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Rajasthan High Court · body

2003 DIGILAW 802 (RAJ)

Sandhya Bhatnagar (Miss. ) v. State of Rajasthan

2003-05-23

SUNIL KUMAR GARG

body2003
Honble GARG, J.–Both the aforementioned writ petitions are being decided by this common order as in both of them identical questions of law and facts are involved and parties are same. S.B. Civil Writ Petition No. 4367/93 (2). This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 31.1.1992 against the respondents with the prayer that by an appropriate writ, order or direction, the respondents be directed to grant due increments to the petitioner and finalise her fixation in revised pay scales from 1.11.1989 in grade Rs. 1200-2040. (3). The case of the petitioner as put forward by her in this writ petition is as follows:- The petitioner was appointed as Music Teacher Grade III vide order dated 28.3.1985 (Annex. 2 to the writ petition No. 4817/2002) passed by the respondent No. 3 Dy. Director (Girls), Education Department, Jodhpur till end of the session, which was further extended till further orders vide order dated 1.7.1987 passed by the respondent No. 3 Dy. Director (Girls). In the meantime, the petitioner was given one annual grade increment and her pay was raised from Rs. 490/- to Rs. 500/- vide order Annex. 1 dated 30.9.1986. The further case of the petitioner is that she passed Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad in 1982 and a copy of the mark sheet of Prathma Examination is marked as Annex. 7 to writ petition No. 4817/2002. The further case of the petitioner is that she also possessed the degree of Sangeet Prabhakar from Prayag Sangit Samiti, Allahabad and a copy of which is marked as Annex. 6 to the writ petition No. 4817/2002. The further case of the petitioner is that Prathma Examination was recognized by the State of Rajasthan when she passed the Prathma Examination and it was equivalent to matriculation and similarly, the degree of Sangeet Prabhakar was also recognized in the State of Rajasthan for appointment to the post of Music Teacher and thus, since she was having requisite qualifications for appointment to the post of Music Teacher Gr.III, therefore, she was appointed as Music Teacher Gr.III through order dated 28.3.1985 (Annex. 2 to writ petition No. 4817/2002) and therefore, she was entitled to all benefits including revision of pay etc. etc. 2 to writ petition No. 4817/2002) and therefore, she was entitled to all benefits including revision of pay etc. etc. The further case of the petitioner is that the Assistant Accounts Officer, Jodhpur raised an objection that the petitioner did not fulfil the requisite qualifications as prescribed in the Schedule appended to the Rajasthan Education Subordinate Service Rules, 1971 (hereinafter referred to as ``the Rules of 1971) for appointment to the post of Music Teacher Gr.III. The requisite qualifications as prescribed in the Scheduled appended to the Rules of 1971 for appointment to the post of Music Teacher Gr. III are as follows:- ``Senior Higher Secondary or/Higher Secondary or Secondary with optional Music or an equivalent examination recognized by Govt. of Rajasthan. On that audit objection, the petitioner was denied regular increments and revised pay scales etc. The further case of the petitioner is that the degree of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad was recognized on 28.3.1985 when she was given appointment as Music Teacher Gr. III through Annex. 2 to the writ petition No. 4817/2002 and for that Annex. 10, which was filed alongwith additional affidavit, may be referred to. The further case of the petitioner is that no doubt the degree of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad was de-recognized by the Government of Rajasthan, but it was withdrawn in the year 1987 while the petitioner passed that Prathma Examination in the year 1982 and before it was de- recognized, the petitioner was already given appointment as Music Teacher Gr. III on that basis through order dated 28.3.1985 (Annex. 2 to writ petition No. 4817/2002). The further case of the petitioner is that de-recognition of a degree is always prospective and not retrospective and therefore, the said de-recognition of degree of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad in the year 1987 by the State of Rajasthan would not affect the rights of the petitioner. The further case of the petitioner is that a letter dated 28.10.1991 (Annex. 4) was written by the respondent No. 4 District Education Officer (Girls), Barmer to the respondent No. 3 Dy. The further case of the petitioner is that a letter dated 28.10.1991 (Annex. 4) was written by the respondent No. 4 District Education Officer (Girls), Barmer to the respondent No. 3 Dy. Director (Girls), Education Department, Jodhpur in which at para 3, it was stated that the case of the petitioner was considered for fixation in the revised pay scale, 1987, but since she was not having requisite qualification as prescribed in the schedule appended to the Rules of 1971, therefore, she was not given revised pay scale, 1987 and a copy of that letter Annex. 4 was also sent to the petitioner and this aspect has been challenged by the petitioner in this writ petition. It may be stated here that this writ petition was dismissed in default on 16.2.1999 and thereafter, restoration application was also dismissed by this Court on 5.7.1999 and on appeal filed by the petitioner being D.B.C. Special Appeal (Writs) No. 320/2000, the Division Bench of this Court through judgment dated 7.2.2002 restored the writ petition and directed that the writ petition be disposed of on merits. A reply to the writ petition was filed by the respondents and their case is that the petitioner was given appointment as Music Teacher Gr.III through order dated 28.3.1985 (Annex. 2 to writ petition No. 4817/2002), but that appointment order was wholly illegal as the petitioner did not possess the requisite qualifications as prescribed in the schedule appended to the Rules of 1971. It has been further submitted by the respondents that at the time when the petitioner was given appointment through order Annex. 2 to writ petition No. 4817/2002, she was having the following qualifications:- (i) She was having mark sheet of Prathma Examination from Hindi Sahitya Sammelan (Prayag), Allahabad. (ii) She was having Diploma Certificates in Vocal, Instrumental & Dance from Prayag Sangit Samiti, Allahabad. Since the basic appointment of the petitioner was illegal, therefore, she was not entitled to any relief. Hence, the writ petition filed by the petitioner be dismissed. S.B. Civil Writ Petition No. 4817/2002 During the pendency of the above writ petition No. 4367/93, a notice Annex. 8 dated 25.10.2001 under Rule 35(B) of the Rajasthan Service Rules, 1951 (hereinafter referred to as ``the RSR) was issued to the petitioner by the respondent No. 3 Dy. Hence, the writ petition filed by the petitioner be dismissed. S.B. Civil Writ Petition No. 4817/2002 During the pendency of the above writ petition No. 4367/93, a notice Annex. 8 dated 25.10.2001 under Rule 35(B) of the Rajasthan Service Rules, 1951 (hereinafter referred to as ``the RSR) was issued to the petitioner by the respondent No. 3 Dy. Director (Elementary), Education Department, Jodhpur stating that since the petitioner was not having requisite qualifications as prescribed in the schedule appended to the Rules of 1971 for appointment to the post of Music Teacher Gr.III, therefore, her services as Music Teacher Gr.III would stand terminated after the expiry of period of one month from the date of receipt of that notice. Thereafter, through order Annex. 10 dated 30.11.2002 passed by the respondent No. 5 District Education Officer (Elementary Education), Pali, the services of the petitioner were terminated on the ground that she was not having requisite qualifications for appointment to the post of Music Teacher Gr. III, as prescribed in the schedule appended to the Rules of 1971. In this writ petition, Annex. 10 dated 30.11.2002 has been challenged on various grounds and the main ground is that when the petitioner was given appointment to the post of Music Teacher Gr. III through order Annex. 2 dated 28.3.1985, she was having requisite qualifications and thus, the termination of her services through order Annex. 10 is wholly illegal and violative of Article 14 of the Constitution of India. A reply to the writ petition was filed by the respondents and their case is that the services of the petitioner were rightly terminated through order Annex. 10 as she did not possess the requisite qualifications as prescribed in the schedule appended to the Rules of 1971. Hence, the writ petition filed by the petitioner be dismissed. (5). I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. (6). There is no dispute on the point that requisite qualifications for appointment to the post of Music Teacher Gr. III as prescribed in the schedule appended to the Rules of 1971 are that a candidate must possess Senior Higher Secondary or/Higher Secondary or Secondary with optional Music or an equivalent examination recognized by Government of Rajasthan. (7). (6). There is no dispute on the point that requisite qualifications for appointment to the post of Music Teacher Gr. III as prescribed in the schedule appended to the Rules of 1971 are that a candidate must possess Senior Higher Secondary or/Higher Secondary or Secondary with optional Music or an equivalent examination recognized by Government of Rajasthan. (7). There is also no dispute on the point that through order dated 28.3.1985 (Annex. 2 to writ petition No. 4817/2002) the petitioner was appointed as Music Teacher Gr.III and at the time of her appointment, she was having the following qualifications:- (i) Mark-sheet of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad and she passed that examination in 1982. (Annex. 7 to writ petition No. 4817/2002). (ii) Degree of Sangeet Prabhakar issued by the Prayag Sangit Samiti, Allahabad. (Annex. 6 to writ petition No. 4817/2002). (iii) Junior Diploma in Vocal, Singing and Dance from Prayag Sangit Samiti, Allahabad (Annex. 5 to writ petition No. 4817/2002). (iv) Senior Diploma in Vocal, Singing and Dance from Prayag Sangit Samiti, Allahabad (Annex. 4 to writ petition No. 4817/2002). (8). There is also no dispute on the point that when the petitioner was appointed as Music Teacher Gr.III through order dated 28.3.1985 (Annex. 2 to writ petition No. 4817/2002), the degree of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad was recognized degree by the Government of Rajasthan and was equivalent to Secondary Examination. (9). There is also no dispute on the point that the degree of the Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad was de-recognized by the Government of Rajasthan in the year 1987. (10). There is also no dispute on the point that in Prathma Examination, the petitioner was not having any optional subject of Music. (11). There is also no dispute on the point that services of the petitioner were terminated through order dated 30.11.2002 (Annex. 10 to writ petition No. 4817/2002) on the ground that she did not possess the requisite qualifications for appointment to the post of Music Teacher Gr.III, as prescribed in the schedule appended to the Rules of 1971. (12). The question for consideration in the above facts and circumstances is whether at the time of appointment of the petitioner as Music Teacher Gr.III through order dated 28.3.1985 (Annex. (12). The question for consideration in the above facts and circumstances is whether at the time of appointment of the petitioner as Music Teacher Gr.III through order dated 28.3.1985 (Annex. 2 to writ petition No. 4817/2002), she was having requisite qualifications as prescribed in the scheduled appended to the Rules of 1971 or not. (13). Since on the date when the petitioner was given appointment as Music Teacher Gr.III through order dated 28.3.1985 (Annex. 2 to writ petition No. 4817/2002), the degree of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad was recognized degree by the Government of Rajasthan and it was equivalent to matriculation, therefore, the petitioner was having the qualification of Secondary. This is one of the aspects of the matter. (14). In the qualifications prescribed in the schedule appended to the Rules of 1971, there is a condition that either a candidate must have optional music subject in the Secondary or an equivalent examination recognized by the Government of Rajasthan meaning thereby taking of optional music subject in Secondary was not must. (15). In the present case, no doubt the petitioner was not having optional music subject in Prathma Examination, but she passed Sangeet Prabhakar examination in 1984 and she was awarded degree of Sangit Prabhakar by the Prayag Sangit Samiti, Allahabad and that degree was recognized by the State of Rajasthan and it was not de-recognized, therefore, in all respects, if the petitioner was not having optional subject in Prathma Examination, that degree of Sangit Prabhakar should be treated as equivalent to optional subject of music in Secondary. Thus, from this point of view, it should be treated that the petitioner was having the requisite qualifications for appointment to the post of Music Teacher Gr.III. (16). Had the petitioner would have not possessed the degree of Sangeet Prabhakar, the position would have been different. Apart from this, the petitioner also possessed the Junior Diploma in Vocal, Singing and Dance (Annex. 5 to writ petition No. 4817/2002) and Senior Diploma in Vocal, Singing and Dance (Annex. 4 to writ petition No. 4817/2002) and these diploma certificates cannot be said to be lower in merit than to one of the optional subjects of music in Secondary Examination. 5 to writ petition No. 4817/2002) and Senior Diploma in Vocal, Singing and Dance (Annex. 4 to writ petition No. 4817/2002) and these diploma certificates cannot be said to be lower in merit than to one of the optional subjects of music in Secondary Examination. From this point of view also, it can easily be said that though the petitioner was not having optional music subject in Prathma Examination, but since the word ``or is there is the requisite qualification prescribed in the schedule appended to the Rules of 1971 and the petitioner was having the degree of Sangeet Prabhakar and Junior Diploma and Senior Diploma in Vocal, Singing and Dance and these certificates cannot be said to be lower in merit than to the optional music subject in Secondary, therefore, in these circumstances, it should be treated that the petitioner was having requisite qualifications for the post of Music Teacher Grade-III when she was appointed through order dated 28.3.1985 (Annex. 2 to writ petition No. 4817/2002). (17). Apart from this, since the petitioner was given appointment as Music Teacher Gr.III through order Annex. 2 to the writ petition No. 4817/2002 on 28.3.1985 and since then she is working satisfactorily and there is no complaint about her work, therefore, in these circumstances, now after lapse of more than 17 years, the action of the respondents terminating the services of the petitioner through order dated 30.11.2002 (Annex. 10 to writ petition No. 4817/2002) on the ground that she did not possess the requisite qualifications for the post of Music Teacher Gr.III cannot be justified. (18). Thus, for the reasons stated above and looking to the peculiar facts and circumstances of the case, the order dated 30.11.2002 (Annex. 10 to writ petition No. 4817/2002) by which the services of the petitioner were terminated, cannot be sustained and liable to be set aside and the petitioner shall be entitled to all benefits including increments, revision of pay scale etc. treating that she was possessing the requisite qualifications for the post of Music Teacher Gr.III when she was appointed through order dated 28.3.1985 (Annex. 2 to writ petition No. 4817/2002) and both the writ petitions deserve to be allowed. (19). So far as the ruling relied upon by the learned counsel for the respondents in Smt. Rani Mathur vs. State of Raj. & Ors. 2 to writ petition No. 4817/2002) and both the writ petitions deserve to be allowed. (19). So far as the ruling relied upon by the learned counsel for the respondents in Smt. Rani Mathur vs. State of Raj. & Ors. (1), is concerned, that would not be helpful to the respondents as in the present case it has been found that when the petitioner was given appointment as Music Teacher Gr.III, she was having all requisite qualifications for appointment to that post. Accordingly, both the aforementioned writ petitions are allowed and the order dated 30.11.2002 (Annex. 10 to writ petition No. 4817/2002 passed by the respondent No. 5 District Education Officer (Elementary Education), Pali) is set aside and the respondents are directed to give all benefits attached to the post of Music Teacher Gr.III including increments, revision of pay scales etc. to the petitioner. No order as to costs.