physical education. (3). The petitioners applied for the post and found their names in the merit list prepared by respondent No.3. In the month of Nov. 1998, petitioners found that their names have been deleted from the merit list and other persons are being offered appointment on the said post. The petitioners found that their names were deleted on the ground that they have passed their Sr. Secondary Examination in vocational course and that was not treated as course equivalent to Sr. Secondary Examination (Academic) course. It appears that equivalence of the course of Sr. Secondary Examination (Vocational) with Sr. Secondary Examination (Academic) was subject matter before this court in various litigations. It appears from one Division Bench decision of this court delivered in State of Rajasthan and Anr. vs. Mukesh Kumar and Anr. (1), decided on 7.5.1999 alongwith other matters, it is clear there are conflicting judgments on the point but by this judgment of Division Bench, it was clarified that persons possessing certificate in Vocational course cannot be held eligible for being appointed as Teacher Gr. III. The view which was taken in the earlier judgment of this court that Vocational course cannot be treated as equivalent to the certificate of Academic course was approved by the Division Bench of this court. The same controversy came before this court in Nafeez Khan and Ors. vs. State and Ors. (2). This judgment was delivered by Honble Mr. Justice P.P. Naolekar as he was than, who was also Member of the Bench which delivered the Division Bench judgment in the case of State of Rajasthan vs. Mukesh Kumar (supra). The learned Single Judge while deciding SBCW Pet. vs. State and Ors. (2). This judgment was delivered by Honble Mr. Justice P.P. Naolekar as he was than, who was also Member of the Bench which delivered the Division Bench judgment in the case of State of Rajasthan vs. Mukesh Kumar (supra). The learned Single Judge while deciding SBCW Pet. No. 324/99 considered the policy decision taken by State of Rajasthan whereby a bridge course has been introduced for the candidates who came from the Vocational streams. If such candidates qualify the said Briedge course, they shall be considered possessing qualification equivalent to the qualification of Senior Secondary Academic and would be considered for appointment to the posts advertised as mentioned in advertisement issued in the year 1998- 99. In view of above policy decision, learned Single Judge directed respondents to consider the cases of petitioners on the basis of their merit and they be given appointment, if they are found more meritorious than the persons who have already been given appointment. (4). It appears that one matter was taken up to Honble Supreme Court involving the same controversy with respect to the dispute regarding equivalence of two qualification i.e. Senior Secondary (Vocational) viz a viz Sr. Secondary (Academic) course. The Honble Supreme Court while considering the controversy in the case of Sunita Sharma and Ors. vs. State of Rajasthan and ors. (3), in para No. 5 of the judgment observed that The High Court also held that the qualification of Senior Secondary (Vocational) is equivalent to Sr. Secondary (Academic) of the Board. The Honble Supreme Court held as under : ``It appears to us that the High Court passed its order only to adjust equities in the case. If that is so, we fail to understand as to why the appellants before us should not be accommodated by the Government when they possess the due qualifications, as noticed by the learned Single Judge. Their cases ought to have been considered as per the directions issued by the learned Single Judge. If that is so, we fail to understand as to why the appellants before us should not be accommodated by the Government when they possess the due qualifications, as noticed by the learned Single Judge. Their cases ought to have been considered as per the directions issued by the learned Single Judge. In that view of the matter, we direct the respondents to consider the cases of the appellants before us and appropriate action be taken thereof within a period of two months on the basis of the marks obtained by them in the higher secondary examination subject to the condition that their appointments shall be treated as fresh appointments and they will not have any claim as to the seniority or other benefits. It is made clear that we have passed this order in the peculiar circumstances arising in these appeals and the same shall not be treated as a precedent. (5). This court had further occasion to consider the controversy in the case of Deep Chand vs. State and Ors. (4), decided on 5.9.2002. In this case, judgment of Sunita Sharma (supra) was considered and in view of decision given by Honble Supreme Court, it was held that qualification of Senior Secondary (vocational) has been found to be equivalent to Sr. Secondary (Academic) course and, therefore, the petitioner of that writ petition was found entitled for appointment on the post of Teacher Gr. III in pursuance of advertisement issued by respondent No.3 in the year 1998. (6). In the back ground of above, it is significant to mention here that petitioners alongwith one Hiralal submitted one writ petition in the year 1998 bearing SBCW Pet. No. 4390/98 but it appears that above writ petition was dismissed and, therefore, DBC Spl. Appeal No. 325/99 was preferred by the petitioners wherein counsel for the appellant submitted that after dismissal of writ petition of petitioners, State Government itself issued circulars by which directions were issued for providing appointments to those candidates who have passed the bridge course. The Judgment of learned Single Judge could not come in the way of petitioners. Before Division Bench, the learned counsel for the respondents submitted that if appellants will approach the competent authority by way of appropriate representation, then the same shall be considered and decided in accordance with law. The Judgment of learned Single Judge could not come in the way of petitioners. Before Division Bench, the learned counsel for the respondents submitted that if appellants will approach the competent authority by way of appropriate representation, then the same shall be considered and decided in accordance with law. On this assurance, the Division Bench permitted one months time to the petitioners to approach the competent authority and competent authority was directed by the Division Bench of this court in its order dated 28.5.01 to decide the representation of petitioners within a period of three months. The petitioners submitted representation to the competent authority but the representation of the petitioner was rejected by order dated 19.2.2002 only on the ground that no such order or direction to give appointment to candidates who passed the bridge course was issued by the Director, Secondary Education. (7). The petitioners aggrieved against above decision, submitted contempt petition bearing DBC Contempt Pet. No. 16/2002, that was dismissed by Division Bench on 2.8.2002 on the ground that since the direction of Division Bench in its order dated 28.5.01 was to consider the representation of petitioner and which has been complied with, therefore, no case of wilful disobedience is made out. The Division Bench observed that if the petitioner have any grievance against the order, then they may challenge the order of rejection of candidature, therefore, the petitioners have preferred this present writ petition challenging the order dated 19.2.2002. (8). According to learned counsel for the petitioners, the State Government particularly the Education Department itself issued one order dated 9.6.1999 wherein it is specifically said that candidates who applied for post against the vacancies of 1998-99, their merit list may be prepared after obtaining necessary certificate of passing the Bridge Course Examination which is to be conducted by Rajasthan Secondary Education Board, Ajmer. Their names may be included in the merit list according to their merit. After this decision, the petitioners appeared for bridge course conducted by the Board and they passed in all the subjects. Yet another order was issued on 14.3.02 by the Education Department of the State Government holding that candidates who have passed the bridge course, they will be entitled for appointment to the post of Teacher Gr. III. Despite particularly issued by Education Department itself and despite the fact that Distt. Yet another order was issued on 14.3.02 by the Education Department of the State Government holding that candidates who have passed the bridge course, they will be entitled for appointment to the post of Teacher Gr. III. Despite particularly issued by Education Department itself and despite the fact that Distt. Education Officer it elf issued the direction to give appointment to the candidates against the vacancies of 1999 by following the decision given in the case of Nafees Khan (supra), the competent authority vide impugned order dated 19.2.2002 (Annex. 7) rejected the candidature of petitioners only on the ground that no such orders were issued by the Director (Education), Bikaner. It is also submitted that decision given by this Court in Nafees Khans case was accepted and implemented by the State Government particularly Education Department itself by issuing direction to give appointment by following decision of this court delivered in the case of Nafees Khan, still denying the appointment to the petitioner is absolutely unjust and improper. It is also submitted that respondents are denying their own orders and circulars and also giving benefit of the same orders to some persons. (9). The learned counsel for the respondents vehemently submitted that no circular was issued by the Education Department to the existing selected candidates who applied in pursuance of advertisement of the year 1998-99. It is also submitted that circular dated 9.6.1999, copy of which is placed on record as Annex. 5 is SBCW Pet. No. 4427/2002, has no application to the case of petitioners because this circular is applicable to the future vacancies and not to the petitioners who applied against the advertisement of year 1998-99. Learned counsel for the respondents fairly admitted that Teacher Gr. III possessing the Secondary (vocational) qualification and who completed the bridge course were given appointment by the Panchayati Raj Department only but according to learned counsel for the respondents, neither there is decision of State Government to give appointment to the candidates possessing the qualification of Senior Secondary (Vocational) course plus bridge course in the Education Department. Learned counsel for the respondents heavily relies upon the Division Bench decision of this court delivered in the case of State of Rajasthan and Ors vs. Mukesh Kumar and Ors. (supra) wherein Division Bench held that two course are not equivalent. Learned counsel for the respondents heavily relies upon the Division Bench decision of this court delivered in the case of State of Rajasthan and Ors vs. Mukesh Kumar and Ors. (supra) wherein Division Bench held that two course are not equivalent. It is also submitted that petitioners did not produce any circular of the State Government before the Distt. Education Officer (Secondary), Chittorgarh which the petitioners are referring in the present writ petition. (10). After considering the entire facts of this case and the documents placed on record and after considering the judgments relied upon by both the counsels, it is clear that there was controversy with respect to equivalence of two courses. It is also clear that there were two conflicting judgments relating to same controversy of equivalence of two courses and it is also not in dispute that in the judgment delivered by Division Bench of this court in the case of State of Raj. vs. Mukesh Kumar (supra) decided on 7.5.1999, it has been held that two course are not equivalent whereas in the subsequent Supreme Court judgment delivered in the case of Sunita Sharma (supra), it was observed that High Court held that qualification of Sr. Secondary (Vocational) is equivalent to Sr. Secondary (Academic) of the Board. The Honble Apex Court while deciding the above matter observed that High Court passed the ultimate order only to adjust equities in the case of only some of candidates and same principle should be applied to other candidates also and their cases also required to be considered as per direction issued by learned Single Judge and ultimately directed respondents to consider the cases of appellants (before Supreme Court). It is true that in this Judgment, it is clearly mentioned that judgment shall not be treated as precedent. But as is clear from the facts mentioned above, question of equivalence of course became secondary in the present controversy particularly in view of the fact that State Government itself evolved the policy to do the justice to the candidates who applied for the post in pursuance of advertisement and issued direction to hold the bridge course examination to make candidate eligible for appointment to the post of Teacher Gr. III and for the post of P.T.I. Gr. III who were possessing certificate of Sr. Secondary (Vocational) course. This decision was implemented for the Teacher Gr. III and for the post of P.T.I. Gr. III who were possessing certificate of Sr. Secondary (Vocational) course. This decision was implemented for the Teacher Gr. III in the Panchayati Raj Department of the State Government. The State Government issued some directions for the Teacher Gr. III of the Education Department which is clear from order dated 9.6.99 (Annex. 5) and the order dated 14.3.2000 (Annex. 7). In order dated 9.6.99 it is clearly mentioned that necessary request be sent to the Secondary Board, Ajmer to conduct the bridge course and after that petitioners appeared in the bridge course and passed the same in the year 2000. No justification has been shown by the respondents in their reply for treating the Senior Secondary (Academic) course not equivalent (for the purpose of giving appointment to the post of Teacher Gr. III) to the Senior Secondary (Vocational) course even after passing the bridge course which was started only to fill up the deficiency in any qualification if it was there in Sr. Secondary (Vocational) course. No justification has been shown that how the Teacher Gr. III working in the employment of Panchayati Raj Department were held to be sufficiently qualified if they are possessing the certificate of Sr. Secondary (Vocational) course plus bridge course and how the person having same qualification is not eligible for the post of Teacher Gr. III including P.T.I. Gr. III in the Education Department. The order issued by the State Government particularly of the Education Department itself cannot be flouted by the respondents themselves. (11). The contention of learned counsel for the respondents that order dated 9.6.99 has application for future appointment, is devoid of any force because this order itself very clearly deals with the vacancies of the year 1998-99 and to the candidates who have already applied for the appointment in the year 1998-99. Otherwise also, there appears to be no justification for giving two different status for appointment on the post of Teacher Gr. III by the State Government through its different agencies. (12). The order dated 19.2.2002 passed by Distt. Education Officer (Secondary), Chittorgarh appears to have been passed without considered the order dated 9.6.99 and 14.3.2000 issued by the Education Department itself. Learned counsel for the respondents submits that petitioners have not placed above two orders before Distt. Education Officer who passed the impugned order dated 19.2.2002. (12). The order dated 19.2.2002 passed by Distt. Education Officer (Secondary), Chittorgarh appears to have been passed without considered the order dated 9.6.99 and 14.3.2000 issued by the Education Department itself. Learned counsel for the respondents submits that petitioners have not placed above two orders before Distt. Education Officer who passed the impugned order dated 19.2.2002. It is not expected from the respondents that they will take such a plea after large number of writ petitions decided by different Benches of this court and by Honble Apex Court in the case of Sunita Sharma (supra). The respondents are not expected to ask for relevant orders passed by their own wing which were made subject matter of the writ petition in the court, therefore, order of Distt. Education Officer (Secondary), Chittorgarh dated 19.2.2002 cannot be allowed to stand and deserves to be set aside. (13). The stand of respondents after the decision of this Court in the case of Nafees Khan (supra) and Sunita Sharma (supra) cannot be justified. The respondents are, therefore, directed the consider the cases of petitioners for the post of P.T.I. Gr. III on the basis of their merit and they be given appointment because of the fact that only ground for denial of appointment was found to be wrong by this court. (14). In SBCW Pet. No. 4427/2002, the petitioner has challenged the order dated 12.2.2002 (Annex. 3) by which services of petitioner were terminated on the ground of lack of qualification. In view of reasonings given above while deciding SBCW Pet. No. 3483/2002, the order dated 11.2.2002 (Annex. 3) deserves to be quashed, hence quashed. The respondents are directed to reinstate the petitioners in service with all consequential benefits. (15). Both the writ petitions are allowed with the directions as mentioned above.