GARG, J. - (1.) BOTH the aforementioned writ petitions are being decided by this common order as in both of them identical questions of law and facts are involved and parties are same. S. B. Civil Writ Petition No. 4367/93
(2.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 31. 1. 1992 against the respondents with the prayer that by an appropriate writ, order or direction, the respondents be directed to grant due increments to the petitioner and finalise her fixation in revised pay scales from 1. 11. 1989 in grade Rs. 1200-2040. The case of the petitioner as put forward by her in this writ petition is as follows:- The petitioner was appointed as Music Teacher Grade III vide order dated 28. 3. 1985 (Annex. 2 to the writ petition No. 4817/2002) passed by the respondent No. 3 Dy. Director (Girls), Education Department, Jodhpur till end of the session, which was further extended till further orders vide order dated 1. 7. 1987 passed by the respondent No. 3 Dy. Director (Girls ). In the meantime, the petitioner was given one annual grade increment and her pay was raised from Rs. 490/- to Rs. 500/- vide order Annex. 1 dated 30. 9. 1986. The further case of the petitioner is that she passed Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad in 1982 and a copy of the mark sheet of Prathma Examination is marked as Annex. 7 to writ petition No. 4817/2002. The further case of the petitioner is that she also possessed the degree of Sangeet Prabhakar from Prayag Sangit Samiti, Allahabad and a copy of which is marked as Annex. 6 to the writ petition No. 4817/2002. The further case of the petitioner is that Prathma Examination was recognized by the State of Rajasthan when she passed the Prathma Examination and it was equivalent to matriculation and similarly, the degree of Sangeet Prabhakar was also recognized in the State of Rajasthan for appointment to the post of Music Teacher and thus, since she was having requisite qualifications for appointment to the post of Music Teacher Gr. III, therefore, she was appointed as Music Teacher Gr. III through order dated 28. 3. 1985 (Annex. 2 to writ petition No. 4817/2002) and therefore, she was entitled to all benefits including revision of pay etc. etc. The further case of the petitioner is that the Assistant Accounts Officer, Jodhpur raised an objection that the petitioner did not fulfil the requisite qualifications as prescribed in the Schedule appended to the Rajasthan Education Subordinate Service Rules, 1971 (hereinafter referred to as "the Rules of 1971") for appointment to the post of Music Teacher Gr. III. The requisite qualifications as prescribed in the Scheduled appended to the Rules of 1971 for appointment to the post of Music Teacher Gr. III are as follows:- " Senior Higher Secondary or/higher Secondary or Secondary with optional Music or an equivalent examination recognized by Govt. of Rajasthan. " On that audit objection, the petitioner was denied regular increments and revised pay scales etc. The further case of the petitioner is that the degree of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad was recognized on 28. 3. 1985 when she was given appointment as Music Teacher Gr. III through Annex. 2 to the writ petition No. 4817/2002 and for that Annex. 10, which was filed alongwith additional affidavit, may be referred to. The further case of the petitioner is that no doubt the degree of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad was de-recognized by the Government of Rajasthan, but it was withdrawn in the year 1987 while the petitioner passed that Prathma Examination in the year 1982 and before it was de- recognized, the petitioner was already given appointment as Music Teacher Gr. III on that basis through order dated 28. 3. 1985 (Annex. 2 to writ petition No. 4817/2002 ). The further case of the petitioner is that de-recognition of a degree is always prospective and not retrospective and therefore, the said de-recognition of degree of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad in the year 1987 by the State of Rajasthan would not affect the rights of the petitioner. The further case of the petitioner is that a letter dated 28. 10. 1991 (Annex. 4) was written by the respondent No. 4 District Education Officer (Girls), Barmer to the respondent No. 3 Dy. Director (Girls), Education Department, Jodhpur in which at para 3, it was stated that the case of the petitioner was considered for fixation in the revised pay scale, 1987, but since she was not having requisite qualification as prescribed in the schedule appended to the Rules of 1971, therefore, she was not given revised pay scale, 1987 and a copy of that letter Annex. 4 was also sent to the petitioner and this aspect has been challenged by the petitioner in this writ petition. It may be stated here that this writ petition was dismissed in default on 16. 2. 1999 and thereafter, restoration application was also dismissed by this Court on 5. 7. 1999 and on appeal filed by the petitioner being D. B. C. Special Appeal (Writs) No. 320/2000, the Division Bench of this Court through judgment dated 7. 2. 2002 restored the writ petition and directed that the writ petition be disposed of on merits. A reply to the writ petition was filed by the respondents and their case is that the petitioner was given appointment as Music Teacher Gr. III through order dated 28. 3. 1985 (Annex. 2 to writ petition No. 4817/2002), but that appointment order was wholly illegal as the petitioner did not possess the requisite qualifications as prescribed in the schedule appended to the Rules of 1971. It has been further submitted by the respondents that at the time when the petitioner was given appointment through order Annex. 2 to writ petition No. 4817/2002, she was having the following qualifications:- (i) She was having mark sheet of Prathma Examination from Hindi Sahitya Sammelan (Prayag), Allahabad. (ii) She was having Diploma Certificates in Vocal, Instrumental & Dance from Prayag Sangit Samiti, Allahabad. Since the basic appointment of the petitioner was illegal, therefore, she was not entitled to any relief. Hence, the writ petition filed by the petitioner be dismissed. S. B. Civil Writ Petition No. 4817/2002 During the pendency of the above writ petition No. 4367/93, a notice Annex. 8 dated 25. 10. 2001 under Rule 35 (B) of the Rajasthan Service Rules, 1951 (hereinafter referred to as "the RSR") was issued to the petitioner by the respondent No. 3 Dy. Director (Elementary), Education Department, Jodhpur stating that since the petitioner was not having requisite qualifications as prescribed in the schedule appended to the Rules of 1971 for appointment to the post of Music Teacher Gr. III, therefore, her services as Music Teacher Gr. III would stand terminated after the expiry of period of one month from the date of receipt of that notice. Thereafter, through order Annex. 10 dated 30. 11. 2002 passed by the respondent No. 5 District Education Officer (Elementary Education), Pali, the services of the petitioner were terminated on the ground that she was not having requisite qualifications for appointment to the post of Music Teacher Gr. III, as prescribed in the schedule appended to the Rules of 1971. In this writ petition, Annex. 10 dated 30. 11. 2002 has been challenged on various grounds and the main ground is that when the petitioner was given appointment to the post of Music Teacher Gr. III through order Annex. 2 dated 28. 3. 1985, she was having requisite qualifications and thus, the termination of her services through order Annex. 10 is wholly illegal and violative of Article 14 of the Constitution of India. A reply to the writ petition was filed by the respondents and their case is that the services of the petitioner were rightly terminated through order Annex. 10 as she did not possess the requisite qualifications as prescribed in the schedule appended to the Rules of 1971. Hence, the writ petition filed by the petitioner be dismissed. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. There is no dispute on the point that requisite qualifications for appointment to the post of Music Teacher Gr. III as prescribed in the schedule appended to the Rules of 1971 are that a candidate must possess Senior Higher Secondary or/higher Secondary or Secondary with optional Music or an equivalent examination recognized by Government of Rajasthan.
(3.) THERE is also no dispute on the point that through order dated 28. 3. 1985 (Annex. 2 to writ petition No. 4817/2002) the petitioner was appointed as Music Teacher Gr. III and at the time of her appointment, she was having the following qualifications:- (i) Mark-sheet of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad and she passed that examination in 1982. (Annex. 7 to writ petition No. 4817/2002 ). (ii) Degree of Sangeet Prabhakar issued by the Prayag Sangit Samiti, Allahabad. (Annex. 6 to writ petition No. 4817/2002 ). (iii) Junior Diploma in Vocal, Singing and Dance from Prayag Sangit Samiti, Allahabad (Annex. 5 to writ petition No. 4817/2002 ). (iv) Senior Diploma in Vocal, Singing and Dance from Prayag Sangit Samiti, Allahabad (Annex. 4 to writ petition No. 4817/2002 ). There is also no dispute on the point that when the petitioner was appointed as Music Teacher Gr. III through order dated 28. 3. 1985 (Annex. 2 to writ petition No. 4817/2002), the degree of Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad was recognized degree by the Government of Rajasthan and was equivalent to Secondary Examination. There is also no dispute on the point that the degree of the Prathma Examination from Hindi Sahitya Sammelan (Prayag) Allahabad was de-recognized by the Government of Rajasthan in the year 1987. ;