Reeta Mukta Vs State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 192 of 2021

Reeta Mukta, aged about 37 years, daughter of Paras Nath Mahto, resident of Village Sukurhutu School Tola, P.O.Sukurhutu, P.S.-Kanke, District-Ranchi (Jharkhand).

… … Appellant

Versus

1.State of Jharkhand

2.Secretary, School Education and Literacy Department, Government of Jharkhand, having its office at Project Building, Dhurwa, P.O. & P.S. –Dhurwa, District- Ranchi.

¶7

3.Director, Primary Education, School Education and Literacy Department, Government of Jharkhand, having its office at Project Building, Dhurwa, P.O. & P.S. –Dhurwa, District- Ranchi. 4.District Superintendent of Education, Ranchi, having its office at Court Compound, P.O.-G.P.O., P.S.-Kotwali, DistrictRanchi. … … Respondents

¶8

¶9

CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

¶10

¶11

For the Appellant : Mr. Rajendra Krishna, Advocate Mr. Pratyush Shourikya, Advocate Mr. Shubham Mayank, Advocate For the Respondents : Mr. Gaurav Raj, AC to AAG II Mrs. Sweta Shukla, AC to AAG II

¶12

¶13

CAV on11/06/2024 Pronounced on 20/06/2024

¶14

Prayer:

¶15

1. The instant intra-court appeal, under Clause 10 of the Letters Patent, is directed against order/judgment dated 18.06.2021 passed by learned Single Judge in W.P. (S) No. 5648 of 2018 whereby and whereunder the decision as contained in Memo No. 3032 dated 05.10.2018 issued under

¶16

the Signature of District Superintendent of Education, Ranchi, by which, the petitioner has been terminated from

¶17

- 1 -

¶18

services from the post of Assistant Teacher, has been refused to be interfered with.

¶19

Facts of the case:

¶20

2. Brief facts of the case, as per the pleadings made in the writ petition, reads as under:

¶21

3. The Human Resource Development Department (Primary Education Directorate) came out with a Statutory Rule being Jharkhand Primary Teachers’ Education Appointment Rules, 2012 [Hereinafter referred to as Rules, 2012] for appointment of Teachers in Primary School under Proviso to Article 309 of the Constitution of India. Rule 14 of the Rules, 2012 prescribes the eligibility criteria, according to which 50% posts were reserved for those Para Teachers who have completed two years of continuous service for direct appointment as Trained Teacher or Graduate Trained Teacher in different Schools of the State Government. On the basis of said appointment Rule, an Advertisement was published for appointment to the post of Assistant Teachers in Government Middle Schools for those persons who have minimum two years teaching experience of working as Para Teacher.

¶22

4. It is the case of the petitioner that initially in pursuance to the Advertisement published on 12.02.2012 by the Jharkhand Education Project Council for appointment on the

¶23

- 2 -

¶24

post of Para Teachers, the petitioner applied and was duly selected in Aam Sabha (General Meeting) of the Village Education Committee held on 26.02.2012. Accordingly, the petitioner was asked to submit her joining in the office of Block Education Extension Officer, Kanke Block at Ranchi and where she gave her joining on 06.01.2014 and the Block Education Extension Officer had accepted the joining of the petitioner.

¶25

5. It is further case of the petitioner that while working as such an advertisement being advertisement no. 04/2015 was published for appointment to the post of Assistant Teacher, in which, the petitioner applied for appointment to the post of Assistant Teacher against the reserved quota of 50% Para Teachers. In the selection process, the petitioner participated and declared successful.

¶26

6. Accordingly, she was appointed vide Memo No. 3729 dated 31.12.2015 issued under the signature of District Superintendent of Education, wherein name of the petitioner figures at Sl. No. 117. Thereafter, vide Memo No. 173 dated 06.02.2016 the petitioner was directed to submit her joining in the Government Middle School, Boreya, as such she gave her joining in Govt. Middle School, Boreya on 08.02.2016.

¶27

7. It is further case of the petitioner that while working as such she was served with show-cause notice as contained in

¶28

- 3 -

¶29

Letter No. 2267 dated 29.07.2017 in which she was directed to file reply regarding her working experience as a Para Teacher which according to the authorities was not two years at the time of publication of Advertisement. The said showcause was replied by the petitioner on 06.09.2017 but again she was served with second show-cause notice dated 08.03.2018 to which she replied vide letter dated 21.03.2018. But it is the case of the petitioner that without considering the reply submitted by the petitioner the respondentauthority passed order as contained in Memo No. 3032 dated 05.10.2018 whereby the service of the petitioner was terminated considering her candidature as ab initio void. 8. It is, thus, evident from the above factual aspect that in pursuance to advertisement being advertisement no. 04/2015 published for appointment to the post of Assistant Teacher, the petitioner was appointed vide Memo No. 3729 dated 31.12.2015 against the reserved quota of 50% Para Teachers. While working as such show cause was served upon her vide Letter No. 2267 dated 29.07.2017 stating therein that her working experience as a Para Teacher was not of two years at the time of publication of Advertisement, as per clause 13 of the advertisement and the relevant rule i.e., Rule 14 of Rules, 2012. The said show-cause was replied by the petitioner on 06.09.2017 but being found not

¶30

- 4 -

¶31

satisfactory, second show-cause notice dated 08.03.2018 was served to which she replied vide letter dated 21.03.2018. The disciplinary authority considering the reply furnished by the petitioner passed order as contained in Memo No. 3032 dated 05.10.2018 by which, the services of the petitioner was terminated .

¶32

9. Being aggrieved thereof, the petitioner approached this Court by filing the writ petition being W.P. (S) No. 5648 of 2018. The learned Single Judge taking into consideration the fact that two years continuous service as Para Teacher is a pre-requisite condition for appointment on the post in question, as per clause 13 of the advertisement and Rule 14 of Rules, 2012 which admittedly the petitioner did not fulfill on the cut-off date i.e., on 01.08.2015 as mentioned in the advertisement, has dismissed the writ petition, against which, the instant intra-court appeal.

¶33

Arguments on behalf of petitioner :

¶34

10. Mr. Rajendra Krishna, learned counsel for the petitioner has taken the following grounds in assailing the impugned order passed by the learned Single Judge:

¶35

I. Learned Single Judge has not appreciated the fact that condition stipulated in the Rule is not having the specific date as on which date two years continuous

¶36

- 5 -

¶37

service as para teacher is to be counted, which would be evident from Rule 14 of Rules, 2012.

¶38

II. The condition i.e., Rule 14 which has been stipulated in the Rules, 2012 since is vague as such the same cannot be said to be mandatory condition and in that view of the matter due to non-availability of the said eligibility criteria, the appointment which has been made of the petitioner cannot be said to be de hors the rule.

¶39

III. The writ petitioner has participated in the process of selection as also her candidature was accepted and thereafter having been found to be successful, she was appointed. Therefore, there is no misrepresentation on the part of petitioner.

¶40

IV. The petitioner in course of aforesaid process has lost her job of para teacher subsequent to her appointment to the post of Assistant Teacher since she was terminated from service and now, she is jobless, hence, unjust has been done to the writ petitioner, but this aspect of the matter has not been taken into consideration by learned Single Judge.

¶41

V. It has further been argued that the petitioner has joined as Para Teacher on 06.02.2014 and subsequently she joined as an Assistant Teacher in

¶42

- 6 -

¶43

the Govt. Middle School, Boreya on 08.02.2016. Thus, she had completed two years of working in the concerned School as a Para Teacher as also she was paid salary for the period. Therefore, the condition of the aforesaid rule has been fulfilled by the petitioner.

¶44

VI. The ground of equity has also been agitated by advancing the argument that since the petitioner was appointed and allowed to discharge her duty but after rendering the service for more than one year dispensation of service by terminating her from service is per se illegal.

¶45

VII. Learned counsel in order to strengthen her argument has relied upon the judgment rendered in the case of Vikas Pratap Singh & Ors Vs. State of Chhattisgarh & Ors reported in [(2013) 14 SCC 494] and Bholanath Mukherjee Vs. Ramakrishna Mission Vivekananda Centenary [(2011) 5 SCC 464].

¶46

11. Learned counsel for the appellant based upon the aforesaid grounds has submitted that the impugned order passed by the learned Single Judge needs interference by this Court.

¶47

Submission of the Respondents

¶48

- 7 -

¶49

12. Mr. Gaurav Raj, learned AC to AAG-III appearing for the respondents-State has defended the order passed by learned Single Judge on the following grounds:

¶50

I. The law is well settled that if any appointment has been made de hors the rule, such appointment is to be struck down the moment the illegality has come to the knowledge of the appointing authority. Exactly, is the case herein since the admittedly the case of the appellant herein is that she has not having requisite experience of two years as para teacher at the time of submission of application, neither in terms of advertisement nor in terms of conditions as stipulated in Rules, 2012.

¶51

II. The advertisement contains a condition as under Clause 13 which provides two years of experience as para teacher as pre-requisite condition for appointment to the post in question as on 1^st August of every calendar year but the petitioner without having two years’ experience had applied to the post of Assistant Teacher as the petitioner joined the post of para teacher on 06.02.2014 and appointed on the post of Assistant Teacher vide Memo No. 3729 dated 31.12.2015, which also is short of two months then what to say about the cut-off date as mentioned in

¶52

- 8 -

¶53

the advertisement, as per which she has experience of only 1 year 06 month and 26 days.

¶54

III. The argument has been advanced with respect to the ground of equity, as has been taken by learned counsel for the appellant, that if the appointment is contrary to the condition stipulated in the advertisement or de hors the rule, the principle of equity will not come into play due to the settled position of law that the equity cannot be allowed to prevail upon the statutory rule as contained under the recruitment rule or terms of the advertisement.

¶55

IV. So far as the contention advanced on behalf of learned counsel for the appellant that she has lost her job and also of being over aged, hence the case of the petitioner requires consideration sympathetically but the said ground is not at all permissible to be argued due to the reason that the petitioner with naked eye has made application even though specific stipulation has been made in the rule as also in the advertisement making the requirement therein that two years of experience is required of para teacher under the 50% quota reserved for para teachers for appointment on the post of Assistant Teachers.

¶56

- 9 -

¶57

13. Learned counsel for the respondents-State based upon the aforesaid ground has submitted that the learned Single Judge since has taken into consideration these aspects of the matter coupled with the issue of relaxations therefore, the impugned order needs no interference by this Court.

¶58

Analysis

¶59

14. We have heard learned counsel for the parties, gone across the impugned order passed by the learned Single Judge as also the relevant rule and conditions stipulated in the advertisement along with other documents available with the paper book.

¶60

15. From the pleadings available on record, the issues which require consideration by this Court is as to:

¶61

I. Whether the appellant if having no requisite qualification/experience as per the rule of recruitment as also the terms and conditions of the advertisement and if in such circumstances, the services of the appellant has been dispensed with by terminating her services, can there be any order showing interference with the order of termination?

¶62

II. Whether giving premium to the petitioner-appellant will not lead to exercising the power of relaxation by the Court sitting under Article 226 of the Constitution of India?

¶63

III. Whether granting such relaxation will not hit the provision of Article 14 of the Constitution of India by depriving the

¶64

- 10 -

¶65

other identically placed candidates in participating in the selection process?

¶66

IV. Whether the principal of equity will be allowed to prevail if the appellant is not fulfilling the eligibility criteria ?

¶67

16. All the issues since are inter-linked, therefore, they are taken up together.

¶68

17. This Court needs to refer herein the provision of Recruitment Rules, 2012, which has got bearing on the issue, in particular Rule 14, which speaks that for direct recruitment on the post of ‘Inter Trained Teacher’ and ‘Graduate Trained Teacher’, 50% seats/posts will be reserved for the para teachers who have minimum two years continuous teaching experience under ‘Sarva Shiksha Abhiyan’. For ready reference, the Rule 14 of Rules, 2012 is quoted as under:

¶69

14 - b.Vj izf'kf{kr f'k{kd ,oa Lukrd izf'kf{kr f'k{kd dh lh/kh fu;qfDr gsrq fpfUgr fjfDr;ksa esa ls 50 izfr'kr in loZf'k{kk vfHk;ku ds rgr 2 ¼nks½ o’kksZa rd vVwV lsok dj jgs vgrkZ/kkjh ikjk f'k{kd esa ls p;u gsrq vkjf{kr jgsaxsA ;g vkj{k.k {kSfrt gksxk] vFkkZr~ izR;sd Js.kh ¼v0 t0] v0 tk0 tk0] vU; fiNM+k oxZ ,oa lkekU;½ ds fy, fu/kkZfjr dksVk ds vUrxZr gh ;g vkj{k.k vuqekU; gksxk] ijarq ;g fd fjfDr ds vuqikr esa visf{kr la[;k esa ikjk f”k{kd mÙkh.kZ ugha gksus dh fLFkfr esa bu fjfDr;ksa dks vU; mÙkh.kZ vH;fFkZ;ksa esa ls vkj{k.k dksfV ds vuqlkj ;Fkk fofgr :i esa Hkjk tk ldsxkA

¶70

18. Advertisement has been published on the basis of Rules, 2012 wherein condition has been stipulated of having two years teaching experience by giving specific cut-off date i.e.,

¶71

1^st August of every calendar year.

¶72

- 11 -

¶73

19. Thus, it is evident that if the recruitment rule of 2012 will be taken into consideration with the condition stipulated in the advertisement, the requirement of having two years teaching experience as para teacher has been made as a mandatory requirement for the purpose of getting the benefit of 50% reservation for appointment as Assistant Teacher amongst the para teachers.

¶74

20. The admitted case of the writ petitioner is that she was not having two years’ experience on the cut-off date as stipulated in the advertisement or even as per Rules, 2012. But the claim of the writ petitioner is that on the date when she was appointed on the post of Assistant Teacher, she completed two years teaching experience and hence such appointment can at best be treated to be irregular and not illegal.

¶75

21. This Court, before appreciating the aforesaid argument, needs to refer herein the difference in between the ‘irregular appointment’ and ‘illegal appointment’.

¶76

22. ‘Illegal appointment’ is such appointment wherein the illegality cannot be cured while ‘irregular appointment’ is such appointment where irregularity can be cured.

¶77

23. The difference in between the ‘illegal appointment’ and ‘irregular appointment’ has been dealt with by Hon’ble Apex Court in the case of State of Karnataka Vs. Uma Devi (3)

¶78

- 12 -

¶79

[(2006) 4 SCC 1], wherein at paragraph 53 it has been held

¶80

as under:

¶81

53 . One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."

¶82

24. The Hon’ble Apex Court subsequently in the case of

¶83

State of Karnataka Vs . M.L. Kesari [(2010) 9 SCC 247]

¶84

has again considered the difference in between the ‘illegal

¶85

- 13 -

¶86

appointment’ and ‘irregular appointment’. For ready reference the relevant paragraph of the judgment is quoted as under:

¶87

7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3) [(2006) 4 SCC 1] , if the following conditions are fulfilled:

¶88

( i ) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

¶89

( ii ) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.

¶90

25. Further, it is settled position of law that all the appointments are to be made on the basis of recruitment rule and the condition stipulated in the advertisement and there cannot be any deviation either from the recruitment rule or from terms and conditions of the advertisement. The Hon’ble Apex Court in the case of Ramana Dayaram Shetty vs.

¶91

International Airport Authority of India and Ors. reported in (1979) 3 SCC 489 as also the judgment rendered

¶92

- 14 -

¶93

in the case of Air India Ltd. vs. Cochin International Airport Ltd . reported in (2000) 2 SCC 617 and the judgment rendered in the case of Bedanga Talukdar vs. Saifudullah Khan & Ors. reported in AIR 2012 SC 1803 has propounded the proposition that the conditions stipulated in the advertisement are strictly to be adhered to.

¶94

26. For ready reference the relevant paragraphs of Bedanga Talukdar vs. Saifudullah Khan & Ors .(supra) are being quoted as under:

¶95

“29.We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication

¶96

- 15 -

¶97

would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.

¶98

30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.

¶99

32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of Respondent 1 on the basis of identity card submitted after the selection process was over, with the publication of the select list.

¶100

27. It is also equally settled that in case of conflict in between the recruitment rule and the conditions stipulated in the advertisement, the recruitment rule will prevail. Reference in this regard be made to the judgment rendered in the case of Ashish Kumar v. State of U.P., (2018) 3 SCC 55 wherein at paragraph 27 the Hon’ble Apex Court has observed as under:

¶101

- 16 -

¶102

“27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence. In this context, reference is made in the judgment of this Court in Malik Mazhar Sultan v. U.P. Public Service Commission [Malik Mazhar Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 : 2006 SCC (L&S) 1870] . Para 21 of the judgment lays down the above proposition which is to the following effect: (SCC p. 512)

¶103

“21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.”

¶104

28. But if there is no conflict in between the recruitment

¶105

rule and the condition stipulated in the advertisement rather both are in consonance with each other, in such cases the

¶106

recruitment rules and advertisement will be taken into

¶107

- 17 -

¶108

consideration together. Herein, Rule 14 of the recruitment rules, 2012 speaks about two years continuous teaching experience of para teacher under Sarva Shiksha Abhiyan for the purpose of getting reservation of 50% for appointment on the post of assistant teacher and in order to have more clarification, the appointing authority who has issued advertisement has made a specific cut-off date for counting the teaching experience as 1^st day of August of every calendar year, as would be evident from clause 13 of the advertisement.

¶109

29. The appellant after seeing the terms of the rule/advertisement has made application even though she was not having two years teaching experience even on the last date of submission of application since the petitioner gave her joining on 06.01.2014 as para teacher and from that date two years is completed on 05.01.2016 but as per advertisement the cut-off date for counting the experience is 01.08.2015 which comes to approximately 01 year and 06 months. Therefore, it is amply clear that as per the terms and conditions of the advertisement, the petitioner did not complete two years teaching experience as para teacher.

¶110

30. The petitioner although has made application for consideration of her candidature which was accepted and she had participated in the process of selection and was finally

¶111

- 18 -

¶112

selected but subsequently she was terminated from services, on being found that she had not requisite two years teaching experience, as required under Rule 14 of Rules, 2012 and Clause 13 of the advertisement.

¶113

31. The question, thus, arises for consideration - can the acceptance of the candidature create any indefeasible right upon the candidate for holding the said post even absence of required experience as required under the recruitment rule and the advertisement ?

¶114

32. The answer of this question will be ‘ Negative’ for the reason that if a candidate is not possessing the requisite qualification as per recruitment rule, then even if her candidature is accepted by the appointing authority the same will be said to be wrongly accepted and based upon the said wrong acceptance no indefeasible right is being available to such candidate claiming to hold such post in absence of requisite eligibility criteria as per the recruitment rule/advertisement.

¶115

33. Otherwise, the candidate will be allowed to continue in service even though such candidate is having no eligibility criteria as per the recruitment rule or the advertisement and in that view of the matter if such candidate will be allowed to retain the post, the illegality will be allowed to be perpetuated

¶116

- 19 -

¶117

and such appointment even though de hors the rule will be allowed to be continued.

¶118

34. The law is well settled that if any appointment is being made de hors the rule the same is to be struck down in order to set the recruitment in the correct position by dealing with such candidate. The contention of the writ petitioner that on the day of appointment she has got the two years teaching experience and as such the appointment is said to regularized at least from the date she was appointed and in order to strengthen the argument, learned counsel for the appellant has relied upon the judgment rendered in the case of Ram Sarup Vs. State of Haryana [(1979) 1 SCC 168].

¶119

35. We have gone through the said judgment and found therefrom that it was a case where the concerned appellant was holding the original post of Statistical officer and was to be promoted to the post of Labour-cum-Conciliation Officer. The post was inter-changeable. The five years’ experience in the labour side or working as deputy labour commissioner was required to hold the post of Labour-cum-Conciliation Officer. But the same was not available with the appellant, however, he was promoted. Subsequent thereto issue was raised that he was not having the requisite experience in labour side and as such his promotion was struck down by referring to the post of statistical officer.

¶120

- 20 -

¶121

36. The Hon’ble Apex Court has considered the fact of getting experience of five years and regularized the promotion from the date when the appellant of the said case was got the five years’ experience. For ready reference, paragraph 3 and 4 of the said judgment is quoted as under:

¶122

“3. The question then arises as to what was the effect of breach of clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cumConciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of Labour Laws in any one of the three capacities mentioned in clause (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. The appellant worked as Labour-cumConciliation Officer from January 1, 1968 and that being a post higher than that of Labour Inspector, or Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of Labour Laws in the post of Labourcum-Conciliation Officer must be regarded as sufficient to constitute fulfilment of the requirement of five years' experience provided in clause (1) of Rule 4. The appointment of the appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour-cum-Conciliation Officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant, was, therefore, clearly illegal and it must be set aside.

¶123

4. We accordingly allow the appeal, set aside the judgment of the Division Bench as well as of the Single Judge of the

¶124

- 21 -

¶125

High Court and quash the order of reversion passed against the appellant reverting him from the post of Labour-cumConciliation Officer to that of Statistical Officer. We further make it clear that the appointment of the appellant as Labour-cum-Conciliation Officer must be deemed to have become regular and he must be deemed to have been appointed to that post only on the expiry of a period of five years calculated from the date when he was appointed Chief Inspector of Shops. There will be no order as to costs of the appeal.”

¶126

37. It is, thus, evident from the aforesaid judgment that the Hon’ble Apex Court has regularized the promotion of the aforesaid appellant after getting the five years’ experience in labour side which is in the matter of promotion and not in the matter of direct recruitment and that is the distinguishable fact since herein it is the issue of direct recruitment and in the matter of direct recruitment the eligibility condition is to be looked into by the appointing authority as per the advertisement.

¶127

38. The further consideration required to be made herein is that if a candidate is having no eligibility criteria even then relaxation is to be granted then the question arises why to the petitioner only and why not to others and will it not violate the principle as laid down under Article 14 of the Constitution of India in depriving others from the same benefit.

¶128

39. Further it is settled trite of law that there cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved and such a power

¶129

- 22 -

¶130

could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidate who become eligible due to the relaxation, is afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India. Reference in this regard may be made to Bedanga Talukdar

¶131

vs. Saifudullah Khan & Ors (supra).

¶132

40. Further the Hon’ble Apex Court in Sanjay K. Dixit v. State of U.P., reported in (2019) 17 SCC 373 while referring the ration of Bedanga Talukdar vs. Saifudullah Khan &

¶133

Ors (supra) has held as under:

¶134

11. ----But the submission made by the learned counsel for the writ petitioners is that the relaxation could not have been done as the advertisement did not mention about a possible relaxation of the Rules. We find force in the said submission made on behalf of the writ petitioners as this Court in Bedanga Talukdar [Bedanga Talukdar v. Saifudaullah Khan, (2011) 12 SCC 85 : (2011) 2 SCC (L&S) 635] held as follows : (SCC pp. 92-93, para 29)

¶135

“29. … In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue

¶136

- 23 -

¶137

favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.”

¶138

41. Further, the question of equity as also losing of the job and over-age are the grounds have been argued on behalf of appellant.

¶139

42. So far as the issue of equity is concerned, the law is well settled that equity cannot be allowed to prevail upon the statutory rule. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of

¶140

Shamsu Suhara Beevi Vrs. G. Alex , reported in ( 2004) 8 SCC 569 , wherein, at paragraph-11, it has been held as

¶141

under:-

¶142

"11. ... ... Grant of such a relief in the teeth of express provisions of the statute to the contrary is not permissible. On equitable considerations court cannot ignore or overlook the provisions of the statute. Equity must yield to law."

¶143

- 24 -

¶144

43. Likewise, the Hon'ble Apex Court in the case of Union of India Vrs. Dhanwanti Devi , reported in (1996) 6 SCC 44 , at

¶145

paragraph-11, has held as under: -

¶146

"11. ... .... It is equally settled law that equity operates where statute does not occupy the field. Conversely, when the statute occupies the field, the equity yields place to the statute."

¶147

44. So far as the losing of job and over age is concerned, the petitioner has made the application consciously with naked eye seeing the condition stipulated in the advertisement based upon the Rules, 2012 knowingly fully well that she has no requisite experience of two years at the time of filling up the application form for consideration of her case then it is not available for the appellant to take the ground of over age or losing her job of para teacher rather it was incumbent upon the appellant not to make an application in absence of any requisite eligibility criteria but ignoring the same application was made and now the ground of losing job and over age is agitated, which is not permissible in the eye of law.

¶148

45. Therefore, this Court is of the view that where specific condition of experience of two years teaching experience as para teacher is mentioned in the advertisement based upon the recruitment rule and contrary to that if any application has been made consciously such candidate cannot be allowed to take the ground of losing of job or over-age.

¶149

- 25 -

¶150

46. This Court, after having discussed the factual aspect, as above coming to the order passed by learned Single Judge wherefrom it is evident that the learned Single Judge has dealt with the issue of relaxation as also the mandatory condition of recruitment rule and condition stipulated in the advertisement, which admittedly has not been adhered to by the writ petitioner. Hence, the learned Single Judge has come to the conclusion by not interfering with the order of termination passed by the respondents-authorities, which according to our considered view suffers from no error.

¶151

47. Accordingly, the instant appeal fails and is dismissed.

¶152

48. Pending Interlocutory Application, if any, stands disposed of.

¶153

I Agree (Sujit Narayan Prasad, J.)

¶154

(Arun Kumar Rai, J.)

¶155

(Arun Kumar Rai, J.)

¶156

Alankar/ A.F.R