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2005 DIGILAW 2489 (RAJ)

Santosh Kumari Yadav v. State of Rajasthan

2005-09-16

R.P.VYAS

body2005
Judgment R.P. Vyas, J.-The petitioner has filed the present writ petition under Article 226 of the Constitution of India with a prayer that by an appropriate writ, order or direction the respondents may be directed to give appointment to the petitioner on the post of Physical Training Instructor Grade III as per her merit after considering the sports certificate (Annexures-P/5 and P/6) to be of national level and to award 15 bonus marks for the same. 2. It arises in the following circumstances: - (i) That the petitioner possessed the qualification of Senior Secondary in the year 1996. Thereafter, she obtained the qualification B.P.Ed. from the MDS University, Ajmer in the year 2001. (ii) An advertisement was issued by the respondent No. 1 (Director, Secondary Education, Bikaner) on 28.07.2003 inviting applications for appointment of Physical Training Instructor (PTI) for various districts in Rajasthan. (iii) It has also been averred in the petition that a provisional merit list was got prepared by the respondents which was affixed on the notice board, in which the percentage of marks awarded to the petitioner was shown as 55.99%. (iv) The petitioner also alleged that she took part in National Women Sports Meet held at Indore from 24.02.2002 to 27.02.2002 organised by the Sports Authority of India in association with the Department of Women and Child Development and this tournament is of national level. However, the petitioner has not been awarded 15 bonus marks for the said certificate on the ground that the said certificate has not been issued by the Education Department and hence, the petitioner is not entitled to get 15 bonus marks. It has also been submitted by the petitioner that Para 8 of the Guidelines dated 31.07.2003 (Annexure-P/12) also provides that the bonus marks shall be awarded on the basis of sports certificate issued by the Education Department and University Sports Board. 3. In this writ petition, the main submission of the learned Counsel for the petitioner is that the Para 8 of the guidelines dated 31.07.2003 fixing the bonus marks for the State Level as well as National Level on the basis of sports certificates issued by the authorities given in this para is discriminatory. There is no nexus behind it which is sought to be achieved by fixing such criteria. There is no nexus behind it which is sought to be achieved by fixing such criteria. Therefore, 15 bonus marks should have been awarded to the petitioner and the impugned action of the respondent in not awarding 15 bonus marks is illegal and arbitrary and, therefore, the respondents be directed to award 15 bonus marks to the petitioner and merit list be prepared again and she be offered appointment. 4. Reply to the writ petition was filed by the respondents and their case is that the certificate (Annexure-P/6) produced by the petitioner was not issued by the authorities as prescribed under Para 8 of the guidelines dated 31.07.2003 and hence the petitioner is not entitled to get any bonus marks on the basis of certificate Exhibit P/6 issued by the Sports Authority of India and hence no case is made out and the writ petition be dismissed. 5. Heard the learned Counsel for the parties. 6. Before proceedings further, it may be stated that the Annexure P/6 is the certificate issued by the Sports Authority of India by which it was certified that the petitioner participated in National Womens Sports Meet held at Indore which is National Level Tournament. 7. The pertinent question which arises for consideration is whether the petitioner is entitled to get 15 bonus marks on the basis of Certificate (Annexure P/6) or not? 8. Admittedly, the petitioner has been denied the bonus marks on the basis of sports certificate (Annexure P/6) on the basis of the fact that the same has not been issued by the authorities prescribed under Para 8 of the guidelines dated 31.07.2003. 9. It is true that the functions of the Courts are not to legislate but to interpret a provision as is contained and for interpreting or construing a provision, the Court has to see the true intention of the framers and the circumstances in which the provision has been made. The present provision has been made to effectuate the policy to provide bonus marks to the sports-men who have taken part in the District Level, Sate Level or National Level Tournaments. When a provision has been made for giving incentive to the sportsmen by giving bonus marks, then no discrimination can be made between the sportsman holding a certificate issued by the Educational Department or by any other authority though they were of District Level, State Level or National Level. When a provision has been made for giving incentive to the sportsmen by giving bonus marks, then no discrimination can be made between the sportsman holding a certificate issued by the Educational Department or by any other authority though they were of District Level, State Level or National Level. No valid difference can be made between the tournaments organized by the Education Department and by the University or by the Sport Board/Authority etc. The restriction of granting bonus marks to the persons who participated in the tournaments organised by the Educational Department, thus, results in inequality and discrimination and there is no reasonable basis for making such a discrimination. The restriction, if any, made by this provision, is in contradiction of the apparent purpose of the provision which appears to be not intended and the Court can, therefore, put a construction by extending the provision to all the District Level, State Level or National Level Tournaments which is in consonance with the object of the provision. 10. The Division Bench of this Court in the case of State of Rajasthan vs. Umesh Jangid, reported in, RLW 1997 (3) 1621, has taken the similar view. The learned Counsel for the petitioner has also relied on the decision of this Court in the case of Raees Ahmed Qureshi vs. State of Rajasthan & Others, reported in, 2005 (1) Service Cases Today 698 and in the case of Madhu Sudan Joshi vs. State of Rajasthan & Others, reported in, 2005 (1) Service Cases Today 205. 11. Thus, the above Division Bench Judgment of this Court makes the position very much clear by holding that difference between the tournaments organized by the Education Department and by the University or by the Sports Board/Authority etc. results in inequality and discrimination. 12. The certificate (Annexure P/6) shows that the petitioner had participated in National Womens Sports Meet organized by the Sports Authority of India as soft-ball player from Rajasthan and thus, it is a National Level Certificate. 13. Thus, it is held that the certificate (Annexure P/6) is a National Level Certificate and on the basis of certificate (Annexure P/6), the petitioner is entitled to 15 bonus marks. 14. The next question which arises for consideration in the facts and circumstances of the case is since now the merit list has expired, whether any benefit can be given to the petitioner or not. 10.15. 14. The next question which arises for consideration in the facts and circumstances of the case is since now the merit list has expired, whether any benefit can be given to the petitioner or not. 10.15. In the present case the petitioner was entitled to get 15 bonus marks, but she has not been awarded the same and for which there was no fault on the part of the petitioner. 116. It may be stated here that the right of the petitioner to be appointed against the post to which she has been found suitable and if she now comes it the merit after getting 15 bonus marks cannot be taken away on the pretext that the merit list in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the petitioner, but on the erroneous decision of the employer himself and for that reference may be made to the decision of Honble Supreme Court in the case of Purushottam vs. Chairman, MSEB and Another, reported in 1999 SCC (L&S) 1050. This Court in the case of Anita Chopra vs. State of Rajasthan, reported in RLR 2001 (2) 580, has also observed that merely because the select list has expired during the pendency of petition, it would not take away the protections of remedy to seek his fundamental rights which have been breached in operating the select list. The remedy for such breaches cannot become ineffective by passage of time. 17. It the present case there was no fault on the part of the petitioner and thus, she should not be made to suffer on the ground of expiry of select list and if her name comes in the select list after granting 15 bonus marks, she is entitled to get appointment on the Physical Teacher Grade III as per her merit. 18. 18. Accordingly, the present writ petition is allowed and the respondents are directed to consider the candidature of the petitioner after granting 15 bonus marks on the basis of Certificate (Annexure P/6) and in case after granting 15 bonus marks, if any person who stood lower in merit then the petitioner, has been offered appointment, then the case of the petitioner be also considered for appointment on and from the date the persons junior to her have been offered appointment. On her appointment, the petitioner shall not be entitled for the emoluments of the post for the past, however, she will be entitled to claim seniority over the persons who were lower in merit, but have been offered appointment prior to her.