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2016 DIGILAW 718 (RAJ)

Shobha Mutha v. State of Rajasthan

2016-05-19

NIRMALJIT KAUR

body2016
ORDER : Nirmaljit Kaur, J. The prayer in the present petition is to appoint the petitioner on the post of Lecturer in Commerce subject in pursuance of the advertisement dated 2.8.2013 and corrigendum dated 24.09.2013. 2. The facts in short are that respondent No.2 RPSC issued an advertisement dated 2.8.2013 whereby posts were advertised for appointment on the post of School Lecturer in various subjects. No specific date was fixed for the examination. It was stated in the said advertisement that the dates shall be declared at a later point of time. As per this advertisement dated 2.8.2013, the RPSC prescribed in the advertisement that the candidate should fulfil the eligibility criteria prior to the date of conducting of School Lecturer Competitive Examination, 2013. All the candidates who were yet to appear in the examination were allowed to participate in the examination subject to their acquiring the qualifications before the date of the said examination. 3. It is not disputed that in pursuance to her application, the petitioner was issued admit card. The petitioner was also allowed to appear in the said examination for first paper on 12.7.2014 as well as for the second paper on 27.9.2014. 26 posts were reserved for appointment under the widow category. The petitioner who belongs to the widow category had accordingly applied under the said category. RPSC offered appointment to a candidate of this category who was much lower in merit than the petitioner. A candidate who had got 99.42 marks was accorded appointment whereas the petitioner had secured 175 marks was not offered the appointment on the post under this category in spite of number of seats lying vacant. Accordingly, the petitioner was forced to file the present writ petition. 4. Reply has been filed. As per the reply, the petitioner did not fulfil the requisite qualification as per the rules. The written examination had commenced on 12.7.2014 but the petitioner cleared the requisite educational qualification only on 23.9.2014 and hence she was held ineligible. Reliance is placed by the learned counsel for the respondent on the judgment passed by the Single Bench of this Court in S.B. Civil Writ Petition No.1520/2013 (Seeta Seervi & Ors. v. State of Raj. & anr.) dismissing the petition after taking into account the judgment rendered by the Apex Court in the case of Ashok Kumar Sharma and Ors. v. Chander Shekhar & Anr. v. State of Raj. & anr.) dismissing the petition after taking into account the judgment rendered by the Apex Court in the case of Ashok Kumar Sharma and Ors. v. Chander Shekhar & Anr. reported in (1997) 4 SCC 18 . 5. The judgment relied on by the learned counsel for the respondent in the case of Ashok Kumar does not help the petitioner in the facts of the present case. In the said case, a cut-off date had been prescribed in the advertisement. The candidates were required to be fully qualified by the prescribed date i.e. 15.07.1982. In the present case, no cut-off date was provided in the advertisement. As per the advertisement, even the candidates who were yet to be appeared in the final examination, were permitted to submit their application subject to acquiring the qualification before the date of the examination in terms of the proviso (3) to Rule 11 of the Rajasthan Education Service Rules, 1970. 6. It is not disputed that the Rajasthan Education Service Rules, 1970 are applicable to the case in hand. Proviso 3 to Rule 11 reads as under:- “Provided that the person who has appeared or is appearing in the final year examination of the course which is the requisite educational qualification for the post as mentioned in the rules or schedule for direct recruitment, shall be eligible to apply for the post but she/she shall have to submit proof of having acquired the requisite educational qualification to the appropriate selection agency :- (i) before appearing in the main examination, where selection is made through two stages of written examination and interview; (ii) before appearing in interview where selection is made through written examination and interview; (iii) before appearing in the written examination or interview where selection is made through only written examination or only interview, as the case may be.” 7. The same rule was a subject matter of writ petition No.34/2015 (Smt. Manju Chhaba v. RPSC) decided on 10.09.2015. In the said case, the petitioner was refused appointment on the ground that the said candidate had acquired the requisite educational qualifications during the course of the competitive examination. The same rule was a subject matter of writ petition No.34/2015 (Smt. Manju Chhaba v. RPSC) decided on 10.09.2015. In the said case, the petitioner was refused appointment on the ground that the said candidate had acquired the requisite educational qualifications during the course of the competitive examination. The said writ petition was allowed after taking into consideration the relevant rule by holding that 'the restrictive interpretation which is taken in the State's reply that the date of examination should be taken as the date of commencement and not the date of conclusion is per se unacceptable”. 8. Being aggrieved, the Rajasthan Public Service Commission challenged the order and judgment dated 10.09.2015 passed in the aforesaid case in D.B. Civil Special Appeal(w) No.127/2016. While dismissing the appeal, the Court held as under:- “Without examining the argument advanced, we are of the view that the appeal deserves to be dismissed on the count that the respondents at their own permitted the respondent petitioner to appear in the examination concerned though she did not furnish any evidence as required under Proviso 3 to Rule 11 of the Rules of 1971. This indicates that the requirement of submitting evidence for acquiring the qualification before appearing in the examination was waived and the petitioner was allowed to participate in the examination. The respondents otherwise would have restrained her from appearing in examination on 21.02.2014 itself. It is pertinent to note that the petitioner after qualifying the examination was declared successful as she has also obtained marks higher than the other successful candidates. In view of it no interference with the order passed by the learned Single Bench is warranted.” 9. A perusal of the rules reproduced above shows that a candidate is granted liberty to appear in three different eventualities. A candidate who is required to appear both in the written examination and interview is allowed to submit the proof of having acquired the requisite qualification before appearing in the interview; meaning thereby that he is allowed to take the written examination even though he has not cleared the examination up till the conclusion of the written examination. A candidate who is required to appear both in the written examination and interview is allowed to submit the proof of having acquired the requisite qualification before appearing in the interview; meaning thereby that he is allowed to take the written examination even though he has not cleared the examination up till the conclusion of the written examination. Whereas, a candidate who has to undergo only written examination has to submit the proof of having acquired the requisite qualification before appearing in the said written examination giving rise to a glaring anomaly on the face of it between two similar candidates, who have acquired the qualification during the pendency of the selection process. This definitely could not have been the object and intention of the authority making the rule to differentiate between two similar candidates. In any case, in the present case, the petitioner was still taking her written examination. She had already appeared in the first paper and was yet to appear in the second paper and meanwhile she acquired her educational qualification on 23.9.2014 much before the conclusion of final written examination. Moreover, as also held by the Division Bench of this Court in the case of RPSC v. Smt. Manju Chhaba & Ors. (supra), the respondents themselves had waived of the requirement of submitting the evidence for appearing in the qualifying examination by allowing her to appear in the main examination not only on 12.07.2014 but also on 27.09.2014 Meanwhile, the petitioner had also acquired the qualification on 23.09.2016 i.e. before the second date of the examination. Admittedly, the petitioner has got 175 marks which are almost double the marks received by the last selected candidate under the widow category. Even the seats are lying vacant. 10. In these circumstances, the present writ petition is allowed. The respondents are directed to offer appointment to the petitioner on the post of School Lecturer in Commerce subject to the verification of her testimonials and character verification. The petitioner's appointment shall relate back to the date when the last candidate was appointment. However, the petitioner is not entitled to the salary for the period. The compliance of the order be made within four weeks.