1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.2290/2004. : : Rafiq Ahmed Ansari Vs. State of Rajsthan & Ors. : : Date of Order 23.9.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Rajvir Sharma for the petitioner. Ms.S.K.Kasana, Deputy Govt.Counsel for the State. This writ petition has been filed by the petitioner aggrieved by the denial of appointment to him by the respondents on the post of Teacher Grade-III (Urdu Language). The respondents vide advertisement dated 7.11.2000 advertised the posts of Urdu Teacher Grade-III. The petitioner applied for appointment of Urdu Teacher Grade-III in District Baran. Shri Rajvir Sharma, learned counsel for the petitioner has contended that the petitioner has passed Secondary School Examination and Senior Secondary Examination. He thereafter obtained the degree of Bachelor of Arts from Mahrishi Dayanand University, Ajmer with Urdu language as an optional subject. The petitioner then passed 2 B.Ed. examination from the same University again having Urdu language as an optional subject. Learned counsel submitted that the petitioner obtained a degree of Post Graduation i.e. M.A. in Urdu language in the year 1998. He has thereafter even passed the National Educational Test Eligibility certificate for Lectureship from University Grants Commission also in the subject of Urdu in the year 1998. While the petitioner was qualified for appointment as a Lecturer but the respondents have arbitrarily denied him appointment even on the post of Teacher Grade-III. Learned counsel relied on the judgment of Division Bench in the case of Khalid Ali Vs. State of Rajasthan & Anr. in DB Civil Writ Petition No.1011/1988 decided on 18.11.1988 and also a judgment of Single Bench in the case of Fakharuddin Ali Ahmed Vs. State of Rajasthan & Ors. in SB Civil Writ Petition No.334/2002 decided on 14.2.2002. Learned counsel for the petitioner has produced on record copy of the merit list in which the name of the petitioner has been included as Serial No.7 in the category of OBC Male with 50.76% marks. He has argued that in the OBC category one Sultana Parveen having 48.75% marks at Serial No.8 and Jakhir Hussain with 47.76% at Serial No.11 have been given appointment and the petitioner has been arbitrarily denied the appointment. The respondents have 3 also given appointment to one Umar Farooq having 46.57% marks, whose name appeared at Serial No.13 in the merit list. Ms.S.K.Kasana, learned Deputy Government Counsel, opposed the writ petition and submitted that the petitioner applied for appointment on the post of Teacher Grade-III on the basis of the qualification of Adib Mahir, which is not recognised as equivalent to the qualification prescribed by the government. He was although not eligible but as per the order passed by the Director, College Education dated 3.1.2004, he was provisionally considered for appointment. It was submitted that finally the decision was taken that the candidates having the qualification of Adib Mahir would not be treated eligible for appointment and, therefore, the petitioner was not granted such appointment. The respondents have all through maintained this stand in reply to the writ petition that appointment was not granted to the petitioner because he was claiming such appointment on the qualification of Adib Mahir, but have stated that one post was kept vacant because of the stay order passed by this Court. Learned counsel for the petitioner has rejoind and submitted that the respondents have unnecessarily created the confusion and that the petitioner did no claim 4 appointment on the strength of qualification of Adib Mahir. The petitioner is far more qualified than only Abib Mahir qualification, which is equivalent to just Secondary School Examination. The petitioner even though did not have Urdu in Secondary and Senior Secondary but he is having much higher qualification of B.A., B.Ed. and M.A. all in Urdu inasmuch as he has qualified the NET eligibility certificate of UGC, which makes him eligible for appointment on the post of Lecturer, but the respondents have arbitrarily denied him appointment on the post of Teacher Grade-III. I have given my thoughtful consideration to the arguments. The respondents in their reply have all through maintained that the petitioner could not be appointed because he was having the qualification of Adib Mahir which did not make him eligible for appointment on the post of Teacher Grade-III. The respondents in their reply have completely remained silent in so far as other qualifications of the petitioner as B.A. with Urdu, B.Ed. in Urdu and M.A. in Urdu, are concerned. Even if, therefore, one goes by the argument that the petitioner did not have Urdu as one of the subjects in Secondary and Senior Secondary examinations, the matter would be still squarely covered by division bench judgment of this Court in Khalid Ali, supra. The division 5 bench in the aforesaid case considered the provisions of Rajasthan Education Subordinate Rules, 1971 and held that a candidate having qualification of graduation in Urdu would be eligible for appointment on the post of Teacher Grade-III. This judgment was later followed by Single Bench's judgment of this Court in Fakharuddin (supra). Judgment of this Court in Khalid Ali (supra) was subsequently reiterated in Tayyab Hussain Vs. State of Rajasthan & Ors. : DB Civil Review Petition No.22/2002 decided on 29.7.2002. All the judgments were subsequently followed in the bunch of writ petitions of Coordinate Bunch of this Court in SBCWP No.790/2001, 4589/2000 and 1065/2001 decided on 26.4.2001. The Coordinate Bench of this Court in Ms.Nishant Bano Vs. State of Rajasthan & Ors. : 1997 WLC (UC) 269 again followed the law laid down therein and allowed four identical writ petitions. Based on all the judgments, this Court allowed yet another writ petition titled as Irshad Khan & Anr. Vs. State of Rajasthan & Ors.: SB Civil Writ Petition No.294/2001 vide judgment dated 9.7.2008. It is indeed paradoxical on the part of the respondents to resist the claim of the petitioner for appointment on the post of Teacher Grade-III when the petitioner is eligible for appointment on the post of Lecturer because the petitioner has passed the National Educational 6 Test Eligibility for Lectureship held by University Grants Commission. Action of the respondents in not granting appointment to the petitioner even though his name appeared at Serial No.7 in the merit list and at the same time appointing Sultana Parveen at Serial No.8, Jakhir Hussain at Serial No.11 and Umar Farooq at Serial No.13, all of OBC, being discriminatory is violative of Articles 14 & 16 of the Constitution of India and is declared arbitrary and illegal. In the result, this writ petition is allowed. The respondents are directed to appoint the petitioner on the post of Teacher Grade-III (Urdu) with effect from the date the candidate immediately below to him in the merit list namely; Sultana Parveen at Serial No.8 was appointed. The petitioner shall however be entitled to only notional benefits for the intervening period. Compliance of the judgment be made within three months from the date copy of the judgment is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.20.