Lakhvir Singh vs State of Punjab

Rajesh Bindal, J.—This order will dispose of two petitions bearing CWP Nos. 28754 of 2013 and 833 of 2014, as common questions of law and facts are involved.

The facts have been noticed from CWP No. 28754 of 2013.

Challenge in the petition has been made to clause 9(4) of the general conditions in the advertisement dated 3.10.2013, wherein for the post of Headmaster, teaching experience is required from Class VI to XII as master/mistress or Lecturer (School Cadre).

Learned counsel for the petitioners submitted that on 3.10.2013, 264 posts of Headmaster were advertised on contract basis. The qualifications and experience were prescribed. However, in general conditions, mentioned at Sr. No. 9 in the advertisement, it was provided that for the post of Headmaster, the teaching experience from Class VI to XII as master/mistress or Lecturer (School Cadre) shall be considered valid. The submission is that such a condition prescribed in the advertisement was contrary to the Punjab State Education Class III (School Cadre) Service (First Amendment) Rules, 1995 (for short, ''the Rules''), in which the only requirement is experience of 8 years. It does not specify the level at which the experience is required. The petitioners in the present case are fully qualified and have teaching experience at college level. In the absence of such a provision in the Rules providing the same in the advertisement as one of the conditions runs contrary thereto and will have to be struck down. In support of the plea, reliance was placed upon the judgments of this Court in CWP No. 385 of 2007 Mahesh Kumar and another v. State of Punjab and others, decided on 9.4.2008; LPA No. 1988 of 2011 State of Punjab and others v. Priya Mahajan and others, decided on 16.1.2013 followed in CWP No. 11229 of 2008 Tarvinder Kaur v. State of Punjab and others, decided on 22.10.2013.

On the other hand, learned counsel for the State submitted that the advertisement in the present case was issued on 3.10.2013. The qualifications and experience for the posts were clearly prescribed. The petitioners in response thereto applied for the posts duly understanding the qualifications and experience required. They participated in the process of selection as had appeared during the course of counselling. It was only when they were informed of their eligibility in terms of the conditions laid down in the advertisement that they challenged the same before this court. In terms of the law laid down by Hon''ble the Supreme Court in Dhananjay Malik and Others Vs. State of Uttaranchal and Others, , a candidate after participating in the process of selection and having failed cannot be permitted to challenge the conditions laid down therein. The judgment of this Court in CWP No. 7390 of 2011 Harjeet Kaur v. State of Punjab and others, decided on 12.1.2012, as upheld in LPA No. 302 of 2012 Harjeet Kaur v. State of Punjab and others, decided on 21.8.2012, was also referred to.

Learned counsel further submitted that the advertisement otherwise is also not contrary to the Rules. The Rules provided for experience. If the contention of learned counsel for the petitioners is considered and literal interpretation is given to the Rules without seeing the objective thereof, the experience on any post would make a candidate eligible for consideration for the post of Headmaster, as there may be persons having the qualifications, but experience on different posts. As the advertisement was issued for recruitment to the post of Headmaster, certainly the experience was required in teaching and once teaching was the experience, immediately the relevant issue was to which class. Headmasters are required to head secondary schools, hence, the teaching experience required was as Master or Lecturer in classes from VI to XII. Providing this condition in the advertisement cannot, in any manner, be termed as contrary to the Rules, rather, it is only supplementing the Rules to achieve the object and recruit the persons with proper qualifications and experience. It would not amount to supplanting the Rules, as the same, in any manner, does not run contrary to the Rules. The authorities are always entitled to fill in gaps in statutory rules.

In response to the submissions made by learned counsel for the State, learned counsel for the petitioners submitted that the petitioners had filed the petition when the process of selection was still on and had not yet been finalised. It is still not finalised. The candidature of the petitioners had not yet been rejected, hence, to claim that the petitioners had come to this court after participating in the process of selection is erroneous.

Heard learned counsel for the parties and perused the paper book.

In terms of the Rules governing the post, following qualifications have been prescribed for the post of Headmaster:

The qualifications as prescribed in the advertisement are as under:-

"4. Educational and Professional Qualifications

(a) Head Masters Degree of recognized University with B.T. or B.Ed. or Senior Basic Training with the following experience:

i) In case of M.A. or M.Sc. with M.Ed.- Six years.

ii) In case of M.A. or M.Sc. with B.T./B.Ed. -Seven years.

iii) In case of B.A. or B.Sc. or B.Com with B.T. or B.Ed.-Eight years.

iv) In case of D.P. Ed. or B.P. Ed.- Eight years from the date Physical Education was introduced compulsory in the schools.

v) In case of B.A. or B.Sc. or B.Com with M.Ed.-Seven years.

xx xx xx

General Conditions

(1) to (3) xx xx xx

(4) For the post of Headmaster

The teaching experience from Class VI to XII as master/mistress or Lecturer (School Cadre) of Government, Government Aided, recognized or affiliated by CBSE/ICSE/PSEB or other School Education Boards having equal standard shall be considered valid. The original experience certificate shall have to be brought at the time of counselling."

The teachers, who teach primary classes, are designated as ETT teachers, whereas the teachers, who teach secondary and higher secondary classes, are Masters and Lecturers. The Headmasters head secondary schools. From the Rules, it is evident that in the cadre of Masters/Mistresses, 75% posts are meant for direct appointment, whereas out of balance 25% posts, 15% posts are to be filled by way of promotion from trained graduate amongst JBT/ETT teachers and 10% from trained graduate from amongst the classical and vernacular teachers. In the case of Lecturers, 25% posts are meant for direct recruitment, whereas 75% posts are to be filled up by way of promotion from Masters/Mistresses. In the case of Headmaster/Headmistress, 25% of the posts are meant for direct recruitment, whereas 75% posts are to be filled up by way of promotion from Masters/Mistresses.

The issues required to be considered in the present case are:

"(1) Whether in the case in hand, the condition laid down in the advertisement for recruitment to the post of Headmaster regarding experience of teaching from Classes VI to XII as Master/Mistress or Lecturer (School Cadre) is required to be struck down, once there is no such provision in the Rules?

(2) Whether the petitioners are estopped from challenging the aforesaid condition after having participated in the process of selection?"

Issue No. 1

As far as issue No. 1 is concerned, the post in the present case is of Headmaster, who is required to head the institution teaching the students from Class VI to X. The service Rules applicable, as have been reproduced above, provide that in addition to educational qualifications, teaching experience is required, which is for a different period with different qualifications. The issue sought to be raised by learned counsel for the petitioners is that once it is not specified in the Rules that teaching experience has to be to teach the classes from VI to XII, the same cannot be read into the Rules and prescribed in the advertisement. However, I find the contention to be totally misconceived. We have to see the spirit of the Rules. The post, which is required to be filled up, the experience has certainly to be in the same line. The post in question is of Headmaster. The service Rules provide 25% posts to be filled up by way of direct recruitment, whereas 75% posts are to be filled up by promotion from amongst Masters/Mistresses. The qualifications and teaching experience required, which is common to direct recruitment and promotion quota posts, has also been provided in the Rules.

The only issue, which is required to be considered is as to whether the condition prescribed in the advertisement that teaching experience for direct recruitment of Headmaster has to be to teach classes from VI to XII, is something which is beyond the Rules and could not be provided for. I do not find any merit in the contention of learned counsel for the petitioners. The qualifications and experience required for direct recruitment and promotion are same. Promotion to the post of Headmaster is from the post of Master. The Rules in question are applicable to the teachers working in secondary schools. Meaning thereby, the Masters, from which the promotion is to be made to Headmasters, are teaching classes from VI onwards. The same analogy has to be applied in the case of direct recruitment of Headmaster. The clause provided in the advertisement to that extent cannot be said to be contrary to the spirit of the Rules, even if the same has not been specifically so mentioned. The same is in line with the spirit of the Rules for the post to be filled up. Any person having experience of teaching either lower classes or higher classes cannot be said to be fit for the job, as it is not merely a question of a candidate possessing higher educational qualifications, the issue is regarding teaching experience. Teaching experience has to be in same line and at the relevant level. The condition of experience so laid down in the advertisement cannot be said to be contrary to the Rules.

A similar issue was considered by Hon''ble the Supreme Court in SLP (Civil) No. 13955 of 2009-State of Uttarakhand and others v. Deep Chandra Tewari and another, decided on 1.11.2013. The issue therein was as to whether for the post of Assistant Teacher (General), a candidate having qualification of Bachelor of Education with specialization in Vocational Education would be eligible, which in a way may be a qualification higher in merit. Hon''ble the Supreme Court opined that where the authorities are able to demonstrate that for want of qualification prescribed in the Rules, a candidate may not be suitable for the post, even a candidate having better qualification may not be treated eligible. The relevant paras thereof are extracted below:

"10. We are conscious of the principle that when particular qualifications are prescribed for a post, the candidature of a candidate possessing higher qualification cannot be rejected on that basis. No doubt, normal rule would be that candidate with higher qualification- is deemed to fulfill the lower qualification prescribed for a post. But that higher qualification has to be in the same channel. Further, this rule will be subject to an exception. Where the prescription of a particular qualification is found to be relevant for discharging the functions of that post and at the same time, the Government is able to demonstrate that for want of said qualification a candidate may not be suitable for the post, even if he possesses "better" qualification but that "better" qualification has no relevance with the functions attached with the post.

In the present case, we find the situation falling in this excepted category. As pointed out above, the Assistant Teacher is meant to impart education to students at primary level. For teaching primary students, subjects studied while doing basic B.Ed. Degree would be relevant and appropriate. For teaching such students, B.Ed, with Specialisation in vocational education would be of no use as those students are not imparted vocational education, which is the thrust in the degree obtained by the Respondents herein. In the instant case, proficiency in the basic subjects taught at primary level is required and thus vocational training would not serve any purpose. Thus, when we find that in the instant case, essential education qualification is B.Ed. Degree which is prescribed in the relevant rules, having statutory flavour, the action of the Government cannot be faulted with, in rejecting the candidature of the Respondents because of the reason that they do not have the qualification, as mentioned in the advertisement viz. B.Ed. Degree simplicitor."

The judgments referred to by learned counsel for the petitioners are distinguishable as the issue dealt therein was regarding experience as such or after acquiring the minimum educational qualifications. The issue involved in the present case is different.

Accordingly, the contention of learned counsel for the petitioners that clause 9(4) of general conditions in the advertisement being contrary to the Rules deserves to be struck down is rejected, being misconceived.

Issue No. 2

As far as the issue regarding estoppel is concerned, in the case in hand, the advertisement was issued on 3.10.2013. Last date fixed for registration of applications on-line was 18.10.2013. The petitioners submitted their applications. Interviews were scheduled on 16.12.2013 and 17.12.2013. It is the admitted case of the petitioners that when they appeared for interview, their claim was not entertained on the ground that they are lacking in relevant teaching experience. The petitioners were informed that they had teaching experience in college and not school. The petitions were filed thereafter.

In this regard, contention of learned counsel for the petitioners was that it was during the process of selection that the petitioners had filed the petitions challenging one of the terms in the advertisement, which is contrary to the Rules, whereas the stand of learned counsel for the State was that the petitioners having participated in the process of selection and failed cannot be permitted to challenge any of the terms thereof. Admittedly, the petitioners were informed when they appeared for counselling that they are ineligible in terms of the advertisement. Otherwise also, the conditions in the advertisement were quite clear. The issue as to whether a candidate having participated in the process of selection can challenge the same has been considered by Hon''ble the Supreme Court in Dhananjay Malik and others'' case (supra), wherein it has been opined as under:

"7. It is not disputed that the writ petitioners-respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P. E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.

In Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , this Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the present case, as already pointed out, the writ petitioners-respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done."

The same view was followed by this Court in Harjeet Kaur''s case (supra).

In Priya Mahajan''s case (supra), the issue sought to be raised by the petitioners therein that even after participating in the process of selection a candidate could challenge the conditions laid down in the advertisement if these are allegedly contrary to the Rules was neither raised nor considered, hence, not applicable in the facts of the present case. In view of the above, the petitioners do not have a locus to challenge the advertisement after having participated in the process of selection.

To sum up, it is held as under:

"(1) The condition of experience of teaching in Classes VI to XII as laid down for recruitment to the post of Headmaster is not contrary to the spirit of the Rules.

(2) The petitioners having failed after participating in the process of selection cannot be permitted to challenge the condition laid down in the advertisement."

Accordingly, the present petitions are dismissed.