IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. (T) No. 9799 of 2008. Reserved on: 06.09.2011. Decided on: 23.9.2011 _____________________________________________________ Kumud Gaur. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner : Mr. Dilip Sharma, Advocate. For the respondents. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner has passed her +2 examination in the year 1994. She obtained Bachelor’s degree in 1999. Thereafter, she has successfully completed Elementary Teachers Training Course in 2001 from Chandigarh Administration Education Department on 14.06.2001. Respondent-State has decided to fill up 107 posts of J.B.T. teachers. Petitioner submitted an application for considering her candidature. She was issued call letter on 30.10.2002. She was interviewed on 20.11.2002. However, she was not offered appointment letter. 2. Mr. Dilip Sharma, learned counsel for the petitioner has strenuously argued that his client was fully eligible and qualified to be considered for appointment to the post of J.B.T. teacher as per ‘The Himachal Pradesh, Primary Education 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - Department, Junior Basic Trained Teacher, Class-III (Non- Gazetted) Recruitment and Promotion Rules, 2000. He then argued that the selection process was initiated in the first half of 2002 and the amendment has been carried out in the Recruitment and Promotion Rules on 16.12.2002. He also argued that as per letter dated 18.10.2005, issued by the National Council for Teacher Education, the diploma/certificate obtained by the petitioner as per Annexure P-3 was valid. He further contended that the diploma/certificate obtained by the petitioner was duly recognized as per office order dated 15.12.1983. He further contended that the office order dated 15.12.1983 has been withdrawn on 21.07.2010 and the principle of “relating back” will not be available. He then argued that the case of the petitioner was to be considered as per the old Rules and the games of the rules could not be changed mid-way. He lastly contended that despite this Court ordering the respondent-State to consider the question of equivalence of qualification as per paragraph No. 6.4 of Handbook On Personal Matters Vol. I, Second Edition, the same has not been decided as per these instructions and the decision has been taken by the Principal Secretary (Education), Government of Himachal Pradesh on 01.09.2011 without even referring to paragraph No. 6.4 of Handbook On Personal Matters Vol. I, Second Edition. 3. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that the State Government has decided to fill up the posts of J.B.T. teachers only from those candidates, who have possessed two years diploma of J.B.T. from the educational institution duly affiliated to the Himachal Pradesh - 3 - Board of School Education. He has referred to letter dated 24.10.2002 and the amendment carried out in the Recruitment and Promotion Rules on16.12.2002. He has justified the decision dated 01.09.2011. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The process for filling up 107 posts of J.B.T. teachers has commenced, which led to the issuance of call letter to the petitioner on 30.10.2002. She was interviewed on 20.11.2002. According to letter dated 24.10.2002, the State Government has decided to fill up the posts of J.B.T. teachers, firstly from the candidates who have obtained two years’ J.B.T. diploma from the institutes affiliated to Himachal Pradesh Board of School Education, Dharamshala and whose names stood registered with the employment exchange(s). 6. It will be apt at this stage to take stoke of the Rule position. When the selection process was commenced by the State, it was to be regulated as per the Rules applicable on that date. On the date when the selection process has been initiated, the rules called ‘The Himachal Pradesh, Primary Education Department, Junior Basic Trained Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2000 were applicable. It will be apt at this stage to reproduce Rule-7, which reads thus: “7. Minimum education and other : (a) ESSENTIAL qualifications required for direct recruits i) Should be 10+2 with 50% marks from a recognized Board of School Education/University. ii) Should possess two years JBT certificate course from an Institution duly - 4 - recognized by the Central/State Govt. (b) DESIRABLE QUALIFICATION: Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh. 7. The amendment has been carried out in the Rules on 16.12.2002, which reads thus: “…( c) For the existing provisions against column No. 7(a), the following shall be substituted, namely:- (i) Senior Secondary School Certificate or Intermediate or its equivalent; and (ii) Diploma or Courses Certificate in Basic teachers training of a duration not less than two years Or Bachelor of Elementary Education (B. EL. Ed). 8. Petitioner has passed +2 examination and was in possession of two years Elementary Teachers Training Course from Chandigarh Administration Education Department. It is not the case of the respondent-State that this Institution is not duly recognized by the Central/State Government. In fact, the office order has been issued by the respondent-State on 15.12.1983, which reads thus: “The Governor, Himachal Pradesh is pleased to withdraw the recognition of diplomas equivalent to Junior Basic Teacher given vide this Department office order No. Cha (7)-2/79-Shiksha-Ka-Vol-II, dated 15.12.1983.” 9. This notification has been withdrawn by the State on 21.07.2010, which reads thus: - 5 - “The Governor Himachal Pradesh is pleaded to withdraw the recognition of diplomas equivalent to Junior Basic Teachers given vide this Department office order No. Cha (7)-2/79-Shisha-Ka-Vol-II, dated 15.12.1983.” Further, the Governor Himachal Pradesh has been pleased to order that the candidates who will complete and successfully pass the two years Junior basic teachers training course/diploma from an Institute, which is affiliated with the H.P. Board of School of Education and had admitted students strictly on merit, on the basis of Common Entrance Test conducted by the H.P. Board of School Education, will only be eligible for the appointment as Junior Basic Teachers in Himachal Pradesh, in accordance with the qualifications prescribed in the Junior Basic Trained Teachers R & P Rules. According to this notification, only those candidates were to be considered for appointment, who had possessed the qualification of Junior Basic Teachers Training Course/diploma of two years from an institute affiliated with H.P. Board of School Education and were admitted strictly on merit on the basis of Common Entrance Test, conducted by the H.P. Board of School Education. 10. Petitioner was called for interview on 30.10.2002. On that date she was fully eligible and qualified to be considered for appointment to the post of J.B.T. teacher. The letter dated 24.10.2002 could not alter the terms and conditions contained in the Rules framed under Article 309 of the Constitution of India and promulgated on 22.08.2000. The rights of the petitioner have crystallized on the basis of the Rules promulgated in the month of August, 2000. Her case was required to be considered as per 2000 - 6 - Rules. Even, as per the amendment carried out in the Recruitment and Promotion Rules on 16.12.2002, the petitioner was still eligible. The only requirement was that the candidates should pass Senior Secondary School Certificate or Intermediate or its equivalent or diploma or courses certificate in basic teachers training of a duration not less than two years. Petitioner has passed her +2 examination and has obtained two years diploma of Junior Basic Teachers Training Course from a duly recognized institution. Letter dated 24.10.2002 is in contravention of the Recruitment and Promotion Rules framed in the year 2000. Something which was not visualized in the Recruitment and Promotion Rules, could not be provided indirectly that only those candidates will be considered for appointment to the post of J.B.T. teachers, who have obtained the diploma from the institutes affiliated to Himachal Pradesh Board of School Education. 11. The State Government was directed to take a decision in the matter in view of paragraph No. 6.4 of Handbook On Personal Matters Vol. 1, Second Edition on 29.06.2011. The Principal Secretary (Education), Government of Himachal Pradesh has taken a decision on 01.09.2011, holding that the certificate/ diploma obtained by the petitioner is not equivalent with J.B.T. Course in Himachal Pradesh. It is evident from the contents of paragraph 6.4 of Handbook On Personal Matters Vol. 1 Second Edition that for processing the cases in regard to recognition of general academic/technical/non-technical degrees/diplomas awarded by various Universities/Boards/institutions etc. for the purpose of recruitment to various services/posts under the State Government, the matter is to be dealt with in the Department of - 7 - Personnel (A-II) and the Department of Personnel (A-II) is required to consult the Education Department or the other Department(s) dealing with the affairs of such non-technical professions, if need be. This procedure has not been gone into by the State Government, as directed by this Court. 12. The matter is required to be considered from another angle. Further, petitioner has obtained two years diploma from a duly recognized institution for the academic session 1999-2001. The requirement as per the Recruitment and Promotion Rules was that the candidate should obtain a certificate/diploma of two years duration from an institution duly recognized by the Central/State Government. In this case, two years diploma has been issued by the Education Department of Union Territory, Chandigarh. 13. Mr. Vikas Rathore, learned Deputy Advocate General has argued that the State Government has taken a policy decision to restrict the mode of recruitment of J.B.T. teachers only from those candidates, who have obtained their diploma/certificate from the institution affiliated to the Himachal Pradesh Board of School Education on 23.07.2010. This decision is also contrary to the Recruitment and Promotion Rules. In case there is conflict between Recruitment and Promotion Rules and the executive instructions, it is settled law that the Rules shall prevail. Moreover, the letter dated 23.7.2010 will apply prospectively and can not take vested or accrued rights. According to Mr. Vikas Rathore, the candidates are admitted to the J.B.T. Course in the State of Himachal Pradesh on the basis of combined entrance test and they are admitted on the basis of merit. Merely - 8 - that in the State of Himachal Pradesh, combined entrance test is held for filling up the seats of J.B.T. courses and in the adjoining States, the mode of induction into the Course is not test based on C.E.T., will not render these candidates ineligible for public employment. What is to be seen, is whether the candidate has obtained the diploma from a recognized institution by the Central/State Government or by the University/duly recognized Board. The candidates who have obtained diploma/certificate from the States, other than the State of Himachal Pradesh from a duly recognized institution, cannot be debarred for public employment. Respondents have not placed on record the syllabus taught to the candidates of J.B.T. getting training from the institutions in the State of Himachal Pradesh. The basic curriculum of the teachers training courses, including J.B.T. and B.Ed. more and less is the same. Teachers are trained to impart education and they are not taught according to the syllabus of a particular State prescribed for primary students. It will also be pertinent to state at this stage that the respondent-State has sought information from the National Council of Teachers Education whether the ETT diplomas awarded by various States are duly recognized or not. It is evident from the plain reading of letter dated 18.10.2005 placed on record by the respondent-State itself that the diplomas/certificates of ETT are validly recognized by various States in the schools. This letter has also been overlooked by the State while taking the decision on 01.09.2011. 14. The Apex Court in Dr. B.L. Asawa Vs. State of Rajasthan and others, AIR 1982 Supreme Court 933 has held - 9 - that a Post-graduate Medical Degree granted by a University duly established by statute in India and which has also been recognized by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country. In the absence of any express provision to the contrary, such a degree does not require to be specifically recognized by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to any post in such a State. Their Lordships have further held that in the case of a Post- graduate degree in the concerned subject awarded by a statutory Indian University, no recognition or declaration of equivalence by any other University is called for. Their Lordships have held as under: “11. The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degrees. The Degree of Doctor of Medicine (Forensic Medicine) M. D. (Forensic Medicine) of the University of Bihar is included in the Schedule to the Indian Medical Council Act, 1956 as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India. A Post-graduate Medical Degree granted by a University duly established by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country. In the absence of any express provision to the contrary, such a degree does not require to be - 10 - specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to any post in such a state. The Division Bench of the High Court was, in our opinion. manifestly in error in thinking that since the post-graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be treated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the said degree or declaring it as an equivalent qualification. It is common ground before us that the University of Rajasthan does not conduct post- graduate examinations in the subject of Forensic Medicine and it does not award the degree of M. D. (Forensic Medicine). In order that there. should be scope for declaration of 'equivalence' of a qualification obtained from another body, there can be declaration -of equivalence only as between a qualification obtained from a body different from the one awarded by the concerned University. When the University of Rajasthan does not conduct any examination for the award of the degree of M. D. (Forensic Medicine), there cannot be any question of declaration of 'equivalence' in respect, of such a degree awarded by any University. Unfortunately, the State Public Service Commission as well as the Division Bench of the High Court failed to notice this crucial aspect. We may also point out that the declaration of 'equivalence' referred to in S. 23A of the Rajasthan University Act as well as in clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances can only be in respect of qualifications other than basic or Post-graduate degrees awarded by other statutory Indian Universities in the concerned subjects. In the case of a Post-graduate degree in the concerned - 11 - subject awarded by a statutory Indian University, no recognition or declaration of equivalence by any other University is called for, This is all, the more so in the case of a medical degree basic as well as Post- graduate that is awarded by a statutory Indian University and which has been specifically recognised by the Indian Medical Council. 15. In the instant case, the diploma/certificate awarded to the petitioner is by a duly recognized institution run by the Education Department of Union Territory, Chandigarh. 16. The Apex Court in Hemani Malhotra Vs. High Court of Delhi, (2008) 7 Supreme Court Cases 11 has held that the rules of the game cannot be changed during the selection process or when it is over. Their Lordships have held as under: “14. It is an admitted position that at the beginning of the selection process, no minimum cut off marks for vive-voce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in Civil Appeal No. 1313 of 2008 filed by K.Manjusree against the State of A.P. & Anr. decided on February 15, 2008, the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms:- "The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, - 12 - to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview." From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted. 15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement - 13 - of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal. 16. The contention raised by the learned Counsel for the respondent that the decision rendered in K.Manjusree (Supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as K.H.Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or nor, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K.Manjusree (Supra) the Court noticed the decisions in (1) P.K.Ramachandra Iyer v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K.Manjusree (Supra) can neither be regarded as Judgment per incuriam nor - 14 - good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision. 17. Similarly, the Apex Court in Tamil Nadu Computer Science Bed Graduate Teachers welfare Society (1) Vs. Higher Secondary School Computer Teachers Association and others (2009) 14 Supreme Court Cases 517 has held that the changing rules of game during selection process is impressible. Their Lordships have held as under: “32. Prior to holding of the said Test guidelines were formulated through a policy decision laying down the criteria that the minimum qualifying marks in the said test would be at least 50%. The said guidelines of Recruitment as laid down through a policy decision was sacrosanct and was required to be followed for all practical purposes even if we accept that the Government could have filled up the said posts of Computer Instructors by holding a Special Recruitment Test of the aforesaid nature as one time exception. 33. We, however, cannot hold that the subsequent decision of the Government thereby changing qualifying norms by reducing the minimum qualifying marks from 50% to 35% after the holding the examination and at the time when the result of the examination was to be announced and thereby changing the said criteria at the verge of and towards the end of the game, as justified for we find the same as arbitrary and unjustified. This Court in Hemani Malhotra vs. High Court of Delhi [2008 (7) SCC 11] has held that in recruitment process changing rules of the game during selection process or when it is over are not permissible. 34. Thus we hold and declare that those candidates who had secured more than 50% qualifying marks would he held to have qualified in the said test and the remaining candidates would be treated as unsuccessful/ failed and therefore became ineligible to be permanently recruited and absorbed in Government Schools. - 15 - However, we give a liberty to the State Government to hold a fresh examination/recruitment test to fill up all the remaining posts of Computer Instructors as against sanctioned and vacant posts of Computer Instructors, which we are told would be more than 1000. by holding a recruitment test in terms of assurance given to the High Court.” 18. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Respondents are directed to consider the case of the petitioner for appointment to the post of J.B.T. teacher on the basis of interview held on 20.11.2002, within a period of six weeks from today. It is made clear that in the eventuality of the petitioner being appointed, she will get seniority from due date, but not the arrears of salary etc.. The notional period w.e.f. the date of appointment shall be counted for pensionary benefits. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma) Judge September 23, 2011. (bhupender) - 16 -