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Himachal Pradesh High Court · body

2017 DIGILAW 674 (HP)

Bandana Devi v. State Of H. P.

2017-06-14

PREM KUMAR, V.K.SHARMA

body2017
JUDGMENT V.K. Sharma, Chairman. (Oral)—The writ petition (now transferred application) has been filed on the following substantive prayers vide para 12 a, aa, b, c and d :- 12(a) "Issue a writ of Certiorari for quashing the amendment in recruitment and promotion rules 2011 annexure P-5 wherein for the appointment as Lecturer School Cadre (PGT) essential qualification from Post Graduation Degree has been changed/amended to the Post Graduation Degree with 50%. (aa) Issue a writ of mandamus directing the respondents to interview the petitioner for the post of PGT (English) as petitioner was declared to be a successful in the written examination with 119 marks in total and whereas the cut-off marks under General (UR) category in the screening test were 113. (b) Issue a writ of Certiorari for quashing and striking down the condition of minimum of 50% marks in aggregate in Post Graduation (M.A. English in the present case) in the advertisement No. 22/2011 dated 13.12.2011 (Annexure P-7) issued by respondent No.3; (c) A writ in nature of mandamus may kindly be issued directing the respondents to consider the petitioner for appointment as Lecturer School Cadre (PGT) as per un-amended R&P rules for the appointment as Lecturer School Cadre (PGT) by ignoring the 50% in the Post Graduation Degree. (d) A writ in nature of mandamus may kindly be issued directing the respondents to grant one time relaxation in the amended eligibility condition i.e. 50% marks in the post graduation should be relaxed as one time relaxation measure for those who were eligible under the un-amended R&P Rules for the post of Lecturer School Cadre (PGT) by invoking the rule 18 provided in the R&P rule itself, since petitioner was fully eligible under the un-amended rules and these amended R&P rules are made applicable from August 2011 itself and under these rules the first advertisement annexure P-7 is advertised for the recruitment to the various post of Lecturer School Cadre (PGT);" 2. The short question involved in the present transferred application for determination is that whether ''Recruitment and Promotion Rules for the post of Post Graduate Teacher Class-III (Non-Gazetted) in the Department of Higher Education Himachal Pradesh'' (Un-amended Rules), Annexure P-5, as per which the minimum educational qualification was ''Master''s Degree in the subject concerned from a recognised University (with minimum of 45% marks in aggregate) or its equivalent'', would apply in the facts and circumstances of the present case or the matter is governed under the ''Himachal Pradesh Higher Education Department, Post Graduate Teacher, Class-III (Non-Gazetted), Recruitment and Promotion (1st Amendment) Rules, 2011'' (Amended Rules), Annexure P-6, according to which the essential qualification is ''Master''s Degree in the subject concerned from a recognised University (with minimum of 50% marks in aggregate) or equivalent''. 3. The process for recruitment to the post of Post Graduate Teacher (PGT) (English) (on contract basis) was initiated, vide advertisement dated 13.12.2011, Annexure P-7. The last date for submission of applications was 12.01.2012. 4. On 12.01.2012, when the writ petition was listed before the Hon''ble High Court of Himachal Pradesh for the first time, the following order was passed:- "CWP No. 474 of 2012. Allowed and disposed of. CWP No. 297/2012 and CMP No. 473/2012. In case the petitioner has already applied and the application is to be rejected only on the ground that the petitioner does not possess the qualification prescribed as per the advertisement/notification, she may be permitted provisionally to appear in the examination." 5. Subsequently, on 11.12.2012, the following order came to be passed by the Hon''ble High Court:- "The result of the petitioners has been produced in a sealed cover. The same is opened in the presence of the learned counsel for the parties. Petitioners have qualified the written test by securing more marks than the cut-off marks. The result is ordered to be returned to the learned counsel for respondent No.3 in a sealed cover. Since the petitioners have challenged the vires of the Recruitment and Promotion Rules, the matter is required to be listed before the Division Bench at the pleasure of Hon''ble the Chief Justice." 6. The result is ordered to be returned to the learned counsel for respondent No.3 in a sealed cover. Since the petitioners have challenged the vires of the Recruitment and Promotion Rules, the matter is required to be listed before the Division Bench at the pleasure of Hon''ble the Chief Justice." 6. True it is that the Amended Rules, which were to come into force from the date of publication in the Rajpatra, Himachal Pradesh, were notified vide notification dated 19.08.2011, Annexure P-6, but the fact remains that the notification was published in the official gazette only on 6th June, 2013, as is apparent from the copy of notification filed by the learned Additional Advocate General in terms of order dated 02.01.2016 passed by this Tribunal. 7. Thus, on the last date of submission of applications (12.01.2012), in terms of advertisement dated 13.12.2011, Annexure P-7, the Un-amended Rules were holding the field. As per those rules, a candidate was required to hold a Master''s Degree in the concerned subject from a recognised University with minimum of 45% marks in aggregate or its equivalent, which requirement was fully met with by the applicant, who had secured 581 marks out of 1200 marks, which come to 48.4 1%. 8. In the facts and circumstances. Amended Rules, which had come into force only on 6th June, 2013, would have no application in the present case. It being so, insertion of the requirement of 50% marks in aggregate in the advertisement notice dated 13.12.2011, Annexure P-7, is absolutely inconsequential. 9. On a plain reading of the aforesaid order dated 11.12.2012 passed by the Hon''ble High Court, it is manifest that the applicant had "qualified the written test by securing more marks than the cut-off marks." Thus, she was entitled for selection/appointment as PGT (English). 10. In view of the above, the transferred application succeeds and is accordingly allowed with a direction to respondent No. 3 to conduct interview of the applicant for the post of PGT (English) at an early date, but in any case not later than 31st July, 2017 and in case she succeeds in the interview, respondents No.1 and 2/competent authority shall issue appointment letter in her favour, latest by 31st August, 2017. 11. 11. As the applicant was pursuing the matter initially in the Hon''ble High Court and thereafter in this Tribunal since 12.01.2012, her selection/appointment in terms of this order would take effect from the due date and she would be placed at the bottom of the select list of PGTs (English) recruited pursuant to the advertisement notice dated 13.12.2011, Annexure P-7. 12. The transferred application as also pending miscellaneous application(s), if any, stand disposed of in the above terms.