The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.386 of 2013 (Application under Articles 226 and 227 of the Constitution of India) A.F.R. Saritarani Prusti and another … Petitioners -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.S.S.Das, Sr.Advocate. -versus- For Opposite Parties : Mr. A.R.Dash, A.G.A --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA 28.06.2024. JUDGMENT W.P.(C) No.386 of 2013 Page 1 of 16 Sashikanta Mishra,J. An advertisement was published in the Odia Daily “The Samaj” on 22.10.2012 being issued by the Director, Secondary Education, Odisha, inviting applications from eligible candidates for engagement as contract teachers in different Government High Schools located in different educational circles of the State during 2012-2013. Both the Petitioners having requisite qualifications submitted their applications for the district of Bargarh against 11 vacancies of P.E.T post. As per the eligibility criteria specified in the advertisement, a candidate was required to have minimum matriculation with CPED qualification. Further, a person having both Degree and Post Graduate Degree in professional course was also eligible to apply for the post of PET with the rider that for the purpose of computing their career marking the minimum academic qualification is to be taken into account along with marks obtained either in Diploma, Degree and Post Graduate professional qualification in Physical Education but not higher qualification. Both the Petitioners being women belong to the OBC W.P.(C) No. 386 of 2013 Page 2 of 16 category. In the provisional merit list, the Petitioners were placed at Sl. Nos.35 and 45 respectively and at Sl. Nos.1 and 4 respectively among the women candidates. However, to their surprise, their candidature was rejected in the final reject list issued by the District Education Officer, Bargarh, on the ground that they are untrained candidates. It is stated that rejection of their candidature is bad in law since the Petitioners have training qualification having undergone the professional course of Bachelor of Physical Education (BPE), which satisfies the alternative criteria prescribed in the advertisement. In other words, since they possess professional degrees, their candidatures could
Decision
not have been rejected. On such facts, the Writ Petition has been filed by the Petitioners with the following prayer; “The petitioners, therefore pray that this Hon’ble Court may graciously be pleased to admit the writ application, issue Rule NISI calling upon the opposite parties to show cause as to why the impugned rejection list under Annexure-5 shall not be quashed and as to why candidature of the petitioners shall not be considered for the post of PET advertised under Annexure-3, and in the event the opposite parties fail to show cause or show insufficient show cause this Hon’ble Court may issue a writ in the nature of certiorari W.P.(C) No. 386 of 2013 Page 3 of 16 quashing the list under annexure 5 and further issue a writ in nature mandamus directing the Opp. Parties to consider the candidature of the petitioners for the posts advertised and make the rule absolute; And may further be pleased to pass any other writ/writs, order/orders and direction/directions as this Hon’ble Court may deem just and proper; And for this act of kindness, the petitioners shall as in duty bound ever pray.” 2. Counter affidavit has been filed by the District Education Officer, Bargarh (Opposite Party No.3) refuting the contentions raised in the Writ Petition. It is stated that the minimum qualification is Matriculation with C.P.Ed. The Petitioners admittedly, do not possess C.P.Ed. qualification. Further, Bachelor of Physical Education (BPE)/B.P.Ed. is not higher qualification of C.P.Ed. as for taking admission into such course, it is not necessary for candidates to have completed C.P.Ed. course. The candidature of the Petitioners was therefore, rightly rejected. The Petitioners filed a rejoinder. It is reiterated that both of them have degrees in professional qualification i.e. Bachelor in Physical Education, which satisfies the eligibility criteria of the W.P.(C) No. 386 of 2013 Page 4 of 16 advertisement. Having acquired such qualification they can, by no stretch of imagination, be treated as untrained candidates. Further, as per information obtained under the R.T.I. Act, one Rabindra Kumar Rout having similar qualification i.e. Bachelor of Physical Education was given appointment as P.E.T in the district of Gajapati and has subsequently been regularized against such post. An affidavit has been filed by the Director, Secondary Education being directed by this Court, wherein it is clarified that both B.P.Ed. and C.P.Ed. relate to training in Physical Education but the syllabus and object of the two courses are different. Further, as regards the case of Rabindra Kumar Rout, it is admitted that he has been so appointed, but the Petitioners cannot claim negative quality with him. 3. Heard Mr.S.S.Das, learned Senior counsel, with Mr. S.S.Pradhan, learned counsel for the Petitioner and Mr.A.R. Dash, learned Addl. Government Advocate for the State. W.P.(C) No. 386 of 2013 Page 5 of 16 4. Mr. Das, learned Senior Counsel, would argue that the impugned order of rejection is based on misconception of the authorities of the condition specified in the advertisement. The Petitioners admittedly, possess qualification of Bachelor of Physical Education with such course being affiliated, regulated and conducted by Utkal University. Though it cannot be said to be a higher qualification than C.P.Ed. yet, in so far as the requirement of possessing training qualification is concerned, Bachelor in Physical Education is the same as C.P.Ed. Further, C.P.Ed. is a Certificate Course of one year duration whereas Bachelor of Physical Education is a full- fledged Degree course. The Petitioners must therefore, be treated as having the requisite qualification and cannot be treated as untrained candidates. Mr. Das further argues that the Government cannot prescribe different norms for different districts as appears to have happened in the case of Rabindra Kumar Rout. If the Bachelor of Physical Education course was accepted as the required qualification in case of W.P.(C) No. 386 of 2013 Page 6 of 16 Rabindra Kumar Rout, depriving the Petitioners from such benefit would amount to violation of the principles of equality under Article 14 of the Constitution of India. 5. Mr. A.R.Dash, learned Addl. Government Advocate, on the other hand, would argue that the Petitioners being fully aware of the norms specified in the advertisement, submitted their applications without challenging the same. Therefore, they cannot be allowed to question the eligibility conditions on the guise of challenging the rejection of their candidature at this stage. Since the Petitioners admittedly do not possess C.P.Ed. qualification and BPE is not a higher qualification than C.P.Ed., they cannot be said to have the required qualification. The advertisement only removes the bar for candidates with higher qualification such as Degree and Diploma in professional courses to apply, but the same cannot take away the requirement of possessing the minimum qualification as prescribed. Mr. Dash has relied upon W.P.(C) No. 386 of 2013 Page 7 of 16 the judgment of the Supreme Court in the case of Zahoor Ahmad Rather and others vrs. Sheikh Imtiyaz Ahmad and others;1. Mr. Dash further argues that the Petitioners cannot clam parity with Rabindra Kumar Rout as no negative equality can be claimed. 6. From the rival pleadings and submissions of the parties, it is evident that the Writ Petition involves primarily, two issues for determination; (i) Whether the Petitioners possess the required qualification as per the advertisement; and (ii) Whether the claim of parity of the Petitioners with Rabindra Kumar Rout is hit by the principle of negative equality. 7. To determine the first issue, reference may be made to the advertisement wherein, the following is mentioned; “In case of P.E.T a candidate should have minimum matriculation with C.P.Ed. qualification. The person having both Degree and Post Graduate Degree 1 2019(2) SCC 404 W.P.(C) No. 386 of 2013 Page 8 of 16 in professional qualification can also apply for the post of PET, but for the their career purpose of computing marking, academic the minimum qualification are to be taken into account along with the marks obtained both either in Diploma, Degree and Post Graduate professional qualification in Physical Education but not higher academic qualification. (Emphasis Added)” 8. On first blush, it would appear that a candidate has to have matriculation with C.P.Ed. qualification as the minimum qualification. Had this much alone been prescribed, then obviously, the Petitioners not possessing C.P.Ed. qualification would not be eligible. But then, the advertisement also permits persons having Degree and Post Graduate Degree in professional qualification to apply. The use of words ‘can also’ is highly significant inasmuch as it signifies something over and above the minimum requirement. In a way it serves as an exception to the minimum qualification initially stated i.e. Matriculation with C.P.Ed. The advertisement goes on to specify that in case of such persons having Degree and Post Graduate W.P.(C) No. 386 of 2013 Page 9 of 16 Degree qualification, only the minimum academic qualification (i.e. Matriculation) shall be taken into consideration for career marking along with marks obtained in the professional courses (either Diploma, Degree or Post Graduate), but not higher academic qualification. This would mean the marks secured by a candidate in normal Diploma, Graduate or Post Graduate courses, not being a professional course, would not be considered. Thus, on a composite reading of the eligibility conditions, it is difficult to read a bar therein for persons with Bachelor of Physical Education Degree to apply for the post of P.E.T. It has been stated at the bar that Bachelor of Physical Education is a course pursued after 10+2 and C.P.Ed. is a one year course also pursued after 10+2. Both are essentially held to be equivalent. This Court, finds some force in the above contention for the reason that in the provisional merit list published by the District Education Office, Bargarh (copy enclosed as Annexure- 4), the columns relating to qualification are mentioned as follows; W.P.(C) No. 386 of 2013 Page 10 of 16 “HSC or equivalent” and “B.P.Ed./ C.P.Ed”. 9. This by itself shows that there even according to the authorities, there is no distinction between B.P.Ed. and C.P.Ed. for the purpose of deciding the eligibility criteria as per the advertisement. If C.P.Ed. qualification alone would have been mandatorily required, then it would have been reflected in a separate column. Therefore, by including both C.P.Ed. and B.P.Ed. in one column being separated by a slash (/), it obviously means both are alternatively acceptable. 10. The above interpretation would find support from the fact that one Rabindra Kumar Rout, who is identically placed as the Petitioners was accepted and given appointment. So, when the Petitioners admittedly possessed Bachelor of Physical Education qualification, by no stretch of imagination, can they be treated as untrained candidates. This Court, therefore, holds that the Petitioners possess the required W.P.(C) No. 386 of 2013 Page 11 of 16 qualification for being appointed as P.E.T. as per the advertisement. 11. In the case of Zahoor Ahamed (supra) the question was whether a higher qualification can overcome the requirement of possessing minimum qualification specified in the advertisement. The Supreme Court held that in absence of specific rule, it would not be permissible to draw an inference that higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. Such is not the case here inasmuch as it is the case of neither parties that Bachelor of Physical Education is a higher qualification than C.P.Ed. To such extent therefore, the cited judgment has no application to the facts of the present case. 12. Coming to the second issue, it has been argued by learned State counsel that the appointment of Rabindra Kumar Rout being contrary to the norms cannot be cited by Petitioners as no negative equality can be claimed in such a case. W.P.(C) No. 386 of 2013 Page 12 of 16 13. Law is well settled that Article 14 of the Constitution of India is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other case. The said provision does not envisage negative equality but has only positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as them. If a wrong is committed in an earlier case, it cannot be perpetuated. Reference, in this regard may be had to the judgment of the Supreme Court in the case of Basawaraj and another vs. Special Acquisition Officer2. In the case of Doiwala Sehkari Shram Samvida Samiti Ltd. vs. State of Uttaranchal and others3, the Supreme Court held that two wrongs do not make one right. In the case of State of U.P. and