1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Parmeshwar Patidar & ors. Versus State of Rajasthan & ors. S.B. Civil Writ Petition No. 1817/2007 and 75 other Bunch cases shown in Schedule-A annexed to this order. ... Date of Order: July 04, 2007 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr. P.R.Mehta | Mr.Manoj Bhandari | Mr.Ramesh Purohit | Mr.Rakesh Arora | Mr.Bharat Devasi | Mr.S.P.Sharma | Mr.I.R.Choudhary | Mr. Sanjay Mathur | Mr.B.N. Kalla | Mr.A.K. Choudhary | Mr. L.K. Purohit | Mr.Sudhir Sharma | Mr.C.S. Kotwani | Mr. Sunil Joshi | Mr. B.L. Swami | Mr. P.S. Chundawat | Mr. Shambhoo Singh | Mr. D.R. Vaishnav | Mr. Ramdev Potaliya | Mr. M.A. Siddiqui | 2 Mr. Kuldeep Mathur | Mr. Rajesh Choudhary | Mr. G.R. Punia | Mr. Y.P. Khileree | Mr. S.D. Goswami | Mr. Manish Dadhich | for the petitioners Mr. Parikshit Nayak | Mr. Vijay Purohit | Mr. V.R. Choudhary | Mr. B.R. Bera | Mr. Ranjeet Joshi | Mr.J.S.Bhaleria, | Mr. N.M. Lodha, Additional Advocate General for respondent- State. Mr. J.P. Joshi, for respondent R.P.S.C. BY THE COURT: REPORTABLE: The aforesaid writ petition and 75 other the bunch of writ petitions shown in Schedule-A annexed to this order, involve common questions of law and facts and, therefore, with the consent of learned counsel for the parties, they are being heard and decided together. In SBCWP Nos. 1817/2997, 1819/2007, 1820/2007, 1911/2007, 2114/2007, 2864/2007, 2388/2007, 1899/2007 and 2635/2007, the validity of proviso 2nd to rule 266 of the Rajasthan Panchayat Raj Rules, 1996 (for short, “the Rules of 1996” hereinafter) has been challenged and in the remaining writ petitions as shown in Schedule-A annexed to this order, the corrigendum Annx.2 dated 30-11-2006, to the extent of 3 imposing the condition to produce B.Ed., BSTC Degrees by the applicant/candidate on the date of declaration of the result of competitive examination for the post of Teacher Grade III in primary/upper primary schools, has been challenged. All the writ petitions are being decided by this common order taking the facts of SBCWP No.1817/2007 as the leading case. Respondent Rajasthan Public Service Commission (for short, “RPSC” hereinafter) issued an advertisement Annx.1 dated 30-10-2006 inviting applications from the eligible candidates for written examination for the post of Primary/Upper Primary School teachers Grade III. A competitive examination for the said posts for the year 2006 was scheduled to be held in the month of February, 2007. The last date for submission of the application forms for the said posts was 16-12-2006. The advertisement Annx.1 prescribed the educational qualification to the effect that a candidate must have a certificate of Senior Secondary School Examination or Intermediate or equivalent examination with Diploma or Certificate in Elementary Teachers Training of a duration of not less than two years or Bachelor of Elementary Education (B.E.D.) or Graduation with B.Ed. or equivalent thereto. A note was appended to the advertisement Annx.1 to the effect that the applicant should possess the requisite educational qualification by the last date of submission of the application forms, i.e. 16-12-2006. However, subsequent 4 thereto, the respondent RPSC issued a corrigendum No.2/2006- 2007 dated 30-11-2006 providing therein that in pursuance of the notification issued by the State Government dated 29-11- 2006, the candidates who are appearing or appeared in B.Ed., BSTC, D.S.E, B.Ed. (Special Education) will be eligible to apply for the competitive examination 2006 for the posts in question. In pursuance of this corrigendum the candidates who did not possess the requisite educational qualification by 16-12-2006 were also permitted to submit the application forms and their application forms were accepted. Proviso 2nd to rule 266 of the Rules of 1996 was incorporated, which provides that the person who has appeared in B.Ed./ BSTC examination shall be eligible to apply for the post of primary and upper primary school teacher, but he shall have to submit proof of having acquired the said educational qualification to the respondent RPSC before declaration of result of the said examination by the RPSC. However, the RPSC is going to declare the result of the said examination in which the petitioners appeared and as such, according to the learned counsel for the petitioners, the 2nd proviso to rule 266 of the Rules of 1996 is ultra vires as it deprives consideration of candidature of the petitioners for want of requisite educational qualification. Hence these writ petitions. A reply to the writ petition has been filed by the respondent-State as also by the respondent RPSC stating therein 5 that for appointment on the post of teacher Grade III, i.e. primary/upper primary school teacher, the qualification has been prescribed under rule 266 of the Rules of 1996, which reads as under:- “266 (3).- Primary and upper primary school teacher (100% by direct recruitment.- Senior Secondary under new (10+2) scheme of Higher Secondary under old scheme from Rajasthan Board of Secondary Education or equivalent and Secondary School certificate from Rajasthan Board of Secondary Education or equivalent with 5 subjects, 3 of them be mathematics, English and Hindi with BSTC/B.Ed. (ii)BSTC/B.Ed.] Provided that for appointment of widow and divorce woman on the post of teacher, required qualification of BSTC/B.Ed., shall be relaxed, if they are competent otherwise and they submit a bond to the effect that they will obtain the qualification of BSTC/B.Ed., within a period of three years. They shall be entitled to receive leave for study to get BSTC/B.Ed. qualification soon after their appointment. Provided further that the person who has appeared in the B.Ed/B.S.T.C. Examination shall be eligible to apply for the post of primary and upper primary school teacher but he shall have to submit proof of having acquired the said educational qualification to the Rajasthan Public Service Commission before the declaration of result of the said examination.” It has further been contended that in pursuance to the Notification dated 29-11-2006 issued by the State Government, a corrigendum dated 30-11-2006 was issued by 6 the respondent RPSC, which provides that a person who has appeared in B.Ed., BSTC examination shall be eligible to apply for the post of primary/upper primary school teacher, but he shall have to submit the proof of acquiring such qualification before declaration of the result of competitive examination by the RPSC and as such the candidates who have applied in pursuance of the corrigendum dated 30-11-2006 as also in pursuance of proviso 2nd to rule 266 of the Rules of 1996, were required to submit the proof of their qualifying the teachers' training like B.Ed., BSTC etc. which is the minimum requirement to be eligible for the post of primary/upper primary school teacher. The 2nd proviso to rule 266 of the Rules of 1996, in clear terms, provides that the person who has appeared or is appearing in B.Ed., BSTC etc. examination shall be eligible to apply and appear in the competitive examination for the post in question but he shall have to submit the proof of having acquired such educational qualification to the RPSC before declaration of the result of the competitive examination and this being a condition-precedent for consideration of candidature of the persons who applied and appeared in competitive examination in pursuance of the corrigendum as also in pursuance of the 2nd proviso to rule 266 of the Rules of 1996 and therefore, according to the learned Additional Advocate General, as the petitioners did not submit the proof of having passed the B.Ed., BSTC 7 examination etc., as such they are not eligible to be considered for appointment on the post in question. It has further been stated that though the petitioners were not eligible to apply for the posts in question as the advertisement Annx.1 dated 30-10- 2006 clearly provides the requisite educational qualification on the last date of submission of the application forms i.e. 16-12- 2006, but since the State Government issued the Notification dated 29-11-2006 and in pursuance thereto, the RPSC issued the corrigendum dated 30.11.2006 and thereafter the petitioners were permitted to apply and appear in the competitive examination held by the respondent RPSC, but in view of the corrigendum as also the proviso 2nd to rule 266 of the Rules of 1996, the petitioners were required to submit the proof of having acquired the B.Ed., BSTC certificate before declaration of the result of competitive examination by the RPSC. It has further been stated that the respondent RPSC has declared the result of the said competitive examination on 16-3-2007 and till declaration of the result, none of the petitioners submitted the proof of having acquired the said educational qualification of B.Ed, BSTC etc. and as such they are not entitled for any consideration in absence of the requisite qualification on the relevant date. It has further been stated that the result of the competitive examination has been declared and the merit of the selected candidates has been prepared. The respondent RPSC 8 has filed the writ to the various writ petitions taking the similar grounds raised by the respondent-State. Mr. Manoj Bhandari, learned counsel appearing for the petitioners in SBCWP No.1772/2007, contended that by permitting the petitioners knowing it well that on the last date of submission of the application forms for the post of primary/upper primary school teachers Grade III, the petitioners did not possess the requisite qualification as advertised vide Annx.1 dated 30-10-2006, which, in clear terms, provides that the candidate must possess the requisite educational qualification stated therein, which included the qualification of Diploma or Certificate in Elementary Teachers Training for a duration of not less than two years,or B.Ed. or Graduation with B.Ed.. or equivalent, yet the respondents allowed the petitioners to apply for and appear in the competitive examination and, thus, the petitioners have a legitimate expectation regarding consideration of their candidature, which has been denied by respondents for want of submitting the proof of having acquired the said qualification before declaration of the result of the competitive examination by the RPSC and, therefore, according to the learned counsel, the respondent RPSC should have waited for some more time so that the candidates who have been pursuing the study of the training course like BSTC/B.Ed. Can appear in examination of such degree courses and have the 9 ultimate result of the teachers' training course. Learned counsel has relied on the decisions of the Hon'ble Supreme Court in State of Punjab Vs. Nestle India Ltd. & Anr., (2004) 6 SCC 465; and Jai Narain Parasrampuria (Dead) & ors. Vs. Pushpa Devi Saraf & ors., (2006) 7 SCC 756. Mr. Rakesh Arora, learned counsel for the petitioners in SBCWP No.1869/2007, submits that at the time of calling of the application forms, the corrigendum has been issued by the respondent on 30-11-2006, which is a contingent and once the respondents have relaxed the condition of eligibility then it cannot make any order prejudice to the interest of the petitioners who appeared in the competitive examination in pursuance of the corrigendum dated 30-11-2006. He has relied on the decisions of the Hon'ble Supreme Court in Seema Kumari Sharma (Mrs.) Vs. State of Himachal Pradesh & Anr., (1998) 9 SCC 128; and Sri Sreeramppa Vs. The Karnataka Public Service Commission & ors., JT 1991 (5) SC 81. Mr. I.R. Choudhary, learned counsel appearing for the petitioners contended that the very purpose of the corrigendum Annx.2 is to have meritorious candidate and for that purpose, the petitioners have been permitted to apply for and appear in the competitive examination though they did not possess the requisite qualification as advertised vide Annx.1 dated 30-11-2006 and having allowed the petitioners to appear 10 in the examination, without waiting for the result of the training course pursued by the petitioners, now the respondent-State as also the RPSC cannot turn round and ask the candidates to submit the proof of their acquiring the educational qualification of the training course by a particular date knowing it well that the petitioners, who are pursuing the study in various training courses and even the examinations therefor has not been held, therefore, they are unable to submit proof of their having acquired the qualification of B.Ed./BSTC etc. Learned counsel has relied on a decision of this Court in Smt. Reeta Sharma Vs. University of Rajasthan & ors., 1987 RLW 757; and a decision of the Hon'ble Supreme Court in Sanatan Gauda Vs. Berhampur University & ors., AIR 1990 SC 1075, and contended that the equity lies in favour of the petitioners. Mr. S.P. Sharma, learned counsel appearing for the petitioners in SBCWP Nos.1878/2007 and 1879/2007 and Mr. P.R. Mehta, learned counsel appearing for the petitioners in SBCWP No.1887/2007 and similar other writ petitions, have challenged the validity of proviso 2nd to rule 266 of the Rules of 1996 and contended that the proviso which was inserted with effect from 1-7-2004 cannot have a retrospective effect. Mr. Bharat Devasi, learned counsel appearing for petitioners in SBCWP No.2635/2007 and similar writ petitions, contended that the proviso 2nd to rule 266 of the Rules of 1996 11 cannot be made retrospective as the application forms submitted by the petitioners were accepted by the respondent RPSC prior to insertion of proviso 2nd to rule 266 of the Rules of 1996 and, therefore, he seeks to declare this proviso as ultra vires. He further submits that the proviso 2nd to rule 266 of the Rules of 1996, to the extent it benefits the petitioners permitting to apply and appear in said examination, in absence of requisite qualification of Teacher's Training and the proviso thereto requiring the petitioners to submit the proof of having acquired the qualification of teachers training before the date of declaration of the result of competitive examination by the RPSC is a severable and, therefore, the proviso 2nd to rule 266 of the Rules of 1996, to the extent of requiring the petitioners to submit the proof of having acquired the qualification of teacher training may be separated and declared ultra vires. He has relied on the decisions of the Hon'ble Supreme Court in Chandra Prakash Madhavrao Dadwa & ors. Vs. Union of India & ors., AIR 1999 SC 59; and Shin Satellite Public Co. Ltd. Vs. Jain Studios Ltd., (2006) 2 SCC 628. It has further been contended that rule 296 of the Rules of 1996 provides relaxation clause and, therefore, the respondents may be directed to relax the condition provided under the 2nd proviso to rule 266 to the extent of requiring the candidates to submit the proof of their acquiring the requisite educational qualification of teachers 12 training. Mr.Ramesh Purohit and other learned counsel appearing for petitioners in various other writ petitions have adopted the submissions as made by the aforesaid learned counsel for the petitioners. Mr. N.M. Lodha, learned additional Advocate General appearing for the respondent-State submits that for appointment on the posts of teacher Grade III, the respondent RPSC issued the advertisement on 30-10-2006 vide Annx.1 and the last date for submission of the application forms was 16-12-2006. The advertisement Annx.1, in clear terms, provides the educational qualification which makes a candidate eligible to apply for the said post. Rule 266 of the Rules of 1996 provides the required educational qualification for the posts of teacher Grade III. However, there had been numerous representations from various aspiring candidates who did not possess the requisite qualification of B.Ed., BSTC etc. which makes the candidate eligible to apply for and appear in the competitive examination for appointment on the posts in question under rule 266 of the Rules of 1996 representing that they are pursuing the course of B.Ed., BSTC etc. and, therefore they may be permitted to appear in the competitive examination to be held so that before the result of the competitive examination is declared, they may submit the proof of their having acquired the qualification of 13 teachers training and, therefore, the State Government issued the Notification dated 29-11-2006 and in pursuance thereto, a corrigendum dated 30-11-2006 was issued by RPSC. Rule 266 of the Rules of 1996 came to be amended by inserting the proviso after existing clause (iii), which provides that a person who has appeared or is appearing in the B.Ed./BSTC/CSE/B.Ed. (Special Education) examination, shall be eligible to apply for the post of primary and upper primary school teacher (General Education/Special Education) but he shall have to submit proof of having acquired the said educational qualification to the RPSC before declaration of the result of the competitive examination. According to Mr. N.M. Lodha, the candidates who have submitted the application forms and appeared in the competitive examination for the said post, well knew it that they are required to submit the proof of their having acquired the said educational qualification of B.Ed., BSTC, DSE, B.Ed. (Special Education) to the respondent RPSC before declaration of the result of the competitive examination and knowing this fact well and with open eyes they applied for the said post and appeared in the competitive examination and, therefore, now they cannot be permitted to approbate and reprobate after having taken a chance and appearing in the competitive examination but failed to submit the proof of having acquired the requisite teachers training qualification. He further submits that the writ petitions 14 filed by some of the petitioners without challenging the validity of proviso 2nd to rule 266 of the Rules of 1996 otherwise also cannot be entertained as the relief prayed therein is against the statute i.e. rule 266 of the Rules of 1996. He has further submitted that various persons have filed the joint writ petitions without there having the same cause and, therefore, in view of the provisions of rule 375 (4) of the Rajasthan High Court Rules, 1952, the same are not maintainable. In this connection, learned Additional Advocate General has placed reliance on the decision in Chandmal Naurat Mal & ors. Vs. State of Rajasthan & ors., AIR 1968 Raj. 20. Learned Additional Advocate General further submits that had the Notification dated 29-11-2006 and Corrigendum issued by the RPSC dated 30-11-2006 and the amended proviso 2nd to rule 266 of the Rules of 1996 been not there, none of the petitioners would have been eligible even to apply for the post in question much less their appearing in the competitive examination and these are the Notification dated 29.11.2006, Corrigendum dated 30-11-2006 and the proviso 2nd to rule 266 of the Rules of 1996 which allowed the petitioners to apply for and appear in the competitive examination held for the aforesaid posts and, therefore, the petitioners are estopped by their conduct to challenge the very proviso after having availed the benefit thereof. He has relied on the decision of the Division 15 Bench of this Court in Emarata Ram Poniya & ors. Vs. State of Rajasthan, (2005) 3 RDD 19 (Raj.); Naresh Bhansali Vs. State of Rajasthan & ors., 2000 (4) WLC 590; and the decisions of the Hon'ble Supreme Court in K.H. Siraj Vs. High Court of Kerala & ors., 2006 AIR SCW 3136; and G.N. Nayak Vs. Goa University & ors., (2002) 2 SCC 712 and contended that the proviso 2nd to rule 266 of the Rules of 1996 makes it clear that the incumbents were allowed to appear in the examination for the said posts with a specific condition that if they acquire the required educational qualification as advertised vide advertisement Annx.1 dated 30-10-2006 and submit the proof thereto before declaration of the result of the competitive examination by the RPSC then their candidature will be considered and the petitioners knowing it well that they did not possess the requisite qualification of B.Ed., BSTC etc. , took the chance by applying for the said post and appeared in the competitive examination and having failed to submit the proof regarding acquiring the requisite qualification making them eligible for the said post under rule 266 of the Rules of 1996, now the petitioners cannot turn around and challenge the validity of the very rule. According to the learned Additional Advocate General, had the Notification dated 29-11-2006, corrigendum dated 30-11-2006 and the proviso 2nd to rule 266 of the Rules of 1996 been not on the statute book, none of the petitioners were even eligible to apply 16 for the post in question as none of them possessed the requisite qualification on the last date of submission of the application forms i.e. 16-12-2006 and, therefore, the petitioners having failed to fulfill the condition prescribed in the corrigendum and proviso 2nd to rule 266 of the Rules of 1996, are now estopped to challenge the very proviso after having taken the benefit thereof, under which they applied for and appeared in the competitive examination for the said post. He submits that the proviso 2nd to rule 266 cannot be said to be arbitrary or discriminatory and, therefore there is no ground to declare the same as ultra vires; though some of the petitioners have challenged the validity of the said proviso stating therein that it is ultra vires but there is no specific pleading in this regard as to how the said proviso is ultra vires. According to Mr. Lodha, the rule can be declared ultra vires only when it has been framed out-side the scope of the statute or against the parent Act or fundamental rights guaranteed under the Constitution of India, but no such foundation has been made in the writ petitions. He has relied on the decisions of the Hon'ble Supreme Court in Maharashtra State Board of Secondary & Higher Secondary Education & ors. Vs. Paritash Bhupesh Kumarsheth etc., AIR 1984 SC 1543; Union of India Vs. Elphinstone Spinning & Weaving Co.Ltd. & ors., AIR 2001 SC 724; and V.K. Sood Vs. Secretary, Civil Aviation & ors., AIR 1993 SC 2285. 17 Learned Additional Advocate General submits that normally a candidate applying for a post should have possessed the requisite qualification on the last date of submission of the application form and where there is no such provision then atleast on the cut off date or the last date of declaration of the result. He submits that so far as rule 296 of the Rules of 1996 providing relaxation is concerned, it cannot be claimed as a matter of right. He submits that the relaxation cannot be accorded in general or en mass and it can be provided in order to mitigate hardship in any particular case. He has relied on the decision of this Court in Renu Sharma & ors. Vs. State of Rajasthan & ors.; and 2002 (1) WLN 97 and submits that rule 296 of the Rules of 1996 was amended in the year 1999 and relaxation was made in relation to qualification for appointment on the post of teacher but that was struck down by a Division Bench of this Court in Renu Sharma & ors. case (supra) and, therefore, no such relaxation can be claimed by the petitioners as a matter of right and even rule 296, in clear terms, provides that such relaxation can be accorded considering the individual case in public interest and in order to mitigate the hardship in a particular case and, thus, the language of rule 296 of the Rules of 1996 makes it clear that it can be applied only in exceptional cases in a particular case and not in general or en mass. Learned Additional Government Advocate further 18 submits that none of the affected persons have been impleaded who were otherwise qualified and possess the requisite qualification as per the advertisement Annx.1 dated 30-10-2006 and for which a select merit list has been prepared and, therefore, the writ petitions are liable to be dismissed. He has relied on a decision of the Hon'ble Supreme Court in K.H.Siraj Vs. High Court of Kerala & ors. (supra). Learned Additional Advocate General further submits that the petitioners have no locus to file the writ petitions because had there been no amendment to rule 266 of the Rules of 1996 by inserting the 2nd proviso thereto, none of the petitioners would have been