.-••^s-^ A^-""^.. ,^'y^e^ '^.^fc^y' b..' °-l^ -> 2- WKW9SQrssh ^- BEFORE THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CG) WRIT PETITIONt S l N0.52&\ / 2008 PETITIONER: Smt. Jyoti Pandey, Aged about - 25 years, W/o Shri Vijay Bahadur Pandey, Resident of Gurudwara Road, Supela Market, Bhilai Dsitrict-Durg(C. G.) VERSUS RESPONDENTS 1. State of Chhattisgarh through Secretary, Home Department,, D.K.S. Bhawan, Raipur ( C G ) 2. The Superintendent of Police, Jagdalpur, District - Baster (CG) 0 WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. Et' ap^ Q^-^-4 e. .,!/ /'. ®.^" sw -^ ^ fflGH COURT OF CHHATTISGARH : BILASPUR (^ PETITIONER RESPONDENTS WRITPETITION.No. 5621 of 2008 v Smt. Jyoti Pandey. Versus State ofChhattisgarh & Another. Writ Petition under Article 226ofthe Constitution oflndia Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri T.K. Tiwari, counsel for the petitioner. Shri N.N. Roy, Panel Lawyer for the State. ORDERfORAL) (Passed on 05th day ofFebmary, 2010) 1. Challenge in this petition is to the communication dated 10.09.2009 (Annexure P/6) whereunder the appointment ofthe petitioner to the post of Constable (G.D.) was declined on the ground that the petitioner has not obtamed class 10 examination certificate under (10+2) scheme or any equivalent examination certificate from the school/college situated at Madhya Pradesh/Chhattisgarh. 2. The indisputable facts, in brief, are that pursuant to the advertisement dated 11.02.2008 (Annexure P/l) the petitioner made an application for appomtment on the post of Constable (G.D.) on the basis of intermediate examination certificate, obtained from the Intermediate College, Sultapur, Uttar Pradesh. The candidature ofthe petitioner was rejected on the ground that she has obtained class 10 and intemiediate examination certificate from a state other than Chhattisgarh/Madhya Pradesh, and thus, she is not eligible for consideration under the advertisement as well as qualification prescribed in schedule II (Rule 8) of the Chhattisgarh Police Karyapalik -t- Bal, Arakshak (Bharti Tatha Sewa Ki Sharte) Niyam, 2007 (for short 'the Rules, 2007'). 3. Shri Tiwari, leamed counsel appearing for the petitioner, relies on a decision of a Division Bench of the High Court of Madhya Pradesh in Saurabh Singh v. State ofM.P. & Others , stating that the rules prescribmg •^ criteria for class 10 examination from the State ofMadhya Pradesh was held to be in contravention ofArticle 14 and 16 ofthe Constitution oflndia because the same denies equality of opportunity in the matters relatmg to public employment in the State of M.P. Shri Tiwari farther relies on a decision ofthe Supreme Court rendered in Olga Tellis & Others v. Bombay Municipal Corporation & Others . 4. On the other hand, Shri Roy, learned Panel Lawyer appearing for the State/respondents submits that the advertisement was issued in accordance with the Rules, 2007, framed under provisions of Article 309 of the Constitution of India, wherein under scheduled II (Rule 8) qualification of the Constable (G.D.) has been prescribed, which has been shown as minimum qualification in the advertisement also. The petitioner does not possess the requisite qualification as per the Rules, 2007. Thus, the petitioner was rightly not considered for selection and appointment thereafter. 5. I have heard leamed counsel appearing for the parties, perused the pleadings and documents appended thereto. 6. ln Sourabh Singh (supra), it appears that the qualification of 10 class examination under the 10+2 system or higher secondary school examination certificate from the State of Madhya Pradesh was prescribed pursuant to the circular dated 27.3.1998 ofthe State ofMadhya Pradesh. It '2009(2)MPHT240(DB) 2AIR1986SC180 6.-co is clear from perusal of the order that the aforestated qualification was not prescribed in the statutory mles framed under Article 309 of the Constitution of India. Secondly, there is no challenge to the rules which prescribes the above stated qualification. Thus, Sourabh Singh (supra) is distinguishable and not applicable to the facts ofthe case, on hand, as in the e< present case, the minunum qualification has been a part ofthe Rules, 2007 framed under Article 309 of the Constitution and not in any circular or notification. Further, since the question ofwaiveror estoppel on the ground that the petitioner has participated, thereafter, she cannot challenge the selection process is not in question, it is not necessary to go into the said issue. Reliance of Shri Tiwari on the decision of the Supreme Court rendered in Olga Tellis (supra) to submit that the principle ofwaiver or estoppel would not be applicable m case of breach of fundamental right. There is no dispute on the point. However, there is no challenge with regard to application ofwaiver or estoppel in the instant case from other side. It is tnte that ifthe provisions ofthe Act, statutory Rules or regulations are clear, unambiguous, causus omissus is impermissible. The minimum qualification prescribed in the present case in Schedule II (Rule 8) of the Rules, 2007 is plain, clear and unambiguous and does not admit of any other interpretation. Secondly, there is no challenge to the provisions ofthe Rules, 2007 as being unconstitutional. Thus, the decision ofthe respondent authorities not to take departure from the prescribed statutory mles is just, proper and warrants no interference. The Court has to examine the language, if it is plain and unambiguous, the explanation supplied by the Court may defeat the intention ofthe legislature, which has been expressed in the stahitory rules or regulations. &\ 9. The Supreme Court in Dr. Ganga Prasad Verma and Others v. State of Bihar and Others , observed that "where the language of the Act is clear and explicit, the Court miist give effect to it, whatever may be the consequences, for in that case the words ofthe stQtute speak the intention of the legislature. The interjection of the preposition 'or' at the underlined e^ place amounts to judicial legislation or supplying omission -which is impermissible in theprocess ofconstruction ofthe Regulation. 10. In State ofM.P. andAnother v. Dharam Bir , the Supreme Court observed as under: "33. The post in question is the post of Principal ofthe Industrial Training Institute. The Govemment has prescribed a Degree or Diploma.in Engineermg as the essential qualification for this post. No one who does not possess this qualification can be appointed on this post. The educational qualification has direct nexus with the nature of the post. The principal may also have an occasion to take classes and teach the students. A person who does not hold either a Degree or Diploma in Engineering cannot possibly teach the students of Industrial Training Institute the technicalities of the subject ofEngineering and its various branches." 11. The Supreme Court in Rajasthan Puhlic Service Commission vs. Kaila Kumar Paliwal andAnother , observed as under: "9. The services ofthe teachers wo'rking m the schools in the State of Rajasthan are govemed by the Rajasthan Educational Service Rules, 1970 and Rajasthan Education (Subordinate Services) Rules, 1971. Subordinate service consists ofthe posts as specified in the schedule appended thereto. A Teacher Grade-III as also a Laboratory Assistant come within the purview of the term 'subordinate services'. The minimum qualification for holding the post of a Teacher Grade-III is Matriculation with certificate of training, whereas that of Laboratory Assistant is Secondary with Science as an optional subject. 13. Posts of Head Master, it would bear repetition to state, are govemed by the 1970. Rules. Five years' "1995Supp(l)SCC192 4(1998)6SCC165 5(2007)10SCC260 o 12. / teaching experience is required for consideration for appointment to the post of Head Master which m tum is referable to teaching in certam capacity on certain categones or posts. 14. It is, therefore, difficult to accept that those who had been holding posts of Teacher Grade-III with the minimum educational qualification of Matriculation or Secondary Education with a certificate in ti'aining would be entitled to teaching in secondary classes or higher classes." In P.T. Rajan v. T.P.M. Sahir and Others , the Supreme Court observed as under: "48. Furthermore, even ifthe statute specifies a time for publication of the electoral roll, fhe same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is a well-settled principle of law that where a statutory fiinctionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and not mandatory. (See Shiveshwar Prasad Singh v. District Magistrate of Monghyr, Nomita Chowdhary v. State of W.B. and Garbari Union Coop. Agricultural Credit Society Ltd. v. Swapan Kumar Jana). 50. The Court cannot, it is trite, supply casus omissus. Reference in this regard may be made to Baliram Waman Hiray (Dr.) v. Justice B. Lentin wherein it was observed : (SCC p. 443, para 27) '27. Law must be definite, and certain. If any of the features of the law can usefully be regarded as normative, it is such basic postulates as the requirement of consistency in judicial decision- making. It is this requirement of consistency that gives to the law much of its rigour. At the same time, there is need for flexibility. Professor H.L.A. Hart regarded as one of the leading thmkers of our time observes in his influential book 'The Concept of Law', depictmg the difficult task of a Judge to strike a balance between certainty and flexibility: "Where there is obscurity in the language of a statute, it results in confasion and disorder. No doubt the courts so frame their judgments as to give the impression that their decisions are the necessary consequence of predetermined (2003) 8 SCC 49S ^ 13. 14. rules. In very simple cases it may be so; but in the vast majority of cases that trouble the courts, neither statute nor precedents in which flie rules are legitimately contained allow of only one result. In most important cases there is always a choice. The judge has to choose between altemative meanings to be given to the words of a statute or between rival interpretations of what a precedent amounts to. It is only the tradition th&t judges 'fmd' and do not 'make' law that conceals this, and presents their decisions as if they were deductions smoothly made from clear pre-existing mles without inbrusion ofthejudge's choice." Applying the well settled principles oflaw to the facts ofthe case on hand and for the reasons mentioned hereinabove, the writ petition deserves to be and is dismissed. Interim order granted earlier is vacated. There shall be no order asto costs. Satish K. Agnihptri Judge Amit