H.R. Panwar, J.
1. The aforesaid writ petition and 75 other the bunch of writ petitions shown in Schedule-A annexed to this order, involve common questions of law and facts and, therefore, with the consent of learned Counsel for the parties, they are being heard and decided together.
2. In SBCWP Nos. 1817/2997, 1819/2007, 1820/2007, 1911/2007, 2114/2007, 2864/2007, 2388/2007, 1899/2007 and 2635/2007, the validity of proviso 2nd to Rule 266 of the Rajasthan Panchayat Raj Rules, 1996 (for short, 'the Rules of 1996' hereinafter) has been challenged and in the remaining writ petitions as shown in Schedule-A annexed to this order, the corrigendum Annx.2 dated 30-11-2006, to the extent of imposing the condition to produce B.Ed., BSTC Degrees by the applicant/candidate on the date of declaration of the result of competitive examination for the post of Teacher Grade III in primary/upper primary schools, has been challenged. All the writ petitions are being decided by this common order taking the facts of SBCWP No. 1817/2007 as the leading case.
3. Respondent Rajasthan Public Service Commission (for short, 'RPSC' hereinafter) issued an advertisement Annx.1 dated 30-10- 2006 inviting applications from the eligible candidates for written examination for the post of Primary/Upper Primary School teachers Grade III. A competitive examination for the said posts for the year 2006 was scheduled to be held in the month of February, 2007. The last date for submission of the application forms for the said posts was 16-12-2006. The advertisement Annx.1 prescribed the educational qualification to the effect that a candidate must have a certificate of Senior Secondary School Examination or Intermediate or equivalent examination with Diploma or Certificate in Elementary Teachers Training of a duration of not less than two years or Bachelor of Elementary Education (B.E.D.) or Graduation with B.Ed, or equivalent thereto. A note was appended to the advertisement Annx.1 to the effect that the applicant should possess the requisite educational qualification by the last date of submission of the application forms, i.e. 16-12-2006. However, subsequent thereto, the respondent RPSC issued a corrigendum No. 2/2006-2007 dated 30- 11-2006 providing therein that in pursuance of the notification issued by the State Government dated 29-11-2006, the candidates who are appearing or appeared in B.Ed., BSTC, D.S.E, B.Ed. (Special Education) will be eligible to apply for the competitive examination 2006 for the posts in question. In pursuance of this corrigendum the candidates who did not possess the requisite educational qualification by 16-12-2006 were also permitted to submit the application forms and their application forms were accepted. Proviso 2nd to Rule 266 of the Rules of 1996 was incorporated, which provides that the person who has appeared in B.Ed./ BSTC examination shall be eligible to apply for the post of primary and upper primary school teacher, but he shall have to submit proof of having acquired the said educational qualification to the respondent RPSC before declaration of result of the said examination by the RPSC. However, the RPSC is going to declare the result of the said examination in which the petitioners appeared and as such, according to the learned Counsel for the petitioners, the 2nd proviso to Rule 266 of the Rules of 1996 is ultra vires as it deprives consideration of candidature of the petitioners for want of requisite educational qualification. Hence these writ petitions.
4. A reply to the writ petition has been filed by the respondent-State as also by the respondent RPSC stating therein that for appointment on the post of teacher Grade III, i.e. primary/upper primary school teacher, the qualification has been prescribed under Rule 266 of the Rules of 1996, which reads as under:
266 (3).- Primary and upper primary school teacher (100% by direct recruitment.- Senior Secondary under new (10+2) scheme of Higher Secondary under old scheme from Rajasthan Board of Secondary Education or equivalent and Secondary School certificate from Rajasthan Board of Secondary Education or equivalent with 5 subjects, 3 of them be mathematics, English and Hindi with BSTC/B.Ed.
(ii) BSTC/B.Ed.]
Provided that for appointment of widow and divorce woman on the post of teacher, required qualification of BSTC/B.Ed., shall be relaxed, if they are competent otherwise and they submit a bond to the effect that they will obtain the qualification of BSTC/B.Ed., within a period of three years. They shall be entitled to receive leave for study to get BSTC/B.Ed. qualification soon after their appointment.
Provided further that the person who has appeared in the B.Ed/B.S.T.C. Examination shall be eligible to apply for the post of primary and upper primary school teacher 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 said examination.
5. It has further been contended that in pursuance to the Notification dated 29-11-2006 issued by the State Government, a corrigendum dated 30-11-2006 was issued by the respondent RPSC, which provides that a person who has appeared in B.Ed., BSTC examination shall be eligible to apply for the post of primary/upper primary school teacher, but he shall have to submit the proof of acquiring such qualification before declaration of the result of competitive examination by the RPSC and as such the candidates who have applied in pursuance of the corrigendum dated 30-11-2006 as also in pursuance of proviso 2nd to Rule 266 of the Rules of 1996, were required to submit the proof of their qualifying the teachers' training like B.Ed., BSTC etc. which is the minimum requirement to be eligible for the post of primary/upper primary school teacher. The 2nd proviso to Rule 266 of the Rules of 1996, in clear terms, provides that the person who has appeared or is appearing in B.Ed., BSTC etc. examination shall be eligible to apply and appear in the competitive examination for the post in question but he shall have to submit the proof of having acquired such educational qualification to the RPSC before declaration of the result of the competitive examination and this being a condition-precedent for consideration of candidature of the persons who applied and appeared in competitive examination in pursuance of the corrigendum as also in pursuance of the 2nd proviso to Rule 266 of the Rules of 1996 and therefore, according to the learned Additional Advocate General, as the petitioners did not submit the proof of having passed the B.Ed., BSTC examination etc., as such they are not eligible to be considered for appointment on the post in question. It has further been stated that though the petitioners were hot eligible to apply for the posts in question as the advertisement Annx.1 dated 30-10-2006 clearly provides the requisite educational qualification on the last date of submission of the application forms i.e. 16-12-2006, but since the State Government issued the Notification dated 29-11-2006 and in pursuance thereto, the RPSC issued the corrigendum dated 30.11.2006 and thereafter the, petitioners were permitted to apply and appear in the competitive examination held by the respondent RPSC, but in view of the corrigendum as also the proviso 2nd to Rule 266 of the Rules of 1996, the petitioners were required to submit the proof of having acquired the B.Ed., BSTC certificate before declaration of the result of competitive examination by the RPSC. It has further been stated that the respondent RPSC has declared the result of the said competitive examination on 16-3- 2007 and till declaration of the result, none of the petitioners submitted the proof of having acquired the said educational qualification of B.Ed, BSTC etc. and as such they are not entitled for any consideration in absence of the requisite qualification on the relevant date. It has further been stated that the result of the competitive examination has been declared and the merit of the selected candidates has been prepared. The respondent RPSC has filed the writ to the various writ petitions taking the similar grounds raised by the respondent-State.
6. Mr. Manoj Bhandari, learned Counsel appearing for the petitioners in SBCWP No. 1772/2007, contended that by permitting the petitioners knowing it well that on the last date of submission of the application forms for the post of primary/upper primary school teachers Grade HI, the petitioners did not possess the requisite qualification as advertised vide Annx.1 dated 30-10-2006, which, in clear terms, provides that the candidate must possess the requisite educational qualification stated therein, which included the qualification of Diploma or Certificate in Elementary Teachers Training for a duration of not less than two years, or B.Ed, or Graduation with B.Ed., or equivalent, yet the respondents allowed the petitioners to apply for and appear in the competitive examination and, thus,-the, petitioners have a legitimate expectation regarding consideration of their candidature, which has been denied by respondents for want of submitting the proof of having acquired the said qualification before declaration of the result of the competitive examination by the RPSC and, therefore, according to the learned Counsel, the respondent RPSC should have waited for some more time so that the candidates who have been pursuing the study of the training course like BSTC/B.Ed. Can appear in examination of such degree courses and have the ultimate result of the teachers' training course. Learned Counsel has relied on the decisions of the Hon'ble Supreme Court in State of Punjab v. Nestle India Ltd. and Anr. : [2004]269ITR97(SC) ; and Jai Narain Parasrampuria (Dead) and Ors. v. Pushpa Devi Saraf and Ors. : (2006)7SCC756 .
7. Mr. Rakesh Arora, learned Counsel for the petitioners in SBCWP No. 1869/2007, submits that at the time of calling of the application forms, the corrigendum has been issued by the respondent on 30-11 -2006, which is a contingent and once the respondents have relaxed the condition of eligibility then it cannot make any order prejudice to the interest of the petitioners who appeared in the competitive examination in pursuance of the corrigendum dated 30-11 -2006. He has relied on the decisions of the Hon'ble Supreme Court in Seema Kumari Sharma (Mrs.) v. State of Himachal Pradesh and Anr. : AIR1997SC1693 ; and Sri Sreeramppa v. The Karnataka Public Service Commission and Ors. JT 1991 (5) SC 81.
8. Mr. I.R. Choudhary, learned Counsel appearing for the petitioners contended that the very purpose of the corrigendum Annx.2 is to have meritorious candidate and for that purpose, the petitioners have been permitted to apply for and appear in the competitive examination though they did not possess the requisite qualification as advertised vide Annx.1 dated 30-11-2006 and having allowed the petitioners to appear in the examination, without waiting for the result of the training course pursued by the petitioners, now the respondent-State as also the RPSC cannot turn round and ask the candidates to submit the proof of their acquiring the educational qualification of the training course by a particular date knowing it well that the petitioners, who are pursuing the study in various training courses and even the examinations therefor has not been held, therefore, they are unable to submit proof of their having acquired the qualification of B.Ed./BSTC etc. Learned Counsel has relied on a decision of this Court in Smt. Reeta Sharma v. University of Rajasthan and Ors. 1987 RLW 757; and a decision of the Hon'ble Supreme Court in Sanatan Gauda v. Berhampur University and Ors. : [1990]2SCR273 , and contended that the equity lies in favour of the petitioners.
9. Mr. S.P. Sharma, learned Counsel appearing for the petitioners in SBCWP Nos. 1878/2007 and 1879/2007 and Mr. P.R. Mehta, learned Counsel appearing for the petitioners in SBCWP No. 1887/2007 and similar other writ petitions, have challenged the validity of proviso 2nd to Rule 266 of the Rules of 1996 and contended that the proviso which was inserted with effect from 1- 7-2004 cannot have a retrospective effect.
10. Mr. Bharat Devasi, learned Counsel appearing for petitioners in SBCWP No. 2635/2007 and similar writ petitions, contended that the proviso 2nd to Rule 266 of the Rules of 1996 cannot be made retrospective as the application forms submitted by the petitioners were accepted by the respondent RPSC prior to insertion of proviso 2nd to Rule 266 of the Rules of 1996 and, therefore, he seeks to declare this proviso as ultra vires. He further submits that the proviso 2nd to Rule 266 of the Rules of 1996, to the extent it benefits the petitioners permitting to apply and appear in said examination, in absence of requisite qualification of Teacher's Training and the proviso thereto requiring the petitioners to submit the proof of having acquired the qualification of teachers training before the date of declaration of the result of competitive examination by the RPSC is a severable and, therefore, the proviso 2nd to Rule 266 of the Rules of 1996, to the extent of requiring the petitioners to submit the proof of having acquired the qualification of teacher training may be separated and declared ultra vires. He has relied on the decisions of the Hon'ble Supreme Court in Chandra Prakash Madhavrao Dadwa and Ors. v. Union of India and Ors. : AIR1999SC59 ; and Shin Satellite Public Co. Ltd. v. Jain Studios Ltd. : AIR2006SC963 . It has further been contended that Rule 296 of the Rules of 1996 provides relaxation clause and, therefore, the respondents may be directed to relax the condition provided under the 2nd proviso to Rule 266 to the extent of requiring the candidates to submit the proof of their acquiring the requisite educational qualification of teachers training.
Mr. Ramesh Purohit and other learned Counsel appearing for petitioners in various other writ petitions have adopted the submissions as made by the aforesaid learned Counsel for the petitioners.
11. Mr. N.M. Lodha, learned additional Advocate General appearing for the respondent-State submits that for appointment on the posts of teacher Grade III, the respondent RPSC issued the advertisement on 30-10-2006 vide Annx.1 and the last date for submission of the application forms was 16-12-2006. The advertisement Annx.1, in clear terms, provides the educational qualification which makes a candidate eligible to apply for the said post. Rule 266 of the Rules of 1996 provides the required educational qualification for the posts of teacher Grade HI. However, there had been numerous representations from various aspiring candidates who did not possess the requisite qualification of B.Ed., BSTC etc. which makes the candidate eligible to apply for and appear in the competitive examination for appointment on the posts in question under Rule 266 of the Rules of 1996 representing that they are pursuing the course of B.Ed., BSTC etc. and, therefore they may be permitted to appear in the competitive examination to be held so that before the result of the competitive examination is declared, they may submit the proof of their having acquired the qualification of teachers training and, therefore, the State Government issued the Notification dated 29-11-2006 and in pursuance thereto, a corrigendum dated 30-11-2006 was issued by RPSC. Rule 266 of the Rules of 1996 came to be amended by inserting the proviso after existing Clause (iii), which provides that a person who has appeared or is appearing in the B.Ed./BSTC/CSE/B.Ed. (Special Education) examination, shall be eligible to apply for the post of primary and upper primary school teacher (General Education/Special Education) but he shall have to submit proof of having acquired the said educational qualification to the RPSC before declaration of the result of the competitive examination. According to Mr. N.M. Lodha, the candidates who have submitted the application forms and appeared in the competitive examination for the said post, well knew it that they are required to submit the proof of their having acquired the said educational qualification of B.Ed., BSTC, DSE, B.Ed. (Special Education) to the respondent RPSC before declaration of the result of the competitive examination and knowing this fact well and with open eyes they applied for the said post and appeared in the competitive examination and, therefore, now they cannot be permitted to approbate and reprobate after having taken a chance and appearing in the competitive examination but failed to submit the proof of having acquired the requisite teachers training qualification. He further submits that the writ petitions filed by some of the petitioners without challenging the validity of proviso 2nd to Rule 266 of the Rules of 1996 otherwise also cannot be entertained as the relief prayed therein is against the statute i.e. Rule 266 of the Rules of 1996. He has further submitted that various persons have filed the joint writ petitions without there having the same cause and, therefore, in view of the provisions of Rule 375 (4) of the Rajasthan High Court Rules, 1952, the same are not maintainable. In this connection, learned Additional Advocate General has placed reliance on the decision in Chandmal Naurat Mai and Ors. v. State of Rajasthan and Ors. .
12. Learned Additional Advocate General further submits that had the Notification dated 29-11-2006 and Corrigendum issued by the RPSC dated 30-11-2006 and the amended proviso 2nd to Rule 266 of the Rules of 1996 been not there, none of the petitioners would have been eligible even to apply for the post in question much less their appearing in the competitive examination and these are the Notification dated 29.11.2006, Corrigendum dated 30-11-2006 and the proviso 2nd to Rule 266 of the Rules of 1996 which allowed the petitioners to apply for and appear in the competitive examination held for the aforesaid posts and, therefore, the petitioners are estopped by their conduct to challenge the very proviso after having availed the benefit thereof. He has relied on the decision of the Division Bench of this Court in Emarata Ram Poniya and Ors. v. State of Rajasthan (2005) 3 RDD 19 (Raj.) : RLW 2005(3) Raj. 1755; Naresh Bhansali v. State of Rajasthan and Ors. 2000 (4) WLC 590 : RLW 2000(4) Raj. 356; and the decisions of the Hon'ble Supreme Court in K.H. Siraj v. High Court of Kerala and Ors. 2006 AIR SCW 3136; and G.N. Nayak v. Goa University and Ors. : [2002]1SCR636 and contended that the proviso 2nd to Rule 266 of the Rules of 1996 makes it clear that the incumbents were allowed to appear in the examination for the said posts with a specific condition that if they acquire the required educational qualification as advertised vide advertisement Annx.1 dated 30-10-2006 and submit the proof thereto before declaration of the result of the competitive examination by the RPSC then their candidature will be considered and the petitioners knowing it well that they did not possess the requisite qualification of B.Ed., BSTC etc., took the chance by applying for the said post and appeared in the competitive examination and having failed to submit the proof regarding acquiring the requisite qualification making them eligible for the said post under Rule 266 of the Rules of 1996, now the petitioners cannot turn around and challenge the validity of the very rule. According to the learned Additional Advocate General, had the Notification dated 29-11-2006, corrigendum dated 30-11- 2006 and the proviso 2nd to Rule 266 of the Rules of 1996 been not on the statute book, none of the petitioners were even eligible to apply for the post in question as none of them possessed the requisite qualification on the last date of submission of the application forms i.e. 16-12-2006 and, therefore, the petitioners having failed to fulfill the condition prescribed in the corrigendum and proviso 2nd to Rule 266 of the Rules of 1996, are now estopped to challenge the very proviso after having taken the benefit thereof, under which they applied for and appeared in the competitive examination for the said post. He submits that the proviso 2nd to Rule 266 cannot be said to be arbitrary or discriminatory and, therefore there is no ground to declare the same as ultra vires; though some of the petitioners have challenged the validity of the said proviso stating therein that it is ultra vires but there is no specific pleading in this regard as to how the said proviso is ultra vires. According to Mr. Lodha, the rule can be declared ultra vires only when it has been framed out-side the scope of the statute or against the parent Act or fundamental rights guaranteed under the Constitution of India, but no such foundation has been made in the writ petitions. He has relied on the decisions of the Hon'ble Supreme Court in Maharashtra State Board of Secondary & Higher Secondary Education and Ors. v. Paritash Bhupesh Kumarsheth etc. : [1985]1SCR29 ; Union of India v. Elphinstone Spinning & Weaving Co. Ltd. and Ors. : [2001]1SCR221 ; and V.K. Sood v. Secretary, Civil Aviation and Ors. : (1993)IILLJ544SC .
13. Learned Additional Advocate General submits that normally a candidate applying for a post should have possessed the requisite qualification on the last date of submission of the application form and where there is no such provision then atleast on the cut off date or the last date of declaration of the result. He submits that so far as Rule 296 of the Rules of 1996 providing relaxation is concerned, it cannot be claimed as a matter of right. He submits that the relaxation cannot be accorded in general or en mass and it can be provided in order to mitigate hardship in any particular case. He has relied on the decision of this Court in Renu Sharma and Ors. v. State of Rajasthan and Ors. and 2002 (1) WLN 97 : RLW 2001(3) Raj. 1615 and submits that Rule 296 of the Rules of 1996 was amended in the year 1999 and relaxation was made in relation to qualification for appointment on the post of teacher but that was struck down by a Division Bench of this Court in Renu Sharma and Ors. case (supra) and, therefore, no such relaxation can be claimed by the petitioners as a matter of right and even Rule 296, in clear terms, provides that such relaxation can be accorded considering the individual case in public interest and in order to mitigate the hardship in a particular case and, thus, the language of Rule 296 of the Rules of 1996 makes it clear that it can be applied only in exceptional cases in a particular case and not in general or en mass.
14. Learned Additional Government Advocate further submits that none of the affected persons have been impleaded who were otherwise qualified and possess the requisite qualification as per the advertisement Annx.l dated 30-10-2006 and for which a select merit list has been prepared and, therefore, the writ petitions are liable to be dismissed. He has relied on a decision of the Hon'ble Supreme Court in K.H. Siraj v. High Court of Kerala and Ors. (supra). Learned Additional Advocate General further submits that the petitioners have no locus to file the writ petitions because had there been no amendment to Rule 266 of the Rules of 1996 by inserting the 2nd proviso thereto, none of the petitioners would have been eligible even to apply and appear in the competitive examination and in such circumstances, there was an occasion or opportunity with the petitioners to get themselves qualified before the cut off date i.e. declaration of the result of the competitive examination by the, RPSC and in such circumstances, if Rule 266 of the Rules of 1996 is struck down then no benefit can be extended to the petitioners because if the proviso to Rule 266 is struck down then none of the petitioners were even eligible to apply as the advertisement Annx.1 dated 30-10-2006 clearly provides that the candidate applying for the said post should possess the qualification as advertised by the last date of submission of the application forms i.e. 16-12-21006 and none of the petitioners possessed the said requisite qualification. The normal rule is that the person should possess the requisite qualification as prescribed under the rules or as relaxed by the government for appointment on the post on the last date of submission of the application form. Learned Additional Government Advocate has relied on a decision of the Hon'ble Supreme Court in Ashok Kumar Sonkar v. Union of India and Ors. : (2007)4SCC54 ; and a decision of this Court in Neelam W/6 Ram Kumar Meghwal v. State of Rajasthan and Anr. 1999 (3) WLC 305. He further submits that the selection and appointment have to be made strictly in accordance With law governing the relevant rules and the sympathy as against the rules cannot be shown. The petitioners have no locus to file the writ petition. He has relied on a decision of the Hon'ble Supreme Court in State of Rajasthan v. Hitendra Kumar Bhatt : (1997)6SCC574 .
15. I have considered the rival submissions made by the learned Counsel for the parties:
Firstly, I deal with the authorities cited by the learned Counsel for the petitioners. In State of Punjab v. Nestle India Ltd. and Anr. (supra), the Hon'ble Supreme Court held that the power of the government to grant exemption under the Act is couple with the word 'may' signifying the discretionary nature of the power. For the reasons for which the plea of promissory estoppel raised by the respondents has been upheld therein, it is held that the State Government's refusal to exercise its discretion to issue the necessary notification 'abolishing' or exempting the tax on milk was not reasonably exercised. The Apex Court further held that the Government cannot on a representation made without complying with the procedure prescribed by the relevant statute, but a citizen may and can compel the Government to do so if the factors necessary for founding a plea of promissory estoppel are established. Such a proposition would not 'fall-foul' of our constitutional scheme and public interest.
16. In Jai Narain Parasrampuria (Dead) and Ors. v. Pushpa Devi Saraf and Ors. (supra), the Hon'ble Supreme Court held that while applying the procedural law like the principle of estoppel or acquiescence, the court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict. The Apex Court further held that the doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the Court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged both parties were acting under a mistake of law as to their rights.
17. In Seema Kumari Sharma (Mrs.) v. State of H.P. and Anr. (supra), the Director of Education issued a notice for Junior Basic Teachers' Training. The criteria for selection was 100 marks based on the percentage of marks obtained in matric or equivalent examinations. 20 marks for candidates belonging to rural areas and 10 marks for candidates belonging to backward Panchayat were allotted. Similarly, 10 marks were allotted for candidates belonging to IRDP families. Though the appellant therein claimed to belong to IRDP family, the authorities have not considered her claim and consequently did not award 10 marks as required under the criteria. When the appellant therein filed the writ petition, the High Court dismissed the same holding that the appellant had not produced the certificate along with the application and, therefore, she is not entitled to the above status. When the Apex Court directed the appellant to produce the record, she made the certificate a part of the record. Unfortunately, it did not bear the date of issue but the Apex Court found that she has been given serial number of the IRDP family. In view of the fact that the serial numbers are ascribed to all the candidates in the order, the Apex Court was of the view that her failure to furnish the certificate along with the application does not disentitle her to claim the status for consideration of award of 10 marks.
18. In Sri Sreerampaa v. The Karnataka Public Service Commission and Ors. (supra), the petitioner therein did not produce the marks sheet at the time of interview but produce the same subsequently. The marks obtained by the petitioner therein were sufficient to qualify him for selection. The Hon'ble Supreme Court directed the respondents therein to accommodate the petitioner therein in an existing or future vacancy.
19. In Smt. Reeta Sharma v. University of Rajasthan (208) (supra), the petitioner therein was allowed to fil up the form to appear in the examination, she had earlier too been provisionally admitted in the correspondence course; she studied through out the session and was also allowed to appear in the examination; and all that remains was that her result was not declared. The Division Bench of this Court held that though the practice of the petitioner first to go in the Civil Court, get injunction order through the Court to appear in the examination papers then to withdraw the suit and lastly to come to this Court is deprecated but, taking into consideration the facts of that case that the petitioner was provisionally admitted in the correspondence course for B.Ed, and was allowed to fill in form to appear in the examination, she appeared in the examination, the Division Bench was of the opinion that the equities are now in her favour and her result for 1984-85 must be declared. Thus, taking a sympathetic view in the matter, the Division Bench partly allowed the writ petition and directed the University of Rajasthan to declare the results of the petitioner for B.Ed. Correspondence Course for academic sessions 1984-85 immediately but in no case later than one month.
20. In Sanatan Gauda v. Beerhampur University and Ors. (supra), the petitioner there was permitted by the University to appear in pre-law and intermediate Law examination and he was also admitted to final year course. Later on the university refused to declare the results of examinations on the ground of ineligibility to be admitted to law course. The Apex Court held that it was the bounden duty of the University to have scrutinised the matter thoroughly before permitted the appellant therein to appear at the examination and not having done so, it cannot refuse to publish his result. The Apex Court further held that it is a serious matter if a student who acts upon one interpretation of a rule and spends a considerable period of his youth is later threatened by a possible alternative construction, which may cost him several years of his life. In order to achieve clarity, it does not matter, if the rule, instead of being concise, is elaborate and lengthy.
21. In Chandraprakash Madhavrao Dadwa and Ors. v. Union of India and Ors. (supra) the recruitment qualifications were changed by the respondents therein with retrospective effect by imposing the same on those candidates who had already been recruited and shifting them from posts to which they were recruited into a different stream and in lesser scale. The Apex Court held that recruitment qualifications could not be altered or applied with retrospective effect so as to deprive the recruitees of their right to the posts to which they were recruited nor could it affect their confirmation.
22. In Shin Satellite Public Co. Ltd. v. Jain Studios Ltd. (supra), the Hon'ble Supreme Court held that the proper test for deciding validity or otherwise of an agreement or order is 'substantial severability' and not 'textual divisibility'. It is the duty of the court to sever and separate trivial or technical parts by retaining the main or substantial part and by giving effect to the latter if it is legal, lawful and otherwise enforceable. In such cases, the court must consider the question whether the parties could have agreed on the valid terms of the agreement had they known that the other terms were invalid or unlawful. If the answer to the said question is in the affirmative, the doctrine of severability would apply and the valid terms of the agreement could be enforced, ignoring invalid terms. To hold otherwise would be to expose the covenanter to the almost inevitable risk of litigation which in nine cases out of ten he is very ill-able to afford, should he venture to act upon his own opinion as to how far the restraint upon him would be held by the court to be reasonable, while it may give the convenantee the full benefit of unreasonable provisions if the convenanter is unable to face litigation.
23. Now, I deal with the authorities cited by the learned Additional Advocate Generan and the learned Counsel appearing for the respondent RPSC. In Chandmal Naurat Mai and Ors. v. State of Rajasthan and Anr. (supra), while dealing with Rule 375 of the Rajasthan High Court Rules, 1975, a Division Bench of this Court, while dealing with the objection to petition on the ground that what was affected by law, if at all, were personal or individual rights of several petitioners to carry on their trade or business and consequently it being infringement, of individual right, cause of action that petitioners' claim could not be said to be joint or same so as to entitle them to maintain joint petition, held that though petitioners were all challenging same law in same way and they might even be affected in same way, that was not sufficient to hold that they had same rights which were allegedly infringed by law and consequently same cause of action arose to them. It was further held that in view of specific provision in Rule 375 of the Rajasthan High Court Rules, 1952, the provisions of Code of Civil Procedure are not attracted,
24. In Emarata Ram Pooniya and Ors. v. State of Rajasthan (supra), a Division Bench of this Court held 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
25. In Naresh Bhansali v. State of Rajasthan and Ors. (supra), placing reliance on various decisions of the Hon'ble Supreme Court, this Court held that eligibility is to be applied as on the last date of submission of the applications.
26. In K.H. Siraj v. High Court of Kerala and Ors. (supra), a notification was issued by the Kerala High Court for appointment on the post of Munsiff Magistrate prescribing Rule 7 for holding of examination, written and oral. The concept of examination itself justify prescription of minimum passing marks and the prescription of minimum pass marks in interview by the notification was held legal and the Apex Court declined to declare Rule 7 as ultra vires or beyond the powers of the High Court. The Apex Court held that apart from the amplitude of the power under Rule 7, it is clearly open for the High Court to prescribe bench-marks for the written test and oral test in order to achieve the purpose of getting the best available talent. There is nothing in the Rules barring such a procedure from being adopted. The Apex Court further held that Executive Instructions can always supplement the rules which may not deal with every aspect of a matter. Even assuming that Rule 7 did not prescribe any particular minimum, it was open to the High Court to supplement the rule with a view to implement them by prescribing relevant standards in the advertisement for selection. It was further held that the appellants/petitioners therein, having participated in the interview in this back-ground, it is not open to the appellants/petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper.
27. In G.N. Nayak v. Goa University and Ors. (supra), the Hon'ble Supreme Court held mat the Court would not be justified in adopting a legalistic approach and proceed on a technical view of the matter without considering the intention of the University in laying down the condition of eligibility, since it is for the University to decide what kind of research would be adequate to qualify for professorship. The University had intended, understood and consistently proceeded on the basis that the pre- doctoral research could be counted towards the 10 years' experience clause. Moreover, the research required could include pre-doctoral research experience also.
28. In Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kurmarsheth etc. etc. (supra), the Hon'ble Apex Court held that any drawbacks in the policy incorporated in a rule or regulation will, not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purpose of the Act. The Apex Court held that the court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It was further held that it is not within the legitimate domain of the Court to determine whether the purpose of a statute can be served better by adopting any policy different from what has been laid down by the legislature or its delegate and to strike down as unreasonable, a bye-law merely on the ground that the policy enumerated therein does not meet the approval of the court in regard to its efficaciousness for implementation of the object and purposes of the Act.
29. In Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Ors. (supra), the Hon'ble Supreme Court held that if the Parliament decides to enact a law for taking over the management of the Textile Mills, pending completion of the process of nationalisation, on a genuine apprehension that there might be a large scale flittering away of assets if the management is not taken over and that would be grossly detrimental to the public interest, it would not be open for the Court to examine the question whether other remedies could have been taken and not being taken there has been an infraction of Article 19(1)(g) of the Constitution of India.
30. In V.K. Sood v. Secretary, Civil Aviation and Ors. (supra), the Hon'ble Supreme Court held that in exercise of the rule- making power, the President or authorised person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to a office or a post under the Statute. The rules thus having been made in exercise of the power under proviso to Article 309 of the Constitution, being statutory, cannot be impeached on the ground that the authorities have presribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law. The rules prescribed qualifications for eligibility and the suitability of the appellant would be tested by the Union Public Service Commission. The Apex Court further held that it is for the expert body and this Court does not have the assistance of experts. Moreover it is for the rule making authority or for the Legislature to regulate the method of recruitment, prescribe qualifications etc. It is open to the President or the authorised person to undertake such exercise and that necessary tests should be conducted by the U.P.S.C. Before giving the certificates to them. This is not the province of this Court to trench into and prescribe qualifications in particular when the matters are of the technical nature.
31. In Renu Sharma and Ors. v. State of Rajasthan and Ors. (supra), while striking down Rule 296 of the Rules of 1996, this Court held that this rule gives unfettered and unbridled powers to the State government to relax qualification, age and experience in the matter of appointment and enables State to pick and choose candidates from bottom of merit- list ignoring claim of large number of candidates over and above them.
32. In Ashok Kumar Sonkar v. Union of India and Ors. (supra), the Hon'ble Apex Court held that indisputably, the appellants therein did not hold the requisite qualification as on the said cut-off date and, therefore, he is not eligible therefor. The Apex Court held that possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law therefore, would be the last date for filing the application.
33. In Neelam W/o Ram Kumar Meghwal v. State of Rajasthan and Ors. (supra), placing reliance on various decisions of the Hon'ble Supreme Court, i.e. Harpal Kaur Chahal v. Punjab Instruction and Anr. AIR 1995 (Suppl.) 4 SC 706; Ashok Kumar Sharma and Anr. v. Chandra Shekhar and Ors. : (1997)ILLJ1160SC ; and Rekha Chaturvedi v. University of Rajasthan and Ors. 1993 (Suppl.) 3 SCC 168, this Court held that for consideration of candidature for a post, the candidate must have possessed the requisite qualification on the last date fixed for making application.
34. In State of Rajasthan v. Hitendra Kumar Bhatt (supra), the respondent there in was not possessing the technical qualification on the last date of submitting the application as result of B.Ed, examination were declared later. He was not called for interview but his name included in the select list on the basis of directions in writ. The writ petition was finally dismissed by the High Court and the appeal against that order was allowed. On being appealed to the Hon'ble Supreme Court, while allowing the appeal by the State, the Apex Court held that a cut off date cannot be ignored in an individual ease and any relaxation on sympathetic basis may cause injustice to others.
35. Now, taking the facts of the instant writ petitions, it is clear that none of the petitioners were eligible for applying and appearing in the written competitive test held by the respondent RPSC for recruitment and appointment on the posts in question as on the last date of submission of the applications, they were not holding the teachers training degree/certificates like B.Ed., BSTC, B.EI.D. , etc. On being represented, the State Government issued the Notification dated 29-11-2006 and pursuant thereto, a corrigendum dated 30-11-2006 was issued by respondent RPSC as also under proviso 2nd to Rule 266 of the Rules 1996 and thereby the petitioners could apply and appear in the competitive examination for the post in question held by respondent RPSC. The petitioners participated in the selection process in accepting the position as provided in Corrigendum dated 30.11.2006 and proviso 2nd to Rule 266 of the Rules of 1996 and, therefore, the doctrine of 'approbate and reprobate' applies to the facts of these cases and as such, now it is not open to the petitioners to challenge the validity of this provision or the condition mentioned in notification and the corrigendum.
36. So far as the seeking shelter of Rule 296 of the Rules of 1996 regarding relaxation is concerned, the said provision has been struck down by this Court in Renu Sharma v. State of Rajasthan and Ors. (supra) and, even otherwise so far as Rule 296 of the Rules of 1996 providing relaxation is concerned, it cannot be claimed as a matter of right and such relaxation cannot be accorded in general or en mass and it can be provided in order to mitigate hardship in any particular case. Therefore, the petitioners are not entitled to claim any relaxation with regard to educational qualification advertised.
37. So far as question of promissory estoppel is concerned, the petitioners who have submitted the application forms and appeared in the competitive examination for the said post well knew it that they are required to submit the proof of their having acquired the said educational qualification of B.Ed., BSTC, DSE, B.Ed. (Special Education) to the respondent RPSC before declaration of the result of the competitive examination and knowing this fact well and with open eyes, they applied for the said post and appeared in the competitive examination. At no point of time the respondent State or RPSC represented them that even on the date of declaration of result of competitive examination, their candidature would be considered in absence of requisite qualification and, therefore, doctrine of promissory estoppel has absolutely no application and, therefore, now they cannot be permitted to approbate and reprobate after having taken a chance and appearing in the competitive examination but failed to submit the proof of having acquired the requisite teacher's training qualification. Even otherwise there can be no estoppel against the statute. More so the writ petitions filed by some of the petitioners without challenging the validity of proviso 2nd to Rule 266 of the Rules of 1996 otherwise also cannot be entertained as the relief prayed therein is against the statute, i.e. Rule 266 of the Rules of 1996. Therefore, in view of the law laid down by the Hon'ble Supreme Court in Ashok Kumar Sonkar v. Union of India and Ors. (supra), it would be a futile exercise to give the petitioners an opportunity of being heard as they were ineligible on the cut-off date and, therefore, no sympathy can be shown towards the petitioners.
38. In the instant writ petitions, the parties to the writ petitions were well aware of and conversant about the provisions, more particularly the corrigendum dated 30-11-2006 and as such it cannot be said that the fixing of cut off date for submission of proof of their having acquired the requisite qualification in Teacher's Training is in contravention of law or rules and, therefore, the submission of the learned Counsel for the petitioners cannot be accepted.
39. More so, the petitioners have no locus to file the writ petitioners because had there been no amendment to Rule 266 of the Rules of 1996 by inserting the proviso thereto, none of the petitioners would have been eligible even to apply and appear in the competitive examination. An opportunity and occasion was provided to the petitioner, on being represented by them, to apply and appear in the competitive examination for the post in question held by the respondent RPSC to get themselves qualified by acquiring the qualification of B.Ed., BSTC etc. and if this proviso to Rule 266 of the Rules 1996 is struck down then none of the petitioners were eligible even to apply and appear, much less consideration of their candidature for the post in question. Nonconducting the examination of Teacher's Training or non-declaration of the result thereof by the stipulated date is certainly no fault on the part of the petitioners, but certainly it does not give right to the petitioners to claim consideration of their candidature for the post in question as on the date of declaration of the result of the competitive examination, the petitioners neither possess the requisite educational qualification of Teacher's Training nor submitted the proof of having qualified the teacher's training course which was a condition precedent while allowing them to apply and appear in the competitive examination held by the respondent RPSC. Merely allowing the petitioners to apply and appear in the competitive examination for the post in question does not provide them any right to claim consideration of their candidature for appointment on the post in question without possessing requisite educational qualification as advertised and provided in the relevant rules. Hon'ble Supreme Court in State of Rajasthan v. Hitendra Kumar Bhatt held that relaxing the prescribed requirement in the case of one individual may cause injustice to the others.
40. In Dolly Chhanda v. Chairman, JEE and Ors. : AIR2004SC5043 , a Three Judge Bench of the Hon'ble Supreme Court held that the general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be unless there is an expression provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marks sheets. Similarly, in order to avail the benefit of reservation or weightage etc., necessary certificates have to be produced.
41. More so, the final select list has been prepared by the respondents, as pointed out by the learned Additional Advocate General and the learned Counsel for the respondent RPSC and none of such persons standing in the select list has been made party- respondents to the instant writ petitions. Passing any order in favour of the petitioners, in the aforesaid factual matrix of the case, would certainly prejudice the rights of such persons standing in merit, which cannot be done without giving them an opportunity of hearing.
42. In view of the legal proposition culled out from the various decisions of the Hon'ble Supreme Court referred hereinabove, and more particularly in Ashok Kumar Sonkar v. Union of India and Ors. (supra), the general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for submission of the application form unless there is an express provision to the contrary. In the instant case, the last date for submission of application form was 16-12-2006 and the candidates applying for the post in question were required to possess the eligibility qualification as advertised vide Annx. 1 dated 30-10- 2006. However, the petitioners and similarly situated persons having represented the State, a Notification dated 29-11-2006 was issued and in pursuance thereto, a corrigendum dated 30-11-2006 has been issued enabling the petitioners to apply and appear in the competitive examination with the condition that the candidates who apply and appear in the competitive examination shall have to submit the proof of their having acquired the requisite educational qualification of teacher's training on or before the date the respondent RPSC declares the result. Thus, from the normal rule with regard to possessing of eligibility qualification on the last date of application, express provision by corrigendum dated 30-11-2006 and 2nd proviso to Rule 266 of the Rules of 1996 has been made and the candidates, who have applied and appeared were fully aware of the said proviso and now they cannot turn round and claim legitimate expectation or equity and, therefore, in my view, the petitioners are not entitled for any relief on the ground of legitimate expectation or equity.
43. So far as 2nd proviso to Rule 266 of the Rules of 1996 is concerned, it is not open for the petitioners to say that it has retrospective effect. The petitioners, knowing well at the time of submission of the application forms and appearing in the competitive examination, the notification dated 29-11-2006 and the corrigendum dated 30-11-2006, the language of which is nothing other than that of the 2nd proviso to Rule 266 of the Rules of 1996 and thus it cannot be said that the rule has been made effective from retrospective date.
44. So far as severability is concerned, the contention raised by Mr. Bharat Devsai learned Counsel for the petitioners, that the provision, to the extent it benefits the petitioners, may be upheld and the condition imposing Jo produce the proof of having acquired the requisite qualification of teacher's training be declared ultra vires, cannot be accepted on the doctrine of 'approbate and reprobate.' Even otherwise, the petitioners having taken the benefit of 2nd proviso to Rule 266 of the Rules of 1996 cannot turn round and contend that the other part of the proviso is arbitrary.
45. The decisions relied on by the learned Counsel for the various petitioners turn on their own facts and are of no help to the petitioners. Since the matter has been heard and considered on merit, therefore, the question of maintainability of joint writ petitions has not been gone into, though a Division Bench of this Court, on similar facts in Chandmal Naurat Mai and Ors. v. State of Rajasthan and Anr. (supra) held that such joint writ petitions are not maintainable.
46. In this view of the matter, in my view, the petitioners are not entitled for the relief prayed for. For the reasons aforesaid, I do not find any merit in the writ petitions filed by the/petitioners in SBCWP No. 1817/2007 and the other writ petitions shown in Schedule-A annexed to this order and the same are hereby dismissed. There shall be no order as to costs.