CWP NO. 17756 OF 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP NO. 17756 OF 2010 DECIDED ON- 11.03.2011 Somvir ……PETITIONER Versus State of Haryana and others ……RESPONDENTS Coram HON'BLE MR.JUSTICE MAHESH GROVER Present: Mr. R.K.Malik, Sr.Advocate with Mr. Kohal Sharma, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana. MAHESH GROVER, J(Oral) The petitioner applied for the post of Hindi Teacher in the category permissible to handicapped persons. Fifteen posts were reserved for such category, out of which five were meant for the persons who were blind or were having low vision. The petitioner was selected in this category and his name was recommended to the District Education Officer for appointment. The claim has been rejected on the ground that the petitioner does not fulfill the eligible conditions. The qualifications prescribed in the advertisement were as follows:- i) Matric from Haryana School Education Board or an equivalent qualification recognized by the Haryana School Education Board. ii)Prabhakar/BA (Hon's) in Hindi from a recognized University. iii)LTC/OT in Hindi conducted by the Haryana Education Department or an equivalent qualification recognized by the Haryana Education Department or B.A(Hon's) in Hindi with BT/ B.Ed with Hindi as a teaching subject from a recognized university. CWP NO. 17756 OF 2010 2 Note: In case the candidate of above qualifications are not available then B.A with Hindi as an elective subject with BT. B.Ed with Hindi teaching subject from a recognized University shall be considered. iv)Knowledge or Hindi/Sanskrit upto Matric Standard.” The petitioner possesses the following qualifications:- i) B.A with Hindi as a compulsory subject. ii)M.A Hindi iii)B. Ed with Teaching subject Hindi” It is thus, the contention of the learned counsel for the petitioner that he being M.A in Hindi, which is higher than Parbhakar / B.A Hon's in Hindi, ought to have been granted the appointment. Reliance has been placed on Division Bench judgment of this Court rendered in Civil Writ Petition No. 10926 of 2000 decided on 21.12.2007 wherein it was observed as follows:- “ Sanskrit teacher is supposed to impart education to the lower classes, which do not entail/involve any specialized training, which the petitioners do not have to their credit. It has also not been brought to our notice that a candidate with B.A (Honors in Sanskrit) acquires any specialized training, which is necessary to teach the lower classes in schools. In Appendix B to the rules, essential qualification for the post of Sanskrit teacher has been described, as mentioned in earlier paragraph of this order. Note appended to those qualifications clearly indicates that in case candidates with B.A with Honors in Sanskrit are not available, then the candidates having B.A qualification with Sanskrit as an elective subject and B. Ed shall be considered for the post in question. Above said note in the rules is an indicator that for the post of Sanskrit Teacher, acquisition of specialized training is not a qualification. Neither, the candidate having B.A with Honors in Sanskrit nor the candidate with M.A in Sanskrit is supposed to acquire any specialized training/knowledge to teach the students in CWP NO. 17756 OF 2010 3 the schools, in the subject of Sanskrit. Similar controversy came before a Division Bench of this Court in Bimla Devi v. State of Haryana and others, 1999(1) RSJ 263. In that case, selections were to be made for the posts of Hindi Teachers. Prescribed qualification for the post was Parbhakar with Honors in Hindi. The petitioners in that writ petition was possessing higher qualification of M.A in the subject of Hindi. She was not selected for the post. She filed the above mentioned writ petition and a Division Bench of this Court, observed thus:- 6. In our opinion, denial of appointment to the petitioner against the vacancy which has remained unfilled due to non joining of one of the selected candidates has resulted in violation of her fundamental right to equality in the matter of employment granted to her by Articles 14 and 16 of the Constitution of India and we agree with Shri Sangwan that the petitioner, who possesses qualifications higher than those notified in the advertisement, cannot be denied appointment on the ground that she has not passed Prabhakar (Honors in Hindi). In Seema Nagpal's case (supra), reference has been made to the order passed in Civil Writ Petition No. 18427 of 1994, Smt. Saroj Bala v. State of Haryana and others. In that case, this Court took cognizance of the fact that candidates possessing the qualification of B.A with Hindi have been treated as eligible for appointment as Hindi Teachers because the government has treated the said qualification to be equivalent to Prabhakar (Honors in Hindi and a number of candidates possessing the qualification of B.A with Hindi have, in fact, been appointed as Hindi Teachers. The learned Deputy Advocate General has not been able to controvert the fact that the candidates possessing the qualifications of B.A with Hindi and B. Ed with Hindi as teaching subject have been appointed on the posts of Hindi Teachers. Thus, the decision of the respondent no.2 not to appoint the petitioner as Hindi Teacher cannot be sustained. Same is the ratio of the Division Bench Judgment of this Court in Charan Singh and others v. State of Haryana and CWP NO. 17756 OF 2010 4 another, 2004(3) RSJ 611, wherein also it was held that decision of the Commission, not to entertain candidature of those, who possess higher qualification in the same line than the one prescribed for the post in question was arbitrary and legally unsustainable. The matter has now been set at rest by their Lordships of Hon'ble Supreme Court in Jyoti K.K & others v. Kerala Public Service Commission and others, JT 2002 (Suppl.1) SC 85. In that case, the Hon'ble Supreme Court, while dealing with a similar controversy, has observed thus:- “9 It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order to attract that part of the rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far. Under the relevant rules, for the post of assistant engineer, degree in electrical engineering of Kerala University or other relevant qualification recognized or equivalent thereto has been prescribed. For a higher post the qualification that has to be obtained, obviously gives an indication that such qualifications definitely higher qualification than what is prescribed for the lower post, namely the post of sub-engineer. In that view of the matter the qualification of degree in electrical engineering presuppose the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post. In the event the government is of the view that only diploma holders should have applied to post of sub- engineer but not all those who possess higher qualifications, either this rule should have excluded in respect of candidates who possess CWP NO. 17756 OF 2010 5 higher qualifications or the position should have been made clear that degree holders shall not be eligible to apply for such post. When that position is not clear but on the other hand rules do not disqualify per se the holders of higher qualifications in the same faculty, it becomes clear that the rule could be understood in an appropriate manner as stated above.” In the present case also, the petitioners possess the higher qualification in the same line of study/education. They are M.A in the subject of Sanskrit. Experts from the Universities have categorically stated vide certificates Annexures P/3 to P/5 that the syllabus of M.A Sanskrit is much higher in all respects in comparison to Shastri/B.A in Honors in Sanskrit. It is also not in dispute that all the petitioners are eligible for the post of Lecturer in school cadre to impart teaching to the higher classes in the schools. It is also not in dispute that the qualification of Shastri/B.A with Honors in Sanskrit does not entail any specialized practical training to teach the students in the concerned subject. The prayer has been opposed by the learned counsel for the respondents while placing reliance on another Division Bench judgment of this Court and stated that it is for the State as an employer to prescribe the qualifications and no other interpretation can be given to them. The Division Bench in the judgment reported as 2002(2) PLR page 636 titled Babita Rani v. State of Haryana and others observed as follows:- “ The second and third submissions raised on behalf of the petitioners can be discussed together. It is a conceded case that the petitioners do not possess the prescribed essential qualifications of subject combination at the graduation level. They wish to justify that they possess higher qualifications on the premises that they have studied one of the subjects at graduation level while in the other they have done post-graduation, though without studying the same at the graduation level. The stand of the petitioners is that they possess higher qualifications and keeping in view the principles enunciated in CWP NO. 17756 OF 2010 6 the case of Y.Srinivasa Rao v. J. Veeraiah and others, AIR 1993 Supreme Court 929 the petitioners should be deemed to be qualified and eligible for the posts in question. This argument again has no merit. The State in its wisdom has amended Rule 7 and the qualifications have also been amended making it mandatory that an applicant should have studied prescribed subject combination at the graduation level. In none of the writ petitions before us there is a challenge to the validity, constitutionality or otherwise of provisions of Rule 7. Once Rule 7 is taken to be a valid piece of legislation existing on the statute book, its strict adherence is the obligation of the State and its agencies. The State cannot alter the prescribed qualifications even by implication and particularly when there is no power of relaxation prescribed in the rules. The Government has issued advertisement strictly in consonance with Rule 7 and all applicants must satisfy these essential qualifications. Whether a given qualification is equivalent to or higher than the prescribed qualifications, that too on certain conjectures and surmises is not for the Courts to determine. It is for the specialized agencies to determine equivalence of qualification or such allied matters. This has been repeatedly held by the Hon'ble Apex Court and reference can be made to the case of Rajendra Prasad Mathur v. Karnataka University and another , AIR 1986 Supreme Court 1448.” I have considered the matter and I am of the opinion that the petitioner deserves the appointment. There is no doubt about the fact that the petitioner possesses higher qualification being M.A in Hindi whereas the required qualification was Prabhakar/B.A Hon's. There is also no doubt with the proposition that it is for the employer to prescribe the qualifications which cannot be substituted by placing any other interpretation thereon. But at the same time, it is imperative to see as to what is the requirements of the job and whether such a qualification which is pleaded to be higher than the one prescribed in any CWP NO. 17756 OF 2010 7 way would defeat the very purpose of the appointment or hold a person incompetent to deliver. The petitioner applied for the post of Hindi Teacher even though he is qualified for the post of a Hindi Lecturer which may ultimately be the next promotional post in the event of his getting appointment. For a teacher, the foremost qualification which would reflect upon his training and of his competence to handle that particular job would be a Bachelor of Education. It is thus, professional degree which imparts the regular and necessary training to an incumbent to enable him to become a teacher. The petitioner, undeniably possessed the degree of B.A with teaching subject of Hindi. This when coupled with his higher qualification, renders him suitable enough for the post in question. The Division Bench judgment upon which reliance has been placed by the learned counsel for the respondent is distinguishable as the controversy was being answered in view of the various combinations of subjects which were required as the qualification. As a general proposition of law, there can be no quarrel that it is for the employer to provide the essential qualifications but when the Court is confronted with the situation, to see if the denial of an employment, on the ground of a person not possessing the qualification is to be seen than the Court can certainly evaluate whether such employment, the denial of which has been questioned would be hampered or restricted by such variable of the qualification. To the mind of this Court, the petitioner was having a degree of M.A which would have only complemented his ability to teach Hindi as a teacher. The writ petition stands allowed. As a result thereof, the respondents shall offer appointment to the petitioner but he shall not be CWP NO. 17756 OF 2010 8 entitled to any peculiar benefits but shall be entitled to other benefits such as Seniority etc. and his appointment shall relate back to the date when his other batch mates were appointed. Let the needful be done within a period of one month from the date of receipt of copy of this order. 11.03.2011 ( MAHESH GROVER) mamta JUDGE