Sonita Gupta and Others vs State of Haryana and Others

Rameshwar Singh Malik, J.—Two connected writ petitions bearing No. CWP No. 14078 of 2012 (Sonia Gupta v. State of Haryana and others) and CWP No. 8794 of 2012 (Poonam Saini v. State of Haryan and others) are proposed to be decided together by this common order, as both the writ petitions raised similar questions of law and facts. However, for the facility of reference, facts are being culled out from CWP No. 14078 of 2012. Respondent-management issued an advertisement in ''The Tribune'' dated 11.7.2011 inviting applications from eligible candidates, with a view to fill up one post of Social Study teacher on regular basis. Qualifications and grade were advertised as per Haryana Government Rules for private aided schools. The qualification prescribed under the Rules were, B.A. with B.T/B.Ed. from a recognised university or B.A. Education (four years course) from a recognised university. In addition to English in B.A. or B.A. Education, a combination of at least two subjects out of the following:- (1) History (2) Political Science (3) Economics (4) Geography (5) Sociology was required.

Pursuant to the above said advertisement having been issued by respondent No. 3, petitioner as well as respondent No. 4, claiming themselves to be fully eligible candidates, applied for the said post of Social Study teacher. Interviews were fixed on 16.8.2011. Interviews were to be conducted by a duly constituted Selection Committee, including nominee of the State. However, nominee of the State intimated the respondent-management that owing to some other official engagements, he would not be in a position to make it on 16.8.2011 to attend the interview as member of the Selection Committee. He requested the management to postpone the interview for the very next date i.e. 17.8.2011.

It is undisputed between the parties that all the candidates came on 17.8.2011 as well and were interviewed by the Selection Committee. As per the merit list prepared by the Selection Committee, petitioner was placed at No. 1 of the merit list, whereas respondent No. 4 was placed at 2nd in the merit list. However, a complaint was made by respondent No. 4 to respondent No. 2 and pursuant to that complaint an enquiry was ordered by respondent No. 2. Finally, respondent No. 2 passed the impugned order dated 26.3.2012 (Annexure P-4), declining approval to the selection made by the Selection Committee, primarily for two reasons. Firstly, respondent No. 2 pointed out that the Deputy Director, who was supposed to attend the interview on 16.8.2011 as State nominee, did not seek the permission of the competent authority for attending the interview on 17.8.2011. Secondly, it was pointed out that petitioner was not eligible, as she has not qualified State Teacher Eligibility Test (''STET'' for short) from the State of Haryana, as required for appointment to the post of Social Study teacher. Hence, this writ petition at the hands of the petitioner.

Notice of motion was issued and pursuant thereto, written statement was filed on behalf of respondents No. 1 and 2, whereas a separate written statement was filed on behalf of respondent No. 4.

Learned Senior counsel for the petitioner submits that as per communication dated 13.7.2011 (Annexure P-5) STET was made applicable in the State of Haryana only from 13.7.2011, whereas in the present case, advertisement has been issued on 11.7.2011. He further submits that as per the Haryana School Education Rules 2003 applicable to all private aided schools, since STET was not an eligibility condition, it was rightly not so advertised by the respondent-management. So far as the communication dated 11.2.2011, issued by National Council for Teachers'' Education, vide Annexure P-7 was concerned, that only pertains to the teachers for Class I to VIII and cannot be presumed that it would be applicable to the post of Social Study teachers as well. He submits that so far as the second objection raised by respondent No. 2 about the participation of State nominee on 17.8.2011 instead of 16.8.2011 for conducting the interview, no prejudice of any kind, whatsoever, has been caused to any of the competing candidates nor anybody has raised any kind of objection in this regard at any point of time. He concluded by submitting that since the impugned order Annexure P-4 dated 26.3.2012 was an order without jurisdiction, the same was liable to be set aside, by allowing the present writ petition.

Per contra, learned counsel for the State submits that qualification of STET was introduced for the post of Social Study teacher for the first time by communication dated 13.7.2011 (Annexure P-5). However, learned counsel for respondent No. 4 submits that in view of communication Annexure P-7, qualification of STET had been made applicable much before and that should have been made applicable in the advertisement dated 11.7.2011 as well. He further submits that simply because STET, as one of the eligibility condition, was not mentioned in the advertisement dated 11.7.2011, it does not mean that ineligible person could be appointed. He submits that since the petitioner was not eligible for the post in question, it was respondent No. 4 in the present writ petition and petitioner in the second writ petition i.e. CWP No. 8794 of 2012, who was only eligible candidate for appointment, being at No. 2 of the merit list. He also submits that the communication Annexure P-7 was not only applicable for appointment of a teacher for Classes I to VIII, but for higher classes as well. He submits that the present writ petition was liable to be dismissed, whereas the other writ petition i.e. CWP No. 8794 of 2012 deserves to be allowed.

Having heard learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that keeping in view the peculiar facts and circumstances of the case, CWP No. 14078 of 2012 (Sonia Gupta v. State of Haryana and others) deserves to be allowed, whereas the second writ petition bearing CWP No. 8794 of 2012 (Poonam Saini v. State of Haryana and others) is liable to be dismissed, for the following more than one reasons.

It has gone undisputed on record that in the advertisement dated 11.7.2011, issued by the respondent-school, required qualification was as per Haryana School Education Rules 2003 applicable to private aided schools. As noticed herein above, qualification for the post of Social Study teacher, as prescribed in the Haryana School Education Rules 2003 (for short ''Rules of 2003''), was as indicated above. Passing of STET was not one of the qualifications as per the advertisement, which was issued with due prior permission of respondent No. 2 himself, granted vide communication dated 7.6.2011 Annexure P-1. Due constitution of the Selection Committee by the competent authority is also not in dispute.

After taking into consideration performance of all the competing candidates and their academic qualifications, petitioner was placed at first position in the merit list by the Selection Committee, whereas respondent No. 4 was placed at No. 2 of the merit list (Annexure P-2). So far as conducting of interview on 17.8.2011 instead of 16.8.2011 is concerned, learned counsel for the parties are ad idem that no prejudice was caused to any of the competing candidates, including the petitioner and respondent No. 4.

It is also an admitted position on record that none of the competing candidates raised any objection in this regard at any point of time either before or after the interview. Thus, one of the grounds taken by respondent No. 2, while passing the impugned order that the State-nominee attended the selection process for conducting the interview on 17.8.2011 instead of 16.8.2011, was of no consequence and the same could not have been taken a ground of not approving the merit list prepared by the Selection Committee.

Coming to the second ground for disapproval of the merit list pointed out by respondent No. 2 alleging the petitioner to be not eligible, being not STET qualified from the State of Haryana, was also a non existent ground and the same was not available to respondent No. 2 for disapproval of the merit prepared by the Selection Committee. It is so said, because neither it was the qualification pointed out in the advertisement nor it was the requirement of 2003 Rules. In fact, respondent No. 2 himself granted approval for the advertisement in question with the qualification as per Rules of 2003 vide his order Annexure P-1. Once it was not the statutory requirement that one should have been STET qualified for applying for the post of Social Study teacher, respondent No. 2 could not have insisted on that issue nor he could have made it a ground for disapproval of the merit list prepared by the duly constituted Selection Committee.

There was another equally strong reason, because of which STET qualification was not required and it was the communication dated 13.7.2011 (Annexure P-5) issued by respondent No. 2 himself. Passing of STET was made applicable by respondent No. 2 himself with effect from 13.7.2011 as per Annexure P-5, whereas the advertisement in the present case had been issued earlier i.e. on 11.7.2011 and the qualification required was as per Rules of 2003. Thus, respondent No. 2 acted without jurisdiction, while passing the impugned order dated 26.3.2012 (Annexure P-4) alleging the petitioner to be ineligible, being not STET qualified from the State of Haryana. In fact, he illegally ignored his own official record contained in the communications dated 13.7.2011 (Annexure P-5) and dated 7.6.2011 (Annexure P-1). Once this ground of not being STET qualified, was not factually available to respondent No. 2, the impugned order Annexure P-4 was not only contrary to the official record, but was also patently illegal and the same cannot be sustained, for this reason also.

Argument raised by learned counsel for respondent No. 4 that communication dated 11.2.2011 (Annexure P-7) should be treated to be applicable much before issuing the advertisement dated 11.7.2011, including for the appointment of a teacher not only in Class I to VIII, but higher classes as well, has been duly considered but the same has not been found worth acceptance. It is so said, because there is no material available on record to support this contention raised by learned counsel for respondent No. 4. In fact, had this argument been available, it would had been certainly raised by learned counsel for the State, who was fully justified not to raise this argument. Having said that, this court reels no hesitation to conclude that respondent No. 2 proceeded on a factually incorrect and wholly misconceived approach, while passing the impugned order and the same cannot be sustained, for this reason as well.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that since the impugned order dated 26.3.2012 (Annexure P-4) has been found to be without jurisdiction and patently illegal, the same is hereby set aside. Petitioner is declared fully eligible for the post of Social Study teacher for appointment in the respondent-school.

Since admittedly petitioner was placed at No. 1 in the merit list (Annexure P-2), Manager, Hindu High School, Ladwa, Distt. Kurukshetra-respondent No. 3, is directed to issue the appointment order in favour of the petitioner without any further loss of time and in any case within a period of three weeks'' from the date of receipt of a certified copy of this order.

Consequently, second writ petition bearing CWP No. 8794 of 2012 (Poonam Saini v. State of Haryana and others) having been found wholly misconceived, bereft of merit and without any substance, the same is hereby dismissed, as no ground for interference has been made out. Resultantly, with the above said observations made and directions issued, CWP No. 8794 of 2012 is hereby dismissed, whereas CWP No. 14078 of 2012 is allowed, however, with no order as to costs.