Dismissed

Pradeep Isarwal v. the State of Rajasthan

Rajasthan HC27 Jul 2023CW/2044/2023

Case brief

AI extract

What is this about?

This writ petition challenged the deletion of a proviso to Rule 266(3) of the Rajasthan Panchayati Raj Rules, 1996, which would have allowed candidates to apply without requisite qualifications at the time of application. The court dismissed the petition, relying on a Supreme Court judgment stating the proviso was already deleted in 2011.

What did the court decide?

The writ petition challenging the notification dated 15.09.2021 was dismissed.

Pradeep Isarwal Vs the State of Rajasthan — Pension and Retirement Benefits | Rajasthan HC (2023)

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[2023:RJ-JD:23818-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Civil Writ Petition No. 2044/2023

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Pradeep Isarwal S/o Shri Shankar Lal, Aged About 22 Years, R/o Village Jajiwal, District Jodhpur, Rajasthan.

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Khushbu D/o Shri Ramniwas, Aged About 23 Years, R/o Village Ghadsana, District Sri Ganganagar, Rajasthan.

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Ananya Manda D/o Shri Ram Chandra, Aged About 23 Years, R/o Village Ghadsana, District Sri Ganganagar, Rajasthan.

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Shubham Gehlot S/o Shri Rajendra Gehlot, Aged About 26 Years, R/o Village Jasrasar, District Bikaner, Rajasthan.

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Vinod Kumar Prajapati S/o Shri Shankar Lal, Aged About 26 Years, R/o Village Dodwadi, District Tonk, Rajasthan.

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Gajendra Sharma S/o Shri Girraj Prasad Sharma, Aged About 24 Years, R/o Ward No.22, Sawai Madhopur, Rajasthan.

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Suman D/o Shri Bhagaram, Aged About 22 Years, R/o Village Bhatinda, District Jodhpur, Rajasthan.

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Satpal Bana S/o Shri Munniram Bana, Aged About 20 Years, R/o Village Jasrasar, District Bikaner, Rajasthan.

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Shiv Prakash S/o Shri Jai Pal, Aged About 22 Years, R/o Ward No.4, Kanwani District Hanumangarh, Rajasthan.

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Nishant Saharan S/o Shri Ram Singh, Aged About 20 Years, R/o Village Pandusar, District Hanumangarh, Rajasthan.

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Manisha Prajapat D/o Shri Shiv Raj Prajapat, Aged About 21 Years, R/o Village Mehandiwas, District Tonk, Rajasthan.

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Ram Lal S/o Shri Shyama Ram, Aged About 20 Years, R/o Feench, District Jodhpur.

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----Petitioners

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Versus

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The State of Rajasthan through the Secretary, Department of Rural Development and Panchayati Raj., Secretariat, Jaipur, Rajasthan.

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The State of Rajasthan through the Secretary, Department of Elementary Education, Secretariat, Jaipur, Rajasthan.

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(2 of 6)

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[2023:RJ-JD:23818-DB]

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[CW-2044/2023]

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National Board of Examination in Rehabilitation, Department of Empowerment of Persons with Disabilities (Divyangjan) Government of India, through its Examination Controller, B-22, Qutab Institutional Area, New Delhi 110016

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The Chairman, Rajasthan Staffs Selection Board, Jaipur, Rajasthan.

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The Coordinator, Pre D.ei.ed. Examination, 2020 and Registrar, Departmental Exams (Educations), Rajasthan, Bikaner.

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----Respondents

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For Petitioners : Mr. Manoj Bhandari, Sr. Advocate assisted by Mr. Aniket Tater For Respondents : Mr. Sunil Beniwal, AAG Mr. Pankaj Sharma, AAG Mr. Rishi Soni, AAAG Mr. Deepak Chandak, AAAG

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HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT

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Order

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27/07/2023

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1. By way of this writ petition, the petitioners have challenged the validity of the notification dated 15.09.2021 (Annexure-8) claiming that vide said notification, the respondents deleted the proviso to Rule 266(3) of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter to be referred as ‘the Rules of 1996’), which allows the candidates to furnish the proof of qualifying examination before declaration of result of the written examination.

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2. Brief facts of the case are that the petitioners applied for appointment on the post of Primary School Teacher pursuant to

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(3 of 6)

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[2023:RJ-JD:23818-DB]

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[CW-2044/2023]

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the advertisement dated 16.12.2022 (Annexure-4) issued by the Rajasthan Staff Selection Board, Jaipur.

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3. Admittedly, on the last date of filing of the application form, pursuant to the said advertisement, the petitioners were not having requisite qualification i.e. Diploma in Elementary Education and obtained the same subsequently.

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4. The petitioners are claiming that the proviso to Rule 266(3) of the Rules of 1996 permits the candidates to furnish proof of acquisition of requisite qualification before declaration of result of the written examination held in pursuance of the advertisement. It is claimed that vide notification dated 15.09.2021 (Annexure-8), the proviso to Rule 266(3) of Rules of 1996 was deleted and that action of the State Government is illegal, discriminatory and ultra vires to the Constitution of India.

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5. Reply to the writ petition has been filed on behalf of the respondent – State, wherein it is stated that as a matter of fact the proviso to Rule 266(3) of the Rules of 1996 was not in existence at the time of filing of writ petition because the same was already deleted way back in the year 2011 itself.

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6. It is submitted by learned AAGs that the said proviso was added in the Rules of 1996 vide notification dated 28.06.2006, however, later on, the said proviso came to be deleted vide another notification dated 11.05.2011.

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7. Mr. Pankaj Sharma, learned AAG has submitted that this fact situation has already been taken into consideration by the Hon’ble Supreme Court of India in its judgment dated 12.09.2019 rendered in State of Rajasthan & Ors. Vs. Trilok Ram reported

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(4 of 6)

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[2023:RJ-JD:23818-DB]

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[CW-2044/2023]

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in (2019) 10 SCC 383 , wherein it is held that the candidates must possess the qualifications on the last date when applying under the advertisement and not after that date.

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8. Heard learned counsel for the parties.

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9. The contention of the petitioners that the respondents deleted the proviso to Rule 266(3) of the Rules of 1996 vide notification dated 15.09.2021 (Annexure-8) unabling the petitioners to furnish the proof of obtaining requisite qualification on the date of declaration of result of the written examination, has been countered by the respondent - State on the ground that the said proviso is not in existence since 2011. The contention of the respondent – State is fortified by the judgment dated 12.09.2019 rendered by the Hon’ble Supreme Court of India in State of Rajasthan & Ors. Vs. Trilok Ram (supra), wherein it is specifically ruled that the proviso to Rule 266(3) of the Rules of 1996 came to be deleted in the year 2011 itself.

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10. The relevant part of the judgment dated 12.09.2019 rendered by the Hon’ble Supreme Court of India in State of Rajasthan & Ors. Vs. Trilok Ram (supra) is quoted hereunder :-

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“20. Therefore, when a substitution was carried out initially on 28-6-2006, all the provisions of clause (3) of Rule 266, as it stood, suffered a repeal and in its place a new avtar was born. It must be at once remembered that the proviso was inserted on 1-7-2004 in clause (3) of Rule 266. Therefore, when the rule-making authority substituted clause (3) of Rule 266 by the amendment dated 28-6-2006, the inevitable result would be the repeal of entire clause (3) of Rule 266 including the proviso. It is crucial to bear in mind that the amendment to Rule 266(3) by substitution did not expressly save the proviso. It is equally important to be

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(5 of 6)

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[2023:RJ-JD:23818-DB]

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[CW-2044/2023]

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not oblivious to the fact that the proviso was an integral part of clause (3) of Rule 266. Since Rule 266(3) came to be substituted, having regard to the legal consequences of the same, the proviso could not survive.

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21. The fact that the proviso had ceased to exist as a result of the substitution dated 28-6-2006 is unambiguously demonstrated by the fact the rule-making authority chose to step in by issuing Notification dated 29-11-2006 by inserting again the proviso to Rule 266(3). It read as follows:

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“Provided that the person who has appeared or is appearing in the BEd/BSTC/DSE/BEd(Special Education) Examination shall be eligible to apply for the post of primary and upper primary school teachers (General Education/ Special Education) but he shall have to submit proof of having acquired the said educational qualification to the Rajasthan Public Service Commission before the declaration of result of the competitive examination.”

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It is by a subsequent amendment that the words “District Establishment Committee” were inserted in place of Rajasthan Public Service Commission.

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22. Rule 266(3) as was brought into life by the amending Act dated 28-6-2006 continued to hold the field till it suffered substitution by Notification dated 11-5-2011. Apparently, consequent upon the need to change the qualifications, Rule 266(3) came to be substituted. However, it is not in dispute that after the substitution dated 11-5-2011, the proviso relied upon by the respondent has not been brought back into existence as was done in the year 2006.

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23. We would think whatever ambiguity there may have been as to the actual effect of the substitution, it stands removed by the legislative history of clause (3) of Rule 266 including the proviso therein. The legislative intention is clear that when rule-maker substituted the provisions of clause (3), it intended that the entirety of clause (3) would stand obliterated as indeed is the effect of a repeal and a new set of provisions taking its place. It is on this understanding that the rule-making authority, when it intended that the proviso must govern, it expressly did so,

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(6 of 6)

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[2023:RJ-JD:23818-DB]

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[CW-2044/2023]

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and it issued the notification dated 29-11-2006. Admittedly after 11-5-2011, the proviso has not been brought back to life. Apparently, the Notification dated 29-11-2006 bringing the proviso back to life after the substitution of clause (3) of Rule 266 in 2006 was not brought to the notice of the High Court.

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24. As far as the Circular dated 29-2-2012 relied upon by the respondent is concerned, it related to the advertisement issued in 2012 though legally the proviso to Rule 266(3) was non-existent. For whatever reasons it may have been, the order came to be issued extending the benefit of the proviso but after changing the condition in the advertisement. It cannot advance the case of the respondent who applied pursuant to a later advertisement dated 11-8-2013 wherein the requirement as to possession of qualifications as on the last date is clearly indicated. As far as the advertisement with which we are concerned which is of the year 2013, the Circular dated 29-2-2012 cannot be pressed into service by the respondent both in law and on facts.

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25. The candidates must possess the qualifications on the last date when applying under the advertisement when it is so provided. In view of our finding that the proviso had ceased to exist after substitution of Rule 266(3) by Notification dated 11-5-2011, there can be no question of the advertisement being opposed to the statutory rule.”

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11. In view of the above discussions, we don’t find any force in

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this writ petition and the same is, therefore, dismissed.

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12. Stay petition also stand dismissed.

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(YOGENDRA KUMAR PUROHIT),J

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(VIJAY BISHNOI),J

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Abhishek Kumar S.No.37

Pradeep Isarwal v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

Pradeep Isarwal v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

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