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Rajasthan High Court · body

2011 DIGILAW 2539 (RAJ)

Renu Bala v. R. S. P. C.

2011-11-22

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—The application for early listing of the writ peti-tion is allowed. With the consent of the parties, writ petition is heard finally. 2. By this writ petition, following prayers have been made "(1) to direct the respondent to place the petitioner in the main list and give her appointment on the post of School Lecturer (Home Science). (2) to direct the respondent RPSC to remove the name of the respondent No.3 from the list of selected candidates and place the petitioner above in merit. (3) to direct the respondents to grant the consequential benefits for which the petitioner is entitled to in the facts and circumstances of the instant case." 3. It is a case where applications were called by the Rajasthan Public Service Commission (for short 'the Commission') for appointment to the post of School Lecturer (Home Science). Petitioner along with other candidates submitted their applications. They were called for selection followed by declaration of result. So far as petitioner is concerned, she was placed at No.1 in the reserve list, whereas, respondent No. 3-Ms. Sughandha was declared as selected. Grievance of the petitioner is that in spite of availability of eligible candidates with required qualification, ineligible candidates have been considered and given appointment. therefore, not only petitioner should be placed in the main list in the aforesaid background but further prayer is to remove name of respondent No.3 from the list of selected candidates. To advance and support the arguments, reference of the Rajasthan Educational Subordinate Service Rules, 1971 have been made, more specifically, the Schedule appended thereto showing required qualification for the post in reference. 4. The rule provides minimum qualification and experience for direct recruitment is second class Post Graduate in the relevant subject with degree or diploma in Education recognised by the government or Post Graduate in the relevant subject with five years' experience of teaching in a recognised institution of or above the standard of secondary school. A Note is appended below aforesaid qualification which provides that if persons with required qualification are not available then the person with qualification as mentioned in the Note can be considered for appointment. Accordingly, the note should be considered to be an exception to the main rule and can be applied in case persons with required qualification as prescribed in the Schedule are not available. Accordingly, the note should be considered to be an exception to the main rule and can be applied in case persons with required qualification as prescribed in the Schedule are not available. Meaning thereby, Note can be applied if required number of candidates are not available with the qualification as provided in the Schedule. 5. In the present case, there were 90 applications as against 26 posts meant for the category to which petitioner belongs. On scrutiny, 7 candidates were found to be ineligible. accordingly, 83 candidates were called for selection. Out of those 83 candidates, 66 candidates were possessing the required qualification as given in the Schedule and 17 were those who were in possession of the qualification as given in the Note appended to the Schedule. Grievance of the petitioner is that Note appended to the Rules has been applied by the respondents despite availability of required number of eligible candidates with the qualification as provided in the Schedule itself, thereby, ineligible candidates like the respondent No.3 were called and selected and given appointment. In the aforesaid background, ineligible candidates have been given appointment leaving eligible candidates like the petitioner. Accordingly, prayers made in the writ petition may be granted. 6. To strengthen the argument, reliance has been made on the judgment of this court in the case of "Smt Jaya vs. Rajasthan Public Service Commission, Ajmer & Anr." reported in 2009 WLC (Raj) UC 3. The judgment aforesaid was upheld by the Division Bench of this court in the case of "Rajasthan Public Service Commission & Anr. vs. Smt. Jaya", DB Civil Special Appeal (Writ) No. 58/2009, decided on 19.2.2010. The judgment rendered by the learned Single Judge covers case of the petitioner. 7. Learned counsel for the respondent Commission, submits that if the Schedule is taken note of, it makes no room or doubt that the main qualification has been provided in the column at serial No.5-A. This is for the post of Lecturer in Humanities and Commerce Group (School Education). As per the Schedule, required qualification is second class Post Graduate in the relevant subject with degree or diploma in Education recognised by the government, or, Post Graduate in the relevant subject with live years' experience of teaching in a recognised institution of or above the standard of secondary school. As per the Schedule, required qualification is second class Post Graduate in the relevant subject with degree or diploma in Education recognised by the government, or, Post Graduate in the relevant subject with live years' experience of teaching in a recognised institution of or above the standard of secondary school. The Note appended thereto comes in place only when the required number of eligible candidates are not available. In the present matter, as against 26 posts meant for the category to which petitioner belongs, 66 candidates were in possession of the qualification as provided in the main provision which is otherwise said to be the first part. However, Commission called the candidates who were in possession of the qualification given in the Note appended below to the Schedule to enlarge area of consideration. Accordingly, respondent No.3 was called for selection and, finding her to be in merit, appointment was given. In the background aforesaid, respondent No.3 has already been given appointment. 8. Learned counsel for respondent No.3 submits that the Note appended to schedule below is in fact has three sections. First two sections come into play when the candidates with required qualification provided under the main provision are not available, however, last portion does not indicate any such condition, rather, the said provision has to be considered separately and in isolation. Case of the respondent No.3 falls in the aforesaid category, hence, rightly been treated as eligible. 9. Challenge to the appointment has not been made and otherwise writ petition is delayed by a period of two months as it was filed in the month of February, 2011, whereas, result was declared in the month of December, 2010. The writ petition also suffers from suppression of fact hence deserves to be dismissed. It is further urged that petitioner stood at serial No.l 1 in the merit list thus looking to her merit, now she should not be disqualified from selection. 10. I have considered rival submissions of learned counsel for the parties and perused the record of the case. 11. It is further urged that petitioner stood at serial No.l 1 in the merit list thus looking to her merit, now she should not be disqualified from selection. 10. I have considered rival submissions of learned counsel for the parties and perused the record of the case. 11. Since controversy involved in the present matter pertains to the qualification required to be possessed by the candidate for the post of School Lecturer (Home Science), it would be relevant to quote the Schedule appended to the Rules providing qualification - S. No. Name of Post Mode of recruitment with percentage Minimum qualification & experience for direct recruitment 5.(a) Lecturer in Humanities & Commerce Group (School Education) 50% by promotion & 50% by direct recruitment 2nd Class Post graduate in relevant subject with Degree or Diploma in Education recognised by Government or Post graduate in the relevant subject with Degree or Diploma in Education recognised by Government and with 5 years' experience of teaching in recognised institution of or above Rules, 1971 - standard of secondary Schools. Note: 1. The restriction of Division in Post graduate examination will not be essential if required number of candidates are not available. In case post graduates in Home Science are not available then graduate with degree or diploma in Education with 5 years' experience of teaching Home Science of standard of secondary or Higher Secondary Class shall be eligible for the post of Lecturer in Home Science (preferably B.Sc. with Home Science). Graduates with Home Science will also be eligible if they are Post graduate in any other subject but with degree or diploma in Education." 12. Perusal of the rule indicate that the minimum qualification and experience for direct recruitment has been provided in the last column and therein the qualification is second class Post Graduate in relevant subject with degree or diploma in Education recognised by the government or Post Graduate in the relevant subject with degree or diploma in Education recognised by government and with five years experience of teaching in recognised institution of or above the Rules, 1971. 13. The Note appended below it, however, provides that restriction of second division in Post Graduation examination will not be essential if required number of candidate are not available. 13. The Note appended below it, however, provides that restriction of second division in Post Graduation examination will not be essential if required number of candidate are not available. The aforesaid is to be taken as exception to the main rule as it comes into play only when qualified persons are not available to the required number, which, in the present matter, is 26 keeping in mind the post so advertised for the category to which petitioner belongs. The second part of the Note also provide that in case Post Graduate in Home Science is not available then Graduate with degree or diploma in Education with five years' experience of teaching Home Science at the standard of secondary or higher secondary class shall be eligible for the post of Lecturer in Home Science, preferably B.Sc. with Home Science. According to the aforesaid, second exception has been drawn. It is applicable only when Post Graduate in Home Science are not available. Graduates with Home Science are also eligible if they are Post Graduate in any other subject with degree or diploma in Education. Last portion of the Note is to be read with second part keeping in mind the word "also" used therein. In fact, Note provides onl\ two sections and so far as second section is concerned, it is bifurcated again in two parts and, therefore, in second part of the section. candidates with Graduation in Home Science and Post Graduate in any other subject but with degree or diploma in Education are made eligible for the post of Lecturer in Home Science in case Post Graduate in Home Science are not available. 14. The respondents have erroneously construed the last portion of the Note to be separate for determination of eligibility qualification. It is nothing but misreading of the Note appended to the Schedule. Much is not required to be discussed as while considering the case of Smt Jaya (supra), this court has already taken a view by making interpretation of the Note appended to the Schedule. Para 11 and 14 of the said judgment are quoted hereinbelow for ready reference. "11. It clearly emerges from Note-1 (supra) that it stands divided into two sections - (i) Initially required number of candidates holding post graduates are not available. Para 11 and 14 of the said judgment are quoted hereinbelow for ready reference. "11. It clearly emerges from Note-1 (supra) that it stands divided into two sections - (i) Initially required number of candidates holding post graduates are not available. Graduates with Degree or diploma in education with five years' experience of teaching Home Science of standard of Secondary/Higher Secondary can be considered to be eligible for the post of lecturer in Home Science, but preference will be given to B.Sc, with home science; (ii) if applicants with requisite qualification are not available, certainly Graduates with Home Science were also made eligible even if they are holding post graduate degree in any other subject with Degree or Diploma in Education. 14. However, it is made clear that academic qualification as referred to in Schedule has to be primarily looked into and Note-1 appended therein in its opening words make it clear that it would come into play only when if required number of candidates are not made available; in such contingency, two sections can also be considered as eligible to participate." 15. Perusal of the paras quoted above leave no room or doubt to show that Note will come into play only when eligible candidates are not available and eligibility has otherwise provided under the Schedule. In fact, Note is to be considered to be an exception to the main provision and is to be used when eligible candidates are not available. 16. In the present case, as against 26 posts, 66 candidates were available with required qualification in view of admission of the respondents in the reply as well as in oral arguments. After 66 candidates, 17 candidates are those who were in possession of the qualification as given in the Note appended to the Schedule. The submission of learned counsel for the Commission is that Note has been used to keep eligible candidates to the extent of three times to the size for which vacancies were advertised in the petitioner's category. It is for that reason that Commission used the Note and made ineligible candidate to be eligible ignoring that three times of 26 comes to 78 and not 83. This is more so when the judgment of the learned Single Judge of this court in the case of Smt Jaya (supra) was upheld by the Division Bench. 17. It is for that reason that Commission used the Note and made ineligible candidate to be eligible ignoring that three times of 26 comes to 78 and not 83. This is more so when the judgment of the learned Single Judge of this court in the case of Smt Jaya (supra) was upheld by the Division Bench. 17. My attention was drawn towards para 8 of the judgment passed by the Division Bench. Learned counsel lot-respondents tried to demonstrate that the Note appended to the Schedule also provides the qualification separately. I do not find that aforesaid para show that the Note can be used even if eligible candidates are available with the qualification as given in tin-Schedule. The judgment rendered by the Division Bench, in fact, upheld the judgment of the learned Single Judge. In the aforesaid background, Division Bench has not taken view other than subscribed by the learned Single Judge in para 11 and 14 of the judgment in the case of Smt. Jaya (supra). 18. Petitioner is one who is having required qualification as given in the Schedule, whereas, respondent No.3 is lacking in the aforesaid qualification. In the aforesaid background, respondent No.3 should have been considered for appointment only if required number of candidates with qualification prescribed under the Schedule would not have been available. The facts in the present matter do not suggest non-availability of the eligible candidates, rather it has been admitted by learned counsel for the Commission that 66 eligible candidates were there for selection against 26 posts. In view of the aforesaid. I am of the opinion that respondent No.3 was not eligible for appointment on the post in question as the Note appended to the Schedule should not have been used by the Commission looking to availability of eligible candidates more than the size of the posts. This is more so when Rules applicable herein do not provide size of panel to be three times for interview and otherwise three times to 26 posts comes to 78, whereas, Commission called 83 candidates. 19. The argument of learned counsel lor private respondent regarding suppression of" fact has not been substantiated. It is was only urged that the fact regarding appointment of the petitioner is not mentioned in the writ petition. I find that the aforesaid cannot he said to be suppression of fact. 19. The argument of learned counsel lor private respondent regarding suppression of" fact has not been substantiated. It is was only urged that the fact regarding appointment of the petitioner is not mentioned in the writ petition. I find that the aforesaid cannot he said to be suppression of fact. A suppression of fact is one which goes in the root of the case and makes petitioner disentitled for the relief prayed. The contents of the writ petition and the prayer made suggest that the relevant facts which are required for adjudication of the issue has been raised. Thus, it cannot be said to be a case of suppression of fact. It cannot otherwise be presumed that petitioner was in knowledge of the appointments more so when copy of such order is not supplied to them. Contention of the learned counsel for private respondent is accordingly rejected. 20. Further argument of learned counsel for respondent No. 3 is in regard to prayer clause of the writ petition. It is given out that no direction is sought to set aside appointment of respondent No.3. I find that aforesaid argument is without any basis as the petitioner has made all the prayers required to get justice and, otherwise, this court cannot become hyper technical if a case is made for grant of relief. In the aforesaid background even that argument raised by learned counsel for respondent No.3 cannot be accepted. 21. The fact thus remains that petitioner stood at No. 1 in the reserve list and if an ineligible candidate would not have been placed in the select list and given appointment, petitioner being at No.1 in the reserve list, was eligible for appointment, however. respondent No.3 has already been given appointment though not eligible for appointment in view of the discussion made above. In the aforesaid background and to balance the equities between the two, official respondents are directed to consider the matter of the private respondent No.3 as to whether she can be continued. If, at all, decision is taken to continue respondent No.3, petitioner would not be denied benefit of appointment as otherwise she falls in the merit list after removing the name of ineligible candidate. If, at all, decision is taken to continue respondent No.3, petitioner would not be denied benefit of appointment as otherwise she falls in the merit list after removing the name of ineligible candidate. However, if any vacant post is available where respondent No.3 can be accommodated, merely declaring her as ineligible for appointment would not restrain official respondents to continue her but then it cannot be at the cost of the petitioner and would be an exception, and not as a rule. The aforesaid direction is given only to maintain equities between the two, otherwise, respondents would be free to delete name of respondent No.3 from list of eligible candidates and consequently to cancel the order of appointment issued in her favour. Necessary exercise may be undertaken by the respondents within a period of two weeks from the date of receipt of copy of this order. 22. With the aforesaid, writ petition so as the sins application are disposed of.