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CASE NO.: Appeal (civil)  2317 of 2007

PETITIONER: Rajasthan Public Service Commission

RESPONDENT: Kaila Kumar Paliwal & Anr

DATE OF JUDGMENT: 02/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (C) No. 5371 of 2006] WITH

CIVIL APPEAL NO.2318/2007 @  SLP (C) NO. 13163 OF 2006

S.B. SINHA, J.

   1.  Leave granted.

   2.  Respondents herein were Laboratory Assistants in the Government  High Schools.   They were appointed on or about 24.1.1992 to the said posts.    They worked in the post of Teacher Grade-III from 13.10.1997.  

    3. The Rajasthan Public Service Commission (for short as  "Commission") issued an advertisement on or about 7.3.2002 for the posts  of Headmaster of Secondary Schools.  The minimum qualification and other  conditions laid down therefor in terms of Rajasthan Educational Service  Rules, 1970 are as under:

S. No Name of  Post Method of  recruitment  with  percentage Minimum  qualification and  experience for direct  recruitment Post or  posts from  which  promotion  in to be  made Minimum  qualifications  and experience  required for  promotion Maximum  age limit  for direct  recruitment

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1 2 3 4 5 6 7 [1a Headmasters , Sec. School  for boys 50% by  direct  recruitment  and 50% by  promotion 1(a) Bachelor’s  degree or diploma in  education (b) Experience of  teaching High/Jr.  HSS/Hr. Sec. Class  for 5 years or  experience of  administrative  charge of Middle  Schools for 4 years  and of teaching  High/Jr. HSS/Hr.  Sec. classes for 3  years

OR

Five years’  experience on the  posts of Teachers  Grade II or above  under any of the  Sections C,D, E and  F of the Schedule  appended to the  Rajasthan  Educational  Subordinate Service  Rules, 1971]

Note \026 1. Degree or  Diploma referred to  above shall be of a  University  established by Law  in India or of  foreign University  recognised as  equivalent hereto by  the Government

Note \026 2.  Teaching  in  RTS/BSTC/Schools  will be deemed as  equivalent to  teaching in High/Jr.  Higher Sec./Hr. Sec.

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Classes. Teacher’s  in grade II  in Section  C, D, E and  F of the  Schedule  appended 1.(a) Bachelors  Degree with a  degree or  diploma in  Education

(b) Experience  of teaching  High/Jr. Hr.  Sec./Higher  Sec./classes for  5 years or  experience of  Administrative  charge of  Middle Schools  for 4 years and  of teaching  High/Jr. Hr.  Sec./Hr. Sec.  classes for 3  years

OR

Qualifications  prescribed in  1(a) of column  4 and should  have been  exempted by  the Board of  Sec. Education,  Rajasthan from  possessing of  qualifications  prescribed in  sub-rule (1) (b)  in regard to the  number of  years 33 years

  4.   Inter alia on the premise that the respondents did not fulfil the  requisite eligibility criteria contained in the said rules, their cases for  recruitment to the posts of Headmaster of the secondary schools were not  considered by the Commission.

  5.   Indisputably, in terms of the said Rules, 50% of the post of Head  Master were to be filled up by direct recruitment; whereas the rest 50% by  promotion.

   6.  Respondents filed a writ petition praying inter alia for issuance of a  writ of or in the nature of mandamus directing the Commission to call them  for interview for consideration of their appointments to the said posts  pursuant to the aforementioned advertisement dated 7.3.2002 having regard

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to their experience as Laboratory Assistants.  A learned Single Judge of the  High Court by a Judgment and Order dated 17.12.2003 relying on or on the  basis of an earlier decision of a coordinate Bench of the said Court in Smt.  Manjulata Vs. RPSC & Anr. SBCWP No. 421/1997 disposed on 24.1.1997,  dismissed the said petition.   Intra court appeals were preferred thereagainst  and by reason of the impugned judgment, the Division Bench following  another Division Bench judgment rendered in State of Rajasthan v  Manmohar Singh & Ors. [ 2003 (1) CDR 839], allowed the same.       

   7.  The State of Rajasthan and Rajasthan Public Service Commission are  thus, before us.

   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-III satisfies the requirements laid down in the said advertisement  dated 7.3.2002.

  9.   The services of the teachers working in the schools in the State of  Rajasthan are governed by the Rajasthan Educational Service Rules, 1970  and Rajasthan Education (Subordinate Services) Rules, 1971.   Subordinate  service consists of the posts as specified in the schedule appended thereto.     A Teacher Grade-III as also a Laboratory Assistant come within the purview  of the term ’subordinate services’.   The minimum qualification for holding  the post of a Teacher Grade-III is Matriculation with certificate of training,  whereas that of Laboratory Assistant is Secondary with Science as an  optional subject.

  10.  The Rajasthan Educational Service Rules, 1970, on the other hand,  deal with appointment inter alia of Head Masters, Assistant Head Masters,  Deputy Inspectors of Schools etc;  the minimum qualifications wherefor are  Bachelors’ degree and Degree or Diploma in Education.

  11.  In the Rajasthan Education (Subordinate Services) Rules, 1971, their  exist posts of Teachers Grade-II.   Post of Teacher Grade-III, Laboratory  Assistants and Teachers in deaf and dumb, blind schools provide for avenues  of promotion to the post of Teachers Grade-II, Sub-Deputy Inspectors and  Enforcement Assistant etc.

 12.   The said posts also provide for avenue, to the posts of Senior Teachers  which was substituted for Teachers Grade-II by notification dated 6.1.1990.    Indisputably, there are certain other posts which are filled up by promotion  inter alia from amongst the category of Teacher Grade-II as for example  Lecturer etc.,  Technical Testing Assistants in Bureau of Educational and  Vocational Guidance etc.

 13.   Posts 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.    

  14.  It is, therefore, difficult to accept that those who had been holding  posts of Teacher Grade-III with the minimum educational qualification of  Matriculation or Secondary Education with a certificate in training would be  entitled to teaching in secondary classes or higher classes.

 15.   In the case of Manjulata (supra), the Rajasthan High Court whereupon  the learned Single Judge placed reliance upon, stated; "A show cause notice had, therefore, been  issued to the respondent-RPSC, who on  appearance, has informed this Court that the  petitioner does not qualify for the post as she  has been working as Lab. Assistant, which is a  lower post than the post of regular teachers and  her experience as a Lab. Assistant does not give

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her any credit towards teaching experience.    Shri Kumawat on behalf of R.P.S.C. also  informed that this question had been  ascertained from a Body of the Experts by the  R.P.S.C. in which the Committee has given its  opinion in the negative, and hence, no Lab.  Assistants are held to be eligible for the post of  Head-Mistress/Head Master."

 16.   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-III  are not sufficient.

 17.   We, having regard to the scope and purport of both 1970 Rules as also  1971 Rules, are of the opinion that the Commission was correct in its view.    

 18.   The Division Bench of the Rajasthan High Court in Manmohar Singh  (supra) was considering a case of clubbing of experiences of Grade-III  teacher with that of Grade-II 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-III teacher.

  19.  The learned judges with respect, were not correct in taking such a  view.             20.  A person in order to be considered for promotion to a higher post  must possess the essential qualification.  If he does not do so, he cannot be  considered therefore.  Even the selection committee in absence of any  express power conferred upon it cannot relax such essential qualification.  See J.C. Yadav and Others v State of Haryana and Others [(1990) 2 SCC  189] and Dr. Bhanu Prasad Panda v Chancellor, Sambalpur University and  Others [(2001) 8 SCC 532]

   21.  Recruitment to a post must be made strictly in terms of the Rules  operating in the field.   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 absence thereof, the qualification acquired till the last date of filing  of the application would be the relevant date.   See Ashok Kumar Sharma  and Others v Chander Shekhar and Another [(1997) 4 SCC 18], U.P. Public  Service Commission U.P., Allahabad and Another v Alpana  [(1994) 2 SCC  723] and Harpal Kaur Chahal (Smt.) v Director, Punjab Instructions, Punjab  and Another [1995 Supp (4) SCC 706].

  22.  Even where their exists a provision for relaxation, for example  relaxation in age, the same must be strictly complied with. {See Kendriya  Vidyalaya Sangathan and Others v Sajal Kumar Roy and Others [(2006) 8  SCC 671] and P.K. Ramachandra Iyer and Others v Union of India and  Others [(1984) 2 SCC 141] }.

  23.  We are not oblivious of the fact that the question as to whether a  person fulfils the criteria of teaching experience or not would depend upon  the rules operating in the field. When the rules are clear and explicit, the  same has to be given effect to. Only in a case where the rules are not clear,  the candidate concerned must place adequate material to show that he fulfils  the requisite qualification.  {See The State of Bihar and Another etc. etc. v   Asis Kumar Mukherjee and Others etc. etc. [A.I.R. 1975 SC 192] }.

  24.  We may notice that in P.K. Ramachandra Iyer (supra) this Court held; "31.  In this context one more submission may be  disposed of.   It was said that the committee consisted of  experts and they were highly qualified persons who

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would be able to evaluate and assess the relative merits  of each of the candidates before it and the Court is least  competent to do so and therefore it would be unwise to  substitute experts’ decision by Court’s decision.   In this  connection reliance was placed on Dr. M.C. Gupta v. Dr.  Arun Kumar Gupta, in which this Court held as under :

       When selection is made by the Commission  aided and advised by experts having technical  experience and high academic qualifications in the  specialist field, probing teaching/research  experience in technical subjects, the Courts should  be slow to interfere with the opinion expressed by  experts unless there are allegations of mala fides  against them.   It would normally be prudent and  safe for the courts to leave the decision of academic  matters to experts who are more familiar with the  problems they face than the courts generally can be.    Undoubtedly, even such a body if it were to  contravene rules and regulations binding upon it in  making the selection and recommending the  selectees for appointment, the Court in exercise of  extraordinary jurisdiction to enforce rule of law,  may interfere in a writ petition under Article 226......

It was urged that once it is conceded that as the power of  selection and appointment vests in the ICAR, the Court  should not usurp that power merely because it would  have chosen a different person as better qualified (see  State of Bihar v. Dr. Asis Kumar Mukherjee).    Undoubtedly, the Court must look with respect upon the  performance of duties by experts in the respective fields  as has been said in Dr. M.C. Gupta case.   However, the  task of ushering a society based on rule of law is  entrusted to this Court and it cannot abdicate its  functions.   Once it is most satisfactorily established that  the selection committee did not have the power to relax  essential qualification pertaining to experience, the entire  process of selection of respondent 6 was in contravention  of the established norms prescribed by advertisement and  power of the selection committee and procedure of fair  and just selection and equality in the matter of public  employment and to rectify resultant injustice and  establish constitutional value this Court must interfere.   Selection of respondent 6 is contrary to rules and orders  and in violation of prescribed norms of qualification.   He  was ineligible for the post when selected.   His selection  and appointment would be required to be quashed and set  aside."

   25. In A. Umarani v Registrar, Cooperative Societies and Others [(2004)  7 SCC 112], this Court held; "Regularisation, in our considered opinion, is not and  cannot be the mode of recruitment by any "State"  within the meaning of Article 12 of the Constitution  of India or any body or authority governed by a  statutory Act or the Rules framed thereunder.   It is  also now well settled that an appointment  made in  violation of the mandatory provisions of the statute  and in particular, ignoring the minimum educational  qualification and other essential qualification would  be wholly illegal.  Such illegality cannot be cured by  taking recourse to regularisation. (See State of H.P. v  Suresh Kumar Verma)"                                         (Emphasis Added)

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  26.  In the instant case, the rules are absolutely clear and explicit.

  27.  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-III 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 by a person  holding the post of Teacher Grade-III 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.

   28. For the reasons aforementioned, the impugned Judgment of the  Division Bench cannot be sustained which is set aside accordingly.   The  Appeals are allowed.   However, in the facts and circumstances of the case,  there shall be no order as to costs.