The State Of Rajasthan vs Anju Rini Saini

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 872 OF 2022 (Arising out of SLP (C)No. 10551 of 2021)

THE STATE OF RAJASTHAN & ANR. Appellant(s)

VERSUS

ANJU RINI SAINI Respondent(s)

J U D G M E N T

K. M. JOSEPH, J.

Leave granted.

(1) By advertisement dated 15.02.2013, applications were

invited for filling up vacancies of Lower Division Clerk

(LDC). The requirement was inter alia that the applicant

must possess the qualification of Rajasthan State

Certificate in Information Technology (RSCIT) by the last

date of submission of application notified as 22.03.2013.

Reservation was contemplated in the category of women and

certain number of posts were set apart for category of

widows among women. Respondent being a widow applied for Signature Not Verified Digitally signed by the post of LDC on 15.04.2013. As on the last date Nidhi Ahuja Date: 2022.02.14 17:49:06 IST Reason: prescribed for submission of application, the respondent did

1 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

not possess the qualification of RSCIT. Request from

applicants generally led to the authority taking the

decision to extend the period for production till the date

when the documents were to be verified or before the

preparation of the select list. The respondent did not

produce the RSCIT within the extended period which is

07.05.2013. This led to the rejection of her application in

the meeting of District Establishment Committee which took

place on 28.06.2013. Thereafter, on 10.11.2014, the

respondent admittedly obtained the qualification of RSCIT.

Thereafter, it would appear that there was some litigation

which stalled the recruitment process.

(2) Later on, in the year 2017, an advertisement came to

be issued on 21.08.2017 by which it was decided to proceed

with the selection. We deem it appropriate to advert to it:

“ ADVERTISEMENT 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 the Government Secretary and Commissioner, Rural Development and Panchayati Raj Department in compliance of various judicial decisions, eligible candidates as per amended merit list of L.D.C. Recruitment 2013, as per meritwise issued earlier and candidates coming in final cutoff of marks obtained categorywise (as per mentioned below) shall remain personally present on 24.08.2017 morning at 09.00AM at Ofifce of JilaParishad, Dausa by fulfilling detailed application form and attaching their detailed application form, certified copies of their Educational and professional qualification certificates and other necessary certificates and photocopy of online application form along with original documents. In case of being absent it will be assumed that you are not interested in this recruitment. It is the final opportunity, after this

2 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

no opportunity will be granted for verification of documents. Categorywise cutoff list of marks for L.D.C. Recruitment 2013 is as follows: -

Class General General Widow Abandoned Ex- Excellent H.I. L.D. B.L. Female Service Player C.P. men General 69.431 66.616 38.662 45.231 26.170 44.046 43.5 66.6 50.29 08 16 2 Other 67.040 62.620 26.277 -

Backward Class Special 66.077 62.000 - -

Backward Class Schedule 64.160 60.800 - 39.954 Caste Schedule 65.108 62.416 31.016 40.000 Tribe

Note: -

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

2. Such candidates whose appointment orders have been issued earlier 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, final opportunity for taking work charge is given.”

(3) Thereupon, the respondent filed an application on

27.08.2017:

“To,

The Chief Executive Officer, JilaParishad, Dausa (Raj.)

3 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

Subject: - For including in Document verification for LDC Recruitment 2013.

Sir, It is kindly requested that I got document verification in LDC Recruitment 2013 done by Panchayat Raj Department in year 2013 but due to not having RSCIT Certificate, my selection could not be done. But at present, again LDC recruitment is started wherein I am within cutoff as per merit and my RSCIT Certificate is also available which I have qualified on 10 November 2014. So, it is kindly requested to you that my selection has been done in ‘Widow’ Category. Kindly favour me by granting benefit.

27/8/17”

(4) This application was disapproved in the meeting of the

District Establishment Committee which took place on

01.09.2017, the relevant portion of which reads as follows:

“Proposal 10

Following candidates earlier even after rejection of eligibility by the District Establishment Committee have requested again for appointment while filing application.

S. Name Father’s Reason for earlier Remarks No. name/Husband rejection name 4. AnjuRini Saini Surya Narayan Not approved as Computer Saini Computer Certificate is liable Certificate is not to be rejected being valid issued later than prescribed date

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

(5) This occasioned the filing of the writ petition which

has led to the present appeal. The learned Single Judge

allowed the writ petition filed by the respondent. In doing

4 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

so, the learned Single Judge drew support from 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 the provisions of Rule 266-A of the Rajasthan

Panchayati Raj Rules, 1996 (hereinafter referred to as ‘1996

Rules’ for brevity). The appellants appealed before the

Division Bench. By the impugned judgment, the Division

Bench has confirmed the decision of the learned Single

Judge.

(6) We have heard Shri Sushil Kumar Singh, learned counsel

on behalf of the appellants and Mr. Prakash Kumar Singh,

learned counsel appearing on behalf of the respondent.

The case of the appellants would appear to be that the

respondent did not possess the stipulated qualification

(RSCIT) by the last date fixed for making the application

and even by the extended date. Therefore she was not

considered eligible for being appointed. The fact that she

acquired the qualification in question later in the year

2014 cannot advance her case. What happened was there was

some litigation which prevented the recruitment being made.

In other words, the recruitment process set in motion by

advertisement in the year 2013 was resumed in the year 2017.

He would further submit that this is not a case where the

respondent was appointed to attract the provisions of Rule

266-A. He further pointed out that the judgment of the

5 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

Division Bench which is relied upon may not be relevant and

will not advance the case of the respondent.

Per contra, learned counsel for the respondent would

submit that the issuance of the advertisement in the year

2017 clothed the respondent with the right. He stressed

upon the fact that this Court is a Constitutional Court.

The respondent’s right flows from Article 15 of the

Constitution. He would contend that the respondent is a

widow who has been suffering since the year 2013. This is

not a case for interference in the special jurisdiction

under Article 136. The respondent did acquire the

qualification by the time the advertisement was issued in

2017. In other words, when the recruitment took place after

2017, the respondent was possessing the requisite

qualification. He further pointed out that the respondent

was in possession of marks which was more than the cut off

prescribed for the category. He would commend for our

acceptance the view taken by the Division Bench and in this

regard, he also drew support from the judgment of the

Division Bench dated 11.02.2016.

(7) The post with which this Court is concerned in this

case is the post of LDC(Vidyalay Sahayak). The learned

Single Judge had directed by an interim order to consider

the respondent’s candidature as a widow.

Let us examine the reasoning of the learned Single

6 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

Judge in a little more detail. It appears to have been the

contention of the respondent that under the said Rule 266-A,

the qualification could be acquired even after the

appointment. Thereafter, the learned Single Judge drew

support from the judgment of the High Court in DBCWP No.

13268/2015 and connected matters decided on 11.02.2016.

Thereafter, the Court found that as the respondent was found

to have acquired all the qualifications as per the Rules and

also as per the advertisement merely because she did 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) of the Constitution of India was dismissed on the

above reasoning and the interim order was made absolute.

Thereafter, noting that no other point was to be

adjudicated in the case, the learned Single Judge proceeded

to find that the respondent was entitled to be considered

for appointment as per merit and educational qualification

including RSCIT which was acquired even later on in terms of

Rule 266-A of the 1996 Rules under the OBC (Widow) quota, if

she is found otherwise suitable. The writ petition itself

came to be allowed.

The Division Bench, by the impugned judgment, also

elaborately adverted to the judgment of the other Division

7 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

Bench in D.B. Civil Writ Petition No. 13268/2015 dated

11.02.2016. After quoting certain passages, the Division

Bench proceeds to find that placing reliance on the said

decision the learned Single Judge rightly held that

relaxation was liable to 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, 1971 provides that candidate should possess

the qualifications as provided thereunder besides possessing

the experience provided.

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

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

It is this Rule which is the very premise in the

judgment of both the Division Bench and the learned Single

Judge. Since reliance is also placed on the judgment of the

Division Bench dated 11.02.2016 noted above, we may briefly

refer to the issue which arose in the said case and the

order which was actually passed by the said Division Bench.

The Court was dealing with the validity of Rule 16(1) of the

Rajasthan Vidhyalay Sahayak Subordinate Service Rules, 2015.

8 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

The petitioners therein were either widows /divorcees for

whom there was reservation. The complaint which was

apparently raised before the Court was as regards the

experience which was stipulated as one of the conditions of

eligibility for a widow /divorcee candidate. It was their

contention inter alia that reservation provided would remain

a complete farce inasmuch as to insist upon experience from

divorcee/widows would render the provision of reservation a

dead letter. Therein, the Court referred to Rule 11 of the

Rajasthan Educational Subordinate Service Rules, 1971. An

amendment was carried out therein. Thereafter, the Court

further referred to Rule 266-A of 1996 Rules.

Rule 16, it was noticed by the Division Bench was

upheld by a coordinate Bench. Thereafter, the Court

proceeded to take the following view:

“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 no more res integra in light of the judgment (supra) but as regards the later submission made by the petitioners’ counsel for grant of relaxation in experience for widow/divorcee women candidates and for participating in the selection process held for the post of Vidhyalay Sahayak included in the Schedule appended to the Rules, 2015 & seeking liberty to make representation in light thereof, we find reasonable justification and consider it appropriate to grant liberty prayed for.

Accordingly, while upholding validity of R.16 of the Rules, 2015, which is impugned before us, we consider it appropriate to grant liberty to the petitioners of making representation to the State Government/ appointing authority for grant of relaxation in one year of experience to the

9 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

widow/divorcee candidates in holding/acquiring the requisite qualification in terms of R.16 pursuant to advertisement dt.21-7-2015 & if such representation is made, it is expected from the State Government/appointing authority to consider it sympathetically while exercising its power u/R. 41 of the Rules, 2015 and may be decided as early as possible.

With these directions/observations, the writ petition stands disposed of.”

(10) Coming to the facts of this case, the respondent

applied pursuant to the advertisement which is issued in the

year 2013 for the appointment of Clerk. The respondent did

not possess one of the essential qualifications viz., RSCIT.

This qualification could not be acquired by her by the

stipulated last date for filing of the applications. She

could not, what is more, acquire the qualification even

within the extended period and her candidature could not be

processed further in terms of the advertisement. The later

development which took place is that she acquired

qualification in the year 2014, well beyond the stipulated

time. Undoubtedly, the advertisement was issued in the year

2017 as already noticed. From the advertisement, what we

would gather is that it is not a fresh advertisement. Had

it been a fresh advertisement calling for applications and

stipulating for a new date, which in the absence of any date

being prescribed in the advertisement could have been taken

as the date by which the application be made pursuant

thereto in the light of the decision rendered by this Court,

the matter would have been different. But what was

10 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

contemplated under the advertisement issued in 2017 was to

taking the recruitment of 2013 forward with respect to those

who had acquired eligibility in terms of the earlier

advertisement issued in the year 2013. This meant that

those candidates who possessed the qualification on the last

date which was stipulated or at least within the extended

period, were alone to be considered. The respondent filed

an application as already noted. She therein does not

dispute the fact she did not possess the qualification of

RSCIT in the year 2013. Treating it apparently as fresh

advertisement, she makes the application. This application

is rejected by the Committee noticing that she did not

possess the qualification provided. One more aspect which

is noticed at this stage is the minutes of the committee

which did contemplate that there could be persons who have

been given appointment. Noticing this fact, we continue

with the narrative.

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

following is noticed:

What is contemplated was that a widow/divorcee women

who had been given appointment in the post of teacher after

giving relaxation of the required educational qualification

of B.S.T.C/ B.Ed. under the erstwhile proviso to Rule 266

would be regularised from the date on which they acquired

the requisite educational qualification. The first

11 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

essential requirement for the application for Rule 266-A is

that the widow/divorcee must have been appointed. It is, in

this context, that we notice that even in regard to the

advertisement issued later on, it was contemplated that

there could be persons who may have been appointed. Even

proceeding on the basis that Rule 266-A is otherwise

applicable in the cases of posts other than teacher, the

fact is that here is the case where the Rule will not apply

for the reason that the respondent was never appointed to

the post in question to clothe her with a right under Rule

266-A. One may further notice that what Rule 266-A further

contemplated is appointment being given to teacher after

relaxing the required educational qualification of B.S.T.C/

B.Ed. under the erstwhile proviso to Rule 266. The

qualification with which this Court is concerned in this

case is RSCIT. Rule 266A does not deal with the

qualification of RSCIT. The qualifications, in other words,

which are the subject matter have been expressly set out in

the Rule and which are different from the qualification in

question. The post with which the Court is concerned is

different from the post indicated in Rule 266-A. Learned

counsel for the respondent would, in fact, submit that Rule

266-A is also applicable to the post of LDC. Even if that

be so, the indispensable ingredient of the Rule is clearly

not fulfilled in the facts of the case by the respondent as

the respondent was not appointed.

12 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

(12) As far as the judgment of the Division Bench dated

11.02.2016 is concerned, the Court therein was actually

dealing with a challenge to Rule 16. The Court proceeded to

agree with the coordinate Bench which had upheld the

validity of Rule 16. All that it did was, it directed the

petitioners therein to represent their grievances before the

Government for grant of relaxation of one year of experience

to the widow/ diovorcee candidate and the Court expected the

Government to consider it sympathetically by exercising

power under Rule 41 of the Rules of 2015.

We are of the view that no reliance could have been

placed on it for granting the relief which respondent

sought. We also found there is no justification to have

extended Rule 266-A to the respondent. In other words, the

respondent in view of not possessing an essential

qualification (RSCIT) on the last date of application or

till the extended date, was not eligible to be considered

when notification was issued in the year 2017, which was not

a fresh notification but a notification in continuation of

the earlier notification. It is not the case where the

respondent was appointed in the interregnum. Therefore, it

is not a case where the foundation for the impugned judgment

can be supported. Resultantly, we find that the appellants

have made out a case for interference with the impugned

judgment.

13 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

(13) We are unable to accept the contentions of the

respondent that being a Constitutional Court and since

rights have been declared in Article 15 and being a widow

warranting a sympathetic view to be taken, should culminate

in our refusing to exercise our jurisdiction under Article

136. It is undoubtedly true that Article 136 is a special

and extraordinary jurisdiction but that is a far cry from

holding when a clear case of respondent not holding the

required qualification is made out, the Court can still

direct appointment. It will be palpably illegal and

unconstitutional. Even with all the sympathy that this

Court has undoubtedly for the respondent, however, it cannot

result in public employment being made except in terms of

the law governing the appointment. It is a clear case where

the respondent was not eligible to be considered for

appointment. The foundation for directing her to be

considered appears to us to be very fragile and

insupportable. It is, in fact, the duty of the

constitutional Court in such cases to uphold the action of

the authorities which are in strict conformity with the

rules of the game in question.

(14) We see no reason to not overturn the impugned

judgment. Accordingly, the appeal is allowed. The

impugned judgment will stand set aside. The writ petition

stands dismissed.

14 CA No. 872/2022 (@ SLP (C)No. 10551 of 2021)

There will be no orders as to costs.

………………………………………………………., J.

[ K.M. JOSEPH ]

………………………………………………………., J.

[ HRISHIKESH ROY ] New Delhi;

February 02, 2022.

15