IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T (1) SPL. APPL. WRIT No. 719 of 2000 SMT. SUMAN V/S STATE OF RAJASTHAN & ORS. (2) SPL. APPL. WRIT No. 1046 of 2000 STATE & ANR. V/S SMT. SUMAN & ORS. Date of Judgment : 14.5.2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. Mr.MS SINGHVI, Mr.HEMANT ARORA, for the appellant / petitioner Mr.TARUN JOSHI, Mr.SANDEEP BHANDAWAT, G.A., Mr.RAKESH ARORA, for the respondents BY THE COURT : (PER HONB'BLE GUPTA,J.) These two appeals arise out of the same judgment of the learned Single Judge dated 25.7.2000, rendered in S.B. Civil Writ Petition No.3240/1997. Learned Single Judge relying upon a Single Bench Judgment of this Court in Miss Puneet Parmar Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.5318/97) decided on 30.3.1999, and Division Bench Judgment in Renuka Makhiya Vs. State of Rajasthan (D.B. Civil Writ Petition No.4989/90) decided on 8.5.1991, found, that the petition is required to be dismissed. However it was ordered, that even if she was not entitled to the post of Lecturer, her services are required to be continued on the lower post of Technician, for which orders were directed to be passed. Then back wages were also ordered to be paid within a period of six months from the date of that order, and the selection of respondent No.4, being private respondent was upheld. Appeal No.719/2000, by the writ petitioner, seeks to challenge the selection of private respondent, and contends, that she was not eligible to be selected, with the result, that the appellant/writ petitioner having been placed at serial No.1 in the reserve list, was required to be appointed. Appeal No.1046/2000 has been filed by the State, seeking to challenge the order, directing payment of back wages for the interregnum period, and also seeks to challenge the direction, to allow the writ petitioner to work on the lower post of Technician. Before proceeding further, it may be observed, that the learned counsels for the parties inform, that during pendency of this appeal, fresh selection exercise had been undertaken, for recruitment to the post of Lecturer (Costume Designing and Dress Making), and in that process, the writ petitioner has been duly selected. In that view of the matter, the challenge to the impugned order by the State, with regard to the direction to appoint her as 2 Technician becomes infructuous. As a narration of fact, it may be noticed here, that in the writ petition, learned Single Judge, vide order dated 28.8.1997, had directed that services of the petitioner shall not be terminated for a period of 5 weeks, which order was subsequently extended from time to time, and did survive upto the date of disposal of the writ petition. In the sequence of narration of facts, it may also be observed, that it was during pendency of the writ petition, that the services of the petitioner were terminated vide order passed on 8.10.1999, in pursuance whereof, the next authority passed the order dated 15.10.1999, whereupon a contempt petition was filed, and this termination order was withdrawn vide order dated 15.5.2000. This narration shows, that right since her initial appointment on the post of Lecturer vide Annex.3 dated 5.2.1996, she is continuing to work on the said post of Lecturer, Costume Designing and Dress Making, till the date, as there is interim stay granted in this appeal as well. Coming to the controversy involved in the writ petition, the case of the writ petitioner is, that she possesses a degree of Graduation in Science with 56.61% marks, and has then obtained Diploma in Costume Design and Dress Making, obtained in the year 1993, by securing 74.60% marks, and was awarded a gold medal. With this qualification, she was selected on the post of Technician in Costume Design and Dress 3 Making, and vide order dated 8.6.1994, she was appointed as Technician in substantive capacity. While so working, the post of Lecturer in Costume Design and Dress Making came to be advertised, and the petitioner applied for the said post, and was given appointment vide order, dated 5.2.1996, Annex.3. However, this appointment was given on temporary basis for a period of 4 months, or till duly selected candidate from the Commission (Rajasthan Public Service Commission) are available, whichever is earlier. However, the petitioner continued on the said post, on account of non-availability of duly selected candidate. The case of the petitioner thereafter, is, that another advertisement did come to be issued on 20.1.1997, for recruitment on the post of Lecturer, Costume Design and Dress Making. This advertisement has been produced as Annex.5. The eligibility criteria prescribed therein was, that the candidate should possess a Second Class Degree in Costume Design and Dress Making from any University established by law in India, or a Second Class Graduation Degree in Arts, Science or Commerce, from any University established by law in India, with three years' Diploma in Costume Design and Dress Making, with Second Division, from the Board of Technical Education. According to the petitioner, she applied, and in the result, that was declared, she was placed at serial No.1 in the waiting list, while the respondent No.4, being the private respondent, did come to be selected and was placed at serial No.1 in the merit list. 4 According to the petitioner, the private respondent does not hold or possess the requisite qualification of, either Second Class Degree in Costume Design and Dress Making, or Second Class Graduation Degree in Arts, Science, or Commerce, as in the Graduation, she secured 47.5%, as such, she was not eligible, consequently, her selection is illegal, with the result, that if she is not selected, the petitioner finds place in the select list, and is entitled to be appointed. Few other grounds were also taken, to challenge the selection process, with which, we are not concerned here. Separate sets of replies had been filed by the respondents, one being by the State-respondents No.1 and 2, supporting the recruitment exercise. However regarding the aspect of eligibility of the private respondent it was submitted in para 5 of the reply, that she was selected on account of the fact, that she was Post Graduate in English Literature, with Second Division, and therefore, her having Third Division in Graduate, is of no avail to the petitioner. We may observe here that even according to the private respondent she is not Post Graduate in English Literature, but in History, be that as it may, it only shows as to with what sense of responsibility the reply has been prepared. Another set of reply was filed by the Commission, being respondent No.3, and the stand taken was, that the private respondent does not possess Graduation Degree in Arts with Second 5 Division. However, she possesses the Post Graduate Degree in History with Second Division, and since she possesses higher qualification with Second Division, she was held to be eligible by the Commission, and therefore, was called for interview. A stand was taken, that a person possessing Post Graduate Degree, holds a higher qualification than a Graduate with Second Division, as such she was found to be eligible, and was selected. Another set of reply was filed by the private respondent, and it was contended, that qualification prescribed is not the one as quoted by the petitioner, inasmuch as, under the Rules, qualification required is only “Second Class Degree” and not “Graduation Degree” as contended by the petitioner, and since the private respondent had obtained the Degree of M.A. with Second Class in History from the University, she was very much eligible, as she was already possessing the requisite Diploma of three years in Costume Design and Dress Making. Rejoinders have also been filed by the petitioner to the different replies filed by the different sets of respondents, reiterating the stand taken in the writ petition. Since the learned Single Judge has decided the matter on the basis of the judgment in Puneet Parmar's case, we may refer to the judgment of learned Single Judge dated 30.3.1999, rendered in Puneet Parmar's case. That was a case, where the writ 6 petitioner was placed at serial No.2 in the waiting list on the post of Lecturer, and the selection of the selected candidate, being respondent No.3 therein was challenged on the ground, that she is B.A. with Third Division, therefore, she could not be appointed as Lecturer, as she is not having Second Class Graduation Degree. In the reply, the stand taken was, that of course the respondent No.3 is having Graduate Degree in Third Division, but she is simultaneously possessing the Post Graduate Degree in Second Division, and therefore, she was found eligible, and selected. Learned Single Judge in that case, relying upon a Division Bench Judgment, in Renuka Makhiya's case (supra), which is reported in 1991(2) WLC Raj. 1, and did consider the precise question, about the eligibility criteria, and held, that since the private respondent therein is having Second Division higher qualification, she cannot be said to be ineligible. It was precisely held as under:- “If a candidate possesses graduation degree in 3rd division but also have post graduation degree in 2nd division, he or she is equally entitled to be considered for the post of Lecturer in Textile Designing.” With this that writ petition was dismissed. This judgment was upheld by the Division Bench also, in D.B. Special Appeal (Writ) No.467/99 decided on 12.2.2009. A computer downloaded print of this judgment was made available for our perusal, and we find, that by that judgment, the appeal has simply 7 been dismissed. All that has been held is, that there cannot be any dispute, that in absence of any specific Rule, the criteria for selection is to be decided by the Commission, considering the nature and requirement of the post in question. With that the Division Bench proceeded to consider, that the appellant having participated in the process of selection, cannot be allowed to challenge the criteria, subsequently. We rest ourselves contented, with only observing, that the Division Bench order affirming the order is not of much assistance on the legal interpretation aspect, as considered by the learned Single Judge. Learned counsel for the appellant relied upon judgment of Hon'ble the Supreme Court in P.M. Latha & Anr. Vs. State of Kerala & Ors., reported in (2003) 3 SCC 541, to contend, that mere possessing of higher qualification does not render the candidate eligible, if the candidate does not possess the prescribed qualification, as prescribed in the advertisement. That was a case, where the qualification prescribed for the post was, that the candidate should have passed in TTC (Trained Teacher Certificate), but instead of possessing this, the candidates holding B. Ed. Degree, were selected on the basis, that B. Ed. is higher qualification than TTC, and on that it was held, that in terms of the advertisement, B. Ed. Degree Holders are not eligible for selection. It was also held, that B. Ed. cannot be treated as higher qualification than TTC. Then considering about prescribing qualification, that being a matter of 8 recruitment policy, it was considered, that the candidates possessing B. Ed. qualification could not have been selected. We have heard learned counsel for the parties, and have gone through the various judgments cited, and referred to above, and the pleadings. So far as the qualification prescribed for the post of Lecturer in Costume Design and Dress Making is concerned, from a reading of the advertisement, Annex.5, this much is clear, that the qualification prescribed is, that the candidate should possess a degree in Textile Designing (Costume Design and Dress Making) with Second Division, or should possess degree in Arts, Science, or Commerce with Second Division from any University established by law. Obviously, the word “Graduate” is not mentioned in the advertisement, or the Rules, copy whereof has been produced as Annex.R/4/1. The question then arises is, as to what is the comprehension of the term “degree”, i.e. as to whether it would include a Post Graduate Degree also, or the word is confined only to the basic degree being granted by the University, being the Graduation. Submissions were made by learned counsel for the writ petitioner, by referring to other clauses of the Rules, prescribing qualification for other posts, where Post Graduate Qualification is prescribed, and tried to distinguish, that in cases, where any other higher degree was required to be the eligibility criteria, it has been so prescribed, but 9 in case of recruitment on the post of Lecturer, only Second Class Degree has been prescribed, which obviously means a Graduate Degree. On the other hand, learned counsel for the respondents, by referring to Webster’s Dictionary, and Oxford Dictionary, submitted that the expression “degree” is a very wide term, which comprehends and includes within its can, even Post Graduation Degree, and it cannot be confined to the Graduation Degree only. In our view, what is the scope and comprehension of the expression “Degree” is a detailed aspect, which cannot be expounded at this stage, in this matter, with the assistance rendered to us so far, and in view of the fact, that now since the writ petitioner has already been selected in the regular selection exercise, it is not very necessary to go into this aspect of the matter, in the present litigation. As noticed above, the writ petitioner is continuing on the post of Lecturer since the date of her initial appointment vide Annex.3, inasmuch as, there was stay against her termination, and when termination order was passed it was withdrawn. Then after disposal of the writ petition, there was stay by this Court, which is continuing till the date, and in the meantime, she has come to be selected. This not being the writ of quo-warranto, we don't feel inclined to examine the aspect of eligibility of the private respondent in this appeal, more so when, the only main 10 ground of the writ petition was, that the petitioner sought appointment on the post, by making private respondent to quit from the post, on the ground of ineligibility. In that view of the matter, the appeal of the writ petitioner is disposed of in the manner, that the controversy no more survives, on account of the writ petitioner having been appointed in a regular selection exercise, but then, at the same time, since, the petitioner has continuously been working since the date of Annex.3, and did and does possess the requisite qualification, her pay shall stand protected, by exercising powers under Rule 26 of the RSR. So far the appeal of the State is concerned. In view of the above discussions, when the petitioner has actually worked right since 1997, there is no justification for denying the emoluments to her. So far the prayer made for setting aside the direction to appoint the writ petitioner as Technician is concerned, that becomes infructuous. The appeal of the State is, therefore, dismissed. Both the appeals are decided as above. The parties are directed to bear their own costs of the litigation. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. 11 /tarun/ 12