Bnshi Dhar Saini Son Of Lakhu Ram Saini v. State of Rajasthan
2019-12-14
VIJAY BISHNOI
body2019
DigiLaw.ai
JUDGMENT Vijay Bishnoi, J. - This review petition is filed by the petitioner with delay of 686 days. An application under Section 5 of the Limitation Act for condonation of delay has been filed, wherein it is contended that the petitioner filed D.B.Civil Special Appeal (Writ) No.277/2013, Banshidhar Saini vs. State of Rajasthan & Ors. before this Court, which was dismissed by a Division Bench of this Court vide order dated 13.01.2015 while granting permission to the petitioner to file appropriate review petition, therefore, the delay of 686 days in filing this review petition was caused. 2. The application under Section 5 of the Limitation Act for condoning the delay in filing the review petition is not seriously opposed by Mr K.K.Bissa, learned counsel appearing on behalf of the respondents. 3. Having heard learned counsels for the parties and having perused the contentions made in the application under Section 5 of the Limitation Act, the same is allowed and the delay of 686 days in filing the review petition is condoned. 4. This review petition is preferred on behalf of the petitioner seeking review of the judgment/order dated 02.04.2013 passed by this Court in S.B.Civil Writ Petition No.3996/2007, Banshi Dhar Saini vs. State of Rajasthan & Ors. Vide judgment/order dated 02.04.2013, whereby this Court dismissed the writ petition filed by the petitioner while placing reliance on two decisions of this Court rendered in SBCWP No.8691/2011, Mahendra Kumar vs. State of Rajasthan & Ors. decided on 22.10.2011 and SBCWP No.4530/2005, Poonam Choudhary vs. State of Rajasthan & Ors. decided on 06.08.2008. 5. The present review petition is filed by the petitioner mainly on the ground that degree of Shiksha Visharad possessed by the petitioner issued from Hindi Sahitya Sammelan, Allahabad is of the year 2002-2003 and at that time, the said degree was recognized by the NCTE. It is submitted that the said degree was equivalent to B.Ed. and on the basis of which the petitioner was selected by the District Education Officer and Additional Chief Executive Officer (Primary Education), Zila Parishad, Churu for the post of Teacher Gr.III vide office order dated 02.02.2006 and offered appointment. 6.
It is submitted that the said degree was equivalent to B.Ed. and on the basis of which the petitioner was selected by the District Education Officer and Additional Chief Executive Officer (Primary Education), Zila Parishad, Churu for the post of Teacher Gr.III vide office order dated 02.02.2006 and offered appointment. 6. It is submitted that later on, a clarification was issued by the Rajasthan Public Service Commission, Ajmer on 18.06.2007, wherein it is mentioned that the Shiksha Visharad Degree from Hindi Sahitya Sammelan, Allahabad is not recognized by the NCTE and, therefore, the persons possessing the said degree are not entitled to be appointed as Teacher Gr.III. It is further submitted that on the basis of the said letter of the RPSC, the services of the petitioner on the post of Teacher Gr.III were terminated. 7. Learned counsel for the petitioner has argued that the action of the department in terminating the services of the petitioner was illegal. It is further argued that in the respondent department, several persons possessing the degree of Shiksha Visharad are still continuing in service. Learned counsel for the petitioner, in support of his contention, has invited attention of this Court towards several orders by which the persons, possessing degree of Shiksha Visharad, are still working as Teachers with the respondent department. 8. Learned counsel for the petitioner has further submitted that this Court while deciding SBCWP No.3996/2007 had not taken into consideration this aspect of the matter, however, it is admitted by the learned counsel for the petitioner that no proof or documents of the effect that similarly situated persons are working with the respondent department on the post of Teachers were submitted along with the writ petition and were only placed on record in the special appeal preferred against the judgment/order dated 02.04.2013. 9. Placing reliance on the decision of this Court rendered in SBCWP No.1940/2000, Ratan Puri vs. State of Rajasthan & Ors. decided on October 13, 2000 and Full Bench decision rendered in Shanker Lal Verma & 13 Ors. vs. The Rajasthan State Electricity Board,1991 1 WLC(Raj) 1 , learned counsel for the petitioner has prayed that the review petition be allowed and the judgment/order dated 02.04.2013 passed by this Court in SBCWP No.3996/2007 be reviewed and the writ petition filed by the petitioner be restored and be heard on merits. 10.
vs. The Rajasthan State Electricity Board,1991 1 WLC(Raj) 1 , learned counsel for the petitioner has prayed that the review petition be allowed and the judgment/order dated 02.04.2013 passed by this Court in SBCWP No.3996/2007 be reviewed and the writ petition filed by the petitioner be restored and be heard on merits. 10. Learned counsel for the respondents Mr K.K.Bissa has vehemently opposed the prayer of the learned counsel for the petitioner and argued that the degree of Shiksha Visharad possessed by the petitioner is not equivalent to the B.Ed. even when the appointment was provided to the petitioner. Learned counsel for the respondents has further argued that even if some of the persons possessing the similar qualification were given appointments or are continuing as Teachers, then also this fact itself cannot be a ground for granting relief to the petitioner because the principle of equality is not negative and any illegality cannot be allowed to be perpetuated. 11. Learned counsel for the respondents has also submitted that the Shiksha Visharad degree was never recognized by the NCTE or by any other institution as equivalent to B.Ed. at any point of time and the petitioner was provided appointment erroneously, however, the said mistake was rectified by cancelling the appointment of the petitioner and in such circumstances, it cannot be said that the respondents have acted illegally in any manner. Learned counsel for the respondents has, therefore, prayed that there is no merit in this review petition and the same is liable to be rejected. 12. Heard learned counsel for the parties. 13. To my memory, no such arguments, as has been advanced by the counsel for the petitioner in this review petition, were raised at the time of decision of the writ petition. Even Mr Girish Sankhla Advocate was not the counsel in the writ petition filed by the petitioner in the year 2007 and he was engaged as counsel for the petitioner only when the special appeal was preferred on behalf of the petitioner against the judgment/order dated 02.04.2013. Be that as it may, in the interest of justice, I have decided to consider the arguments raised on behalf of the petitioner in this review petition on merits. 14. The first contention of the petitioner that the Shiksha Visharad Degree possessed by the petitioner issued by the Hindi Sahitya Sammelan, Allahabad is equivalent to the B.Ed.
Be that as it may, in the interest of justice, I have decided to consider the arguments raised on behalf of the petitioner in this review petition on merits. 14. The first contention of the petitioner that the Shiksha Visharad Degree possessed by the petitioner issued by the Hindi Sahitya Sammelan, Allahabad is equivalent to the B.Ed. Degree is without any basis. Learned counsel for the petitioner has failed to show a single document issued by any authority in support of his contention that the Shiksha Visharad Degree issued by the Hindi Sahitya Sammelan, Allahabad was recognized as equivalent to B.Ed. Degree at any point of time. 15. Per contra, a letter issued by General Administration (Group-5) Department of the State of Rajasthan dated 13.05.1974, filed by the respondents along with reply to the writ petition, as annexure R/1, clearly states that Shiksha Visharad qualification issued by the Hindi Sahitya Sammelan, Allahabad is equivalent to Bachelor of Arts only. It is also to be noticed that the petitioner annexed a letter dated 27.02.2001 (annexure 8) with the writ petition, which have been issued by the National Council for Teacher Education, clarifying that Hindi Sahitya Sammelan, Allahabad does not conduct any course for teachers training and only conduct examinations at various centres. 16. From the above two documents, it is clear that there is no declaration by any institution or authority to the effect that Visharad Degree issued by the Hindi Sahitya Sammelan, Allahabad is equivalent to B.Ed. Needless to say, for the purpose of appointment on the post of Teacher Gr.III with the respondentdepartment, a candidate must have possessed the qualification of B.Ed. or STC, which the petitioner does not possess. 17. So far as argument of the learned counsel for the petitioner of this effect that various persons holding Visharad Degrees are working as Teachers in the respondent department is concerned, it is to be noticed that the respondents in reply to the writ petition or in reply to the review petition have not specifically denied the said claim of the petitioner.
However, this Court is of the opinion that if the petitioner does not possess the requisite qualification for appointment on the post of Teacher Gr.III, then he is not entitled to be appointed on the post of Teacher Gr.III, though some of the similarly situated persons, not having the requisite qualification, have been appointed or are continuing with the respondent-department. Equity cannot prevail over the law. 18. The Hon'ble Supreme Court in Chandigarh Administration and Ors. v Jagjit Singh and Ors., (1995) 1 SCC 745 , has held as under: "8....Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondentauthority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent- authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law." 19.
Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law." 19. In Ahmedabad Municipal Corporation v Virendra Kumar Jayantibhai Patel, (1997) 6 SCC 650 , the Honble Supreme Court has held as under: "5.....It is also noticed earlier that respondent appeared before the Selection Committee but was not selected. Under such circumstances, there is no room for sympathy or equity in the matter of such appointment specially where the recruitment in service is governed by the statutory rules. If the reasoning given by the tribunal is accepted, the statutory recruitment rules would become nugatory or otiose and the department can favour any person or appoint any person without following procedure provided in the recruitment rules which would lead to nepotism and arbitrariness. Once the consideration of equity in the face of statutory rules is accepted then eligible and qualified persons would be sufferers as they would not get any chance to be considered for appointment. The result would be that persons lesser in merit would get preference in the matter of appointment merely on the ground of equity and compassion. It is therefore not safe to bend the arms of law only for adjusting equity." 20. In Council for Indian School Certificate Examination Vs. Isha Mittal and Ors., (2000) 7 SCC 521 , the Hon'ble Supreme Court has held as under: "4. It is the obligation of the High Court to decide the matters before it in accordancewith law. If the law was, as the High Court observes in the passage quoted above, in favour of the appellant before it, it was obliged to make an order in favour of the appellant. Considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law." 21. So far as judgment of a Co-ordinate Bench of this Court rendered in Ratan Puri (supra) as well as of Full Bench of this Court rendered in Shanker Lal Verma (supra) are concerned, the same have no applicability in the present controversy. In Ratan Puri's case (supra), this Court had allowed the writ petition mainly on the ground that the petitioner therein had acquired the qualification of Prathama prior to the date it was declared derecognized by the State Government.
In Ratan Puri's case (supra), this Court had allowed the writ petition mainly on the ground that the petitioner therein had acquired the qualification of Prathama prior to the date it was declared derecognized by the State Government. This Court was of the view that as the petitioner in that case had acquired the qualification before its derecognition, it cannot be said that the qualification of Prathama possessed by him is not liable to be considered for the purpose of promotion. 22. In the present case, the qualification of Shiksha Visharad possessed by the petitioner, which was never recognized as equivalent to B.Ed. at any point of time and, therefore, there is no question of declaring its derecognition. In such circumstances, the reliance placed by learned counsel for the petitioner on the decision of this Court in Ratan Puri's case (supra) is of no help to the petitioner. So far as the decision of Full Bench of this Court rendered in Shanker Lal Verma's case (supra) is concerned, the controversy is altogether different. The Full Bench of this Court was pondering over the question whether any qualification for the purpose of appointment on a post can be changed by way of amendment with retrospective effect or not. The Full Bench had held that amended qualification shall apply even to the candidates who had acquired equivalent qualification prior to amendment of the Rules but the amended qualification shall not be applicable to the vacancies occurring prior to the date of enforcement of amended Rule. 23. As noticed earlier, in the present case, the respondents have not amended any Rule or have not introduced amended qualification but have non-suited the petitioner on the ground that he was not having the requisite qualification for appointment on the post of Teacher Gr.III. As stated earlier, the petitioner has failed to show any document to the effect that the Shiksha Visharad Degree possessed by him issued by the Hindi Sahitya Sammelan, Allahabad was ever recognized as equivalent to the B.Ed. by any authority or institution. 24. In view of the above discussion, I do not find any merits in this review petition and the same is hereby dismissed. There shall be no order as to costs.