1 IN THE HIGH COURT OF JUDICTURE FOR RAJASTHAN AT JODHPUR. O R D E R Jaishree Bahin. Versus State of Rajasthan & ors. S.B. Civil Writ Petition No. 3318/2006 ... Date of Order: April 25, 2007 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr.R.S. Saluja, for the petitioner. Mr.BL. Tiwari, Deputy Government Advocate. BY THE COURT: By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the order Annx.10 dated 31-5-2006 and a direction to the respondents to allow the petitioner to continue in pursuing the Basic Short Training Certificate Course (for short, “BSTC” hereinafter). The facts and circumstances giving rise to the instant writ petition are that the petitioner pursued her study in the State of Gujarat being a resident of that State; however, on being married to one Avtar Singh of Bali, district Pali (Rajasthan), she settled here. Her husband Avtar Singh is said to have expired on 1-9-1998 and the death certificate Annx.1 has been placed on record. The petitioner acquired the 2 qualification of Secondary, Senior Secondary and then Graduation in Arts (B.A.). The respondents advertised the posts of Para Teachers in Gram Panchayat, Varkana School, Vingarla, for which the petitioner submitted her application form and in pursuance thereto, she was called for interview, faced the interview and selected and appointed as Para Teacher in Gram Panchayat, Varkana School, Vingarla. She joined the said assignment on 15-7-2002 vide Annx.5. At the time of appointing the petitioner on the post of Para Teacher, a condition was imposed in the appointment order to undergo BSTC Training like other similarly situated persons. The petitioner and other similarly situated persons submitted the application forms for admission to BSTC; a copy of the Circular calling the applications from the other candidates and the petitioner has been produced on record as Annx.6. Pursuant to the application submitted by the petitioner for the said course, she was admitted to the course vide order dated 16-7-2005 (Annx.7), wherein the name of the petitioner finds place at Serial No.59. The petitioner acquired the qualification of Secondary School Examination from Gujarat Secondary Education Board, Gandhinagar (Gujarat), wherein one of the required subjects, i.e. English, was not a subject because English is not a subject either compulsory or optional at the Secondary Level in the State of Gujarat. The petitioner was required to file an affidavit to the effect that she 3 would pursue the study and pass the subject English as an additional subject from Rajasthan. An affidavit dated 27-1-2006 filed by the petitioner has been placed on record. Thereafter the petitioner appeared in English subject from the National Institute of Open Schooling and passed the English subject vide Annx.9. The admission to BSTC granted to the petitioner came to be cancelled vide impugned order Annx.10 dated 31-5-2006 on the ground that she did not have the subject English in the Secondary School Examination. Hence this writ petition. A reply to the writ petition has been filed by the respondents stating therein that the requisite qualification and certain guidelines have been published in the Notification and the Advertisement for admission to BSTC making it clear that the applicant must have passed 10 + 2 Examination or equivalent and also Secondary Examination with five subjects, out of which three must be Hindi, English and Mathematics, or equivalent at the time of submitting the application. On these premises, it is submitted that the petitioner did not possess the requisite qualification at the time of submitting the application for BSTC as she did not have the English subject in her Secondary Examination and, therefore, she is not entitled to pursue the study of BSTC. I have heard learned counsel for the parties. Learned counsel for the petitioner submits that the 4 petitioner was granted admission, though provisionally, and in pursuance thereof, she pursued the study of BSTC. Thereafter, by the order dated 7-7-2006, this Court directed the respondents to permit the petitioner to appear in the Examination which was said to be commenced on 10-7-2006 and in compliance thereof, the petitioner was allowed to appear in the Examination. The duration of BSTC is two years. The petitioner has pursued the Course and appeared in the First Year Examination held on 10-7-2006 and thereafter continues to pursue the course of BSTC. Learned counsel further submits that the petitioner was given admission to the BSTC provisionally on the condition that she would pass the subject English, which the petitioner has already passed vide Annx.9. The petitioner had English as one of the subjects while passing Graduation Examination vide Annx.4. Annx.4 is the certificate issued by the Gujarat University and the marks mentioned in the Third B.A. (Special) Degree Examination issued on 19-7-1991 shows that out of 422 marks, pass marks are 151 whereas the petitioner secured 192 marks; and in the External Examination, out of 180 marks, 65 are the pass marks, whereas the petitioner secured 105 marks and, thus, the petitioner has passed the English subject. The qualification prescribed for admission to BSTC for female Para Teacher is that one should have passed the Secondary School Examination from the Board of Secondary 5 Education, Rajasthan having English, Mathematics and Hindi as compulsory subjects and Senior Secondary 10 + 2 or equivalent qualification with minimum 45% marks and if a candidate has passed the said examination from an institution other than the Board of Secondary Education, Rajasthan, then the said qualification should be equivalent to that of the Board of Secondary Education, Rajasthan and the English, Mathematics and Hindi should be as the compulsory subjects and the Senior Secondary Examination 10+2 having 45% marks. In the instant case, the qualification acquired by the petitioner is B.A., thus, she is a Graduate. She has passed the Secondary School Examination with the subjects Hindi and Mathematics from the State of Gujarat but was not having any subject like English. She passed the subject of English vide Annx.9. Learned counsel for the petitioner has relied on the decisions of this Court in Miss Parul Agarwal & ors. Vs. University of Rajasthan & ors., 2002(1) WLN 571; Ashok Kumar Sharma Vs. University of Jodhpur, 2002 (2) Western Law Cases (Raj.) 775; Smt. Reeta Sharma Vs. University of Rajasthan, RLR 1987 (II) 832; and Miss Nishat Bano & 3 ors. Vs. State of Rajasthan & ors., 1997 Western Law Cases (Raj.) UC 269. Learned counsel for the petitioner further submits that since the petitioner has been admitted to BSTC, she pursued the said course, appeared in the First Year Examination of BSTC and continued to pursue the study and the academic 6 session is likely to come to an end by July of this year, therefore, the equity also lies in favour of the petitioner. Learned Deputy Government Advocate appearing for the respondents submits that a candidate should have the requisite qualification on the date of submission of the application form, which the petitioner did not possess. He has relied on two decisions of the Hon'ble Supreme Court in Dolly Chhanda Vs. Chairman, JEE & ors., (2005) 9 SCC 779; and State of Rajasthan & Anr. Vs. Kulwant Kaur, 2006 (6) RDD 165 (SC). I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties. In Miss Parul Agarwal & ors. Vs. University of Rajasthan & ors. (supra), this Court held that having examined the instant matters from all the angles, no other option is left with me except to follow the ratio indicated by the Hon'ble Supreme Court in Shri Krishan Vs. Karukshetra University (AIR 1976 SC 376) and to hold that after allowing the petitioners to appear in the MBA Part-I examination, the University authorities had acquiesced in the infirmities which the admission forms contained and now on the basis of subsequent report of Prof. Surana Committee or by force of the University Ordinance, the University has no power to withdraw the candidature of the petitioners. The act of the University in cancelling the admission 7 of the petitioners is arbitrary and violative of Article 14 of the Constitution of India. In Shri Krishan Vs. Karukshetra University (supra), Three Judge Bench of the Hon'ble Supreme Court propounded that once the candidate is allowed to take the examination rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear. If the University acquiesced in the infirmities which the admission form contained and allowed the candidate to appear in the examination then by force of the University Statute, the University had no power to withdraw the candidature of the candidate. In Ashok Kumar Sharma Vs. University of Jodhpur (supra), the petitioner therein before submitting the application for M.Com. (Final) Examination knew that he has failed for M.Com. (Previous), still it was the duty of the University authorities to scrutinise his application. There was definitely a serious lapse on the part of the University Authorities. The respondent University had failed to establish any fraud played by the petitioner therein. Further, irreversible situation had arisen inasmuch as the petitioner has passed the M.Com. (Final) 8 Examination. He will have to again appear in the M.Com. (Previous) Examination after number of years. In those set of circumstances, the relief prayed for was allowed and the Division Bench of this Court observed as under:- “It is no doubt that a Judge has to do justice according to law but he is expected to shape his judgment taking note of common man's sense of justice and not merely be a slave of logic and the letter of law. Equity moulds the law to bring in conformity with justice while good conscience puts reasons on the path of justice. Equity has, according to Maine, a kind of 'supplementary or residuary jurisdiction' without which law would have been fatally stunted. The petitioner has left the studies long back, he must be in service now. Thus, lapse of time, the fact that the situation has become irreversible and the fact that respondent authorities were also responsible for creating such a situation and the fact that it is not wise to allow to go wait the valuable years which he invested in pursuing the studies and passed the examination are mitigating circumstances, which courts of justice have always considered and must consider to grant relief.” In Smt. Reeta Sharma Vs. University of Rajasthan (supra), a Division Bench of this Court held as under:- “Under O. 329-1-50 of the University of Rajasthan Ordinances, a whole time paid in service teacher who has obtained his Bachelor's Degree in Arts/ Commerce/ Science (including Agriculture of the Unviersity or of any other University recognised for the purpose by the Syndicate) with any of the two subjects mentioned hereunder and possesses a minimum of three years experience of teaching in a recognised school (Primary/ Secondary/ Higher Secondary) and has thereafter completed a training for 14 months through Summer School-cum- Correspondence Course may be admitted to the examination for the degree of Bachelor of Education. Therefore, before a candidate can be admitted to the 9 examination for the degree of Bachelor of Education, he must be a whole time paid in service teacher of a recognised school which the petitoiner was not in between 25th July, 1984 to November 2, 1984. Not only a candidate must be a whole time paid in service whenever he or she makes applications for appearing in the examination but also till the examination. The petitioner, as earlier stated, was allowed to fill up the form to appear in the examination, she had earlier too been provisionally admitted in the correspondence course, she studied throughout the session and was also allowed to appear in the examination and all that remains is that the result was/is not declared. Though the practice of the petitioner, first go in the Civil Court get injunction order through the court to appear in the examination papers then to withdraw the suit and lastly to come to this Court is deprecated but, taking into considerations the facts of the present case, that the petitioner was provisionally admitted in the correspondence course for B.Ed., and was allowed to fill in form to appear in the examination, she appeared in the examination; we are of the opinion that the equities are now in her favour and her results, for 1984-85 must be declared. Thus, taking a sympathetic view in the matter, we hereby partly allow this writ petition and direct the University of Rajasthan to declare the results of the petitioner for B.Ed. Correspondence Course for academic session 1984-85 immediately but in no case later than one month.” In Miss Nishat Bano & 3 ors. Vs. State of Rajasthan & ors. (supra), the question involved in those writ petitions was whether the petitioners therein were/are eligible to get appointment as Urdu Teacher in Grade III. The minimum qualification for the post of teacher Grade II (Urdu) as per the Rules was “Secondary or equivalent examinationn recognised by the Government of Rajasthan with certificate of Teachers 10 Training recognised by the Government of Rajasthan. The plea of the respondents was that in the advertisement, the qualification prescribed for Urdu Teacher Grade III was Secondary or Higher Secondary with Urdu as optional subject and as such the petitioners were not entitled to get appointment. Considering this issue, this Court held as under:- “It is not in dispute that all the petitioners have passed their Secondary School Examination with Urdu as third language and subsequent to that they have also passed B.A., with Urdu as optional subject. The respondent could not convince this Court as to how the petitioners were not eligible either as per qualification required as per the rules or as per the advertisement for appointment as Urdu teacher in Grade III. The decision in Khalid Ali Vs. State of Rajaasthan & Anr. (D.B. Civil Writ Petition No. 1011/1988) applies with all corners on the present petitions. Otherwise also, the petitioners could not have been denied appointment as Urdu teacher in Grade III when they had passed their Secondary School Examination with Urdu as third language and B.A. examination with Urdu as optional subject. Even it is taken that Urdu was not their optional subject as it was third language subject in Secondary School Examination, they were having better educational qualification in Urdu than the required one. Consequently, I am unable to subscribe to the contentions of Mr. Saxena that none of the petitioner was/is eligible for appointment as Urdu teacher in Grade III.” Now coming up to the decisions relied on by the learned Deputy Government Advocate, in Dolly Chhanda Vs. Chairman, JEE & ors. (supra), the Hon'ble Supreme Court held that the general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification 11 on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e., in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement to benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature. In State of Rajasathan & Anr. Vs. Kulwant Kaur (supra), the respondent therein did not possess the requisite qualification. Only because the order of termination of service of respondent was directed to be stayed and in obedience of the interim orders passed by the High Court, she was allowed to continue in service. The Hon'ble Apex Court held that the same cannot lead to the conclusion that she had been validly holding the post or the order of termination was bad in law. It was not disputed that the teachers were required to possess a Short 12 Training Certificate. As the respondent did not possess such essential qualification, she has no legal right to continue in service. The orders of termination passed, both in 1987 and 1994, which were the subject matter of the Writ Petition No. 1383/87 (being against the order dated 11-5-1987) and Writ Petition No. 2973/94 (being against the order dated 31-5-1994) cannot, thus, be held to be bad in law. In the instant case, what respondents came with the case is that the petitioner did not possess the English subject in her Secondary School Examination. Knowing it well that the petitioner did not possess the subject English in her Secondary School Examination, she was given appointment by obtaining an affidavit from her that she would appear and pass the English subject. In pursuance thereof, she undertook the study and passed English subject vide Annx.4. She also pursued the study of BSTC course for two years which is going to last in the month of July this year. She appeared in BSTC First Year examination. In the circumstances, therefore, it cannot be said that it was the only and only fault of the petitioner in securing admission to BSTC without possessing the requisite qualification but it was the respondents also who provided provisional admission to her in the BSTC knowing it well that she did not possess the subject English, which was not a subject in Secondary Level in the State of Gujarat where she pursued her study and passed the said 13 examination; however, subsequently the petitioner passed the examination in English subject vide Annx.4. Apart from this, the petitioner passed the subject English in Graduation level vide Annx.9, which is a qualification higher than the requisite qualification. In the circumstances, therefore, in my view, in the peculiar facts and circumstances of the case, it would not be proper at such a juncture, when the petitioner has already pursued her study of BSTC for two years and the course is almost complete and going to end by July of this years. Keeping in view the decisions of this Court and the decision of the Hon'ble Supreme Court in Shri Krishan Vs. Karukshetra University (supra), in the peculiar facts and circumstances of the instant case, the writ petitioner deserves to be allowed to complete the BSTC though there is no conflict to the legal proposition that on the relevant date of submitting the application form or admission, she was not possessing the requisite qualification as advertised. However, since the situation has been changed by giving admission to the petitioner without having the requisite qualification of passing English subject and obtaining an undertaking from her to pass the said examination subsequently and in pursuance thereof the petitioner pursued the study for quite a long time and also keeping in view the fact that she is a widow and was given admission in the category of “widow Para Teacher”, I consider it just and proper to quash the impugned 14 order Annx.10. In the result, in the peculiar facts and circumstances of the case, the writ petition is allowed; the impugned order Annx.10 dated 31-5-2006 is quashed and the respondents are directed to allow the petitioner to pursue the BSTC, to which she has been admitted. It is further directed that the result of the petitioner for First Year BSTC be declared and if she passes the First Year BSTC examination, she be allowed to continue the Second Year BSTC. This order is made in the peculiar facts and circumstances of the case and shall not be treated as a precedent. There shall be no order as to costs. (H.R. PANWAR), J. mcs