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Judgment
Surinder Singh, J.—By means of the present petition, the petitioner has sought mainly the following relief(s):
(i) That writ in the nature of certiorari may kindly be quashing Clause 4 of Annexure P-7 dated 03.09.2010 which provides that the candidates should be enrolled in B.Ed. qualification and will be able to complete B.Ed. degree by 31.12.2010;
(ii) That writ in the nature of mandamus may kindly be issued, directing the Respondent No.3 to allow the petitioner to complete in the selection process initiated pursuant to advertisement Annexure P-2 and P-5 and be interviewed accordingly in terms of Annexure P-7; AND
(iii) That writ in the nature of mandamus may kindly be issued, directing the respondents, in case, the petitioner comes in merit to adjust him against the available vacancies in the department by assigning him proper seniority in accordance with merit.
Precisely, the facts giving rise to the present petition can be stated thus. Admittedly, the petitioner was holding a Master''s degree in English subject and was appointed on 22.9.2007 as Lecturer (English) on PTA basis in Government Senior Secondary School Paplah and is as such working till date.
Respondent-State vide its Notification No. EDN-A-Kha (3) 3/1988-I dated 1.4.2007 amended the existing R & P Rules in the year 1972, for the post of Lecturer, adding proviso to Annexure-I appended to "Himachal Pradesh Education Department Class-II (School and Inspection Cadre) Service Rules, 1973 after the existing entries appearing before column No.& against serial No. &, that for M.Com candidates, B.Ed. qualification will not be essential till the expiry of period of three years from the date H.P. University allow B.Com/ M.Com candidates to undertake B.Ed. course; with a further proviso that for Contract Lecturers (School Cadre)/ others already engaged for teaching, B.Ed. qualification will not be essential till 31st December, 2010.
The respondent-State issued clarification (Annexure P-3) dated 1.5.2007 that the aforesaid amendment made in the R & P Rules of the Lecturer (School Cadre) is also applicable to the teachers provided by the PTA.
An advertisement No.14/2009 dated 17.2.2008 (Annexure P-5) was issued by the respondent-Board, whereby 80 posts of Lecturer in English were advertised and the minimum qualification as prescribed for the said post was a Master''s degree in relevant subject with B.Ed./ Master''s of Education or its equivalent. Since the petitioner was not B.Ed, as such, he was not eligible for the said post, therefore, he did not apply for the said post in the general category, which was advertised vide Annexure P-2.
The respondent-Board, keeping in view the aforesaid amendment in the R & P Rules, issued notice to the candidates notifying the aforesaid amendment whereby the Master''s degree in the subject concerned from the recognized University with B.Ed. was made as essential qualification or two years integrated M.Sc. Ed. Course or an equivalent course from the recognized University providing further that the Contract Lecturer (School Cadre). Others already engaged for teaching, B.Ed. qualification will not be essential till 31.12.2010, meaning thereby that the essential qualification of B.Ed. was relaxed in the case of those contract Lecturers (School Cadre)/ others already engaged for teaching.
Thus, the petitioner became fully eligible to apply for the said post, as he was already holding the Master''s degree (English) and was engaged for teaching on PTA basis. He applied for the said post and appeared in the written examination and after having been qualified, he was called for the interview vide letter Annexure P-7, which inter-alia contained the following condition in Clause 4, which reads as under:-
B.Ed. degree/ marks list from a recognized University/ Institution. If you were not possessing the B.Ed. degree at the time of application, documentary evidence that you were working as Lecturer as on the last date of application and are continuing in the same capacity and you have been enrolled for B.Ed. qualification and will be able to complete the B.Ed degree by 31.12.2010.
(Emphasis supplied)
The main grouse of the petitioner is that the respondent-Board added the highlighted portion, of their own as it was not the condition in the R & P Rules and there was a clear cut deviation from Annexure P-5 aforesaid.
Learned counsel for the respondent-Board has referred the letter Annexure R-1 dated 20th March, 2010 issued by the respondent- department. It reads as under:
No.EDN-A-Kha(3)-3/98-I. Government of Himachal Pradesh Department of Education.
From:-
The Principal Secretary(Education) to the Government of Himachal Pradesh.
To The Secretary, Himachal Pradesh Subordinate Services Selection Board, Hamirpur, District Hamirpur-177001, Himachal Pradesh.
Dated: Shimla-2, the 20th March, 2010.
Subject:- Clarification regarding acquisition of B.Ed. Degree by the candidates undergoing selection process for the posts of Lecturer.
Sir, I have been directed to refer to meeting held on 20/3/2010 with you in the office chamber of Principal Secretary (Education) to discuss the issue of acquisition of B.Ed. qualification upto 31-12-2010 by those who were working as Contract Lecturers, (School Cadre)/ others already engaged for teaching and had applied for the posts of Lecturers Schools, in response to advertisement No.13/2008 dated 28.8.2008 by the Subordinate Service Board. The intention of incorporating this clause of acquisition of B.Ed qualification upto 31-12-2010 was basically to provide an opportunity to Lecturers already serving and not applicable to fresh candidates. In view of the deliberations held and points clarified thereof, it is intimated that the candidates called for interview after qualifying the written test, may be directed to produce sufficient evidence in support of acquisition of B.Ed. Qualification on the date of interview and those who are undergoing B.Ed. training and are to attain the qualification by 31/12/2010 failing which they may not be considered by the appointing authority.
Yours faithfully, Sd/- Special Secretary (Education)
It is submitted that the aforesaid highlighted condition was included after seeking clarification aforesaid from the first respondent.
After considering the rival contentions of the parties, I am of the opinion that the clarification aforesaid cannot over-ride the statutory provision of the Rules, thus, debarring the petitioner from the interview on this ground is wrong and illegal. Therefore, the condition mentioned in Clause-4 of Annexure P-7 dated 3.9.2010 which provides that the candidate should be enrolled in B.Ed. qualification and will be able to complete the B.Ed. degree by 31.12.2010 is beyond the scope of amendment, therefore quashed. The learned counsel for the petitioner also submitted that otherwise also the petitioner is likely to complete his B.Ed. in the current academic session.
Thus, against the above factual position, the writ of mandamus is issued to respondent No.3 to allow the petitioner to compete in the selection process initiated pursuant to the advertisements Annexures P-2 and P-5 and he be accordingly interviewed by the respondent-Board in terms of Annexure P-7 aforesaid as if the highlighted portion aforesaid was non-existent.
The respondent-Board shall fix a date for the interview of the petitioner giving him a clear cut 15 days time and in case he comes in the merit, the respondent shall adjust him against the available vacancy in the respondent-department assigning him appropriate seniority in accordance with merit.
With the above directions, the writ petition stands disposed of, so also the pending application(s), if any.