1. On 18-10-1977, the District Recruitment Board, Srinagax, (hereinafter called 'The Board') issued an advertisement inviting applications for the posts of male teachers in the grade of 220-430 in the Education Department. The qualifications prescribed for the posts, as given in the notice, were as under : (i) M. Sc./M. A. Math. (ii)/B. Sc./Graduate with Geography Commerce, or (iii) B. A., B. Ed/M. A. Arts, or (iv) B. A. with Math., or (v) P.B.C trained. The petitioner is a science graduate and he has passed B. Sc. from the Kashmir University in the year 1972. Respondent No. 6 is a simple graduate and he has passed B. A. with Persian and Urdu as his elective subjects. Both of them inter alia applied for the appointment The Board selected respondent No. 6 for appointment against one of the available posts and rejected the petitioner. By means of this petition under Article 226 of the Constitution, the petitioner has challenged the selection of respondent No. 6 as void, illegal and without jurisdiction.
2. Before me, sole point urged on behalf of the petitioner was that the petitioner fulfilled the prescribed qualification and not respondent No. 6 and, as such, selection of respondent No. 6 is vitiated, being contrary to Article 16 of the Constitution. In support of this argument reliance was placed on the decision of the Supreme Court in Swaran Lata v. Union of India, (1979) 1 Serv LR 710 : (1980 Lab IC NOC 8), Subhash Chand Jain v. Delhi Electric Supply Undertaking, (1979) 1 Serv LR 306 : (AIR 2981 SC 75) as also on a decision of the Punjab and Haryana High Court in Kuldeep Singh Gill v. State of Punjab, 1972 Serv LR 706 : (1973 Lab IC 1189). The rationale of these decisions and it has been expressly stated so in the case of Subhash Chand Jain (supra), is that qualification for a particular post is a rational differentia under Article 16 of the Constitution. Where qualification has been prescribed and duly notified in the advertisement inviting applications, the State cannot obliterate the same by appointing persons who do not possess the prescribed qualification as against those who possess that qualification, provided, of course, there is no provision for relaxation of qualification in the advertisement notice.
3. In the present case, the admitted position is that the petitioner fulfilled the requirement about the qualification prescribed in the advertisement notice, whereas respondent No. 6 did not fulfil such requirement. There was no provision for relaxation in the advertisement notice. On the parinciple set out above, the selection of respondent No. 6 is clearly vitiated, being discriminatory. Accordingly the selection of respondent No. 6 is liable to be set aside and, in that event, it will be open to the District Recruitment Board, to make a proper selection in accordance with law. Doing so, would naturally cause great hardship to respondent No. 6 who has been holding the appointment for over two years but this is where the Board can help. The board can avoid hardship to re-pondent No. 6 if it feels inclined so to do by accommodating the petitioner on an identical or equivalent post. They may not perhaps be able to do so unless a provision is made in that behalf in the final order. I, therefore, propose to so frame the final order that the choice is left with the Board.
4. In the result, I allow this petition, set aside the selection of respondent No. 6 and direct that the Board shall hold fresh selection to the post vacated by respondent No. 6. I further direct that the aforesaid order shall not have effect if within a period of three months the Board accommodates the petition on an identical or equivalent post. In the former case, the petitioner shall be entitled to recover costs of this petition from respondent No. 6 but not so in the latter case. The costs are assessed at Rs. 300/ (Rupees three hundred).