[postlink]http://alertstrial.blogspot.com/2011/07/judgement-copy-of-case-dismiseed-filed.html[/postlink]IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No. 1046 of 1995 (O&M)
Date of Decision: July 7, 2011
Puran Chand and others
…Petitioners
Versus
State of Haryana and others
…Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE GURDEV SINGH
Present: None for the petitioners.
Mr. R.K.S. Brar, Addl. AG, Haryana,
for the respondents.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
M.M. KUMAR, J.
1. In this petition filed under Article 226 of the Constitution,
the short prayer made is that Note (ii) in Appendix ‘B’ of the Haryana
Primary Education (Group-C) District Cadre Service Rules, 1994
(for brevity, ‘the Rules’) may be declared ultra vires of Articles 14
and 16 of the Constitution because it permits the candidate with
higher qualification such as B.A., B.Sc. and B.Ed. to be considered
for appointment to the post of Junior Basic Trained Teachers. A consequential
prayer has also been made for quashing advertisement
dated 22.12.1994 (P-3), which stipulate in accordance with Note (ii)
that if adequate number of candidates possessing the qualification
of J.B.T. Teachers were not available then the posts could be filled
CWP No. 1046 of 1995 (O&M)
up from those who have qualification of B.A., B.Ed. or B.Sc. B.Ed.
The aforesaid clause reads as under:-
“2) xxx xxx xxx
Note:- i) xxx xxx xxx
ii) In case of non-availability of Junior Basic
Trained Teachers the candidates having
higher qualifications such as B.A. B.Ed. or
B.Sc. B.Ed. or its equivalent may be considered
for the posts of Junior Basic
Trained teachers but on selection such
persons shall have no right to claim the
benefit of any higher pay scales or salary
other than the pay scales of Junior Basic
Trained Teachers as the Government
may fix from time to time simply on the
basis of higher qualification. In case any
Basic Trained Teacher acquired higher
qualification including B.A. B.Ed. or B.Sc.
B.Ed. or its equivalent after selection or
joining the service he or she shall not be
allowed any higher pay scales or salary
simply on the basis of acquisition of such
qualification. The letter No. 5056-F.R.-II/
57/5600, dated 23rd July, 1957 issued by
the Finance Department of composite
State of Punjab shall have no effect
whatsoever.”
2. Brief facts of the case are that the petitioners joined the
course of Diploma in Education (Two-Year Course), which is popularly
known as J.B.T. Course, in the Government run institutes. At
the time of filing of the writ petition in the year 1995, the petitioners
passed the Part-I examination of the said course and were pursuing
their final year of J.B.T. course, which was to be completed by the
end of May 1995.
3. The petitioners have claimed that earlier the conditions
of service of Junior Basic Trained Teachers in the Education Department,
Haryana were governed by the rules known as ‘the Punjab
Education Service Class-III (School Cadre) Rules, 1955. Under the
said rules, the prescribed qualification for the post of Junior Basic
Trained Teachers was as under:
“(i) Matric (Full) with English as one of the subjects.
(ii) Pass in two years J.B.T./Diploma in Education Training
Course from the Haryana Education Department
or equivalent qualification recognised by the Haryana
Education Department.”
4. The petitioners have further claimed that by the end of
1994 Session of J.B.T. course, there were about 1200 J.B.T. trained
candidates available whereas there were more than 3900 posts of
Junior Basic Trained Teachers were lying vacant. The petitioners
further anticipated that after completion of their course, approximately
1700 more J.B.T. trained candidates were to be available.
5. On 16.9.1994, the State of Haryana under proviso to Article
309 of the Constitution framed ‘the Rules’. Rule 7 of ‘the Rules’
prescribes that no person would be appointed to any post in Service
unless he is in possession of qualifications and experience specified
in column 3 of Appendix B of the Rules in the case of direct recruitment
and those specified in column 4 of the said Appendix in the
case of appointment other than by direct recruitment. The relevant
entry of Appendix-B reads thus:
“ APPENDIX-B
Sr.
No.
Designation
of
posts
Academic qualification and
experience, if any, for direct
recruitment.
Academic
qualification
and experience,
if any,
for appointment
other
than by direct
recruitment
1. 2. 3. 4.
1. Junior
Basic
Trained
Teachers
(i) Matriculation from the
Board of School Education,
Haryana or its equivalent as
recognised by the Board of
School Education, Haryana,
and
xxx xxx
(ii) Passed two years Junior
Basic Training Course or
Diploma in Education Training
Course from Haryana
Education Department or
its equivalent recognised by
the Haryana Government.
(iii) Knowledge of Hindi
upto Matric standard.
Note-
(i) Preference will be given to candidates who
possess knowledge of Urdu upto Middle Standard
for such posts of Junior Basic Trained
Teachers who may be required to teach Urdu
or in Urdu.
(ii) In case of non-availability of Junior Basic
Trained Teachers the candidates having
higher qualifications such as B.A. or B.Sc.
B.Ed., may be considered for the posts of Junior
Basic Trained Teachers but on selection
such persons shall have no right to claim the
benefit of any higher pay scales or salary
other than the pay scales of Junior Basic
Trained Teachers as the Government may fix
from time to time simply on the basis of higher
qualifications. In case any basic Trained
Teacher requires higher qualification including
B.A. or B.Sc. B.Ed. after selection or joining the
service, he or she shall not be allowed any
higher pay scales or salary simply on the basis
of acquisition of such qualifications. The letter
No. 5056-FR-II/57/5600, dated 23rd July, 1957,
issued by the Finance Department of composite
State of Punjab shall have no effect whatsoever.
Note:Professional Training Diploma Certificate
awarded by any State Board or University
other than Haryana Education Department will
be recognised only if these Diploma or Certificates
have been recognised by the Haryana
Government.”
6. On 22.12.1994, the Subordinate Services Selection
Board, Haryana, issued an advertisement inviting applications for
filling up 5160 posts of J.B.T. Teachers (School Cadre) in the pay
scale of 1200-2040. The last date for receipt of application was
6.1.1995. As noticed in the opening para of the judgment it has
been stipulated in the said advertisement that that if adequate
number of candidates possessing the qualification of J.B.T. were not
available then the posts could be filled up from those who have
qualification of B.A., B.Ed. or B.Sc. B.Ed. (P-3).
7. In the backdrop of aforementioned factual position, the
petitioners have filed the instant petition with the grievance that by
virtue of Note (ii) in Appendix-B, against the post of Junior Basic
Trained Teachers, an attempt has been made to equate two unequals
as equal. However, it is an admitted fact that on the cut-off
date i.e. 6.1.1995, the petitioners were not having the minimum
academic qualification of passing of two years Junior Basic Training
Course or Diploma in Education Training Course from Haryana Education
Department or its equivalent recognised by the State of Haryana.
8. In the written statement filed by the respondents, a preliminary
objection has been raised that the petitioners did not have
locus standi to challenge the constitutional validity of Note (ii) because
they are yet to acquire the qualification of J.B.T. course in order
to become eligible for appointment. It is specifically pleaded
that the petitioners lacked requisite qualification on the cut-off date
i.e. 6.1.1995, which was the last date of receipt of application form.
They were still undergoing Junior Basic Training course. Therefore,
they cannot feel aggrieved and no relief could be given to them.
9. The case was called out yesterday i.e. 6.7.2011 and we
deferred the hearing for today. Again no one has put in appearance
on behalf of the petitioners. However, for the respondents Mr.
R.K.S. Brar, learned Additional Advocate General, Haryana, has appeared
and we have heard the learned State counsel.
10. It is well settled that if a person lacks qualification to be
eligible for appointment to a post then he is not permitted to challenge
the selection process because in such a situation no effective
relief could be granted to him. Accordingly, he would not have any
locus standi. In Jeet Singh and another v. State of Punjab, 1979 (1)
SLR 604, the question fell for consideration of Hon’ble the Supreme
Court. In para 8 of the judgment it has been held that those petitioners
lacked locus standi to file a petition because they were not
qualified for promotion and they did not have any right for promotion
prior to the selected candidate nor they could succeed in their
claim. Similar principles have been echoed in the case of R.K. Jain
v. Union of India, (1993) 4 SCC 119. In that case challenge was
made to the appointment of the President of CGAT. Initially he was
appointed as Judicial Member in 1982 and in 1991 he was given appointment
as Senior Vice-President of CGAT. Thereafter, in pursuance
of directions issued by Hon’ble the Supreme Court he was appointed
as President of CGAT. His appointment was challenged on
the ground that as per the convention a sitting or retired Judge of
Hon’ble the Supreme Court is appointed as President of CGAT in
consultation with Chief Justice of India and the aforesaid convention
has been totally disregarded. It has been held by Hon’ble the Supreme
Court that a third party, which was not even a candidate, has
no locus standi to challenge the appointment of any person. Accordingly,
we are of the view that the writ petition cannot be maintained
by those who are yet to acquire the qualification of J.B.T. and
become eligible for appointment to the post of Junior Basic Training
teachers by the last date fixed for receipt of applications. Therefore,
the writ petition is liable to be dismissed on this short ground.
Even otherwise, a Full Bench of this Court in the case of Manjit Singh
v. State of Punjab and others (C.W.P. No. 451 of 2008, decided on
5.2.2010) has now taken the view that higher qualification of B.A.
B.Sc. or B.Ed. for appointment to the post of Junior Basic Training
Teachers is no bar (C.f. Full Bench judgment in the case of Som Dutt
v. State of Punjab, 1983 (3) SLR 141). It is further appropriate to
mention that vide notification dated 28.2.2003, ‘the Rules’ have
been amended and Note (ii) from Appendix ‘B’ has been deleted.
11. For all the reasons mentioned above, this petition fails
and the same is dismissed.
(M.M. KUMAR)
JUDGE
(GURDEV SINGH)
July 7, 2011 JUDGE
CWP No. 1046 of 1995 (O&M)
Date of Decision: July 7, 2011
Puran Chand and others
…Petitioners
Versus
State of Haryana and others
…Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE GURDEV SINGH
Present: None for the petitioners.
Mr. R.K.S. Brar, Addl. AG, Haryana,
for the respondents.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
M.M. KUMAR, J.
1. In this petition filed under Article 226 of the Constitution,
the short prayer made is that Note (ii) in Appendix ‘B’ of the Haryana
Primary Education (Group-C) District Cadre Service Rules, 1994
(for brevity, ‘the Rules’) may be declared ultra vires of Articles 14
and 16 of the Constitution because it permits the candidate with
higher qualification such as B.A., B.Sc. and B.Ed. to be considered
for appointment to the post of Junior Basic Trained Teachers. A consequential
prayer has also been made for quashing advertisement
dated 22.12.1994 (P-3), which stipulate in accordance with Note (ii)
that if adequate number of candidates possessing the qualification
of J.B.T. Teachers were not available then the posts could be filled
CWP No. 1046 of 1995 (O&M)
up from those who have qualification of B.A., B.Ed. or B.Sc. B.Ed.
The aforesaid clause reads as under:-
“2) xxx xxx xxx
Note:- i) xxx xxx xxx
ii) In case of non-availability of Junior Basic
Trained Teachers the candidates having
higher qualifications such as B.A. B.Ed. or
B.Sc. B.Ed. or its equivalent may be considered
for the posts of Junior Basic
Trained teachers but on selection such
persons shall have no right to claim the
benefit of any higher pay scales or salary
other than the pay scales of Junior Basic
Trained Teachers as the Government
may fix from time to time simply on the
basis of higher qualification. In case any
Basic Trained Teacher acquired higher
qualification including B.A. B.Ed. or B.Sc.
B.Ed. or its equivalent after selection or
joining the service he or she shall not be
allowed any higher pay scales or salary
simply on the basis of acquisition of such
qualification. The letter No. 5056-F.R.-II/
57/5600, dated 23rd July, 1957 issued by
the Finance Department of composite
State of Punjab shall have no effect
whatsoever.”
2. Brief facts of the case are that the petitioners joined the
course of Diploma in Education (Two-Year Course), which is popularly
known as J.B.T. Course, in the Government run institutes. At
the time of filing of the writ petition in the year 1995, the petitioners
passed the Part-I examination of the said course and were pursuing
their final year of J.B.T. course, which was to be completed by the
end of May 1995.
3. The petitioners have claimed that earlier the conditions
of service of Junior Basic Trained Teachers in the Education Department,
Haryana were governed by the rules known as ‘the Punjab
Education Service Class-III (School Cadre) Rules, 1955. Under the
said rules, the prescribed qualification for the post of Junior Basic
Trained Teachers was as under:
“(i) Matric (Full) with English as one of the subjects.
(ii) Pass in two years J.B.T./Diploma in Education Training
Course from the Haryana Education Department
or equivalent qualification recognised by the Haryana
Education Department.”
4. The petitioners have further claimed that by the end of
1994 Session of J.B.T. course, there were about 1200 J.B.T. trained
candidates available whereas there were more than 3900 posts of
Junior Basic Trained Teachers were lying vacant. The petitioners
further anticipated that after completion of their course, approximately
1700 more J.B.T. trained candidates were to be available.
5. On 16.9.1994, the State of Haryana under proviso to Article
309 of the Constitution framed ‘the Rules’. Rule 7 of ‘the Rules’
prescribes that no person would be appointed to any post in Service
unless he is in possession of qualifications and experience specified
in column 3 of Appendix B of the Rules in the case of direct recruitment
and those specified in column 4 of the said Appendix in the
case of appointment other than by direct recruitment. The relevant
entry of Appendix-B reads thus:
“ APPENDIX-B
Sr.
No.
Designation
of
posts
Academic qualification and
experience, if any, for direct
recruitment.
Academic
qualification
and experience,
if any,
for appointment
other
than by direct
recruitment
1. 2. 3. 4.
1. Junior
Basic
Trained
Teachers
(i) Matriculation from the
Board of School Education,
Haryana or its equivalent as
recognised by the Board of
School Education, Haryana,
and
xxx xxx
(ii) Passed two years Junior
Basic Training Course or
Diploma in Education Training
Course from Haryana
Education Department or
its equivalent recognised by
the Haryana Government.
(iii) Knowledge of Hindi
upto Matric standard.
Note-
(i) Preference will be given to candidates who
possess knowledge of Urdu upto Middle Standard
for such posts of Junior Basic Trained
Teachers who may be required to teach Urdu
or in Urdu.
(ii) In case of non-availability of Junior Basic
Trained Teachers the candidates having
higher qualifications such as B.A. or B.Sc.
B.Ed., may be considered for the posts of Junior
Basic Trained Teachers but on selection
such persons shall have no right to claim the
benefit of any higher pay scales or salary
other than the pay scales of Junior Basic
Trained Teachers as the Government may fix
from time to time simply on the basis of higher
qualifications. In case any basic Trained
Teacher requires higher qualification including
B.A. or B.Sc. B.Ed. after selection or joining the
service, he or she shall not be allowed any
higher pay scales or salary simply on the basis
of acquisition of such qualifications. The letter
No. 5056-FR-II/57/5600, dated 23rd July, 1957,
issued by the Finance Department of composite
State of Punjab shall have no effect whatsoever.
Note:Professional Training Diploma Certificate
awarded by any State Board or University
other than Haryana Education Department will
be recognised only if these Diploma or Certificates
have been recognised by the Haryana
Government.”
6. On 22.12.1994, the Subordinate Services Selection
Board, Haryana, issued an advertisement inviting applications for
filling up 5160 posts of J.B.T. Teachers (School Cadre) in the pay
scale of 1200-2040. The last date for receipt of application was
6.1.1995. As noticed in the opening para of the judgment it has
been stipulated in the said advertisement that that if adequate
number of candidates possessing the qualification of J.B.T. were not
available then the posts could be filled up from those who have
qualification of B.A., B.Ed. or B.Sc. B.Ed. (P-3).
7. In the backdrop of aforementioned factual position, the
petitioners have filed the instant petition with the grievance that by
virtue of Note (ii) in Appendix-B, against the post of Junior Basic
Trained Teachers, an attempt has been made to equate two unequals
as equal. However, it is an admitted fact that on the cut-off
date i.e. 6.1.1995, the petitioners were not having the minimum
academic qualification of passing of two years Junior Basic Training
Course or Diploma in Education Training Course from Haryana Education
Department or its equivalent recognised by the State of Haryana.
8. In the written statement filed by the respondents, a preliminary
objection has been raised that the petitioners did not have
locus standi to challenge the constitutional validity of Note (ii) because
they are yet to acquire the qualification of J.B.T. course in order
to become eligible for appointment. It is specifically pleaded
that the petitioners lacked requisite qualification on the cut-off date
i.e. 6.1.1995, which was the last date of receipt of application form.
They were still undergoing Junior Basic Training course. Therefore,
they cannot feel aggrieved and no relief could be given to them.
9. The case was called out yesterday i.e. 6.7.2011 and we
deferred the hearing for today. Again no one has put in appearance
on behalf of the petitioners. However, for the respondents Mr.
R.K.S. Brar, learned Additional Advocate General, Haryana, has appeared
and we have heard the learned State counsel.
10. It is well settled that if a person lacks qualification to be
eligible for appointment to a post then he is not permitted to challenge
the selection process because in such a situation no effective
relief could be granted to him. Accordingly, he would not have any
locus standi. In Jeet Singh and another v. State of Punjab, 1979 (1)
SLR 604, the question fell for consideration of Hon’ble the Supreme
Court. In para 8 of the judgment it has been held that those petitioners
lacked locus standi to file a petition because they were not
qualified for promotion and they did not have any right for promotion
prior to the selected candidate nor they could succeed in their
claim. Similar principles have been echoed in the case of R.K. Jain
v. Union of India, (1993) 4 SCC 119. In that case challenge was
made to the appointment of the President of CGAT. Initially he was
appointed as Judicial Member in 1982 and in 1991 he was given appointment
as Senior Vice-President of CGAT. Thereafter, in pursuance
of directions issued by Hon’ble the Supreme Court he was appointed
as President of CGAT. His appointment was challenged on
the ground that as per the convention a sitting or retired Judge of
Hon’ble the Supreme Court is appointed as President of CGAT in
consultation with Chief Justice of India and the aforesaid convention
has been totally disregarded. It has been held by Hon’ble the Supreme
Court that a third party, which was not even a candidate, has
no locus standi to challenge the appointment of any person. Accordingly,
we are of the view that the writ petition cannot be maintained
by those who are yet to acquire the qualification of J.B.T. and
become eligible for appointment to the post of Junior Basic Training
teachers by the last date fixed for receipt of applications. Therefore,
the writ petition is liable to be dismissed on this short ground.
Even otherwise, a Full Bench of this Court in the case of Manjit Singh
v. State of Punjab and others (C.W.P. No. 451 of 2008, decided on
5.2.2010) has now taken the view that higher qualification of B.A.
B.Sc. or B.Ed. for appointment to the post of Junior Basic Training
Teachers is no bar (C.f. Full Bench judgment in the case of Som Dutt
v. State of Punjab, 1983 (3) SLR 141). It is further appropriate to
mention that vide notification dated 28.2.2003, ‘the Rules’ have
been amended and Note (ii) from Appendix ‘B’ has been deleted.
11. For all the reasons mentioned above, this petition fails
and the same is dismissed.
(M.M. KUMAR)
JUDGE
(GURDEV SINGH)
July 7, 2011 JUDGE
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