Case: THE STATE OF RAJASTHAN &amp; ANR Vs. ANJU RINI SAINI

1. By advertisement dated 15.02.2013, applications were invited for filling up vacancies of Lower Division Clerk (LDC). The requirement was inter alia that the applicant must possess the qualification of Rajasthan State Certificate in Information Technology (RSCIT) by the last date of submission of application notified as 22.03.2013. Reservation was contemplated in the category of women and certain number of posts were set apart for category of widows among women. Respondent being a widow applied for the post of LDC on 15.04.2013. As on the last date prescribed for submission of application, the respondent did not possess the qualification of RSCIT. Request from applicants generally led to the authority taking the decision to extend the period for production till the date when the documents were to be verified or before the preparation of the select list. The respondent did not produce the RSCIT within the extended period which is 07.05.2013. This led to the rejection of her application in the meeting of District Establishment Committee which took place on 28.06.2013. Thereafter, on 10.11.2014, the respondent admittedly obtained the qualification of RSCIT. Thereafter, it would appear that there was some litigation which stalled the recruitment process.2. Later on, in the year 2017, an advertisement came to be issued on 21.08.2017 by which it was decided to proceed with the selection. We deem it appropriate to advert to it:In compliance of Letter No. F37()P.R.D./Pr.- 2/L.D.C. Direct Recruitment 2013/17/3263 Jaipur dated 17.08.2017 of the Government Secretary and Commissioner, Rural Development and Panchayati Raj Department in compliance of various judicial decisions, eligible candidates as per amended merit list of L.D.C. Recruitment 2013, as per meritwise issued earlier and candidates coming in final cutoff of marks obtained categorywise (as per mentioned below) shall remain personally present on 24.08.2017 morning at 09.00AM at Ofifce of JilaParishad, Dausa by fulfilling detailed application form and attaching their detailed application form, certified copies of their Educational and professional qualification certificates and other necessary certificates and photocopy of online application form along with original documents. In case of being absent it will be assumed that you are not interested in this recruitment. It is the final opportunity, after this no opportunity will be granted for verification of documents. Categorywise cutoff list of marks for L.D.C. Recruitment 2013 is as follows: -									Class            									General            									General Female            									Widow            									Abandoned            									Ex- Service men            									Excellent Player            									H.I.            									L.D.            			C.P.            									B.L.            													General            									69.431            									66.616            									38.662            									45.231            									26.170            									44.046            									43.5            			08            									66.6            			16            									50.29            			2            													Other Backward Class            									67.040            									62.620            									26.277            									-            									             									             									             									             									             													Special Backward Class            									66.077            									62.000            									-            									-            									             									             									             									             									             													Schedule Caste            									64.160            									60.800            									-            									39.954            									             									             									             									             									             													Schedule Tribe            									65.108            									62.416            									31.016            									40.000            									             									             									             									             									             						Note: -            1. Those candidates who have acquired their professional qualification from any other State/Private University/ Deemed University except RSCIT. They will have to submit affidavit of Rs.100 in prescribed format as per instructions of Department.            2. Such candidates whose appointment orders have been issued earlier but due to some reasons they could not took work charge. In compliance of Departmental Letter No. 3263 dated 17.08.2017, after re-inspection of their documents and eligibility, final opportunity for taking work charge is given.                  1. Those candidates who have acquired their professional qualification from any other State/Private University/ Deemed University except RSCIT. They will have to submit affidavit of Rs.100 in prescribed format as per instructions of Department.2. Such candidates whose appointment orders have been issued earlier but due to some reasons they could not took work charge. In compliance of Departmental Letter No. 3263 dated 17.08.2017, after re-inspection of their documents and eligibility, final opportunity for taking work charge is given.3. Thereupon, the respondent filed an application on 27.08.2017:The Chief Executive Officer,JilaParishad, Dausa (Raj.)Subject: - For including in Document verification for LDC Recruitment 2013.It is kindly requested that I got document verification in LDC Recruitment 2013 done by Panchayat Raj Department in year 2013 but due to not having RSCIT Certificate, my selection could not be done. But at present, again LDC recruitment is started wherein I am within cutoff as per merit and my RSCIT Certificate is also available which I have qualified on 10 November 2014. So, it is kindly requested to you that my selection has been done in Widow Category. Kindly favour me by granting benefit.4. This application was disapproved in the meeting of the District Establishment Committee which took place on 01.09.2017, the relevant portion of which reads as follows:Following candidates earlier even after rejection of eligibility by the District Establishment Committee have requested again for appointment while filing application.						S. No.			Name			Fathers name/Husband name			Reason for earlier rejection			Remarks							4.			AnjuRini Saini			Surya Narayan Saini			Not approved as Computer Certificate is not valid			Computer Certificate is liable to be rejected being issued later than prescribed date			According to the remarks, approval of said list is done unanimously.5. This occasioned the filing of the writ petition which has led to the present appeal. The learned Single Judge allowed the writ petition filed by the respondent. In doing so, the learned Single Judge drew support from the judgment of Division Bench of the High Court dated 11.02.2016. What is more, the learned Single Judge sought to rest the decision on the provisions of Rule 266-A of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 1996 Rules for brevity). The appellants appealed before the Division Bench. By the impugned judgment, the Division Bench has confirmed the decision of the learned Single Judge.

Reasoning:
10. Coming to the facts of this case, the respondent applied pursuant to the advertisement which is issued in the year 2013 for the appointment of Clerk. The respondent did not possess one of the essential qualifications viz., RSCIT. This qualification could not be acquired by her by the stipulated last date for filing of the applications. She could not, what is more, acquire the qualification even within the extended period and her candidature could not be processed further in terms of the advertisement. The later development which took place is that she acquired qualification in the year 2014, well beyond the stipulated time. Undoubtedly, the advertisement was issued in the year 2017 as already noticed. From the advertisement, what we would gather is that it is not a fresh advertisement. Had it been a fresh advertisement calling for applications and stipulating for a new date, which in the absence of any date being prescribed in the advertisement could have been taken as the date by which the application be made pursuant thereto in the light of the decision rendered by this Court, the matter would have been different. But what was contemplated under the advertisement issued in 2017 was to taking the recruitment of 2013 forward with respect to those who had acquired eligibility in terms of the earlier advertisement issued in the year 2013. This meant that those candidates who possessed the qualification on the last date which was stipulated or at least within the extended period, were alone to be considered. The respondent filed an application as already noted. She therein does not dispute the fact she did not possess the qualification of RSCIT in the year 2013. Treating it apparently as fresh advertisement, she makes the application. This application is rejected by the Committee noticing that she did not possess the qualification provided. One more aspect which is noticed at this stage is the minutes of the committee which did contemplate that there could be persons who have been given appointment. Noticing this fact, we continue with the narrative.11. As far as Rule 266-A itself is concerned, the following is noticed:What is contemplated was that a widow/divorcee women who had been given appointment in the post of teacher after giving relaxation of the required educational qualification of B.S.T.C/ B.Ed. under the erstwhile proviso to Rule 266 would be regularised from the date on which they acquired the requisite educational qualification. The first essential requirement for the application for Rule 266-A is that the widow/divorcee must have been appointed. It is, in this context, that we notice that even in regard to the advertisement issued later on, it was contemplated that there could be persons who may have been appointed. Even proceeding on the basis that Rule 266-A is otherwise applicable in the cases of posts other than teacher, the fact is that here is the case where the Rule will not apply for the reason that the respondent was never appointed to the post in question to clothe her with a right under Rule 266-A. One may further notice that what Rule 266-A further contemplated is appointment being given to teacher after relaxing the required educational qualification of B.S.T.C/ B.Ed. under the erstwhile proviso to Rule 266. The qualification with which this Court is concerned in this case is RSCIT. Rule 266A does not deal with the qualification of RSCIT. The qualifications, in other words, which are the subject matter have been expressly set out in the Rule and which are different from the qualification in question. The post with which the Court is concerned is different from the post indicated in Rule 266-A. Learned counsel for the respondent would, in fact, submit that Rule 266-A is also applicable to the post of LDC. Even if that be so, the indispensable ingredient of the Rule is clearly not fulfilled in the facts of the case by the respondent as the respondent was not appointed.12. As far as the judgment of the Division Bench dated 11.02.2016 is concerned, the Court therein was actually dealing with a challenge to Rule 16. The Court proceeded to agree with the coordinate Bench which had upheld the validity of Rule 16. All that it did was, it directed the petitioners therein to represent their grievances before the Government for grant of relaxation of one year of experience to the widow/ diovorcee candidate and the Court expected the Government to consider it sympathetically by exercising power under Rule 41 of the Rules of 2015.We are of the view that no reliance could have been placed on it for granting the relief which respondent sought. We also found there is no justification to have extended Rule 266-A to the respondent. In other words, the respondent in view of not possessing an essential qualification (RSCIT) on the last date of application or till the extended date, was not eligible to be considered when notification was issued in the year 2017, which was not a fresh notification but a notification in continuation of the earlier notification. It is not the case where the respondent was appointed in the interregnum. Therefore, it is not a case where the foundation for the impugned judgment can be supported. Resultantly, we find that the appellants have made out a case for interference with the impugned judgment.13. We are unable to accept the contentions of the respondent that being a Constitutional Court and since rights have been declared in Article 15 and being a widow warranting a sympathetic view to be taken, should culminate in our refusing to exercise our jurisdiction under Article 136. It is undoubtedly true that Article 136 is a special and extraordinary jurisdiction but that is a far cry from holding when a clear case of respondent not holding the required qualification is made out, the Court can still direct appointment. It will be palpably illegal and unconstitutional. Even with all the sympathy that this Court has undoubtedly for the respondent, however, it cannot result in public employment being made except in terms of the law governing the appointment. It is a clear case where the respondent was not eligible to be considered for appointment. The foundation for directing her to be considered appears to us to be very fragile and insupportable. It is, in fact, the duty of the constitutional Court in such cases to uphold the action of the authorities which are in strict conformity with the rules of the game in question.