[1] SBCWP NO. 5951/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR COMMON ORDER S.B. CIVIL WRIT PETITION NO. 5951/2008 SMT. PRITI DIXIT Vs. STATE OF RAJASTHAN & ORS. Along with 1066 connected writ petitions (See separate Schedule-A) DATE OF ORDER: 07/01/2009. HON BLE MR JUSTICE K S RATHORE ' . . . Advocates for the petitioners: S/Shri R.P. Saini, Ashish Saxena, Anoop Agarwal, Abhishek Sharma, Amit Singh Sekhawat, Anil Upman, Akhil Simlote, Anand Sharma, Ashok Yadav, Ashwani Chobisa, Anoop Dhand, Anshuman Saxena, A.D. Atwal, Ajay Gupta, Ali Mohd Khan, Anil Sharma, Ashish Chouhan, Ashish Sharma, Ashok Joshi, Amit N. Mathur, B.M.Sharma, B.B.L.Sharma, Bhupendra Pareek, Banwari Lal Sharma, B.S.Choudhary, Bharat Singh, Bhaskar Dagar, Bipin Gupta, Brij Sharma, C.P. Sharma, C.L.Saini, D.V. Tholia, Dharmendra Jain, D.K.Garg, D.S.Dhariwal, D.P.Sharma, Devendra Bharadwaj, D.C.Gupta, Dinesh Yadav, Dayanand Yadav, D.K.Dixit, D.S.Choudhary, Ganesh Meena, G.S.Sekhawat, G.L.Sharma, Gajanand Yadav, Govind Sharma, H.R.Kumawat, Hanuman Choudhary, Hari Krishan Sharma, Harsh Saini, H.C.Saini, H.C.Ganeshiya, H.R.Kuldeep, Hridayesh Singh, Indresh Sharma, J.K.Singhi, Jitendra Pandey, Jitendra Kr. Sharma, J.K.Yogi, J.R.Choudhary, J.K.Gupta, Jitendra Singh, K.N.Sharma, Keshav Agarwal, Karan Pal Singh, K.R.Sharma, Krishnavtar Sharma, K.C.Sharma, Kamlesh Pareek, Khaleel Mehmood, Kaleem A. Khan, L.M.Bharadwaj, Laxman Meena, L.S.Sekhawat, Liyakat Ali, Mahendra Meena, M.K.Kaushik, Mahipal Kharra, Mukesh Kr. Goyal, M.P.Jadon, Mukesh Bijrania, Manish Gupta, Mahendra Shandilya, Manoj Sharma, M.C.Jain, M.S.Gurjar, Mohd. Akbar Khan, Smt. Manju Sharma, Dr. Mahesh Sharma, M.F.Baig, Mahesh Gupta, Navratan Singh, Neeraj Joshi, N.S.Chouhan, Neeraj Bhatt, N.S.Dhakad, Neeraj Tiwari, Nitin Jain, [2] SBCWP NO. 5951/2008 Ms. Neetu Bhansali, Omveer Singh Saini, Praveen Sharma, Praveen Jain, Prem K. Sharma, Pradeep Kalwania, Pushpendra Pal Singh, P.S. Arya, P.S.Sharma, Prakash Thakuriya, Prashant Kumar, Rajendra Soni, Rohitashwa Kajla, Ram Rakh Sharma, R.P.Vijay, Rajeev Sogarwal, Rajveer Sharma, Rakesh Paliwal, Rajesh Goshwami, Riysat Ali, Ravi Shankar Sharma, Dr. Rajkumar Sharma, Rajesh Chaturvedi, R.K.Gaur, Rajkumar Goyal, Rahul Kanwar, Rajesh Moondia, Rinesh Gupta, R.S.Mehta, Rajendra Sharma, Rajat Ranjan, R.A.Verma, R.D.Meena, R.N.Sharma, S.K.Singodia, Surndra Singh Sekhawat, Sitaram Samota, Sanjay Sharma, Shivcharan Gupta, Sandeep Bhagwati, Sudesh Bansal, Sanjeev Prakash Sharma, Sunil Kumar Jain, Sudarshan Ladda, Satish Khandal, S.K.Saxena, Sanjay Gangwar, S.R.Saini, Sandeep Saxena, Sanjay Mehla, Mrs. Sonia Shandilya, Sandeep Pathak, Saransh Saini, Shailesh Prakash Sharma, Mrs. Sangeeta Sharma, Sagir Ahmed Qureshi, Suresh Kumar Narayan, Shobhit Tiwari, Samay Singh, S.S.Ola, Sunil Kumar, S.B. Gupta, Suresh Pareek, Saiyad Manjoor Ali, Surendra Sharma, Suresh Kumar Narnolia, Tanveer Ahmed, Tarun Jain, Umesh Vyas, Umesh Kumar Sharma, Vijay Pathak, Vijay Poonia, Vikarant Gupta, Vinod Kumar Sharma, Vinod Pathak, Ved Prakash, V.D.Gathala, Virendra Dave, Vinod Singhal, V.K.Sharma, Vijay Yadav, Dr. Vikram Singh Nain, Vedpal Shashtri, Y.K.Sharma, Yogesh Singhal and Zakir Hussain. Advocates for the State. Mr. S.K. Gupta, Addl. Advocate General with Mr. G.D. Bansal, Addl. Govt. Counsel. **** REPORTABLE Since in all these writ petitions the selection process as well as non-consideration of the petitioners on the post of Prabodhak is under challenge, therefore, the same are being decided by this common judgment. [3] SBCWP NO. 5951/2008 2. The petitioner has applied for the post of Prabodhak pursuant to the advertisement dated 31.05.2008 issued by the respondents. As per the advertisement, the basic qualification required for recruitment on the post of Prabodhak is Senior Secondary and B.S.T.C. or B.Ed. or equivalent to it. Beside qualification, the candidate should have continuous 5 years teaching experience without any break from the recognised educational institute and the experience certificate should be countersigned by the concerned District Education Officer. 3. I have heard learned counsels appearing for the respective petitioners, learned AAG Mr. S.K. Gupta and carefully gone through the relevant provisions of law and the other material available on the record. 4. As per the provisions of the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 (for short 'the Rules of 2008), the term “teaching experience” has been defined in Rule 2(k) of the Rules of 2008, which reads as under:- “2. Definitions.- In these rules unless the context otherwise requires,- (a)_ _ _ _ _ _ _ _ _ _ (k) “Teaching Experience” for the purpose of direct recruitment [4] SBCWP NO. 5951/2008 includes the experience gained in supervisory capacity in any recognised educational institution of project; “Service” or “Experience” wherever prescribed in these rules as a condition for promotion from one Service to another or within the Service from one category to another or to senior posts, in the case of a person holding a lower post eligible for promotion to higher post shall include the period for which the person has continuously worked on such lower post after regular selection in accordance with rules promulgated. 5. In majority of the writ petitions, the candidature of the petitioners was not considered on account of lack of requisite teaching experience as required under Rule 2(k)of the Rules of 2008. 6. In the case of Smt. Vishnu Kanwar Vs. State of Raj. & Ors. (SBCWP No. 8796/2008), the petitioners who were serving as Para Teachers faced the process of selection for appointment as Prabodhak under the Rules of 2008 and their names figures in select list, however, appointments to them were withheld because of interruption in continuous service or because of lacking teaching experience due to leaves availed by them. In all the petitions, the case of the petitioners was that whatever interruption in service exists i.e. because of undergoing training required for Para Teachers or because of availing leave due to unavoidable [5] SBCWP NO. 5951/2008 circumstances. In some of the cases, the leave may not be because of unavoidable circumstances, but was for a quite short period and i.e. sanctioned one. 7. In the aforesaid case of Smt. Vishnu Kanwar (supra), the co-ordinate Bench of the Jodhpur High Court has considered the ratio decided in the case of Shankar Lal Vs. State of Rajasthan and others (SBCWP No. 6766/2008, decided on 15.10.2008), wherein this Court has considered the issue relating to the consideration of the period of training undertaken by the persons appointed as Para Teacher as part of teaching experience and observed as under:- “Under the Rules of 2008 the term “teaching experience” is defines as follows:- 2(k) “Teaching Experience” for the purpose of direct recruitment includes the experience gained in supervisory capacity in any recognised educational institution of project.” The term “service” or “experience” is also defined under the Rules of 2008 in following terms:- 2(1)“Service” or “Experience” wherever prescribed in these rules as a condition for promotion from one Service to another or within the Service from one category to another or to senior posts, in the case of a person holding a lower post eligible for promotion to higher post shall include the period for which the person has continuously worked on such lower post after regular [6] SBCWP NO. 5951/2008 selection in accordance with rules promulgated. Note: Absence during service e.g. Training, leave and deputation etc., which are treated as “duty” under the Rajasthan Service Rules, 1951 shall also be counted as service for computing experience or service required fro promotion;” Suffice it to mention here that the interpretation of term “experience” under Rule 2(1) relates to promotion from one service to another or within the service from one category to another or to Senior Posts in the case a person is holding lower post. For the purpose of promotion, the period of training is required to be taken into consideration as experience, however, the Rules are silent regarding consideration of training as experience for direct recruitment. The term “teaching experience” as interpreted under Rule 2(k), though not refers that what shall be the teaching experience, but that is quire broad. It refers inclusion of experience gained in supervisory capacity in any recognised education institution or project as teaching experience. Meaning thereby, the teaching experience includes the experience of teaching as well as the experience gained in supervisory capacity with a recognised institutions. A person undertaking training for holding a teaching post after selection to a post concerned then that certainly stands on a better pedestal for considering “teaching experience” than the experience gained in supervisory capacity. The period spent for training is already treated as part of experience under the Rules of 2008, for the purpose of promotion and, therefore, in totality of the facts and legal position as stated above, I do not find any just reason to deny the post selection training relating to a teaching post as a [7] SBCWP NO. 5951/2008 “teaching experience”. The petitioner in view of whatever said above is certainly having a “teaching experience” of more than five years on inclusion of the training relating to post of Para Teacher. He is, thus, entitled to be considered for appointment as Prabodhak.” 8. The co-ordinate Bench of the Jodhpur High Court in the aforesaid case of Smt. Vishnu Kanwar (supra), having considered the provisions of Rule 2 (k), the term “Teaching Experience” and Rule 2(1), the term “Service” or “Experience, of the Rules of 2008 and having gone through the judgment rendered in the case of Shankar Lal (supra), vide its judgment dated 21.11.2008 has held as under:- “In view of the law laid down by this Court in the case of Shankar Lal (supra), the period consumed in undergoing training or Para Teachers is required to be treated as part of teaching experience, therefore, the respondents must include the period consumed in undergoing training as teaching experience. Similarly, the leave availed because of unavoidable circumstances is also required to be taken into consideration as part of teaching experience and also that should not be treated as break in service as held by this Court in Beeram Ram Choudhary Vs. State of Rajasthan and others (SBCWP No. 6273/2008) decided on 15.10.2008, relevant portion of the judgment referred above reads as follows:- “The period of summer vacations cannot be treated as a break in service as during this period, the employee remains out of [8] SBCWP NO. 5951/2008 employment due to the circumstances beyond his control. As such, non- consideration of the candidature of the petitioner for the purpose of appointment as Prabodhak on the count that he is lacking experience is not just and proper.” As a matter of fact, the break in service is the period in which the relationship of master and servant does not survive due to some positive act, either by the employee or by the employer. The period of leave due to unavoidable circumstances or to say the circumstances beyond the control of the employee or the employer cannot be treated as break in service. Similarly if the leave is sanctioned one, then that too maintains the relationship of master and servant. The period of availing sanctioned leave, thus, cannot be excluded from the term of continuous service. In view of whatever said above, all these petitions for writ are allowed. The respondents are directed to consider the period consumed by the petitioner's in undergoing training necessary for appointment as Prabodhak, the period of leave sanctioned or the leave availed for the reasons beyond control as part of teaching experience acquired. The period aforesaid is also not require to be considered as break in service. As such, the respondents should act expeditiously to give effect to the select list relating to the petitioners and also relating to the persons similarly situated, as far as possible within a period of one and half month from today by giving appointment to them, if they are otherwise eligible. It shall be open for the respondents to demand original documents and other relevant facts from the petitioners to get satisfied about their claim for the period relating to teaching experience and leave in question.” [9] SBCWP NO. 5951/2008 9. In view of the above discussions, the petitioners who are appointed as Para Teacher are eligible for the post of Prabodhak pursuant to the advertisement dated 31.05.2008 under the Rules of 2008 considering the training as part of experience. 10. If there was break on account of medical leave/maternity leave which was duly sanctioned, will not dis-entitle from participating in the process of selection for the post of Prabodhak merely on the ground of break in experience due to medical leave and are eligible for appointment on the post of Prabodhak if they complete the requisite teaching experience including the break on account of medical leave/maternity leave as held by this Court in the case of Anil Upadhaya Vs. State & (2) Ors. (SBCWP No. 8809/2008), decided on 01.09.2008. 11. Similarly, period of summer vacation cannot be treated as a break in service as during this period the employee remains out of employment due to the circumstances beyond his control. As such, non- consideration of the candidature of the petitioner for the purpose of appointment as Prabodhak on the count that he is lacking experience is not just and proper and for the purpose of calculating the requisite experience, the period of summer vacation be counted in teaching experience. [10] SBCWP NO. 5951/2008 12. Similar controversy has already been resolved by the co-ordinate Bench of the Jodhpur High Court vide judgment dated 15.10.2008 rendered in the case of Beeram Ram Choudhary Vs. State & Ors. (SBCWP No. 6273/2008). 13. In some of the writ petitions, the petitioners are not having requisite experience ignoring the period of summer vacation and medical leave. As per the provisions of law, since they are not having required statutory experience i.e. of five years, therefore, such candidates are not entitled for appointment on the post of Prabodhak. 14. Similar controversy has already been decided by the co-ordinate Bench of the Jodhpur High Court vide judgment dated 04.08.2008 rendered in the case of Smt. Tripti Shrimali Vs. State & Others (SBCWP No. 3902/2008), wherein the co-ordinate Bench of this Court has observed as under:- “The candidature of the petitioner for the purpose of appointment to the post of Prabodhak has not been considered being lacking the required statutory experience i.e. of five years. Admittedly, as per the Certificate Annexure 1 dated 15.04.2006, the petitioner worked with St. Austin's Secondary School from 09.07.2001 to 10.03.2006 as a Teacher. The petitioner, therefore, does not have the required experience. [11] SBCWP NO. 5951/2008 It is stated by learned counsel for the petitioner that a relaxation could have been granted by the appointing authority as per Rule 40 of the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008. Whether such relaxation is desirable in the case of the petitioner is to be decided by the appointing authority as per the Rules and not by this Court. As such, the petition for writ is having no merit, same, therefore, is dismissed.” 15. In few of the writ petitions, the petitioners have prayed for relaxation in experience as per Rule 40 of the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008. Whether such relaxation is desirable in the case of the petitioners is to be decided by the appointing authority as per the Rules and not by this Court. 16. Rule 40 of the Rajasthan Panchayati Raj Prabhodhak Service Rules, 2008 provides power to relax rules, which reads as under:- “40. Power to relax rules:- In exceptional cases where the Appointing Authority is satisfied that operation of the rules relating to age or regarding requirement of experience for recruitment causes undue hardship in any particular case or where the Appointing Authority is of the opinion that it is necessary or expedient to relax any of the provisions of these rules with respect to age or experience of any person, it may with the concurrence of the Government, by order dispense with or relax the relevant provisions of these rules to such [12] SBCWP NO. 5951/2008 extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner, provided that such relaxation shall not be less favorable than the provisions already contained in these rules: Provided that relaxation in the prescribed period of service or experience under this rule shall only be granted to the extent of 1/3 period of service or experience prescribed for promotion to any post before holding the meeting of the Department Promotion Committee.” 17. In number of the writ petitions the grievance of the petitioners is that they have submitted their application form for the post of Prabodhak pursuant to the advertisement dated 31.05.2008, but the respondents are not considering their candidature only on the ground that the experience certificates submitted by the petitioners are not countersigned by the District Education Officer and the said experience cannot be treated as teaching experience as required under the advertisement. 18. The similar controversy, as involved in this writ petition, has already been decided by this Court vide judgment dated 12.09.2008 rendered in S.B. Civil Writ Petition No. 9112/2008- Bhoja Ram Vs. State of Rajasthan & Ors., along with 16 other [13] SBCWP NO. 5951/2008 writ petitions, wherein this Court has observed as under:- “28. Upon consideration of the submissions advanced on behalf of the petitioners as well as on behalf of respondent State and after carefully going through the judgments passed by the co-ordinate Bench of the Jodhpur High Court as also the provisions of the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008, since the project under which the petitioners are working, is not included in sub-Rule (v) of Rule 13 of the Rules of 2008, the petitioners cannot be given benefit under the aforesaid provisions and the relaxation can only be granted by the Appointing Authority as per Rule 40 of the Rules of 2008. Whether such relaxation is desirable in the case of the petitioners, is to be decided by the Appointing Authority as per the Rules and not by this Court. As such, all the writ petitions deserve to be dismissed. 29. In the result, all these 17 writ petitions fail being devoid of merit and the same are hereby dismissed.” 19. Rule 13(v) of the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 reads as under:- “13. Age:- A candidate for direct recruitment to a post enumerated in the Schedule must have attained the age of 23 years and must not have attained the age of 35 years on the first day of January following the last date fixed for receipt of applications: (i) _ _ _ _ - _ (v) that the person serving [14] SBCWP NO. 5951/2008 under the educational project in the State viz Rajiv Gandhi Pathshala/ Shiksha Karmi Board/ Lok Jumbish Pariyojana/ Sarva Shiksha Abhiyan/ District Primary Education Programme shall be deemed to be within the age limit, had they been within the age limit when they were initially engaged even though they may have crossed the age limit at the time of direct recruitment.” 20. Many of the writ petitions have been preferred by the petitioners on the ground they have gained the requisite experience but the experience certificate given by the school concerned has not been countersigned by the concerned District Education Officer and in absence of counter signature, their candidature has not been considered for appointment on the post of Prabodhak. 21. In this regard, this Court deem it proper to direct the respondents to verify the experience certificate submitted by the petitioners from the record of the concerned school and if it is found correct, then the same may be countersigned by the concerned District Education Officer. However, it is made clear that the experience certificate which have been issued by the recognised educational institution or project, can only be considered. 22. In few of the cases, the District Education Officer has countersigned the experience certificate but later on the same has been withdrawn. In such [15] SBCWP NO. 5951/2008 cases also, the respondents are directed to verify the experience of the particular petitioner from the record of the school and if it is found correct, then the same be considered for appointment on the post of Prabodhak even the counter signature has been withdrawn by the District Education Officer. 23. Few of the petitioners have applied for the post of Prabodhak having obtained the experience certificate outside the State and the same can only be considered after duly verification from the concerned school and the concerned District Education Officer of the particular State. It is for the respondents to verify the genuineness and correctness of the experience certificate submitted by the petitioners and it is obligatory on the part of the respondents to countersign experience certificate after verification. 24. In some of the writ petitions, the petitioners have challenged the condition of five years continuous teaching experience without any break, which is one of the eligibility conditions for the post of Prabodhak under the Rules of 2008. A co-ordinate Bench of this Court in the case of Raees Ahmed Qureshi Vs. State & (2) Ors. (SBCWP No. 8041/2008), vide judgment dated 03.09.2008, has observed that there cannot be any comparison of [16] SBCWP NO. 5951/2008 qualification having been prescribed by rule making authority, for the post of primary/upper primary school teacher or Prabodhak and if the Rule making authority considered to provide five years' continuous teaching experience for making appointment to the post of Prabodhak as condition of eligibility; it cannot be said to be violative of Article 14 of the Constitution of India. 25. In the case of Kanhaiya Lal Pareek Vs. State & Others (SBCWP No. 6947/2008), the case of the petitioner was that the candidature of the petitioner for the purpose of appointment as Prabodhak under the Rules of 2008 was rejected on the count that he is having Senior Secondary School Certificate (Vocational) and this Court in the case of Ramraj Tada Vs. State and others (SBCWP No. 4005/2008), vide judgment dated 08.08.2008, has held as under:- “In the facts of instant case, this Court is of the opinion that since NCTE alone holds competence and in absence of guidelines or directives from NCTE, decision impugned taken by respondents in denying consideration to such candidates holding Senior Secondary (Voc.) as ineligible in no manner can be said to be in consonance with existing Scheme of Rules, 1996 particularly in terms of amendment dt. 28/06/06 and such action of the respondent deserves to be set aside. [17] SBCWP NO. 5951/2008 Consequently, all the petitions succeed and are hereby allowed. The decision taken by respondents holding petitioners ineligible on the premise in their qualification of Senior Secondary (Vocational) without Bridge Course, is hereby quashed and set aside. Respondents are directed to consider petitioners who hold qualification of Senior Secondary (Vocational) as eligible for the post of Primary/ Upper Primary School Teachers and consider their candidatures for appointment based on their participation having taken place in pursuance of advertisement dated 30.10.2006 and if their names find place in order of merit in respective category, they may be considered and if found suitable, be appointed, however, they will be entitled for seniority, notional fixation etc., and all other service benefits but will not be entitled for salary for the intervening period during which they did not actually work.” 26. The co-ordinate Bench of this Court in the aforementioned case of Kanhaiya Lal Pareek (supra), having considered the judgment rendered in the case of Ramraj Tada (supra), has observed as under:- “In the instant matter also, the respondents are making appointment to the post of Prabodhak i.e. a post relating to teaching and while making appointments to the post aforesaid, the respondents are requires to adhere the norms prescribed by National Council of Teachers Education. In view of it, the judgment given in Ramraj Tada's case (supra) is having absolute application in present controversy also. Accordingly, this petition for writ is allowed. The respondents [18] SBCWP NO. 5951/2008 are directed to consider candidature of the petitioner for the purpose of appointment to the post of Prabodhak as per the provisions of Rajasthan Panchayati Raj Prabodhak Service Rules, 2008. If the petitioner stands in merit, appointment be accorded to him.” 27. Thus, in view of the ratio decided by this Court in the case of Ramraj Tada (supra), the respondents are required to consider the qualification of Senior Secondary (Vocational) as eligible for appointment on the post of