Komal Purohit @APPELLANT@Hash State of Rajasthan

These writ petitions have been filed by the petitioners questioning the legality and validity of the report of the committee dated 13.07.2018, the

clarification notice dated 05.08.2018 pursuant to the advertisement dated 31.07.2018 and have sought direction to the respondents to permit the

petitioners to participate in selection process pursuant to the advertisement dated 31.07.218 for the post of Teacher Grade III â€" Level (ii) English

and restrain them from rejecting the candidature of the petitioners.

It is, inter alia, indicated in the writ petitions that an advertisement dated 31.07.2018 was issued for Rajasthan Primary and Upper Primary School

Teacher Direct recruitment-2018 by the respondents for the post of Teacher Grade III â€" Level (ii) subject-English. The qualification required was

indicated as under:-

“A. Graduation and 2-year Diploma in Elementary Education (by whatever name known).

Or

Graduation with at least 50% marks and 1-year Bachelor in Education (B.Ed.) or Graduation with at least 45% marks 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.

or

Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.El.Ed.)

or

Senior Secondary (or its equivalent) with at least 50% marks and 4-year B.A./B.Sc.Ed. or B.A.Ed./B.Sc.Ed.

or

Graduation with at least 50% marks and 1-year Bachelor in Education (B.Ed.) (Special Education). and

B. vaxszth ds v/;kid ds fy;s] vH;FkhZ dks oSdfYid fo’k; ds :i esa vaxszth fo""k; ds lkFk Lukrd ;k lerqY; ijh{kk mRrh.kZ fd;k gqvk gksuk pkfg, vkSj

vkosfnr fo""k; esa jhV@vkjVsV 60 izfr'kr vadks ds lkFk mRrh.kZ fd;k gqvk gksuk pkfg,Aâ€​

A notice dated 05.08.2018 was issued by the Director, Primary Education, Rajasthan inter alia providing for the following:-

“4- ftl in gsrq vkosnu fd;k tk jgk gS] Lukrd esa oSdfYid ¼Optional½ fo""k; ds :i esa gksuk vfuok;Z gS ¼bl gsrq foKfIr ds fcUnq la[;k 9-

1¼B½ dk v/;;u djsaA vkjVsV@jhV esa Hkh lacaf/kr fo""k; oxZ esa mÙkh.kZ gksuk vfuok;Z gSAâ€​

The petitioners, have done their graduation from Kurukshetra University, Kurukshetra; Maharshi Dayanand University, Rohtak and Punjab University,

Chandigarh and few of the petitioners in several writ petitions are post-graduates in English (M.A.-English) as well. The petitioners have studied

English as a compulsory subject during all the 3 years of their graduation. Whereafter, they have cleared the Rajasthan Eligibility Examination for

Teachers (‘REET’) as required and have obtained eligibility for Level-2.

Pursuant to the advertisement dated 31.07.2018, the petitioners appear to have filled their online application forms, however, in view of the clarification

dated 05.08.2018 issued by the respondents, the petitioners feeling threatened that their candidature may be rejected by the respondents/in some cases

after document verification, the same has in fact been rejected, have questioned the validity of the clarification/requirement indicated in the

communication dated 05.08.2018. It is also indicated in the writ petitions that during the recruitment 2016 (amended), which was held for the same

posts, on a direction issued by this Court, a committee was constituted for determining the eligibility for English by a committee, the committee by its

determination as reflected in office order dated 13.07.2018, held that the students having studied English as compulsory subject were not eligible as the

requirement in the Rule is having studied the subject as an optional subject. The petitioners are aggrieved by the said determination as well.

It is, inter alia, contended by learned counsel for the petitioners that the advertisement indicated graduation with English as an optional subject or

equivalent examination, however, the same by the clarification has been confined to having studied English as optional subject, which is ex-facie illegal.

It is submitted that the petitioners have studied the curriculum/syllabus as offered by the respective Universities and in the Universities, English subject

is offered as a compulsory subject, which is required to be studied for all the 3 years and the marks are added in the grand-total.

Submissions have been made that the Universities have clarified that the course offered by them is equivalent to the elected subject. The controversy

in this regard was settled long back by the respondent-State itself by issuing a circular in the year 1977 (Annex.-8), whereby the compulsory English in

B.A. from Punjab University was recognized as equivalent to optional English in B.A. of Rajasthan University, which circular has not been

superseded so far.

Further, with reference to the contents of the syllabus as produced, it was sought to be emphasized that the curriculum is equivalent. Reference has

also been made to the requirement for the position of trained graduate teacher (TGT) for Kandriya Vidyalay Sangathan, wherein also the teachers

having done their graduation with English as compulsory subject, have been held eligible. Further submissions were made for the petitioners having

post graduation in English that as the petitioners have acquired higher qualification in the same faculty, such qualification pre-supposes acquisition of

lower qualification prescribed for the post and, therefore, the said petitioners cannot be deprived of the eligibility for the post of Teacher Grade-III

(Level-2).

Further submissions were made that in fact the issue is no more res integra as this Court in Deepak Bariya v. RPSC & Ors.: 2018 (1) WLN 308

(Raj.) for the post of Senior Teacher Grade-II (English), wherein also the requirement, inter alia, was graduation or equivalent examination with

concerned subject as optional subject, has held the persons with post graduation in English as eligible and the Division Bench in State of Rajasthan &

Anr. v. Deepak Bariya & Ors.: DBSAW No.598/2018, decided on 04.04.2018, has laid down that as the candidate had opted for English as a

compulsory subject in a graduation course, the object of similar Rule was satisfied and, therefore, in fact the issue raised in the present writ petitions is

squarely covered by the judgments in the case of Deepak Bariya (supra).

Reliance was also placed on Jyoti K.K. & Ors. v. Kerala Public Service Commission & Ors.: (2010) 15 SCC 596. It was prayed that the action of the

respondents in issuance the clarification, confining the candidature to those having English as optional subject at graduation level be quashed & set

aside and the respondents be directed to permit the petitioners to participate in the selection process/quash the rejection of their candidature with all

consequential reliefs.

Learned counsel appearing for the respondents vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that

the qualification for the post has been indicated in the Rule 266 of the Rajasthan Panchayati Raj Rules, 1996 (‘the Rules’), wherein the

requirement is specifically indicated that for the teacher of language, the candidate must have passed graduation or equivalent examination with

corresponding language as an optional subject.

It is submitted that the said qualification was indicated after directions given by Division Bench of this Court in Sher Singh & Ors. v. Dinesh Singh &

Ors.: 2018 (3) WLN 318 (Raj.), wherein directions were given for re-advertising the vacancies by preparing a valid criteria of merit for appointment

of teachers for Level-2 i.e. for subject teachers for Classes from VI to VIII afresh keeping in mind the purpose of selection of teachers in a particular

subject.

It is submitted that when after prescribing the criteria by way of amendment in Rule 266 of the Rules in the last recruitment, controversy came before

the Court in Ved Pal & Ors. v. State of Raj. & Ors.: SBCW No.3162/2018, decided on 05.03.2018 of similar nature, a committee was constituted for

deciding the issue and the committee has considered the issue in detail and after considering all the aspects, have come to the conclusion that

incumbents acquiring the qualification in graduation and having studied English/Hindi as compulsory or general foundation are not entitled for

appointment as language teacher. The copy of the committee report has been produced as Annex.-R/1.

It is submitted that once experts have come to a conclusion that there is no equivalence in the students having studied the subject as optional subject

and as compulsory subject, the petitioners are not entitled to any relief. Reliance has also been placed on judgment in Saroj v. State & Anr.: SBCW

No.3345/2001, decided on 03.07.2008 at Jaipur Bench. It was prayed that the writ petitions be dismissed. I have considered the submissions made by

learned counsel for the parties and have perused the material available on record. The facts are not in dispute, wherein all the petitioners, have done

their graduation from outside the State i.e. from Kurukshetra University, Kurukshetra; Maharshi Dayanand University, Rohtak and Punjab University,

Chandigarh, wherein they have studied English as a compulsory subject.

The emphasis of the respondents in not recognizing the candidature of the petitioners is essentially based on the report submitted by the committee

pursuant to the directions given by this Court. A perusal of the report (Annex.-R/1) reveals that a general observation has been made that in

compulsory subject normally the study is non-detailed, whereas in case of optional subject, the study is detailed. Whereafter, the requirement of the

Rules was noticed and relying on the judgment in the case of Saroj (supra), the committee came to the conclusion that those having passed graduation

with subject as compulsory cannot be equated with those having done graduation with subject as optional. However, a perusal of the said report

clearly indicates that the notification/circular issued in the year 1977 by the State produced as Annex.-8 in SBCW No.12560/2018 was not brought to

the notice of the committee and the judgment of the learned Single Judge as well as the Division Bench in case of Deepak Bariya (supra) was also not

brought to the notice of the committee.

In the case of Deepak Bariya (supra), the learned Single Judge after considering identical qualification for the post of Senior Teacher Grade-II

(English) the fact that the candidate had English as compulsory subject at graduation level and that he had done post graduation in English, came to the

following conclusion:-

“Thus, this Court is of the opinion that the petitioner not only had the requisite subject in his Graduation but the requirement that the said subject of

English should have been offered as his optional subject in Graduation cannot be insisted upon in view of the petitioner having cleared his Post

Graduation in the subject of English. The petitioner thus, has higher qualification as prescribed for the post for the purpose of teaching upto Secondary

Level.â€​

It was, inter alia, observed by the Court that the respondents cannot insist for subject English as optional subject in graduation in view of the petitioner

having cleared his post graduation in subject English. When the matter was taken to the Division Bench, the Division Bench in State v. Deepak Bariya

(supra), followed the judgment in the appeal filed by RPSC against the same impugned order. The determination of the Division Bench reads as

under:-

“1. Heard learned counsel for the appellant.

Issue which arises for consideration is whether a candidate who opts for a subject as a compulsory subject in graduation Course would be ineligible

in terms of the qualification prescribed by the appellant which states that the candidate should have cleared a Graduation Degree in the concerned

subject with English as an optional Subject.

The respondents have a graduation degree which shows that he had chosen English as a compulsory paper in the First, Second and Third Year of

the three years Graduation Course.

It is trite that a rule has to be applied meaningfully and practically. The reason behind a rule needs to be ascertained to give meaning to a Rule.

As is known to one and all a person who clears Bachelor of Arts, Graduation Examination can opt for various disciplines such as History,

Geography, Political Science, Social Science, English, Hindi, Psychology etc.

The University has given option to the candidates to opt for compulsory and optional Subject. The reason is a person desirous of acquiring better

knowledge, to say History and Political Science, opts for the two as compulsory Subject and for others as optional subject.

The idea behind the rule in question framed by the appellant is to ensure that the candidate concerned has adequate knowledge in the Subject for

which the candidate offers candidature to be appointed as a Teacher.

Since the respondent have opted for English as a compulsory subject in the graduation Course, the object of the rules is satisfied. Thus, we find no

infirmity in the view taken by the learned Single Judge. The impugned order dated 26.05.2017 is upheld. 9. The writ petition is dismissed in limine.â€

(emphasis supplied)

A perusal of the above Division Bench judgment would reveal that the Court noticed the issue about ineligibility of the candidates, who opt for a

subject as a compulsory subject in graduation course and the requirement is of the subject as an optional subject, came to a categorical conclusion that

the candidate having opted for English as a compulsory subject in the graduation course, the object of the Rules is satisfied. Once the Division Bench

based on its interpretation of the identical Rule/requirement, came to the conclusion that a candidate having opted for English as a compulsory subject

in the graduation course satisfied the object of the Rules, the determination made by the respondents holding the petitioners as ineligible cannot be

sustained.

So far as the judgment in the case of Saroj (supra) is concerned, though the same apparently was not cited before the Division Bench, in view of the

Division Bench judgment in the case of Deepak Bariya (supra), the judgment in the case of Saroj (supra) has lost its efficacy and, therefore, the

determination made by the committee relying on the judgment in the case of Saroj (supra) in ignorance of the Division Bench judgment in the case of

Deepak Bariya (supra), cannot be sustained. Consequently, the action of the respondents in insisting for English as optional subject at the graduation

level and holding the candidates like the petitioners, who have studied English as compulsory subject at the graduation level, cannot be sustained and

the same is liable to be set aside.

So far as the case of the petitioners, who have done their post graduation in English is concerned, their case stands on a still better footing. Besides the

determination made hereinbefore, the status of those petitioners, in view of the series of judgments of Hon’ble Supreme Court in the case of Jyoti

K.K. (supra), Chandrakala Trivedi v. State of Raj. & Ors.: (2012) 3 SCC 129 and Parvaiz Ahmad Parry v. State of Jammu & Kashmir & Ors.:

(2015) 17 SCC 709, wherein it has been laid down that once the candidate had passed higher qualification, he has to be considered as having the

prescribed qualification for the post, the petitioners with higher qualification of M.A. in English can’t be held ineligible.

In view of the above discussion, the writ petitions filed by the petitioners are allowed. The respondents are directed to treat the petitioners, who have

done their graduation with subject English as compulsory subject as eligible for Teacher Grade-III (Level-2) for subject-English and deal with their

candidature pursuant to the advertisement dated 31.07.2018 appropriately and if they stand in merit and are otherwise eligible, grant them appointment

in accordance with their merit. All determinations made by the respondents contrary to the above directions, shall stand quashed and set aside.