CW 7789/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.7789/2006 Smt. Jaya Versus State & Anr. Date of Order ::: 25/09/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Dinesh K.Garg, for petitioner Mr. SN Kumawat, for respondent PSC Instant petition has been filed by petitioner who is a member of Scheduled Caste category, seeking her fair consideration for selection to the post of School Lecturer (Home Science). Rajasthan Public Service Commission (“PSC”) issued advertisement (3/2004) dt. 18/08/04 (Ann.1) for the posts of School Lecturer in various subjects including Home Science shown at S.No.12. In all 41 posts of Lecturer (Home Science) were advertised but thereafter it appears that further requisition was sent by State Government and so corrigendum was issued by PSC on 16/07/05; last date for submission of application forms was 20/08/05. Petitioner holding degrees of B.A. With Home Science as one of subjects, M.A (Sanskrit) & B.Ed. (Ann.4, 5 & 6), and claiming herself a member of Scheduled Caste (Woman) & eligible, applied for in pursuance of advertisement dt.18/08/04 and was allowed to appear in written CW 7789/06 //2// screening test held for Lecturer (Home Sc.) on 09/04/06 – as per result whereof announced on 22/05/06 & 28/07/06, she was declared successful. However, while scrutiny of her application, vide letter dt.10/08/06 (Ann.9), her candidature was rejected holding that she did not possess requisite teaching experience as required under Rajasthan Educational Service Rules, 1970 (“Rules, 1970”). Counsel for petitioner submits that under Scheme of Rules, 1970 and Note-1 to post of Lecturer in Humanities & Commerce Group (School Education) under Rules, 1970, in case sufficient number of applicants are not available with requisite qualification referred to in Schedule, same can be relaxed taking note of relaxation introduced in Note-1 and since sufficient number of candidates were not available against reserved vacancy of Scheduled Caste (Woman), respondents were under obligation to consider such applicants like petitioner covered by Note-1 appended as a part of Schedule to Rules, 1970 and for whom five years' teaching experience is not a condition of eligibility – on that premise, respondents arbitrarily denied her to participate in process of selection despite the fact that she was declared successful in screening test; as such their CW 7789/06 //3// action is not legally sustainable. Respondents have filed their reply to writ petition, wherein this fact has not been disputed that against nine vacancies reserved for Scheduled Caste (Woman); suficient number of applicants were not available and only six were filled up, and three vacancies remained vacant. However, she was declared to be in-eligible on the premise of her not holding requisite educational qualification & five years' teaching experience as per Rules, 1970. However, vide letter of rejection (Ann.9), her application was rejected only on the premise that she was not holding teaching experience as per Rules, 1970. Per contra, Counsel for respondents submits that as per qualification for the post of Lecturer in Humanities, which includes Home Science, as well, and as laid down in Schedule of Rules, 1970, five years' teaching experience is one of eligibility conditions - exemption therefrom has been granted only to those holding 2nd class Post Graduate degree; and since petitioner is not holding 2nd class P.G., in subject of Home Science, she was required to hold five years' teaching experience and even she is holding degree of Graduation with Home Science as one of optional subjects and not CW 7789/06 //4// Graduate in Home Science; thus her candidature was rightly rejected vide order impugned. State Government has filed their reply but it is completely a reiteration of the reply filed by respondent-PSC and no one has appeared to assist the Court. It is relevant to observe that while notices were issued by this Court on 06/10/86 it was observed that right of petitioner after selection shall be subject to outcome of writ petition. I have considered contentions of both the parties and has pondered over material on record. Before examining the controversy, it will be relevant to firstly quote qualifications prescribed to the post of Lecturer (Home Science) ad infra: S.No. Name of Post Mode of recruitment with percentage Minimum qualification & experience for direct recruitment 5.(a) Lecturer in Humanities & Commerce Group (School Education) 50% by promotion & 50% by direct recruitment 2nd Class Post graduate in relevant subject with Degree or Diploma in Education recognised by Government or Post graduate in the relevant subject with Degree or Diploma in Education recognised by Government and with 5 years' experience of teaching in recognised institution of or above Rules, 1971 – standard of secondary Schools. Note: 1. The restriction of Division in Post graduate examination will not be essential if required number of candidates are not available. CW 7789/06 //5// In case post graduates in Home Science are not available then graduate with degree or diploma in Education with 5 years' experience of teaching Home Science of standard of secondary or Higher Secondary Class shall be eligible for the post of Lecturer in Home Science (preferably B.Sc with Home Science). Graduates with Home Science will also be eligible if they are Post graduate in any other subject but with degree or diploma in Education.” Note-1 to Clause 5(a) (Lecturer in Humanities & Commerce Group (School Education) appended in Schedule to Rules, 1970, requisite academic qualification is appended in Schedule, itself (supra). Note-1 has to be invoked if persons with requisite academic qualification (supra) as referred to in Schedule are not available against vacancies advertised. In instant case, applicants with requisite qualification as referred, ibid, indisputably were not available, exigency arose to invoke Note-1 appended to Schedule of Rules, 1970. It clearly emerges from Note-1 (supra) that it stands divided into two sections - (i) Initially required number of candidates holding post graduates are not available, Graduates with Degree or diploma in education with five years' experience of teaching Home Science of standard CW 7789/06 //6// of Secondary/Higher Secondary can be considered to be eligible for the post of lecturer in Home Science, but preference will be given to B.Sc., with home science; (ii) if applicants with requisite qualification are not available, certainly Graduates with Home Science were also made eligible even if they are holding post graduate degree in any other subject with Degree or Diploma in Education. Question stressed upon by Counsel for respondent PSC and urged for consideration is that Graduate with Home Science as referred to in latter part of Note-1 (supra) has to be considered as “Graduate in Home Science” with post graduate degree in other subject apart from five years' experience of teaching and degree or diploma in education, who can be considered eligible for participation in process of selection. A conjoint reading of Schedule & Note 1 appended thereto shows that at various places, Rule making authority has used words, “in” and “with” - dictionary meanings whereof are ad infra : Black's Law Dictionary (6th Edn) In. An elastic preposition in other cases, expressing relation of presence, existence, situation, inclusion, action, etc. in-closed CW 7789/06 //7// or surrounded by limits, as in a room; also meaning for in and about, on, within etc.; and is synonymous with expressions “in regard to”, “respecting”, “with respect to”, and “as is”. With. A word denoting a relation of proximity, contiguity, or association. Sometimes equivalent to the words, “in addition to,” but not synonymous with “including”, as in a complaint demanding a specified sum, “with interest”. Venkataramaiya's Law Lexicon In. The word “in” in the expression “in any building” should be taken to mean “in respect of” or “in relation to”. With. The meaning of the word “with” is generally gathered from the context and has to be considered in conjunction with words which precede and those which follow it. It is the exact meaning of the words, “original term”, as used in the proviso, which is far more important.” Mitra's Legal & Commercial Dictionary 5th Edn. In. The word “in” is not a word of art. Its true effect and meaning must depend on the context in which it is used. Longman Dictionary of English Language In adv., to or towards the inside or CW 7789/06 //8// centre; so as to incorporate; to or towards home, the shore, or one's destination; so as to be added or included; In – in; within; into; towards; on. With – prep. In opposition to; against; so as to be separated or detached from; used to indicate the object of attention, behaviour, or feeling; in respect to; used to indicate the object of an adverbial expression of imperative force; used to indicate accompaniment/association; In addition to – used to indicate combination. Dictionary meanings (supra) clearly demonstrate that word, “with”, is always used where it is to be accompanied as a part of same group or inclusive of whereas word, “in” is always to be looked into in the context of which it has been used and whenever used, it is always to mean “inclusive”. Thus it clearly shows that Rule making authority somewhere has desired to have “post graduate” in relevant subject viz., in instant case, “Home Science”; or graduate or diploma in education but at the same time, later on considered to make other applicants also eligible who are holding academic qualification of graduation with Home Science. Word, “with” as referred to in Note-1 (supra) certainly relates to accompanying subject of Home Science and not CW 7789/06 //9// Graduate in Home Science. In case submission made by Respondent's Counsel is accepted, that tantamounts to substitute word, “in” at the place of word, “with” used by Rule making authority, which cannot certainly be permitted to look into, as it amounts to make amendment in existing scheme fo Rules, which is not the scope of judicial review. However, it is made clear that academic qualification as referred to in Schedule has to be primarily looked into and Note-1 appended therein in its opening words make it clear that it would come into play only when if required number of candidates are not made available; in such contingency, two sections can also be considered as eligible to participate. It appears that this must have been incorporated by Rule making authority with an object that restriction of division in Post graduate and teaching experience is not essential if sufficient number of candidates are not available, posts will remain vacant and to meet out with this contingency, a delusion has been made in academic qualification & experience, so that advertised vacancies can be filled up and education being prime constitutional object of State, may not suffer CW 7789/06 //10// be hampered and at the same time students may also not suffer. After scrutiny of Scheme of Rules, reference whereof is made (supra), in the opinion of this Court, Graduate with Home Science certainly includes “Home Science” as one of subjects at the level of Graduation and not Graduate in Home Science and this Court is not supposed to substitute words having not been used by Rule making authority in statutory Rules, 1970. Indisputably petitioner is Graduate with Home Science as one of optional subjects in degree course besides holding post graduate qualification with Degree in Education; for whom, five years' teaching in Home Science is not eligibility condition as required under Note-1 (supra) appended to Rules, 1970. In Bihar Public Service Commission Vs. Kamini (2007(5) SCC 519) on which respondent's Counsel placed reliance, theApex Court examined qualification for the post of District Fisheries Officer which was B.Sc (Hons.) Zoology and applicant was holding qualification of B.Sc. Chemistry with Zoology & Botany as subsidiary optional subjects and Apex Court observed that B.Sc. (Hons.) Zoology is the basic requisite qualification and other Graduates having zoology CW 7789/06 //11// as one of subjects certainly cannot be considered to be eligible; while in instant case it is not the case; as such is of no assistance. Consequently, writ petition succeeds and is hereby allowed. Petitioner is considered to be eligible by invoking Note-1 (supra) appended to Schedule to Rules, 1970 for the post of School Lecturer (Home Science) in pursuance of advertisement (Ann.1) and respondent-PSC is directed to allow the petitioner for interview and if found suitable be considered for appointment in accordance with Rules. Compliance of directions, ibid, be ensured by respondents within four months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.11/7789CW06-Sep08.doc