Smt. Swati Upadhayay Bharti vs Social Justice And Diability ...
2023 Latest Caselaw 10686 MP

                              1


      IN THE HIGH COURT OF MADHYA PRADESH
                       AT I N D O R E

                          BEFORE
         HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                  DHARMADHIKARI
                              &
              HON'BLE SHRI JUSTICE HIRDESH

                  ON THE 12th OF JULY, 2023

                 WRIT APPEAL No. 758 of 2019

BETWEEN:-
SMT. SWATI UPADHAYAY BHARTI W/O
SHRI GHANSHYAM JI BHARTI, AGED
ABOUT 44 YEARS, OCCUPATION:
SERVICE 99/80, LIG QUARTERS
MAHASHKTI      NAGAR     UJJAIN
(MADHYA PRADESH)
                                               .....APPELLANT
(SHRI H.Y. MEHTA, ADVOCATE)

AND
   SOCIAL JUSTICE AND DIABILITY
   WELFARE          DEPARTMENT
1. PRINCIPAL SECRETARY VALLABH
   BHAWAN     BHOPAL   (MADHYA
   PRADESH)
   SECRETARY, PUBLIC SERVICE
   COMMISSIONER PUBLIC SERVICE
2.
   COMMISSION RESIDENCY AREA,
   INDORE (MADHYA PRADESH)
3. SATYANARAYAN SINGH YADAV
   OCCUPATION: TEACHER GOVT.
   DEAF AND DUMB AND BLIND
   SCHOOL,     SOCIAL   JUSTICE
   CAMPUS PARDESIPURA, INDORE
                                             2

   (MADHYA PRADESH)
                                                                 .....RESPONDENTS
(SHRI VINDHYAVASHINI PRASAD KHARE, ADVOCATE)
-----------------------------------------------------------------------------------------
        This appeal coming on for admission this day, JUSTICE
SUSHRUT ARVIND DHARMADHIKARI passed the following:
                                     ORDER

The matter is heard finally with the consent of both the parties.

1. This Writ Appeal filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam 2005, assails the order dated 14.02.2019 passed in W.P. No. 17267/2018, whereby the writ petition was dismissed.

2. The brief facts of the case are, that the Madhya Pradesh Public Service Commission, Indore (M.P.P.S.C) issued an advertisement dated 02.03.2017 for the post of Lecturer (Orthopedic Disabled, Hearing Disabled and Visually Disabled) as these posts were required to be filled under mandate of Madhya Pradesh Social Justice and Disability Welfare Directorate Service Recruitment Rules, 2015 (hereinafter referred to as the "recruitment rules"). As per the said advertisement, the qualifications required for the post of lecturer were as under:-

1. Post graduate in arts/ science/ commerce

2. B.ed in the concerned Disability and two years teaching experience in Brail Script.

3. Sufficient knowledge of Hindi an English.

4. General knowledge of Computer.

3. The petitioner with all such qualifications had applied for the said post of lecturer (Visually Disabled). Thereafter, the M.P.P.S.C after scrutinizing documents of all applicants who were not fulfilling the criteria as per the advertisement issued a list on 21.05.2018 of rejected candidates in which the name of the appellant was not mentioned. Thereafter, the appellant was called for interview on 18.07.2018. As per marks obtained in the Interview, the appellant was placed on the top of selection list, but on the contrary on 25.07.2018, the MPPSC by an e-mail informed the appellant that her candidature was rejected because she did not obtain the experience of teaching BRAIL Script after obtaining the degree of B.Ed.

4. Being aggrieved by the said disqualification, after the publication of selection list, the appellant filed the writ petition before the learned Single Judge which was dismissed by the impugned order. Therefore, the appellant has preferred this writ appeal before this Court.

5. Learned counsel for the appellant submitted that as per the Advertisement No. 2/2017 dated 02.03.2017, the appellant had all such qualifications as required for the appointment of lecturer for visually disabled persons and to further substantiate her claim regarding obtaining the experience, counsel for the appellant contended that in the writ petition they had produced the experience certificate from Jila Shiksha Kendra, Sagar dated 07.04.2017 by which it reflects that the appellant had an experience of teaching to visually disabled children for a period of 3 years 6 month. Similarly, the appellant had also produced the experience certificate issued by Jila Shiksha Kendra, Sarva Shiksha Abhiyan, District Ujjain dated 20.03.2017 by which it is reflected that she has taught the visually disabled persons for a period of 3 years 9 months and 28 days.

6. He further submits that in the list published on 21.05.2018 by

the MPPSC, the appellant's name was not mentioned, therefore, the e-mail sent to the appellant informing her regarding the cancellation of her candidature by MPPSC is arbitrary and contrary to the terms and conditions of the advertisement.

7. In light of the above facts and circumstances, the counsel for the appellant prays for the quashment of impugned order and prays for allowing this appeal and granting the reliefs as prayed for.

8. Per contra, learned counsel for the respondent No.2 submits that it is prerogative of MPPSC to interpret the rules and terms and conditions for the sake of appointment of various candidates and he further submitted that the rules of the advertisement dated 02.03.2017 has to be read in such a manner that the experience of two years have had to be obtained after obtaining the degree of B.Ed and in the present case the appellant did not gained the required experience after obtaining the degree of B.Ed. Therefore, her candidature was rightly quashed and the learned Writ Court has not committed any error while passing the impugned order.

9. To buttress his contention the learned counsel for the respondent No.2 has placed reliance upon the judgment of M.P. Public Service Commission v. Navnit Kumar Potdar reported in AIR 1995 SCC

77.

10. We have heard learned counsel for both the parties and perused the record.

11. The moot question which arises in this appeal is "whether as per advertisement dated 02.03.2017 it was mandated to gain required experience after obtaining the B.Ed Degree or not ?"

12. On perusal of the advertisement dated 02.03.2017 the terms and conditions clearly express that one has to obtain a degree of B.Ed in

the relevant subject (Visually Disabled) "and" teaching experience of two years in Brail Script. The proposition conceived by the learned counsel for the respondent is that the MPPSC is free to interpret the terms and conditions of the advertisement dated 02.03.2017 could not be accepted because the institution has to follow the terms and conditions of the advertisement in true letter and spirit and has to abide by the literal interpretation of terms and conditions. Whereas in the present case the MPPSC had acted contrary to the terms and conditions of the advertisement by rejecting the candidature of the appellant.

13. In the present case it appears that the appellant was fulfilling the required criteria of having two years experience as has been mentioned in the advertisement and had also obtained the B.Ed degree. However, as per the terms and conditions of the advertisement nowhere it has been expressed that one has to obtained the relevant experience after obtaining the degree of B.Ed therefore, the learned Single Judge without considering the fact that the appellant was fulfilling all the criterion as mentioned in the advertisement has passed the impugned order.

14. The judgment in Navnit Kumar Potdar (supra) referred by learned counsel for the respondent No.2 is based on different facts and circumstances, therefore, it is not applicable in the present case. Therefore, this Court is of the view that learned Single Judge has committed an error while dismissing the writ petition filed by the appellant. The learned Single Judge erred in coming to the conclusion that it is purely a discretion of Respondent No. 2 Madhya Pradesh Public Service Commission to consider the candidature of the candidate on the basis of qualification prescribed under the advertisement as well as the recruitment rules.

15. On bare perusal of the advertisement as well as the

recruitment rules, it is specifically provided that a candidate should possess B.Ed in the concerned disability and two years teaching experience in BRAL Script, the word "and" does not mean that the teaching experience ought to have been after passing the B.Ed examination. It is not in dispute that the appellant is possessing a qualification of M.Sc. (social work) and according to experience certificates (Annexure- P/7) the appellant has experience of teaching the visually disabled children for a period of around 7 years which cannot be brushed aside. The advertisement and the rules do not clearly specify that the qualification ought to have been gained after passing of the B.Ed degree, therefore, the conclusion of the learned Single Judge is erroneous. It is a settled legal position that any recruitment has to be undertaken strictly in accordance with the terms and conditions of the advertisement and the rules.

16. In the present case, the appellant is fully qualified to be appointed on the post of lecturer (Visually Disabled). The learned counsel for the appellant had pointed out that one post still vacant due to resignation of one Mr. Diwakar Tiwari on 05.08.2019. Taking into consideration the aforesaid facts and circumstances as well as the fact that the appellant is now over age to apply for any post, and having been qualified for appointment to the present post, the respondents are directed to appoint the appellant on the post of lecturer (Visually Disabled) as expeditiously as possible preferably within a period of four weeks from the date of the receipt of certified copy of the order.

17. Accordingly, this writ appeal is allowed and the impugned order dated 14.02.2019 in W.P. No. 17267/2018 passed by the learned Single Judge as well as e-mail communication dated 25.07.2018 (Annexure P-12) informing the rejection of the candidature of the

appellant, is hereby set aside.

No order as to cost.

         (S.A. DHARMADHIKARI)                 (HIRDESH)
                JUDGE                           JUDGE

Vatan

                  Digitally signed by
VATAN       VATAN SHRIVASTAVA
SHRIVASTAVA Date: 2023.07.14
            18:18:13 +05'30'