Shashi Bala Devi vs Chairman Town Polytechnic Trust Balla &Ors

D. K. Seth, J.—The petitioner was appointed as Instructor Hindi on 2nd January 1984 in Town Polytechnic at Balia in a clear vacancy for a period of two months and her services were extended from time to time when she remained in service for complete one year. Her appointment was further extended and thus she worked for nearly four years. An advertisement was issued on 211987 by which applications were invited from the eligible candidates for appointment on the post of Instructor in Hindi, which is Annexure2 to the petition, as translated at bar the requisite qualification was given to be B.A. with L.T., B.T or B.Ed. It was further provided that the candidates having English Literature as an additional subject in graduation or post graduate in Hindi will be given preference. The age was stipulated to be 21 years and 40 years, Pursuant to the said advertisement the petitioner has claimed that she is Ph.D. in Hindi but she does not possess the complete qualification as required in the said advertisement. A copy of the said application is AnnexureC A6 to the counter affidavit filed by the Respondent No. 1. The petitioner was not allowed interview on the ground that she did not fulfill requisite qualifications laid down in the advertisement. It is this action of the respondent No. 1, that has been challenged by means of present writ petition.

Sri J. P. Srivastava, learned counsel appearing on behalf of the petitioner contends that the petitioner is highly qualified because she is Ph.D. in Hindi. The qualification asked for being less than the qualification possessed by the petitioner, cannot be denied interview on the ground of absence of qualification. He further contends that the petitioner cannot be denied interview on account of overage which was admittedly 44 years because of the reason that she has been working for four years continuously in the said institution. Therefore her entry was at the age of 40 years Over and above the age as fixed between 22 years and 40 years is meant for general candidates. Under the relevant rules for Schedule Caste/Scheduled Tribes and departmental candidates a relaxation of five years in age is allowed. But in the present case nothing has been mentioned about the relaxation of age with regard to Schedule Caste/Schedule Tribes or the departmental candidates. The petitioner further contends that the said qualification has not been completely printed in the advertisement. The respondent No. 1 has avoided to do so only to deprive the petitioner from her legitimate claim. Relying on the advertisement published for Firoz Gandhi Polytechnic, kaeBareili, Annexure3 to the writ petition, the petitioner contends that their age has been fixed for general candidate between 21 years and 40 years. Whereas five years relaxation is allowed to Schedule Caste/Scheduie Tribes and departmental candidates. According to him there cannot be different standard for different institute and all of which are run under the policy framed by the Directorate. According to him the grounds taken in the counteraffidavit that the Directorate had fixed the age at 40 years maximum cannot be accepted because of the reasons that the same is discriminatory and is violative of Article 14 and 16 of the Constitution. Inasmuch as the Directorate cannot discriminate in between two Polytechnics by fixing the age for Schedule Caste/Schedule Tribes and departmental candidates alongwith those of general candidates for one Polytechnic while allowing relaxation for those group of candidates in another. Polytechnic. All the Polytechnics are under effective control of the Directorate, Therefore the Directorate, according to him, cannot fix different standard for the same purpose. On these grounds he claimed that this writ petition should be allowed and the petitioner be allowed to be considered for the purposes of appointment.

Sri Anoop Kumar Snvastava learned counsel appearing on behalf of respondents, on the other hand contends that the petitioner according to her own admission does not possess requisite qualification. Therefore she has no claim and the writ petition be dismissed in limine. Over and above the Directorate having fixed the age between 21 years and 40 years the Committee of Management cannot over look the same nor can ignore the same since the committee was directed by means of letter dated 12121986, AnnexureCA4 to the counter affidavit whereby age has been specifically fixed. Therefore it was not open to the respondent No. 1 to alter the same. Sri Anoop Kumar Srivastava learned counsel for the respondent further contends that despite various situations the petitioner was allowed provisional interview as has been stated in para 32 of the counter affidavit. It is stated in para 22 of the counter affidavit that the petitioner informed the respondent No. 1 that she will obtain relaxation with regard to her age and basic qualification but nothing more has been stated in the said counter affidavit. Sri AK. Srivastava, learned counsel for the respondent further contends that because the petitioner did not possess basic qualification as stipulated nsmely, that she was L.T B.T. or B.Ed and that she has never claimed that she had Hindi in her B.A, Therefore she cannot claim any right unless relaxation is given in her case as she had herself admitted.

Sri J.P. Srivastava, learned counsel for the petitioner points out from para 28 of the rejoinder affidavit that the petitioner had admitted to have been given any provisional interview, therefore, he had never faced interview before the Selection Committee.

Whether the petitioner was allowed provisional interview or not cannot be decided on the basis of statement made in the counteraffidavit and denial in the rejoinder affidavit. No copy of the said provisional interview letter is forthcoming. This is a question of fact which cannot be gone into by this Court.

So far as the question of age is concerned it is apparent from AnnexureCA4 to the counter affidavit that age was mentioned as between 21 years and 40 years but nothing has been mentioned about relaxation in the case of Schedule Caste/Scnedule Tribes or departmental candidates. Therefore fixation of age as appearing in AnnexureCA4 to the counteraffidavit appears to be incomplete, particularly in view of requirement of age specified in the other advertisement for Firoz Gandhi Polytechnic RaeBareli, Annexure3 to the petition, where five years relaxation has been allowed to Schedule Caste/Schedule Tribes and departmental candidates. Both the advertisements were issued in the same year. Admittedly both the Polytechnics are governed by ''Prayodyogic Shiksha Adhiniyam, 1962. Therefore the Directorate cannot fix different standard of age for different polytechnic. By reason of the provisions provided for Schedule Caste/Schedule Tribes or departmental candidates relaxation is available in all the cases of recruitment relating to age for the persons hailing from such group. Similarly, departmental candidates are also granted some relaxation. Admittedly, the petitioner had been serving for almost four years against the clear vacancy which fact has not been disputed. Therefore she may be treated as departmental candidate eligible for relaxation with regard to her age. She is working for four years and her age was 44 years therefore she might be of 40 years at the time of entry though as ad hoc. But it would not be necessary to decide the said question whether she is a departmental candidate and is eligible for relaxation.

Be that as it may even if assuming that she (sic) eligible on account of her age in that event she has to satisfy the qualification required for the said purpose. On own admission in AnnexureCA6 to the counter affidavit that she did not possess complete qualification required therefor.

It appears from the said advertisement that the basic qualification was graduate having Hindi as a subject with L.T, B.T. or B.Ed while the person having additional qualification as English literature as additional subject in B.A. or M.A. in Hindi would be given priority. The question of priority comes only when basic qualification is fulfilled. The priority is given to a candidate when two or more candidates fulfill the qualification and are equally poised. Unless a candidate is equally qualified and poised with some other candidate he cannot claim any preference. Therefore in order to get preference as provided in the said advertisement the petitioner must fulfill the basic qualification that she should be graduate with Hindi as a subject alongwith L.T, B.T, or B. Ed. Admittedly she did not possess any of the qualification of L.T, B.T or B.Ed. No where she has claimed that she had Hindi or Sanskrit at her graduate level qualification.

Therefore the petitioner cannot be said to possess the basic qualification. Nothing has been shown to the court that any relaxation was given to the petitioner with regard to basic qualification or that any such relaxation can be given at all. Therefore, even if it is held in her favour with regard to her age but still then it will not serve any purpose on account of absence of requisite qualification, which is admitted fact as would be apparent from AnnexureCA6 to the counter affidavit. In the rejoinder affidavit she has not denied the said fact nor she has asserted either in the writ petition or in the rejoinder affidavit that she was in possession of basic qualification as provided in the said advertisement.

In that view of the matter this writ petition cannot succeed and accordingly fails and is here by dismissed. There will, however, be no order as to costs.

Let a copy of this order be given to the learned counsel for the petitioner on payment of usual charges with in a week.