& Ors Vs. Zila Mansavi Shikshak Sangh & Ors  INSC 880 (1 December 1997)
V. MANOHAR, M. JAGANNADHA RAY
1ST DAY OF DECEMBER, 1997 Present:
Mrs.Justice Sujata V.Manohar Hon'ble Mr.Justice M.Jagannadha Rao P.P.Singh, Prakash
Srivastava, B.S.Banthia, S.K.Agnihotri, A.K.Singh, Anoop G.Choudhary, K.V.Sreekumar,
R.C.Gubrele end Ms.Nanita Sharma, Advs. for the appearing parties.
following Judgment of the Court was delivered:
CA Nos. 813/95, 4168/95, C.A. Nos 8443-8446/97 (Arising out of SLP (C) Nos.
10462/95, 14389/95, 26032/95 and 4579/97)] Mrs. Sujata V.Manohar, J.
in S.L.P(C) Nos. 10462, 14389 & 26032 of 1995 is condoned.
in S.L.P. (C) Nos. 10462, 14389 26032 of 1995 and 4579 of 1997 is
applications are allowed.
Appeal No.77 of 1995 and appeals arising from the four special leave petitions
are from a judgment and order of the Madhya Pradesh Administrative Tribunal at Jabalpur,
dated 18.3.1994 in a group of applications challenging the amendments made in
the Madhya Pradesh Non-Gazetted Class III Education Service (Non-Collegiate
Service) Recruitment and Promotion Rules, 1973 by a notification published in
Madhya Pradesh Government Gazette (Extra Ordinary) dated 10.5.1993 and another
notification published in Madhya Pradesh Government Gazette (Extra Ordinary)
dated 17.6.1993; as also the circulars of the School Education Department dated
5.8.1993 and 9.8.1993. By the impugned judgment and order, the Madhya Pradesh Administrative
Tribunal struck down the two amendments and the circulars. These related to
criteria and procedure for selection of Assistant Teachers in the Madhya
Pradesh Education Service under the Operation Black Board Scheme. As a result,
selection of around 7000 Assistant Teachers and the ongoing process of
selection of such teachers in some districts was set aside at the instance of
the applications who were persons not eligible for selection under the impugned
challenges a subsequent order of the Madhya Pradesh Administrative Tribunal
dated 31.10.1994. In the group of applications finally decided on 18.3.1994,
the Tribunal had granted on 14.9.1993 an interim stay of the impugned
amendments and circulars. On 15.9.1993, the Deputy Director of Education, Hoshangabad
issued appointment letters to 86 selected persons. These appointment letters
have been set aside by the Tribunal in the light of its judgment and order of
18.3.1994, by the impugned order of 31.10.1994.
4168/95 is against the order of the Madhya Pradesh Administrative Tribunal
dated 26.11.19194. After the above interim order of 14.9.1993, the Deputy
Director of Education, Dhar had issued on 16.9.1993 appointment letters to 48
selected candidates. He cancelled the appointments by his order of 26.7.1994 in
view of the Tribunal's judgment and order of 18.3.1994. The selected candidates
applied to the Tribunal for their continuation. Their applications have been
dismissed by the Tribunal in view of its judgment and order of 18.3.1994, by
the impugned order of 26.11.1994.
recruitment, inter alia, of Assistant Teachers of Madhya Pradesh is governed by
the Madhya Pradesh Non- Gazetted Class III Education Service (Non-Collegiate
Service) Recruitment and Promotion Rules, 1973 (hereinafter called the
'Recruitment Rules'). The method of recruitment is direct recruitment by
competitive examination followed by an interview. During the eight Plan period
i.e. from 1992 to 1997 the Central Government sponsored a scheme known as
Operation Black Board Scheme. Under this scheme the Government of India gave
financial clearance to the State of Madhya Pradesh to implement this scheme by appointing an Additional
Teacher in all primary/middle schools which had only one teacher in order to
improve the standards of education. In order to implement the scheme the State
of Madhya Pradesh decided to fill in about 7,000 to
11,000 posts of Assistant Teachers in such schools.
scheme was to be implemented within the Eighth Plan period, in order to
expedite implementation, the respondent-State, on 10.5.1993, amended Rule 10(3)
of the Recruitment Rules by adding a proviso. Rule 10 is as follows:- "10.
Direct Recruitment by Selection:
There shall be a committee for selection by direct recruitment, the membership
of which shall be like the membership of the Committee constituted for
selection by promotion.
Selection for recruitment to the service shall be held at such intervals as the
appointing authority may fix time to time determine.
The Selection of candidates for service shall be made by the committee by
conducting a competitive examination and after interviewing them." The
proviso which has been inserted by the amendment of 10.5.1993 is as follows:-
"Provided that in any specific circumstance the State Government may, in
consultation with the general Administration Department prescribe the criteria
and procedure for the selection of candidates." By publication in Madhya
Pradesh Government Gazette Extra Ordinary dated 7th of June, 1993 a further
amendment was made in Schedule III Item at serial No.7 in column 5 of the
Recruitment Rules by inserting the following qualification for recruitment of L.D.Ts.
(Assistant Teachers): "Basic Training Certificate or B.Ed. Degree".
21.5.1993 the School Education Department proposed a scheme for selection of
Assistant Teachers under the said proviso for the purposes of the Operation
Black Board Scheme. It was proposed that selections would be made district-wise
by inviting applications from employment exchanges. The selection would be made
by selection committees constituted in each district to be presided over by a
nominated officer in each district. The administrative department of the
Government put up this scheme for approval of the Governor and the Governor
approved the proposal on 16.6.1993. On 30.7.1993 the Secretary, School
Education Department sent the file to the Secretary of the General
Administration Department for the purposes of approval under the proviso to
Rule 10(3). The Secretary, General Administration Department returned the file
with there marks "since the Administration Department approval of Hon'ble
Governor had already been obtained the consent of the General Administration
Department was not essential". With the approval of the Principal
Secretary, General Administration Department, the file was returned to School
Education Department on 4.8.1993.
result, instruction were issued in the exercise of powers under the proviso the
Rule 10(3), prescribing the criteria as per amended Recruitment Rules and
procedure for selection of eligible candidates. The prescribed qualifications
under Schedule IV as amended were: Basic Training Certificate or B.Ed.
qualification. District Employment Exchanges were asked to sponsor eligible
candidates from their list. The selection was to be made district-wise. The
Secretary, Education Department sent D.O.
in August 1993 to Deputy Directors of Education in the State informing them
about the decision of the State Government for implementation of Operation
Black Board Scheme. Keeping in view the need for a time-bound programme, the
recruitment process was initiated and a time-bound programer to implement the
scheme was launched. The instruction provided that the power to select Assistant
Teachers during 1993 was withdrawn from the purview of Junior Service Selection
Board by G.A.D. order dated 19.5.1993. The selection of Assistant Teachers in
1993 will be made by a Committee which shall be presided over by a nominated
officer. The Revenue District shall be the unit for selection of the teachers.
The instruction further stated that the criteria for selection and the weight
to be given on each head were a detailed in Schedule III.
result, lists of eligible candidates were obtained from District Employment
Officers, who were matriculates or above and had B.T.I. or B.Ed. qualification.
They were interviewed by a Selection Committee in accordance with the criteria
in Schedule III. Select lists were thereafter prepared in the order of merit.
Appointment letters were issued to selected candidates in most districts before
these were challenged before the Tribunal. These assistant teachers have been
appointed initially on probation for a period of two years and on successful
completion of probationary period their pay would be in accordance with the
minimum of the regular scale and admissible allowances.
the original applications before the Tribunal who have challenged the
provisions for recruitment of Assistant Teachers under the Operation Black
Board Scheme did not possess the requisite qualifications for being selected
under the said scheme as Assistant Teachers. Their names do not figure among
the lists forwarded by the concerned District Employment Exchanges.
Surprisingly, the applications filed by all these persons and/or groups before
the Tribunal did not make the selected/appointed candidates who were directly
affected by the outcome of their applications, as party respondents. The
Tribunal has passed the impugned order without making them parties or issuing
notice to any of them. The entire exercise is seriously distorted because of
this omission. They have now filed the present appeals after they have been
granted leave to file of Uttar Pradesh & Ors. (1984  SCC 251 at page 273),
this court observed that in the case before them there was a serious defect of
non-joinder of necessary parties and the only respondents to the Sangh's
petition were the State of Uttar Pradesh and its concerned officers. The
employees who were directly concerned were not made parties -- not even by
joining some of them in a representative capacity, considering that their
number was too large for all of them to be joined individually as respondents.
This Court observed that High Court ought not have decided a writ petition
under Article 226 of the Constitution without the persons who would be vitally
affected by its judgment being before it as respondents or at least some of
them before it as respondents in a representative capacity. These observations
apply with equal force here. The same view has been reiterated by this Court in
Ishwar Singh & Ors. Kuldip Singh & Ors. (1995 Supp  SCC 179), where
the Court said that a writ petition challenging selection and appointments
without impleading the selected candidates was not Ors. (1996  SCC 581,
paragraph 4). On this ground alone the decision of the Tribunal is vitiated.
However, even on merit we do not find that the judgment of the Tribunal can be
first contention is to the effect that the proviso to Rule 10(3) is bad in law
because it confers unguided and excessive delegation of powers to that State
Government in the matter of criteria and procedure for recruitment. Now, the
Recruitment Rules have been framed under the proviso to Article 309 of the
Constitution of India. These Rules, inter alia, prescribe the procedure for
selection and the criteria for selection. The proviso which has been inserted
in Rule 10(3) gives to the State Governments in consultation with the General
Administration Department, power to prescribe separate criteria and procedure
for selection of candidates in specific circumstances. The power to frame these
criteria and procedure is not delegated to any subordinate authority.
very authority which framed the original Rules is delegated the power to frame
special Rules prescribing criteria and procedure in specific circumstances in
consultation with the General Administration Department. The question of
excessive delegation does not, therefore, arise because the rule-making
authority has given to itself the power to prescribe criteria and procedure for
selection in specific circumstances.
case of Workmen of Meenakshi Mills Ltd. & Ors. 372), a Constitution Bench
of this Court considered a similar question which arose before it and held that
when the discretion is given to the Government itself and not to a subordinate
officer, it cannot be said that there is excessive and uncontrolled delegation.
The provision for consideration before the Court in that case was "the State
Government or any authority so specified in this behalf".
validity of this provision was assailed on the ground that it gave unfettered
and uncontrolled discretion tot he State Government or to the offices authorised
this contention, this Court said that the discretion is given in the first
place to the State Government itself and not to a very subordinate officer like
the licensing officer. The fact that the power of delegation is to be exercised
by the State Government itself is a safeguard against the abuse of this power
present case the criteria and procedure have to be prescribed by the State
Government itself in exercise of power conferred on its by statutory Rules.
This cannot be considered as excessive delegation. Also. prescribing of
separate criteria and procedure is permitted only in specific circumstances. In
the present case, the departure from normal recruitment process has been
occasioned on account of the time-bound programme of the Operation Black Board
Scheme. This necessitated a large number of Assistant Teachers being recruited
to strengthen the education programme of the State within a time-bound
schedule. If the State Government felt that the existing procedure would be
unduly time-consuming, and provided a special procedure which is not unfair, no
objection can be raised to such procedure when an express power has been
conferred on the State in this connection.
next contended that the criteria and the procedure prescribed under the proviso
require consultation with the General Administration Department. This was not
done. From the facts which have been set out above, however, it is clear that
the scheme which was framed by the Central Government was placed by the General
Administration Department before the Governor for approval and was sent back to
the School Education Department by the General Administration Department. When
a formal approval of the General Administration Department was asked for
subsequently, it was pointed out by the General Administration Department that
this was not required when their department had itself obtained the approval of
the Governor to the scheme. This contention has, therefore, no substance.
next contention challenge the qualifications which are prescribed by the
amendment to Scheduled III as being unfair. The prescribed qualifications are
Basic Training Certificate or a B.Ed. Degree. It was contented that the
prescription of these qualifications is unreasonable and discriminatory because
there are other qualifications which, according to the original applicants, are
equivalent and which should have been included. It is urged that Montessory and
Mahilla Bal Sevika Prasikshan Pramanpatras and Diploma T are equivalent
qualifications. It has been pointed out by the State that the B.T. Certificate
qualification is superior to the qualifications of Diploma T, Montessory and Mahilla
Sevika Prasikshan Pramanpatras. The criteria for selection of students. syllabus
and period of training are all different for pre-primary prasikshan (Montessory)
and Bal Sevika Prasikshan. Minimum qualification for admission is middle school
and High School and the period of training in both the courses is one year
only. For Diploma T the minim qualification for admission is a Higher Secondary
School Education. For B.T.I. the minimum qualification is passing of the Higher
Secondary School Examination in the Second Division and the courses are also
different. The State Council of Educational Research and Training considered
the question of equivalence of B.T.I. and Diploma This recommendation was
accepted by the State Government.
State Government has, therefore, submitted that B.T.
is superior to the other training qualification and, therefore, they have
prescribed only B.T. qualification apart from a B.Ed.
to the above reasons set out by the State Government for recognising a B.T.
qualification as superior to Diploma T and other qualifications the exclusion
of other qualifications cannot be held to be discriminatory or unreasonable. A
higher qualification which is prescribed for a particular scheme cannot be
considered as violative of Article 14. When candidates with higher
qualifications are available, choosing them instead of candidates with inferior
qualifications is not violation of Article 14 or 16.
next contention relates to inviting applications from Employment Exchanges
instead of by advertisement. This procedure has been resorted to looking to the
requirement of a time-bound scheme. The original applicants contended that if
the posts had been advertised, many others like them could have applied. The
original applicants who so complain, however, do not possess the requisite
qualifications for the post. As far as we can see from the record, nobody who
had the requisite qualifications, has complained that he was prevented from
applying because advertisement was not issued. What is more important, in the
special circumstances requiring a speedier process of selection and
appointment, applications were invited through employment exchanges for 1993
only. In this context, the special procedure adopted is not unfair. The State
has relied upon the case of Union of where
Government instruction enjoining that the filed of choice should, in the first
instance, be restricted to candidates sponsored the first instance, be
restricted to candidates sponsored by the Employment Exchanges, was upheld as
not offending Article 14 and 16 of the Constitution. In the case of Delhi
Development Horticulture Employees' Union
page 111). this Court approved of recruitment through employment Exchanges as a
method of preventing malpractices.
the subsequent and more recent case of Excise Superintended Malkapatnam,
Krishna District A.P. V. K.B.N. Visweshwara Rao & Ors. [(1996) 6 SCC 216],
this Court has distinguished Union of India V. Hargopal (supra) on the basis of
special facts of that case. It has observed that the better course for the
State would be to invite applications from employment exchanges as well as to
advertise and also give wide publicity through TV, Radio etc. The Court had to
consider whether persons who had applied directly and not through employment
exchange should be considered. The Court upheld their claim for consideration.
are different methods of inviting applications.
method adopted in the exigencies of the situation in the present case not be labelled
as unfair, particularly when, at the relevant time, the two earlier decisions
of this Court were in vogue.
not see any reason to fault procedure prescribed or the qualifications
prescribed or to set aside these selections and consequent appointments since
none of the grounds on which the amendments, circulars and selection have been
challenged, is sustainable in law. We have been informed that after the stay of
the judgment of the Tribunal by this Court, those who were selected/appointed
under the prescribed procedure have been given appointments and they have been
functioning as Assistant Teachers. In the case of selected candidates not joining,
the persons kept on the relevant waiting list in order of merit have been given
appointments. There is no reason to set aside these appointments.
premises, the impugned amendments to the Recruitment Rules as also the
circulars relating to the procedure for selection and the criteria for
selection are upheld. All these are allowed and the impugned judgments and
orders of the Tribunal are set aside. There will, however, be no order as to