HIGH COURT OF CHATTISGARH : BILASPUR
WRIT PETITION S No 5621 of 2008
Smt Jyoti Pandey
...Petitioners
Versus
State of Chhattisgarh & Another
! Shri T K Tiwari counsel for the petitioner
^ Shri N N Roy Panel Lawyer for the State
* CORAM: Honble Shri Satish K Agnihotri J
% Dated: 05/02/2010
: Judgement
O R D E R (O R A L)
(Passed on 05th day of February, 2010)
Writ Petition under Article 226of the Constitution of
India
1. Challenge in this petition is to the communication
dated 10.09.2009 (Annexure P/6) whereunder the appointment
of the petitioner to the post of Constable (G.D.) was
declined on the ground that the petitioner has not
obtained class 10th examination certificate under (10+2)
scheme or any equivalent examination certificate from the
school/college situated at Madhya Pradesh/Chhattisgarh.
2. The indisputable facts, in brief, are that pursuant
to the advertisement dated 11.02.2008 (Annexure P/1) the
petitioner made an application for appointment on the post
of Constable (G.D.) on the basis of intermediate
examination certificate, obtained from the Intermediate
College, Sultapur, Uttar Pradesh. The candidature of the
petitioner was rejected on the ground that she has
obtained class 10th and intermediate examination
certificate from a state other than Chhattisgarh/Madhya
Pradesh, and thus, she is not eligible for consideration
under the advertisement as well as qualification
prescribed in schedule II (Rule 8) of the Chhattisgarh
Police Karyapalik Bal, Arakshak (Bharti Tatha Sewa Ki
Sharte) Niyam, 2007 (for short ‘the Rules, 2007’).
3. Shri Tiwari, learned counsel appearing for the
petitioner, relies on a decision of a Division Bench of
the High Court of Madhya Pradesh in Saurabh Singh v. State
of M.P. & Others1, stating that the rules prescribing
criteria for class 10th examination from the State of
Madhya Pradesh was held to be in contravention of Article
14 and 16 of the Constitution of India because the same
denies equality of opportunity in the matters relating to
public employment in the State of M.P. Shri Tiwari
further relies on a decision of the Supreme Court rendered
in Olga Tellis & Others v. Bombay Municipal Corporation &
Others2.
4. On the other hand, Shri Roy, learned Panel Lawyer
appearing for the State/respondents submits that the
advertisement was issued in accordance with the Rules,
2007, framed under provisions of Article 309 of the
Constitution of India, wherein under scheduled II (Rule 8)
qualification of the Constable (G.D.) has been prescribed,
which has been shown as minimum qualification in the
advertisement also. The petitioner does not possess the
requisite qualification as per the Rules, 2007. Thus, the
petitioner was rightly not considered for selection and
appointment thereafter.
5. I have heard learned counsel appearing for the
parties, perused the pleadings and documents appended
thereto.
6. In Sourabh Singh (supra), it appears that the
qualification of 10th class examination under the 10+2
system or higher secondary school examination certificate
from the State of Madhya Pradesh was prescribed pursuant
to the circular dated 27.3.1998 of the State of Madhya
Pradesh. It is clear from perusal of the order that the
aforestated qualification was not prescribed in the
statutory rules framed under Article 309 of the
Constitution of India. Secondly, there is no challenge to
the rules which prescribes the above stated qualification.
Thus, Sourabh Singh (supra) is distinguishable and not
applicable to the facts of the case, on hand, as in the
present case, the minimum qualification has been a part of
the Rules, 2007 framed under Article 309 of the
Constitution and not in any circular or notification.
Further, since the question of waiver or estoppel on the
ground that the petitioner has participated, thereafter,
she cannot challenge the selection process is not in
question, it is not necessary to go into the said issue.
7. Reliance of Shri Tiwari on the decision of the
Supreme Court rendered in Olga Tellis (supra) to submit
that the principle of waiver or estoppel would not be
applicable in case of breach of fundamental right. There
is no dispute on the point. However, there is no
challenge with regard to application of waiver or estoppel
in the instant case from other side.
8. It is trite that if the provisions of the Act,
statutory Rules or regulations are clear, unambiguous,
causus omissus is impermissible. The minimum qualification
prescribed in the present case in Schedule II (Rule 8) of
the Rules, 2007 is plain, clear and unambiguous and does
not admit of any other interpretation. Secondly, there is
no challenge to the provisions of the Rules, 2007 as being
unconstitutional. Thus, the decision of the respondent
authorities not to take departure from the prescribed
statutory rules is just, proper and warrants no
interference. The Court has to examine the language, if it
is plain and unambiguous, the explanation supplied by the
Court may defeat the intention of the legislature, which
has been expressed in the statutory rules or regulations.
9. The Supreme Court in Dr. Ganga Prasad Verma and
Others v. State of Bihar and Others3, observed that “where
the language of the Act is clear and explicit, the Court
must give effect to it, whatever may be the consequences,
for in that case the words of the statute speak the
intention of the legislature. The interjection of the
preposition ‘or’ at the underlined place amounts to
judicial legislation or supplying omission which is
impermissible in the process of construction of the
Regulation.”
10. In State of M.P. and Another v. Dharam Bir4, the
Supreme Court observed as under :
“33. The post in question is the post of
Principal of the Industrial Training
Institute. The Government has prescribed a
Degree or Diploma in Engineering as the
essential qualification for this post. No
one who does not possess this
qualification can be appointed on this
post. The educational qualification has
direct nexus with the nature of the post.
The principal may also have an occasion to
take classes and teach the students. A
person who does not hold either a Degree
or Diploma in Engineering cannot possibly
teach the students of Industrial Training
Institute the technicalities of the
subject of Engineering and its various
branches.”
11. The Supreme Court in Rajasthan Public Service
Commission vs. Kaila Kumar Paliwal and Another5, observed
as under :
“9. The services of the teachers working
in the schools in the State of Rajasthan
are governed by the Rajasthan Educational
Service Rules, 1970 and Rajasthan
Education (Subordinate Services) Rules,
1971. Subordinate service consists of
the posts as specified in the schedule
appended thereto. A Teacher Grade-III as
also a Laboratory Assistant come within
the purview of the term ‘subordinate
services’. The minimum qualification for
holding the post of a Teacher Grade-III is
Matriculation with certificate of
training, whereas that of Laboratory
Assistant is Secondary with Science as an
optional subject.
13. Posts of Head Master, it would bear
repetition to state, are governed by the
1970 Rules. Five years’ teaching
experience is required for consideration
for appointment to the post of Head Master
which in turn is referable to teaching in
certain capacity on certain categories or
posts.
14. It is, therefore, difficult to accept
that those who had been holding posts of
Teacher Grade-III with the minimum
educational qualification of Matriculation
or Secondary Education with a certificate
in training would be entitled to teaching
in secondary classes or higher classes.”
12. In P.T. Rajan v. T.P.M. Sahir and Others6, the
Supreme Court observed as under :
“48. Furthermore, even if the statute
specifies a time for publication of the
electoral roll, the same by itself could
not have been held to be mandatory. Such
a provision would be directory in nature.
It is a well-settled principle of law that
where a statutory functionary is asked to
perform a statutory duty within the time
prescribed therefor, the same would be
directory and not mandatory. (See
Shiveshwar Prasad Singh v. District
Magistrate of Monghyr, Nomita Chowdhary v.
State of W.B. and Garbari Union Coop.
Agricultural Credit Society Ltd. v. Swapan
Kumar Jana).
50. The Court cannot, it is trite, supply
casus omissus. Reference in this regard
may be made to Baliram Waman Hiray (Dr.)
v. Justice B. Lentin wherein it was
observed : (SCC p. 443, para 27)’27. Law must be definite, and
certain. If any of the features of
the law can usefully be regarded as
normative, it is such basic
postulates as the requirement of
consistency in judicial decision-
making. It is this requirement of
consistency that gives to the law
much of its rigour. At the same
time, there is need for flexibility.
Professor H.L.A. Hart regarded as
one of the leading thinkers of our
time observes in his influential book
‘The Concept of Law’, depicting the
difficult task of a Judge to strike a
balance between certainty and
flexibility:
“Where there is obscurity in the
language of a statute, it results
in confusion and disorder. No doubt
the courts so frame their judgments
as to give the impression that
their decisions are the necessary
consequence of predetermined rules.
In very simple cases it may be so;
but in the vast majority of cases
that trouble the courts, neither
statute nor precedents in which the
rules are legitimately contained
allow of only one result. In most
important cases there is always a
choice. The judge has to choose
between alternative meanings to be
given to the words of a statute or
between rival interpretations of
what a precedent amounts to. It is
only the tradition that judges
`find’ and do not `make’ law that
conceals this, and presents their
decisions as if they were
deductions smoothly made from clear
pre-existing rules without
intrusion of the judge’s choice.”
13. Applying the well settled principles of law to the
facts of the case on hand and for the reasons mentioned
hereinabove, the writ petition deserves to be and is
dismissed. Interim order granted earlier is vacated.
14. There shall be no order asto costs.
J U D G E