Jharkhand High Court
Chaitali Sadhu vs The State Of Jharkhand on 11 September, 2023
1 LPA No.424/2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.424 of 2022
With
I.A. No.5877 of 2023
------
Chaitali Sadhu, aged about 37 years, wife of Santosh Kumar Dutta,
Resident of Ranguni, P.O. Shramik Nagar, P.S. Tetulmari, District-
Dhanbad, Jharkhand .... .... Petitioner/Appellant
Versus
1. The State of Jharkhand
2. The Principal Secretary, Department of School Education and
Literacy, Government of Jharkhand, Project Bhawan, Dhurwa,
P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi, Jharkhand.
3. The Director, Directorate of Secondary Education, Dhurwa, P.O.
Dhurwa, P.S. Jagarnathpur, District-Ranchi, Jharkhand.
4. The District Education Officer, Office of District Education Officer,
P.O. and P.S. Kasturba Nagar, District-Dhanbad, Jharkhand.
5. Jharkhand Staff Selection Commission, Engineering Building,
Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi,
Jharkhand. .... .... Respondents/Respondents
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
------
For the Appellant : Mrs. Vipul Divya, Advocate
For the State : Mr. Niraj Kr. Mishra, AC to GP-IV
For the JSSC : Mr. Sanjoy Piprawall, Advocate
------
08/Dated: 11.09.2023
Per Sujit Narayan Prasad, J.
1. The instant intra-court appeal preferred under Clause-10 of
Letters Patent is directed against the order/judgment dated
12.04.2022 passed by the learned Single Judge of this Court in
W.P.(S) No.1621 of 2021, whereby and whereunder, while dismissing
the writ petition, the learned Single Judge has refused to interfere
with the objection raised by the respondent no.4 vide letter no.1588
dated 08.07.2019 regarding the appointment of Graduate Trained
Teachers on the ground that the writ petitioner has not been found to
be eligible to hold the post as per the terms and conditions stipulated
in the advertisement.
2. The brief facts of the case, as per the pleading made in the writ
petition, required to be enumerated, are as hereunder:-
3. It is the case of the writ petitioner that an advertisement being
Advertisement No.21/2016 was floated by the respondent-Jharkhand
Staff Selection Commission for conducting the Combined Graduate
Trained Teacher Competitive Exam-2016 for appointment to the post
of Graduate Trained Teacher. In pursuant to the same, the writ
petitioner having the requisite qualification, applied for the same for
the said post under Bangla Subject and after appearing in the
recruitment process, she was shortlisted for the said post under
Bangla Subject vide result dated 22.04.2019. However, vide letter
dated 08.07.2019, District Education Officer informed the writ
petitioner that objection has been raised with regard to her selection
to the post of Graduate Trained Teacher for the subject Bangla as
the writ petitioner had studied Bangla as a subsidiary subject,
whereas she passed Graduation with Math Honours subject and was
accordingly, asked to submit her response, within one week.
4. Thereafter, the writ petitioner vide letter dated 12.07.2019,
replied along with supporting documents and stated therein that as
per requirement of the Advertisement, a candidate was supposed to
have passed Graduation Examination with minimum 45 % in the
subject applied for and there was no specification as to whether it is
subsidiary or Honours paper.
5. She also stated that one of her subjects in graduation was
Bangla and it was compulsory to score minimum 45-50 % in order to
awarded a graduate degree, but no heed was paid and the case of
the writ petitioner was not recommended for appointment to the said
post, whereas, at least 50 candidates all over the Jharkhand were
appointed against the vacancy for subjects not being their Honours
subject in graduation as per RTI filed by the writ petitioner.
6. It appears from the fact as referred hereinabove based upon
the pleading that the Jharkhand Staff Selection Commission (in short
'JSSC') had issued advertisement being Advertisement No.21 of
2016 for conducting the Combined Graduate Trained Teacher
Competitive Exam-2016 for appointment to the post of Graduate
Trained Teacher.
7. The writ petitioner, having the requisite qualification, applied for
the same under Bangla Subject and she has appeared in the
recruitment process. She was shortlisted for the said post under
Bangla Subject vide result dated 22.04.2019. However, vide letter
dated 08.07.2019, the District Education Officer informed the writ
petitioner that objection has been raised with regard to her selection
to the post of Graduate Trained Teacher for the subject Bangla as
the writ petitioner had studied Bangla as a subsidiary subject,
whereas she passed Graduation with Mathematics Honours subject
and was accordingly, asked to submit her response, within one
week. In pursuant thereto, the writ petitioner vide letter dated
12.07.2019 had replied along with supporting documents stating
inter-alia therein that as per the requirement of the advertisement, a
candidate was supposed to have passed Graduation Examination
with minimum 45 % in the subject applied for and there was no
specification as to whether it is in subsidiary or Honours paper.
8. It has been submitted that one of her subjects in graduation
was Bangla and it was compulsory to score minimum 45-50 % marks
in order to awarded a graduate degree, but no consideration has
been given with respect to such claim, rather, the candidature of the
writ petitioner was rejected.
9. The writ petitioner, being aggrieved with the aforesaid, has filed
writ petition being W.P.(S) No.1621 of 2021.
10. The respondent had appeared and placed reliance upon the
order passed by the Single Judge of this Court in W.P.(S) No.4631 of
2015, exactly on the similar issue, which has been affirmed by the
Division Bench of this Court.
11. The learned Single Judge, has taken into consideration the
argument advanced on behalf of the respondent of putting reliance
upon the order passed by the Single Judge of this Court in W.P.(S)
No.4631 of 2015 which has been affirmed by the Division Bench of
this Court vide order dated 27.06.2019 passed in L.P.A. No.209 of
2017 and thereby, the writ petition has been dismissed, against
which, the instant appeal.
12. Mrs. Vipul Divya, learned counsel appearing for the appellant
has submitted that the learned Single Judge has not appreciated the
fact in right perspective, even though, the advertisement does not
contain a condition that the graduation with Honours degree in
particular subject for which an application has been made for
consideration of appointment.
13. It has been contended that herein the appellant has got Bangla
as one of the subjects at the graduation level, although, the writ
petitioner had passed B.Sc. Honours examination in Math but it does
not make any difference, since, there is no stipulation in the
advertisement regarding the candidature with respect to the effect
that if a subject is subsidiary one that will not be construed to have
the requisite educational qualification, as per the terms and
conditions of the advertisement.
14. The learned counsel has further submitted that the learned
Single Judge while putting reliance upon the order passed in W.P.(S)
No.4631 of 2015, affirmed in letters patent appeal being L.P.A.
No.209 of 2017, the same cannot be said to be applicable so far as
the fact of the given case is concerned.
15. According to her in the said order, the issue involved is
altogether different, since, therein the issue was that a candidate
having MIL as compulsory subject at graduation level, cannot be
appointed as a Teacher in the Languages.
16. But herein, the Bangla was a subsidiary subject in graduation
level and hence, the candidature of the appellant cannot be said to
be improper for consideration of case of the appellant.
17. Learned counsel for the appellant, on the aforesaid premise,
has submitted that the order passed by the learned Single Judge,
suffers from an error and hence, not sustainable in the eye of Law.
18. Per Contra, Mr. Sanjoy Piprawall, learned counsel appearing
for the respondent-JSSC has submitted by referring to the terms and
conditions of the advertisement, wherein, the requirement in
pursuant thereto, is to have the graduation degree in a particular
subject as a main subject and not as a subsidiary.
19. It has been contended that even though, the stipulation is not
there to that effect in the advertisement but when the teachers are
being appointed for a particular subject and if the teachers are
having with the graduation degree as a subsidiary subject, it cannot
be accepted from such candidates to have the expertise in the said
subject in comparison to the candidates who are having the special
subject at the graduation level.
20. Learned counsel for the respondent-JSSC has submitted that
the very purpose of appointment of teacher is to impart study to the
utmost satisfaction of the students and that can only be possible, if
the students, will be selected on the basis of acumen of one or the
other candidates, if available at depth in a particular subject.
21. The submission, in the aforesaid premise, has been made that
if a candidate is having specialized subject at the graduation level,
the maximum can be accepted from such candidates in comparison
to that of the candidates who are having the graduation degree of a
particular subject as subsidiary one.
22. Learned counsel for the JSSC has further submitted that the
issue has already been dealt with in W.P.(S) No.4631 of 2015,
wherein, exactly the similar issue is involved of having the issue of
graduation degree of MIL as one of the subjects.
23. But, when the candidature of such candidate was rejected on
the ground that Hindi means at the graduation level, as per the
requirements of the appointment of teacher to be of such candidates
who are having the graduation degree in Hindi subject as a special
subject, however, the Single Judge has accepted the contention of
the JSSC and accordingly, has refused to interfere with the decision
of recruiting agency in refusing to accept the candidature of such
candidates who are having MIL at graduation level. The aforesaid
order has been affirmed by the Coordinate Division Bench of this
Court in L.P.A. No.209 of 2017.
24. It has been submitted that the learned Single Judge based
upon the factual aspect involved in writ petition being W.P.(S)
No.4631 of 2015, affirmed by the Division Bench of this Court in
L.P.A. No.209 of 2017 if has dismissed the writ petition by refusing to
interfere with the decision taken by the Staff Selection Commission
regarding the cancellation of candidature of the writ
petitioner/appellant, which cannot be said to suffer from an error.
25. We have heard the learned counsel for the parties and perused
the documents available on record as also considered the finding
recorded by the learned Single Judge in the impugned order.
26. The dispute involves herein is that:
"as to whether the candidates having the Bangla as
a subsidiary subject, can be said to have possessed
the eligibility criteria as per the advertisement for
appointment of teacher in Bangla subject."
27. This Court, in order to answer the said issue, deems it fit and
proper to refer the condition stipulated in the advertisement with
respect to the minimum educational qualification.
28. It appears from the condition no.4 of the advertisement that the
advertisement for trained graduate teacher has been notified for the
purpose of appointment of such teachers in different subject
including the Bangla. The minimum educational qualification has
been referred that in the concerned subject (in which the
appointment is to be made), 45% minimum marks is to be required at
the graduation level and B.Ed. from the recognized training institute
or equivalent to B.Ed. as declared to be equivalent by the National
Teachers Education Council, for ready reference, the relevant part of
the condition as contained in the advertisement is being referred as
under:-
पदनाम वेतनमान ूनतम शैि िणक
यो ता
िन ां िकत िवषयों के ातक वेतनबडपी.बी.III- संबंिधत िवषय
िशि त िश क- िह ी, .9300-34800 (िजसम िनयु
अं ेजी. उिडया, बंगला, भूगोल, ेड वेतन . होनी ह) म
अथशा , गृह िव ान, 4600
ूनतम 45
वािण ,नगपु रया,पंचपरगिनया,
ितशत अंको के
कुरमाली, मु ारी, कुडु ख
साथ ातक िड ी
खिड़या, हो कृिष, संथाली,
खोरठा, एवं समाज िव ान
तथा मा ता ा
िश ण सं थान
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अथवा रा ीय
अ ापक िश ा
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बी0एड0 के
समक घोिषत
िड ी ।अनुसूिचत
जाित तथा
अनुसूिचत
जनजाित के
अ िथयों के िलए
संबंिधत िवषय
(िजसम िनयु
होनी है ) म
ूनतम 40
ितशत अंको के
साथ ातक िड ी
तथा मा ता ा
िश ण सं थान
से बी०एड० अथवा
रा ीय अ ापक
िश ा प रषद ारा
बी0एड0 के
समक घोिषत
िड ी ।
29. The writ petitioner has applied for the post of the teacher in
Bangla subject. It is the admitted case of the writ petitioner that the
appellant/writ petitioner is having B.Sc. with Mathematics Honours,
i.e., the Mathematics was the special subject at the graduation level.
However, the Bangla was one of the subsidiary subject at the
graduation level.
30. The writ petitioner based upon the same, since she was having
Bangla as a subsidiary subject at graduation level and considering
herself to have the requisite qualification had made application for
consideration of her candidature.
31. Initially by virtue of the details furnished by the writ petitioner,
her candidature was accepted and she was allowed to participate in
the process of selection and also declared to be successful. But at
the time of scrutiny of her certificate, it was detected that she was
having no Bangla subject as a main subject at graduation level,
rather, the Bangla was one of the subsidiary subject. Accordingly,
one opportunity was given to explain as to why, her candidature be
not cancelled.
32. An objection was filed explaining therein that there is no
condition stipulated to the effect that the Bangla as subsidiary
subject will disentitle the writ petitioner for participating in the
process of selection, but, the said objection was overruled and
accordingly, her candidature was rejected, therefore, the writ petition.
33. The question which is to be answered herein that Bangla as
subsidiary subject or Bangla as the main subject is the requirement
as per the advertisement. The advertisement is for the purpose of
appointing the teachers.
34. The teacher is to impart study only if the candidate is to be
appointed as teacher is having specialized acumen in a particular
subject.
35. The issue of expertise for a teacher who is to impart study has
been taken care of by the Hon'ble Apex Court in the case of State of
Orissa Vrs. Mamata Mohanty, (2011) 3 SCC 436, wherein, at
paragraph-29 and 33, it has been observed as under:-
"29. Education is the systematic instruction, schooling or training
given to the young persons in preparation for the work of life. It also
connotes the whole course of scholastic instruction which a person
has received. Education connotes the process of training and
developing the knowledge, skill, mind and character of students by
formal schooling. The excellence of instruction provided by an
educational institution mainly depends directly on the excellence of
the teaching staff. Therefore, unless they themselves possess a
good academic record/minimum qualifications prescribed as an
eligibility, it is beyond imagination of anyone that standard of
education can be maintained/enhanced.
"18 We have to be very strict in maintaining high academic
standards and maintaining academic discipline and
academic rigour if our country is to progress".
"30. Democracy depends for its very life on a high
standard of general, vocational and professional
education. Dissemination of 'learning with search for new
knowledge with discipline all round must be maintained at
all costs".
(Vide: The Sole Trustee Loka Shikshana Trust v. The
Commissioner of Income Tax, Mysore, AIR 1976 SC 10;
Frank Anthony Public School Employees' Association v.
Union of India & Ors., AIR 1987 SC 311; Osmania
University Teachers' Association v. State of Andhra
Pradesh & Anr., AIR 1987 SC 2034; and Director (Studies),
Dr. Ambedkar Institute of Hotel Management, Nutrition &
Catering Technology, Chandigarh & Ors. v. Vaibhav Singh
Chauhan, (2009) 1 SCC 59).
33. In view of the above, it is evident that education is necessary
to develop the personality of a person as a whole and in totality
as it provides the process of training and acquiring the
knowledge, skills, developing mind and character by formal
schooling. Therefore, it is necessary to maintain a high academic
standard and academic discipline along with academic rigour for
the progress of a nation. Democracy depends for its own survival
on a high standard of vocational and professional education.
Paucity of funds cannot be a ground for the State not to provide
quality education to its future citizens. It is for this reason that in
order to maintain the standard of education the State
Government provides grant-in-aid to private schools to ensure
the smooth running of the institution so that the standard of
teaching may not suffer for want of funds."
36. It is further settled position of law, as has been held by Hon'ble
Apex Court in the case of Bihar Public Service Commission & Ors
vs. Kamini and Ors., reported in (2007) 5 SCC 519, wherein the
issue fell for consideration before the learned Single Judge of the
Hon'ble Patna High Court pertaining to consideration of candidate,
who have participated in the process of selection in an
advertisement, which contains the minimum qualification of B.Sc.
Zoology with two years' diploma in Fisheries Science from Central
Institute of Fisheries Education, Mumbai or a graduate degree in
Fisheries Science (BFSC) from a recognized university of M.Sc.
(Inland Fisheries Administration and Management) with Zoology from
the Central Institute of Fisheries Education, Mumbai and when the
candidature of the candidate in the said case not been considered
due to lack of educational eligibility criteria, the matter went before
the Hon'ble Patna High Court wherein the learned Single Judge has
dismissed the writ petition but the same has been reversed by the
Division Bench in Letters Patent Appeal, against which, the Bihar
Public Service Commission has approached to the Hon'ble Apex
Court wherein their Lordship at paragraph 5 has been pleased to
hold that if the eligibility educational criteria was BSc, Zoology, such
person must have passed B.Sc. Zoology as principal/main subject
and not as a subsidiary or optional subject.
37. It has further been held that the Court of law has no
jurisdiction to interfere and encroach upon the views expressed by
the expert committee. The expert committee in the aforesaid case
has opined that the student would be called graduate in the subject if
he/she has Honours in that subject at graduate level, meaning
thereby it must be the principal subject. The aforesaid opinion of the
expert committee was accepted by the Hon'ble Apex Court. For
ready reference, paragraph nos. 5, 7 and 8 of the aforesaid judgment
are quoted hereunder as:
"5. The learned counsel for the appellant submitted
that the Division Bench of the High Court was wholly
wrong in allowing the appeal and in setting aside the
order passed by the learned Single Judge and in ignoring
the report submitted by the Expert Committee. He also
submitted that even otherwise, the action of the
Commission could not be said to be illegal or contrary to
law. When the requisite educational qualification was
BSc, Zoology, such person must have passed BSc with
Zoology as principal/main subject and not as a subsidiary
or optional subject. Admittedly, the first respondent had
passed BSc with Chemistry as principal subject and
Zoology as optional/subsidiary subject. She, therefore,
could not be held qualified and the action of the
Commission was in consonance with law and was legal
and proper. It was also submitted that after the
representation was received from the first respondent, the
Commission constituted an Expert Committee for
considering the grievance of the first respondent and
even the Expert Committee opined that in its opinion i.e.
in the opinion of the Committee, a student would be
called graduate in the subject if he/she has Honours in
that subject at the graduate level. If the subject is
subsidiary (or side subject), he/she could not be called a
graduate in that subject. It was because an Honours
student at the graduate level studies eight papers in that
subject whereas he/she studies only two papers in
subsidiary subject. In accordance with the report, the
action was taken which was proper. The counsel also
submitted that the learned Single Judge was wholly right
in upholding the contention of the Commission that the
first respondent could not be said to be BSc Honours in
Zoology and dismissed the petition. The Division Bench
was in error in setting aside the said order which
deserves interference.
7. Having heard learned counsel for the parties, in
our opinion, the appeal deserves to be allowed. The
advertisement is explicitly clear and states that the
candidate must be Honours in BSc, Zoology. It is not in
dispute that the first respondent has obtained BSc degree
with first class but her main subject was Chemistry of
eight papers of 800 marks and in addition to Chemistry,
she had two papers of Zoology and Botany. In pursuance
of the advertisement, which was clear, the first
respondent was not eligible for the appointment to the
post of District Fisheries Officer. In spite of that, she
applied for the said post. True it is that initially a letter
was issued by the Commission on 17-10-2002 calling
upon her to appear before the Commission for interview.
It was, however, a mistake on the part of the
Commission. As soon as the appellant Commission
realised that the first respondent was not having requisite
qualifications for the post and was not eligible, her
candidature was rejected. When a representation was
made by the first respondent that cancellation of her
candidature was not proper and that the decision should
be reconsidered by the Commission, the Commission
thought it fit to look into her grievance and an Expert
Committee was appointed. The Expert Committee
considered the question and submitted a report on 24-11-
2002, inter alia, stating that in its "considered opinion", a
student would be called a graduate in the subject if
he/she has Honours in the subject at the graduate level,
meaning thereby that it must be the principal subject. In
our opinion, such a decision could not be said to be
contrary to law.
8. Again, it is well settled that in the field of
education, a court of law cannot act as an expert.
Normally, therefore, whether or not a student/candidate
possesses requisite qualifications, should better be left to
educational institutions (vide University of Mysore v. C.D.
Govinda Rao1). This is particularly so when it is
supported by an Expert Committee. The Expert
Committee considered the matter and observed that a
person can be said to be Honours in the subject if at the
graduate level, he/she studies such subject as the
principal subject having eight papers and not a
subsidiary, optional or side subject having two papers.
Such a decision, in our judgment, cannot be termed
arbitrary or otherwise objectionable. The learned Single
Judge, in our opinion, was, therefore, right in dismissing
the petition relying upon the report of the Committee and
in upholding the objection of the Commission. The
Division Bench was in error in ignoring the well-
considered report of the Expert Committee and in setting
aside the decision of the learned Single Judge. The
Division Bench, while allowing the appeal, observed that
the "litmus test" was the admission granted to the first
respondent by the Central Institute of Fisheries
Education, Mumbai. According to the Division Bench, if
the first respondent did not possess Bachelor of Science
degree with Zoology, the Institute would not have
admitted her to the said course. The Division Bench
observed that not only the first respondent was admitted
to the said course, she had passed it with "flying colours".
In our opinion, the Division Bench was not right in
applying "litmus test" of admission of the first respondent
by the Central Institute of Fisheries Education, Mumbai.
The controversy before the Court was whether the first
respondent was eligible for the post of District Fisheries
Officer, Class II. The correct test, therefore, was not
admission by the Mumbai Institution. If the requirement
was of Honours in BSc with Zoology and if the first
respondent had cleared BSc Honours with Chemistry, it
could not be said that she was eligible to the post having
requisite educational qualifications. By not treating her
eligible, therefore, the Commission had not committed
any illegality."
38. The requirement as per the condition stipulated in the
advertisement so far as the case of the writ petitioner is concerned
that the graduation in the concerned subject is required.
39. The graduation in the concerned subject means by taking into
consideration the very purport of appointment of teacher so as to
impart effective study to the students will be said to be specialized
degree in a particular subject and not as a subsidiary one.
40. The similar issue fell for consideration with respect to the same
advertisement in the case of Ragini Sinha Vrs. State of Jharkhand
& Ors., passed in W.P.(S) No.4631 of 2015.
41. It is evident from the aforesaid order dated 18.03.2017 passed
in W.P.(S) No.4631 of 2015, wherein, it has been observed at
paragraph-19 that appointment on the post of Language Teacher in
the Upper Primary Schools requires a subject-specification
qualification similar to the qualifications for appointment as
Mathematics/Science teacher or Social Science teacher.
42. Further, the observation was made therein about subject-
specific qualification and the implied meaning of the same, is the
qualification in the "subject". Language teacher is a distinct class of
teachers, different from a Science or a Social Science teacher and
for appointment on the post of Language teacher a qualification in
Graduation with MIL or any other language as a compulsory subject
is not a sufficient qualification.
43. The learned Single has come to the conclusion that when the
requirement is for the purpose of appointment of teacher in the Hindi
Language, Hindi is to be a main subject at graduation level.
Accordingly, the candidature of such candidates who are having the
MIL in the graduation level which was rejected, has been refused to
be interfered with.
44. The aforesaid order was carried to the letters patent appeal
being L.P.A. No.209 of 2017 and the Coordinate Division Bench of
this Court, while dismissing the said appeal vide order dated
27.06.2019 has observed as under paragraph-16 thereof that if a
teacher, is appointed in the subject in Languages, only having MIL as
a compulsory paper, the children would be deprived of quality
education in the concerned Language, inasmuch as, MIL as a
compulsory subject, is included in the course of Graduation in all
subjects only to ensure that the students are going to have a
minimum level of working language and proficiency in that language,
but once a teacher is to be appointed for a particular subject, as for
example, if he is to be appointed as a Science teacher, he must have
the Graduation in Science, if he is being appointed as a teacher in
Social Science, he must be a Graduate in Social Science, and if he
is appointed as a Language teacher, he must be a Graduate
exclusively in that Language, for ready reference, paragraph-16 of
the said judgment passed in L.P.A. No.209 of 2017 and analogous
cases, reads as under:-
"16. Having heard learned counsels for the parties and
upon going through the record, we are in complete
agreement with the findings given by the Hon'ble Single
Judge, that a candidate, having MIL as a compulsory
subject in Graduation level, cannot be appointed as a
teacher in Languages. It is not denied that even the
students doing Graduation in a particular Language, i.e., in
Hindi, or in English, is also required to take MIL as one
compulsory subject in the Graduation level, apart from
several papers in the concerned language. Curriculum for
Hindi, or English in Graduation level, shall have a different
course contents compared to MIL as a compulsory paper.
Thus, if a teacher, is appointed in the subject of
Languages, only having MIL as a compulsory paper, the
children would be deprived of quality education in the
concerned Language, inasmuch as, MIL as a compulsory
subject, is included in the course of Graduation in all
subjects, only to ensure that the students are going to have
a minimum level of working language and proficiency in
that language, but once a teacher is to be appointed for a
particular subject, as for example, if he is to be appointed
as a Science teacher, he must have the Graduation in
Science, if he is being appointed as a teacher in Social
Science, he must be a Graduate in Social Science, and if
he is appointed as a Language teacher, he must be a
Graduate exclusively in that Language. Any deviation in
this practice shall result in deprivation of the children of
proper education in Language, and shall frustrate the very
aim and object of RCFCE Act, enacted by the Parliament
of India."
45. It has further been submitted that the similar issue which has
been decided in L.P.A. No.209 of 2017, has been travelled to the
Hon'ble Apex Court by filing S.L.P. being Special Leave Petition
(Civil) Diary No.(s) 37906 of 2019 but the said S.L.P. was dismissed
on 10.02.2020 as the Hon'ble Apex Court found no ground to
interfere with the same.
46. It has been submitted at Bar that exactly on the similar issue
the order has been passed by the another Coordinate Division
Bench of this Court in L.P.A. No.403 of 2016 along with analogous
cases has been travelled to the Hon'ble Apex Court by filing S.L.P.
being Special Leave Petition (Civil) Diary No(s).549 of 2023 but the
said S.L.P. was dismissed on the ground of delay as well as on merit.
47. This Court, after taking into consideration the condition
stipulated in the advertisement and the similar issue has already
been decided in L.P.A. No.403 of 2016 along with analogous cases
including L.P.A. No.209 of 2017 which have been affirmed by the
Hon'ble Apex Court, therefore, is of the view that there is no reason
to interfere with the impugned order.
48. The similar issue fell for consideration with respect to the
History to be taken as a whole or a part of the History subject to be
treated to be educational eligibility criteria. The same has been
decided by the Coordinate Division Bench of this Court in L.P.A.
No.693 of 2019, wherein, by taking into consideration the condition
stipulated in the advertisement, it has been decided that the History
means 'History as a whole and not a part of the History'. The
relevant paragraphs of the said judgment reads as under:-
"20. Examining body while rejecting the candidature of
the candidates has constituted an expert committee in
order to clarify the issue, comprising of Chairman,
Jharkhand Academic Council; Regional Director, KDS;
R.D.D.E, South Chhotanagpur; Secretary, Jharkhand
Academic Council; Deputy Director, Secondary Education;
Additional Secretary, Secondary Education; DEO, Ranchi
and Senior Advocate of the High Court, who after making
various correspondences with the various Universities in
the State of Jharkhand came to the conclusion that Ancient
History, Medieval and Modern History are the branches of
the subject History and candidates having degree in any of
the branches only, not the subject History in its entirety,
cannot be made eligible for selection in terms of the
advertisement.
25. In view of such proposition of law, as has been
held by Hon'ble Apex Court in the case of Bihar Public
Service Commission & Ors Vs. Kamini Devi (supra),
wherein the Hon'ble Apex Court by accepting the opinion
of the expert committee has opined that candidate would
be called graduate in the subject if he/she has Honours in
the subject at graduate level, therefore, the finding of the
learned Single Judge by holding the eligibility of such
candidate to be considered for selection in the History
subject would be considered of such candidate, who are
having graduation in History subject in its entirety."
49. It needs to be referred herein that the aforesaid judgment
passed by the Coordinate Division Bench of this Court has been
affirmed by the Hon'ble Apex Court by dismissing the appeal being
Civil Appeal No.2217/2218 of 2022, [(2022) Insc 426]. The relevant
paragraphs of the said judgment are being referred as under:-
"6.1. We have gone through the degrees/ certificates in the
case of the respective writ petitioners. It appears that the
respective writ petitioners have obtained the Postgraduate
degrees/ Bachelor degrees, as the case may be, in one of
the branches of History, namely, Indian Ancient History,
Indian Ancient History and Culture, Medieval / Modern
History, Indian Ancient History, Culture and Archaeology.
In our view, obtaining the degree in one of the branches of
History cannot be said to be obtaining the degree in
History as a whole. As a History teacher, he/she has to
teach in all the subjects of History, namely, Ancient
History, Indian Ancient History and Culture, Medieval /
Modern History, Indian Ancient History, Culture and
Archaeology etc. Therefore, having studied and obtaining
the degree in only one branch of History cannot be said to
be having a degree in History subject as a whole, which
was the requirement. All the relevant aspects have been
considered and gone into in detail by the learned Single
Judge meticulously.
6.7. As observed hereinabove in the online applications, it
was stated by the respective petitioners that they are
having the Postgraduate/Bachelor degree in History and
only at the time of verification of the documents, when the
respective certificates were produced, at that time only, the
authorities came to know that the respective writ
petitioners have the degrees in one branch of History and
not in History as a whole and therefore the show-cause
notices were issued so that the respective petitioners can
clarify and satisfy that they are having the requisite
qualification of Postgraduate/Bachelor degree in History
and after giving them the opportunity, the decision has
been taken and that too after obtaining the Expert
Committee's opinion."
50. In the instant case, another issue has been raised that once
the candidature of the appellant has been accepted, basis upon
which, the appellant has been declared to be successful in the
process of selection, hence, after the aforesaid decision having been
taken by the recruiting agency, it is not proper on their part to reject
the candidature.
51. Herein, the appellant has furnished the details of possessing
the educational qualification of Graduation with Bangla. But, it has
not been disclosed that Bangla as special subject or subsidiary one.
The same has been scrutinized by the recruiting agency at the time
of verification of original certificate and at that juncture, it was found
that the writ petitioner was having no required educational
qualification to hold the said post.
52. Therefore, we are of the view that if the candidature has
wrongly been accepted as a fact of the case herein, since,
admittedly, the writ petitioner is not having Graduation in Bangla as a
special subject, rather, it is subsidiary, hence, by considering the
condition of advertisement at the time of scrutiny of the certificate, if
such decision has been taken by the recruiting agency, the same
cannot be said to suffer from an error.
53. It needs to refer herein that as per the advertisement, the
online application form was to be filled up and that is the reason, the
verification of the certificate has got paramount importance at the
time when the original certificate is to be produced by one or the
other candidates.
54. It is for the reason that if the candidature of a candidate is only
to be accepted, if such candidate is required to possess such
eligibility criteria as per the terms and conditions of the condition and
the applicable rules of recruitment.
55. The recruiting agency, at the time of scrutiny of certificate if has
found that the appellant was not having requisite educational
qualification, hence, in that context, if any decision has been taken
for cancellation of candidature of the appellant, the same cannot be
said to suffer from an error, rather, if the candidature would be
accepted of such candidate, then it will hit the Article 14 of the
Constitution of India by way of relaxing the condition of
advertisement which is not available in terms and conditions of rule
and in that view of the matter, the same will be prejudicial to the
interest of other identical candidates who after knowing the fact that
the Bangla is not a main subject at Graduation Level, had not
applied.
56. Further, if the candidature of candidates will be accepted, the
same will amount to relaxing the condition by deviating from the
terms and conditions of the advertisement. Such relaxation is
impressible, in view of the judgment rendered by the Hon'ble Apex
Court in the case of Bedanga Talukdar Vs. Saifudaullah Khan &
Ors reported in AIR 2012 SC 1803. The relevant paragraphs,
paragraph nos. 28 and 29 of the said judgment, are quoted
hereunder as:
"28. We have considered the entire matter in detail. In
our opinion, it is too well settled to need any further
reiteration that all appointments to public office have to be
made in conformity with Article 14 of the Constitution of
India. In other words, there must be no arbitrariness
resulting from any undue favour being shown to any
candidate. Therefore, the selection process has to be
conducted strictly in accordance with the stipulated
selection procedure. Consequently, when a particular
schedule is mentioned in an advertisement, the same has
to be scrupulously maintained. There cannot be any
relaxation in the terms and conditions of the advertisement
unless such a power is specifically reserved. Such a
power could be reserved in the relevant Statutory Rules.
Even if power of relaxation is provided in the rules, it must
still be mentioned in the advertisement. In the absence of
such power in the Rules, it could still be provided in the
advertisement. However, the power of relaxation, if
exercised has to be given due publicity. This would be
necessary to ensure that those candidates who become
eligible due to the relaxation, are afforded an equal
opportunity to apply and compete. Relaxation of any
condition in advertisement without due publication would
be contrary to the mandate of quality contained in Articles
14 and 16 of the Constitution of India.
29. A perusal of the advertisement in this case will
clearly show that there was no power of relaxation. In our
opinion, the High Court committed an error in directing that
the condition with regard to the submission of the disability
certificate either along with the application form or before
appearing in the preliminary examination could be relaxed
in the case of respondent No. 1. Such a course would not
be permissible as it would violate the mandate of Articles
14 and 16 of the Constitution of India."
57. The position of law is well settled that a candidate is only
entitled to hold the post, if eligible to hold the post as per the rules of
recruitment and the conditions stipulated in the advertisement.
58. The aforesaid argument has also been agitated in L.P.A.
No.693 of 2019 and while dealing with the said contention, this Court
has come to the conclusive finding that on account of lack of
educational eligibility criteria of a particular candidate, if the
candidature of a candidate has been rejected even after allowing
such candidate to participate in the process of selection, no right will
be said to have accrued in favour of such candidate.
59. This Court, on the basis of the law as has been settled and the
similar issue has been dealt with as also considering the very purport
of appointment of teacher having expertise in a particular subject, is
of the view that if the learned Single Judge, after taking into
consideration the aforesaid condition of advertisement, has refused
to interfere with the impugned decision taken by the authority
concerned considering the condition stipulated in the advertisement
where the requirement is to consider the candidature of one or the
other candidates if having expertise in a particular subject at the
graduation level, which according to our considered view, cannot be
said to suffer from an error.
60. Accordingly, the instant appeal fails and is dismissed.
61. Pending Interlocutory Application(s), if any, stands disposed of.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Rohit/-A.F.R.
