Tarnee Rathore vs State Of Chhattisgarh

The petitioner has preferred the present writ petition praying for the following reliefs:-

“10.1 It is therefore prayed that this Hon'ble court may kindly be pleased to issue a writ of MANDAMUS quashing the recruitment list of OBC category and directing the respondent No.3 to consider the petitioner for the appointment in the post of Lecturer Panchayat mathematics subject.

10.2 It is therefore prayed that this Hon'ble court may kindly be pleased to call the entire record of selection process for the post of Lecturer Panchayat Mathematics Subject.

10.3 It is therefore prayed that this Hon'ble court may kindly be pleased to issue any writ or direction or order as deem fit in the interest of justice.”

Brief facts of the case are that the respondent No.3 invited applications for the recruitment of Lecturer Panchayat Cadre. The applications were required to be submitted online from 24.07.2017 to 10.08.2017. The Chhattisgarh Lecturer Panchayat Cadre (recruitment and service condition) Rule 2012 was made applicable in recruitment process for the Zila Panchayat Janjgir-Champa (C.G.). The petitioner submitted her online application with required particulars. The examination for the recruitment of Lecturer Panchayat was conducted by the Chhattisgarh Professional Examination Board Raipur. The petitioner passed the examination and obtained 15.657 marks with rank 42 in the Zila Panchayat Status/result issued by Chhattisgarh Professional Examinational Board. The petitioner and other selected candidates were called for verification in 1:5 ratios with claim and objections regarding the documents submitted by the petitioner and other candidates. The petitioner was selected for the appointment of Lecturer Panchayat as per provisional list issued on 29.11.2017 and her name found place at Sr. No.1 in OBC category for the mathematics subject as per Annexure P-7. In final selection list the petitioner has not been selected, whereas the respondent No.4 has been selected who has obtained less mark ie. 15.404 and she has got rank 43. The respondent No.3 has wrongly been considered as per the instruction dated 20.11.2017 issued by the respondent No.2, whereby the B.Ed. Certificate was essential / acceptable even after commencement of the recruitment process as per Annexure P-8. For the recruitment for the post of Lecturer the separate merit list of those who possess the B.Ed. certificate and who do not possess were required to be published separately as per recruitment conditions. The respondent No.3 has also failed to consider the claim and objection made by the petitioner dated 14.12.2017 as per Annexure P-9. The respondent No.3 recruited the respondent No.4 for the post of Lecturer Panchayat arbitrary ignoring the rules, provisional recruitment list dated 29.11.2017, without observation of the recruitment process, merit list and other conditions. Thus, the present writ petition has been filed by the petitioner.

Learned counsel for the petitioner submits that the recruitment list as per Annexure P-1 for the appointment of Lecturer Panchayat has not been made in accordance with the Chhattisgarh Lecturer Panchayat Cadre (Recruitment and conditions) Rules, 2012. The respondent No.3 has failed to consider the claim of the petitioner regarding her eligibility for appointment and objection regarding the selection of respondent No.4 has also not been considered according to the rules. The respondent No.3 has failed to consider the merit list issued by the Chhattisgarh Professional Examination Board. The respondent No.3 has given appointment to the respondent No.4 for the post of Lecturer Panchayat who has obtained lesser mark than the petitioner and her rank was below the petitioner. The respondent No.3 made the recruitment for appointment of Lecturer Panchayat OBC category incorrectly, contrary to the rules and without observing the mandatory obligation of hearing the claim and objection. The respondent No.3 has issued selection list wrongly based on the instruction dated 20.11.2017 which amounts to change in selection process. The petitioner has placed his reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Dolly Chhanda vs Chairman, JEE and others, reported in AIR 2004 SC 5043 and the judgment rendered by this Court in the matter of Ram Ashish Shrivastava and others vs State of Chhattisgarh and another, reported in 2011 Law Suit (Chh) 689.

Learned counsel for the respondent Nos.1 & 2 State submits that the State is a formal party and the main contesting party is the respondent No.3 and no such relief has been claimed against the State, therefore, the writ petition may kindly be dismissed against the respondent State.

Learned counsel for the respondent No.3 opposes the submission made by the petitioner’s counsel and submits that the petitioner has not arrayed all the affected persons as party respondent. There are four candidates in the OBC category and only one candidate Gayatri Patel i.e. respondent no 4 has been arrayed as party. The other three candidates namely Ramkumar Soni, Buddheshwar Prasad Gabhel and Bindu have not been arrayed as party. Hence the instant petition is not maintainable for the reason of non-joinder of necessary parties. The appointment order dated 19.12.2017 can be challenged in appeal before the Commissioner of the division. Petitioner has not explained in paragraph 5 as to why no other alternative and/or efficacious remedy is available to her. There is no reason assigned for not availing alternative remedy of appeal. For this reason also the present petition is not maintainable and is liable to be dismissed. He further submits that in the advertisement, it is very categorically mentioned that educational qualifications should be completed before the date of issuance of advertisement ie. 24.07.2017 (clause 2.7). During the course of verification, it was found that the educational qualification of petitioner regarding B.Ed. was not complete before 24.07.2017, hence she was not found eligible to be appointed and respondent no. 4 whose B.Ed. was of before 24.07.2017 and who was second in merit list after petitioner was appointed in female reserved quota of OBC. Hence, there is no illegality in the order appointing respondent No.4. Therefore, writ petition is liable to be dismissed.

Heard learned counsel for the parties and perused the material available on record.

It is an admitted position in this case that the petitioner appeared in the examination conducted by the respondent No.3 and in merit list, her name appeared at Sr. No.45 as Annexure-P/2 and respondent No.4 was at Sr. No.43 and as per Annexure-P/3, respondent No.4 has been selected for the post of Lecturer (Panchayat).

It is not disputed that the petitioner obtained 15.657 marks and respondent No.4 obtained 15.404 marks. The main objection of the respondent No.3 is that as per para 2.7 of the advertisement dated 24.07.2017 (Annexure-P/4), the petitioner did not possess the marksheet of B.Ed. before the cut off date.

Para 2.7 of the advertisement is as under:-

“2.7 ‘शैक्षणिक अर्हता संबंधी प्रमाण पत्र विज्ञापन जारी होने की तिथि अर्थात् दिनांक 24-07-2017 के पूर्व उत्तीर्ण होना अनिवार्य होगा।”

The respondents have filed mark sheet of the petitioner as Annexure-R-3/3, which shows that the mark sheet was issued on 28.07.2017.

The Hon’ble Apex Court in the matter of Dolly Chhanda (supra) held in para 7 as under:-

“7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature.”

This Court in the matter of Ram Ashish Shrivastav (supra) held in paras 8 & 10 as under:-

“8. It is clear from Clause (6) of “the important information” which was specially published in the advertisement itself stated that no original or photocopy of any document was required to be annexed with OMR application. Accordingly, the application was made by the petitioners. it is indisputable that the Petitioners had passed NET before making the application and the rejection of the candidature on the above-stated ground from any angle is not sustainable.

This court also in Shweta pandey observed that possession of certificate is not a pre-conditon before making the application.”

In the case in hand case also, it is clear that the petitioner passed B.Ed. Examination before cut off date and her mark sheet was issued on 28.07.2017 after cut off date 24.07.2017 i.e. only after 4 days of cut off date. It is clear from condition 2.7 of the advertisement that the petitioner has already passed the B.Ed Exam before cut off date and it is also stated in para 2.8 of the

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advertisement, which is as under:-

“2-8 ‘kS{kf.kd vgZrk laca/kh ewy izek.k i= fu;qfDr ds le; ftyk iapk;r esa lR;kiu gsrq izLrqr djuk vfuok;Z gksxkA”

Thus, it is clear from both these conditions that though the certificates are essential at the time of appointment, but possession of certificates before cut off date is not a pre condition. The respondent authorities did not consider this aspect of the matter and have wrongly denied the appointment to the petitioner on the aforesaid post of Lecturer (Panchayat).

In view of the foregoing discussions and considering the facts and circumstances of the case, the writ petition is allowed and the respondents are directed to appoint the petitioner on the post of Lecturer (Panchayat) as per result (Annexure-P/2). The petitioner is entitled for all consequential benefits except monetary benefits and her seniority be fixed as per merit list.

At this stage, I deem it appropriate to take note of the fact that the respondent No.4 was appointed on the aforesaid post in place of petitioner, who did not find her place due to non submission of B.Ed Degree before the cut off date, and since then the respondent No.4 has been working on the aforesaid post i.e. more than 6 years, as such it would not be proper to remove her from service, as she is not at fault and it is the Department who offered her appointment.

The Hon’ble Apex Court in the matter of Union of India vs Uzair Imran and others, reported in (2023) SCC Online SC 1308, held in paras 15, 16 & 20 as under:-

“15. Notwithstanding this settled legal position, the stage when ineligibility is cited for not offering employment also assumes Importance. It is indeed indisputable that none has any legal right to claim public employment. In terms of Article 16 of the Constitution, a candidate has only a right to be considered therefor. Once a candidate is declared ineligible to participate in the selection process at the threshold and if he still wishes to participate in the process perceiving that his candidature has been arbitrarily rejected, it is for him to work out his remedy in accordance with law However, if the candidature is not rejected at the threshold and the candidate is allowed to participate in the selection process and ultimately his name figures in the merit list - though such candidate has no indefeasible right to claim appointment - he does have a limited right of being accorded fair and non- discriminatory treatment. Given the stages of the process that the candidate has successfully crossed, he may not have a vested right of appointment but a reasonable expectation of being appointed having regard to his position in the merit list could arise. The employer, if it is a State within the meaning of Article 12 of the Constitution, would have no authority to act in an arbitrary manner and throw the candidate out from the range of appointment, as distinguished from the zone of consideration, without rhyme or reason. The employer-State being bound by Article 14 of the Constitution, the law places an obligation, nay duty, on such an employer to provide some justification by way of reason. If plausible justification is provided, the courts would be loath to question the justification but the justification must be such that it is rational and justifiable, and not whimsical or capricious, warranting non-interference.

In the facts of the present case, the stage of declaration of ineligibility seems to us to turn the tide in favour of the third respondent. If the appellant had declared the third respondent as ineligible based on the appellant's appreciation of the educational qualification of the third respondent at the threshold, the situation would have entirely been different. However, it was not at the threshold that the third respondent was considered ineligible As the factual narrative would reveal, the appellant had considered the third respondent eligible, allowed him to take part in the various tests in connection with the selection process, interviewed him, placed his name quite high in the merit list, and thereafter sent him for 15 days' pre-induction training starting from 15th March, 1996. It was after a week that the letter dated 22nd March, 1996 was issued which resulted in ouster of the third respondent from the range of appointment.

The third respondent, in our view, has been discriminated against and arbitrarily deprived of the fruit of selection. At this distance of time, it would not be worthwhile to order a remand particularly when the appellant is responsible for the lis being prolonged in excess of two decades. There has been utter carelessness on its part in not producing the Amendment Rules and the gazette notification before the Tribunal. The third respondent, therefore, cannot suffer for such carelessness and has to be given what is due to him. At the same time, we cannot overlook that by passage of time, the third respondent has crossed the maximum age for entry into public employment. He is 50 years old now and the age of superannuation is reported to be 60 years. In such a situation, we propose to dispose of this appeal by making appropriate directions in exercise of our power to do complete justice between the parties under Article 142 of the Constitution.”

In view of the legal proposition of the Hon’ble Apex Court, it is ordered that the respondent No.4 will not be removed from service and she will be allowed to continue on the aforesaid post of Lecturer (Panchayat), as during the course of argument, the respondents have informed that some posts of Lecturer (Panchayat) are still vacant in the Department, however her seniority shall be fixed as per the merit list.

The writ petition stands allowed.