Shivnath Lahare vs State of C.G. and Others

Satish K. Agnihotri, J.—W.P.(S) Nos. 6400 of 2008 and 764 of 2009 involve the same facts and question of law and, as such, they are being disposed of by this common order.

By these writ petitions, the Petitioners seek to quash the corrigendum dated 17-10-2008 (Annexure - P/2 in W.P. (S) No. 6400 of 2008) whereby the qualification initially prescribed in the advertisement dated 10-10-2008 (Annexure- P/1 in W.P. (S) No. 6400 of 2008) i.e. Post Graduate and BTI/B. Ed./M. Ed. passed certificate/degree or any other equivalent qualification was amended and after the word Post Grade Degree "second division" was inserted.

The facts, in brief, are that, the Directorate of Public Instructions issued a notification for pre-selection examination to promote Assistant Teachers and Teachers to the post of Lecturer by publication in the newspaper dated 10-10-2008. The qualification/eligibility criteria prescribed, therein, was the Assistant Teachers/Teachers who have Post Graduate Degree in the related subject and BTI/B. Ed./M. Ed. certificate/degree or any equivalent qualification. It was further prescribed that the Teachers working on the post of Upper Division Teacher should have minimum 3 years experience and Assistant Teachers should have 12 years experience of working as Assistant Teacher. In the note it was mentioned that the details of course and availability of application forms may be obtained from Rojgar Aur Niyojan issue dated 22-10-2008. Thereafter, on 17-10-2008 the initial advertisement dated 10-10-2008 was amended and the word "second division" in Post Graduate Degree was inserted. The Petitioners could not appear in the selection process, as they had Post Graduate Degree, but not in second division. Thus, these petitions.

Shri Verma, learned senior counsel appearing with Shri Shrivastava, learned Counsel for the Petitioners, would submit that the qualification prescribed in the Rules, 2008 cannot be amended by way of corrigendum. Learned Counsel would further submit that once the advertisement has been issued, thereafter there cannot be a change in the essential/necessary qualification, as prescribed in the advertisement. Thus, the corrigendum amending the essential qualification i.e. from simple Post Graduate Degree to second division in Post Graduate Degree is bad and illegal. The Petitioners are accordingly entitled to consideration for promotion to the post of Lecturer.

On the other hand, Shri Bhatia, learned Dy. Govt. Advocate appearing for the State, would submit that the Rules, 2008 came info force w.e.f. 13-8-2008 in Chhattisgarh Gazette (Annexure - R/l). Schedule - II to the Rules, 2008 provides for appointment to the post of Lecturer by 100% promotion from Upper Division Teachers with certain conditions. The qualification is prescribed in Schedule - III, which provides for second division Post Graduate Degree, B. Ed./BTI and five years teaching experience of Government/ Panchayat School as a UDT for promotion. In S. No. 2 in Schedule - II under the column of Appointing Authority (No. 7) in case of 2 (b) second division was incorporated before the Post Graduate Degree in the related field by notification dated 14-10-2008 (Annexure - R/2). Thus, accordingly corrigendum was issued and after amendment in the rules the contention of the Petitioner that the subsequent amendment in the advertisement cannot be made is without basis and the petition may be dismissed.

I have heard learned Counsel appearing for the parties, perused the pleadings and the documents appended thereto.

The appointment of Teachers (non-gazetted) is governed by the Chhattisgarh School Education Gazetted Service (School Level Service) Recruitment and Promotion Rules, 2008 (for short "the Rules, 2008") framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, by the Governor of Chhattisgarh.

The qualification was prescribed in Schedule III under Rule 8 of the Rules, 2008 for promotion to the post of Lecturer wherein the qualification of having second division Post Graduate Degree in addition to B. Ed./BTI/M. Ed. was provided. Thus, the contention of the Petitioners that the Petitioners though Post Graduates and have required experience as Assistant Teachers, but could not appear in the selection process on account of corrigendum, which prescribed second division in Post Graduate Degree, is meritless and deserves to be rejected

The advertisement was issued on 10-10-2008 in accordance with the Rules, 2008. Schedule - II is under Rule 6 of the Rules, 2008. Rule 6 provides for method of recmitment. There is no prescription about the qualification or eligibility of a candidate in Schedule - II and Rule 6 of the Rules, 2008. Schedule - III is under Rule 8 of the Rules, 2008 wherein condition of eligibility for recruitment was prescribed. Sub-rule (2) of Rule 8 provides as under:

Educational Qualifications.-The candidate must posses the educational qualifications prescribed for the service as shown in schedule III.

In Schedule - III, there was a clear mention about the educational qualification that (i) 2nd Division Post Graduate Degree; (ii) B. Ed./ B. El. Ed./B.T.I. and (iii) 5 years teaching experience of Government/ Panchayat School as; a UDT (post for Promotion) for promotion to the post of Lecturer. In column 7 of Schedule- II of the Rules, 2008 it has been prescribed as under:

100% post is to be filled by promotion from UDT to Lecturer.

In case of Non-availability of the subject teacher for promotion, teachers with a minimum experience of 3 years may be considered for promotion.

In case on non-availability of teachers in spite of relaxing to 3 years of experience.

a. Post Graduate teachers with Second Division in related subject, with teaching experience less than 3 years and

b. Assistant Teachers who are post graduate in the related field with 12 years of experience will have to appear in departmental limit examination and the successful candidate will be promoted to Lecturer post.

The aforesaid prescription seems to be guidelines for the Appointing Authority by way of exemption in criteria, to be granted in the given cases. In Schedule - III, it was clearly stated that a candidate should have second division Post Graduate Degree not mentioning as Upper Division Teacher or as Assistant Teacher. Column 7 of Schedule II provides guidelines to the Appointing Authority making provision for certain relaxations on the qualification prescribed in Schedule- III. Rule 6, which prescribes for method of recruitment and not for qualification. Even if in the advertisement second division was not stated, though it was clearly provided in the Rules under Schedule - III i.e. second division in Post Graduate Degree, it was a clerical mistake, which was corrected by the corrigendum immediately within a period of 7 days before the last date of filing of application form. Thus, it cannot be held that there was a change in the advertisement after applications were filled and process of selection commenced. Thus, it is not necessary to go into the issue asto whether amendment of the Rules was proper or not.

After publication of the advertisement in the case on hand, there was no change in the educational qualification prescribed under the Rules, 2008. It appears that there was a mistake in the advertisement, which was simply corrected by corrigendum.

Reliance of the Petitioners on the decisions of the Supreme Court rendered in Madan Mohan Sharma and Another Vs. State of Rajasthan and Others, and A. Manoharan and Others Vs. Union of India (UOI) and Others, are not relevant to the facts of the case on hand, as in the case on hand, no new qualification has been added or deleted, which was contrary to the Rules in existence.

For the reasons stated hereinabove, the writ petitions fail and the same are hereby dismissed. No order as to costs.