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2013 DIGILAW 38 (RAJ)

Ladu Ram v. State of Raj.

2013-01-07

NARENDRA KUMAR JAIN, VINEET KOTHARI

body2013
Hon'ble Dr. KOTHARI, J.—This intra court appeal has been filed by the appellant-petitioner against the dismissal of his writ petition by the learned Single Judge on 8.4.2011. 2. The appellant petitioner was appointed as Shiksha Sahyogi under the `Rajiv Gandhi Swarn Jayanti Pathshala Yojna.' At the time of appointment, the eligibility qualification possessed by the petitioner i.e. `Purva Madhyama' from `Shree Brahd Gujarat Sanskrit Parishad' was treated as equivalent to Secondary School Examination of the Secondary Board of Rajasthan, however, later on it was found that the said qualification from Gujarat was not recognised by the State of Rajasthan and, therefore, by the impugned order Annex. 8 dated 17.5.2008 the Chief Executive Officer cum District Education Officer, Elementary Education, Bikaner terminated the services of appellant-petitioner and being aggrieved by the same, the appellant-petitioner preferred the writ petition before this Court, which came to be dismissed by the learned Single Judge inter alia on the ground that the said qualification of `Purva Madhyama' possessed by the him from `Shree Brahd Gujarat Sanskrit Parishad' was not recognised by the State Government after 1978 and, therefore, he was ineligible to get the said appointment itself in the first instance in the year 1999. 3. Aggrieved by the said dismissal of the writ petition, the petitioner has come up in the present intra court appeal. 4. Learned counsel for the appellant, Mr. R.S. Choudhary relied upon the decision of Supreme Court in the case of Suresh Pal & Ors. vs. State of Haryana & Ors., AIR 1987 SC 2027 and submitted that since the said course was recognised by the Board of Secondary Education, Rajasthan, when the petitioner passed the said examination of `Purva Madhyama' in the year 1977 vide Annex.2 marks-sheet issued by the `Shree Brahd Gujarat Sanskrit Parishad' again on 27.1.2011, a photo copy of which is produced before this Court, in which year 1977 is hand written, therefore, the appellant-petitioner's services could not have been terminated on the ground of ineligibility or subsequent derecognition of the qualification by the State Govt. after 1978. 5. We have heard the learned counsel for the appellant-petitioner. 6. We are unable to agree with the contention raised by the learned counsel for the appellant. after 1978. 5. We have heard the learned counsel for the appellant-petitioner. 6. We are unable to agree with the contention raised by the learned counsel for the appellant. The Hon'ble Supreme Court in Suresh Pal's case (supra) held in para 3 that since at the time when the petitioners was admitted in the course, it was recognised by the Govt. of Haryana and it was on the basis of this recognition that the petitioners joined the course, it would be unjust to tell the petitioners now that though at the time of their joining the course it was recognised, yet they cannot be given the benefit of such recognition and the certificates obtained by them would be futile, because during the pendency of the course, it was derecognised by the State Government on 9.1.1985. 7. The ratio of the said Supreme Court judgment instead of helping the appellant is of help to the respondents and admittedly the appellant petitioner entered in the service in 1999 and much prior to that, about 22 years back, the qualification possessed by him stood dercognised by the State of Rajasthan. This is not the case, where with open eyes the respondents provided employment to the appellant petitioner knowing that the eligibility qualification is duly recognised, therefore, at the point of time of entering into the service, the said course in question was already derecognised and the fact of derecognition of the said course was never brought to the notice of the respondents by the appellant petitioner. The judgment cited at the bar based on the principles of promissory estoppel cannot be applied in the present case, since the course after 1978 was never recognised by the State Govt. as equivalent to the Secondary Examination of Rajasthan and, therefore, the appointment of the appellant-petitioner was illegal and contrary to the terms of eligibility provided in the advertisement in question. There is no dispute that the said course was not recognised after 1978 and merely because at the time when the appellant-petitioner passed the said course in 1977 it was so recognised, the said recognition by the State Govt. cannot continue to hold the field in 1999 when the petitioner was appointed on that basis. 8. On the other hand, Full Bench of Rajasthan High Court in R. Dayal & Ors. vs. State of Rajasthan & Ors. cannot continue to hold the field in 1999 when the petitioner was appointed on that basis. 8. On the other hand, Full Bench of Rajasthan High Court in R. Dayal & Ors. vs. State of Rajasthan & Ors. 1966(3) WLC 513 held that amended position of Rule on the date of consideration for appointment has to be seen. The said judgment fully covers this controversy & is binding on us. To quote the relevant paras from the said Full Bench decision is considered appropriate:- "29-A. The settled principle of service jurisprudence is that no person possession any vested right for appointment to a public post. He only possession a right to be considered for appointment, provided he fulfills and possession the requisite eligibility and suitability on the date of the appointment. If, by amendment, the Rule Making Authority, in its wisdom, has prescribed five years experience on the feeder post as a condition of eligibility for promotion to the post of Additional Chief Engineer then no appointment can be made ignoring the amended Rules. 30. Shri Ajay Rastogi, referring to the provisions of Rules 6(2), (a) 9, 23(1) 24A, 24(1), 24(13) and 24(14), contended that since the selection process had started on the basis of the vacancies determined under Rule 9 on April 1, 1995 the criteria, eligibility, qualifications and experience are to be seen as on that date. Irrespective of amendment dated 24.7.1995 the respondents were eligible for promotion. We do not find any merit in the submission. The amendment came into force on 24.7.1995. It was prospective in nature and has to be given effect to any appointment made after 24.7.1995 and as such the vacancy for the year 1995-96 should have been filed in as per amendment so made. Thus, the appointment of the respondents which was made after the amendment ignoring the eligibility criteria was wholly illegal. This amendment, thus, would be applicable for the vacancies which were determined for the year 1995-96. 31. The vested right as explained in Law Lexicon is "A right is said to be vested when the right to enjoyment, present or prospective has become the property of some person or persons as a personal interest, independent of a contingency that it is a right which cannot be taken away without the consent of the persons concerned. Vested right can arise from contract, from statute or by operation of law." 32. Vested right can arise from contract, from statute or by operation of law." 32. These respondents might had the vested right of consideration for promotion to the post of Additional Chief Engineer by virtue of their being Superintending Engineer but definitely they did not have any vested right of appointment. This point was considered by the Supreme Court in the case reported in (1994) 6 SCC 151 (State of M.P. vs. Raghuveer Singh). In that case the Government invited applications for the post of Inspectors. The eligibility qualification prescribed was decree in Art. Commerce, Science, Engineering or Diploma in Engineering. After the examinations were over and results were declared, successful candidates were invited for interview. In the meanwhile the Government amended the Rules and altered the qualification for eligibility to the post. After the amendment the Government recalled the said notification and steps were taken for recruitment in accordance to the amended Rules. This action of the Government was challenged. The Supreme Court rejecting the plea of the candidates held that the candidates who had appeared for the examination, passed the written examination, could only have a legitimate expectations for consideration for selection according to the Rules than in force. The amended Rules were prospective in operation. The Government had every right to have fresh selection under the amended Rules. No candidate acquired any vested right against the State, even if he qualified in the examinations before the Rules were amended. 36. The vacancies relate to the year 1995-96. According to the unamended Rules. Superintending Engineers even of one day's experience on the date of declaration of vacancy or on the date of the meeting of the Departmental Promotion Committee could be considered for appointment as Additional Chief Engineer. But, after the amendment, the position has changed. Unless, he has put in five years of experience Superintending Engineer he would not be considered for promotion to the post of Additional Chief Engineer. This condition had to fulfilled by the incumbent on the date of the appointment as amendment had already come before that date. 38. The word "selection" has been shown in Oxford Dictionary to mean "Chosen for excellence or suitability, choice, picked, got by rejection or exclusion or what is inferior." Whereas the word "appointment" has a reference to assign office. It is done only by appointing authority and no body else. 38. The word "selection" has been shown in Oxford Dictionary to mean "Chosen for excellence or suitability, choice, picked, got by rejection or exclusion or what is inferior." Whereas the word "appointment" has a reference to assign office. It is done only by appointing authority and no body else. If the relevant Rules were amended after the Departmental Promotion Committee recommended for appointment then it was mandatory on the part of the appointing authority to have looked into the amendment and then to have proceeded further by asking for a review by the Departmental Promotion Committee." 9. It is also noteworthy that an FIR was also filed against the petitioner for producing false certificate to satisfy the eligibility criteria for his appointment for the offence under Section 447, 435, 336 & 143 IPC was registered and against his misbehaviour in another case also an inquiry was held by the Addl. District Education Officer vide Inquiry Report Annex.5 dated 22.1.2008. Another trial in a criminal case No. 67/88 was held against seven accused persons including the present appellant-petitioner under Section 147, 149, 459, 307, 323, 325 & 149 IPC but he was acquitted giving benefit of doubt by learned Addl. Sessions Judge No. 2, Bikaner vide order Annx. 10 dated 22.10.2010. 10. Be that as it may, the termination of the appellant-petitioner was not on the ground of any misconduct but for his ineligibility to be appointed in view of the fact that the qualification possessed by him from `Shree Brahad Gujarat Sanskrit Parishad' being not equivalent to Secondary School Examination of the Board of Secondary Education Rajasthan. 11. We do not find any error in the order dated 8.4.2011 passed by the learned Single Judge dismissing the writ petition of the appellant-petitioner and affirming the judgment under appeal, we find that the present appeal deserves to the dismissed and same is accordingly dismissed. No costs.