Rajasthan Public Service Commission vs Ramesh Prakash

On Restoration Application

We have heard learned counsel appearing for the Rajasthan Public Service Commission and the respondent present-in-person. The Special Appeal was dismissed on 28.8.2014 for want of prosecution, on the ground that on many preceding dates, no one had appeared for the appellant. The Court noticed that as many as on eight dates, no one had appeared, for the appellant and that even if the lawyers were abstaining from work, the Advocate General of the State and the State Counsels were required to appear and defend the interest of the State.

Learned counsel appearing for the Rajasthan Public Service Commission submits that it was only on three days that he had taken adjournment. On the rest of the dates, no one had appeared for either the appellant or respondent and thus, considering the fact that the question involved in the matter is squarely covered by the judgment of the Supreme Court in Rajasthan Public Service Commission Vs. Kaila Kumar Paliwal and Another, , the Court may allow the application and hear the Special Appeal.

We have gone through the ground taken in the application for restoration of the Special Appeal. The counsel appearing for the State or any other Department of the State is not permitted to plead that he will not present when the lawyers were abstaining from work. It was his duty to defend his client and in case he could not appear, a proper application would have been made. However, considering the fact that the judgment of learned single Judge requires reconsideration, in view of the judgment of the Supreme Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal & Anr. (supra), we allow the application for restoration on a cost of Rs. 5,000/- (Rs five thousand only), which will be paid by the Rajasthan Public service Commission to the respondent within one week.

On Special Appeal

The Special Appeal arises out of the judgment of learned Single Judge, by which he has held that under the Rajasthan Educational Service Rules, 1970 for appointment to the post of Headmaster Secondary School, the experience of Laboratory Assistant, can be taken into consideration and accounted for considering the eligibility for the post. In a long and detailed judgment, learned Single Judge has examined, the duties and responsibilities of the Laboratory Assistant and has concluded that the Laboratory Assistant of the same genus and is categorized as a General Teacher. The intention of the legislature is more clear from the fact that the Laboratory Assistant as well as the teachers are having an avenue for promotion to the pot of Senior Teacher, a post prescribed in section "F" of the schedule appended to the Rajasthan Education (Subordinate Services) Rules, 1971. Leaned Single Judge also held that when the placement of the Laboratory Assistants and the Teachers is from a common source channel for promotion to the post of Senior Teacher, the Laboratory Assistant with qualification of B.E.D/BSTC, at par. Learned Single Judge, thereafter, having arrived at the aforesaid conclusion, gave directions to the respondent, namely, Rajasthan Public Service Commission, to consider the candidature of the petitioner for the purpose of appointment on the post of Headmaster, Secondary School and in the event of his selection, appointment be given to him from the date it was accorded to similarly situated persons.

The impugned judgment was delivered on 6th September (57c year). A year later, the same question in respect of appointment of the Headmaster of Secondary School by way of promotion under the same Rules, namely, Rajasthan Educational Service Rules, 1970 and the Rajasthan Education (Subordinate Services) Rules, 1971, came up for consideration in Rajasthan Public Service Commission v. Kaila Kumar Paliwal & Anr. (supra), in which the Supreme Court, considering the same question held, by a detailed judgment, in paragraphs 8, 13, 16, 18 and 27 as follows:--

"8. The only question which arises for consideration in these appeals is as to whether the High Court was correct in opining that the experience gained by the respondents while working as Laboratory Assistants or Teacher Grade-Ill satisfies the requirements laid down in the said advertisement dt. 7.3.2002.

Post of Head Master, it would bear repetition to state, are governed by the 1970 Rules, Five Years'' teaching experience is required for consideration for appointment to the post of Head Master which in turn is referable to teaching in certain capacity on certain categories or posts.

It is, therefore, evident that Public Service Commission which is an expert body upon obtaining opinion from other experts came to the conclusion that for the purpose of appointment to the post of Head Master of a Secondary School, whether by way of direct recruitment or promotion, qualifications requisite for a candidate as in the post of Teacher Grade-Ill are not sufficient.

The Division Bench of the Rajasthan High Court in Manmohar Singh (supra) was considering a case of clubbing of experiences of Grade-Ill teacher with that of Grade-H teacher. It proceeded on the premise that once an academic qualification was prescribed, a person having such qualification need not acquire the teaching experience separately both as Grade-II and Grade-IH teacher.

In the instant case, not only the posts of Head Master is governed by a separate set of rules, as has been noticed hereinbefore, the posts of Teacher Grade-IH provides for a promotional avenue to the posts of Teacher Grade-II which in turn provides for promotion to the other grades of teacher. It is, thus, in our opinion inconceivable that experience gained to a person holding the post of Teacher Grade-Ill governed by the subordinate services rules would be entitled to be considered for promotion to the post of Head Master although experience of teaching in particular classes is relevant therefor."

The Supreme Court in the aforesaid judgment overruled the judgment of the Rajasthan High Court in State of Rajasthan v. Manmohar Singh & Ors., (2003 (1) CDR 839 (Raj.) and also reversed the judgment of the Rajasthan High Court in D.B. Spl. CA (Writ) No. 785 of 2004 dt. 2.9.2005.

The ratio of the judgment of the Supreme Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal & Anr. (supra) is that five years teaching experience is required for consideration for appointment to the post of Headmaster, which in turn is referable to teaching in certain capacity on certain categories of posts. The post of Teacher Gr. III provides for a promotional avenue to the post of Teacher Gr. II, which in turn provides for promotion to the other grades of Teacher. It is thus inconceivable that the experience gained by a person holding the post of Teacher Gr. II governed by the Subordinate Services Rules would be entitled to be considered for promotion to the post of Headmaster, although the experience of teaching in particular classes is relevant therefor. The recruitment to a post must be made strictly in terms of the Rules operating in the field. The essential qualification must be possessed by a person as on the date of issuance of the Notification or as specified in the Rules and only in the absence thereof, the qualification acquired till the last date of filing of the application would be relevant date.

From the aforesaid, we find that the experience of the Laboratory Assistant, which is equivalent to Teacher Gr. III, could not be taken into consideration for the purpose of promotion or by way of direct recruitment as Headmaster of Secondary School. Under the Rules, the appointment of Headmaster of Secondary School can be made by way of promotion as well as direct recruitment. In the present case, we are concerned with the direct recruitment.

The claim of the Laboratory Assistants for promotion on the post of Headmaster was examined by Supreme Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal & Anr., (supra) and thus we are relieved from going into the details and merits of the claim, which was examined by learned Single Judge and in which it was observed that the Laboratory Assistant in effect performs the same duties as Teacher. The Supreme Court has clearly held that there is distinction between the experience gained- as Laboratory Assistant, which is equivalent to Teacher Gr. III and that of a Teacher and the experience of teaching in High/Junior Higher Secondary/Higher Secondary Classes for 5 years or experience of Administrative Charge of Middle Schools for 4 years and of teaching High/Junior Higher Secondary/Higher Secondary Classes for 3 years.

It is submitted by the respondent present in-person that similarly placed persons have been appointed as Headmaster. He submits that 56 persons, who were serving as Teacher Gr. III, were appointed as Headmaster. He has relied on the'' information given to him by the Additional Director (Administration), Secondary Education, Rajasthan, Bikaner dt. 7.1.2008.

The respondent has also relied on the judgment delivered in Mahendra Singh Saharan v. The State of Rajasthan & Ors., S.B. Civil Writ Petition No. 5998/2003 decided on 26.11.2013), in which, after having noticed the judgment of the Supreme Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal & Anr., (supra), learned Single Judge directed the Rajasthan Public Service Commission to inform the petitioner about the fate of his appearance in the interview under the interim orders of the Court and disposed of the writ petition on 26.11.2013 and in pursuance of which, the information was given to Shri Mahendra Singh Saharan that his marks are less than cut off marks and thus, he was not selected.

We are of the view that the judgment of the Supreme Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal & Anr. (supra) on the same Issues and in respect of the same Rules, is binding on all the authorities of the State of Rajasthan and on this Court. We do not have the material to examine as to whether the 56 Gr. III Teachers appointed as Headmaster or any one of them, was serving as Laboratory Assistant and his experience treating equal to Teacher Gr. III was considered for appointment to the post of Headmaster of Secondary School, nor any illegal appointment as Headmaster can be claimed as a parity, to ignore the ratio of the judgment of the Supreme Court. In view of the above, the controversy raised in this matter is found to be decided and covered by the judgment of the Supreme Court in Rajasthan Public Service Commission v. Kaila Kumar Paliwal & Anr. (supra). The Special Appeal is allowed and the judgment of learned single judge is set-aside.