CWP No. 13036 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13036 of 2009 (O&M) Decided on : 29-04-2011 Sunita Rani ....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. R.N.Lohan , Advocate for the petitioner Mr. Harish Rathee, Sr. DAG, Haryana Mr. Jitender Nara, Advocate for respondent no.4 MAHESH GROVER, J This writ petition under Articles 226/227 of the Constitution of India has been filed by the petitioner praying for issuance of writ in the nature of Certiorari seeking quashing of selection of respondent no.4 on the ground that she was ineligible on the date when the consideration for the said post was made. An advertisement was issued by the respondents – State on 13.9.2008 for recruitment of Lecturers in various subjects out of which two posts were meant for physically handicapped persons. The eligibility criteria prescribed in the advertisement was as follows:- “(i) MA Hindi with atleast 50% marks from a recognised University. (ii) Knowledge of Hindi/Sanskrit upto Matric standard.” CWP No. 13036 of 2009 (O&M) 2 The State of Haryana has also amended the Rules namely Haryana State Education Lecturer School Cadre (Group C) Service Rules, 1998 in which the requirement of an incumbent passing the School Teacher Eligibility Test (STET) was prescribed. Annexure P-1 is the notification to that effect and the relevant extract is herebelow:- “2. In the Haryana State Education Lecturer School Cadre (Group C) Service Rules, 1998 in Appendix B, against number 1 to 20, under column 3, for entry (ii) the following entries shall respectively be substituted namely:- (ii)Matric with Hindi/Sanskrit. (iii)Certificate of having qualified School Teacher's Eligibility Test (STET).” The advertisement contemplated that the eligibility of the candidates will be determined as on 30.10.2008 i.e the date of the submission of the application/ interview and the candidate should possess the academic qualification/age/eligibility criteria on that date. The petitioner had acquired the STET qualification on 15.10.2008. Respondent no.4 does not possess this qualification. As against the posts meant for physically handicapped persons only petitioner and respondent no.4 had applied and the petitioner having been found lower in merit was denied the appointment while respondent no.4 succeeded in getting it. The grievance of the petitioner is limited i.e she was having the eligibility as per the amended Rules which existed on that relevant point of time and since the advertisement contemplated the acquisition of eligibility by the aspirants on 30.10.2009, the petitioner being so qualified was eligible while respondent no.4 was not; and thus her appointment to the said CWP No. 13036 of 2009 (O&M) 3 post, in negation of the case of the petitioner is unjustified. State of Haryana has taken a peculiar stand that since the vacancies pertain to the year 2005 which was prior to the amendment on which the petitioner places reliance and for the reason the requisition has been sent on a prior date, thus the amended rules cannot be taken into consideration. Respondent no.4 has sought to defend her appointment by alleging that the petitioner was not qualified on the date when the advertisement was issued as till that date there was no test conducted by the State of Haryana and consequently there was no such candidate available who had acquired the STET qualification. He had not denied that petitioner had acquired STET qualification on 15.10.2008 while respondent no.4 was deficient in such a qualification. The essential question to be determined is whether the petitioner and respondent no.4 were to be assessed as per the amended qualifications or whether respondents-State is justified in saying that since the vacancies existed prior to the amendment of 2008 and in the year 2005 so they were justified in making selections as per the old rules. On due consideration of the matter, I am of the considered opinion that the stand of the respondents-State cannot be appreciated. Amendment (Annexure P-1) clearly states that eligibility of candidates shall be determined as on 30.10.2008. Imperative in this condition is the fact that such an eligibility had to be assessed in accordance with the existing rules which meant that a person not having the qualification of STET to his credit could not have been considered. This view has been fortified in the CWP No. 13036 of 2009 (O&M) 4 following judgments rendered by Hon'ble Supreme Court:- In Union of India and another versus Yogendra Singh 1994 Supp (2) SCC 226 held as under:- “In response to an employment notice dated 22.9.1990, the respondent, applied for the post of Health Inspector. The respondent did not possess the requisite educational qualifications for the said post, viz. B.Sc. (Chemistry) plus Diploma of Health Inspector. His contention that since some of the vacancies had arisen prior to 24.5.1990, the date on which the requisite qualifications were amended, being possessed of the pre-amendment qualifications, he was eligible for such vacancies. The Central Administrative Tribunal upheld his contention. Allowing the appeal of the Union of India, the Supreme Court held no candidate who does not possess the currently prescribed qualifications, but who may possess the educational qualifications prescribed earlier, can be said to qualify or have any vested right to appointment even against some earlier unfilled vacancy. Every candidate who aspires to fill any vacancy must possess the educational qualifications that are then prescribed.” In Pramod Kumar versus U.P Secondary Education Services Commission and others reported as 2008(3) RSJ 78 held as under:- “Appointment-Qualification-Educational qualification- If the educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned- Such an act CWP No. 13036 of 2009 (O&M) 5 cannot be ratified – An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly when the statute in no unmistakable terms says so- Only an irregularity can be.” In Dharminder Singh versus State of Punjab and another reported as 2009(2) RSJ 453 held as under:- “Punjab Transport Department (Non-commercial Wing) Class III Rules 2000- Reservation- Physically handicapped person – Direct recruitment – Prescribing of test- plea that the vacancy arose in 1995 therefore the same be filled as per the provision of old Rules and not as per the provisions of Rules 2000 repelled. The principle with regard to the filling of vacancy of 1995 as per the prevalent Rules during that year is applicable to the promotional posts and the same not applicable to vacancies which are to be filled by direct recruitment.” The petitioner has acquired this qualification on 15.10.2008 prior to the date of consideration and thus the contention of the learned counsel for the respondents – State that the petitioner does not has the requisite qualification on the date of consideration has no force in view of the stated provisions that consideration has to be made on 30.10.2008. For the said reasons, I am of the considered opinion that the appointment of the respondent no.4 was in contravention of the rules which prescribed STET as essential qualification. Her appointment has therefore to be set aside. It is not disputed before this Court that there were only two aspirants in handicapped category and the petitioner was ranked lower to the CWP No. 13036 of 2009 (O&M) 6 respondent no.4 since her qualification for STET has been ignored and she being the only eligible candidate amongst the two and also for the reason that respondent no.4 concededly did not have the requisite qualification, there is no hesitation to say that it is the petitioner who deserves the appointment. Hence, the petition stands allowed. Appointment of respondent no.4 is quashed and the respondents- State are directed to offer the appointment to the petitioner. April 29 , 2011 (Mahesh Grover) rekha Judge