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2022 DIGILAW 757 (HP)

Kamal Kanta v. State of Himachal Pradesh

2022-11-25

AJAY MOHAN GOEL

body2022
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, the petitioner has prayed for the following reliefs: “(i) That a writ of certioreri may kindly be issued quashing the appointment of respondents No. 5 and 6. (ii) That a writ of Mandamus may kindly be issued to the respondents to appoint the petitioner to the post of Language Teacher in District Mandi, H.P.” 2. The grievance, with which the present petition was filed by the petitioner, was that respondent/Department in terms of advertisement dated 24.12.2013 (Annexure P9), invited applications to fill up the posts of Language Teachers in various schools in District Mandi, H.P. and in terms thereof, the recruitment was to be made on batch-wise basis and counseling for this purpose was fixed for 06.01.2014, at 10.00 a.m. in the office of Deputy Director, Education, Mandi, District Mandi, H.P. According to the petitioner, the advertisement was not in knowledge of the petitioner and she came to know about the same only on 10.02.2014 and thereafter, she made representations to respondent No. 3 to consider her also for interview for the post of Language Teacher in view of the fact that the results for interview dated 06.01.2014 had not yet been declared. As no action was taken on the representation of the petitioner and appointment letters were issued to the candidates selected in terms of the interview conducted on 06.01.2014, hence, the petition. 3. The contention of the petitioner in the writ petition was that issuance of advertisement for filling up the posts of Language Teachers on batch-wise basis by way of interview/counseling was per se bad in law because it was incumbent upon the respondent/Department to have had sent the requisition to fill up the post on batch-wise basis to the Employment Exchange concerned and omission on the part of respondent/Department to do so has resulted in grave injustice to the petitioner as in the absence of any requisition being placed to the Employment Exchange concerned, obviously the name of the petitioner was not forwarded for batch-wise recruitment resulting in her not being appointed against the post in issue. In this background, present petition has been filed seeking the relief already spelled by this Court hereinabove. 4. In this background, present petition has been filed seeking the relief already spelled by this Court hereinabove. 4. The petition is resisted by respondent/Department, inter-alia, on the ground that the same was not maintainable as the petitioner was not eligible in terms of the advertisement for appointment against the post in issue. It has been stated in the preliminary submissions that the petitioner though was possessing the requisite qualification for the purpose of Language Teacher as per the relevant Recruitment & Promotion Rules, but as she passed the Teacher Eligibility Test on 14.03.2014 and the interview in question was held on 06.01.2014, therefore, in the absence of the petitioner possessing said qualification on the date of interview she was not entitled for the relief claimed for. It is not denied in the response that after conduct of the interview, the petitioner did make a representation, but as per the respondents, this representation was not acceded to, as while advertising the post it was made clear that any candidate failing to attend the counseling on the fixed date shall not be entertained by the Department. 5. As far as the issue of requisition being sent to the Employment Exchange is concerned, all that was stated in the reply by the respondent/State was that wide publicity was given for conducting the counseling on 06.01.2014 by way of advertisement in leading newspapers and it was the petitioner who failed to apply for the same being ineligible on account of non-possessing the qualification of Teacher Eligibility Test. 6. This Court on previous dates after hearing the contentions of learned counsel for the petitioner as also learned Additional Advocate General had issued a direction that let learned Commissioner-cum-Director of Employment, Shimla, Himachal Pradesh appear in the Court to explain the applicability of the provisions of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, vis-a-vis the post which is subject matter of the advertisement dated 24.12.2013 (Annexure P9). On 23.11.2022, Deputy Director Employment Exchange to the Government of Himachal Pradesh alongwith Law Officer, Labour and Employment were present in the Court and they stated that all the posts which the respondent/State intends to fill up, have to be necessarily requisitioned to the concerned Employment Exchanges also, except the posts which were protected in terms of provisions of Section 3 of the 1959 Act. In fact, the response which has been filed by respondent No. 4 to the writ petition is also to the effect that as no requisition was received from the Education Department by the said Employment Exchange, therefore, the names of eligible candidates could not be forwarded. 7. Today, the matter was heard further on the issue as to whether the petitioner was eligible for the post in issue in terms of the advertisement or not. 8. Before this Court is addressed, it is necessary to observe that the act of the respondent/Department of not sending requisition to the Employment Exchange for fill up the posts in issue is in fact bad in the eyes of law as the same violates the provisions of 1959 Act. The Court is not at all suggesting that the Department concerned could not have had issued the advertisement, but, it was mandatory for the Department to have had also sent the requisition to the concerned Employment Exchanges in addition to issuance of the advertisement, because the law as it stands today is that every eligible person has a right to apply for a post, dehors the fact as to whether his or her name has been sponsored by the concerned Employment Exchange or not. This issue is being put to rest by this Court by making these observations only, but by ordering that respondent/Department in future should be careful in this regard, because omission on their part adversely affects the interest of many eligible persons who rely upon the forwarding of their names by the Employment Exchanges. 9. Now, this Court will address the second issue as to whether in terms of the advertisement the petitioner was eligible for the post or not. 10. In terms of Annexure P9, twenty six posts of Language Teachers were advertised to be filled in way of interview/counseling. The date of counseling was stated to be 06.01.2014. In this view of the fact, that as the date of eligibility was not expressly mentioned in the said advertisement, therefore, but obvious, the date of eligibility has to be construed to be the date of counseling, i.e. 06.01.2014. The essential qualifications mentioned in the advertisement read as under: “Essential Qualification: B.A. with Hindi. As an elective subject and 2-year Diploma in Elementary Education (By whatever name known). The essential qualifications mentioned in the advertisement read as under: “Essential Qualification: B.A. with Hindi. As an elective subject and 2-year Diploma in Elementary Education (By whatever name known). B.A. with at least 50% marks with Hindi as an elective subject and 1-year Bachelor in education (B.Ed.). B.A. with at least 45% with Hindi as an elective subject and 1-year Bachelor in Education (B.Ed.) in accordance with the NCTE (Recognition Norms and Procedure). Regulations issued from time to time in this regard. B.A. with at least 50% marks with Hindi as an elective subject and 1-year bachelor in Education (B.Ed.) Special Education. Prabhakar (Honours in Hindi) with 50% marks followed by B.A. Examination (English and on additional subject) with 50% marks from a recognized university and one year Bachelor in Education (B.Ed). M.A. (Hindi) with at least 50% marks from a recognized university and 1-year Bachelor in Education (B.Ed.). Pass in Teacher Eligibility Test (TET language Teacher) duly conducted by the H.P. Board of School Education, Dharamshala. Provided that the incumbents who have already qualified the Teacher Eligibility Test (TET) conducted by the H.P. Subordinate Services Selection Board, Hamirpur shall also be eligible subject to the condition as laid down in ParaIi of the guidelines issued by the National Council for Teacher Education Vide No. 764/ 2010/NCTE/Acad, dated 11.02.2011. Note: (1) Relaxation upto 5% will be allowed in minimum educational and also in minimum qualifying marks for TET to the candidates belonging to SC/ST/OBC/PH categories of Himachal Pradesh. (2) Relaxation to those persons who are of B.Ed. and possess the academic qualification prescribed as above shall also be eligible or appearing in the TET upto 31st march 2014 only. (3) The persons possessing graduation with 50% marks in the relevant subject shall also be eligible for appearing in ET for LT upto 31st March, 2014. (4) Teachers who are appointed under the relaxed qualifications/norms as Note-2 above shall have to acquire the minimum qualifications within a period of 2-years from the year of appointment.” 11. The qualification possessed by the petitioner, on the strength of which she states that she is eligible for applying for the post, is Prabhakar (Honours in Hindi) with 50% marks followed B.A. Examination (English with on additional subject) with 50% marks from a recognized university and one year Becholer in Education (B.Ed). 12. The qualification possessed by the petitioner, on the strength of which she states that she is eligible for applying for the post, is Prabhakar (Honours in Hindi) with 50% marks followed B.A. Examination (English with on additional subject) with 50% marks from a recognized university and one year Becholer in Education (B.Ed). 12. It is not much in dispute that on 06.01.2014, the petitioner had not yet passed the Teacher Eligibility Test. Said test was passed by the petitioner on 14.03.2014. Hence, the moot issue is as to whether the relaxations which are contained in Note-1 to 3 of the advertisement, cover the case of the present petitioner or not. Notes-1 and 2 mentioned in the advertisement are not relevant for the purposes of the adjudication of the present petition. 13. Note-3 of the same provided that the persons possessing graduation with 50% marks in the relevant subject shall also be eligible to appear in Teacher Eligibility Test for Language Teachers upto 31.03.2014. 14. Learned Additional Advocate General has submitted that the relaxation which is provide in Note-3 is applicable to only those categories of candidates who claim eligibility for being considered for appointment against the post of Language Teachers on the strength of graduation being the main subject. He argued that as far as the petitioner is concerned, her main qualification is not graduation, but it is Prabhakar. Accordingly, he argued that Note-3 does not covers the petitioner as in order to fall under Note-3 it was essential for the petitioner to have had staked her claim for the post in issue as graduation. being the main qualification. 15. Learned counsel for the petitioner on the other hand has argued that Note-3 is very clear that persons possessing graduation with 50% marks in relevant subject shall also be eligible for appearing in Teacher Eligibility Test for LT upto 30.03.2014 and as it was an admitted fact that the petitioner was a graduate with 50% marks, therefore, she was eligible for appearing in Teacher Eligibility Test upto 31.03.2014. He further submitted that the case of the petitioner is on a better footing, for the reason that the petitioner had already appeared in the Teacher Eligibility Test examination and only her result was awaited, which admittedly was declared much before 31.03.2014. 16. He further submitted that the case of the petitioner is on a better footing, for the reason that the petitioner had already appeared in the Teacher Eligibility Test examination and only her result was awaited, which admittedly was declared much before 31.03.2014. 16. Having heard the respective contentions of learned counsel on this issue, this Court is of the considered view that there is merit in the submission of learned Additional Advocate General. 17. At the cost of repetition, this Court reiterates that five categories of candidates were eligible in terms of advertisement (Annexure P9) to apply for the post in issue. They were as under: (a) B.A. with Hindi as an elective subject and two years diploma in Elementary Education. (b) B.A. with at least 50% marks with Hindi as an elective subject and one year Bachelor in Education. (c) B.A. with at least 45% marks with Hindi as an elective subject and one year B.Ed. in accordance with NCTE or B.A. with least 50% marks with Hindi as an elective subject and one year Bachelor in Education, B.Ed. special education. (d) Prabhakar (Honours) in Hindi with 50% marks following by B.A. examination English and one additional subject with 50% marks from a recognized university and one year Bachelor in Education. (e) M.A. Hindi with at least 50% marks from a recognized university and one year Bachelor in Education. 18. Now, if one juxtaposes Note-3 vis-a-vis the above five mentioned categories, then one finds that as far as category No. 1 is concerned, a candidate who possesses B.A. Degree with Hindi therein and two years diploma in Elementary Education is also not eligible to get the benefit of Note-3 until and unless such candidate possesses the Degree of graduation with at least 50% marks. This is despite the fact that for this particular category in order to be eligible there is no minimum marks prescribed. Similarly, for category number (c) also the Note-3 comes into operation only if a candidate possesses more than 50% marks in graduation, because otherwise a candidate falling in this category even with 45% marks in B.A. Hindi is eligible to apply for the post, provided he already possesses Teacher Eligibility Test as on the date when the interviews were to be conducted. 19. 19. Therefore, as in the case of the petitioner the principal qualification on the strength of which she is staking her claim to be eligible for the post of Language Teachers is Prabhakar (Honours in Hindi) and not B.A. in Hindi with 50% marks, this Court is of the considered view that Note-3 is not applicable either to the petitioner or to similarly situated candidates. The framers of the advertisement being fully aware of the qualifications which render the candidate eligible for the post in issue consciously took a decision in Note-3 only to use the word “graduation with 50% marks in relevant subject” otherwise nothing prevented the Department from including “Prabhakar with 50% marks” also in Note-3. Reason is obvious. Prabhakar is done by a candidate after matriculation. Therefore, the same cannot be put on same footing as B.A. in Hindi as an elective subject. 20. In the absence of qualification of Prabhakar being mentioned in Note-3, this Court is of the considered view that benefit of relaxation flowing therefrom is not and was not applicable to the petitioner or similarly situated persons. Accordingly, this Court concurs with the submissions made by learned Additional Advocate General that in terms of advertisement dated 24.12.2013 (Annexure P9), the petitioner was not eligible for the post as on 06.01.2014. 21. In view of the above observation, this petition is dismissed. No order as to costs. Pending miscellaneous applications, if also, stand disposed of.