Nilu Kumri & Ors. vs The State Of Jharkhand & Ors.

Heard learned counsel for the parties.

Since common issues are involved in all these writ petitions; with consent of the parties, all were heard together and are being disposed by this common order, and the facts relevant to decide the main lis has been taken from W.P.(S) No. 4883 of 2021 as lead case.

Pursuant to Advertisement No. 21/2016 dated 28.12.2016, issued by the Jharkhand Staff Selection Commission for district-wise and subject-wise appointment to the posts of Graduate Trained Teachers, the petitioners, possessing graduation degrees with History & Civics and having secured the requisite percentage of marks prescribed under Rule 9(1)(i) of the Jharkhand Government Secondary School Teaching and Non-Teaching Staff Appointment and Service Conditions Rules, 2015, applied for appointment in the subject of History/Civics. The petitioners duly participated in the selection process, were declared successful and their names were recommended by the Commission for appointment in their respective districts, pursuant whereto they were also called for counselling and document verification.

However, despite the aforesaid recommendation and completion of counselling, the petitioners were denied appointment solely on the basis of Letter No. 1950 dated 20.10.2021, particularly Clause 5 of the same, issued by the Director, Secondary Education, whereby the concerned District Education Officers were directed to appoint only those candidates who had History or Civics as their main subject and not as a subsidiary/optional subject.

The stand taken by the petitioners is that the aforesaid requirement was neither contained in the Rule 9(1)(i) of the Rules, 2015; nor in the Advertisement No. 21/2016 and was sought to be introduced after the selection process had substantially concluded. Aggrieved by the denial of appointment on the basis of an additional and subsequently introduced eligibility condition, the petitioners have approached this Court for the prayers quoted above including quashing of Clause 5 of Letter No. 1950 dated 20.10.2021 and a direction upon the respondents to appoint them in accordance with the eligibility conditions prevailing under the Rules, 2015 and Advertisement No. 21/2016.

Mr. Ajit Kumar, Ld. Sr. Advocate appearing for the petitioners argued that the petitioners participated in the Combined Graduate Trained Teacher Competitive Examination, 2016 pursuant to Advertisement No. 21/2016 for appointment as Graduate Trained Teachers in History/Civics. They were declared successful, recommended by the Jharkhand Staff Selection Commission and called for counselling/document verification in their respective districts. Their appointments were thereafter withheld solely because of Clause 5 of Letter No. 1950 dated 20.10.2021, which required History or Civics to be a main subject and excluded a subsidiary subject.

Learned Senior Counsel has further argued that the governing statutory provision is Rule 9(1)(i) of the Jharkhand Government Secondary School Teaching and Non-Teaching Staff Appointment and Service Conditions Rules, 2015 and the said rule clearly prescribed a Bachelor's degree from a recognized institution with a minimum of 45% marks in the subject in which appointment was to be made, with the corresponding relaxation to 40% for Scheduled Caste and Scheduled Tribe candidates. The Rule nowhere uses the expressions 'main subject', or 'honours subject', or like-wise, therefore superimposing such a meaning to the qualification condition as contained in the aforesaid Rules or the advertisement is wrongful and illegal.

It has been further contended that the Advertisement No. 21/2016 dated 28.12.2016 was issued for district-wise and subject-wise recruitment of “Graduate Trained Teachers”. Clause 4 prescribed the qualification for several subjects and subject-combinations. Clause 5(ii) expressly contemplated that a candidate possessing the minimum educational qualification for more than one subject/post could exercise options for more than one subject within the same district.

It has been further argued that Clause 5(ii) is of utmost significance for the purpose of construing the correct meaning of the qualification conditions as contained in Rule 9(1)(i) of the Rules and Clause 4 of the advertisement and if the stand as taken by the Respondents about the subject to be the main subject in the graduation will be accepted; the Clause 5(ii) shall stand as thoroughly redundant.

Mr. Ajit Kumar, while explaining the conditions with respect to the subject appointment in History/Civics while pointing out the language in Clause 4 (Para 4) of the advertisement, argues that the condition requires a candidate to have studied both History and Civics/Political Science in the graduation and have obtained at least 45% in both the subjects with B.Ed. degree and for the purpose of the reserved categories the marks percentage has been relaxed to 40 % with B.Ed. degree. He further pointed out that likewise for appointment in other combination of subjects like Biology/Chemistry the candidate was supposed to be graduate with Zoology, Botany and Chemistry having obtained at least 45% marks in Zoology or Botany and Chemistry, Likewise for Mathematics and Physics also a candidate is supposed to have studied both the subjects i.e. Mathematics and Physics.

Ld. Sr. Counsel contended that in view of the above and particularly when as per Clause 5 (ii) of the advertisement, a candidate could apply in more than one subject, the stand of the Respondents that the subject concerned has to be the main subject in graduation is wrongful and against the provisions of the Rules and Advertisement.

Ld. Sr. Counsel emphasized that an honours graduate ordinarily has only one main/honours subject and if the eligibility were confined exclusively to one/main subject, the provision to apply in more than one subject as provided in clause 5 (ii) would be rendered meaningless. The scheme of the advertisement instead, required study in combination of subjects in graduation and does not exclude an optional or subsidiary subject which otherwise satisfies the stipulated marks requirement.

Learned Senior Counsel further draws attention of this Court towards the reasoning given in the impugned office order dated 20.10.2021 regarding Deokant Sriniwas & Anr. v. State of Jharkhand & Ors., L.P.A. No. 403 of 2016, decided on 10.05.2018, to suggest and argue that the said reasoning is non-est as that case arose from Advertisement No. 93/2011 issued by the Jharkhand Academic Council. The appellants were graduates in Political Science and Commerce and sought appointment in Hindi merely because they had passed Hindi as a compulsory Modern Indian Language paper common to the graduation course.

The learned Single Judge in W.P.(S) No. 5210 of 2015 rejected the claim because Hindi was neither the substantive optional, nor subsidiary subject of those candidates; it was only MIL Hindi. The Division Bench affirmed that result.

The present petitioners, on the other hand, seek appointment in History/Civics, which they studied as substantive graduation subjects and in which they claim the prescribed percentage of marks. Deokant Sriniwas (supra) did not consider this factual category or Clause 5(ii) of Advertisement No. 21/2016.

Learned Senior Counsel had also contended that the executive instruction dated 20.10.2021 cannot add a qualification which is absent from the statutory Rules of 2015 and the advertisement. Executive instructions may supplement a Statutory Rule where there is a genuine gap, but cannot supplant, amend or contradict the Rules itself. In this regard reliance was placed upon Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910.

Mr. Kumar also contended that similarly situated candidates possessing the same pattern of graduation qualification were appointed in different districts; whereas the petitioners alone were denied appointment. Such selective application of an extra-statutory condition is arbitrary and violative of Articles 14 and 16 of the Constitution of India.

Per contra, Ld. Counsel appearing for the respondent JSCC and the State, while opposing the writ petition, submitted that Rule 9(1)(i) requires a Bachelor's degree with the prescribed marks 'in the subject in which the appointment is made'. According to the respondents, this expression necessarily means the candidate's main subject, studied throughout the three-year graduation course, and cannot include a subsidiary subject.

The respondents however, accepted that the petitioners cleared the examination and were recommended for History/Civics, but submitted that the recommendations were provisional and remained subject to scrutiny by the appointing authorities. He also submitted that upon verification it was found that none of the petitioners possessed History or Civics as the main subject; consequently, appointment was lawfully withheld.

Learned Counsel for the respective Respondents relied upon paragraphs 6 and 7 of the order dated 10.05.2018 in Deokant Sriniwas; L.P.A. No. 403 of 2016. It has been submitted that the Division Bench construed the expression 'in the concerned subject' to mean that the candidate must have cleared graduation with the subject for which appointment is sought as the main subject. Since that judgment has not been set aside, the Director was bound to issue uniform guidance to all District Education Officers.

It was further submitted that Letter No. 1950 dated 20.10.2021 and the subsequent guideline, Letter No. 1954 dated 21.10.2021, merely implemented the binding declaration in Deokant Sriniwas (supra). For combined subjects such as History/Civics, the guideline required at least one of the paired subjects to be the candidate's main subject.

The State also relies upon Shankarsan Dash (supra), Punjab State Electricity Board v. Malkiat Singh, (2005) 9 SCC 22, All India SC & ST Employees' Association v. A. Arthur Jeen, (2001) 6 SCC 380 and State of Orissa v. Bhikari Charan Khuntia, (2003) 10 SCC 144 to contend that inclusion in a merit or recommendation list does not create a vested right to appointment.

Having heard learned counsel for the parties and upon perusal of the pleadings and documents on record, the principal questions which arise for consideration are as follows:

Rule 9(1)(i), as it stood when Advertisement No. 21/2016 was issued, required a Bachelor's degree with the prescribed percentage of marks 'in the subject in which the appointment is made'. The rule-making authority did not employ the expressions 'main subject', 'honours subject' etc.

A court cannot ordinarily add words to a statutory qualification, particularly where the added words operate to disqualify candidates after completion of a competitive selection.

The advertisement must be read as a whole. After going through the Advertisement No. 21 of 2016, it is evident that Clause 4 prescribed the qualification for several subjects and subject-combinations. Clause 5(ii) expressly contemplated that a candidate possessing the minimum educational qualification for more than one subject/post could exercise options for more than one subject within the same district.

On a careful scrutiny of the language used in Clause 4 (Para 4) of the advertisement, it appears that the condition requires a candidate to have studied both History and Civics/Political Science in the graduation and have obtained at least 45% in both the subjects with B.Ed. degree and the minimum marks for reserve candidates has been made 40 % with B.Ed. degree.

It further appears that likewise for appointment in other combination of subjects such as Biology/Chemistry the candidate was supposed to be graduate with Zoology, Botany and Chemistry having obtained at least 45% marks in Zoology or Botany and Chemistry, likewise for Mathematics and Physics also a candidate is supposed to have studied both the subjects i.e. Mathematics and Physics.

If the said conditions are looked into with the provisions made in Clause 5 (ii) of the advertisement, a candidate could apply in more than one subject; thus the reasoning given in the impugned order dated 20.10.2021 or the arguments advanced by Ld. Counsel for the Respondents is difficult to be reconciled and it cannot be held that the Rules or the Advertisement in question prescribed for an inflexible proposition that only the single honours/main subject can only be considered for appointment.

In considered view of this Court, the more harmonious reading of the provisions of the Rules and the Advertisement shall be that a substantive optional or subsidiary subject forming part of the graduation degree may satisfy the conditions of qualification as prescribed, provided the candidate obtained the prescribed marks and satisfied every other notified condition.

Further there is a material distinction between a substantive optional/subsidiary subject and a compulsory qualifying language paper. The Petitioners in “Deokant Sriniwas” (supra) were graduates in Political Science and Commerce who sought appointment in Hindi on the strength of MIL Hindi, a paper which every graduate was required to pass.

The Court held that such a compulsory paper did not make them graduates in Hindi for appointment as Hindi teachers.

The present petitioners rely upon History/Civics as substantive subjects reflected in their university records, not upon a common compulsory language paper.

Paragraphs 6 and 7 of Deokant Sriniwas (Supra) undoubtedly used the expression 'main subject'. Those observations, however, must be understood in the context of the claim decided therein. The Division Bench in that case was examining a different advertisement issued by Jharkhand Academic Council in the year 2011 and further the Petitioners of that case were graduates in Political Science and Commerce who sought appointment in Hindi on the strength of MIL Hindi, a paper which every graduate was required to pass.

Thus, the very foundational facts of the relied upon case with the instant case is distinguishable. Further, it cannot be said that the Division Bench had examined the conditions as stipulated in Clause 4 of the Advertisement No. 21/2016 which prescribes different minimum eligibility criteria for language and other subjects such as Hindi, English, Odiya, Bangla, Geography etc. or Sanskrit, Urdu, Farsi and Arbi; whereas the minimum eligibility conditions have been differently worded for combination of subjects i.e. Mathematics / Physics, Biology / Chemistry and History / Civics.

Apparently and in view of the specific language used for the minimum eligibility qualification for combination of subjects like History/Civics, the conditions as prescribed for the language and other subjects as mentioned above or as was decided in Deokant Sriniwas (Supra) cannot be applied in the present set of facts and circumstances.

One another aspect of the matter is that the Rules and/or the Advertisement never barred any candidates who has not done Honours or who has done graduation as B.Sc. General/B.A. General/Commerce etc.

It further appears that the recruitment in question commenced with Advertisement No. 21/2016 dated 28.12.2016. The petitioners appeared in the examination, were declared successful, were recommended by JSSC and were called for counselling before the 2022 amendment. Their eligibility must consequently be tested under the unamended 2015 Rules and the terms of the 2016 advertisement.

The judgments cited by the respondent JSSC and the State on absence of an indefeasible right to appointment do not answer the petitioners' challenge. Shankarsan Dash (Supra) itself recognizes that the State cannot act arbitrarily.

The Petitioners are not asking the Court to compel appointment merely because vacancies were advertised; they question the only stated ground of exclusion as contrary to the statutory rules and advertisement. Once that ground succeeds, their cases require fresh consideration in accordance with the lawful criteria.

Equally, the petitioners' plea regarding appointments of similarly situated candidates cannot by itself create a right if those appointments were illegal but it appears to the Court that the Respondents, for the purpose of appointing those candidates in other districts, then, correctly interpreted the provisions which they have now interpreted differently for the purpose of the petitioners.

The decisive basis of relief is not negative equality but the independent conclusion that the impugned main-subject condition was not part of the governing 2015 Rules or Advertisement No. 21/2016. The alleged differential treatment nevertheless illustrates the need for a uniform reconsideration under the notified criteria.

This Court, therefore, finds that Clause 5 of Letter No. 1950 dated 20.10.2021, insofar as it makes possession of History or Civics as a main subject an indispensable condition for candidates governed by Advertisement No. 21/2016, cannot be sustained.

The respondents must assess whether each petitioner had History/Civics as a substantive subject forming part of the graduation degree and obtained the percentage of marks prescribed by the unamended Rule 9(1)(i), without applying the later requirement that the subject must be the Main/Honours subject or must have been studied in all three years.

Accordingly, the impugned order contained in Letter No. 1950 dated 20.10.2021 in W.P.(S) No. 4883 of 2021 in so far as its Clause 5 is concerned, and other impugned order in respective writ applications is held unsustainable and are hereby quashed to the aforesaid extent.

The concerned respondents are directed to reconsider the candidature of each petitioner against the district and subject for which he or she was recommended by JSSC, strictly in accordance with the unamended 2015 Rules and Advertisement No. 21/2016.

If the petitioners are otherwise eligible and falls within the recommendation against an available vacancy of the original selection, they should be given appointment to the post of Graduate Trained Teachers in the subject of History/Civics along with all consequential benefits. This entire exercise shall be completed within a period of 4 weeks from the receipt of copy of this order.

As a result, all these writ applications are allowed. Pending I.A.(s), if any, also stands closed.