IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 16230 of 2008. Reserved on 13.07.2011. Decided on: 21.7. 2011. _______________________________________________ Madan Lal. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. J.L. Bhardwaj, Advocate. For the Respondents : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. Rajiv Sharma, Judge: Petitioner obtained his B.Ed. degree in the year 2002. Thereafter, he acquired the M.Ed. degree in the year 2005. Respondent had issued advertisement whereby it was decided to fill-up the posts of T.G.T. (Arts) in the month of December, 2006. Last date of receipt of applications was 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 26.12.2006. The petitioner submitted application for considering his candidature pursuant to which he was called for interview on 22.3.2007. The petitioner appeared in the interview. However, the result was not intimated to the petitioner. The petitioner came to know later on that the result has been declared on 17.12.2007. His name was not recommended by the selection committee. The reason assigned was that because the petitioner has passed his B.A. with the subject combination of English, Economics and Philosophy which is not approved subject combination for the post of TGT (Arts) as prescribed by the Government from time to time. Subject combination as approved by the Government in respect of TGT (Arts) were B.A., B.Ed. from a recognized University with English and two other school teaching subjects. 2. According to the respondents as per Recruitment and Promotion Rules the essential educational qualification for the post of Trained Graduate Teacher in the department was Graduate (in the subject concerned) from a recognized University with Post-Graduate Degree/Diploma in teaching/ education. 3. Mr. J.L. Bhardwaj, learned counsel for the petitioner has strenuously argued that the action of the respondents of ignoring the candidature of the petitioner for - 3 - the post of Trained Graduate Teacher was arbitrary, thus violative of Articles 14 and 16 of the Constitution of India. According to him, his client fulfills the minimum educational qualification prescribed under the Recruitment and Promotion Rules. 4. Mr. Vikas Rathore, learned Deputy Advocate General has argued that since the petitioner was not having the minimum educational qualification prescribed, his candidature has rightly been rejected. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. The petitioner has obtained his B.A. Degree with subjects Elective English, Economics and Philosophy. He was called for interview on 22.3.2007. Petitioner had submitted all the educational testimonials at the time of submitting the application before the last date prescribed, i.e. 26.12.2006. Vide order dated 29.6.2010, the Respondent-State was directed to file the copies of un-amended Recruitment and Promotion Rules and amended Recruitment and Promotion Rules. Respondent-State has filed the same vide Annexure R-1 and Annexure R-2 respectively. According to Annexure R-1, the minimum educational qualification prescribed for filling up the post of Trained Graduate Teacher is Graduate (in the subject concerned) of a recognized University with Post- - 4 - graduate degree/Diploma in teaching/education. There is no specific mention of the two other school teaching subjects. The emphasis is with expression in the subject concerned. However, Mr. Vikas Rathore, learned Deputy Advocate General has drawn the attention of the Court to Annexure R-3 filed pursuant to the directions issued by this Court. Annexure R-3 is the list of approved subject combination for the appointment of Trained Graduate Teachers (Medical/Non- Medical/Arts) issued by the State Government on 27.2.1999, 5.11.1999 and 31.5.2000. The minimum educational qualification for the post of Trained Graduate Teacher (Arts) as per Annexure R-3 is B.A. B.Ed. from a recognized University with the following subject combination in B.A.:- 1. B.A. with English and two other school teaching subject. 2. B.A. Honours in any (School teaching) subjects with other two subsidiary subjects including English as compulsory subjects in B.A. I and B.A. II from a recognized University. 7. The letters dated 27.2.1999, 5.11.1999 and 31.5.2000 have never been in the scheme of Recruitment and Promotion Rules. It was necessary for the State to make an amendment in the old Rules by bringing the subject combination as amended in Annexure R-3. It is apparent that - 5 - the State confronted with this situation has amended the Recruitment and Promotion Rules for the post of Trained Graduate Teacher vide notification on 22.10.2009. These Rules are called the Himachal Pradesh, Elementary Education Department, Trained Graduate Teacher, [Class-III (Non- Gazetted)] Recruitment and promotion Rules, 2009. These have come into force from the date of publication in the Rajpatra, Himachal Pradesh. The minimum educational qualification prescribed as per these rules for filling up the post of Trained Graduate Teacher is B.A.B.Ed./B.El.Ed. with English as an elective subject and any two of the following subjects in all the three years of Graduation:- i) Hindi ii) Economics iii) Mathematics iv) History v) Political Science vi) Geography vii) Sociology viii) Sanskrit Public Administration 8. Now this subject combination has been provided separately under Article 309 of the Constitution of India. Mr. Vikas Rathore, learned Deputy Advocate General has also drawn the attention of the Court to the Syllabi as per Himachal Pradesh Board of School Education specification and - 6 - Courses of Study for Matriculation subjects 2006. According to him, there are compulsory subjects and elective subjects and philosophy has not been included therein. He has also drawn the attention of the Court to communication dated 3.11.2009 issued by the Director of Elementary Education to the Secretary, H.P. Subordinate Services Selection Board whereby list of those subject combinations which have been considered to appointment as Trained Graduate Teachers (Arts) in the department from time to time. It makes it abundantly clear that before the 2009 rules were promulgated, the subject combination was merely regulated on the basis of three instructions issued on 27.2.1999, 5.11.1999 and 31.5.2000. The subject combination with English as elective subject has only, as noticed above, been provided by way of framing the Rules in the year 2009. These rules will apply prospectively and will not take away the acquired and vested right of the petitioner to be considered before framing of the Rules. The subject combination has been notified in the year 2009 by the Director of Elementary Education to the Secretary, H.P. Subordinate Services Selection Board on 3.11.2009. In view of this, the candidature of the petitioner could not be rejected since the subject combination was never made part of the Recruitment and - 7 - Promotion Rules, regulating the appointment to the post of Trained Graduate Teachers (Arts.). 9. The minimum essential qualification required for filling up the post is to be provided in the Recruitment and Promotion Rules itself. It can not be done by way of executive instructions. There has to be certainty in the Recruitment & Promotion Rules in order to promote rule of law. 10. 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 Trained Graduate Teacher pursuant to the interview held on 22.3.2007. In the eventuality of the petitioner being found suitable, he will be entitled to appointment with continuity in service, but will not be entitled to arrears of salary. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. July 21, 2011. (sck).