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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
O R D E R
S.B.Civil Writ Petition No. 6177/2003
Akhedan
Vs.
The Director, Panchayat Raj Deptt. & Others.
.........
Date of Order : 01/12/2008
PRESENT
HON'BLE MR. JUSTICE H.R.PANWAR
Mr. Kamal Dave for the petitioner.
Mr. A.K.Rajvanshy, Addl. Advocate General for respondents.
BY THE COURT
By the instant writ petition under Article 226 of the
Constitution of India, the petitioner seeks a direction to the
respondents to issue posting order in favour of the petitioner on
the post of Teacher Gr.III from the date the incumbents out of the
list dated 8.7.2003 were allotted to Vikas Adhikari, Panchayat
Samiti, Balotra for issuance of posting orders with all consequential
benefits.
The petitioner was engaged as contract teacher by the
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State and having served for some time as contract teacher, he
applied for the appointment on the post of Teacher Gr.III in
pursuance of the advertisement appeared in daily newspaper
Dainik Bhaskar on 09.2.2003 Annex.1 in exercise of the powers
under Rule 296 of the Rajasthan Panchayati Raj Rules, 1996 (for
short ‘the Rules of 1996’ hereinafter). The respondents prepared a
merit list and as many as 22 candidates were appointed on
temporary basis by order dated 08.07.2003 Annex.2. The name of
the petitioner was also recommended by the District Establishment
Committee in its meeting dated 30.6.2003 and his name was sent
to Vikas Adhikari, Panchayat Samiti, Balotra. The genuineness of
petitioner’s certificates showing educational qualification was to be
verified before issuance of the appointment order. The petitioner
submitted his educational qualification certificate i.e. Intermediate
Degree which he was possessing. The other persons who were
selected have joined the various schools. The petitioner obtained
the degree of Intermediate from the Board of Secondary Education,
Madhya Pradesh, Bhopal and ultimately, the genuineness of the
degree came to be verified. In the meantime, Rule 296 of the
Rules of 1996 came to be declared unconstitutional and ultravires
and was struck down by the decision of this Court in Renu Sharma
Vs. State of Rajasthan and Others RLW 2001 (3) Raj. 1615 decided
on 12.2.2001 and since the Rule 296 of the Rules of 1996 has been
struck down having been declared unconstitutional and ultravires,
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the appointment/ posting order in respect of the petitioner was not
issued since such appointment was dehors the rules. Hence this
petition.
I have heard learned counsel for the parties.
It is contended by learned counsel for the petitioner
that in pursuance of the advertisement Annex.1, the petitioner and
other persons applied for appointment on the post of Teacher
Gr.III. A select list was prepared and the petitioner also stood as
selected. So far as other persons selected are concerned, they
have been offered appointment by relaxing the relevant rule for
appointment on the post of Teacher Gr.III and the case of the
petitioner was kept pending for verification of his educational
qualification certificate i.e. Intermediate Degree obtained by the
petitioner from the Board of Secondary Education, Madhya
Pradesh, Bhopal and in the meantime, Rule 296 of the Rules of
1996 came to be struck down as having been declared
unconstitutional and ultravires and therefore, the petitioner was
denied the appointment. However, learned counsel for the
petitioner submits that since the persons who were selected in
pursuance of the advertisement Annex.1 along with the petitioner
have been issued the appointment and posting orders, and
therefore, the petitioner is also entitled for similar treatment of
appointment and posting order on the post of Teacher Gr.III.
Learned counsel for the petitioner has relied on decision of Hon’ble
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Supreme Court in Yogendra Pal and Others Vs. Municipality,
Bhatinda and Another (1994) 5 SCC 709, in Union of India Vs.
Madras Telephone SC & ST Social Welfare Association (2006) 8
SCC 662 and in Managing Director, ECIL, Hyderabad and Others
Vs. B. Karunakar and Others (1993) 4 SCC 727.
Per contra, learned Additional Advocate General
appearing for the respondent State submits that Rule 296 of the
Rules of 1996 under which the posts were advertised by relaxing
relevant rule governing appointment of Teacher Gr.III came to be
struck down by this Court as having been declared ultravires and
unconstitutional and therefore, the petitioner is not entitled for
appointment on the post of Teacher Gr.III as admittedly the
petitioner did not possess either the degree of BSTC or B.Ed. and
without Degree in Education, a person on the post of Teacher Gr.III
cannot be appointed since the minimum qualification for
appointment on the post of Teacher Gr.III has been provided under
the Rules of 1996 more particularly under Rule 266 of the Rules of
1996 which prescribes the minimum requisite educational
qualification for appointment on the post of Teacher Gr.III. Learned
Additional Advocate General submits that the petitioner seeks
appointment on the post of Teacher Gr.III dehors the rules which is
not permissible under law. Learned Additional Advocate General
has relied on decision of this Court in Renu Sharma Vs. State of
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Rajasthan and Others RLW 2001 (3) Raj. 1615, in Shiv Raj Pareek
and Ors. Vs. State of Rajasthan and Ors. 2006 (1) RDD 74 (Raj.), a
Division Bench decision of this Court in Kusum Kumari Vs. State of
Rajasthan and Ors., D.B.Civil Special Appeal (W) No. 166/2006 and
two others decided on 17.10.2006 and a decision of Hon’ble
Supreme Court in Ram Sukh and Others Vs. State of Rajasthan and
Others AIR 1990 SC 592.
I have given my thoughtful consideration to the rival
submissions made by counsel for the parties.
Undisputedly, the petitioner possesses degree of
Intermediate from Board of Secondary Education, Madhya Pradesh,
Bhopal and is not trained. It may be mentioned here that for some
period, untrained teachers were also engaged by the respondent
State on contract basis, however, subsequently, the engagement of
such untrained contract teacher came to an end by terminating
their services and Annex.1 advertisement came to be issued on
18.1.2003 for appointing former contract teacher/ temporary
teachers Gr.III and fixing a cut off date as 31.10.2001, however, in
some of the districts and zila parishad, guidance was sought from
the State and by exercising Rule 296 of the Rules of 1996, the
State Govt. relaxed the last date for appointing the contract
teacher/ temporary teacher which was 31.10.2001 to 15.2.2003,
though the power relaxing the Rules under Rule 296 of the Rules of
1996 came to be struck down having been declared
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unconstitutional and ultravires way back on 12.2.2001 by the
decision of this Court in Renu Sharma Vs. State of Rajasthan and
Others (supra). The educational qualification for the primary school
teacher/ III Grade Teacher has been provided under Rule 266 of
the Rules of 1996 which provides appointment of Primary School
Teacher 100% by direct recruitment and educational qualification
reads as under :-
—————————————————————————-
“(3) Primary School Teacher : (i) Senior Secondary (Academic) under new
(100% by direct recruitment) (10+2) scheme or higher Secondary under
old scheme from Rajasthan Board of
Secondary Education or equivalent and
Secondary School Certificate from Rajasthan
Board of Secondary Education or equivalent
with 5 subjects, 3 of them shall be Mathema-
tics, English & Hindi. (ii) B.S.T.C. Course.”
——————————————————————————————
Admittedly, the petitioner possesses the qualification of
Intermediate degree which according to the petitioner is equivalent
to Senior Secondary. At any rate, the qualification of BSTC Course
which is minimum qualification required for appointment on the
post of Primary School Teacher, the petitioner lacks such
qualification as the petitioner is not having educational degree of
BSTC or B.Ed. In the instant case, the question required to be
examined is as to whether the petitioner can be directed to be
appointed as Primary School Teacher/ Teacher Gr.III dehors the
Rules i.e. Rule 266 of the Rules of 1996 only on the ground that
some persons had already been appointed in the year 2003 dehors
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the Rules and their appointments have not been challenged by the
State.
In Yogendra Pal and Others Vs. Municipality, Bhatinda
and Another (supra), Hon’ble Supreme Court held that the Court
can mould the relief to meet the exigencies of the circumstances
and also make the law laid down by it prospective in operation. The
Apex Court in para 29 of the Report observed as under :-
“As held above, the provisions of Section 192 (1) (c)
of the Punjab Municipal Act, 1911 and of Section 203
(1) (c) of the Haryana Municipal Act, 1973 are
violative of Article 14 of the Constitution. Hence the
acquisitions of the appellants’ land under the
respective provisions were bad in law. The question
still remains as to what relief the appellants can be
granted. It is now well-settled by the decisions of this
Court beginning with I.C. Golak Nath Vs. State of
Punjab that the Court can mould the relief to meet
the exigencies of the circumstances and also make
the law laid down by it prospective in operation. We
are informed that till date the Municipal Committee in
both Punjab and Haryana States have similarly
acquired lands for their respective town planning
schemes and in many cases the schemes have also
been completed. It is only some of the landowners
who had approached the courts and the decisions of
the courts have become final in many of those cases.
It would not, therefore, be in the public interest to
unsettle the settled state of affairs. It would create
total chaos and an unmanageable situation for the
Municipal Committees if the said provisions of the
respective statutes and the land acquisitions made
thereunder are declared void with retrospective
effect. We, therefore, propose to declare that the
provisions concerned of the two enactments would be
void from the date of this decision.”In Union of India Vs. Madras Telephone SC & ST Social
8Welfare Association (supra), Hon’ble Supreme Court observed as
under:-
“This Court clearly laid down the principle that the
seniority fixed on the basis of the directions of this
Court which has attained finality is not liable to be
altered by virtue of a different interpretation being
given for fixation of seniority by different Benches
of the Tribunal. Consequently, the promotions
already effected on the basis of seniority
determined in accordance with the principles laid
down in the judgment of the Allahabad High Court
cannot be altered.”In Managing Director, ECIL, Hyderabad and Others Vs.
B. Karunakar and Others (supra) the Hon’ble Supreme Court
observed in para 34 of the Report as under:-
“However, it cannot be gainsaid that while Mohd.
Ramzan Khan case made the law laid down there
prospective in operation, while disposing of the
cases which were before the Court, the Court
through inadvertence gave relief to the
employees concerned in those cases by allowing
their appeals and setting aside the disciplinary
proceedings. The relief granted was obviously
per incuriam. The said relief has, therefore, to
be confined only to the employees concerned in
those appeals. The law which is expressly made
prospective in operation there, cannot be applied
retrospectively on account of the said error. It is
now well settled that the courts can make the
law laid down by them prospective in operation
to prevent unsettlement of the settled positions,
to prevent administrative chaos and to meet the
ends of justice.”
The appointment of Teacher Gr.III/ Primary School
Teacher from the candidates who were earlier serving as contract
teachers came to be considered by this Court in Shiv Raj Pareek &
9Ors. Vs. State of Rajasthan and Ors. (supra) wherein bunch of writ
petitions were filed by various incumbents who were seeking
appointment on the post of Teacher Gr.III on the basis of policy
decision by the State for giving regular appointment as Teacher
Gr.III and this Court held that it is not obligatory upon the Court of
law to pass the order merely on the basis of the said agreement
particularly where the parties are seeking relief on the basis of
their constitutional right. The Court cannot ignore the rules or the
law which is relevant for the purpose of deciding the cases and
which might not have been brought to the notice of the Court by
any of the parties. In that case, the petitioners therein have
rendered their services as contract teachers from the year 1984 to
1989. This Court held that this did not have much relevance
because of the fact that if the initial appointment is not legal or has
not been made by following the procedure of law or the
appointment is not regular appointment, the person served even
for longer period cannot claim his regularization on the basis of
length of his service. However, in that case the petitioner therein
did not claim regularization of service on the basis of length of their
past services but claimed regular appointment on the post of
Teacher Gr.II on the ground that they have served as contract
teacher under the scheme which was floated in the year 1984-85
commonly known as Black-Board Scheme on a consolidated salary
of Rs. 400/- per month and that scheme continued upto 1987 but
10the appointments were given even upto 1992. In that case, the
petitioner therein did not possess the requisite educational
qualification for appointment on the post of Teacher Gr.III and
almost all the petitioners therein were not trained teachers and
therefore, this Court held that even if the State Government gave
appointments or Zila Parishads recommended names of any of the
contract teachers for appointment to the Teacher Grade-III,
against the rules which were in existence before 16.11.1999 and
provided appointments to ineligible persons even after decision of
this Court in Renu Sharma’s case (supra), that cannot a ground to
seek relief by claiming parity, equality or equity as laid down by the
Hon’ble Apex Court. There appears no reason for issuing a direction
to the State Government for giving appointments to such large
number of petitioners who rendered their services in past as
contract teachers and against consolidated amount of Rs. 400/- per
month which will deprive the eligible candidates from getting the
appointments. This Court further held that even if any order of
giving appointment to the petitioners will be given, that will be in
violation to the statutory provisions of law and therefore, the
petitioners cannot claim appointment on the post of Teacher Gr.III
which impliedly is seeking an order of relaxation in basic
qualification for appointments to the Teacher Grade-III.
The decision of this Court in Shiv Raj Pareek’s case
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(supra) came to be challenged by the unsuccessful petitioners
before Division Bench of this Court in D.B.Civil Special Appeal
No166/06, 163/06 and 67/2006 and the special appeals filed by
them came to be dismissed by judgment dated 17.10.2006.
In Renu Sharma Vs. State of Rajasthan and Ors.
(supra), notification dated 16.11.1999 amending the Rule 296 of
the Rules of 1996 and other consequential orders came to be
challenged and this Court observed as under :-
“In the instant case, the amended rule 296
gives unfettered powers to the State 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; there may be
no inhibition to appoint the candidate who had
not even applied in response to the
advertisement or even to make appointment
without advertising the vacancies; the
Competent Authority may choose to fill up the
vacancies by giving appointment to the
candidates of his own caste, religion or resident
of his own village or it may reduce the
fundamental rights guaranteed under Part III of
the Constitution to an iotos and may reduce the
entire system to a mockery; persons who can
leak the boots of the competent authority
would succeed in their mission of getting
appointments and eligible and meritorious
persons may be forced to commit suicide out of
frustration; such an anarchy may breed
nepotism and open the flood-gates of
corruption.
The State and the Executive Officers could not
furnish any explanation as on what
ground/criteria the respondents No.3 and 4
have been appointed. If such a situation is
12permitted to continue, there will be a rule of
thumb instead of rule of law, which is
anethama to the rule of equality. A rule
providing unfettered powers to the Executive to
do whatever it wants to do, cannot be held to
be constitutionally valid. Therefore, I am of the
candid view that the Notification dated
16.11.1999 is liable to be declared ultra vires
and unconstitutional and is struck down
accordingly. Appointments of respondents No.
3 and 4 are also hereby quashed.
The Advertisement No.1/96 had been issued
five years ago and the select list was prepared
on 3.9.98 but without any reason it has not
been acted upon. At that relevant time, there
was no amended rule 296. Thus, the select list
stood expired automatically by virtue of
provisions of Rule 274 of the Rules, 1996.
There was no justification for preparing another
select list in September, 1999. Moreso, as 93
vacancies had been advertised and as per the
statistics given by the respondent No.2, only
232 vacancies were available upto 1st April
1997. Initially, 232 persons were offered
appointments strictly in accordance with the
order of merit, out of which thirty candidates
did not join. Therefore, the appointments were
offered to thirty more candidates whose names
appeared upto 262 in the merit list.
Respondents No. 3 and 4, whose names
appeared at serial No. 1249 and 944
respectively, could not have been appointed
under any circumstance. The appointments had
been offered misusing the power under
amended rule 296 of the Rules, 1996.”
A similar controversy came to be considered by Division
Bench of this Court in Kusum Kumari Vs. State of Rajasthan and
Ors. (supra) and it has been held that the principle is too well
settled to be elaborated that two wrong cannot make one thing
correct and no mandamus can be issued for bringing parity with
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the already existing illegality to commit more illegalities. That is not
the principle of discrimination enshrined under Article 14.
In Ram Sukh and Others Vs. State of Rajasthan and
Others (supra), the Hon’ble Supreme Court observed as under :-
“The contention, however, urged for the
petitioners before us is that they should be
absorbed in service and they should also be
provided with facilities to undergo the
prescribed training. We do think that we could
accept the contention. We cannot, at any rate,
direct the Government to put back the
petitioners into service till they are trained. No
doubt the High Court in Tamboli case has
directed the State Government to get the
untrained teachers trained in phased
programme to enable them to improve their
prospects for employment. But that does not,
however, mean that it is obligatory for the
Government to continue the untrained
teachers till they are properly trained.
We are not less sympathetic to the petitioners
who are out of job but we cannot forget the
welfare of those who are not before the Court.
They are the tiny tots who require proper
handling by well trained teachers. The court
had an occasion to observe about the need for
proper training to teachers in the interests of
students. In Andhra Kesari Education Society
V. Director of School Education, [(1998) 4 JT
431 at 436: (AIR 1989 SC 183 at p. 188)] to
which one of us was a party, this Court made
a passing reference:
“The teacher alone could bring out the
skills and intellectual capabilities of students.
He is the ‘engine’ of the educational system.
He is a principal instrument in awakening the
child to cultural values. He need to be
endowed and energised with needed potential
to deliver enlightened service expected of him.
His quality should be such as would inspire
and motives into action the benefiter.”
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These observations are equally relevant to
primary school teachers with whom we are
concerned. The primary school teachers are of
utmost importance in developing a child’s
personality in the formative years. It is not
just enough to teach the child alphabets and
figures, but much more is required to
understand child psychology and aptitudes.
They need a different approach altogether.
Only trained teachers could lead them
properly. The untrained teachers can never be
proper substitute to trained teachers. We are,
therefore, unable to give any relief to the
petitioners.”
In the instant case, indisputably the petitioner does not
possess the requisite educational qualification for appointment on
the post of Teacher Gr.III as envisaged under Rule 266 of the
Rules of 1996 and the controversy raised in the instant case stands
concluded by catena of decision of this Court referred herein
above. More so, the appointment given to other persons named in
Annex.2 dated 08.07.2003 obviously dehors the Rules and such
relief have to be confined only to the candidates named in Annex.2
and had already been appointed and posting orders had been
issued in their respect in order to prevent unsettlement of the
settled position and keeping in view the decision of Hon’ble
Supreme Court in Ram Sukh and Others Vs. State of Rajasthan and
Others (supra) emphasizing the need of trained teacher vis a vis
untrained teacher which is of utmost importance in developing a
child’s personality in the formative years. The decisions relied on
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by learned counsel for the petitioner turn on their own facts and
are of no help to the petitioner.
In this view of the matter, I do not find any merit in the
writ petition. The writ petition is therefore, dismissed. However,
there shall be no order as to costs. Interim order stands vacated
and stay petition also stands dismissed.
(H.R.PANWAR), J.
rp