(Court’s order whether the case is or not approved for reporting.) v. State & Ors.

Sri Alok Mehra, learned counsel for the petitioner, Ld. Standing Counsel for the State/respondents. Hon’ble Rajesh Tandon, J. Heard Sri Alok Mehra, learned counsel for the petitioner and learned Standing Counsel for the State/respondents.

2. The petitioner in this writ petition has prayed to issue a writ of mandamus directing the respondent no. 2 to grant quality point marks for post graduate qualification to the petitioner for appointment on the post of Assistant Teacher L.T. Grade (Hindi) strictly in accordance with the Appendix D of U.P. Subordinate Educational (Trained Graduates Grade) Service Rules 1983.

3. Briefly stated, the petitioner has applied for the post of Assistant Teacher (Hindi) in L.T. Grade in Garhwal Region.

4. Contention of the petitioner is that he has applied for the aforesaid post in pursuance of the advertisement dated 24th June 2002. According to the petitioner, he possesses all the 3 requisite qualifications and is eligible to be appointed for the said post. The petitioner came to know that he has not been awarded quality point marks for his post graduate degree in Sanskrit.

5. Grievance of the petitioner is that the respondents arbitrarily did not grant quality point marks of his post graduation degree in Sanskrit.

6. The quality point marks are to be given in accordance with the Rule 15 of the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 which are contained in Appendix-D, the same is quoted as below:- S.No. Name of Examination Quality Points (i) High School The % of marks/10 (ii) Intermediate The % of marks x 2/10 (iii) Graduation Degree The % of marks x 4/10 (iv) Training Theory Ist Division- IInd Division III Division Practical- I Division IInd Division IIIrd Division 12 06 03 12 06 4 03 15 10 05 (V) Post Graduation Degree Ist Division IInd Division IIrd Division

7. A counter affidavit has been filed by the respondents, in which it is stated that the appointment for the post of Assistant Teacher are made on the basis of the quality point marks awarded according to the academic record of each candidates and formula thereof is specified in Appendix D of Rule 1983. Learned Standing Counsel contended that the petitioner has not given quality points for his Post Graduation Degree according to the rule and condition prescribed in the advertisement. The Competent Selection Committee had adopted the procedure to give quality points to such applicants, who posses Post Graduation qualification with Trained Graduation in such subject for which he has applied for.

8. It is alleged by the petitioner that for preparing the merit list, quality points are given for post graduate degree, irrespective of the subject. In the month of June, 2003, respondents have issued appointment letters for filling the post of Assistant Teacher, L.T. Grade, Hindi (Language) but the petitioner has been left out. On enquiry the petitioner came to know that his post graduate degree in Sanskrit has not been considered and no quality points has been awarded for the same. The petitioner was under impression that at the time of preparing merit list, the respondents shall consider his post 5 graduation degree. The post graduation degree in Sanskrit has not been taken into account. The petitioner, alleging the discrimination as arbitrary and violative of Article 14 and 16 of the Constitution of India, relying of the Apex Court Judgment of Dr. M.A. Haque Vs. Union of India, 1993 (2) S.C.C. Pg. 213, has sought the mandamus for consideration of this case for the appointment of L.T. Grade teacher through this writ petition.

9. The Division Bench of Hon’ble the Apex Court in the case of Dr. M.A. Haque Vs. Union of India, 1993 (2) S.C.C. Pg. 213 has held as under:- “….We are also conscious of the fact that candidates in service have a disadvantage as against the fresh candidates in the tests particularly when they face the tests after a long lapse of time. As against this, however, we cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rule and the by-passing of the Public Service Commission are permitted, it will open a back-door for illegal recruitment without limit. In fact this court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment the services through the Public Service Commission. It appears that since this Court has in some case permitted regularization of irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the recruitment rules and the Public Service Commission have been kept in cold storage and candidates dictated by various considerations are being recruited as matter of course……..” 6

10. Rules 15. of the U.P. Subordinate Edu.(Trained Grad Grade) Service Rules , 1983 provides Procedure for direct recruitment, which reads as under:- “1. (a) The Regional Deputy Director of Education concerned shall in respect of the vacancies of both branches (Men’s and Women’s Branch) to be filled by direct recruitment, advertise the vacancies subject-wise, along with the number of vacancies to be reserved for the candidate belonging to the Scheduled Castes/Tribes and other categories of persons in at least two leading newspapers, one having wide circulation in the region and the other in the State, and invite applications for direct recruitment in the proforma given in Appendix ‘C’. Such advertisement shall, inter alia, mentioned the pay and allowances relating the posts, minimum academic qualifications for appointment thereto and such other information as may be considered necessary. (b). The application referred to in Clause (a) shall be sent by registered post, to the Regional Deputy Director of Education within three weeks from the date of publication of advertisement in the newspaper, so as to reach the office of the Regional Deputy Director of Education on or before the last date of receipt of application mentioned in the advertisement. (c). The application referred to in Clause (a) shall be accompanied by- (i) a fee of fifteen rupees in the form of Crossed Postal Order payable to the concerned Regional deputy Director of Education: Provided that such fee shall in the case of candidates belonging to the Scheduled Castes and Scheduled Tribes be five rupees: (ii) a self-addressed envelop; and (iii) other documents as may be required. 7 (d) No application sent in accordance with Clause (b) or (c) shall be taken into consideration.

2. The Regional Deputy Director of Education shall scrutinize the applications and shall cause the lists of candidate to be prepared of the basis of quality points specified in Appendix ‘D’. The Regional Deputy Director of Education shall place the lists along with the applications before the Selection Committee.

3. There shall be a Selection Committee for selection of candidates for appointment by direct recruitment comprising: (i) Appointing Authority, (ii) The Regional Deputy Director of Education or the Regional Inspectress of Girls Schools, who is not appointing authority, (iii) Regional Assistant Director of Education (Basic). The appointing authority shall be the Chairman.

4. The Selection Committee shall, after considering the cases of candidates on the basis of lists referred to in sub-rule (2), prepare subject-wise lists of selected candidates for appointment in L.T. Grade in order of merit as disclosed by the quality points complied under sub-rule (2). If two or more candidates obtain equal quality points, the name of the candidate who is older in age shall be placed higher in list. The number of names in the list shall be larger (but not larger by more than twenty five percent) than the number of vacancies advertised under sub-rule (1)”.

11. Sub rule (4) of Rule 15 of U.P. Subordinate Educational (Trained Graduate Grade) Service Rules 1983 reads as under: “The selection Committee shall, after considering the cases of candidates on the basis of lists referred to in sub-rule (2), prepare subjectwise list of selected candidates for 8 appointment in L.T. Grade in order of merit as disclosed by the quality points complied under sub-rule (2). If two or more candidates obtained equal quality points the name of the candidate who is older in age shall be placed higher in the list. The number of names in the list shall be larger (but not larger by more than 25 per cent) than the number of vacancies advertised under sub-rule (1).”

12. APPENDIX ‘D’ [See Rule 15(2)] Quality points for selection by direct recruitment Name of Examination Quality Points

1. High School The Percentage of marks 10

2. Intermediate The Percentage of marks x 2 10

3. Graduate Degree The Percentage of marks x 4 10 Others:

4. Training: I Division II Division 1st Div. 2nd Div. 3rd Div. III Division (a) Theory 1263 (b) Practical 1263

5. Post Graduate Degree 15105.

13. Appendix ‘D’ read with the above rule shows that for calculating the quality points, for a Post Graduate Degree, it has not been made necessary that the Post Graduate Degree should be in the same subject for which the candidate has sought appointment in L.T. Grade. Thus, denial of the quality points to the petitioner can’t be said to be justified. In view of principle of law laid down in MA Haque V/s Union of India (1993) 2 1993 Supreme Court cases Pg 213, the Government is supposed to comply with the rules framed under Article 309 of the Constitution of India. U.P. Subordinate Educational (Trained 9 Graduate Grade) Service Rules 1983 are the rules which are framed under Article 309 of the Constitution of India and respondents cannot bypass the same.

14. As will appear from the aforesaid Rule that the post graduation of the same subject being not provided under the statutory rule, the petitioner is entitled to be considered for selection in accordance with the Rules.

15. In the circumstances, in view of the above discussion this Court is in full agreement with the submission of learned counsel for the petitioner that the petitioner has wrongly been denied consideration of his case by not awarding him quality points. Therefore, writ petition deserves to be allowed.

16. For the reasons stated above, a writ of mandamus is hereby issued directing the respondents to consider the case of the petitioner by awarding him quality points as per the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules 1983 within a period of one month from the date filing of a certified copy of this order.

17. The claim of the petitioner shall be considered for the post of Assistant Teacher L.T. Grade, if otherwise he fulfills necessary qualifications in pursuance of the advertisement dated 24th June 2002.

18. Accordingly, the writ petition is allowed. No order as to costs. (Rajesh Tandon, J.) March 4,2006: NCM: