Hemant Kumar Sharma @APPELLANT@Hash State of Rajasthan

These writ petitions under Articles 226 of the Constitution of India have been preferred, claiming, in sum and substance, the following reliefs:-

“1. By an appropriate writ order or direction, the condition no.03 of the order dated 28.02.2018 and any order denying the qualification of the

petitioners for selection and appointment on the post of Teacher Grade-III (Level-II) English in pursuance of the amended advertisement dated

11.09.2017 may kindly be quashed and set aside.

By an appropriate writ order or direction, therespondents may kindly be directed to consider the Additional Qualification of the petitioners i.e. BA

Additional English for the post of Teacher Grade III (Level-II) English in pursuance of the amended advertisement dated 11.09.2017.

By an appropriate writ order or direction, therespondents may kindly be directed to permit the petitioners in the further selection process and

provide the appointment on the post of Teacher Grade III (Level-II) English in pursuance of the amended advertisement dated 11.09.2017 with all

consequential benefits.

Any other appropriate writ, order or direction whichthis Hon’ble Court may deem just and proper in the facts and circumstances of the case

may kindly be passed in favour of the petitioner.â€​

The brief facts in this case, as noticed by this Court, are that the petitioners, while possessing the qualification of Graduation and B.Ed, sought to

participate in the selection process of Teacher Grade III Level II (English) in pursuance of the advertisement notification dated 06.07.2016. The

petitioners while pursuing their Graduation, were also having English Literature, as additional Subject in the Graduation, and the University concerned

issued mark-sheets for the Additional Subject of English. The advertisement in question was to be implemented as per the National Council for

Teachers Education (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulations, 2005 ( hereinafter referred to as

‘the Regulations of 2005’), which lays down the eligibility and other criteria.

In the Regulations of 2005, it was stipulated that any person having less than 50% marks in BA/MA shall not be entitled to get the admission in

B.Ed course. The petitioners admittedly were having more than 50% marks and thus, entitled for admission in STC/B.Ed.

The petitioners filled-in their online application forms for which, the last date was 01.08.2016. Thereafter, the respondents issued an amended

advertisement dated 11.09.2017, in light of the judgment rendered by the Division Bench of this Hon’ble Court at Jaipur Bench in Sher Singh &

Ors. Vs. Dinesh Singh & Ors. (D.B. Special Appeal Writ No.1464/2016), decided on 27.04.2017, whereby the new parameters were laid down.

The petitioners, who are eligible on count of first advertisement, updated their application forms, and thereafter, as per the amended advertisement

dated 11.09.2017, the selection process, so announced, as referred in the pleadings made in para No.10 and 11 of the writ petition, mentioned that on

the basis of marks of RTET/REET, the merit shall be prepared district wise and, thereafter, the final select list was to be issued.

The Hon’ble Division Bench in Sher Singh’s case (supra) directed the respondents to lay down the new criteria giving importance to the

Subject concerned by adding the marks secured by the candidate concerned in the said Subject for the purpose of preparation of the overall merit. The

respondents accordingly changed the educational qualification in accordance with the observations made by the Hon’ble Division Bench, to the

following effect:-

“For the teacher of language, the candidate must have passed Graduation or equivalent examination with the corresponding language as an optional

subject and it was also mentioned that they must have passed the REET/RTET in the subject applying for.â€​

Regarding the Additional qualification for the purpose of appointment on the post in question, the advertisement dated 11.09.2017 prescribes

condition No.6, which reads as follows:

“6- ;fn fdlh vk'kkFkhZ us LukRd ,sls vfrfjDr fo""k; esa mRrh.kZ dh gS rFkk vH;FkhZ ftl fo""k; ds vkosnu dj jgk gS rks 'kSf{kd ;ksX;rk vadksa dk

izfr'kr fudkyrs le; vfrfjDr fo""k; ds dqy izkIrkad Hkh izfr'kr fudkyus ds fy, ekU; gksaxsAâ€​

The petitioners, who were having Graduation in their respective subjects, thereafter further added additional subject in their Graduation which is

English Literature, and as per the abovementioned required qualification, the petitioners became eligible to participate in the selection process for the

post of Teacher Grade III Level II (English) in pursuance of the recruitment year 2016. The earlier criteria was not including the marks obtained in

the requisite subject.

Rule 266 of the Panchayati Raj Rules, 1996 which prescribed for the minimum required qualification reads as follows :-

“Rule 266. Academic Qualification â€" A recruit must possess minimum qualification as under :-

Level â€" (II) Classes VI to VIII Qualification as laid down by National Council for Teacher Education (NCTE) under the provision of Subsection (1)

of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act No.35 of 2009) from time to time.â€​

The petitioners were thus, having the requisite qualification, underwent the selection process and were preparing themselves for the verification of

the documents for which, the separate lists were issued. The cut-off marks were declared on 25.01.2018, and for the category of General Male and

Female, the cut-off marks were 65.88 with the date of birth 26.09.1991; for OBC Male and Female category, 64.25 marks with date of birth

05.10.1978; and for the category of SC Male it was 60.35 marks with date of birth 25.02.1989. The petitioners secured appropriate marks over and

above, the cut-off marks in their respective categories and were thus, declared successful, in accordance with the advertisement. The provisional

select list was issued and published on the official website of the respondents on 27.01.2018 for the purpose of going ahead with verification of

documents, and the petitioners’ names reflected in the select list against the post of Teacher Grade III Level II (English) and the petitioners

were allotted their respective district.

The respondents issued an order dated 20.02.2018, whereby it was directed to conduct the counselling for the selected candidates belonging to the

Non-TSP Area, for the post of Teacher Grade III Level II (English), and the calendar for the counselling was accordingly issued on 20.02.2018.

Thereafter, the respondents issued an order dated 28.02.2018, wherein, there is a mention of one order passed by this Hon’ble Court at

Jaipur Bench in S.B. Civil Writ Petition No.19113/2017. At this juncture, it is pertinent to make particular reference of the order 23.02.2018 passed by

this Hon’ble Court at Jaipur Bench in Manju Kumari & Ors. Vs. State of Rajasthan & Ors. (S.B.Civil Writ Petition No.2902/2018), which reads

as under:-

“Heard learned counsel for the parties.

Main grievance of the petitioners is to inclusion of ineligible candidates on account of misrepresentation, forged documents and/or mark-sheets,

incorrect and false disclosers as to martial status etc; so also to inclusion of candidates, eligible for appointment to the post of Teacher Grade-III

(Level-I), against the posts of Teacher Grade-III (Level-II), which has resulted into exclusion of the petitioners.

 Mr. S. K. Gupta, learned AAG, appearing on behalf of the State- espondents gives out that after service of the notice of the writ application(s), the

select list of eligible candidates (Annexure- 27), has been revised rectifying the illegalities/irregularitiespleaded and pointed out during the course of

hearing. The revised list has also been uploaded on the website of the respondent- Department.

It is further urged that a glance of the break-up of the vacancies in the revised list drawn would reflect that out of 4940 total vacancies advertised, 172

have been carried forwarded for those vacancies are of ST/Sahariya category. Out of remaining 4768 vacancies, 650 candidates remained absent

reducing the total number of vacancies to 4118.

It is further pointed out that on scrutiny of the documents, 253 candidates have been found ineligible and scrutiny of documents of 318 candidates is

still in process.

There are 196 candidates who have acquired the educational qualification with additional subject.

Thus, 3351 candidates have been enlisted as eligible, whose break-up has also been furnished categorywise with reference to reservation, which reads

thus:

Eligible                        Candidates

General                       1761

           MBC                             18

          OBC                           637

          SC                              613

          ST                              322

Total 3351 Heard on stay application.

While the respondents are permitted to proceed further with the recruitment process, strictly in accordance with the contemplation under the Rules

and advertisement with reference to educational qualification and other conditions; it shall be duty of the State- respondents to carry out the

recruitment process ensuring strict scrutiny of the documents as to eligibility of the participating candidates in corroboration and confirmation with the

information that may be available on the website of the Board of Secondary Education, Rajasthan, Ajmer, with reference to RTET/REET.

The respondents are further directed to allow the candidates who participated in the earlier recruitment process and were not required to apply

again in the backdrop of the observations made by a Division Bench of this Court in the case of Sher Singh & Ors. Vs. Dinesh Singh & Ors., decided

on 27th April, 2017; they shall be provided a last and final opportunity to furnish the necessary details required to participate in the recruitment process

involved herein by a specific date.

The State-respondents would also complete the scrutiny of the pending 318 applications which are yet to be scrutinized.

It is further directed that the vacancies which may result consequent upon opportunity not availed by the candidates who were absent and those who

have been accorded another opportunity in the backdrop of order in the case of Sher Singh (supra), shall be filled up strictly according to merit of the

participating candidates.

Mr. S. K. Gupta, learned AAG, would also advise the Officers/Officials entrusted with the recruitment process, to upload the necessary information

as to documents conferring eligibility on the participating candidates, on the website of the respondentDepartment, in a legible form.

Further, list of details of the Officers/Officials, entrusted/associated with the recruitment process, including verification of the documents; be also

furnished to this Court for the purpose of necessary criminal/civil/departmental action, in the event of any illegality/irregularity if committed by them; in

addition to contempt proceedings for such an action would be treated as an obstruction in Court proceedings in dispensation of justice.

Needless to observe that respondents would slide down only to include the eligible candidates according to their merit, to the extent of vacancies

that may occur on account of exclusion of ineligible and/or absentee candidates, but for 196 vacancies.

It is made clear that the recruitment process involved herein, shall shall remain subject to outcome on these writ applications.

A copy of this order shall be made available to Mr. S. K. Gupta, AAG, for onward transmission and necessary compliance, without fail.

It will be open for the State-respondents to take necessary steps to issue general notice in the newspapers with vide circulation in the State of

Rajasthan and also to reflect the information on the website of the Department.

SBCWP No. 18442/2017, which be detagged from the instant batch of writ applications and be listed sperately on 26th February, 2018.

Matter be listed along with connected cases except lead case being 2902/2018, so also with SBCWP No. 19113/2017, 2946/2018, 3775/208, 3865/2018

and 2332/2018, on 15th March, 2018, for further hearing/proceedings.â€​

The aforementioned letter dated 28.02.2018 of the respondents carried a language, which was nowhere reflected in the aforementioned order,

and the language clearly reflected that the persons having additional subject would not be permitted for the counselling on 07.03.2018 and

08.03.2018. The relevant portion of the order dated 28.02.2018 reads as follows :-

“3- ftu vH;fFkZ;ksa }kjk vfrfjDr fo""k; (Additional Subject) dh ;ksX;rk izLrqr dh gS o ik= ik;s x;s gS] vfrfjDr fo""k; ds laca/k esa ekuuh; U;k;ky; esa

;kfpdk la[;k 19113/2017 o vU; fopkjk/khu ftldh vkxkeh is'kh fnukad 15-03-2018 fu;r gSA vr% vfrfjdr fo""k; okys ik= vk'kkfFkZ;ksa dks fnukad 07 o 08

ekpZ] 2018 dks vk;ksftr dkmalfyax esa lfEefyr ugha djuk gSAâ€​

As per the said letter dated 28.02.2018, the counselling was not held on 07.03.2018 and 08.03.2018. However, the counselling was scheduled to be

conducted on 20.03.2018 and 21.03.2018, in light of the order dated 15.03.2018 passed by this Hon’ble Court in Manju Kumari’s case (supra).

Learned counsel for the petitioners has shown to this Court that the debarring of the petitioners in the counselling, as above, was the outcome of

the incorrect interpretation of the order passed by this Hon’ble Court on 23.02.2018 in Manju Kumari (supra), as the Hon’ble Court in the said

order has only subjected the recruitment process to final outcome of the writ petition, and the order only implies that certain candidates were to be

included in the process initiated for the post in question against 196 vacancies, but did not call for any exclusion of the candidates who are already their

in the select list.

Learned counsel for the petitioner has further pointed out that the Hon’ble Court in Manju Kumari (supra) has not passed any order, which

would debar the present petitioners, who were having additional subject of English Literature in their Graduation, from participating in the counselling.

Learned counsel for the respondent has not been able to refute the aforesaid submissions made on behalf of the petitioners, and also is not

in a position to explain the implication of condition No. 6 in the advertisement of 11.09.2017. The said condition No.6 categorically required the

persons having the additional subject to be taken into consideration, while determination of the overall merit of the candidates concerned.

Learned counsel for the respondent has seen the order of Manju Kumari (supra) dated 23.02.2018 as well as the aforementioned condition No.3

of the order dated 28.02.2018 issued by the respondents, and does not find any matching compliance by the respondents of the order of the

Hon’ble Court in the shape of condition No.3 in the order dated 28.02.2018.

However, learned counsel for the respondents stated that due to some kind of misunderstanding, the condition No.3 in the order dated

28.02.2018 has been incorporated, as learned counsel for the respondents could not relate the condition No.3 to the order dated 23.02.2018 passed

in Manju Kumar (supra) by this Hon’ble court.

The limited adjudication to be made by this Court at this stage is that the condition No. 3 in the order dated 28.02.2018 could be justified by the

respondents or not.

After hearing counsel for the parties and perusing the record of the case, this Court finds that there is no reason why the additional subject of

English Literature in the Graduation would not be considered by the respondents for the purpose of recruitment in pursuance of the amended

advertisement dated 11.09.2017 for the post of Teacher Grade III Level II (English). This Court further observes that after the judgment of Sher

Singh (supra), the respondents have incorporated the merit of the subject and in their condition No.6 in the advertisement dated 11.09.2017.

There is already a condition that any graduate in the additional subject, if applies, then the requisite percentage of the marks obtained shall be

utilized for computing the merit of the concerned candidate. This Court finds that respondent have not disputed the petitioners being in select

list and being debarred only on count of condition No.3, as imposed by the order dated 28.02.2018.

This Court goes with the submission of the learned counsel for the respondents, and also on a bare reading of the order passed in Manju

Kumari (supra) dated 23.02.2018, there is no such condition which would prompt the respondents to pass the order dated 28.02.2018, whereby

the petitioners who, as per the criteria laid down for participating in the selection process, were entitled to be given consequential appointment on the

post in question, were debarred from participating in the counselling process. This Court also takes note of the fact that in Manju Kumar (supra), this

Hon’ble Court further passed an order on 15.03.2018 whereby, the Hon’ble Jaipur Bench of this Court has directed to continue with the

recruitment process including counselling and posting for which, list of eligible candidates has already been drawn.

Thus, in light of the aforesaid observations, the present writ petitions are allowed and the impugned condition No.3 of order dated 28.02.2018

(Annexue-11) in the lead writ petition being S.B.Civil Writ Petition No.4038/2018 is quashed and set aside, and accordingly, the respondents are

directed to continue with the selection process in question, while permitting participation of the petitioners, strictly in accordance with law, while

looking into their own respective eligibility and merit. The appointment shall be given to the petitioners, as per their own merit. The consideration of the

petitioners shall, accordingly, be made during the selection process for the post in question.