1. S.B. CIVIL WRIT PETITION NO.5902/2003 Ganpat Singh vs. State of Rajasthan & ors. 2. S.B. CIVIL WRIT PETITION NO.5748/2003 Raj Bahadur & Ors. vs. State of Rajasthan & ors. 3. S.B. CIVIL WRIT PETITION NO.5709/2003 Dharam Veer Swami & Ors. vs. State of Rajasthan & ors. 4. S.B. CIVIL WRIT PETITION NO.5673/2003 Emarata Ram Pooniya & Ors. vs. State of Rajasthan & ors. 5. S.B. CIVIL WRIT PETITION NO.5752/2003 Ghanshyam Jajpura vs. State of Rajasthan & ors. 6. S.B. CIVIL WRIT PETITION NO.5889/2003 Ghanshyam Khatri & Ors. vs. State of Rajasthan & ors. 7. S.B. CIVIL WRIT PETITION NO.5395/2003 Abdul Vaseeh & Ors. vs. State of Rajasthan & ors. 8. S.B. CIVIL WRIT PETITION NO.5768/2003 Subhash Vishnoi vs. State of Rajasthan & ors. 9. S.B. CIVIL WRIT PETITION NO.5780/2003 Parmeshwari Dhaka vs. State of Rajasthan & anr. Date of Order ::: 4.11.2004 HON'BLE MR. B. PRASAD, J. Mr. M.Mridul, Sr. Advocate a/w Miss Suchita ) Mr. P.P. Choudhary ) for the petitioner. Mr. Sanjay Mathur ) Mr. I.R. Choudhary ) Mr. Sachin Acharya ) Mr. N.M. Lodha, AAG ) for the respondents. Mr. M.R. Singhvi ) - - - - - Heard learned counsel for parties. In the case of S.B. Civil Writ Petition No.5709/2003 (Dharam Veer vs. State), learned counsel Mr.P.P. Choudhary submitted that the present writ petition comes in the backdrop of a selection process initiated by the State of Rajasthan for recruiting Teachers in schools. Various advertisements were issued and in those advertisements, a condition was incorporated stating, inter alia, that a person seeking employment should possess a degree in Discipline of Education in the nature of B.Ed. and such degree should be from an institution which is recognized by the National Council for Teacher Education (for short “NCTE”) established in terms of the Act known as National Council for Teachers Education Act, 1993 (for short “the Act of 1993”). The grievance of learned counsel for petitioner is that while selections were ongoing, such students who had obtained a degree of B.Ed. from an institution which was not recognised by NCTE, have been incorporated in the list of eligible candidates. They have obtained their degrees of B.Ed. from such institutions which are not recognised by the NCTE. The fact which has been brought on record suggested that this has been so done by the respondents because the operation of the Act of 1993 has been made operative for rest of India except State of Jammu & Kashmir. The respondent State has considered that Institutions which are situated in Jammu and Kashmir are not required to be recognised by NCTE, as the Act of 1993 has not been enforced there. The degrees obtained from institutions situated in Jammu & Kashmir them cannot be seen to be one which is eclipsed by the provisions of the Act of 1993. In that view of the matter, their degrees have been recognised by the State of Rajasthan to be one which can be considered valid for recruitment in the cadre of Teacher. Assailing the aforesaid stand of the State Government, learned counsel for petitioner has submitted that Section 17(4) of the Act of 1993 makes it clear that any person who has taken training or course from an institution which offers teacher education training after the Act of 1993 has come into operation after the Act of 1993, then the institution not being recognised by NCTE, the degree would not be valid for appointment in terms of the advertisement issued, may be that the degree is obtained from an institution of Jammu & Kashmir – a State which is an exempted State from the operation of the Act of 1993. Such degree holders may obtain employment elsewhere but for obtaining employment in terms of the advertisement, they were required to have a degree which was in conformity with the provisions of Section 17(4) of the Act of 1993. Any degree which is in contravention of the statutory provisions of the Act of 1993, cannot be made foundation of seeking employment in terms of the eligibility condition of the advertisement. For ready reference, the condition from advertisement is quoted herein below :- '' 01. वǐरं ठअÚ यापक, ǒव£ान : राजः थानिश¢ाअधीनः थसेवािनयम, 1971 मɅ िनधा[ǐरतऐǔÍ छकǒवषयɉ जÛ तुǒव£ान, वनः पितǒव£ानएवंरसायनǒव£ानमɅ से ǑकÛ हȣंदोऐǔÍ छकǒवषयɉ सǑहतमाÛ यताूाÜ तǒवँ वǒवƭालयसेः नातकअथवा समक¢ तथामाÛ यताूाÜ तǒवँ वǒवƭालयसेबी. एड. अथवासमक¢ जोएन. सी. टȣ. ई. सेअनुमोǑदत हो। '' 02. वǐरं ठअÚ यापक, गǔणत : राजः थानिश¢ाअधीनः थसेवािनयम, 1971 मɅ िनधा[ǐरतऐǔÍ छकǒवषयɉ भौितकǒव£ान, रसायनǒव£ानएवंगǔणतमɅ सेगǔणतएवं एकǒव£ानǒवषयसǑहतमाÛ यताूाÜ तǒवँ वǒवƭालयसेः नातकअथवासमक¢ तथा माÛ यताूाÜ तǒवँ वǒवƭालयसेबी. एड. अथवासमक¢ जोएन. सी. टȣ. ई. से अनुमोǑदत हो। '' 03 . वǐरं ठअÚ यापक, अंमेजी : राजः थानिश¢ाअधीनः थसेवािनयम, 1971 मɅ िनधा[ǐरतऐǔÍ छकǒवषयɉ अंमेजीऐǔÍ छकǒवषयसǑहत दोअÛ यऐǔÍ छकǒवषयकेसाथ माÛ यताूाÜ तǒवँ वǒवƭालयसेः नातकअथवासमक¢ तथामाÛ यताूाÜ त ǒवँ वǒवƭालयसेबी. एड. अथवासमक¢ जोएन. सी. टȣ. ई. सेअनुमोǑदतहो।" Elaborating his arguments, learned counsel has further stated that in the advertisement issued by the respondent, quoted herein-above a condition has been incorporated that the degree in education i.e. B.Ed. or any equivalent degree has to be from an institution which is recognised by NCTE. It leaves no scope for any maneuvering or concession or latitude by the department because they have incorporated this condition. Notwithstanding a condition of exception of the Act of 1993 for the State of Jammu & Kashmir, the Rajasthan State Government needed only those candidates who possessed a degree from an institution which is recognised by NCTE. Had there been any intention for deviation, the State Government, who has framed the policy, could have incorporated an exception in the notification produced as Annexure-P/1 and other similar notifications along with the writ petition. Since no exception has been carved out in the advertisement, it stands out boldly that it was not intended to incorporate those candidates who have obtained degrees from an institution which has not been recognised by NCTE. It is the prerogative of the employer to put conditions for employment. If this condition has been incorporated, then this condition should have been impugned by those candidates who want to seek employment on the basis of degree obtained from Jammu & Kashmir. Till date, there has been no challenge to this condition. Even after filing of the present writ petitions, no effort has been made to challenge the same. The condition in the notification will be a guiding factor notwithstanding any executive order of the State Government. This condition will operate as an embargo for the State to offer employment to such candidates who are in possession of a degree which is not in conformity with the norms of NCTE. Learned counsel for petitioner has further emphasised that the rigor of Section 17(4) has been recognised by the Supreme Court in the case of Union of India & Ors. vs. Shah Goverdhan L. Kabra Teachers College reported in JT 2002 (8) SC 269. It was held as under :- “9. In our considered opinion, the High Court committed gross error in construing the provisions of sub-section (4) of section 17 of the Act to mean that it is a legislation dealing with recruitment and conditions of services of pesons in the state service within the meaning of proviso to Article 309 of the Constitution. The High Court committed the aforesaid error by examining the provisions of sub-section (4) on its plain terms without trying to examine the true character of the enactment which has to be done by examining the enactment as a whole, its object and scope and effect of the provisions. Even, the High Court does not appear to have applied the doctrine of “pith and substance” and, thus, committed the error in interpreting the provisions of sub-section (4) of section 17 to mean to be a provisions dealing with conditions of service of an employee under the state government. 10. In the aforesaid premises, the conclusion of the High Court that section 17(4) is ultra-vires being beyond the competence of the union legislature cannot be sustained and the said conclusion is accordingly set aside. On examining the statute as a whole and on scrutiny of the object and scope of the statute, we have no manner of doubt that even sub-section (4) of section 17 is very much a law dealing with the coordination and determination of standards in institution for higher education coming within entry 66 of the list III of the seventh schedule and, thus, the union legislature did have the competence for enacting the said provision. 11. We are also of the further opinion that the de-recognition of the B.Ed. (Vacation course) cannot be nullified on the ground of failure to comply with the principle of natural justice. In the judgment under challenge, the High Court has held also that when the institution is imparting the B.Ed. (vacation course) then National Council for Teacher Education could not have refused to recognise the said course. We are unable to accept this reasoning inasmuch as the NCTE is an expert body created under the provisions of the National Council for Teacher Education Act, 1993 and the parliament has imposed upon such expert body the duty to maintain the standards of education particularly, in relation to the teachers education. Education is the backbone of every democracy and any deterioration in the standard of teaching in the B.Ed. Course would ultimately produce sub-standard prospective teachers who would be teaching in schools and colleges throughout the country and on whose efficiency the future of the country depends. Inasmuch as the teacher himself has received a sub-standard education it is difficult to expect from him a higher standard of teaching to the students of the schools or other institutions. It is from this perspective, the conclusion of an expert body should not be lightly tinkered with by court of law without giving due weightage to the conclusion arrived at by such expert body. From this standpoint, we are of the considered opinion that the High Court committed error in holding that there was no reasonable justification for not recognising the B.Ed. (vacation course) which was being imparted by the institution of Shah Goverdhan Lal Kabra Teachers College. In the aforesaid premises, we set aside the impugned judgment of the High Courtand allow this appeal.” Thus, the learned counsel emphasized that the rigor of Section 17(4) has been accepted by the Hon'ble Supreme Court. Any providance made in this Section has to be adhered to in strict senses. The State Government has not done so in preparing the list of selected candidates for the recruitment in question. Learned counsel has further argued that those graduate students who had studied for graduation in a particular discipline, have subsequently offered additional subject for graduation. They have qualified in additional subjects. Their marks of additional subjects is being given credit. This is not proper. Their graduation was complete one in the first instance. It is not open to offer any additional subject and graduation in those subjects cannot be considered for marks. Therefore, the stand which has taken by the department that they can treat additional subjects of such students, is wrong. Learned counsel has not supported this contention by any interpretation or rules. He only places reliance on a line in Schedule which reads as under :- “Graduate or equivalent examination with atleast two subjects taught in Schools with Degree or Diploma in Education or Montessory.” The term 'graduation' has not been qualified in the Rule. It would, therefore, be limited to initial graduation and would exclude any additional studies made by the student. Learned counsel has raised a ground which is not incorporated in the writ petition that those Science graduates, who have not done B.Ed. in Discipline of Science cannot be appointed as Teacher in that discipline. Their basic Discipline was Science, they have taken their B.Ed. degree in another discipline. Therefore, their appointment is against the very policy of appointment of teachers discipline- wise. Learned counsel has impugned the incorporation of such provisions in the selection, which entitled the authority, to incorporate and award, bonus marks. Earlier a provision was made by the State Government which was valid for 2001 only and, therefore, any subsequent allocation of marks in the name of bonus marks is dehors the providence by the Rules. Learned counsel has brought to my attention an order of the office of Director Education, Bikaner dated 17.8.2003 by virtue of which an authority subordinate to the State Government has made the provisions for bonus marks for the present selections. This is without any sanction of the State Government. Thus, it should be held to be inoperative. Mr.Mr. Mridul, Sr.Adv. A/w Miss Suchita arguing the case of Emarata Ram (S.B. Civil Writ Petition No.5673/2003) has emphasised that as per the providance in Rule 19 of the Rajasthan Educational Subordinate Service Rules, 1971 (referred to herein after as the 'Rules of 1971'), in the method of selection, an interview has been provided. Learned Sr.Advocate has expanded his argument by saying that the candidates who are facing selection come from different Universities, to name Jodhpur, Jammu & Kashmir, Bihar, Uttar Pradesh etc. Since they come from different streams, the marks obtained by them are founded on different perceptions. Therefore, the interview is a justifiable method as has been held by the Hon'ble Supreme Court in a judgment in the case of Dr. Dinesh Kumar and others vs. Motilal Nehru Medical College, Allahabad and others reported in AIR 1985 SC page 1059. Marks are the only basis of selection which the respondent department is following. It is violative of Article 14. Such marks have been obtained in different set of circumstances. The curriculum, language and method of education is different in every University. In this perspective, he emphasised that the providence of interview in Rule 19 is validly made in the Rules. The interview should have been made the basis for selection and not the marks obtained in the qualifying examinations. The entire selection process which has been advertised is contrary to the providence made in Rule 19 because after scrutiny of the applications, the candidates were required to appear in the interview. Since there are no guidelines available for the Committee constituted to interview the candidates, the whole selection is liable to fall in the category of a process where the Committee will act as Arbitrator. No guidance having been provided for interview, the Rules have been violated. No provision has been made for marks for interview in the advertisement. Thus, there is likelihood of such mistakes being committed which cannot be defined and qualified at this stage. For this, learned counsel has placed reliance on the judgments in the case of Srichandra Chinar Badaakhara Udasin Society & Ors. vs. State of Jammu & Kashmir & Ors reported in 1996(5) SCC page 732 (the case related to selection for the candidates to be admitted in MBBS course) and AIR 1997 SC page 303 (Chhatar Singh and others vs. State of Rajasthan and others) Learned counsel submits that not adhering to Rule 19 has become so disastrous that such elements have crept into the whole selection who have no academic or other qualification to back them. They will be qualified to be teachers only on the basis of such marks which has been obtained of a particular set of standard from the different university. Learned counsel further argued that as and when the provision was made by the respondents for considering marks of those candidates who have taken additional subjects, it became hazardous. In this prospect, marks in the original exams were considered to be valid except the lowest marks. Instead of lower marks in the subject, marks of additional subject were added while calculating merit. Therefore, the criterion adopted by the respondents is on the basis of a mistaken notion and when a student studies graduation, he is in a stream of discipline in a particular mode. When he opts for a particular subject, then he studies only 1 or 2 additional subjects. He is not burdened by other subjects. Mental ability of such students cannot be judged in the perspective of a candidate who is studying all the subjects. Thus, a discriminatory situation arises and for this learned counsel has placed reliance on an illustration in Rule 7(5) '' यǑदकोईअß यथȸ ऐसेǒवषयमɅ ः नातकउपािधकेसाथअितǐरÈ तǒवषयमɅ योÊ यता ूाÜ तकरताहैतोउसकेशैǔ¢कयोÊ यताकेअंकिनधा[रणकरनेमɅ उसअितǐरÈ तǒवषय केअंकमूलउपािधमɅ ूाÜ तांकɉ मɅ जोड़ेजावेतथामूलउपािधमɅ ǔजसǒवषयमɅ सबसे कमअंकहोउसकेǒवषयकेअंकघटाकरअंकɉ कािनधा[रणǑकयाजावे।'' Learned counsel further emphasised that the process of selection which has been propounded by the respondent is unfair and unreasonable wherein providence has been made for those students who have offered additional subjects for improvement of marks. Those who could not obtain respectable marks in first stint have been made to attend such respectability by the process of improvement of marks, while studying only the selected subjects and not undergoing the whole process of studies in graduation. They were in a secured situation with a graduation degree under their belt. They opted for those subjects which they preferred to study in isolation. They could attain sizeable marks. Such sizeable marks are added to compute their merit along with the students who have not done so. This kind of advantage being offered to few is unfair and unreasonble and is violative of Article 14 of the Constitution of India. The Rules only provide for minimum qualification. The Rules don't speak for studying in any additional subjects. As and when selection process provide such eligibility, then it is going beyond the Rules. According to learned counsel, in the Schedule, which is appended to the Rules of 1971, in Column no.7, there is a provision for selection committee. If the selections are to be made only in accordance with the advertisement issued, then this committee, which is provided for in column no.7 for teachers of Group F, becomes redundant. No part of the Rules which are legislative in character can be considered to be redundant but the process undertaken by the respondent department by far smacks of such arbitrariness wherein the committee as conceived in column no.7 of the Schedule appended to the Rules of 1971 is rendered worthless. Such selections which overlook a committee provided in the Schedule of the Rules cannot be considered to be legitimate selections and, therefore, the selections are bad in the eye of law. The process has been left to the calculation done in the mechanical manner at the clerical staff level. It is being considered to be the Linch Pin of the whole selection and the committee has been rendered to a place where it becomes totally worthless. In Rule 19, interview is provided and that interview is to be provided by that committee but in the present selections, the selection committee does not come into picture. Therefore, the selection which is being defended by the respondents is a selection which is not in accordance with the Rules and in a manner not recognised by the Rules of 1971. Thus, they are dehors the Rules and bad in law. The scheme of the Rules provides for minimum qualification i.e. Graduation and Graduation in Education but those who are offered B.Ed. degree are not offered at random. When a candidate gets admission in B.Ed. the offer is according to the subjects offered in graduation. Thus, there is a special category of Degree in Education according to the subjects obtained at the graduation level. This kind of creating different stream of teacher is in accordance with the policy of the State Government that the Teachers of different discipline are taken, therefore, the B.Ed. degree should be offered in a different discipline to the holder of particular subject at his graduation level. But when the concept of additional qualification is brought into picture, then the predominant consideration of selection and providance of particular stream becomes otios. The candidates who obtain graduation in Science and Degree in Education but having offered additional Arts subject is considered to be appointed as teacher in Arts subject. Thus, the whole foundation of edifice created for speciality and superspeciality is violative. Addressing his arguments in the writ petition of Abdul Waseeh and others, learned counsel submits that a distinction is made for awarding marks for experience. The marks for experience have only been qualified to those teachers who have taught at the aided institutions and not to those candidates who teach in private recognised institutions but unaided institutions. This ignores the chance of those students who have not been employed in the aided institutions because employment is not available in aided institutions because one sometimes had to feel contented with the employment in private recognised institutions. These private institutions are as good as the aided institutions because sometimes the private institutions are reckoned better than aided and government schools. Learned counsel has emphasised that in terms of the Rajasthan Non- Government Educational Institutions Act, 1989 (for short “the Act of 1989”), every recognised institution is required to maintain the standards as specified in the Act. These provisions require the private institution to maintain the same standards which a recognised institution is required to maintain. Sometimes in the zeal and enthusiasm, these private institutions maintain better standards because they are put to a stricter discipline. Therefore, the experience gained at private institutions being ignored by the department, is making equals as unequals and unequals as equals. The Hon'ble Supreme Court has depricated the same in the judgment rendered in the case of Dr. Mamta Vithal Shetty & Anr. vs. State of Maharastra & Ors. reported in (1995) 4 SCC 42. The only distinction between the aided institution and unaided recognised institution is that the unaided institution do not survive on the grant of the State Government and it has to generate its own fund, hence, the standards do not differ and the department also does not permit these institutions to maintain lower standards. Sometimes in the zeal and enthusiasm, these private institutions make more mark. The experience gained would be of more worth and value than the experience gained in aided and government schools and hence, the same could not be ignored. Learned counsel Mr. I.R. Choudhary arguing Writ Petition NO.5748/2003 submits that he represents Teacher Grade-III. The respondents are proceeding for recruitment 100% by way of direct recruitment in the cadre of Teacher Grade-III whereas the Rules provide appointment 50% by way of direct recruitment and 50% by way of promotion. In case recruitment is done 100% by way of direct recruitment, chances of Teacher Grade-III for promotion in Grade-II will be marred. Posts which fall in promotion quota cannot be filled up by direct recruitment. Learned counsel Mr. Sachin Acharya arguing Writ Petition Nos.5752/2003 & 5780/2003 submits that the petitioners to whom he represents are the teachers of Navodaya Vidhyalaya and exclusion of such teachers for award of bonus marks for experience gained there, is absolutely illegal because Navodaya Vidhayala is an organisation run by Union of India. The schools which are being run by the State Government impart the same kind of education which Navodaya Vidhyalaya is imparting. Not awarding of bonus marks for experience to these teachers of Navodaya Vidhyalaya is illegal and discriminatory. He further submits that the Rules under which these selections are being held, there is no provision for awarding bonus marks, therefore, in the advertisement, the bonus marks have been added over and above the Rules, which is not permissible. Something which is not conceived in the Rules, cannot be applied, for this, he relies on a judgment reported in 2000(1) W.L.C page 1 (Deepak Kumar Suthar vs. State and others). In Writ Petition no.5780/2003, the grievance of the petitioner is that she has participated in Science Exhibition and she is not awarded the marks for extra- curricular activities. Extracurricular activities have been defined in clause 3(xi) as dance, scouting, drama etc. in which science exhibition is not included, and therefore, the petitioner is being denied the bonus marks. Learned counsel Mr. B.S. Sandhu for Mr.Sanjay Mathur for petitioner submitted that the Rules don't provide for bonus