THE STATE OF RAJASTHAN vs. TRILOK RAM

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7215 OF 2019 (Arising out of S.L.P.(C) No.30933 of 2017) THE STATE OF RAJASTHAN & ORS. … APPELLANT(S) VERSUS TRILOK RAM … RESPONDENT(S) J U D G M E N T K.M. JOSEPH, J. 1. Leave granted. Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2019.09.12 16:41:52 IST Reason: 1 2. The appellant issued an advertisement on 11.8.2013 for recruiting Teachers Grade III (Level I and II) in the various Zila Parishads in the State of Rajasthan. The advertisement stipulated the last date for submission of the application form as 4.9.2013. The applicants were to fulfil the requisite educational qualifications as on the last date of the submission of the application form. The writ petitioner who is the respondent (hereinafter referred to as “the respondent”) was undergoing the B.S.T.C. Course (B.S.T.C. is an essential qualification stipulated). He, however, applied pursuant to the advertisement. The appellant discovered during the process of verification that the respondent was not holding the requisite qualification of B.S.T.C. as on the last date for submission of application form. The respondent appeared on the basis of an order passed by the High Court permitting him and others to submit their application however, it was subject to the decision in SBCWP No.10845/2013. Thereafter, he completed his B.S.T.C. second year course and the results were also declared. The result of the recruitment examination was declared on 17.5.2014. Finding that the result 2 of the examination in regard to the respondent and another was not uploaded on the official website, they filed writ petition No.244/2015. An interim order was passed in the said writ petition to bring the result of the petitioner in a sealed cover before the Court. The High Court further directed that the results to be declared. The respondent secured 158.41 marks. The respondent was called for verification of documents. Though the respondent secured marks which was more than the cut-off, his name was not found in the Select List dated 16.3.2015. After representing and not eliciting the required response, the writ petition which led to the present appeal (W.P.No.2801/2015) came to be filed seeking to quash final select list dated 16.3.2015 and to direct the appellants to declare the selection list of the respondent as marks secured were higher than the cut-off in the respective category. Finally, direction to appoint the respondent to the post of Teacher Grade III (Level I) with all consequential benefits was sought. The appellant filed counter affidavit. The learned Single Judge dismissed the writ petition. 3

4 4. In short, if the proviso held the field, the respondent would become eligible and qualified for selection and appointment based on merit. If the proviso on the other hand was not available, the respondent would not be eligible for the reason that as contended by the appellants, as on the last date for filing application the respondent had admittedly not passed the B.S.T.C. examination. The respondent had actually appeared for the examination and taking shelter under the proviso, the respondent claimed to be qualified on the terms thereof. The High Court after referring to the amendment dated 11.5.2011 to clause (3) of Rule 266, dwelt upon the purpose of a proviso. The Court adverted to case law on the point. It was found that there is no rule that the proviso must always be restricted to the ambit of the main provision. Occasionally in a statute, it was reasoned a proviso may be unrelated to the subject matter of the preceding section or contains matter extraneous to that section. Under such circumstances, it was reasoned by the High Court that it would have to be interpreted as a substantive provision dealing independently with the matter comprised therein and not as qualifying the main and 5 preceding section. The academic qualifications in clause (3) of Rule 266, it was found, were neither expanded nor qualified by the proviso. The proviso dealt with a clearly different area, namely, the time in which the eligibility prescribed under the Rules had to be attained. The amendment to sub-Rule (3) regarding academic qualifications was necessitated on account of subsequent legislation. Even after sub- rule (3) was substituted by amendment dated 11.5.2011, the proviso continued to hold the field. It is found that in such circumstances the condition in the advertisement being contrary to the proviso it would be illegal for the reason that an executive instruction cannot supplant the rule. The writ appeals were allowed. Petitioners were found entitled to benefits of employment in the light of their merit position except for back wages. 5. We heard Dr. Manish Singhvi, learned senior counsel appearing on behalf of the appellants and Ms. Aishwarya Bhati, learned senior counsel on behalf of the respondent. 6 6. It is contended by learned counsel for the appellants that the advertisement dated 11.8.2013 clearly stipulated that applicants should have the requisite educational qualifications on the last date of the submission of the application form. The respondent did not possess the said qualification admittedly but become qualified only if the proviso is made applicable. The respondent had not challenged the advertisement. He had participated in the selection, fully aware that under the advertisement the cut-off point was the last date for determining the issue relating to qualifications. He would also further submit that the amendment dated 5.10.2011 brought about by substitution in clause (3) of Rule 266, swept away the proviso. When clause (3) of Rule 266 was substituted by the said amendment, the rule making authority did not think it fit to continue the proviso relied upon by the respondent. The advertisement dated 11.8.2013 was issued after the substitution was carried out in clause (3) of Rule 266 on 11.5.2011. Therefore, the High Court erred in holding that the proviso survived the substitution on the basis that it was an independent provision having nothing to do with the change in the 7 qualifications which was brought about through the substituted provision of clause (3) of Rule 266 of the Rules. He further submitted that thousands of candidates had applied and were appointed who were qualified in terms of the advertisement, namely, those who were possessing qualification on the last date mentioned for making the application. He would also highlight that if the view of the High Court is upheld, it would also reach injustice to those candidates who relied upon the advertisement and were positioned like the respondent who appeared for the examination but did not apply on the basis that they were not having the qualifications. 8 7. Per contra, the learned senior counsel for the respondent supported the High Court judgment. She pointed out that sub-rule (3) of Rule 266 dealt with the qualification to be possessed for appointment as teachers. The qualifications became amenable to changes based on the qualifications which were stipulated by the competent authority. All that happened when the amendment dated 11.5.2011 was carried out was a new set of qualifications as stipulated by the competent authority came to be inserted in sub—rule (3) of Rule 266. The proviso as found by the High Court did not deal with the qualifications as such but only contemplated allowing persons who were not qualified when an advertisement is issued but had appeared for the examination could also apply subject to the conditions therein. The proviso thus only facilitated greater participation in the competitive process by throwing open the doors of recruitment to candidates who would otherwise be ousted. She also further drew our attention to the fact that the proviso in question came to be inserted for the first time on 1.7.2004. In 2006, Rule 266(3), it is pointed out came to be amended and a new set of qualifications were introduced through the 9

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14 9. In reply to the same the learned counsel for the appellant agreed with the contention of the respondent that the proviso was first inserted on 1.7.2004. He also agreed that Rule 266 underwent an amendment dated 28.6.2006. The substitution of clause (3) of Rule 266 makes no mention about the omission of the proviso. However, most pertinent it is argued by him, that on 29.11.2006 a further amendment was carried out in Rule 266(3) and under the said amendment the proviso was resurrected. There was a further amendment in the proviso to Rule 266, wherein in place of Rajasthan Public Service Commission, the expression, District Establishment Committee came to be substituted. However, he would point out on 11.5.2011 again clause (3) of Rule 266 came to be substituted. In fact, there is no controversy that such an amendment was carried out. His argument however is unlike what happened in 2006 when consequent upon the changes brought about in Rule 266(3), the proviso which existed earlier prior to the substitution came to be brought back to life, after the substitution which took place on 11.5.2011, the proviso suffered a burial from which it has not been brought back to life. In other words, after the 15 admitted substitution of clause (3) to Rule 266 in 2011, the proviso has not been inserted again as was done in the year 2006. This meant that after the substitution of 11.5.2011, the proviso had ceased to exist. Thereafter, it has never been brought back in rules in question. 16 10. As regards the circular dated 29.2.2012 relied upon, learned counsel pointed out that it related to the advertisement in the year 2012. At that time though the proviso was actually not there and the advertisement was issued on the said basis namely the candidates were expected to be in possession of the qualifications as on the last dated fixed under the advertisement, a decision was taken to replace the said clause in the advertisement itself for introducing the provisions of the proviso. In other words, though originally the advertisement contemplated the last date for determining the possession of qualifications, a conscious decision was taken to amend the advertisement itself on the basis that the proviso would govern the situation. He would further point out that we are concerned not with the advertisement of 2012 but with the advertisement dated 11.8.2013. As far as the current advertisement in question is concerned, the Circular dated 29.2.2012 would have no application. As far as the advertisement in question, the authorities have also not changed the requirement that the candidate should possess the qualifications as on the last date. The requirement of the candidate possessing 17 qualifications as on the last date stipulated in the advertisement is in consonance with Rule 266(3) sans the proviso. The advertisement, thus is in harmony with the statutory rules holding the field. He would no doubt submit that few persons may have been appointed on the basis that proviso would operate. It is appellants case that proceedings have been initiated in this regard. He would emphasize however that the correct legal position must govern, illegality should not be perpetuated and the proviso indeed cannot hold the field after 2011. 18

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22 13. The High Court has taken the view that when the substitution was effected on 11.5.2011, all that happened was one set of qualifications were replaced by another set of qualifications. The domain of clause (3) of Rule 266 was the declaration as to the qualifications to be possessed by the candidates for appointment as teachers at different levels. The proviso which was inserted on 1.7.2004 did not add to or take away from the qualifications which were declared in the main provision. All that the proviso purported to achieve was to give an opportunity to those candidates who had not acquired the qualifications as on the last date for making application but who had appeared for the concerned examination, to apply for the post. Thus, the proviso was indeed a beneficial provision as it provided a window of opportunity to those while not being qualified as such, were in the process of acquiring qualification by having appeared in the examination. This is no doubt subject to the conditions in the proviso. 23

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28 20. Rule 266 (3) as was brought into life by the amending Act dated 28.6.2006 continued to hold the field till it suffered substitution by notification dated 11.5.2011. Apparently, consequent upon the need to change the qualifications, Rule 266(3) came to be substituted. However, it is not in dispute that after the substitution dated 11.5.2011, the proviso relied upon by the respondent has not been brought back into existence as was done in the year 2006. 29

30 22. As far as the Circular dated 29.2.2012 relied upon by the respondent is concerned, it related to the advertisement issued in 2012 though legally the proviso to Rule 266(3) was non-existent. For whatever reasons it may have been, the order came to be issued extending the benefit of the proviso but after changing the condition in the advertisement. It cannot advance the case of the respondent who applied pursuant to a later advertisement dated 11.8.2013 wherein the requirement as to possession of qualifications as on the last date is clearly indicated. As far as the advertisement with which we are concerned which is of the year 2013, the Circular dated 29.2.2012 cannot be pressed into service by the respondent both in law and on facts. 23. The candidates must possess the qualifications on the last date when applying under the advertisement when it is so provided. In view of our finding that the proviso had ceased to exist after substitution of Rule 266(3) by notification dated 11.5.2011, there can be no question of the advertisement being opposed to the statutory rule. 31 24. The upshot of the above discussion is that the appeal is only to be allowed. We allow the appeal and the impugned judgment of the High Court in Writ Appeal No.DBCSAW NO.667/2015 shall stand set aside. .......................J. (SANJAY KISHAN KAUL) .......................J. (K.M. JOSEPH) New Delhi, September 12, 2019. 32