JUDGMENT A.P. Sahi, J.
1. Heard learned counsel for the petitioner Sri Prakash Padia. learned standing counsel for the respondent Nos. 1, 3 and 4 and Sri Wasim Alam for the respondent No. 5 and 6.
2. All the respondents have filed counter affidavit to which reply has been filed by the petitioner.
3. The challengers to the order passed by the respondent No. 1 dated 10.2.05 whereby the appeal of the petitioner against the appointment of the respondent No. 5 has been rejected and a finding has been recorded against the petitioner that he was not qualified and eligible to be appointed initially as he was less then 18 years of age on the date of his appointment.
4. The contention on behalf of the petitioner is that the respondent No. 5 is not qualified for being appointed on the post she does not possess the minimum educational qualification/experience as prescribed under the Arabic and Farsi Madarsa Rules 1981 copy whereof is Annexure 1 to the writ petition. It has been further stated that the experience claimed by the respondent No. 5 is of a Junior High School and not of an institution which imparts, education in Faukania. On the basis of the averments contained in the writ petition it has been further asserted that the impugned order is tainted with malafides as the hearing was done by another officer and the order was passed by the successor in office and that the impugned order is in violation of principle of natural justice, and that it does not take notice of relevant material including the facts mentioned in the letter of the District Minority Social Welfare-Officer, Mau dated 2.1.05.
5. In reply Sri Wasim Alam has urged that the respondent No. 5 possesses the qualification and there is absolutely no deficiency in the same and that the impugned order records clear finding in favour of the respondent No. 5 which has not been successfully impeached by the petitioner on any legal ground.
6. Learned counsel for the petitioner while assailing the finding against the petitioner has urged that the finding recorded that the petitioner is below 18 years of age at the time of the initial appointment, and his continuance in service is contrary to law is untenable, in as much as the appointment of the petitioner was made in the year 1978 when there were no rules framed for appointment and the Govt. Servants Rules were not at all applicable to the controversy.
7. Sri Padia has relied on the decision of this Court in the case of G.P. Srivastava v. High Court of Judicature at Allahabad reported in 1998 Vol. 3, A.W.C. 1872.
8. The matter had been taken up by this Court on earlier occasions and the learned counsel for the respondent had been called upon to answer the queries raised by the Court under the order date 23.9.05. In response thereto learned counsel for the respondent No. 5 Sri Wasim Alam has placed reliance of three judgments of the apex court.
9. The first decision is in the case of State of West Bengal v. Kesoram Industries reported in AIR 2004 SCW 5998. In para 57 of the said judgment it has been held that a doubtful expression occurring in a judgment, apparently by mistake for-inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context, also having regard to what has been said a little before and a little after.
10. The second decision is in the case of Shakuntala Devi v. Kamla and Ors. reported in A.I.R. 2005 SCW 2203 (para 20) The court went on to explain the applicability of rules of res judicata and held that it is clear that if the earlier judgment which is sought to be made the basis of res judicata is delivered by a court without jurisdiction or is contrary to the existing law at the time the issue comes up for reconsideration such earlier judgment cannot be held to be res judicata in the subsequent case unless, of course, protected by any special enactment.
11. The third decision relied up by the respondent No. 5 is in the case of Union of India v. Pramod Gupta reported in AIR 2005 SCW 4645. (Para 28) which clearly recites that the principle of res judicata will have no application where the order passed by a Court is contrary to law and indicates a case involving a pure question of law.
12. The aforesaid query was raised on account of the recital contained in the judgment of this Court rendered earlier on 3.11.2004 copy whereof is Annexure 10 to the writ petition. This court while directing the Inspector respondent No. l to decide the dispute in respect of the qualification of the respondent No. 5 " had specifically stated it to be with reference to the date of occurrence of vacancy strictly in accordance with rules"
13. Learned counsellor the respondents has urged that the rules of 1987 no where indicates the aforesaid provision that qualifications have to be adjudged on the date of the occurrence of the vacancy and as, such in view of the decision of the apex court referred to herein above, the said direction deserves to be ignored and as such the impugned order cannot be faulted with on that ground.
14. Having heard learned counsel for the parties it is evident that the 1987 Rules do not indicate that the date of qualification has to be the date of occurrence of the vacancy. In such a situation it can be safely presumed that the candidate concerned shall be qualified either on the date of the advertisement or the last date of the filling up of the application form or at least on the date when the candidate faces the .selection committee. The directions, therefore, contained in the judgment of this Court earlier, did not intend to fix the date of qualification as the date of occurrence of the vacancy.
15. The next question which-has been canvassed before the Court, is with regard to the qualification prescribed under the Rules. A perusal of the Rules indicates that the experience of a candidate has to be of three years in Faukania ( in Classes 6 to 8 ) .Learned counsel for the petitioner urged that the institution from where the respondent No. 5 alleges to have claimed her experience is not a recognized Junior High School. For this he relied on the letter dated 15.2.2005 appended along with the writ petition as Annexure 14 to the writ petition. In reply thereto the counter affidavit of the respondent Nos. 5 and 6 indicate that recognition order from the Basic Education Officer in respect of the institution have been issued from time to time in respect of the period during which the respondent No. 5 was functioning in the said institution. The aforesaid documents have not been successfully rebutted in the rejoinder affidavit by the petitioner and as such in these circumstances the said documents cannot be disbelieved. The findings to this effect have been clearly recorded in the impugned order and as such the the facts recorded in the order are supported by the document as brought on record. Unfortunately the counter affidavit filed on behalf of the District Minority Welfare Officer simply states that the allegations in this regard need no comment.
16. The next question raised between the parties is with regard to equivalence of Faukania with that of teaching experience of classes 6 to 8. Suffice is to state that the institution where the respondent No. 5 was earlier teaching is an institution which according to the documents referred to in the counter affidavit of the said respondent, was in respect of classes 6 to 8. In these circumstances, the experience that was held by the respondent No. 5 can be safely presumed to be the experience as required under the qualifications prescribed under the 1987 Rules.
17. Sri Padia has urged that the said issue has been considered by the District Minority Welfare Officer in his letter elated 2.1.2005 and which has been completely over looked by the authority . concerned while passing the impugned order. From a perusal of the facts indicated in the impugned order as referred to herein above it is evident that the respondent No. 5 holds the qualification. The letter dated 2.1.2005, therefore, does not depict the correct position of law.
18. In this view of the matter non-consideration of the said letter does not prejudice the claim of either of the parties as the findings recorded in the impugned order are in accordance with rules.
19. In view of the conclusions drawn herein above, the arguments on behalf of the petitioner that the matter deserves to be remitted back to the authority concerned as it is in violation of principal of natural justice, cannot be countenanced. The material which is being relied upon by the petitioner has already been brought on record and which sufficiently indicates that the impugned order does not deserve any interference in so far as the case of respondent No. 5 is concerned.
20. The findings recorded against the petitioner in respect of his ineligibility at the point of his inception in service cannot be...sustained. The petitioner was appointed in the year 19/8 which indicates that appointment at that point of time was not governed by any statutory rules. Even otherwise the 1987 Rules referred to herein above are non-statutory in nature. So far as the rules pertaining to Govt. Servants are concerned they are not at all applicable in respect of the appointment in the institution. In these circumstances, the finding recorded against the petitioner that his appointment is in violation of rules, cannot be sustained. The aforesaid view is squarely supported by the decision relied by the learned counsel for the petitioner reported in 1998 Vol. 3 AWC 1872 (Supra).
21. In view of the conclusions drawn herein above, the writ petition succeeds partly and is allowed to the extent that the finding recorded against the petitioner in respect of his ineligibility at the time of his inception in service stands quashed. However, the findings recorded in respect of the appointment of the respondent No. 5 do not warrant any interference and the writ petition, accordingly, stands disposed of.