The interpretation of statutory rules and their application in determining eligibility for public employment.

JUDGMENT (Oral)

Anil Kshetarpal, J. (Oral) - The petitioner prays for issuance of a writ in the nature of Certiorari to question the general condition 8(vi) given in the advertisement dated 31st December, 2016. In essence, the candidature of the petitioner has been refused on the ground that he did not study and pass the Punjabi subject at the Matric level or any higher class other than Matriculation. The petitioner applied for the post of Demonstrator of Physical Education pursuant to the recruitment notice dated 31st December, 2016. On 27 July, 2000 one post of Demonstrator, Physical Education in the General category was kept reserved. The said order reads as under:-

'All the cases listed today have been taken up for hearing by way of video conferencing because of the situation existing due to the Covid-19 pandemic.

By this petition the petitioner challenges the rejection of his candidature for the post of a Demonstrator of Physical Education (DPE) in the State of Punjab, on the ground disclosed to him that he does not have sufficient qualification in the Punjabi language, with the examination of 'Punjabi Praveshika' obtained from the Punjabi University, Patiala, not being sufficient qualification equivalent to passing Matriculation with Punjabi.

Learned counsel for the petitioner submits that though he has not been able to find any notification stating that the Punjabi Praveshika examination is equivalent having passed Matriculation with Punjabi, he also points to Rule 17 of the Punjab Civil Services (General and Common Conditions of Services) Rules, 1994, to submit that the petitioner being the son of an ex defence personnel, he is required to be given an opportunity to pass the examination of Punjabi language equivalent to matriculation standard, or would have to qualify a test conducted by the language wing of the Department of Education, Punjab, within a period of two years from the date of his appointment.

Without making any comment on the merits of the case, notice of motion is issued to the respondent-State, with Ms.Lavanya Paul, Assistant Advocate General, Punjab, accepting notice at the asking of the court, with her already having received a copy of the petition.

Learned State counsel opposes the petition on the ground that other than the fact that the petitioner has not shown any equivalence of the aforesaid examination with Matriculation in Punjabi, but there exists a circular dated 06.06.2011, which states that recruitment is to be made on the basis of Punjabi passed in the Matriculation examination conducted by Punjab School Education Board.

Even having considered that contention, as to how a circular can over rule statutory rules, is something that is wholly un-understood.

Consequently, the Director Secondary Education, Punjab is directed to file his personal affidavit in reply to each and every paragraph of the petition, including as to how a circular can overrule statutory rules. If any citation of law is needed to aid the Director to understand the matter, judgment of Hon'ble Supreme Court in the case of 'State of Haryana etc. vs. Shamsher Jang Bahadur Shukla', AIR 1972 SC 1546, may be cited, wherein it had been made very clear (almost five decades ago), that statutory rules cannot be overridden by government instructions.

It may be observed here that the said circular would not seem to be executive instructions issued in terms of Article 162 of the Constitution of India.

In any case, the Director would also determine from the Punjabi University, Patiala, (which is a state established university), as to whether the 'Punjabi Praveshika' examination is equivalent to Punjabi qualified in the Matriculation examination, or not. Regardless of that, even if it is not, the Director will explain in his affidavit as to why the Common Cadre Rules have been wholly overlooked while rejecting the petitioner's candidature.

Adjourned to 27.08.2020.

In the meanwhile, one post of DPE in the General Category be not filled till further or