N.N. Mathur, J.
1. The appellants by way of separate writ petitions challenged the process of selection on the post of Teachers Gr.II/Senior Teachers, pursuant to the zone-wise advertisements viz; Jaipur, Jodhpur, Kota, Udaipur, Ajmer & Churu. The respondents after due consideration of merit in accordance with the prescribed procedure, issued provisional merit list of 5712 candidates on 19th September 2003. On coming to know of the result, out of thousands of unsuccessful candidates, few of them in total 9 writ petitions under Article 226 came to be filed in October 2003, challenging the process of selection, on diverse grounds. The learned Single Judge dismissed all the writ petitions by impugned judgment dated 4.11.2004 mainly on the ground that no interference is warranted with the selections made on the basis of practice in vogue for long time, more particularly at the instance of the candidates, who have taken a chance and participated in the selection process. Learned Single Judge partly allowed the writ petition being S.B. Civil Writ Petition No. 5709/2003 'Dharamveer v. State' and directed the respondent-State to exclude candidates from consideration possessing the Degree from such of the Institutions, which are situated in the State of J & K, as they are not recognized by the National Council for Teacher Education (in short, 'the NCTE'). Learned Single Judge also held that the knowledge of Rajasthani Language and Culture is an essential part and, as such, directed the State Authorities to look into this aspect at the time the final selection list is prepared and for that, an opportunity of interview may be utilized. The operative part of judgment of the learned Single Judge is extracted as follows:
'The knowledge of Rajasthani Language and Culture is an essential part which will be looked into by the authorities when the final selection list is made and opportunity of interview can be utilised at this juncture. There is still time to judge this aspect as this is requirement of the Rules and the authorities will keep in mind that those who are selected will have the requirement of knowledge of local language and conditions.
This Court finds that no interference is called for in the present selections which have been impugned after the petitioners have chosen to take their chances.
Consequently, these writ petitions having no force are partly allowed as indicated above. Any interim orders passed, are vacated.'
CONTENTIONS:
2. Assailing the judgment of the learned Single Judge, Mr. M. Mridul, learned Senior Advocate, appearing for the appellants, has advanced the contentions as follows:
(i) Learned Single Judge has failed to consider that the selection process as devised by the Advertisement and the Circular cited by the respondents is wholly illegal, the same being contrary to the statutory provisions made by the Rajasthan Educational Subordinate Service Rules, 1971 on the anvil of Rules 11, 19 & 20 read with Item 8(a) of Column F of the Schedule attached to the Rules;
(ii) The merit of the candidates could not be determined only on the basis of the marks in the examination conducted by the different Universities having different perceptions, therefore, interview is the only justified method for selection;
(iii) Learned Single Judge has failed to appreciate the contention raised by the appellants to the effect that while evaluating the merit, the provision of giving credit to marks obtained in additional subject i.e., substitution of marks obtained in additional subject in place of lowest marks obtained in original examination of the graduation, is unfair & violative of Article 14 of the Constitution;
(iv) Learned Single Judge has also failed to appreciate that the exclusion of the experience secured as a Teacher in unaided but recognized institution is a case of discrimination, as it amounts to making unequals equal so as to be violative of Articles 14 & 16 of the Constitution of India;
3. Mr. M.R. Singhvi & Mr. M.S. Singhvi, learned counsel appearing in the Special Appeals filed by the interveners, with the leave of the Court, have assailed the directions of the learned Single Judge to exclude the candidature of those candidates, who had passed their B.Ed. from the institutions affiliated to the Universities of Jammu & Kashmir.
PRELIMINARY OBJECTION:
4. Mr. N.M. Lodha, learned Additional Advocate General, while supporting the judgment of the learned Single Judge, except part of the order excluding the candidates who have obtained B.Ed. Degree from the institutions affiliated to the Universities in the State of Jammu & Kashmir, has reiterated the preliminary objection raised before the learned Single Judge to the effect that the appellants are not entitled to any relief, as they have challenged the process of selection after having participated in the process and the merit list being prepared. Reliance is placed on decisions of this Court in 1972 ILR (Raj.) 711; 2001 (1) RLR 462, 2001 (2) WLC 750, & 2002 (2) WLC 83 and decisions of Apex Court in AIR 1986 SC 1043; 1995 (3) SCC 486; AIR 1998 SC 795; & AIR 1976 SC 2428.
5. Per Contra, it is submitted by Mr. M. Mridul, learned Senior Advocate that in a case where the process of selection is wholly arbitrary and discriminatory, this Court has ample power under Article 226 of the Constitution of India to quash the same, even if the same is challenged after completion of process of selection.
6. To resolve the controversy, we are benefited of the guidance provided by the Apex Court in some of its decisions.
7. In G. Sarana v. Lucknow University reported in AIR 1976 SC 2428, (supra), the process of selection on the post of Professor of Anthropology was challenged. The writ petition was dismissed by the High Court. The Apex Court refused to enter into the question of reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, did not before appearing or at the time of the interview raise even little finger against the constitution of the Selection Committee. The Court observed in para 15 as follows:
'15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal's case (AIR 1957 SC 425) (supra), wherein more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him.
It is further observed thus-'It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.'
8. In Omprakash v. Akhilesh Kumar reported in AIR 1985 SC 1043 (supra), the selection of candidates for appointment to vacancies in Grade III of the Ministerial Staff in the subordinate Courts was challenged. The High Court was of the view that since within the judgeship of Kanpur, the examination had not been held in accordance with the syllabus prescribed by the Rules of 1947 as amended by 1969 amending Rules and all those who were successful and selected for appointment, had no right to be appointed. Accordingly, the High Court quashed the entire process of selection. The Apex Court while reversing the finding recorded by the High Court on merit observed that the High Court ought not to have granted relief to the petitioners therein as they had appeared for the examination without protest and filed the writ petition only after they realized that they would not succeed in the examination. The Court observed thus:
'23. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.'
9. In Madan Lal v. State of J&K; reported in (1995) 3 SCC 486, the process of selection on the post of Munsifs in the State of Jammu & Kashmir was challenged on diverse grounds. The Apex Court before dealing with the contentions reminded that the petitioners as well as the contesting successful candidates were all found eligible in the light of the marks obtained in the written test, to be eligible to be called for oral interview. Up to that stage, there was no dispute between the parties. The petitioners therein also appeared at the oral interview conducted by the members concerned of the Commission, who interviewed the petitioners as well as the contesting respondents concerned. Considering this aspect, the Court observed-
'9...Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three leaned Judges of this court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.'
10. In Union of India v. N. Chandrasekharan reported in AIR 1998 SC 795, (supra) the Court observed that where the candidates were made aware of the procedure for promotion before they appeared for written test and before Departmental Promotion Committee, they cannot subsequently raise a plea that marks allotted to interview and ACR was unduly disproportionate or that the authorities cannot fix minimum marks to be secured at interview or in the ACR.
11. Thus it is now well settled that if a candidate takes a calculated chance and participates in the selection process, then only because the result of the selection is not palatable to him, he cannot turn around and subsequently contend that the process of selection was not proper.
12. Another important feature of the case which deserves consideration is desirability of continuance of the practice prevalent in the Educational Institutions for last number of years. The learned Single Judge refused to interfere with the selection in exercise of powers under Article 226 of the Constitution of India on the ground that the procedure of selection provided under the Rules of 1971 has well served the purpose of the department and only on the basis of novelty of arguments, no interference can be made. It is submitted by Mr. M. Mridul, learned counsel that merely because a provision has been in vogue and has operated upon for long time, the challenge to that cannot be rejected, as the appellant-petitioners had no occasion either to answer or challenge the same operating to their prejudice. It is further submitted that the process which, on the face of it, is discriminatory, arbitrary, unfair and unreasonable, cannot be upheld for this reason that it has operated for long or has not been challenged for long. It is further submitted that in case of violation of fundamental rights, the principle of waiver does not arise as nobody can waive fundamental rights.
13. We have considered the rival contentions. In N. Suresh Nathan v. Union of India reported in 1992 Supp (1) SC 584, the question before the Apex Court was the construction of Rules 7 and 11 of the Recruitment Rules for the post of Assistant Engineer in the State Public Works Department. The Central Administrative Tribunal took the view interpreting the provision, which unsettled the practice in the department. The Apex Court held that construction of a provision should be preferred which is in consonance with the long standing practice prevailing in the concerned department.
14. In Dr. Uma Kant v. Dr. Bhika Lal Jain reported in AIR 1991 SC 2272 the Apex Court held that in case of two possible views in the matters relating to Educational institutions, the Courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by educational authorities.
Thus, ordinarily in educational matters, the Court will not interfere with the selection based on long standing practice in department, unless it is held to be in violation of fundamental rights and unreasonable perpetuating injustice. However the Court may examine the practice on the test of unreasonableness or other established parameters and instead of quashing the entire selection, make the judgment effective for future selections.
In the light of the aforesaid settled legal position of law, we proceed to deal-with the contentions raised by the appellants in seriatim.
CONTENTION NO. (i):
15. In order to appreciate the first contention, it is desirable to acquaint with the relevant provisions of Rajasthan Educational Subordinate Service Rules 1971, hereinafter referred- to as 'the Rules of 1971', whereby recruitment to the post of Teacher Gr.II is governed. The Rules of 1971 have been promulgated by His Excellency the Governor of Rajasthan in exercise of powers conferred by proviso to Article 309 of the Constitution of India for regulating the recruitment to posts in and the conditions of service of persons appointed to the Rajasthan Educational Service. Rule 6 provides that recruitment to the service shall be made by the method of direct recruitment and by promotion in the proportion indicated in Column No. 3 of the Schedule. As per the Schedule, the proportion indicated is 50% by direct recruitment and 50% by promotion. The procedure for direct recruitment has been provided under Part IV. For convenience, the relevant part of Rule 6 is extracted as follows:
'6. Method of recruitment-(1) Recruitment to the service after the commencement of these rules shall be made by the following methods in the proportion indicated in column 3 of the Schedule, namely-
(a) by direct recruitment in accordance with part IV of these rules; and
(b) by promotion in accordance with part V of these rules provided:
(2) Recruitment to the service by the aforesaid methods, shall be made in such a manner that the persons appointed to the service by each method do not at any time exceed the percentage laid down in the Rules/Schedule of the total cadre strength as sanctioned for each category from time to time.
The relevant part of the Schedule is also extracted as follows:
----------------------------------------------------------------------------------------------
S. Name Sources Minimum Post or Qualificati Committee for Senio- Rema
No. of the of qualification the on & direct rity rks
Posts recruit- & posts experi- recruitment to
ment experience from ence the post not
with for direct which required within the
percentage recruitment promotion for purview of
is to be promotion R.P.S.C. and
made for promotion
----------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9
----------------------------------------------------------------------------------------------
8(a) Senior 50% by Graduate xxx xxx 1. Jr./Deputy Rang-
Teacher direct or Director of ewise.
recruitm equivalent Education of
ent & Examinati the range
50% by on with concerned,
prom- atleast two 2. One
otion. subjects District
taught in Education
Schools Officer to be
with nominated by
Degree or Director,
Diploma in Primary &
Education Secondary
or Education.
Montessory 3. One Expert to
training be nominated
by Director
Primary &
Secondary
Education.
----------------------------------------------------------------------------------------------
16. It is worthwhile to state that the expression 'Teacher Gr.II' has been substituted as 'Senior Teacher' vide Notification dated 6.1.1990. Thus, the qualification for direct recruitment on the post of Teacher Gr.II or the Senior Teacher is Graduation or equivalent Examination with atleast two subjects taught in Schools with Degree or Diploma in Education or Montessori. The composition of the Board for interview consists of Jr./Deputy Director of Education of the range concerned, one District Education Officer and one expert to be nominated by the Director. The selections are to be made range wise.
17. Rule 11 of the Rules of 1971 provides for academic and technical qualification and experience, which reads as follows:
'11. Academic and Technical qualification and Experience-A candidate for direct recruitment to the posts enumerated in the Schedule shall, in addition to such experience as is required, process-
(i) the qualification given in column 4 of the Schedule, and
(ii) working knowledge of Hindi written in Devnagri script and knowledge of Rajasthani culture.
Provided that the Widows and Divorced Women will be given relaxation in qualification of STC or B.Ed. as the case may be for appointment to the post of Teacher or Senior Teacher they are otherwise eligible and furnish an undertaking to the effect that the qualification of STC or B.Ed. As may be relevant shall be obtained within a period of three years. They shall also be eligible for grant of Study Leave soon after their appointment for acquiring the qualification of STC or B.Ed.' Rule 19 provides for scrutiny of application, which reads as under: '19. Scrutiny of application-The Commission or the Committee mentioned in column No. 7 of the Schedule, as the case may be, shall scrutinise the applications received by them and required as many candidates qualified for appointing under these rules as seem to them desirable to appear before them for interview.
Provided that the decisions of the Commission or the Committee, as the case may be, regarding the eligibility or otherwise of a candidate shall be final.'
It will further be relevant to acquaint with Rules 20 & 22. Both the provisions are reproduced as follows:
'20. Recommendation of the Commission or the Committee-The Commission or the Committee, as the case may be, shall prepare a list of the candidates whom they consider suitable for appointment and arrange in order of merit. The Commission or the Committee as the case may be, shall forward the list to the Appointing Authority.
(1) Provided that the Commission or the Committee, as the case may be, may to the extent of 50% of the advertised vacancies keep names of suitable candidates on the reserve list. The Commission or the Committee may, on requisition, recommend the names of such candidates in the order of merit to the Appointing Authority within six months from the date on which the original list is forwarded by the Commission or the Committee to the Appointing Authority.
(2) Provided that in case of vacancies determined for the girls schools, only female candidates shall be considered for appointment in the order in which their names appear in the list prepared under Rule 20 irrespective of their relative rank as compared with male candidates. In case, required number of suitable female candidates are not available, male candidates may be appointed according to their order of merit in girls schools also. However, they would be adjusted in boys' schools as and when suitable female candidates are available.
22. Selection by the Appointing Authority-Subject to the provisions of Rule (7, 7A and 7B) the Appointing Authority shall select candidates according to the order of merit in which their names appear in the list prepared under Rule 20.
Provided that the inclusion of a candidate's name in the list confers no right to appointment unless the Appointing Authority is satisfied after such enquiry as may be considered necessary that such candidate in suitable in all other respect for appointment to the post concerned.
Provided further that the Appointing Authority shall be competent to make appointment of Widow and Divorced women fulfills the prescribed qualification to the post of Senior Teacher and teacher as the case may be, without observing the procedure laid down in part IV of these rules.'
18. We may also refer to one of the Advertisements dated 8.8.2003, as sample, issued by the Deputy Director, Secondary Education, Department of Education, Jodhpur Range inviting applications for appointment on the post of Senior Teacher and Physical Teachers Gr.II in the pay scale of Rs. 5500-9000 to be received latest by 9th September, 2003. The advertisement also contains the instructions for the applicants under Clause IV. Item (xi) provides for bonus marks for extra curricular activities like sports, Scouting, NCC, Cultural activities etc. Item (xiii) provides for teaching experience of Government or aided Institutions. The Schedule has been given as follows:
'(i) 9.9.2003 : Last date for receipt of applications;
(ii) 19.9.2003 : Publication of provisional merit list;
(iii) 24.9.2003 : Last date for receiving objections;
(iv) 27.9.2003 : Publication of final merit list; &
(v) 13.10.2003 : Interviews'
19. The advertisement further provides that as per the merit list, three times of the vacancies shall be called for interview. It has been clarified that the purpose of the interview is not to make selection but only to verify the correctness of the documents produced by comparing with originals. Further direction with respect to recruitment is contained in the Circular of the department dated 22.3.2001. The said Circular has been made applicable to the subject selection by another notification dated 17.9.2003.
20. It is submitted that as per the Advertisement and the Circular referred-to above, the provision of the interview is only for the purpose of verifying the documents submitted by the candidates. The said provision is in violation of Rule 19 of the Rules of 1971 inasmuch as Rule 19 clearly provides the consideration of merit of the candidates on the basis of the interview. Thus, the instructions under the Circular which is of administrative nature, are in disregard to Rule 19. Learned counsel has further invited our attention to Rules 20 & 22, which provides for the constitution of the selection committee and the appointment on the basis of the recommendation of the said Committee. To be more precise, the submission of the learned counsel is that Rule 19 read with Rule 20 read with Column (7) of Item 8(a) of the Schedule makes it manifest that it is the selection committee, which has to make selections and that will be by taking into account all the material placed before the Committee.
21. Relying on a decision of the Apex Court in J.T. 1990 (4) SCC 430, it is submitted that by an administrative order or by an advertisement, the effect of statutory rule cannot be undone. It is further submitted that Rule 11 provides for the experience 'as required'. The rule further provides that a candidate should possess knowledge of Hindi written in Devnagri script and knowledge of Rajasthani culture. The advertisement nowhere shows as to how the working knowledge of Hindi written in Devnagri script and knowledge of Rajasthani culture shall be assessed.
22. We are unable to agree with the submission of the learned counsel. A bare reading of Rule 19 clearly shows that the word 'interview' used therein, is with reference to scrutiny of applications and not assessment of merit. The Rules of 1971 nowhere provide for assessment of merit on the basis of interview. We do not find anything in the Circular or the Advertisement, which is in conflict with the Rules of 1971. Infact, the Rules of 1971 does not, as such, lay down a procedure for selection on the post of Senior Teacher by direct recruitment. Rule 19 only provides for scrutiny of applications, which includes the documents submitted in support of the candidature. A part of the scrutiny can be undertaken even at the last to verify the documents of those candidates, who have been finally selected. Rule 20 provides for preparation of list of the candidates, who are considered suitable for appointment. The rule does not provide for consideration of suitability of a candidate on the basis of interview. In fact, looking to the entire scheme of direct recruitment, it appears that the use of word 'Interview' under Rule 19, is nothing more than a mis- description, which should be corrected at the earliest. Thus, the State Government has power to devise its own method as to process of selection. In the instant case, the selection has been on the basis of marks secured at the examination at the Graduation level and the Degree in Education or Montessori. It further provides for the bonus marks of experience as well as extra curricular activities. Thus, the procedure is, in no way, in conflict with the statutory provisions of the Rules of 1971. Accordingly, first contention stands rejected.
CONTENTION NO. (ii):
23. It is submitted by Mr. Mridul, learned counsel for the appellants, that it is not a fair method to adjudge the merit of a candidate only on the basis of the marks secured by the candidates in University Examination. Learned counsel has placed reliance on a decision of the Apex Court in Dr. Dinesh Kumar v. Motilal Nehru Medical College reported in AIR 1985 SC 1059. In the said case, the main judgment was delivered in Dr. Pradeep Jain v. Union of India reported in AIR 1984 SC 1420. In Pradeep Jain's case, the Court held that wholesale reservation made by some of the State Governments on the basis of domicile or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the University or the State, excluding all students not satisfying the requirement, regardless of merit, was unconstitutional and void as offending the equality clause of the Constitution. However, the Apex Court after condemning such wholesale reservation proceeded to observe that the very mandate of the equality clause viewed in the perspective of social justice, would justify some extent of reservation based on residence requirement within the State or on institutional preference for students passing the qualifying examination held by the University or the State. The Court after consideration of the material on record fixed outer limit of reservation at 70% with a view to reconcile the conflicting claims of equality and excellence. Thus, 30% of the open seats remained available for admission of the students on All India basis irrespective of the State or the University from which they come. The Court also directed that such admissions shall be granted purely on merit on the basis of either All India Entrance Examination or Entrance Examination to be held by the State. This was the position given with regard to admission to MBBS/MD etc. course. A misunderstanding prevailed with some of the States and the Universities in regard to true import of the judgment in Dr. Pradeep Jain's case (supra). The judgment was misinterpreted inasmuch as 30% of the total seats available for admission to MBBS Course in a Medical College while understood to be kept free for reservation on the basis of residence requirement or institutional preference, whereas the Court had clearly provided for reservation validly made, whatever seats remain available for non-reserved categories, 30% of such seats at the least, should be left free for open competition and admission to such 30% open seats should not be based on residence requirement or institutional preference. The Court made it clear that students from all over the country should be able to compete for admissions to such 30% open seats. In this context, the Court made an observation that admission must be based on evaluation of relative merit through an entrance examination open to all candidates throughout the country. In para 9 of the judgment, the Court observed as follows:
'We would accordingly direct in order to meet the demand of equality and justice, that in case of Universities and Medical Colleges, where they system in vogue is to have one year house job in a particular speciality followed by admissions to a two year post graduate course in the same speciality, the admissions to the two year post graduate courses for the academic year 1985- 86 should be governed, not by the new principle laid down in the judgment, but by the old rules which prevailed prior to the delivery of the judgment, provided the students seeking admissions had commenced their house job prior to the delivery of the judgment.'
24. The Court refused to strike down the admissions already made to the P.G. Course for the Academic Year 1985-86. The judgment does not lay down a universal rule that in all cases, the merit should be judged only by way of competitive examination. Thus, Dinesh Kumar's case (supra), has no application to the facts of the instant case. It is for the State Government to take an appropriate decision to lay down the process of recruitment which is fair and just. In the instant case, we do not find any infirmity in the process of selection adopted by the respondents. Accordingly, the second contention stands rejected.
CONTENTION NO. (iii):
25. As per the Advertisement dt. 18.8.03, if a person having Graduation Degree has also passed the examination in additional paper then his marks in additional paper will be substituted and on that basis, his merit shall be considered. For the convenience, the relevant part of the advertisement is extracted as follows:
???(I)
26. It may further be stated that the State Government issued a Circular dated 22.3.2001 containing certain directions with respect to recruitment on the post of Teacher Gr.II. The said Circular has been made applicable to the subject selection by subsequent Notification dated 17.9.2003. It will be relevant to read Sub-clause (5) of Rule 7 of the said Circular, which reads as follows:
???(I)
27. It is averred in the writ petition filed by Emarata Ram and others that they graduated in Arts with English as a subjects, which they studied all the three years. Thereafter, they took admission in B.Ed in English, History and were imparted instructions in English as subject throughout the three years degree of bachelors i.e., B.Ed. It is further averred that when the appellant-petitioners perused the provisional merit list, they found that their names were placed at a very low merit point and when the whole thing was closely scrutinized, it was found that the candidates, who had passed their Bachelor's degree examination in Science or Commerce, have come to be assigned a position much above the appellants. In this process, a person who studied like the appellants, English for all the three years of Bachelor's examination, has found a position at much lower point as compared to those, who passed Bachelor's examination in Science and Commerce Stream and had thereafter taken the examination of English of the University as private candidates and passed therein by taking all the three papers of English at a time and are ones not having English Stream in B.Ed. It is submitted that the provision is ex facie discriminatory and unreasonable inasmuch as the lowest marks secured at the original examination of Graduation is substituted by the marks secured in the additional subject as a private student while calculating the merit. The candidates who have secured marks in additional subjects and studied in isolation and could secure the sizable marks, are obviously put to an advantageous position in comparison to other students who had studied all the subjects at the Graduation level for all the three years. Thus, the provision does not simply provide for improving the marks in a subject but complete substitution of marks and the subject.
28. On the other hand, it is submitted by Mr. N.M. Lodha, learned Additional Advocate General, that students who had taken English Literature as an optional/additional subject after passing the graduation examination is required to appear in two papers of each year i.e., in total six papers. It is in addition to the study of such a candidate in all the three parts of the Graduation examination. Learned counsel has tried to demonstrate the factual position by placing on record the marksheets. By filing an additional affidavit, it is further submitted by Mr. Lodha that as per the criteria, a provisional list was prepared wherein the appellant Emarata Ram has secured 64.01%. A Chart has also been placed on record to demonstrate that even if the names of the candidates, who have passed in English as additional paper, are deleted from the merit list, the name of appellant Emarata Ram does not fall within the zone of consideration. Thus, it is submitted that no purpose would be served even if the contention of counsel for the appellant Emarata Ram is accepted. On the other hand, it is submitted by Mr. Mridul that it is not clear from the Chart that the percentage which is given out is in respect of English subject alone or it has been worked out by taking marks obtained in all the subjects by the candidate concerned. On over all consideration of the issue involved, we are of the view that the policy decision with respect to marks secured in additional paper cannot be said to be arbitrary or unreasonable. After all, higher marks obtained in examination are taken into consideration for determination of merit. During the course of arguments, on consideration of various illustrations, it was found that the two views are possible on the issue involved. In these circumstances, we are not inclined to unsettled the settled practice, atleast to disturb the impugned selections.
CONTENTION NO. (iv):
29. It is contended that the experience gained by working in the recognized institution while granting the same to those in the Government Service or any aided educational institution is discriminatory. It is submitted that the institutions in which the appellants have served, though private but recognized by the State Government as well as the Rajasthan Board of Secondary Education. The State Government has complete control over them except the Finance. The syllabus in which the instructions have been imparted, aided and private recognized institutions are the same as laid down by the Board of Secondary Education. The text books are one prepared and approved by the Board. The students of the recognized institutions are also subjected to the examination conducted by the Board. It is also submitted that the experience shows that there are number of institutions in private sector which have not accepted the financial aid from the Government on their own and they have recognition of institutions of excellence. Thus, it is submitted that the provision in respect of grant of marks for experience is manifestly discriminatory as it provides marks for experience being given to the exclusion of the private recognized institutions. On the other hand, it is submitted by Mr. Lodha that the aided institutions and the recognized institutions have been defined separately under Sections 2(b) and 2(q) of the Act of 1993. There is a direct financial control in the matter of Government aided institutions and so also the sanction for appointment is required to be taken from the Government by the aided institutions. The grant is given only on approved posts. But there is no such restriction for recognized institutions, which are not getting any financial aid. Thus, the aided institutions and recognized institutions are two different institutions based on intelligible classification. Such a policy decision does not call for interference by this Court. In rejoinder, it is submitted by Mr. Mridul learned counsel for the appellants, that the State Government has complete control even on the recognized institutions. In this regard, he has referred to various provisions of the Rajasthan Non-Government Educational Institutions Act, 1989. He has particularly referred to Sections 2(c), 2(i), 2(p), 2(u), 3, 9, 11, 13, 14, 16, 17, 18, 21, 28, 29, 30, 33 and 34 and Rules 4, 26, 27, 28, 29 and 31 of the Rules. Thus, it is vehemently argued that no differentiation can be made between the aided institutions and recognized institutions to the disadvantage of the latter simply on the ground that the aided institutions are receiving financial aid and others not. It is also submitted that the State Government has no right to describe the private or the recognized institutions as bogus. Number of private institutions can be named, which are institutions of excellence. If the State Government is not capable to check the bogus institutions, the teachers having experience of recognized institutions of excellence cannot be penalized for the same.
30. Mr. N.M. Lodha has placed reliance on a decision of the Apex Court in Dr. Rajnibala Agrawal v. Lalit Narain Mithila University reported in AIR 1999 SC 2118, wherein the experience of a private college was not considered as an experience equivalent to teaching in affiliated degree College. We have gone through the judgment. In the said case, the private College was not affiliated with the University. Thus, the said case has no application to the instant case.
31. We are not inclined to enter into the controversy, as it is purely a policy matter and further the fact that the challenge has been made at a stage when selections have already been made. However, it is difficult to brush aside the contention that either there is no bonus marks or if it is, experience of private or recognized Institutions cannot be excluded simply because the State has failed to discharge its obligation to de-recognize bogus Institutions.
EXCLUSION OF CANDIDATES HAVING B.ED. DEGREE FROM UNIVERSITIES IN THE STATE OF J & K:
32. Lastly, we may deal with the contention raised by Mr. M.R. Singhvi and Mr. M.S. Singhvi with respect to finding of the learned Single Judge excluding the candidature of the persons who have passed their B.Ed. from the institutions affiliated to the Universities of State of Jammu & Kashmir. Learned Single Judge accepted the contention holding that the degree of B.Ed. awarded by the Universities in the State of Jammu & Kashmir may be valid in that State but so far as the selections are being held in the State of Rajasthan pursuant to the advertisement, in view of the specific condition in the advertisement that the candidate must possess a degree as recognized by the institution, which has the sanction of N.C.T.E. cannot be held to be valid. In view of the finding, the learned Single Judge directed the respondents to exclude such of the candidates from consideration who are holding the degree of B.Ed. from such institutions, which are not recognized by the N.C.T.E.
33. Assailing the finding of the learned Single Judge on this count, it is vehemently argued by Mr. M.R. Singhvi, learned counsel for the interveners that in terms of Article 1(ii) of the Constitution of India, the State of Jammu & Kashmir is integral part of the Union of India, as it finds place in S. No. 15 of the First Schedule. Since Jammu & Kashmir forms an integral part of the Union of India, the citizens of Jammu & Kashmir possessing requisite qualification, have the same right as citizens of the other States to be considered for recruitment on the posts advertised. It is further submitted that it was open for the Union to make law under Article 317 of the Constitution, which applies to the State of Jammu & Kashmir but if the Act of 1993 has not been made applicable to the State of Jammu & Kashmir, no fault can be found with the persons obtaining the degree from a University situated in the State of Jammu & Kashmir. It is further submitted that the learned Single Judge has erroneously placed reliance on a decision of the Apex Court in Union of India v. Shah Goverdhan L. Kabra Teachers College reported in JT 2002 (8) SC 269. Mr. N.M. Lodha, learned Additional Advocate General, has also supported the contention raised on behalf of the interveners. It is submitted by Mr. Lodha that the contention of obtaining a degree from such institutions which are not recognized by the N.C.T.E., refers to only those degrees which have been obtained from an area to which the provisions of the National Council for Teachers Education Act, 1993, hereinafter referred-to as the 'Act of 1993' are applicable, as the State of Jammu & Kashmir has been excluded from the application of the Act of 1993, the question of recognition of degrees awarded by the Universities in the State of Jammu & Kashmir by N.C.T.E. does not arise. It is further submitted that the same view has been taken by a learned Single Judge of this Court in Surendra Kumar Gupta v. State of Rajasthan reported in 2002 (3) RLR 854. The State filed an application for Special Leave to Appeal before the Apex Court, but later on, the same was withdrawn. Thus, The order of the learned Single Judge has attained finality. Pursuant to the directions of the learned Single Judge in Surendra Kumar's case, the State issued a direction to consider the candidature of the persons holding B.Ed. Degree from a University in the State of Jammu & Kashmir. On that basis, the selection list has also been prepared considering such candidates eligible for appointment. Mr. Mridul appearing for the appellants has supported the judgment of the learned Single Judge on this count.
34. We have considered the rival contentions. It is not in dispute that the Universities of Jammu & Kashmir awarding the B.Ed. Degrees finds place in the list of the Universities published by the University Grants Commission. Thus, the B.Ed. Degree obtained by the candidates in the State of Jammu & Kashmir is a degree from legally and duly constituted University. It is also not in dispute that the provisions of the Act of 1993 have not been made applicable to the Universities in the State of Jammu & Kashmir. Thus, the question of recognition of degree awarded by the Universities in Jammu & Kashmir by the N.C.T.E. Does not arise. So far as the decision of the Apex Court in Goverdhan L. Kabra Teachers College's case (supra), relied upon by the learned Single Judge is concerned, the same has no application to the facts of the case. In the said case, the question was with respect to the Constitutional validity of Section 17(4) of the Act of 1993. The Division Bench of this Court declared the provisions of Section 17(4) of the Act of 1993 ultra vires of the Constitution being beyond the competence of the Union Legislature. On examining the Statute as a whole and applying the doctrine of pith and substance, the Apex Court held that even if Sub-section (4) of Section 17 is very much a law dealing with the co-ordination and determination of standards in institutions for higher education giving the chief Entry 66 of the List III of VIIth Schedule and, as such, the Union Legislature did hold the competence for enacting the said provisions.
35. The State Government pursuant to the directions of this Court in Surendra Kumar Gupta's case (supra), has issued direction to consider the candidature of the persons holding B.Ed. degree from the duly constituted Universities in the State of Jammu & Kashmir. We do not find any infirmity in the said Circular, as the same has been issued in pursuance of the directions of this Court. The view taken by this Court in Surendra Kumar Gupta's case (supra), further finds support from another decision delivered by Hon'ble Mr. Justice P.P. Naolekar (as his Lordship then was) dated 10.4.2002 rendered in S.B. Civil Writ Petition No. 96/2000. We are in complete agreement with the view expressed in Surendra Kumar Gupta's case (supra). Learned Single Judge has committed apparent error in directing to exclude the candidates who have obtained B.Ed. degree from the Universities situated in the State of Jammu & Kashmir. The part of the judgment in that regard deserves to be quashed.
36. Before parting with, we make it clear that keeping in view the standing practice in vogue since long following the Rules of 1971, we have not disturbed the selections but it would be just and fair for the State Government and its authorities to give a fresh look to the relevant rules before the next selection, particularly the issues raised in the instant petitions. We have adopted the course of non-interference, as the decision in the instant case is not going to adversely affect any of the appellants.
37. Consequently, the group of Special Appeals are partly allowed. The impugned judgment dt. 4.11.2004 of the learned Single Judge is modified. The direction to exclude the candidates from consideration on the post of Teacher Gr.II/Senior Teachers, who have obtained B.Ed. degree from the Universities in the State of Jammu & Kashmir, is set aside. The judgment under appeal stands modified to that extent only. No order as to costs.