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Rajasthan High Court · body

2013 DIGILAW 1932 (RAJ)

Lokendra Singh Gurjar v. State of Rajasthan

2013-11-06

M.N.BHANDARI

body2013
Hon'ble BHANDARI, J.—By this writ petition, a challenge is made to the order dated 17.10.2013 passed by Rajasthan Public Service Commission holding petitioner to be ineligible. 2. Learned counsel submits that in pursuance of advertisement issued by the RPSC, application form was submitted by the petitioner for the post of PTI Gr.III. The petitioner was called for selection and finding him to be meritorious, given appointment. He has now been rendered ineligible vide impugned order dated 17.10.2013. 3. Learned counsel submits that required qualification was possessed by the petitioner however ignored only for the reason that qualification was taken while the petitioner was in service. It is even in ignorance of order issued by the Government of India holding qualification possessed by the petitioner to be a proper qualification for the post in question. Thus action of the RPSC is illegal and otherwise petitioner having been appointed, cannot be rendered ineligible. It is also stated that similarly placed candidates have not been rendered ineligible, rather they have been appointed and continued in service. This court allowed writ petition in the case of Badri Lal vs. Secretary to Govt., Education Department, Jaipur & Ors., S.B. Civil Writ Petition No.2808/1997, on 20.12.2006. Accordingly, the impugned order may be set aside with the direction to the respondents to continue the petitioner in service. 4. During the course of arguments, learned counsel for petitioner gave further reference of certain letters written by Officers of the Army to RPSC as well as to the NCTE to recognize the course of Physical Training of the Army. 5. I have considered the submission made by learned counsel for petitioner and perused the record. 6. The RPSC issued an advertisement and therein required qualifications have been mentioned. It is other than qualification possessed by the petitioner. The petitioner is in possession of Physical Training course of a different duration and if period of one certificate is taken, it is maximum of four months. The question for consideration is as to whether the Physical Training Course undertaken by the petitioner is equivalent or can be treated to be sufficient for the post of PTI Gr.III. For the aforesaid purposes, it would be relevant to quote regulation of the NCTE which provides qualification for different posts. The question for consideration is as to whether the Physical Training Course undertaken by the petitioner is equivalent or can be treated to be sufficient for the post of PTI Gr.III. For the aforesaid purposes, it would be relevant to quote regulation of the NCTE which provides qualification for different posts. The relevant portion of the regulation is quoted hereunder for ready reference: LEVEL MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS I Elementary (i) Senior Secondary School Certificate or Intermediate or its equivalent; and (ii) Certificate in Physical Education (C.P.Ed.) of a duration of not less than two years or its equivalent. II Secondary/High School Graduate with Bachelor of Physical Education (B.P.Ed.) or its equivalent. III Senior Secondary (Physical Education as an elective subject) M.P.E./M.P.Ed. (2 year duration) 7. Perusal of provision quoted above reveals not only the duration but the course to be possessed by a candidate for different level of posts. It is not in dispute that course referred in the Regulation is not possessed by the petitioner. He is claiming equivalence to the qualification required under the Regulation and benefit of the circular issued by the Government of India for that purposes. I find that issue of equivalence can be decided only by the NCTE in view of Regulation 6. The aforesaid provision is also quoted hereunder for ready reference: 6. Interpretation: If any question arises relating to interpretation of these Regulations or equivalence of various teacher's training programmes, decision of the Council shall be final.” 8. In view of the provision quoted above, the question of equivalence can be decided by NCTE alone. The NCTE has been asked to recognize the Physical Training Course of the military but there is no order for acceptance of the recommendation. In absence of it, even if any administrative order of Government of India exists, it cannot be read contrary to the statutory provision. What will prevail is statutory provision and not administrative order. The administrative order can definitely supplement the statutory provision but cannot supplant it. The reference of order dated 2nd April, 1975 has been given by learned counsel for petitioner. I find aforesaid to be of no consequence inasmuch as NCTE Act came in the year 1993 followed by Regulation of 2001. On the day administrative order was passed, the statutory provisions were not existing. The reference of order dated 2nd April, 1975 has been given by learned counsel for petitioner. I find aforesaid to be of no consequence inasmuch as NCTE Act came in the year 1993 followed by Regulation of 2001. On the day administrative order was passed, the statutory provisions were not existing. Now the position has changed, thus order dated 2nd April, 1975 cannot operate against the statutory provision. 9. So far as recent correspondences are concerned, again this is to request the RPSC and NCTE. However, there is no order or Notification of NCTE to amend the Regulation so as to include Training Course possessed by the petitioner to be in satisfaction of the qualification. In view of the above, the claim of the petitioner to treat Physical Training Course undertaken from military to be in satisfaction of the rule cannot be accepted, rather grant of prayer would be in violation of statutory provision. 10. The question now comes as to whether petitioner has been discriminated, if similarly situated candidates have been extended the benefit by taking them in service despite possession of same qualification. I find nothing on record to show any candidate in possession of the same qualification, has been given appointment and continued. Para D of the ground makes a reference of the aforesaid fact but is without proof and details. The petitioner has failed to refer name of the candidate who has been extended benefit thus vague ground has been raised to narrate discrimination, which cannot be accepted. In view of the above, case of discrimination is not made out. If judgment in the case of Badri Lal (supra) is looked into, the petition was allowed holding it to be a case of discrimination. The case of aforesaid nature is not made out here. It is necessary to comment here that even violation of Article 14 cannot be claimed, if it is based on illegal act of the respondents. The right of equality can be claimed if benefit to others has been given based on their legal rights. If claim of equity is accepted based on illegal act of the respondents, then would amount to perpetuation of illegality in the hands of the court which needs to be avoided, rather appropriate direction can be given to the respondents to cure illegality instead to perpetuate it. 11. If claim of equity is accepted based on illegal act of the respondents, then would amount to perpetuation of illegality in the hands of the court which needs to be avoided, rather appropriate direction can be given to the respondents to cure illegality instead to perpetuate it. 11. In view of the discussion made above, I do not find any merit in the writ petition, though it is necessary to direct the RPSC to examine eligibility of the candidate before selection test or declaration of result and in any case before making recommendation for appointment. It is to avoid appointment of ineligible candidates and litigation of nature involved herein. 12. The writ petition so as stay application are accordingly dismissed.