Mahaveer Singh and Others vs State of Uttaranchal and Others

Prafulla C. Pant, J.—All these four Special Appeals are directed against judgment and order dated 26-06-2004 passed by learned Single Judge of this Court, whereby Writ Petition No. 1300 (S/S) of 2003 with Writ Petition No. 1341 (S/S) of 2003, Writ Petition No. 1379 (S/S) of 2003, Writ Petition No. 1418 (S/S) of 2003, Writ Petition No. 303 (S/S) of 2003, Writ Petition No. 1378 (S/S) of 2003, Writ Petition No. 1333 (S/S) of 2003 and Writ Petition No. 1334 (S/S) of 2003 have been dismissed.

Brief facts of the case are that the Respondent Regional Joint Director, Education, Garhwal Mandal, Pauri, issued an advertisement on June 24, 2002 for selection and recruitment for 89 posts of Assistant Teachers (Physical Education). The said advertisement was issued under the provisions of U.P. Subordinate Education (Trained Graduate Teachers) Services Rules, 1983. According to the Petitioners, in the said advertisement, qualifications required for the post shown, were different from those mentioned in the Rules. The selection process and appointments made in pursuance thereof were challenged by the Petitioners on the ground that Bachelor of Physical Education was not the essential qualification for the post of Assistant Teacher (Physical Education). The impugned selection was challenged also on the ground that the quality points were wrongly awarded to the candidates. It was also alleged that one of the selected candidates, namely Dhananjay Malik was not domicile of Uttaranchal and could not have been appointed against the post.

In the counter affidavit filed before the learned Single Judge, the contesting Respondents contended that the impugned selection and appointments were made in accordance with U.P. Subordinate Education (T.G.T.) Rules, 1983 read with the amended rules of 1992. Quality points awarded to the candidates are also defended. It is also stated in the counter affidavit that there is no illegality in accepting Bachelor''s degree in Physical Education instead of a Bachelor''s degree in any discipline and a Diploma in Physical Education.

Learned Single Judge after hearing the parties, quoting relevant provisions of law, opined that the impugned selection was made in accordance with statutory rules and dismissed all the eight writ petitions with the observation that the Petitioners are at liberty to agitate their individual grievances before the State Government within three weeks of the judgment passed by him. Aggrieved by the judgment these Special Appeals have been preferred under Chapter VIII Rule 5 of the Rules of Court.

We heard learned Counsel for the parties and perused the record.

Before further discussions, it is pertinent to mention here the relevant academic qualification required under the law. Rule 8 of U.P. Subordinate Education (Trained Graduate Teachers) Rules, 1983 requires the following essential qualifications for the post of Assistant Teacher (Physical Education):

Bachelor Degree from a recognized University or a degree recognized by the Government as equivalent thereto and Diploma in Physical Education.

From the aforesaid required qualification it is clear that a candidate is qualified for post of Assistant Teacher (Physical Education) if he holds Bachelor Degree in any discipline from a recognized University but he must further possess Diploma in Physical Education. Copy of the advertisement (Annexure II) to the writ petition discloses that the required qualification for aforesaid post has been shown to be either Bachelor Degree in Physical Education from University or Diploma in Physical Education for recognized Institute. Certainly, the qualification required shown is not what is provided under Rule 8 of the aforesaid Rules. The Rule nowhere provides either Degree or Diploma in Physical Education. What is requires is Bachelor Degree from a recognized University and Diploma in Physical Education. As such, we are in agreement with learned Counsel for the Appellants that learned Single Judge has erred in law in holding that the selection and appointments in question were made in accordance with the rules. However, it is pertinent to mention here that advertisement in question does indicate that selection and appointments are to be made in accordance with the Rules contained in U.P. Subordinate Education (T.G.T.) Rules, 1983.

On behalf of Appellants it is also contended before us that even the quality points for making selection are not correctly awarded to the candidates as per the rules and gross injustice has been done to the Petitioners. In this connection, we feel it necessary to see the Appendix-D to U.P. Subordinate Education (T.G.T.) Rules, 1983, which reads as under:

APPENDIX-D

Quality points for selection by direct recruitment

Name of examination Quality Points

High School The percentage of marks

10

Intermediate The percentage of marks x 2

10

Graduate Degree The percentage of marks x 2

10

OTHERS

Training I Division II Division III Division

Theory 12 6 3

Practical 12 6 3

Post Graduate Degree 15 10 5

Under Rule 15 of U.P. Subordinate Education (T.G.T.) Rules, 1983, selection committee is required to prepare subjective list of selected candidates for appointment in L.T. Grade in order of merit as disclosed by the quality, points. Giving examples of irregularities, in para 15 of the Writ Petition, it is stated that selected candidate, Respondent Kamal Singh, got second class in theory while in his appointment letter (copy Annexure 66) he has been shown to have secured first class and thereby he has been unlawfully awarded more quality points. Similarly, it is alleged by the Petitioners that another selected candidate, Respondent Sanjeev Rawat, has been shown to have passed Intermediate within one year of passing High School and Masters Degree in Physical Education within one year of Graduation, while each of these Courses of Intermediate and Post Graduation are of two years. To corroborate this fact copy of appointment letter of Sri Sanjeev Rawat has been filed as Annexure 68 to the Writ Petition. About yet another selected candidate, Respondent Dhananjay Malik, it is pleaded in the Writ Petition that he belongs to Muzaffarnagar, but he has been shown as resident of Uttaranchal. Not only this, he has been awarded 12 marks in Theory, showing him first class while his appointment letter (copy Annexure 70) shows he secured second division in Theory. No satisfactory reply has been given by the Respondents Nos. 1 to 4 in their counter affidavit filed before the learned Single Judge, with regard to the serious irregularities as above, pointed out by the Petitioners. In our considered opinion learned single judge has erred in law by ignoring the above glaring mistakes.

In Yogesh Kumar and Others Vs. Government of NTC, Delhi and Others, (at page 456),the apex court has held that the recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. It is further held in said case that deviation from the rules allow entry to ineligible person and deprives many others who could have competed for the post. In the said case candidates have B.Ed (i.e. the higher degree) were allowed to apply for the post of primary teachers for which ''Teacher Training Certificate'' (T.T.C.) was prescribed as qualification under the rule.

Similarly, in the case of M.S. Mudhol and Another Vs. S.D. Halegkar and Others, , the supreme court held that for the post of teacher in Higher Secondary School, where under the rule Master''s Degree with degree in teaching was required degree holder of M.Ed. is not qualified for the post. Same view is expressed by the apex court in Dr. Prit Singh v. S.K. Mangal (1993) Suppl. 1 SCC 714 in which it has been held that Degree in Master if Arts us an acadenuc qualification. From all the above mentioned case laws, it is clear that qualifications prescribed under the rules can not be deviated particularly when such qualified candidates are available.

In the present case before us, there is astonishing feature that Regional Joint Director, Education, Kumaon Mandal has advertised the posts as per the rules in the same month and year while Regional Joint Director, Education, Garhwal Mandal has issued the impugned advertisement showing qualification different from that contained in the Petitioners/Appellants have challenged the selection process of Garhwal region only as mentioned above. They have successfully shown that not only material deviation is made from the rules as to qualification required but also gross irregularities are shown in awarding quality points to the candidates. Though the Petitioner could not implead all the persons wrongly appointed as their identities are not known to them, they have impleaded as Respondents some of such persons about whom they could collect the details.

In the above circumstances, the entire selection and appointments of Assistant Teachers (Physical Education) in Garhwal Mandal were made in violation of the rules. Accordingly, we allow all the four appeals and set aside the impugned judgment. We quash the impugned selection and direct Respondents Nos. 1 to 4 to conduct a fresh selection, considering only the candidates who possessed the qualification contained in Rule 8 of the rules and awarding quality points strictly in accordance with the rules. On the basis of such selection, a fresh list of candidates entitled to be appointed against the vacancies advertised shall be prepared any person already appointed is included in the fresh list of selected candidates so prepared, his appointment shall be treated as regular and shall not be cancelled. If any person already appointed is not included in the fresh list of selected candidates, his appointment shall be treated as irregular and shall be cancelled after issuing notice to him and after giving an opportunity of being heard, if he is not a party to any of these writ petitions. The vacancies caused by the cancellation of such irregular appointments shall be filled up by appointing candidates included in the fresh list of selected candidates. The above process of fresh selection and appointment shall be completed within three months from today.