IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 108 of 2004 Date of Decision: May 6, 2008 Monika …Petitioner Versus State of Haryana and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR Present: Mr. D.S. Patwalia, Advocate, for the petitioner. Mr. Ashish Kapoor, Addl. AG, Haryana, for the respondents. M.M. KUMAR, J. This order shall dispose of C.W.P. Nos. 108 and 3021 of 2004, which have been filed under Article 226 of the Constitution for quashing order dated 20.11.2003 (P-3), passed by the Haryana Staff Selection Commission (for brevity, ‘the Commission’), whereby the applications of the petitioners for the posts of Art and Craft Teacher in Education Department have been rejected holding that the diploma held by the petitioners is incomplete. It is appropriate to mention that the petitioners have qualified three years diploma in Commercial Art and Industrial Design from the Government Polytechnic for Women, Ambala City (for brevity, ‘three years diploma’), whereas the C.W.P. No. 108 of 2004 qualification for the posts of Art and Craft Teacher is two years diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department (for brevity, ‘two years diploma’) or equivalent qualification. When these petitions came up for consideration of a Division Bench of this Court on 22.7.2004, it was directed that the petitioners shall be provisionally interviewed for the post of Art and Craft Teacher and their result was not to be declared without prior permission of this Court. Accordingly, the petitioners were interviewed. Thereafter on 8.2.2005, the result of the petitioners was produced in a sealed cover, which was opened by the Bench Secretary for the perusal of the Court. It was found that in the merit list of General Category candidates the names of the petitioners figured at Sr. Nos. 541 to 546. It is appropriate to mention that in the advertisement dated 7.11.2003 (P-2), 664 posts of Art and Craft teacher were advertised with the following breakup:- “Category No. 4:- 664 posts of Art and Craft Teacher (General = 287, SC-A = 59, SC-B = 58, BC-A = 91, BC-B = 51, ESM (General) = 49, ESM (SC-A) = 7, ESM (SC-B) = 7, ESM (BC-A) = 14, ESM (BC-B) = 21, Prominent Sportsman (General) = 6, Prominent Sportsman (SC-A) = 3, Prominent Sportsman (SC-B)= 4, Prominent (BC-A)= 4, Prominent Sportsman (BC-B)=3.” It is, thus, evident that for General Category there were only 287 posts of Art and Craft teacher against total number of 664 2 C.W.P. No. 108 of 2004 posts. The names of the petitioners in the select list figure at Sr. Nos. 541 to 546, which is far below the number of posts which were to be filled in pursuance to the advertisement dated 7.11.2003 (P-2). In view of the aforesaid finding recorded by this Court, the writ petitions were dismissed on 8.2.2005. Even review applications bearing R.A. No. 45 of 2005 in C.W.P. No. 108 of 2004 and R.A. No. 59 of 2005 in C.W.P. No. 3021 of 2004 were filed. R.A. No. 45 of 2005 was dismissed vide order dated 21.3.2005 because neither any detail of the order dated 8.2.2005, which was sought to be reviewed, was given nor copy of the order was placed on record. Thereafter, another review application bearing R.A. No. 86 of 2005 in C.W.P. No. 108 of 2004 was filed. The aforementioned review application Nos. 59 and 86 of 2005 were also dismissed on 4.4.2005. The order passed by this Court on 8.2.2005 was challenged before the Letters Patent Bench in L.P.A. No. 161 of 2005 in C.W.P. No. 108 of 2004 and L.P.A. No. 163 of 2005 in C.W.P. No. 3021 of 2004. The Letters Patent Bench after noticing two Division Bench judgments of this Court in the cases of Jarnail Singh v. State of Punjab, 1997(2) SCT 764 and Girish Arora v. State of Haryana, 1997(3) SCT 240, has observed as under:- “……the learned Single Judge ought to have gone into the question of eligibility of the appellants in addition to other factors. We find merit in this plea. In Jarnail Singh’s case and Girish Arora’s case (supra), it has been held that in case the appointing agency did not fill in all 3 C.W.P. No. 108 of 2004 the posts that had been advertised and qualified candidates were available, good reasons for not doing so have to be made out. In this view of the matter, we are of the opinion that the question of the eligibility of the appellants ought to have been considered by the learned Single Judge and in case the appellants were found eligible, the question of their appointment ought to have been considered in the light of the aforesaid judgments. We accordingly allow the appeals and remit the case to the learned Single Judge for fresh decision.” I have heard learned counsel for the parties and have minutely gone through the original record produced before me. The first question which requires determination is as to whether three years diploma acquired by the petitioners could be considered equivalent to two years diploma as per the requirement of the advertisement. A perusal of the advertisement shows that equivalent qualification to two years diploma was also sufficient. In his letter dated 15.12.1999, the Director, Technical Education, Haryana, had apprised the Director, Secondary Education-respondent No. 2 that three years diploma is duly recognized by the All India Technical Education Council, New Delhi (for brevity, ‘the Council’). He had requested that all such persons who have three years diploma be considered for appointment against the posts of Art and Craft teacher (P-4). Another letter of the same date was sent by attaching copy of the syllabus. In the job opportunities it has been specifically 4 C.W.P. No. 108 of 2004 mentioned that the three years diploma holder has the job opportunity as an Art and Craft teacher in schools (P-5). Likewise, the Director, Secondary Education-respondent No. 2 sent a communication to the District Education Officer, Karnal, on 17.12.1999 by stating that the three years diploma is duly recognized by the Council and it is adequate qualification for appointment of ‘C & V Teachers’ (P-6). The State Government issued instructions on 2.11.1999 (R-1) to various directorates of Education Department including the Director, Secondary Education-respondent No. 2 conveying its decision, inter alia, that the qualification of all statutory institutes/universities recognized by the Council would also be recognized by the State of Haryana if the examination was to be conducted by approved University/Board. It is, thus, obvious that the Director, Technical Education Department, Haryana, has conducted the examination in respect of the petitioners and the State Board of Technical Education, Haryana has conferred three years diploma on the petitioners (P-1). Therefore, three years diploma held by the petitioners has to be regarded equivalent to two years diploma as per the advertisement. The argument of learned State counsel based on clarification dated 19.12.2003 (R-3/1), would not require any detailed consideration because firstly the clarification has been given by the Director, Secondary Education-respondent No. 2 to the Haryana Staff Selection Commission, which in turn goes against the instructions dated 2.11.1999 (R-1), issued by the Government. According to those instructions all qualifications conferred by the Board of 5 C.W.P. No. 108 of 2004 Technical Education, Haryana and recognized by the Council are to be recognized by the State of Haryana. Moreover, the clarification has been given on 19.12.2003 whereas the posts were advertised on 7.11.2003 and, therefore, it would not in any case adversely affect the claim of the petitioners because the advertisement specifically postulate that a candidate should have two years diploma in Art and Craft recognized by the Haryana Industrial Training Department or equivalent qualification recognized by the Education Department, Haryana. On the date of the advertisement, the instructions dated 2.11.1999 and recognition accorded to three years diploma in possession of the petitioners has been accorded. The same could not be withdrawn by clarification because it would amount to retrospective operation of a clarification changing the situation to the detriment of the petitioners. It is well settled that if a qualification is to be de-recognised then it could be done by a competent authority from a prospective effect. In that regard reliance may be placed on a Full Bench judgment of this Court in the case of Neelam Kumari v. State of Punjab, 1993 (1) PLR 117. Therefore, the argument is misconceived and is hereby rejected. In view of the above, the question with regard to eligibility of the petitioners is answered in their favour and the three years diploma posses by them is found to be equivalent to two years diploma. Therefore, the petitioners fulfill the necessary qualification and are eligible. The question then arises is whether there are vacant posts of Art and Craft teachers. Before the Letters Patent Bench it was 6 C.W.P. No. 108 of 2004 categorically stated that the posts have been left vacant and all the posts could not be fulfilled, which necessitated summoning of original record. A detailed statement of 664 posts of Art and Craft teachers advertised on 7.11.2003 has been placed before me. It is categorically highlighted that against 287 posts belonging to General Category only 256 candidates were selected and 31 posts of Art and Craft teachers remained vacant. The statement further shows that out of total posts of 664, candidates for only 425 posts were selected and that part of the statement belongs to various other categories like Schedule Castes, Backward Classes, Ex-servicemen and Sportsmen etc. A copy of the statement has been taken on record as Mark-‘A’. The record further shows that the last selected candidate of General Category has secured 52.53 marks and the last selected candidate of BC-A category has secured 40.81 marks, whereas the petitioner Monika d/o Shri Krishan Kumar, Roll No. 546, belonging to General Category (in C.W.P. No. 108 of 2004), has secured 42.04 marks. The details and marks obtained by other petitioners (in C.W.P. No. 3021 of 2004) are as under:- Sr. No . Petitioner/Father’s name Categor y Roll No. Marks Obtained 1. Anu Nagar d/o Shri Narinder Kumar Nagar General 541 46.23 2. Monika d/o Shri Gurdev Singh General 545 45.25 3. Manisha Rani d/o Shri Shyam Sunder General 543 41.45 4. Seema d/o Shri Sohanbir Singh BC-A 542 42.42 7 C.W.P. No. 108 of 2004 5. Babita d/o Shri Satish Dhawan General 544 44.58 A true copy of the statement giving the above mentioned details is taken on record as Mark-‘B’. It is, thus, obvious that the vacancies of the posts of Art and Craft teacher were available and the petitioners have not been appointed on account of non-availability of the eligible candidates, as per the stand taken by the Board in Mark-‘A’. However, the petitioners have been found to be eligible by this Court according to the findings recorded in the preceding paras. Therefore, I am of the considered view that the petitioners deserve to be appointed as Art and Craft teachers against 31 vacancies belonging to General Category which have remained unfilled as per record and petitioner Seema shall be appointed against 27 unfilled vacancies belonging to BC-A category as per record. As a sequel to the above discussion, these writ petitions succeeds. A direction is issued to the respondents to appoint the petitioners on the posts of Art and Craft teacher. The needful shall be done within a period of two months from the date of receipt of certified copy of this order. The writ petitions stand disposed of in the above terms. (M.M. KUMAR) May 6, 2008 JUDGE 8 C.W.P. No. 108 of 2004 Pkapoor FIT FOR INDEXING 9