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2005 DIGILAW 2628 (RAJ)

Satya Prakash Soni v. State of Rajasthan

2005-09-30

PREM SHANKAR ASOPA

body2005
Judgment Prem Shanker Asopa, J.-That by the aforesaid writ petition, the petitioner has passed for quashing the order dated 15.08.2003 whereby the appointments have been made to the post of PTI Grade II and the case of the petitioner has been ignored simply on the ground that he has not filed any writ petition. 2. Briefly stated the relevant facts of the case are that on 27.08.1998, vacancies were advertised for the post of PTI Grade II by the Deputy Director Secondary Education, Kota. In pursuance of the said advertisement the petitioner submitted an application. 3. That one of the essential requirement prescribed by the Rajasthan Educational Subordinate Service Rules, 1971 (hereinafter referred as the Rules) for the post of P.T.I Grade II is a graduate or equivalent examination with diploma in Physical Education or Secondary with four years Diploma in Physical Education. 4. The submission of the petitioner is that BPEd. Course passed by him from Amravati, University of Maharashtra is a degree course, therefore, he has better qualification for the post having advertised than as required under the rules. The similar degree course is also awarded from Nagpur and the controversy was raised before this Court in respect of the same advertisements and ultimately it was held by Division Bench of this Court that Bachelors Degree in Physical Education from Nagpur is better qualification than the requirement of the advertisement. 5. On the same parity, Counsel for the petitioner submits that he is also having the better qualification than the requirement of the rules and, there appears to be no justification for not considering his case. 6. In reply also the respondents have not denied specifically the said facts of the eligibility of the petitioner and have simply said that the petitioner ought to have approached this Honble Court in time and the grievance has been at belated stage. The petitioner is not entitled for any relief . The Counsel for the respondents have also submitted that Annexure-2 was issued in compliance to the Judgment of this Honble Court as well as Honble Supreme Court but since, the petitioner has not filed any writ petition, therefore, he was not granted any relief . 7. I have considered the rival submissions of the parties and perused the word of the case. 8. The Judgment of this Court is reported in 2001 WLC 124 (Raj.), State of Rajasthan & Ors. 7. I have considered the rival submissions of the parties and perused the word of the case. 8. The Judgment of this Court is reported in 2001 WLC 124 (Raj.), State of Rajasthan & Ors. vs. Hari Ram & 16 Ors., wherein the similar qualification has been held to be a better qualification than the requirement of the rules. Para No. 7 to 9 of the said Judgment are reproduced here under for ready reference:- “7. We have carefully considered the qualification prescribed. The aforesaid qualification mentioned in Column 5 requires that the person for being recruited as PTI Gr. II on direct recruitment basis shall be graduate with certificate of Physical Education or Secondary with four years Diploma in Physical Education. In the instant case, the petitioners have apprised the respondents that while pursuing the course of degree in Physical Education, they have undergone more theoretical studies and also more practical training in comparison to those persons, who have acquired Diploma in Physical Education. The petitioners have represented and apprised to the respondents that they are qualified in comparison to those persons, who have been treated eligible merely on possession of Diploma in Physical Education. It is also urged that the persons, who have acquired degree from the same Universities from where the petitioners have also acquired their degree have been considered eligible and have been provided appointment by the respondents in various regions, At the time of hearing, it is submitted that the department has provided certain appointment to the persons mentioned in Paragraph 8 of the writ petition filed by Pratap Singh Hada & Ors., S.B. Civil Writ Petition No. 5125/1998. It is also pointed out that the candidature of the aforementioned persons mentioned in Paragraph 8 was considered solely on the basis of degree in Physical Education possessed by them. The photostat copies of the orders dated 20.12.1996, 22.01.1997 and 20.06.1994 have been filed and marked as Annexures 9, 10, and 11 respectively. Under these circumstances, we are of the opinion that the petitioners who have come before this Court are discriminated by being left out by the respondents, the appellants herein from consideration. Thus, it has to be construed that the petitioners have been discriminated and excluded from consideration. Thus, the action of the respondents, the appellant herein is discriminatory and, therefore, is liable to be interfered with. Thus, it has to be construed that the petitioners have been discriminated and excluded from consideration. Thus, the action of the respondents, the appellant herein is discriminatory and, therefore, is liable to be interfered with. It is also established before us that the appellants earlier have treated the petitioners eligible and now appellants cannot take a different stand and are estopped to resile from their earlier stand on their own actions. The Government had issued letter dated 16.03.1998 directing all the concerned authorities to treat BP Ed Degree as qualifying degree for the purpose of appointment to the post of Physical Training Instructor Gr. II and Gr. III 8. We have given our anxious consideration to the questions at issue. In our view, the qualification prescribed by the rules only postulates that the person possessing the graduate degree shall also possess in addition a Diploma in Physical Education. The construction rules out the possibility of those cases where person is possession the degree in Physical Education such construction of the rules is meaningless and it causes miscarriage of justice with regard to the rights of the persons like the petitioners, who are qualified and are in possession of the degree in Physical Education. This apart, a person, who undergoes a degree course in particular subject has to pursue the said course for such education, study more papers and has to undergo more practical training in comparison to those persons, who acquired Diploma course which is comparatively of short duration. There is no justification on the part of the appellants herein to stress upon the respondent/petitioners, who acquire Diploma in Physical Education especially in the circumstances where they are possessing the degree in Physical Education. As already noticed, the persons who, have acquired degree from the same Universities from where the petitioners have also acquired the degree, have been considered eligible and have been provided appointment in various regions. Under such circumstances, the non-consideration of the applications made by the petitioners is discriminatory and the right to equality as enshrined in Articles 14 and 16 of the Constitution have been given a go-bye. It is stated that the names of the petitioners were placed in the merit list but for the reasons known to the respondents/appellants, the said merit list was never acted upon. It is stated that the names of the petitioners were placed in the merit list but for the reasons known to the respondents/appellants, the said merit list was never acted upon. We are of the opinion that the petitioners should be declared eligible for being recruited as PTI Gr. II on the basis of the degree they have obtained in the University in the Physical Education and, therefore, they are entitled for consideration for appointment for the post of PTI Gr. II. All the appeals have no merit and are hereby dismissed. No costs. 9. The appellants are directed to consider the cases of all the respondents/petitioners, who hold the Degree in Physical Education from the respective Universities and consider their applications and give them appointment, if they are otherwise satisfy the other qualifications prescribed. This exercise shall be done within three months from today. We make it clear that the controversy raised in these appeals relate to the degree obtained by the respondents in Physical Education and for appointment to the post of Physical Training Instructor Gr. II and Gr. III only.” 10. In view of the above, the petitioner is eligible and is entitled for relief in case any less meritorious person is appointed. 11. In the result the writ petition is partly allowed and the petitioner is declared eligible and the respondents are directed to consider his case for appointment on the post of PTI Grade II and in case he is found suitable then he may be given appointment with effect from the date less meritorious persons are given appointment with all consequential benefits.