An executive instruction cannot supplant a rule, and the condition of the advertisement being contrary to the proviso to the rule would be illegal.

PUSHPENDRA SINGH BHATI, J.

This writ petition under Article 226 of the Constitution of India has been preferred with the following prayers:—

“1. That the candidature of the petitioner for the appointment on the post of General Teacher Level-I is declare disqualified candidate, is order to be declare illegal and prayed to be declare disqualification is quashed and set aside qua the petitioner.

2. That the petitioner declare selected candidates as per selection list/merit list and also direction was given to the respondent department to give appointment to the petitioner on the post of General Teacher Level-I as per his percentage of marks.

Any other appropriate writ, order or direction, which this Hon'ble Court may deemed fit and proper may kindly be granted in favour of the petitioner. Cost of the writ petition is granted to the petitioner.”

2. Learned counsel for both the parties agreed that the present controversy is squarely covered by the judgment rendered by the Division Bench of this Hon'ble Court in Trilok Ram v. The State of Rajasthan (D.B Special Appeal Writ No. 667/2015 along with other analogous matters decided on 18.08.2017), relevant paras 15 and 16 of which read as under:—

“15. The academic qualifications prescribed by Sub-rule (3) of Rule 266 were neither expanded nor qualified by the proviso. The proviso which was inserted in the statute book on 1.7.2004 dealt with an entirely different area. It dealt with the time by which the eligibility prescribed by the Rule had to be attained in the form of the academic qualifications achieved. The amendment to Sub-rule (3) was necessitated on account of subsequent legislations concerning academic qualifications to be appointed as Teachers. Instant case would therefore require it to be held that the proviso was retained in the statute book and when Sub-rule (3) was substituted, it was the main Sub-rule and not the proviso thereto. Under the circumstances the condition of the advertisement being contrary to the proviso to the Rule would be illegal for the reason an executive instruction cannot supplant a Rule.

16. The writ appeals are allowed. Impugned decision by the learned Single Judge is set aside. The writ petitions filed by the petitioners are allowed. The writ petitioners would be entitled to consequential benefits of employment given to them in light of their merit position except for back wages.”

3. Learned counsel for both the parties further agreed that the aforementioned judgment rendered by the Division Bench of this Hon'ble Court has been stayed by the Hon'ble Apex Court vide order dated 20.11.2017 passed in Petitions for Special Leave to Appeal (C) Nos. 30933/2017 (The State of Rajasthan v. Trilok Ram).

4. In light of the above, the present writ petition is disposed of with the direction that the respondents shall consider the case of the petitioner, strictly in accordance with the final judgment to be rendered by the Hon'ble Apex Court in the matter of The State of Rajasthan v. Trilok Ram (supra). The petitioner shall be required to move an application before the respondents after the final judgment is rendered by the Hon'ble Apex Court in the aforementioned case and the respondents shall comply with the judgment to be rendered the Hon'ble Apex Court.