High Court of Punjab and HaryanaCWP/3363/2021allowed

Daljit Kaur And Others v. State Of Punjab And Others

2021-11-08Mr. Justice Mahabir Singh Sindhu33 pages

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(1) Should have passed Graduation with minimum fifty"five percent marks in the case of General Category candidates, and fifty percent marks in the case of Scheduled Castes, Scheduled Tribes, Other Backward Classes and Physically Handicapped candidates, from a recognized university or institution:

Provided that the candidates, who have done or doing the ETT course (or have done this course with other nomenclature), with 10+2 qualification, shall be considered for appointment into the Service under these rules, as one time measure till the 1st day of April, 2022, in order to remove the hardship of these candidates, who have acquired the said qualification under the previous rules.

(2) Should possess two years Elementary Teachers' Training course from a recognized university or institution or two years Diploma in Elementary Education (D.El.Ed.) or qualifications as per guidelines of the National Council for Teachers' Education.

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Besides above educational qualifications, for the post of E.T.T. Teacher, the candidates should have passed Punjab State Teacher Eligibility Test"I (P.S.T.E.T."I) conducted by the Punjab Government as per Free and Compulsory Education for Children Act, 2009.

(i) A written test (objective type) of 100 marks at State Level shall be conducted for recruitment of these posts. Those candidates who fulfill the other prescribed conditions of educational/ professional qualification for these posts, their merit shall be prepared on the basis of marks obtained in written test as well as marks awarded for higher qualification. The marks obtained in Punjab State Teacher Eligibility Test"I (P.S.T.E.T. -I) shall not be added in the merit.

(ii) The marks for higher qualification shall be awarded as under:"

Graduation First Division = 5 Marks Second Division = 3 Marks Third Division = 2 Marks?"

(If more than one candidates secure equal marks in the written test, then the candidate who is older in age, will be kept higher in merit and if candidates more than one secure equal marks and are having the same age, then the candidate who is having %age of higher marks, will be kept higher in the merit).

(i) Age as on 01.01.2020 should be between 18 to 37 years.

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(ii) Age relaxation upto 5 years will be admissible to the candidates belonging to Scheduled Castes and Backward Classes of Punjab State.

(iii) The upper age limit for the employees of Punjab State, other States and Central Government shall be 45 years.

(iv) The upper age limit for widows and divorced women of Punjab State shall be 42 years.

(v) Relaxation in age upto 10 years shall be admissible to the handicapped persons domiciled of Punjab State.

(vi) For Ex"Serviceman of Punjab State, their service period in Defence Forces shall be deducted from their present age and the balance age will be taken into account as per conditions above."

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( "Education Recruitment Directorate, Punjab had issued an advertisement dated 28.02.2020 to fill up posts of

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Master/Mistress and 06.03.2020 for filling up 2364 posts of ETT Teachers, in which while partially amending the same, it is written that vide Govt. of Punjab, Education Department (Education"7 Branch) Notification No.1/88812/2020(4) dated 12.10.2020 (copy enclosed as Annexure O), the exemption is granted from passing of TET (Punjab State Eligibility Test) to the Education Provider/Volunteers as per Notification dated 23.08.2020 having the qualification of B.Ed./ETT and who are appointed prior to 23.08.2010. Therefore, date of submission of online applications is extended upto 29.10.2020 and last date for deposit of fee shall be 30.10.2020. 8&

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( "Education Recruitment Directorate, vide an advertisement No.5/1"2020RD(1)/202082433(1), dated 06.03.2020 sought to fill up 664 posts on 06.03.2020 and other 1000 posts of ETT, thereafter, as per corrigendum posts were increased to 2364.

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Now, in this advertisement dated 06.03.2020, at Serial No.5 after Column No.(i) to (vi) of the age limit, Sr. No.(vii) is added as under:"

(vii) As per Govt. of Punjab, Department of Education (E"7 Branch) Notification No.13/01/2020/5EDU7/301/4 dated 11.11.2020, for the Education Provider/Education Provider/ Education Volunteer, E.G.S.

Volunteers, A.I.E.

Volunteers and Special Training Resource (STR) Volunteers, working in the Education Department of State, shall be given upper age relaxation equal to the service rendered by them.

Similarly, in this advertisement, at Serial No.3" mode of selection, after Column No.(i) to (ii) Sr. No.(iii) is added as under:"

(iii) As per Govt. of Punjab, Department of Education (E"7 Branch) Notification No.13/01/2020/5EDU7/301/4 dated 11.11.2020, for the Sikhia Provider/Education Provider/ Education Volunteer, E.G.S.

Volunteers, A.I.E.

Volunteers and Special Training Resource (STR) Volunteers working in the Education Department of State, shall be given 1 mark against each year in lieu of the service rendered by them and there shall be maximum 10 marks.

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25 I As to whether in view of the provisions of sub" rule (4) of rule 6 inserted vide amendment dated 26.02.2020, the impugned selection criteria specified in the advertisement dated 06.03.2020 is legally sustainable?

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I As to whether during the pendency of selection process, it was legally permissible for the official respondents to change the selection criteria vide corrigendum dated 11.11.2020, thereby granting weightage of maximum 10 marks for work experience (01 mark for each year) in favour of the 3 &

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( "That the Governor possesses legislative power under our Constitution is incontrovertible and, therefore, there is nothing unique about the Governor's power under the proviso to Article 309 being in the nature of a legislative power. By Article 168, the Governor of a State is a part of the legislature of the State. And the most obvious exercise of legislative power by the Governor is the power given to him by Art. 213 to promulgate ordinances when the legislature is not in session. Under that Article, he exercises a power of the same kind which the legislature normally exercises: the power to make laws. The heading of Chapter IV of Part VI of the Constitution, in which Art. 213 occurs, is significant:

"Legislative Power of the

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Governor". The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. It is legislative power. Under Article 213, he substitutes for the legislature because the legislature is in recess. Under the proviso to Article 309, he substitutes for the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject."

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( "On more than one occasion this Court has indicated to the Union and the State Governments that once they frame rules, their action in respect of matters covered by rules should be regulated by the rules. The rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation.

Very often government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. We take serious view of these lapses and hope and trust that the government both at the Centre and in the States would take note of this

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position and refrain from acting in a manner not contemplated by their own rules."

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The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

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:" (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." &-* - %

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& 2 & 2 $ ( "The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes, a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning."

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$ .- (1) In these rules, unless the context otherwise requires,"

(a) 'Appendix' means an Appendix appended to these rules;

(b) 'Board' means the Education Recruitment Board, Punjab;

(c) 'Border Area Cadre' means a separate cadre created for the members of Service of the Punjab State Elementary Education (Teaching Cadre) Group C Service to be posted in Districts Amritsar, Gurdaspur, Ferozepur, Fazilka, Tarntaran and Pathankot;

(d) 'Director' means the Director of Public Instructions (Elementary Education), Punjab.

(e) 'District Education Officer' means the District Education Officer (Elementary

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Education) in which the member of Service serves;

(f) 'District Cadre' means the posts in the Service specified District wise in Appendix 'A';

(g) 'Government' means the Government of the State of Punjab in the Department of School Education; and (h) 'Service' means Punjab State Elementary Education (Teaching Cadre) Border Area Group C Service.

(2) ??????????????????.

" %. & . Appointments to the Service shall be made by the District Education Officer concerned or any other authority empowered by the Government in this behalf. However, all appointments to the Service by way of direct recruitment shall be made on the recommendations of the Board.

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) ."(1) All appointments to the Service shall be made in the manner specified in Appendix 'B':

Where the Government is of the opinion that it is expedient to do so, the Government may, in exceptional circumstances, fill the vacancy by making appointment of the person by transfer from any other State Government or

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Government of India against direct quota if the person holds similar post.

(2) No person shall be appointed to a post in the Service, unless he possesses the qualifications and experience, as specified against that post in Appendix 'B'.

(3) Appointment to the Service by promotion shall be made on seniority"cum"merit basis and no person shall have any right to claim promotion on the basis of seniority alone.

(4)* No person shall be appointed to the Service by way of direct recruitment unless he qualifies in the competitive test as specified by the Director from time to time. The final selection of candidates shall be on the basis of their merit in the said written examination. There shall be no marks for viva voce or interview."

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"all appointments to the Service by way of direct recruitment shall be made on the recommendations of the Board"

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( "4.1.3.1 Creation of Recruitment Board in Punjab To assess the performance of the newly founded schools and quality of recruiting teacher staff, Punjab Govt. has created a recruitment board in 2013 vide its order no. 1590 Edu 6 dated 30.7.2013 (table 4.4). The Recruitment Board has the following constitution.

Table 4.4: Composition of Punjab School Recruitment Board.

1. Principal Secretary, School Education Chairman Punjab

2. Vice Chancellor, G.N.D.U, Amritsar Member

3. Vice Chancellor, Punjabi University, Member Patiala.

4. Chairman, Punjab School Education Member Board, S.A.S. Nagar, Punjab

5. Directorate General of School Member Education

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6. Director of Public Instructions, (S.E.), Convenor"

Punjab A &

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group of persons having managerial, supervisory or advisory powers.

In Parliamentary law, a Board is form of deliberative assembly and is distinct from Committee which is usually subordinate to a Board or other deliberative assembly having greater autonomy and authority."

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( "16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar, observing as follows:

"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not

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entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection.

The (appellant) invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.

17.

However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it.

The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail

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the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process."

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$ A 7 :!97:(!7 ?=!?B$-'1110+52%%$ ( "It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:

"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all".

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