Judgment Heard learned counsel for the parties. 2. In this writ application, the petitioner has assailed the order dated 7.1.2012 passed by the District Teachers Appointment Appellate Authority, Jehanabad (hereinafter to be referred to as ‘the Tribunal’) in Complaint Case No. 518(41)/2011, whereby and whereunder while allowing the complaint of Respondent no. 7 the appointment of the petitioner on the post of Prakhand Teacher has been cancelled with a consequential direction to the respondent Block Education Extension Officer cum Secretary, Block Teacher Appointment Committee, Kako, Jehanabad to consider the case of the respondent no.7 for his appointment on the post of Prakhand Teacher. 3. Learned counsel for the petitioner, in support of the aforementioned prayer, has basically concentrated on the aspect that the appointment of the petitioner was made against a specific post reserved for Backward Female Category and as such, her appointment could not have been questioned much less set aside at the instance of the respondent no.7 a candidate of male category. He has also in this regard explained that the findings of the Tribunal as with regard to the discrepancy in the certificate produced by the petitioner showing her to be a candidate of Physically Handicapped Category is factually incorrect. 4. On the other hand, learned counsel for the respondent no.7 has submitted that the respondent no.7 is a more meritorious candidate and when the certificate of physical handicap produced by the petitioner was not in accordance with the provision laid down either in the Bihar Panchayat Teachers Appointment Rule, 2006 hereinafter referred to as the 2006 Rules or the government circular dated 5.1.2007 (Annexure-E to the counter affidavit of the respondent no.4), no flaw can be found in the order of the Tribunal which has rightly set aside the appointment of the petitioner with a consequential direction for considering the case of the respondent no.7 for his appointment against the vacancy created on account of removal of the petitioner from the post of Prakhand Teacher. 5. The facts giving rise to the present writ application in fact lie in a very narrow compass. Pursuant to the advertisement issued in the year 2008 for the post of Prakhand Teacher in the Kako Block in the district of Jehanabad, the petitioner as also the respondent no.7 had filed their application. 5. The facts giving rise to the present writ application in fact lie in a very narrow compass. Pursuant to the advertisement issued in the year 2008 for the post of Prakhand Teacher in the Kako Block in the district of Jehanabad, the petitioner as also the respondent no.7 had filed their application. The petitioner had filed her such application with a certificate of being physically handicapped dated 5.9.2008 showing herself to have 46% deformity in her eye and had also submitted her certificate and mark-sheet of Intermediate Examination showing her to have 519 marks as well as an experience certificate dated 25.09.2008 of her working as Shiksha Anudeshak under the Non-Formal Education Scheme of the Government for the period 5.8.1985 to 5.8.1993. It is the case of the petitioner that the Block Teacher Employments Committee after screening of the application of the petitioner, respondent no.7 and other candidates, had included the name of the petitioner in the panel awarding her 77.66% on merit points, 57.66% for her Intermediate Examination marks and 20 marks for her experience and on the basis of the same, she was appointed on the post of Prakhand Teacher reserved for Female in Backward Category. 6. According to the petitioner, the respondent no.7 having obtained only 47.11% in the Intermediate and belonging to the Male Category was not appointed despite his name figuring down below in the panel. The petitioner has also given the break-up of 42 vacancies of the Block Teacher in Kako Block out of which only 10 posts were required to be filled up in the year 2008. The petitioner has disclosed that out of 10 posts, 3 were to be filled up from the General Category of male candidate, 2 posts from General Category of female candidates and 2 posts amongst the Backward Category Female candidate. It is the case of the petitioner that her appointment was made against one of the two posts reserved for the Backward Female Category after counseling which was held on 15.1.2009. The petitioner in fact also claims that on the basis of selection as laid down in the 2006 Rules, she was ultimately appointed on 28.12.2010 by an order of Block Development Officer, Jehanabad and has since then been working in the upgraded High school, Golakpur. 7. The petitioner in fact also claims that on the basis of selection as laid down in the 2006 Rules, she was ultimately appointed on 28.12.2010 by an order of Block Development Officer, Jehanabad and has since then been working in the upgraded High school, Golakpur. 7. It is the further case of the petitioner that the respondent no.7, after seven months of her appointment, had filed complaint case no. 518(41)/2011 before the Tribunal raising the grievance against the appointment of the petitioner primarily on the ground of her physically disability certificate was forged and as such her appointment should be cancelled and on the vacancy created after removal of the petitioner, the respondent no.7 should be appointed. The petitioner claims that on receipt of notice of the Tribunal, she had appeared and had produced all her relevant documents including her original physical disability certificate dated 5.9.2008 and a confirmatory certificate issued by the Medical Board on 22.12.2011 duly signed by the three members of the Board but, the Tribunal by the impugned order had set aside the appointment of the petitioner only on the ground that the physical disability certificate as produced by the petitioner along with her application was only a medical fitness certificate and the subsequent confirmatory certificate issued by the Medical Board dated 22.12.2011 having been not filed by the petitioner initially at the time of filing her application in the year 2008, the same could not have saved her appointment. 8. Mr. Kishore Kumar Thakur, learned counsel for the petitioner while assailing the aforementioned findings, has submitted that in the 2006 Rules, no proforma was prescribed for submission of certificate of a physically handicapped candidate and as such, the petitioner’s certificate produced along with her application dated 5.9.2008 could not have been held to be bad. He has further highlighted that in any event, there is no comparison between the cases of the petitioner who was to be considered for her appointment against the post exclusively reserved for Female Category whereas the case of the respondent no.7 was that of a Male Candidate of Schedule Caste Category. 9. He has further highlighted that in any event, there is no comparison between the cases of the petitioner who was to be considered for her appointment against the post exclusively reserved for Female Category whereas the case of the respondent no.7 was that of a Male Candidate of Schedule Caste Category. 9. In the considered opinion of this Court, the whole challenge of the respondent no.7 to the appointment of the petitioner well after seven months of her appointment was misconceived and in fact not maintainable for the simple reason that the appointment of the petitioner as per the roaster was made against the post reserved for female of backward category and the respondent no.7 could not have vied for the said post. The respondent no.7 has not claimed that any one having lesser marks to him in the male category either in the reserved or non-reserved post was appointed. 10. The issue relating to competing of two persons of the different category at least in terms of the Bihar Panchayat Teacher Appointment Rule, 2006 which reserved 50% post for female category in each of the specified non-reserved and reserved category including physically handicapped candidates will be wholly irrelevant because for the physically handicapped candidates there is no vertical reservation rather the same is only horizontal. In other words, the physically handicapped category candidates have to be appointed in their specific category of male or female post, reserved or unreserved. Thus, when the case of the petitioner was that she had belonged to a backward female category and was also physically handicapped, the same in no way could have been assailed much less disturbed at the instance of the respondent no.7 who belongs to the male category and could have vied only for the post against male category. Thus, this Court finds that the Tribunal had failed to analyze this most important aspect. 11. The submission of Mr. Ramakant Sharma, learned senior counsel for the respondent no.7, that the petitioner did not submit the physical disability certificate as prescribed in the government circular dated 5.1.2007 as contained in Annexure-F to the interlocutory application filed by the respondent no.7, will also be of no avail, inasmuch as, first of all that circular was not adopted much less prescribed in the 2006 Rules. As a matter of fact, the clarification issued by the Director, Primary Education on 22.1.2009 to the District Superintendent of Education, Jehanabad that the Government decision dated 5.1.2007 as with regard to the reservation for the physically handicapped candidates should be made applicable is subsequent to the advertisement and thus the filing of the application by the petitioner and the respondent no.7 in no way could have adversely affected the claim of the petitioner of belonging to the physically handicapped category. The only provision made in Rule-5 (Gha) of 2006 Rules as with regard to the reservation for physically handicapped category lays down allocation of 1% post each for the candidates of visually handicapped, hearing impediment and other orthopedic disability. Thus, in absence of the specific any provision as with regard to the submission of the certificate of physically handicapped category much less in prescribed proforma in the 2006 Rule, the government circular dated 5.1.2007 issued actually for appointment in the government service, which would not include a post of Panchayat/Prakhand Teacher could not have been ipso-facto made applicable specially when the same was issued by way of an executive instruction and that too on 5.1.2007, whereas, the 2006 Rules had already come in force on 1.7.2006. By now, it is well settled that any executive instruction cannot supplant the statutory provision. 12. The reliance placed by Mr. Sharma on the notification dated 25.8.2008 containing certain guidelines for making the government circular dated 5.1.2007 also applicable in the case of the appointment of the Panchayat/Prakhand Teacher having been issued after the advertisement already issued in the year 2008, could not have been made applicable at least in the case of the petitioner and, in any event, the subsequent certificate issued by the Medical Board in terms of the government circular dated 5.1.2007 reiterating the same thing relating to the petitioner being admittedly in physically handicapped category in no view could lead to cancellation of the appointment of the petitioner specially when her both the certificates were issued with the signature of Civil Surgeon, Jehanabad, an aspect which has been confirmed by the Civil Surgeon in his answer to the query of Block Education Officer in his letter dated 29.11.2011 stating that the medical certificate which was issued by him on 5.9.2008, was duly issued by his office and it was a medical certificate and not a physical disability certificate. As a matter of fact, after the said order of the Civil Surgeon dated 29.11.2011 was received and was also produced before the Tribunal, the petitioner’s claim of her being physically disabled candidate was fully established and, therefore, her appointment could not have been set aside on a mere technicality by the impugned order when the subsequent confirmatory certificate of the Civil Surgeon along with two other members of the Medical Board dated 27.12.2011 had also established the same thing that the petitioner was a candidate of the physically handicapped category with visual deformity of 45%. 13. The matter can be viewed from another angle. The petitioner claims that she belongs to the physically handicapped category. In the form of the application enclosed with the Rules, the candidates were not supposed to give any certificate either with regard to their academic or reservation and those were to be produced only at the time of their counseling, as would be apparent from the prescribed proforma in Schedule-1 to the 2006 Rules, wherein, under the heading Awashyak Anudesha, it was provided as follows:- ^^vko’;d vuqns’k 1- vkosnu i= iz[k.M f’k{kk izlkj inkf/kdkjh@iapk;r lsod ds dk;kZy; esa lh/ks vFkok fucaf/kr i= }kjk Hkstk tk,A 2- vkosnu i= ds lkFk nks 10^^ x 6** lkbZt dk viuk irk fy[kk gqvk fyQkQk LVkEi ds lkFk layXu djuk gSA 3- vkosnu i= ds lkFk fdlh izdkj dk izek.k i=@vad i=@tkfr izek.k i= layXu djus dh vko’;drk ugha gSA 4- ftudk p;u gksxk os fu/kkZfjr frfFk] le; ,oa LFkku ij vius lHkh ewy izek.k i=@vad i=@tkfr izek.k i= ds lkFk&lkFk mudh vfHkizekf.kr Nk;kizfr ds lkFk mifLFkr gksaxsA 5- fu;kstu ds iwoZ ;Fkk vko’;d fuokl izek.k i= nsuk gksxkA 6- Nk;kizfr ds vk/kkj ij ;Fkk vko’;d tk¡p djkbZ tk,xh ,oa fdlh izdkj dh xyrh ik;s tkus dh fLFkfr esa fu;kstu jn~n djrs gq, dkuwuh dkjZokbZ dh tk,xhA 7- dkmfUlfyax@;ksxnku ds fy, fdlh izdkj dk ;k=k Hkrk ns; ugha gksxkA** 14. Thus, the certificate produced by the petitioner duly signed by the Civil Surgeon showing her to be visually handicapped dated 5.9.2008 could not have at least disqualified her. As a matter of fact, the subsequent disability certificate issued by the Medical Board dated 27.12.2011 confirms that the petitioner belongs to physically handicapped category, having visual disability of 45%. Thus, the certificate produced by the petitioner duly signed by the Civil Surgeon showing her to be visually handicapped dated 5.9.2008 could not have at least disqualified her. As a matter of fact, the subsequent disability certificate issued by the Medical Board dated 27.12.2011 confirms that the petitioner belongs to physically handicapped category, having visual disability of 45%. In view of this document which was well before the Tribunal, it cannot be said that the petitioner’s claim for appointment on the post of Prakhand Teacher on the basis of her being physically handicapped was in any way based on a forged document or was a fictitious claim. Moreover, the petitioner vying for appointment on the post of Prakhand Teacher was much better candidate on merit and she belonging to the female backward category for whom there was also a particular post, her appointment could not have challenged by respondent no.7, who belongs to the male category and could have claimed his appointment only against any post of male Prakhand Teacher. As noted above, the petitioner also had much higher marks both in the academic as also was having better experience in comparison to the respondent no.7 as prescribed in 2006 Rules and thus, even on merit, she had a better claim to be appointed. 15. The reference made and reliance placed by Mr. R.K. Sharma on the judgment of the Apex Court in the case of Rekha Chaturvedi (Smt) Vs. University of Rajasthan & Ors. reported in 1993 Suppl (3) SCC 168 and in the case of Ashok Kumar Sharma & Ors. Vs. Chander Shekhar & Anr. reported in 1997(4) SCC 18 as well as in the case of Bhupinderpal Singh & Ors. Vs. State of Punjab & Ors. reported in 2000(5) SCC 262 , also in no view of the mater would improve the case of the respondent no.7, inasmuch as, in those cases what has been held by the Apex Court is that the prescribed qualification under the advertisement must be possessed till the last date of the filing of the application under the advertisement. reported in 2000(5) SCC 262 , also in no view of the mater would improve the case of the respondent no.7, inasmuch as, in those cases what has been held by the Apex Court is that the prescribed qualification under the advertisement must be possessed till the last date of the filing of the application under the advertisement. In the present case, the petitioner, being a physically handicapped category on account of visual deformities, is not in doubt rather what is being questioned by the respondent no.7 is that her certificate was not in the prescribed proforma as laid down by the government in the circular dated 5.1.2007 requiring a Medical Board headed by the Civil Surgeon to have issued such certificate. This cannot be said to be lack of qualification. The Civil Surgeon, who had earlier issued the first certificate dated 5.9.2008 in fact had been the member of the Medical Board while issuing the second certificate dated 22.12.2011 and both of them if read together would clearly go to show that the petitioner belongs to physical handicapped category on account of having more than 40% visual deformity. Thus, her appointment could not have been disturbed at the instance of the respondent no.7 who, definitely did not belong to the backward female category against which the appointment of the petitioner was made by way of giving horizontal reservation for her also being a physically disabled candidate. 16. Thus for the reasons indicated above, this Court would allow this writ application by quashing the impugned order passed by the Tribunal as contained in Annexure-1 and since the petitioner is already continuing in service by the strength of an interim order passed by this Court on 21.2.2012, her continuation in service would remain undisturbed specially when the Block Development Officer, who had earlier appointed the respondent no.7 in compliance of the impugned order of the Tribunal, had himself stayed the appointment of the respondent no.7 in view of the interim order passed by this Court. 17. Consequently, the appointment of the respondent no.7 on the place of petitioner, which has already been stayed by the Block Development Officer, Kako by an order dated 26.7.2012, as contained in Annexure-G to the Interlocutory Application filed by the respondent no.7 on account of declaration of the impugned order of the Tribunal to be bad, is also quashed. 18. 17. Consequently, the appointment of the respondent no.7 on the place of petitioner, which has already been stayed by the Block Development Officer, Kako by an order dated 26.7.2012, as contained in Annexure-G to the Interlocutory Application filed by the respondent no.7 on account of declaration of the impugned order of the Tribunal to be bad, is also quashed. 18. In the result this application is, accordingly, allowed but there would no order as to costs. IN THE HIGH COURT OF JUDICATURE AT PATNA MIHIR KUMAR JHA, J. Manju Kumari – Petitioner Versus The State Of Bihar Through The Principal Secretary, Human Resources Development Department, Vikas Bhawan, New Secretariat, Bihar & Ors. – Respondents Civil Writ Jurisdiction Case No.3199 of 2012 Decided on: 16-05-2014 Advocate Appeared: For the Petitioner: Mr. Kishore Kumar Thakur, Adv., Mr. Kumar Chandra Shekhar, Adv. For the Res. No.9: Mr. Ramakant Sharma, Sr. Adv., Mr. Rajesh Kumar, Adv. For the State: Mr. S.K. Ranjan, AC to SC-15 Cases referred: Rekha Chaturvedi (Smt) Vs. University of Rajasthan & Ors. reported in 1993 Suppl (3) SCC 168 Ashok Kumar Sharma & Ors. Vs. Chander Shekhar & Anr. reported in 1997(4) SCC 18 Bhupinderpal Singh & Ors. Vs. State of Punjab & Ors. reported in 2000(5) SCC 262 Judgment Heard learned counsel for the parties. 2. In this writ application, the petitioner has assailed the order dated 7.1.2012 passed by the District Teachers Appointment Appellate Authority, Jehanabad (hereinafter to be referred to as ‘the Tribunal’) in Complaint Case No. 518(41)/2011, whereby and whereunder while allowing the complaint of Respondent no. 7 the appointment of the petitioner on the post of Prakhand Teacher has been cancelled with a consequential direction to the respondent Block Education Extension Officer cum Secretary, Block Teacher Appointment Committee, Kako, Jehanabad to consider the case of the respondent no.7 for his appointment on the post of Prakhand Teacher. 3. Learned counsel for the petitioner, in support of the aforementioned prayer, has basically concentrated on the aspect that the appointment of the petitioner was made against a specific post reserved for Backward Female Category and as such, her appointment could not have been questioned much less set aside at the instance of the respondent no.7 a candidate of male category. Learned counsel for the petitioner, in support of the aforementioned prayer, has basically concentrated on the aspect that the appointment of the petitioner was made against a specific post reserved for Backward Female Category and as such, her appointment could not have been questioned much less set aside at the instance of the respondent no.7 a candidate of male category. He has also in this regard explained that the findings of the Tribunal as with regard to the discrepancy in the certificate produced by the petitioner showing her to be a candidate of Physically Handicapped Category is factually incorrect. 4. On the other hand, learned counsel for the respondent no.7 has submitted that the respondent no.7 is a more meritorious candidate and when the certificate of physical handicap produced by the petitioner was not in accordance with the provision laid down either in the Bihar Panchayat Teachers Appointment Rule, 2006 hereinafter referred to as the 2006 Rules or the government circular dated 5.1.2007 (Annexure-E to the counter affidavit of the respondent no.4), no flaw can be found in the order of the Tribunal which has rightly set aside the appointment of the petitioner with a consequential direction for considering the case of the respondent no.7 for his appointment against the vacancy created on account of removal of the petitioner from the post of Prakhand Teacher. 5. The facts giving rise to the present writ application in fact lie in a very narrow compass. Pursuant to the advertisement issued in the year 2008 for the post of Prakhand Teacher in the Kako Block in the district of Jehanabad, the petitioner as also the respondent no.7 had filed their application. The petitioner had filed her such application with a certificate of being physically handicapped dated 5.9.2008 showing herself to have 46% deformity in her eye and had also submitted her certificate and mark-sheet of Intermediate Examination showing her to have 519 marks as well as an experience certificate dated 25.09.2008 of her working as Shiksha Anudeshak under the Non-Formal Education Scheme of the Government for the period 5.8.1985 to 5.8.1993. It is the case of the petitioner that the Block Teacher Employments Committee after screening of the application of the petitioner, respondent no.7 and other candidates, had included the name of the petitioner in the panel awarding her 77.66% on merit points, 57.66% for her Intermediate Examination marks and 20 marks for her experience and on the basis of the same, she was appointed on the post of Prakhand Teacher reserved for Female in Backward Category. 6. According to the petitioner, the respondent no.7 having obtained only 47.11% in the Intermediate and belonging to the Male Category was not appointed despite his name figuring down below in the panel. The petitioner has also given the break-up of 42 vacancies of the Block Teacher in Kako Block out of which only 10 posts were required to be filled up in the year 2008. The petitioner has disclosed that out of 10 posts, 3 were to be filled up from the General Category of male candidate, 2 posts from General Category of female candidates and 2 posts amongst the Backward Category Female candidate. It is the case of the petitioner that her appointment was made against one of the two posts reserved for the Backward Female Category after counseling which was held on 15.1.2009. The petitioner in fact also claims that on the basis of selection as laid down in the 2006 Rules, she was ultimately appointed on 28.12.2010 by an order of Block Development Officer, Jehanabad and has since then been working in the upgraded High school, Golakpur. 7. It is the further case of the petitioner that the respondent no.7, after seven months of her appointment, had filed complaint case no. 518(41)/2011 before the Tribunal raising the grievance against the appointment of the petitioner primarily on the ground of her physically disability certificate was forged and as such her appointment should be cancelled and on the vacancy created after removal of the petitioner, the respondent no.7 should be appointed. 518(41)/2011 before the Tribunal raising the grievance against the appointment of the petitioner primarily on the ground of her physically disability certificate was forged and as such her appointment should be cancelled and on the vacancy created after removal of the petitioner, the respondent no.7 should be appointed. The petitioner claims that on receipt of notice of the Tribunal, she had appeared and had produced all her relevant documents including her original physical disability certificate dated 5.9.2008 and a confirmatory certificate issued by the Medical Board on 22.12.2011 duly signed by the three members of the Board but, the Tribunal by the impugned order had set aside the appointment of the petitioner only on the ground that the physical disability certificate as produced by the petitioner along with her application was only a medical fitness certificate and the subsequent confirmatory certificate issued by the Medical Board dated 22.12.2011 having been not filed by the petitioner initially at the time of filing her application in the year 2008, the same could not have saved her appointment. 8. Mr. Kishore Kumar Thakur, learned counsel for the petitioner while assailing the aforementioned findings, has submitted that in the 2006 Rules, no proforma was prescribed for submission of certificate of a physically handicapped candidate and as such, the petitioner’s certificate produced along with her application dated 5.9.2008 could not have been held to be bad. He has further highlighted that in any event, there is no comparison between the cases of the petitioner who was to be considered for her appointment against the post exclusively reserved for Female Category whereas the case of the respondent no.7 was that of a Male Candidate of Schedule Caste Category. 9. In the considered opinion of this Court, the whole challenge of the respondent no.7 to the appointment of the petitioner well after seven months of her appointment was misconceived and in fact not maintainable for the simple reason that the appointment of the petitioner as per the roaster was made against the post reserved for female of backward category and the respondent no.7 could not have vied for the said post. The respondent no.7 has not claimed that any one having lesser marks to him in the male category either in the reserved or non-reserved post was appointed. 10. The respondent no.7 has not claimed that any one having lesser marks to him in the male category either in the reserved or non-reserved post was appointed. 10. The issue relating to competing of two persons of the different category at least in terms of the Bihar Panchayat Teacher Appointment Rule, 2006 which reserved 50% post for female category in each of the specified non-reserved and reserved category including physically handicapped candidates will be wholly irrelevant because for the physically handicapped candidates there is no vertical reservation rather the same is only horizontal. In other words, the physically handicapped category candidates have to be appointed in their specific category of male or female post, reserved or unreserved. Thus, when the case of the petitioner was that she had belonged to a backward female category and was also physically handicapped, the same in no way could have been assailed much less disturbed at the instance of the respondent no.7 who belongs to the male category and could have vied only for the post against male category. Thus, this Court finds that the Tribunal had failed to analyze this most important aspect. 11. The submission of Mr. Ramakant Sharma, learned senior counsel for the respondent no.7, that the petitioner did not submit the physical disability certificate as prescribed in the government circular dated 5.1.2007 as contained in Annexure-F to the interlocutory application filed by the respondent no.7, will also be of no avail, inasmuch as, first of all that circular was not adopted much less prescribed in the 2006 Rules. As a matter of fact, the clarification issued by the Director, Primary Education on 22.1.2009 to the District Superintendent of Education, Jehanabad that the Government decision dated 5.1.2007 as with regard to the reservation for the physically handicapped candidates should be made applicable is subsequent to the advertisement and thus the filing of the application by the petitioner and the respondent no.7 in no way could have adversely affected the claim of the petitioner of belonging to the physically handicapped category. The only provision made in Rule-5 (Gha) of 2006 Rules as with regard to the reservation for physically handicapped category lays down allocation of 1% post each for the candidates of visually handicapped, hearing impediment and other orthopedic disability. The only provision made in Rule-5 (Gha) of 2006 Rules as with regard to the reservation for physically handicapped category lays down allocation of 1% post each for the candidates of visually handicapped, hearing impediment and other orthopedic disability. Thus, in absence of the specific any provision as with regard to the submission of the certificate of physically handicapped category much less in prescribed proforma in the 2006 Rule, the government circular dated 5.1.2007 issued actually for appointment in the government service, which would not include a post of Panchayat/Prakhand Teacher could not have been ipso-facto made applicable specially when the same was issued by way of an executive instruction and that too on 5.1.2007, whereas, the 2006 Rules had already come in force on 1.7.2006. By now, it is well settled that any executive instruction cannot supplant the statutory provision. 12. The reliance placed by Mr. Sharma on the notification dated 25.8.2008 containing certain guidelines for making the government circular dated 5.1.2007 also applicable in the case of the appointment of the Panchayat/Prakhand Teacher having been issued after the advertisement already issued in the year 2008, could not have been made applicable at least in the case of the petitioner and, in any event, the subsequent certificate issued by the Medical Board in terms of the government circular dated 5.1.2007 reiterating the same thing relating to the petitioner being admittedly in physically handicapped category in no view could lead to cancellation of the appointment of the petitioner specially when her both the certificates were issued with the signature of Civil Surgeon, Jehanabad, an aspect which has been confirmed by the Civil Surgeon in his answer to the query of Block Education Officer in his letter dated 29.11.2011 stating that the medical certificate which was issued by him on 5.9.2008, was duly issued by his office and it was a medical certificate and not a physical disability certificate. As a matter of fact, after the said order of the Civil Surgeon dated 29.11.2011 was received and was also produced before the Tribunal, the petitioner’s claim of her being physically disabled candidate was fully established and, therefore, her appointment could not have been set aside on a mere technicality by the impugned order when the subsequent confirmatory certificate of the Civil Surgeon along with two other members of the Medical Board dated 27.12.2011 had also established the same thing that the petitioner was a candidate of the physically handicapped category with visual deformity of 45%. 13. The matter can be viewed from another angle. The petitioner claims that she belongs to the physically handicapped category. In the form of the application enclosed with the Rules, the candidates were not supposed to give any certificate either with regard to their academic or reservation and those were to be produced only at the time of their counseling, as would be apparent from the prescribed proforma in Schedule-1 to the 2006 Rules, wherein, under the heading Awashyak Anudesha, it was provided as follows:- ^^vko’;d vuqns’k 1- vkosnu i= iz[k.M f’k{kk izlkj inkf/kdkjh@iapk;r lsod ds dk;kZy; esa lh/ks vFkok fucaf/kr i= }kjk Hkstk tk,A 2- vkosnu i= ds lkFk nks 10^^ x 6** lkbZt dk viuk irk fy[kk gqvk fyQkQk LVkEi ds lkFk layXu djuk gSA 3- vkosnu i= ds lkFk fdlh izdkj dk izek.k i=@vad i=@tkfr izek.k i= layXu djus dh vko’;drk ugha gSA 4- ftudk p;u gksxk os fu/kkZfjr frfFk] le; ,oa LFkku ij vius lHkh ewy izek.k i=@vad i=@tkfr izek.k i= ds lkFk&lkFk mudh vfHkizekf.kr Nk;kizfr ds lkFk mifLFkr gksaxsA 5- fu;kstu ds iwoZ ;Fkk vko’;d fuokl izek.k i= nsuk gksxkA 6- Nk;kizfr ds vk/kkj ij ;Fkk vko’;d tk¡p djkbZ tk,xh ,oa fdlh izdkj dh xyrh ik;s tkus dh fLFkfr esa fu;kstu jn~n djrs gq, dkuwuh dkjZokbZ dh tk,xhA 7- dkmfUlfyax@;ksxnku ds fy, fdlh izdkj dk ;k=k Hkrk ns; ugha gksxkA** 14. Thus, the certificate produced by the petitioner duly signed by the Civil Surgeon showing her to be visually handicapped dated 5.9.2008 could not have at least disqualified her. As a matter of fact, the subsequent disability certificate issued by the Medical Board dated 27.12.2011 confirms that the petitioner belongs to physically handicapped category, having visual disability of 45%. Thus, the certificate produced by the petitioner duly signed by the Civil Surgeon showing her to be visually handicapped dated 5.9.2008 could not have at least disqualified her. As a matter of fact, the subsequent disability certificate issued by the Medical Board dated 27.12.2011 confirms that the petitioner belongs to physically handicapped category, having visual disability of 45%. In view of this document which was well before the Tribunal, it cannot be said that the petitioner’s claim for appointment on the post of Prakhand Teacher on the basis of her being physically handicapped was in any way based on a forged document or was a fictitious claim. Moreover, the petitioner vying for appointment on the post of Prakhand Teacher was much better candidate on merit and she belonging to the female backward category for whom there was also a particular post, her appointment could not have challenged by respondent no.7, who belongs to the male category and could have claimed his appointment only against any post of male Prakhand Teacher. As noted above, the petitioner also had much higher marks both in the academic as also was having better experience in comparison to the respondent no.7 as prescribed in 2006 Rules and thus, even on merit, she had a better claim to be appointed. 15. The reference made and reliance placed by Mr. R.K. Sharma on the judgment of the Apex Court in the case of Rekha Chaturvedi (Smt) Vs. University of Rajasthan & Ors. reported in 1993 Suppl (3) SCC 168 and in the case of Ashok Kumar Sharma & Ors. Vs. Chander Shekhar & Anr. reported in 1997(4) SCC 18 as well as in the case of Bhupinderpal Singh & Ors. Vs. State of Punjab & Ors. reported in 2000(5) SCC 262 , also in no view of the mater would improve the case of the respondent no.7, inasmuch as, in those cases what has been held by the Apex Court is that the prescribed qualification under the advertisement must be possessed till the last date of the filing of the application under the advertisement. reported in 2000(5) SCC 262 , also in no view of the mater would improve the case of the respondent no.7, inasmuch as, in those cases what has been held by the Apex Court is that the prescribed qualification under the advertisement must be possessed till the last date of the filing of the application under the advertisement. In the present case, the petitioner, being a physically handicapped category on account of visual deformities, is not in doubt rather what is being questioned by the respondent no.7 is that her certificate was not in the prescribed proforma as laid down by the government in the circular dated 5.1.2007 requiring a Medical Board headed by the Civil Surgeon to have issued such certificate. This cannot be said to be lack of qualification. The Civil Surgeon, who had earlier issued the first certificate dated 5.9.2008 in fact had been the member of the Medical Board while issuing the second certificate dated 22.12.2011 and both of them if read together would clearly go to show that the petitioner belongs to physical handicapped category on account of having more than 40% visual deformity. Thus, her appointment could not have been disturbed at the instance of the respondent no.7 who, definitely did not belong to the backward female category against which the appointment of the petitioner was made by way of giving horizontal reservation for her also being a physically disabled candidate. 16. Thus for the reasons indicated above, this Court would allow this writ application by quashing the impugned order passed by the Tribunal as contained in Annexure-1 and since the petitioner is already continuing in service by the strength of an interim order passed by this Court on 21.2.2012, her continuation in service would remain undisturbed specially when the Block Development Officer, who had earlier appointed the respondent no.7 in compliance of the impugned order of the Tribunal, had himself stayed the appointment of the respondent no.7 in view of the interim order passed by this Court. 17. Consequently, the appointment of the respondent no.7 on the place of petitioner, which has already been stayed by the Block Development Officer, Kako by an order dated 26.7.2012, as contained in Annexure-G to the Interlocutory Application filed by the respondent no.7 on account of declaration of the impugned order of the Tribunal to be bad, is also quashed. 18. 17. Consequently, the appointment of the respondent no.7 on the place of petitioner, which has already been stayed by the Block Development Officer, Kako by an order dated 26.7.2012, as contained in Annexure-G to the Interlocutory Application filed by the respondent no.7 on account of declaration of the impugned order of the Tribunal to be bad, is also quashed. 18. In the result this application is, accordingly, allowed but there would no order as to costs.