Madan
Mohan Sharma & Anr Vs. State of Rajasthan & Ors [2008] Insc 264 (22 February 2008)
A.K.Mathur
& Altamas Kabir
CIVIL
APPEAL NO. 1506 OF 2008 [Arising out of S.L.P. (c) No.10270 of 2006] A.K.
MATHUR, J.
1.
Leave granted.
2.
This appeal is directed against the order dated 19.12.2005 passed by the
Division Bench of the Rajasthan High Court whereby the Division Bench of the
Rajasthan High Court has disposed of the appeal with the following direction.
"(i)
We direct the State Government to forthwith constitute a Committee headed by
the Chief Secretary to examine as to whether vacancies of Teacher Grade III
pursuant to advertisement No,1/96 still exist and whether after the judgment
dated February 12,2001 of learned Single Judge any appointment on the post of
Teacher Grade III was given by giving relaxation under Rule 296 of 1996 Rules.
(ii)
Any appointment so given under Rule 296, which was struck down, shall be
subject to enquiry.
(iii)
The meritorious persons included in the select list drawn in pursuance of
advertisement No.1/96 shall be considered for appointment on the basis of their
merit against the vacant posts of Teacher Grade III.
(iv)
The appellants MMS and DKS (Appeal No.76/2001) who have served nearly six years
as Teacher Grade III and have become overage by now, shall be reconsidered on
the basis of their merit in secondary examination and till final decision is
arrived at, they shall be allowed to work on the post of Teacher Grade II and
their services shall not be terminated."
3.
Brief facts which are necessary for disposal of this appeal are that the
vacancies in the posts of Teacher Grade III were advertised by the Zilla Parishad
Sawai Madhopur on 25.5.1996 on the basis of the circular dated 24.7.1995 issued
by the State Government in exercise of powers under Rule 17(2) of the Rajasthan
Panchayat Samitis and Zila Parishad (Service) Rules,1959 ( hereinafter to be
referred to as the Rules of 1959). The last date for submission of application
and documents in support of eligibility and merit was fixed as17.6.1996. The
selection circular dated 24.7.1995 laid down that the selection shall be made
on the basis of the marks secured by the candidates in Secondary Examination
and B.Ed/ Basic School Training Course (BSTC) for preparation of the merit list
for appointment of Teacher Grade III. Thereafter, on 20.7.1996 another circular
was issued by the State Government whereby the earlier criteria for
determination of merit for appointment of Teacher Grade III was superseded and
revised criteria was prescribed and the basis for assessment of merit was the
marks obtained in the Higher Secondary Examination and B.Ed/ BSTC course and
the last date for submission of application and other relevant documents in
support of eligibility and merit for selection of appointment as Teacher Grade
III was extended up to 30.10.1996. Thereafter, it was further extended up to
20.12.1996. On 30.12.1996 Rajasthan Panchayati Raj Rules, 1996 (hereinafter to
be referred to as the Rules of 1996) were notified. Rule 266 of the Rules of
1996 provided that Senior Secondary with BSTC course shall be the minimum
qualification for appointment of Primary Teachers. A writ petition being
S.B.C.W. No.147 of 1997, Radhey Shyam Sharma & Anr. V. State of Rajasthan was filed which was allowed by
learned Single Judge of the High Court of Rajasthan on 6.11.1996. Learned
Single Judge held that the criteria on the date of issuance of advertisement
was to be followed and the State Government was directed to consider the merit
of the candidates in view of the circular dated 24.7.1995 i.e. Secondary
Examination with B.Ed./ BSTC was considered the basis for selection.
Thereafter, four special appeals were filed against the order of the learned
Single Judge. Out of the four special appeals, one was filed by the State of
Rajasthan i.e. State of Rajasthan v. Radhey Shyam Sharma and another appeal as
filed by Dharmendra Kumar Sharma and Madan Mohan Sharma, the appellants before
us. Thereafter, a request was made that the special appeals be allowed to be withdrawn.
Learned Division Bench of the High Court permitted the writ petitions to be
withdrawn and as a result of the withdrawal of the writ petitions, order dated
6.11.1997 was declared as " no longer stands". Thereafter, the
selection process commenced on the basis of the circular dated 24.7.1995 and
the merit list was prepared on the basis of the Secondary Education
qualification. Aggrieved against this, Madan Mohan Sharma and Dharmendra Kumar
Sharma (appellants) filed another writ petition being S.B.C.W.P.No.1771 of 1999
challenging the lowering down the eligibility criteria of Higher Secondary
Education to the Secondary Education. During the pendency of the writ petition,
the State of Rajasthan issued another circular on
12.3.1999 whereby a decision was taken invoking Rule 296 of the Rules of 1996
to appoint Shri Madan Mohan Sharma and Shri Dharmendra Kumar Sharma relaxing
the educational qualification. Meanwhile, selection process had been completed
and merit list was prepared in terms of the circular dated 24.7.1995 and in the
month of September, 1999 appointment of 232 candidates was made out of the
merit list prepared in terms of Rules 274 of the Rules of 1996. According to
the State, after making the selection of 233 candidates only 93 posts were available
which were to be filled up in terms of the circular dated 20.7.1996. Meanwhile,
on 6.12.1999 the State Government in exercise of their discretionary power for
relaxation of educational qualification under Rule 296 of the Rules of 1996
issued directions to appoint both Madan Mohan Sharma and Dharmendra Kumar
Sharma in Panchayat Samiti Todabhim District Karauli vide order dated 6.1.2000
and 11.1.2006 on the post of Teacher Grade III. After appointment of these two
persons namely, Madan Mohan Sharma and Dharmendra Kumar Sharma a spate of writ
petitions followed before the learned Single Judge. The said writ petitions
came to be disposed of by the learned Single Judge of the High Court on
12.2.2001. Learned Single Judge struck down Rule 296 of the Rules of 1996 being
ultra vires and unconstitutional conferring unbridled powers upon the executive
and the appointment of both the candidates i.e. Madan Mohan Sharma and Dharmendra
Kumar Sharma was set aside. Learned Single Judge in his order dated 12.2.2001
observed as follows :
"More
so, as fresh advertisement has been issued in 1998 and appointments have been
made in pursuance thereof, question of filling up the vacancies in pursuance of
Advertisement 1/96 does not arise."
Aggrieved
against this order appeal was filed by both the present appellants challenging
the order of the learned Single Judge.
Learned
Division Bench after considering the arguments from various angles found that
Rule 296 of the Rules of 1996 which gives power to the State Government for
relaxation and which has been struck down by learned Single Judge as correct
and if it was allowed to continue this would give unfettered power to the
executive to make appointment in picking and choosing candidates from the
bottom of the merit list ignoring a large number of candidates over and above
them. It was further observed that the said rule was rightly declared
unconstitutional and invalid by learned Single Judge. The Division Bench
concluded by making the following observations:
"21.
We ourselves have scanned Rule 296 of 1996 Rules and we find that it gives
unfettered powers to the Executive to relax the eligibility criteria including
the qualification, age and experience. It enables the Executive to make
appointment by pick and choose of the candidates from the bottom of merit list
ignoring the claim of large number of candidates over and above them. In our
opinion, the said rule was rightly declared ultra vires and unconstitutional by
the learned Single Judge. Since the appointment of MMS and DKS was made under
the discretionary power provided by Rule 296 in our opinion, it was rightly set
aside by the learned Single Judge. "
Thereafter,
looking to the period of six years of service of Madan Mohan Sharma and Dharmendra
Kumar Sharma and having found them to be suitable on the basis of Higher
Secondary Grade on account of which they were selected earlier, the Division
Bench issued directions as aforesaid. Aggrieved against this order the present
appeal has been filed by the appellants.
4. We
have heard learned counsel for the parties and perused the records. Mr.M.R.Calla,
learned senior counsel appearing for the appellants has strenuously urged that
during the pendency of the selection process, the eligibility criteria was
changed and the date for submission of the application in pursuance to the
advertisement was extended and Rule 266 of the Rules of 1996 came into being on
30.12.1996 whereby it was provided that Higher Secondary Examination shall be
the criteria for preparing the merit list. As such, as per the service rules,
the selection should have been made on the basis of Higher Secondary
Examination marks and not on the basis of Secondary Examination marks. We
regret this cannot be accepted. Once the advertisement had been issued on the
basis of the circular obtaining at that particular time, the effect would be
that the selection process should continue on the basis of the criteria which
was laid down and it cannot be on the basis of the criteria which has been made
subsequently. As per the circular which was obtaining at the time when the
advertisement was issued was dt. 4.7.1995, the criteria for selection to the
post of Teacher Grade III was Secondary Examination though this was changed
during the pendency of the advertisement. Subsequent amendment of the Rules
which was prospective cannot be made retrospective so as to make the selection
on the basis of the Rules which were subsequently amended. If this was to be
done, then the only course open was to recall the advertisement No.1/1996 and to
issue fresh advertisement according to the Rules which had come into force.
Secondly, this was not done and erroneously the authorities made the amended
Rules applicable and proceeded with the selection which resulted into
litigation and ultimately Radhey Shyam Sharma succeeded in that litigation and
it was held that the selection should be made as per Secondary Examination
marks, the criteria which was prevalent at the time when the advertisement was
issued. Thereafter looking to the hardship the Government invoked the power of
relaxation under Rule 296 of the Rules of 1996 and order of appointment was
issued in favour of both the appellants.
This
again resulted into litigation and ultimately, in that litigation, Rule 296 of
the Rules of 1996 was struck down being ultra vires and consequently, the
appointment of both the appellants were set aside. The Division Bench of the
High Court looking to the hardship of the candidates issued the direction as
aforesaid. The question is once Rule 296 of the Rules of 1996 conferring the
power to the State to relax the qualification is struck down then the
appointment of both these candidates cannot survive and this has been down by
the Division Bench of the High Court and rightly so. We fail to understand that
where was the need for a Committee headed by the Chief Secretary of the State
to examine the matter. Once the power of relaxation of eligibility criteria
conferred on the State under Rule 296 has been struck down by the learned
Single Judge and the same having been upheld by the Division Bench of the High
Court cannot be sustained as the said Rule 296 has already been struck down.
Once the rule has been struck down the effect would be that it stood in the
statute book. The posts were again advertised in 1998 and the selection has
already been undertaken, therefore, the earlier selection pursuant to
Advertisement No.1/1996 is over and whatever the posts which have been left
over and could not be filled up after fresh selection is undertaken. Whatever
posts were left over will automatically be included in 1998 selection. It will
be futile exercise to constitute a committee headed by the Chief Secretary to
examine as to whether vacancies of teacher Grade III pursuant to advertisement
No.1/1996 still exists and whether after the judgment of learned Single Judge
any appointment on the post of Teacher Grade III was given by relaxing the
educational qualification under Rule 296. We think that direction issued by the
Division Bench of the High Court was totally unwarranted. Once the Division
Bench has found that the earlier selection pursuant to Advertisement No.1/1996
is valid. The Division Bench should have stopped there. Therefore, under these
circumstances, we are of opinion that the direction given by the Division Bench
of the High Court in paragraph 26 of the judgment is totally unwarranted and
the selection which had taken place on the basis of the advertisement No.1 of
1996 on the basis of the circular dated 24.7.1995 was correct. The eligibility criteria
for appointment of Teacher Grade III as Secondary Examination was correctly
taken into consideration for selection. The relaxation granted to these two
appellants cannot be availed of by them as Rule 296 of the Rules of 1996 has
already been held ultra vires by learned Single Judge which has been upheld by
the Division Bench of the High Court.
5 As a
result of above discussions, we do not find any merit in this appeal and the
same dismissed with no order as to costs.
However,
these two appellants who are already serving under orders of this Court, by
this time they have become over-aged. In case in future any selection for the
post of Teacher Grade III is undertaken, these appellants be allowed to apply
for the same despite the fact that they have become over-aged. They are granted
one more chance and the age bar will not come in their way to apply for future
vacancy.
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