THE STATE OF RAJASTHAN & ANR. versus ANJU RINI SAINI on 2 February 2022

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SUPREME COURT REPORTS

[2022] 13 S.C.R.

ATHE STATE OF RAJASTHAN & ANR.

v.

ANJU RINI SAINI

(Civil Appeal No. 872 of 2022)

BFEBRUARY 02, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Service Law – Rajasthan Panchayati Raj Rules, 1996 – r.266-A – Rajasthan Educational Subordinate Service Rules, 1971 – r.11– Applications were invited for filling up vacancies of LowerCDivision Clerk (LDC), reservation was provided in the category ofwomen and certain number of posts were set apart for widows amongwomen – Respondent (a widow) not holding required qualificationRajasthan State Certificate in Information Technology (RSCIT), herapplication was rejected – Writ petition filed, allowed by SingleDJudge relying on r.266-A – Decision confirmed by Division Bench– On appeal, held: Respondent applied pursuant to theadvertisement issued in 2013 –She did not possess the essentialqualification, RSCIT – She acquired the qualification only in theyear 2014, well beyond the stipulated time – Thus, in view of notpossessing the essential qualification on the last date of applicationEor till the extended date, respondent was not eligible to beconsidered when notification was issued in the year 2017, whichwas not a fresh notification but a notification in continuation of theearlier notification – Further, on facts there is no justification tohave extended r.266-A to the respondent – First essential requirementFfor the application for r.266-A is that the widow/divorcee must havebeen appointed – However, respondent was never appointed to thepost in question to clothe her with a right u/r.266-A – Also, the postconcerned in the present case is that of LDC (Vidyalay Sahayak)which is different from the post indicated in r.266-A – r.266A doesnot deal with the qualification of RSCIT either –Respondent wasGnot eligible to be considered for appointment – Impugned judgmentset aside – Constitution of India – Article 136.

Allowing the appeal, the Court

HELD: 1.1 Rule 11 of the Rajasthan EducationalHSubordinate Service Rules, 1971 provides that candidate should

possess the qualifications as provided thereunder besidespossessing the experience provided. Rule 266-A is the verypremise in the judgment of both the Division Bench and thelearned Single Judge. The respondent applied pursuant to theadvertisement which is issued in the year 2013 for theappointment of Clerk. The respondent did not possess one ofthe essential qualifications viz., RSCIT. This qualification couldnot be acquired by her by the stipulated last date for filing of theapplications. She could not, what is more, acquire the qualificationeven within the extended period and her candidature could notbe processed further in terms of the advertisement. The laterdevelopment which took place is that she acquired qualificationin the year 2014, well beyond the stipulated time. Undoubtedly,the advertisement was issued in the year 2017. From theadvertisement, it could be gathered that it is not a freshadvertisement. Had it been a fresh advertisement calling forapplications and stipulating for a new date, which in the absenceof any date being prescribed in the advertisement could havebeen taken as the date by which the application be made pursuantthereto in the light of the decision rendered by this Court, thematter would have been different. But what was contemplatedunder the advertisement issued in 2017 was to taking therecruitment of 2013 forward with respect to those who hadacquired eligibility in terms of the earlier advertisement issuedin the year 2013. This meant that those candidates who possessedthe qualification on the last date which was stipulated or at leastwithin the extended period, were alone to be considered. Therespondent filed an application. She therein does not dispute thefact she did not possess the qualification of RSCIT in the year2013. Treating it apparently as fresh advertisement, she makesthe application. This application is rejected by the Committeenoticing that she did not possess the qualification provided. Onemore aspect which is noticed at this stage is the minutes of thecommittee which did contemplate that there could be personswho have been given appointment. [Paras 8 and 10][906-F-H;908-B-G]

1.2 As far as Rule 266-A itself is concerned, what iscontemplated was that a widow/divorcee women who had beengiven appointment in the post of teacher after giving relaxation AB

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Aof the required educational qualification of B.S.T.C/ B.Ed. underthe erstwhile proviso to Rule 266 would be regularised from thedate on which they acquired the requisite educational qualification.The first essential requirement for the application for Rule 266-A is that the widow/divorcee must have been appointed. It is, inthis context, it is noticed that even in regard to the advertisementBissued later on, it was contemplated that there could be personswho may have been appointed. Even proceeding on the basisthat Rule 266-A is otherwise applicable in the cases of posts otherthan teacher, the fact is that here is the case where the Rule willnot apply for the reason that the respondent was never appointedCto the post in question to clothe her with a right under Rule 266-A. One may further notice that what Rule 266-A furthercontemplated is appointment being given to teacher after relaxingthe required educational qualification of B.S.T.C/ B.Ed. under

the erstwhile proviso to Rule 266. The qualification with whichthis Court is concerned in this case is RSCIT. Rule 266A doesDnot deal with the qualification of RSCIT. The qualifications, inother words, which are the subject matter have been expresslyset out in the Rule and which are different from the qualificationin question. The post with which the Court is concerned isdifferent from the post indicated in Rule 266-A. Learned counselEfor the respondent would, in fact, submit that Rule 266-A is alsoapplicable to the post of LDC. Even if that be so, the indispensableingredient of the Rule is clearly not fulfilled in the facts of thecase by the respondent as the respondent was not appointed.[Para 11][908-G-H; 909-A-E]

F1.3 As far as the judgment of the Division Bench dated11.02.2016 is concerned, the Court therein was actually dealingwith a challenge to Rule 16. The Court proceeded to agree withthe coordinate Bench which had upheld the validity of Rule 16.All that it did was, it directed the petitioners therein to representGtheir grievances before the Government for grant of relaxationof one year of experience to the widow/ diovorcee candidate andthe Court expected the Government to consider it sympatheticallyby exercising power under Rule 41 of the Rules of 2015. Noreliance could have been placed on it for granting the relief which H

respondent sought. There is no justification to have extendedRule 266-A to the respondent. In other words, the respondent inview of not possessing an essential qualification (RSCIT) on thelast date of application or till the extended date, was not eligibleto be considered when notification was issued in the year 2017,which was not a fresh notification but a notification in continuationof the earlier notification. It is not the case where the respondentwas appointed in the interregnum. Therefore, it is not a casewhere the foundation for the impugned judgment can besupported. Resultantly, the appellants have made out a case forinterference with the impugned judgment. [Para 12][909-E-H;910-A-B]

1.4 It is undoubtedly true that Article 136 is a special andextraordinary jurisdiction but that is a far cry from holding whena clear case of respondent not holding the required qualificationis made out, the Court can still direct appointment. It will bepalpably illegal and unconstitutional. Even with all the sympathythat this Court has undoubtedly for the respondent, however, itcannot result in public employment being made except in termsof the law governing the appointment. It is a clear case wherethe respondent was not eligible to be considered for appointment.The foundation for directing her to be considered appears to bevery fragile and insupportable. It is, in fact, the duty of theconstitutional Court in such cases to uphold the action of theauthorities which are in strict conformity with the rules of thegame in question. The impugned judgment set aside. The writpetition is dismissed. [Paras 13 and 14][910-C-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 872 of2022.

From the Judgment and Order dated 07.01.2021 of the High Courtof Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal(Writ) No.796 of 2020.

Ashish Kumar, Addl. AG, Sushil Kumar Singh, Milind Kumar, Advs.for the Appellants.

Prakash Kumar Singh, Adv. for the Respondent.

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[2022] 13 S.C.R.

AThe Judgment of the Court was delivered by

K. M. JOSEPH, J.

Leave granted.

(1) By advertisement dated 15.02.2013, applications were invitedBfor filling up vacancies of Lower Division Clerk (LDC). The requirementwas inter alia that the applicant must possess the qualification ofRajasthan State Certificate in Information Technology (RSCIT) by thelast date of submission of application notified as 22.03.2013. Reservationwas contemplated in the category of women and certain number ofposts were set apart for category of widows among women. RespondentCbeing a widow applied for the post of LDC on 15.04.2013. As on the lastdate prescribed for submission of application, the respondent did notpossess the qualification of RSCIT. Request from applicants generallyled to the authority taking the decision to extend the period for productiontill the date when the documents were to be verified or before theDpreparation of the select list. The respondent did not produce the RSCITwithin the extended period which is 07.05.2013. This led to the rejectionof her application in the meeting of District Establishment Committeewhich took place on 28.06.2013. Thereafter, on 10.11.2014, the respondentadmittedly obtained the qualification of RSCIT. Thereafter, it wouldappear that there was some litigation which stalled the recruitmentEprocess.

(2) Later on, in the year 2017, an advertisement came to be issuedon 21.08.2017 by which it was decided to proceed with the selection.We deem it appropriate to advert to it:

“ ADVERTISEMENTF

In compliance of Letter No. F37()P.R.D./Pr.-2/L.D.C.Direct Recruitment 2013/17/3263 Jaipur dated 17.08.2017 of theGovernment Secretary and Commissioner, Rural Development andPanchayati Raj Department in compliance of various judicialdecisions, eligible candidates as per amended merit list of L.D.C.GRecruitment 2013, as per meritwise issued earlier and candidatescoming in final cutoff of marks obtained categorywise (as permentioned below) shall remain personally present on 24.08.2017morning at 09.00AM at Ofifce of JilaParishad, Dausa by fulfillingdetailed application form and attaching their detailed applicationHform, certified copies of their Educational and professional qualification certificates and other necessary certificates andAphotocopy of online application form along with originaldocuments. In case of being absent it will be assumed that youare not interested in this recruitment. It is the final opportunity,after this no opportunity will be granted for verification ofdocuments. Categorywise cutoff list of marks for L.D.C.BRecruitment 2013 is as follows: - A

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Note: -

1. Those candidates who have acquired their professionalqualification from any other State/Private University/ DeemedUniversity except RSCIT. They will have to submit affidavit ofRs.100 in prescribed format as per instructions of Department.

2. Such candidates whose appointment orders have been issuedearlier but due to some reasons they could not took work charge.In compliance of Departmental Letter No. 3263 dated 17.08.2017,after re-inspection of their documents and eligibility, finalopportunity for taking work charge is given.”

(3) Thereupon, the respondent filed an application on 27.08.2017:

“To,

The Chief Executive Officer,

Jila Parishad, Dausa (Raj.)

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Subject: - For including in Document verification for LDCRecruitment 2013.

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Sir,

It is kindly requested that I got document verification inLDC Recruitment 2013 done by Panchayat Raj Departmentin year 2013 but due to not having RSCIT Certificate, myselection could not be done. But at present, again LDCrecruitment is started wherein I am within cutoff as per meritand my RSCIT Certificate is also available which I havequalified on 10 November 2014. So, it is kindly requested toyou that my selection has been done in ‘Widow’ Category.Kindly favour me by granting benefit.

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27/8/17"

(4) This application was disapproved in the meeting of the DistrictEstablishment Committee which took place on 01.09.2017, the relevantDportion of which reads as follows:

“Proposal 10

Following candidates earlier even after rejection of eligibility bythe District Establishment Committee have requested again forappointment while filing application.

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According to the remarks, approval of said list is done unanimously.

(5) This occasioned the filing of the writ petition which has led tothe present appeal. The learned Single Judge allowed the writ petitionfiled by the respondent. In doing so, the learned Single Judge drew supportfrom the judgment of Division Bench of the High Court dated 11.02.2016.What is more, the learned Single Judge sought to rest the decision on theprovisions of Rule 266-A of the Rajasthan Panchayati Raj Rules, 1996

(hereinafter referred to as ‘1996 Rules’ for brevity). The appellantsappealed before the Division Bench. By the impugned judgment, theDivision Bench has confirmed the decision of the learned Single Judge.

(6) We have heard Shri Sushil Kumar Singh, learned counsel onbehalf of the appellants and Mr. Prakash Kumar Singh, learned counselappearing on behalf of the respondent.

The case of the appellants would appear to be that the respondentdid not possess the stipulated qualification (RSCIT) by the last date fixedfor making the application and even by the extended date. Thereforeshe was not considered eligible for being appointed. The fact that sheacquired the qualification in question later in the year 2014 cannot advanceher case. What happened was there was some litigation which preventedthe recruitment being made. In other words, the recruitment process setin motion by advertisement in the year 2013 was resumed in the year2017. He would further submit that this is not a case where the respondentwas appointed to attract the provisions of Rule 266-A. He further pointedout that the judgment of the Division Bench which is relied upon may notbe relevant and will not advance the case of the respondent.

Per contra, learned counsel for the respondent would submit thatthe issuance of the advertisement in the year 2017 clothed the respondentwith the right. He stressed upon the fact that this Court is a ConstitutionalCourt. The respondent’s right flows from Article 15 of the Constitution.He would contend that the respondent is a widow who has been sufferingsince the year 2013. This is not a case for interference in the specialjurisdiction under Article 136. The respondent did acquire the qualificationby the time the advertisement was issued in 2017. In other words, whenthe recruitment took place after 2017, the respondent was possessingthe requisite qualification. He further pointed out that the respondentwas in possession of marks which was more than the cut off prescribedfor the category. He would commend for our acceptance the view takenby the Division Bench and in this regard, he also drew support from thejudgment of the Division Bench dated 11.02.2016.

(7) The post with which this Court is concerned in this case is thepost of LDC(Vidyalay Sahayak). The learned Single Judge had directedby an interim order to consider the respondent’s candidature as a widow.

Let us examine the reasoning of the learned Single Judge in alittle more detail. It appears to have been the contention of the respondent AB

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Athat under the said Rule 266-A, the qualification could be acquired evenafter the appointment. Thereafter, the learned Single Judge drew supportfrom the judgment of the High Court in DBCWP No. 13268/2015 andconnected matters decided on 11.02.2016. Thereafter, the Court foundthat as the respondent was found to have acquired all the qualificationsas per the Rules and also as per the advertisement merely because sheBdid not possess the RSCIT certificate on the last date of examination,she cannot be denied consideration under the widow category.

The application moved by the appellants under Article 226(3) ofthe Constitution of India was dismissed on the above reasoning and theinterim order was made absolute.C

Thereafter, noting that no other point was to be adjudicated in thecase, the learned Single Judge proceeded to find that the respondentwas entitled to be considered for appointment as per merit and educationalqualification including RSCIT which was acquired even later on in termsof Rule 266-A of the 1996 Rules under the OBC (Widow) quota, if sheDis found otherwise suitable. The writ petition itself came to be allowed.

The Division Bench, by the impugned judgment, also elaboratelyadverted to the judgment of the other Division Bench in D.B. Civil WritPetition No. 13268/2015 dated 11.02.2016. After quoting certain passages,the Division Bench proceeds to find that placing reliance on the saidEdecision the learned Single Judge rightly held that relaxation was liableto be granted to the respondent in regard to RSCIT Certificate.

(8) We must notice the rules in question.

Rule 11 of the Rajasthan Educational Subordinate Service Rules,F1971 provides that candidate should possess the qualifications as providedthereunder besides possessing the experience provided.

(9) Rule 266-A of the 1996 Rules reads as follows:

“266A. Notwithstanding anything contained in these rules, thewidow/ divorcée women, who have been given appointment onGthe post of teacher after relaxing required educational qualificationof B.S.T.C/ B.Ed. under the erstwhile proviso to rule 266 shall beregularized from the date they acquire the requisite educationalqualification.”

It is this Rule which is the very premise in the judgment of bothHthe Division Bench and the learned Single Judge. Since reliance is also placed on the judgment of the Division Bench dated 11.02.2016 notedabove, we may briefly refer to the issue which arose in the said caseand the order which was actually passed by the said Division Bench.The Court was dealing with the validity of Rule 16(1) of the RajasthanVidhyalay Sahayak Subordinate Service Rules, 2015. The petitionerstherein were either widows /divorcees for whom there was reservation.The complaint which was apparently raised before the Court was asregards the experience which was stipulated as one of the conditions ofeligibility for a widow /divorcee candidate. It was their contention interalia that reservation provided would remain a complete farce inasmuchas to insist upon experience from divorcee/widows would render theprovision of reservation a dead letter. Therein, the Court referred toRule 11 of the Rajasthan Educational Subordinate Service Rules, 1971.An amendment was carried out therein. Thereafter, the Court furtherreferred to Rule 266-A of 1996 Rules.

Rule 16, it was noticed by the Division Bench was upheld by acoordinate Bench. Thereafter, the Court proceeded to take the followingview:

“Taking note of the submissions made by counsel for the parties& the judgment (supra), as regards validity of R.16 is concerned,we do not find any justification to examine the issue & it is nomore res integra in light of the judgment (supra) but as regardsthe later submission made by the petitioners’ counsel for grant ofrelaxation in experience for widow/divorcee women candidatesand for participating in the selection process held for the post ofVidhyalay Sahayak included in the Schedule appended to the Rules,2015 & seeking liberty to make representation in light thereof, wefind reasonable justification and consider it appropriate to grantliberty prayed for.

Accordingly, while upholding validity of R.16 of the Rules,2015, which is impugned before us, we consider it appropriate togrant liberty to the petitioners of making representation to theState Government/ appointing authority for grant of relaxation inone year of experience to the widow/divorcee candidates in holding/acquiring the requisite qualification in terms of R.16 pursuant toadvertisement dt.21-7-2015 & if such representation is made, it isexpected from the State Government/appointing authority toconsider it sympathetically while exercising its power u/R. 41 of ABC

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Athe Rules, 2015 and may be decided as early as possible.With these directions/observations, the writ petition standsdisposed of.”

(10) Coming to the facts of this case, the respondent appliedpursuant to the advertisement which is issued in the year 2013 for theBappointment of Clerk. The respondent did not possess one of the essentialqualifications viz., RSCIT. This qualification could not be acquired byher by the stipulated last date for filing of the applications. She could not,what is more, acquire the qualification even within the extended periodand her candidature could not be processed further in terms of theCadvertisement. The later development which took place is that sheacquired qualification in the year 2014, well beyond the stipulated time.Undoubtedly, the advertisement was issued in the year 2017 as alreadynoticed. From the advertisement, what we would gather is that it is not afresh advertisement. Had it been a fresh advertisement calling forapplications and stipulating for a new date, which in the absence of anyDdate being prescribed in the advertisement could have been taken as thedate by which the application be made pursuant thereto in the light of thedecision rendered by this Court, the matter would have been different.But what was contemplated under the advertisement issued in 2017was to taking the recruitment of 2013 forward with respect to thoseEwho had acquired eligibility in terms of the earlier advertisement issuedin the year 2013. This meant that those candidates who possessed thequalification on the last date which was stipulated or at least within theextended period, were alone to be considered. The respondent filed anapplication as already noted. She therein does not dispute the fact shedid not possess the qualification of RSCIT in the year 2013. Treating itFapparently as fresh advertisement, she makes the application. Thisapplication is rejected by the Committee noticing that she did not possessthe qualification provided. One more aspect which is noticed at this stageis the minutes of the committee which did contemplate that there couldbe persons who have been given appointment. Noticing this fact, weGcontinue with the narrative.

(11) As far as Rule 266-A itself is concerned, the following isnoticed:

What is contemplated was that a widow/divorcee women whohad been given appointment in the post of teacher after giving relaxationHof the required educational qualification of B.S.T.C/ B.Ed. under the

erstwhile proviso to Rule 266 would be regularised from the date onwhich they acquired the requisite educational qualification. The firstessential requirement for the application for Rule 266-A is that the widow/divorcee must have been appointed. It is, in this context, that we noticethat even in regard to the advertisement issued later on, it wascontemplated that there could be persons who may have been appointed.Even proceeding on the basis that Rule 266-A is otherwise applicable inthe cases of posts other than teacher, the fact is that here is the casewhere the Rule will not apply for the reason that the respondent wasnever appointed to the post in question to clothe her with a right underRule 266-A. One may further notice that what Rule 266-A furthercontemplated is appointment being given to teacher after relaxing therequired educational qualification of B.S.T.C/ B.Ed. under the erstwhileproviso to Rule 266. The qualification with which this Court is concernedin this case is RSCIT. Rule 266A does not deal with the qualification ofRSCIT. The qualifications, in other words, which are the subject matterhave been expressly set out in the Rule and which are different from thequalification in question. The post with which the Court is concerned isdifferent from the post indicated in Rule 266-A. Learned counsel for therespondent would, in fact, submit that Rule 266-A is also applicable tothe post of LDC. Even if that be so, the indispensable ingredient of theRule is clearly not fulfilled in the facts of the case by the respondent asthe respondent was not appointed.

(12) As far as the judgment of the Division Bench dated 11.02.2016is concerned, the Court therein was actually dealing with a challenge toRule 16. The Court proceeded to agree with the coordinate Bench whichhad upheld the validity of Rule 16. All that it did was, it directed thepetitioners therein to represent their grievances before the Governmentfor grant of relaxation of one year of experience to the widow/ diovorceecandidate and the Court expected the Government to consider itsympathetically by exercising power under Rule 41 of the Rules of 2015.

We are of the view that no reliance could have been placed on itfor granting the relief which respondent sought. We also found there isno justification to have extended Rule 266-A to the respondent. In otherwords, the respondent in view of not possessing an essential qualification(RSCIT) on the last date of application or till the extended date, was noteligible to be considered when notification was issued in the year 2017,which was not a fresh notification but a notification in continuation of AB

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Athe earlier notification. It is not the case where the respondent wasappointed in the interregnum. Therefore, it is not a case where thefoundation for the impugned judgment can be supported. Resultantly,we find that the appellants have made out a case for interference withthe impugned judgment.

B(13) We are unable to accept the contentions of the respondentthat being a Constitutional Court and since rights have been declared inArticle 15 and being a widow warranting a sympathetic view to be taken,should culminate in our refusing to exercise our jurisdiction under Article136. It is undoubtedly true that Article 136 is a special and extraordinaryjurisdiction but that is a far cry from holding when a clear case ofCrespondent not holding the required qualification is made out, the Courtcan still direct appointment. It will be palpably illegal and unconstitutional.Even with all the sympathy that this Court has undoubtedly for therespondent, however, it cannot result in public employment being madeexcept in terms of the law governing the appointment. It is a clear caseDwhere the respondent was not eligible to be considered for appointment.The foundation for directing her to be considered appears to us to bevery fragile and insupportable. It is, in fact, the duty of the constitutionalCourt in such cases to uphold the action of the authorities which are instrict conformity with the rules of the game in question.

E(14) We see no reason to not overturn the impugned judgment.Accordingly, the appeal is allowed. The impugned judgment will standset aside. The writ petition stands dismissed.

There will be no orders as to costs.

FDivya Pandey

Appeal allowed.

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