1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T 1. D.B.CIVIL SPECIAL APPEAL(W) NO.288/2006 Dhan Raj Meena Vs. State of Raj. & Ors. 2. D.B.CIVIL SPECIAL APPEAL(W) NO.538/2008 Smt.Sarita Vs. State of Raj. & Anr. 3. D.B.CIVIL SPECIAL APPEAL(W) NO.251/2006 Sumita Vs. State of Raj. & Anr. 4. D.B.CIVIL SPECIAL APPEAL(W) NO.633/2006 Smt.Sunita Choudhary Vs. State of Raj. & Anr. 5. D.B.CIVIL SPECIAL APPEAL(W) NO.634/2006 Bhanwar Singh Vs. State of Raj.& Anr. 6. D.B.CIVIL SPECIAL APPEAL(W) NO.635/2006 Meena Chouhan Vs. State of Raj. & Ors. 7. D.B.CIVIL SPECIAL APPEAL(W) NO.636/2006 Vijay Laxmi Vs. State of Raj.& Anr. 8. D.B.CIVIL SPECIAL APPEAL(W) NO.637/2006 Ashok Kumar Meena Vs. State of Raj. & Ors. 9. D.B.CIVIL SPECIAL APPEAL(W) NO.638/2006 Kumari Ashish Kaur Vs. State of Raj.& Anr. 10. D.B.CIVIL SPECIAL APPEAL(W) NO.639/2006 Saroj Choudhary Vs. State of Raj.& Anr. 11. D.B.CIVIL SPECIAL APPEAL(W) NO.730/2007 Bahadur Singh Vs. State of Raj.& Anr. Date of Order : : 19th January, 2009 PRESENT Hon'ble the Chief Justice Mr.Narayan Roy Hon'ble Mr.Justice H.R.Panwar Mr.R.K.Soni ] Mr.I.R.Choudhary ] Mr.R.S.Choudhary ], for the appellants. Mr.R.L.Jangid, Addl.Advocate General for the State. Mr.Tarun Joshi, for the respondent No2, RPSC. BY THE COURT: (PER HON'BLE PANWAR, J.) Reportable The bunch of Special Appeals is directed against the order of learned Single Judge dated 16th February, 2006 passed in S.B.Civil Writ Petition Nos.4101/2005, 2235/2005, 2282/2005, 2276/2005, 2013/2005, 3400/2005, 2277/2005, 4100/2005, 2278/2005, 2275/2005 and 2181/2005, dismissing 2 the writ petitions filed by the appellant-writ petitioners. We have heard learned counsel for the parties. Carefully gone through the order impugned as also the material available on record. For convenience, the facts of D.B.Civil Special Appeal (Writ) No.288/2006;Dhan Raj Meena Vs. State of Raj. & Ors. are taken as a leading case. The appellant-writ petitioners, by the writ petitions aforesaid challenged the validity of sub-rule (3)of Rule 266 of the Rajasthan Panchayati Raj Rules, 1996 (for short “the Rules” hereinafter). The Rule 266 of the Rules reads as under:- “Rule 266. Academic qualifications.- A recruit must possess minimum qualification as under:- -1 L.D.C. (85% by direct recruitment and 15% by promotion (i) Senior Secondary under new (10+2) scheme or Higher Secondary under old scheme from Rajasthan Board of Secondary Education or equivalent. (ii) Typing speed of 20 and 25 words per minute in Hindi and English typing respectively. -2 V.L.W.-cum-Secretary (100% by direct recruitment) Graduate or qualification declared equivalent thereto by the Government.] -3 Primary School Teacher (100% by direct recruitment) (i) Senior Secondary (Academic) under new (10+2) scheme or 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 shall be Mathematics, English & Hindi. (ii) B.S.T.C. Course] -4 Driver (90% direct 10% by promotion) VIII class pass possessing Driving Licence and having 3 years experience of Driving light/heavy Motor Vehicle. -5 Class IV (100% direct) V Class pass. According to sub-rule (3) of Rule 266 of the Rules, the eligibility for the recruitment on the post of the Primary School Teacher has been prescribed which provides that a candidate must possess minimum qualification of Senior Secondary under new (10+2 Scheme) 3 or 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 five subjects, three of them shall be Mathematics, English and Hindi. Apart from the above a candidate must have passed BSTC Course. The other qualifications required are not relevant for the controversy raised in these appeals. Mainly, the appellants have assailed the validity of sub-rule (3) of Rule 266 of the Rules to the extent Secondary School Certificate from Rajasthan Board of Secondary Education or equivalent with five subjects, three of them shall be Mathematics, English and Hindi requiring a candidate to have passed these three subjects in the Secondary School from Rajasthan Board of Secondary Education or equivalent. The appellant Dhanraj of course had three subjects in Secondary School Examination, 1991 but did not pass the subject Mathematics, however, thereafter, passed the Senior Secondary School Examination in the year 1993 from C.B.S.E. and acquired the qualification of B.A.,B.Ed. The respondent No.2 Rajasthan Public Service Commission (for short “the RPSC” hereinafter) published an advertisement inviting the applications for Primary/Upper Primary School Teacher Examination, 2004 requiring a candidate to possess the qualification as provides under sub rule (3) of Rule of 266 of the Rules which provides the post of Primary School Teacher to be filled by 100% direct recruitment. Admittedly the writ petitioner Dhanraj Meena did not pass the subject Mathematics in Secondary Examination and therefore, was not eligible for consideration on the post of Primary/Upper Primary School Teacher, since he did not possess the Secondary School Certificate from Rajasthan Board of Secondary Education or equivalent having passed the three subjects, namely, Mathematics, English and Hindi. The question which came up 4 before the learned Single Judge in the aforesaid writ petitions was as to whether the respondent can insist on the candidate to be required to possess a Secondary School Certificate, whether from Rajasthan Board of Secondary Education or other equivalent or as to whether sub-rule (3) of Rule 266 of the Rules is constitutionally valid or not in requiring the candidate to have obtained qualification from Rajasthan Board of Secondary Education or equivalent with three subjects Mathematics, English and Hindi having been passed. All the writ petitioners in the aforesaid writ petitions do not possess the qualification of Rajasthan Board of Secondary School Certificate or equivalent with all the three subjects i.e. Mathematics, English and Hindi having been passed. In some of the cases, the candidates have two subjects, out of three aforesaid, or someone have one subject and therefore, on the strength of the certificate of the Secondary Education issued either by Rajasthan Board of Secondary Education or equivalent without having been passed all the three subjects aforesaid as to whether the candidates are eligible for the appointment on the post of primary/Upper primary School Teacher came to be considered by learned Single. It is contended by learned counsel for the appellants that when the vires of sub-rule (3) of Rule 266 of the rules has been challenged seeking to hold it unconstitutional then what is required to be examined by the Court is the provision which has to pass the dual test of reasonable differentia and nexus with the object sought to be achieved. According to learned counsel for the appellants, sub-rule (3) of Rule 266 of the rules does not have reasonable differentia between the candidates who possess the certificate of Secondary School having five subjects at least three of them Mathematics, English and Hindi having been passed and those candidates having the certificate of Secondary School but having not either the 5 three subjects Mathematics, English and Hindi or having two or one of them or having failed in one of the subject out of the three aforesaid. Learned counsel for the appellants have relied on a decision of Hon'ble Supreme Court in Harakchand Ratanchand Banthia and Others Vs. Union of India and Others, AIR 1970 SC 1453 and contended that insertion of sub-rule(3) of Rule 266 of the Rules does not have reasonable differentia between those who have passed in three subjects aforesaid at the level of Secondary School and those who had three subjects aforesaid but failed in either one or two of such subjects and on the strength of this, learned counsel for the appellants submits that sub- rule (3) of Rule 266 of the Rules is violative of Article 14 of the Constitution of India. Mr.R.L.Jangid, learned Additional Advocate General appearing for the respondent-State supported the order impugned contending that provision requiring a candidate for the post of Primary/Upper Primary School Teacher to have passed the three specified subjects, namely, Mathematics, English and Hindi is with the view that the Teachers for such Primary/Upper Primary School Teachers are required to impart the lessons and teach the students of the Primary and Upper Primary Classes providing lessons in these three aforesaid subjects which are essentially taught in the classes upto the Secondary Schools and therefore, the respondent-State is justified in providing sub-rule (3) of Rule 266 of the Rules as minimum qualification for appointment on the post of Primary/Upper Primary School Teacher. According to learned Additional Advocate General, this controversy came to be examined by a Division Bench of this Court in Kumari Sarla Nagar Vs. State of Rajasthan & Ors., 2006(3) WLC 553 (Raj) wherein providing such minimum qualification has been held to be valid. Learned Additional Advocate General also contended that the entire Rule 266 of the Rules has been held to be 6 valid by a Division Bench of this Court inclusive of sub- rule (3) in Richhpal Singh & 283 Ors. Vs. State of Rajasthan, 2005(1) WLC 548 (Raj.). Learned counsel for the respondent-RPSC submits that the respondent R.P.S.C. advertised the post in accordance with the sub-rule (3) of Rule 266 of the Rules, conducted the examination and prepared the select list strictly in accordance with the said provision and, therefore, justified in not selecting the appellant-writ petitioners. We have given our thoughtful consideration to the submission made by learned counsel for the parties. In the instant appeal, the appellant-writ petitioner Dhanraj Meena has annexed a mark-sheet Annexure-1 from All India Secondary School Examination, 1991 and Anneuxre-2 from the Central Board of Secondary Education showing the subjects English Core, Hindi Elective, History, Geography, Economics, working experience, Physics & Health Education, General Studies, however, has not placed on record the certificate of All India Secondary Examination held in 1991 but filed the mark-sheet Annexure-1 which clearly shows that he secured 29 marks out of 100 in subject Mathematics and as such has failed in the subject of Mathematics though passed in English and Hindi. Thus, it is an admitted case of the appellant Dhanraj Meena that he had one of the subject Mathematics in Secondary Examination, 1991 but did not pass and that is why he has not placed on record a certificate of Secondary School Examination. Thus, the appellant Dhanraj Meena did not fulfill the requisite qualification as prescribed under the provision of sub-rule (3) of Rule 266 of the Rules. Now the question which requires consideration is as to whether sub-rule (3) of Rule 266 of the Rules is Constitutionally valid or violative of Article 14 of the Constitution of India. The validity of Rule 266 of the 7 Rules came to be considered by the Division Bench of this Court in Richhpal Singh & Ors. Vs. State of Rajasthan (supra). In that case, the notification dated 14th July, 2003 by which Rule 266 of the Rules came to be amended by inserting sub-rule (3), validity of which came to be challenged in Richhpal Singh's case (supra) and the Division Bench of this Court held that the impugned amendment is neither inconsistent with any of the Constitutional or Statutory provisions nor unreasonable nor arbitrary and accordingly, the Division Bench upheld the Constitutional validity of the amended provisions of the Act of 1994 and the Rules of 1996. In the bunch of aforesaid appeals, all the appellant-writ petitioners applied for the post advertised i.e. the post of Primary and Upper Primary School Teacher, appeared and were unsuccessful and after having failed to qualify for the post advertised, they have challenged the Constitutional validity of sub-rule (3) of Rule 266 of the Rules. It appears that by order dated 4th September, 2008, counsel for the appellants required to show as to whether posts already notified have been filled up and also to examine the necessity to make the persons already appointed who are less meritorious than the persons already appointed, as party respondents. The appellants neither supplied the information to this extent that the posts notified have already been filled up nor as to whether the persons appointed by the respondents are less meritorious than the appellants are to be impleaded as party respondents. The question of engaging ill-equipped Teacher came up for consideration before the Hon'ble Supreme Court in State of Maharashtra Vs. Vikas Sahebrao Roundale & Ors., AIR 1992 SC 1926, the Hon'ble Supreme Court held that the teachers need not only the training at the inception, but 8 also periodical orientations in this behalf so that the children would reap the rich benefit thereof. The ill- equipped and ill-housed institutions and substandard staff therein are counter productive and detrimental to inculcate spirit of enquiry and excellence to the students. The disregard of statutory compliance would amount to let loose of innocence and unwary children. The teacher plays pivotal role in moulding the career, character and moral fibers and aptitude for educational excellence in impressive young children. The formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest technics to the students on secular, scientific and rational outlook. A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits. While considering the scope of examining the State Policy in Maharashtra State Board of Secondary and Higher Secondary Education & Ors. Vs. Paritosh Bhupesh Kurmarsheth, etc., AIR 1984 SC 1543, the Hon'ble Supreme Court held that it is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of a policy laid down by regulation- making body because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the State. The Hon'ble Supreme Court while considering the question of untrained teachers vis-a-vis the trained teachers in Ram Sukh and Others Vs. State of Rajasthan and Others 9 AIR 1990 SC 592, held that the contention, however, urged for the petitioners before us is that they should be absorbed in service and they should also be provided with facilities to undergo the prescribed training. We do think that we could accept the contention. We cannot, at any rate, direct the Government to put back the petitioners into service till they are trained. The Hon'ble Supreme Court further observed as under:- We are not less sympathetic to the petitioners who are out of job but we cannot forget the welfare of those who are not before the Court. They are the tiny tots who require proper handling by well trained teachers. The court had an occasion to observe about the need for proper training to teachers in the interests of students. In Andhra Kesari Education Society V. Director of School Education, [(1998) 4 JT 431 at 436: (AIR 1989 SC 183 at p. 188)] to which one of us was a party, this Court made a passing reference: “The teacher alone could bring out the skills and intellectual capabilities of students. He is the 'engine' of the educational system. He is a principal instrument in awakening the child to cultural values. He need to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motives into action the benefiter.” These observations are equally relevant to primary school teachers with whom we are concerned. The primary school teachers are of utmost importance in developing a child's personality in the formative years. It is not just enough to teach the child alphabets and figures, but much more is required to understand child psychology and aptitudes. They need a different approach altogether. Only trained teachers could lead them properly. The untrained teachers can never be proper substitute to trained teachers. We are, therefore, unable to give any relief to the petitioners.” While considering the academic matters, the Hon'ble Supreme Court in Dr. Dr.M.C.Gupta Vs. Dr.Arun Kumar Gupta and another, 1979(2) SCC 339 observed as under:- “When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist filed, probing teaching/ research experience in technical subjects, the Courts 10 should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be.” In Dr. Uma Kant Vs. Dr.Bhika Lal Jain and others, AIR 1991 SC 2272, their Lordships of the Supreme Court observed as under:- “It is well settled that in matters relating to educational institutions, if two interpretations are possible, the Courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities.” In the Chancellor and another Vs. Dr.Bijayananda Kar and others, 1994(1) SCC 169, their Lordships of Hon'ble Supreme Court in para 9 of the judgment observed as under:- “(9) This Court has repeatedly held that the decisions of the academic authorities should not ordinarily be interfered with by the courts. Whether a candidate fulfills the requisite qualifications or not is a matter which should be entirely left to be decided by the academic bodies and the concerned selection committees which invariably consist of experts on the subjects relevant to the selection.” The respondents having object in view that for imparting the lessons and teach the students of the Primary and Upper Primary Classes with these three subjects which are essentially taught in the classes upto the Secondary Schools and therefore, emphasised the need to require a candidate seeking appointment on the post of Upper Primary Teacher to have passed the three subjects aforesaid so that they can take up the lessons and teach the students in the aforesaid subjects and therefore, sub-rule (3) of Rule 266 of the Rules came to be inserted by a notification dated 14th July, 2003 amending the Rule 266 of the Rules of 1996. As has been noticed-above that the Constitutional validity of notification dated 14th July, 2003 inserting sub-rule(3) 11 of Rules 266 of the Rules has already been upheld by a Division Bench of this Court in Richhpal Singh & Ors. Vs. State of Rajasthan (supra) and the decision in Richhpal Singh's case has attained finality. In that view of the matter, we are of the opinion that adverting the same issue and arriving at a fresh finding is otherwise not called for. However, whenever the challenge to the Constitutional validity to the Rules is made, the approach of Court while examining such challenge is to start with presumption of constitutionality and the Court sustain its validity to the extent possible and strike the enactment so challenged, only when it is not possible to sustain for the reason that such an enactment on the Statute is arbitrary, irrational and has no nexus with the object sought to be achieved and in such challenge, burden is upon him who attacks it to show that there has been clear transgression of the constitutional principles. Reference may be made to the decision of Hon'ble Supreme Court in Charanjit Lal Choudhary Vs. Union of India, AIR 1951 SC 41; in Burrakur Coal Company Vs. Union of India, AIR 1961 SC 954 and in Union of India Vs. Elphinstone Spinning and Weaving Co.Ltd., AIR 2001 SC 724. This view has been reiterated by Hon'ble Supreme Court in catena of decisions. The similar or rather identical provisions are on Statute book for the appointment of Teacher under the Provisions of Rajasthan Educational Subordinate Service Rules, 1971 (for short “the Rules of 1971”) which provides a qualification for appointment on the post of Teacher that the candidate should possess the Senior Secondary Certificate of Board of Secondary Education recognised by the Government of Rajasthan and Secondary or equivalent examination recognised by Government of Rajasthan with five subject three of them should be Mathematics, English and Hindi with Certificate of Teachers Training recognised by the Government of Rajasthan. Thus, the sub-rule (3) of Rule 12 266 of the Rules is almost analogous to that of the qualification prescribed for the appointment of the Teacher under the Rules of 1971 and therefore, the candidate seeking appointment on the post of Primary and Upper Primary School Teacher under the Rules of 1996 cannot claim the immunity from passing the three subjects aforesaid i.e. Mathematic, English and Hindi. Viewed from above standpoint, we are of the view that the provision of sub- rule (3) of Rule 266 of the Rules is neither inconsistent with any of the Constitutional or statutory provision nor with the parent Act i.e. Panchayati Raj Act, 1994 and therefore, it cannot be said to be unreasonable, arbitrary, irrational or discriminatory. While interpreting the provisions of Rules of 1971 a Division Bench of this Court in State of Raj.& Anr. Vs. Mukesh Kumar Jhajharia & Anr., 2000(1) WLN 500 held that Senior Higher Secondary (Vocational) is not equivalent to Senior Higher Secondary (Academic), and the person possessing qualification of Senior Secondary (Vocational) is not eligible for appointment as Teacher Gr.III, and thus, the prescription of qualification, has been found to be valid and in view of above, we are of considered opinion that the test of reasonable differentia between the candidate possessing the certificate of Secondary School having five subjects out of which passed in three aforesaid subjects and those who either do not have aforesaid three subjects as have but did not pass all the three subjects or any one or two of them, has been satisfied. In the bunch of appeals, the appellants-writ petitioners, as has been noticed above, indisputably participated in the selection process and having become unsuccessful challenged the validity of the provision under which the selection process was held. In our view, the appellants are esttoped from challenging the validity of 13 the provision under which selection process was held in which they themselves participated in the selection. In Madan Lal & Ors. Vs. State of J & K & Ors, (1995)3 SCC 486, the Hon'ble Supreme Court held that it is now well settled that if a candidate takes a calculated chance and appears at the interview then only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukhla, 1986 (Supp) SCC 285, it has been clearly laid down by a Bench of three learned Judges of Hon'ble Supreme Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination, he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. A Division Bench of this Court in Emarata Ram Poniya & Ors. Vs. State of Raj., 2005(3) RDD (Raj)(DB) held that this it is now well settled that if a candidate takes a calculated chance and participates in the selection process, then only because the result of the selection is not palatable to him, he cannot turn around and subsequently contend that the process of selection was not proper. Moreso the select list had already been expired long back and even otherwise appellants cannot claim consideration for appointment on the post of Teacher dehors the rules. In this view of the matter, in our view, the learned Single Judge was justified in upholding the validity of sub-rule(3) of Rule 266 of