CWP No.13626 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13626 of 2010 DATE OF DECISION: August 18,2011 Arti .....Petitioner versus State of Punjab and others …..… Respondents CORAM:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.Kapil Kakkar, Advocate for the petitioner. Mr.L.S.Virk, DAG, Punjab. Mr.V.K.Sandhir, Advocate for respondent No.3. Mr.Alok Jain, Advocate for respondent No.4. .. DAYA CHAUDHARY,J. The order dated 26.7.2010, Annexure P.8, vide which the services of the petitioner have been terminated after a gap of more than four years is subject matter of challenge in the present petition. It has been mentioned in the impugned order that the petitioner is not possessing the qualification of ETT but possessing the qualification of B.A, B.Ed and is not eligible. 1 CWP No.13626 of 2010 An advertisement was issued on 4.3.2006 inviting applications to fill up the post of Primary School Teachers in the Rural Schools. The qualification prescribed for the said post was 10+2 with ETT. It was mentioned in the advertisement that in case of non availability of ETT candidates, the candidates with qualifications of B.A.,B.Ed would be considered and they were required to undergo orientation training of six months within a period of five years from the date of joining the service. The petitioner being eligible and possessing qualification of B.A., B.Ed applied for the post as per requirement of the advertisement and was selected as well as appointed by the respondents. On 17.11.2009, a show cause notice was issued to the petitioner to file reply which was duly replied by the petitioner wherein it was clearly mentioned that she had applied for the post of ETT teacher and all her documents were duly checked/verified by the respondent department and nothing was concealed by the petitioner. On the basis of her qualification, she was selected and subsequently appointed. Termination, after gap of four years is totally unjustified and unfair. After considering the reply of the petitioner, her services were terminated by the respondent department vide order dated 26.7.2010 on the ground that her reply had not been found satisfactory as she was not possessing ETT qualification. 2 CWP No.13626 of 2010 Learned counsel for the petitioner has challenged the termination of the petitioner on the ground that she was fulfilling the qualification, as mentioned in the advertisement and no concealment was there on her part and moreover, she appeared before the Selection Committee and to terminate her services after more than 4 years of service is unjust and illegal on the ground that she is not possessing qualification of ETT. It is also the argument of learned counsel for the petitioner that as per advertisement, the candidates having qualification of B.A., B.Ed can be considered in case of non availability of ETT candidates and there was no fault on the part of the candidate, in any manner, and equity also demands that on expiry of four years of period her services should not be terminated. Learned counsel for the petitioner also relies upon the judgments in Dr.M.S.Mudhol and another v. S.D.H.Jegkar and others Recent Services Judgments 1993(4) 68 and CWP No.253 of 2010 (Rajinder Kumar v. State of Punjab & Ors), decided on 3.3.2010. In response to the notice of motion, reply was filed on behalf of the respondents which is on record. Learned counsel for the State opposes the claim of the petitioner on the ground that the candidates having qualification of B.A., B.Ed were 3 CWP No.13626 of 2010 to be considered in case of non availability of the ETT candidates. There were other candidates also who were possessing qualification of B.A., B.Ed but were not considered and they were higher in merit because the candidates in the category of ETT were available. It has also been submitted by learned counsel for the respondent No.1 that the petitioner has no right to claim the post as she was not having the qualification of ETT. There were total 810 posts out of which 332 posts were to be filled up from the candidates of ETT and the remaining posts were filled up from the candidates of B.A., B.Ed. The last selected candidate obtained 137.93% marks, whereas, the petitioner had obtained only 102.25% marks as per merit list. The petitioner was not eligible for appointment as other candidates who were possessing more marks than the petitioner but they were not selected. Learned counsel for respondent No.1 further submits that as per requisite condition, B.A., B.Ed candidates who were selected are to undergo orientation training of six months within a period of 5 years from the date of joining their services and before their training, the period of appointment is considered as probation period and as such the qualification of the petitioner is incomplete as she has not undergone any such training so far. 4 CWP No.13626 of 2010 Heard the arguments of learned counsel for the parties and have also perused the impugned termination order as well as other documents. Admittedly, vide advertisement dated 4.3.2006, respondent department invited applications to fill up posts of Primary School Teachers in Rural School. The qualification prescribed for post of ETT teachers was 10+2 with ETT as well as B.A., B.Ed in case the candidates are not available having qualification of 10+2 with ETT. The candidates having qualification of B.A., B.Ed were to be considered in case of non availability of ETT candidates and they are to undergo orientation training of six months within a period of five years of joining the service. It is also admitted fact that the petitioner possessed the qualification of B.A., B.Ed and she applied for the said post by annexing certificate of matriculate, 10+2, B.A., B.Ed and in the application form, she did not tick mark in the column of ETT. There were 572 posts and only 332 ETT candidates were available and all were appointed. The petitioner appeared before the Selection Committee and was selected and given appointment by the respondent and posted at Government Primary School, Kabulpur, District Jalandhar. A show cause notice was issued to the petitioner and she was asked to produce ETT certificate but the same could not be given as she 5 CWP No.13626 of 2010 was selected and appointed being B.A., B.Ed candidate. Ultimately on 26.7.2010, the services of the petitioner were terminated on the ground that reply filed by the petitioner was not found satisfactory as she was not having ETT qualification from any Board/University. The argument of learned counsel for the petitioner is that the petitioner has served the department for more than four years and there was no concealment on the part of the petitioner as she has specifically mentioned with regard to her qualifications. There was no misrepresentation or concealment on her part. Learned counsel for respondent No.1 has raised objection that the other candidates were there who were higher in merit and the petitioner had no right to continue with the post as she was appointed without wrongly having any ETT certificate. In the case of Rajinder Kumar’s case (supra), the petitioner in that case was one of the selected candidates. The marks secured by the petitioner were lower than the candidates who were not given appointment but inspite of that the petitioner who was lower in merit was appointed. The stand of the respondent department was that in case the petitioners are allowed to be retained in service, there were about 25 other candidates who were higher in merit would claim their right for appointment. However, this Court observed that it 6 CWP No.13626 of 2010 would be extreme hardship to take off the very source of survival of the family of the petitioner and that too for no fault attributable to him and subsequently the petition was allowed and respondents were directed to allow to petitioner to continue against the available vacancies without affecting the seniority of the candidates who were higher in merit. It was also observed in the judgment that after the delay, the candidates who were higher in merit might not stake their claim for appointment because of the belated stage. In the present case also, since nothing was concealed by the petitioner with regard to her qualification and moreover there was provision for submitting application by the candidates having qualification of B.A., B.Ed. The petitioner applied and selected by the Selection Committee and continued on the post for the last more than four years. Even in the termination order this has simply been mentioned that the petitioner is not having ETT qualification and her services have been terminated, whereas, the candidates having qualification of B.A.,B.Ed were also entitled to submit their application but it was in case ETT candidates are not available. The petitioner is working for the last more than 4 years and to terminate the services after a period of four years, would cause not only hardship but injustice also in a situation when she is having four years 7 CWP No.13626 of 2010 experience on the said post and there was no complaint against her. As far as requirement of orientation training is concerned, the petitioner is ready to go for the said training in case the same is required by the department. Accordingly, keeping in view the peculiar facts and circumstances of the present case, the present petition is allowed and the impugned order of termination dated 26.7.2010, Annexure P.8, is set aside. However, it is made clear that the decision in the present case would not be treated as precedent for future and the other candidates who were higher in merit cannot claim as a matter of right only on the basis of this decision. The respondents are directed to allow the petitioner to join on the post already held by her before the passing of the termination order. It is also directed that the intervening period be not treated as gap. The petitioner is not entitled for the salary as she has not worked during that period. August 18, 2011 (DAYA CHAUDHARY) KD JUDGE 8