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Judgment
Heard learned counsel for the parties.
Since common questions of law and facts are involved in all these cases, the same were heard together with consent of the learned counsel for the parties, and the same are decided by this common judgment.
For the purpose of convenience, the facts of W.P.(s) No. 4240 of 2023 are taken into consideration to decide the lis.
The brief facts pertaining to the present case is that the Jharkhand Government High School Teaching and Non-Teaching Staff Appointment and Service Condition Rules, 2015 were framed under Article 309 of the Constitution, wherein Rule 9(I)(i) prescribed the educational qualification for appointment to the post of Graduate Trained Teacher; one of the qualifications prescribed was Post Graduation.
Pursuant thereto, Jharkhand Staff Selection Commission (JSSC) issued Advertisement No. 21/2016 dated 28.12.2016 for appointment against 17,786 posts of Graduate Trained Teachers for different subjects including the subject of Sanskrit. Thereafter, there being difference and ambiguities prescribed in the educational qualifications for appointment to the post of Sanskrit, Urdu, Farsi, Arabic teachers, the JSSC vide letter dated 10.01.2017 proposed to the State Government for amendments and the State Government in exercise of power under Rule 16 of the Rules of 2015, vide letter number 58 dated 11.01.2017 and the departmental secretary vide letter no. 30 dated 13.01.2017 accepted the proposals made by the JSSC and approved the draft of the advertisement while making a request for issuance of amended advertisement.
Pursuant to such actions and decisions taken by the State Government, the JSSC issued another advertisement with amended educational qualifications for appointment on the post of Sanskrit, Urdu, Farsi and Arabic teachers. The amended advertisement has been annexed as Annexure-4 to writ petition which clearly shows that under the amended criteria, one of the qualifications for appointment as Graduate Trained Teacher in Sanskrit was prescribed as Graduation degree from a recognized university with minimum 45 % marks and B.Ed.
The petitioners accordingly participated in the selection process; however, their candidature has been rejected vide communication dated 21.06.2023 (Annexure-13 Series) for want of Post-Graduation in Sanskrit/Acharya on the last date of application, which is contrary to the qualification as clarified and adopted by the State Government and as prescribed in the subsequent amended advertisement.
Mr. Ajit Kumar, Ld. Sr. Counsel appearing for the petitioners submitted that the Jharkhand Government High School Teaching and Non-Teaching Staff Appointment and Service Condition Rules, 2015 (hereinafter referred to as the Rules of 2015) were framed under Article 309 of the Constitution, wherein Rule 9 (I)(i) prescribed the educational qualification for appointment to the post of Graduate Trained Teacher. In the said rules, originally, in respect to the post of Sanskrit, the qualification of Acharya (Sahitya or Vyakaran) granted by a University/Institution recognized by the State Government or the Central Government or Post Graduation degree was prescribed.
Ld. Sr. Counsel has also drawn attention towards Rule 16 of the Rules of 2015 which specifically empowers the State Government that in case any difficulty arises in giving effect to the provisions of the Rules, to take such action or pass such order as may be considered necessary for removal of such difficulty. The Rule further provides that any such action taken or order passed by the State Government shall be deemed to form part of the Rules itself.
Ld. Sr. Counsel has relied upon Letter No. 58 dated 11.01.2017 (Annexure-3 Series at Page 83) and Letter No. 30 dated 13.01.2017 (Annexure-3 Series at Page 85) which also refers to the Government Letter No. 25 dated 11.01.2017 to argue that subsequent to the original advertisement at Annexure-2, the JSSC had made a proposal to modify the educational qualification for the post of Sanskrit, Urdu, Arabic and Farsi teachers; which the State had accepted and in exercise of power under Rule 16 of the Rules, 2015, clarified the educational qualification for Sanskrit and aforesaid other subjects and recognized Graduation in the concerned subject with the prescribed minimum marks as an eligibility qualification.
It has been submitted that the said clarification formed part of the Rules and was required to govern the selection process.
He further submitted that in furtherance of the aforementioned communications and decisions of the State Government dated 11.01.2017 & 13.01.2017, the respondent JSSC published an amended Advertisement with the same number wherein one of the education qualifications for appointment to the post of Graduate Trained Teacher in the subject of Sanskrit was Graduation Degree with 45% marks in the subject of Sanskrit with B.Ed.
Ld. Sr. Counsel further draws the attention of this Court towards the fact that all the petitioners possess Graduation degree in Sanskrit with minimum 45% marks, which shall be evident from Annexure-5 (Series) at Page 102. It has been argued that the petitioners participated in the recruitment process and they even qualified in the examination and were called for document verification; however, their candidature was rejected vide notice dated 21.06.2023 (Annexure-13 Series at Page 159) on the ground that they did not possess the Post Graduation Degree or have submitted the degree which has been issued after 25.04.2017 i.e. the last date of filing up of the application form.
It has been further submitted that the rejection of the candidature of the petitioners is wholly arbitrary and contrary to the very terms and conditions prescribed by the respondents themselves. It was the State Government itself, who in exercise of its statutory power under Rule 16 of the Rules of 2015, vide Letter No. 58 dated 11.01.2017 and Letter No. 30 dated 13.01.2017 consciously clarified/modified the educational qualification for the post of Graduate Trained Teacher in Sanskrit and recognized Graduation Degree in Sanskrit with the prescribed minimum marks as one of the eligible qualifications.
The said qualification was thereafter specifically incorporated by JSSC in the Amended Advertisement No. 21/2016, pursuant to which the petitioners, who admittedly possess Graduation Degree in Sanskrit with the requisite marks, applied, participated in the examination, qualified and were called for document verification.
It has been further submitted that having themselves prescribed and incorporated “Graduation in Sanskrit as an eligible qualification”, the respondents cannot subsequently turn around and reject the candidature of the petitioners on the ground that they did not possess “Post-Graduation in Sanskrit/Acharya as on the last date of submission of application”. Such a ground would amount to imposing an additional eligibility condition after completion of substantial stages of the recruitment process and would render the specific amendment/clarification issued by the State Government under Rule 16 wholly meaningless. The respondents are bound by the eligibility conditions contained in their own amended advertisement and cannot be permitted to approbate and reprobate by accepting Graduation in Sanskrit for permitting participation in the selection process, while insisting upon Post-Graduation/Acharya at the stage of final appointment.
The impugned rejection is, therefore, ex facie arbitrary, discriminatory and contrary to the Rules of 2015 as modified/clarified by the State Government. It has also been argued that as per Rule 7 of the Rules of 2015 the cadre was declared to be “Graduate Trained Teachers” and for all the subject teachers except Sanskrit etc. minimum educational qualification was prescribed as “Graduation”, thus apparently there was ambiguity and due exercise was undertaken by the Respondent JSSC as well as the State Government for removal of the difficulties and for which also power has been given in Rule 16 of the Rules of 2015 as such the Respondents cannot be allowed to turn their faces after having exercised the authority and jurisdiction under Rule 16 particularly when the entire selection process was undertaken on the basis of the amended advertisement with amended educational qualifications for the post of Sanskrit teachers.
Mr. Kumar also pointed out that the other grounds taken by the Respondents in the impugned notice dated 21.06.2023 is also non-est as it is not a case of any between the Rules and advertisement; moreover, the Respondents cannot be allowed to take advantage of their own wrong to the serious detriment and prejudice to the petitioners who may lose a golden chance of being appointed on a government job which is otherwise also a graduate trained teachers cadre.
Ld. Counsel appearing for the State and JSSC submits that the candidature of the petitioners has been rightly rejected, inasmuch as, the statutory Rules of 2015 did not prescribe Graduation in Sanskrit as an eligible qualification for appointment to the post of Graduate Trained Teacher in Sanskrit. It is contended that the qualification mentioned in the prospectus/advertisement, insofar as it permitted Graduation in Sanskrit, was at variance with the qualification prescribed under the statutory Rules, and the terms of an advertisement cannot override or amend the Rules framed under Article 309 of the Constitution. Accordingly, in the absence of the requisite Post-Graduation/Acharya qualification as prescribed under the Rules, the petitioners were not eligible for appointment and their candidature has therefore been validly rejected.
Having heard Ld. Counsel for the parties and upon perusal of the materials available on record, this Court finds that the controversy lies in a narrow compass. Though the Rules of 2015 originally prescribed Post-Graduation/Acharya as one of the qualifications for Sanskrit/ Urdu, Farsi and Arabic; Rule 16 of the Rules itself conferred power upon the State Government to remove any difficulty arising in implementation of the Rules and further provides that any action taken or order passed in exercise of such power, shall be deemed to form part of the Rules.
It is in exercise of the aforesaid power that, vide Letter No. 58 dated 11.01.2017 followed by Letter No. 30 dated 13.01.2017, the qualification for Sanskrit/Urdu/Farsi and Arabic was clarified and Graduation in the concerned subject with the prescribed minimum marks was expressly recognized as an eligible qualification.
The said clarification was thereafter given effect to by JSSC by incorporating the same in the amended Advertisement No. 21/2016.
Thus, the contention of the respondents that Graduation in Sanskrit/Urdu/Farsi and Arabic was merely a qualification contained in the advertisement contrary to the statutory Rules cannot be accepted.
The inclusion of Graduation was not an independent act of JSSC dehors the Rules; rather, it emanated from the decision of the State Government itself taken in exercise of power under Rule 16, which, by the express language of the Rule, became part of the statutory framework. Once the State itself consciously modified/clarified the eligibility condition and caused the same to be incorporated in the amended advertisement; it cannot subsequently ignore its own decision and insist upon Post-Graduation/Acharya as the sole qualifying condition.
This Court further finds that the petitioners admittedly possessed Graduation degrees in Sanskrit/Urdu/Farsi and Arabic and as prayed in respective writ applications with the requisite marks, applied pursuant to the amended advertisement, participated in the examination, qualified and were thereafter called for document verification.
Their candidature could not, therefore, have been rejected at the final stage on the ground that they did not possess Post-Graduation/Acharya/Urdu/Farsi and Arabic as on 25.04.2017, since such rejection/non consideration is directly contrary to the eligibility criteria prescribed by the respondents themselves under Rule 16 and incorporated in the amended advertisement.
Permitting the respondents to do so would amount to changing the eligibility criteria after the selection process had been undertaken and would render the clarification dated 11.01.2017 and 13.01.2017 wholly otiose. Hence the candidature of the petitioners should have been considered for appointment.
Accordingly, this Court is of the considered view that the impugned notice dated 21.06.2023 and the consequential communications dated 28.06.2023, 01.07.2023 (in W.P.(S) No. 4240 of 2023), notice dated 21.06.2023, (in W.P.(S) No. 5869 of 2024), Para 5(3) of notice dated 08.12.2023 (in W.P.(S) No. 6048 of 2024) and part of the notice dated 21.06.2023 (in W.P.(S) No. 3974 of 2024) insofar as they reject the candidature of the petitioners merely for want of Post-Graduation in Sanskrit/Acharya/Urdu/Farsi and Arabic, cannot be sustained in law and are, hereby, quashed and set aside.
Consequently, all these writ petitions are allowed and the respondents are directed to accept the candidature of the petitioners and grant them for appointment to the post of Graduate Trained Teacher 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.
Accordingly, these applications stand allowed. Pending I.A(s), if any, also stands closed.