Allowed

Mukesh Kumar Sharma S/O Jagdish Sharma v. the State of Rajasthan

Rajasthan HC27 Jun 2022CW/6061/2019

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of the petitioner's candidature for a Teacher Grade-III post due to insufficient graduation marks. The High Court allowed the petition, relying on NCTE notifications and coordinate bench precedents, directing appointment.

What did the court decide?

Directing the respondents to appoint the petitioner on the post of Teacher Grade-III, Level-II within two months and granting notional benefits.

Mukesh Kumar Sharma S/O Jagdish Sharma Vs… — Pension and Retirement Benefits | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 6061/2019

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Mukesh Kumar Sharma S/o Jagdish Sharma, Aged About 33 Years, R/o Vpo Lakher, Tehsil Amer, District Jaipur (Raj.).

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----Petitioner

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Versus

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The State Of Rajasthan, Through Its Principal Secretary, Panchayati Raj Department, Govt. Of Rajasthan, Secretariat, Jaipur.

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The Director, Elementary Education, Rajasthan, Bikaner.

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----Respondents

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For Petitioner(s) : Mr. Vigyan Shah with Mr. Kamlesh Sharma Mr. Akshit Gupta Mr. Harendra Neel Mr. Pukhraj Chawla Mr. Yash Joshi Mr. Saran Sharma Ms. Pragya Seth Ms. Keshika Jain For Respondent(s) : Mr. C.L. Saini, AAG

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HON'BLE MR. JUSTICE INDERJEET SINGH

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Order

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27/06/2022

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Instant writ petition has been filed by the petitioner with the

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following prayers:-

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"In these circumstances, it is, therefore, prayed that this Hon'ble Court may be pleased to accept this writ petition and

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(i) the impugned waiting list dated 28.02.2019 wherein respondents in not selecting humble petitioner on the Teacher Gr. III (Level-II) (Social Science) for want of 50% marks in graduation may kindly be declared illegal and arbitrary and therefore, may kindly be quashed and set aside.

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(2 of 8)

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[CW-6061/2019]

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ii) by appropriate order or direction in the nature thereof respondents may kindly be directed to :-

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a) to treat humble petitioner eligible for the post of Teacher Grade-III (Level-II) (SOCIAL SCIENCE): b) respondents may kindly be directed to give appointment to humble petitioner on the post of Teacher Grade-II (Level-II) (SOCIAL SCIENCE) in pursuance to the advertisement dated 31.07.2018 with all consequential benefits; iii) Any other appropriate order or direction which this Hon'ble Court deems just and proper in the facts and circumstances of this case may kindly also be passed in favour of the petitioner."

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Brief facts of the case are that in pursuance to the advertisement dated 31.07.2018 issued by the respondents, the petitioner applied for the post of Teacher Grade-III Level-II (Social Science). The candidature of the petitioner was rejected by the respondents on the ground that the petitioner was not having the requisite educational qualification on the last of submitting the application form.

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Counsel for the petitioner submits that the issue involved in this writ petition has already been considered and decided by the Co-ordinate Bench of this Court in the matter of Minaxi Dadhich Vs. State of Rajasthan & Anr. (S.B. Civil Writ Petition No.11131/2014) decided on 30.03.2022, where in it has been held as under:-

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"Instant petition has been filed by the petitioner with the following prayers:“In these circumstances, it is, therefore, prayed that this Hon’ble Court may be pleased to accept this writ petition and (I) the impugned action of the respondents in not giving appointment to the petitioner solely for the reason that she was not possessing minimum 45% marks in B.A. may kindly be declared as illegal and arbitrary, therefore, it may kindly be quashed and set aside;

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(3 of 8)

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[CW-6061/2019]

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(II) the respondents may kindly be directed by writ of mandamus, order or direction in the nature thereof, to appoint the petitioner on the post of Teacher Gr.III (Level II) (English) with all consequential benefits.

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(III) Any other appropriate order or direction which this Hon’ble Court deems just and proper in the facts and circumstances of this case may kindly also be passed in favour of the petitioner.” Learned counsel for the petitioner submits that the controversy involved in this petition has already been set at rest by this Court at the Principal seat in the case of Smt. Raj Rani Vs. State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 10182/2012 and other connected petitions) on 10.10.2012 by observing thus:-

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“In view of the foregoing discussion, all these writ petitions are allowed. The respondents are directed to consider the candidature of all those candidates without insisting upon qualification of having minimum 45% or 50%, as the case may be, in the bachelor’s degree or master’s decree examination or any other equivalent examination in case the incumbents have obtained admission in the requisite courses such B.A., B.Com., B.Sc., B.Ed., B.El.Ed., Senior Secondary etc. prior to prescription of the minimum qualifying marks by the NCTE vide notifications dated 27.09.2007 and 31.08.2009; and, if they are found in merit in the competitive examination for recruitment on the posts of Teacher Grade-III (Level - I and Level - II), they shall be provided appointment.” Learned counsel for the petitioner submits that the similar issue was decided by the Division Bench of this Court at Principal seat while deciding the case of Sushil Sompura and Ors. Vs. State (Education) and Ors. (D.B. Civil Writ Petition No.3964/2011 and other connected petitions) on 20.05.2011 by observing thus:“For the reasons stated above, the interim stay is vacated. The respondents are free to hold the TET examination. The prayer of the petitioners regarding inclusion of qualification of B.Com. in the group of qualification of graduation in the eligibility criteria has already been allowed. The respondents shall not insist on the qualification of having 45%or 50% marks, as the case may be, in the bachelor's

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(4 of 8)

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[CW-6061/2019]

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degree or master's degree etc. or any other equivalent qualification, in case incumbents have obtained admission in the requisite courses such as B.A., B.Com., B.Sc., B.Ed., B.El.Ed, Senior Secondary etc. prior to prescription of the minimum qualifying marks by NCTE vide notifications dated 27.9.2007 and , 31.8.2009. It is made clear that the incumbents, who have obtained the B.Ed. etc. before the minimum qualifications were prescribed vide notifications dated 27.9.2007 and 31.8.2009, shall be allowed to appear in the TET Examination. The incumbents, who have passed out B.Ed. Course from Jammu & Kashmir, have to be dealt with on similar yard sticks in case the qualification is otherwise recognized. Let NCTE specify categories of teachers under para 4 of Notification dated 23.8.2010. As prayed by NCTE, let amended notification be issued within one month covering aforesaid aspects.” Counsel for the petitioner further submits that this is the second round of litigation. Earlier also the petitioner approached this Court by way of filing SB Civil Writ Petition No. 13708/2012 and the same was disposed of on 25.02.2013 directing the respondents to consider and decide the representation of the petitioner in the light of judgment of Smt. Raj Rani (supra). Counsel submits that in compliance of the said direction, the petitioner submitted a detailed representation but the same was not decided. Hence, under these circumstances she was left with no option except to approach this Court by way of filing the instant petition. Lastly, counsel submits that the National Council for Teacher Education has issued a notification on 13.11.2019 by which the notification dated 23.08.2010 has been amended and substituted as:“1. In the said notification in paragraph 1, in sub-paragraph (ii),- (A) in clause (a) for the words, figures, brackets and letters “Graduation with at least 50% marks and 1 year Bachelor in Education (B.Ed.)”, the words, figures and letters “At least 50% marks either in Graduation or in Post-Graduation and B.Ed.” shall be substituted.

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(B) After clause(b), at the end, the following proviso shall be inserted, namely:“Provided that minimum percentage of marks in graduation shall not be

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(5 of 8)

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[CW-6061/2019]

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applicable to those incumbents who had already taken admission to the Bachelor of Education or Bachelor of Elementary Education or equivalent course prior to the 29th July, 2011.”

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This notification shall be deemed to have come into force on the 29th July, 2011.” Per contra, learned counsel for the respondents opposed the arguments raised by counsel for the petitioner and submitted that as per the rules prevailing at the relevant time the petitioner was not eligible to get appointment on the post of Teacher Gr.III as she was not possessing the requisite qualifying marks but he is not in a position to controvert the legal position of law decided by this court in the case of Smt. Raj Rani (supra) and Sushil Sompura (Supra).

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The instant petition stands disposed of in the light of the judgment passed by this Court in the case of Smt. Raj Rani (supra). The respondents are directed to consider the candidature of the petitioner on the post of Teacher Gr.III (Level II) (English) within a period of two months from the date of receipt of a certified copy of this order.

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Stay application as well as all pending application(s), if any, also stand disposed of."

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Counsel further submits that the petitioner was having 45% marks in graduation and therefore in view of the condition No.9.3.II, the petitioner is entitled for appointment on the post in question. Counsel further submits that the notification issued by the NCTE dated 13th of November, 2019 clarifies the position with regard to eligibility of the petitioner, which reads as under:-

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"In the said notification in paragraph 1. in sub-paragraph (ii). (A) in clause (a) for the words, figures, brakets and letters,"Graduation with at least 50% marks and 1 year Bachelor in Education (B.Ed.)", the words, figure and letters"At least 50% marks either in Graduation or in Post-Graduation and B.Ed." shall be substituted.

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(B) After clause (b), at the end the following proviso shall inserted namely:"Provided that minimum percentage of marks in graduation shall not be applicable to those incumbents who had

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(6 of 8)

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[CW-6061/2019]

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already taken admission to the Bachelor of Education or Bachelor of Elementary Education or equivalent course prior to the 29th July,2011." This notification shall be deemed to have come into force on the 29th July,2011."

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Counsel further submits that the notification issued by the NCTE with regard to relaxation of 50% marks in the graduation came into force w.e.f. 29th of July, 2011 i.e. prior to issuance of the advertisement. Counsel further submits the requirement of holding academic qualification for the post in question is postulated under Rule 266 of the Rajasthan Panchayati Rules, 1996, which reads as under:-

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Rule 266. Academic qualification: A recruit must possess minimum qualification as under: (3) Primary and Upper Primary School Teacher (100% by Direct recruitment) (a) General Education Level – (I) Class 1 to V

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Qualification as laid down by National Council for Teachers Education under the provisions of sub-section(1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act No.35 of 2009) from time to time.

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Counsel further submits that since vide notification dated 13th of November, 2019, the educational qualification (requirement of 50% marks) has been relaxed by the NCTE w.e.f. 29th, July, 2011. Notification dated 13.11.2019 reads as under:-

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“1. In the said notification in paragraph 1. in sub-paragraph(ii).-(A) in clause (a) for the words, figures, brackets and letters “ Graduation with at least 50% marks and 1 year Bachelor in Education (B.Ed.)”, the words, figure and letters “At least 50% marks either in Graduation or in Post-Graduation and B.Ed.” shall be substituted.

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(7 of 8)

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[CW-6061/2019]

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(B) After clause (b), at the end, the following proviso shall be inserted, namely:-

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"Provided that minimum percentage of marks in graduation shall not be applicable to those incumbents who had already taken admission to the Bachelor of Education or Bachelor of Elementary Education or equivalent course prior to the 29^th July, 2011.

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This notification shall be deemed to have come into force on the 29^th July, 2011.”

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Learned Additional Advocate General submits that the advertisement was issued in the year 2018 and the petitioner was not having the required educational qualification on the last date of submitting the application form. Learned AAG further submits that the notification issued by the NCTE dated 13th November, 2019 is prospective in nature and the same is not applicable in the present recruitment process.

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Heard counsel for the parties and perused the record.

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This writ petition filed by the petitioner deserves to be allowed; for the reasons, firstly, as per Rule 266 (3)(a) of Rules of 1996, the candidate must possess the academic qualification as laid down by the NCTE and in view of the notification dated 13th November, 2019, which came into force w.e.f. 29th July, 2011, the petitioner is having the required qualification for the post of Teacher Grade-III, Level-II, (Social Science), secondly, in view of the order dated 30.03.2022 passed by the Co-ordinate Bench of this Court in the matter of Minaxi Dadhich (supra), this writ petition deserves to be allowed.

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In that view of the matter, the present writ petition is allowed. The respondents are directed to appoint the petitioner on the post of Teacher Grade-III, Level-II, (Social Science) as per his merit and category within a period of two months after

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(8 of 8)

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[CW-6061/2019]

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receiving the certified copy of this order. The petitioner is held entitled for all the notional benefits. However, no monetary benefit shall be allowed to the petitioner.

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(INDERJEET SINGH),J

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Upendra Pratap Singh /23

Mukesh Kumar Sharma S/O Jagdish Sharma v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

Mukesh Kumar Sharma S/O Jagdish Sharma v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

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