The State of Rajasthan & Anr. vs Anju Rini Saini

HELD: 1.1 Rule 11 of the Rajasthan Educational Subordinate Service Rules, 1971 provides that candidate should possess the qualifications as provided thereunder besides possessing the experience provided. Rule 266-A is the very premise in the judgment of both the Division Bench and the learned Single Judge. The respondent applied pursuant to the advertisement which is issued in the year 2013 for the appointment of Clerk. The respondent did not possess one of the essential qualifications viz., RSCIT. This qualification could not be acquired by her by the stipulated last date for filing of the applications. She could not, what is more, acquire the qualification even within the extended period and her candidature could not be processed further in terms of the advertisement. The later development which took place is that she acquired qualification in the year 2014, well beyond the stipulated time. Undoubtedly, the advertisement was issued in the year 2017. From the advertisement, it could be gathered that it is not a fresh advertisement. Had it been a fresh advertisement calling for applications and stipulating for a new date, which in the absence of any date being prescribed in the advertisement could have been taken as the date by which the application be made pursuant thereto in the light of the decision rendered by this Court, the matter would have been different. But what was contemplated under the advertisement issued in 2017 was to taking the recruitment of 2013 forward with respect to those who had acquired eligibility in terms of the earlier advertisement issued in the year 2013. This meant that those candidates who possessed the qualification on the last date which was stipulated or at least within the extended period, were alone to be considered. The respondent filed an application. She therein does not dispute the fact she did not possess the qualification of RSCIT in the year 2013. Treating it apparently as fresh advertisement, she makes the application. This application is rejected by the Committee noticing that she did not possess the qualification provided. One more aspect which is noticed at this stage is the minutes of the committee which did contemplate that there could be persons who have been given appointment. [Paras 8 and 10][906-F-H; 908-B-G]

1.2 As far as Rule 266-A itself is concerned, what is contemplated was that a widow/divorcee women who had been given appointment in the post of teacher after giving relaxation of the required educational qualification of B.S.T.C/ B.Ed. under the erstwhile proviso to Rule 266 would be regularised from the date on which they acquired the requisite educational qualification. The first essential requirement for the application for Rule 266A is that the widow/divorcee must have been appointed. It is, in this context, it is noticed that even in regard to the advertisement issued later on, it was contemplated that there could be persons who may have been appointed. Even proceeding on the basis that Rule 266-A is otherwise applicable in the cases of posts other than teacher, the fact is that here is the case where the Rule will not apply for the reason that the respondent was never appointed to the post in question to clothe her with a right under Rule 266A. One may further notice that what Rule 266-A further contemplated is appointment being given to teacher after relaxing the required educational qualification of B.S.T.C/ B.Ed. under the erstwhile proviso to Rule 266. The qualification with which this Court is concerned in this case is RSCIT. Rule 266A does not deal with the qualification of RSCIT. The qualifications, in other words, which are the subject matter have been expressly set out in the Rule and which are different from the qualification in question. The post with which the Court is concerned is different from the post indicated in Rule 266-A. Learned counsel for the respondent would, in fact, submit that Rule 266-A is also applicable to the post of LDC. Even if that be so, the indispensable ingredient of the Rule is clearly not fulfilled in the facts of the case by the respondent as the respondent was not appointed. [Para 11][908-G-H; 909-A-E]

1.3 As far as the judgment of the Division Bench dated 11.02.2016 is concerned, the Court therein was actually dealing with a challenge to Rule 16. The Court proceeded to agree with the coordinate Bench which had upheld the validity of Rule 16. All that it did was, it directed the petitioners therein to represent their grievances before the Government for grant of relaxation of one year of experience to the widow/ diovorcee candidate and the Court expected the Government to consider it sympathetically by exercising power under Rule 41 of the Rules of 2015. No reliance could have been placed on it for granting the relief which respondent sought. There is no justification to have extended Rule 266-A to the respondent. In other words, the respondent in view of not possessing an essential qualification (RSCIT) on the last date of application or till the extended date, was not eligible to be considered when notification was issued in the year 2017, which was not a fresh notification but a notification in continuation of the earlier notification. It is not the case where the respondent was appointed in the interregnum. Therefore, it is not a case where the foundation for the impugned judgment can be supported. Resultantly, the appellants have made out a case for interference with the impugned judgment. [Para 12][909-E-H; 910-A-B]

1.4 It is undoubtedly true that Article 136 is a special and extraordinary jurisdiction but that is a far cry from holding when a clear case of respondent not holding the required qualification is made out, the Court can still direct appointment. It will be palpably illegal and unconstitutional. Even with all the sympathy that this Court has undoubtedly for the respondent, however, it cannot result in public employment being made except in terms of the law governing the appointment. It is a clear case where the respondent was not eligible to be considered for appointment. The foundation for directing her to be considered appears to be very fragile and insupportable. It is, in fact, the duty of the constitutional Court in such cases to uphold the action of the authorities which are in strict conformity with the rules of the game in question. The impugned judgment set aside. The writ petition is dismissed. [Paras 13 and 14][910-C-E]