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PETITIONER: ARUN TEWARI & ORS.

       Vs.

RESPONDENT: ZILA MANSAVI SHIKSHAK SANGH & ORS. ETC.

DATE OF JUDGMENT:       01/12/1997

BENCH: SUJATA V. MANOHAR, M. JAGANNADHA RAY

ACT:

HEADNOTE:

JUDGMENT:                THE 1ST DAY OF DECEMBER, 1997 Present:             Hon’ble 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.                       J U D G M E N T      The following Judgment of the Court was delivered: [With  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.      Delay in  S.L.P(C) Nos. 10462, 14389 & 26032 of 1995 is condoned.      Leave in S.L.P. (C) Nos. 10462, 14389 26032 of 1995 and 4579 of 1997 is granted.      Intervention applications are allowed.      Civil 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 amendments.      C.A.No.813/95 challenges  a  subsequent  order  of  the

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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.      C.A.No. 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.      The 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.      As the  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:      (1) 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.      (2) Selection  for  recruitment  to      the service  shall be  held at such      intervals   as    the    appointing      authority  may  fix  time  to  time      determine.      (3) 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

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    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".      On 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.      As a 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. letters 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.      As a 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.

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    All 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 the appeals.  In the  case of Prabodh Verma & Ors. Vs. State of Uttar  Pradesh &  Ors. (1984  [4] 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 [1] SCC 179), where the Court said that a  writ petition challenging selection and appointments without  impleading   the  selected   candidates   was   not maintainable. (Vide  also J.  Jose Dhanapaul Vs. S. Thomas & Ors. (1996  [3] 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 sustained.      The 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. The 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.      In the  case of  Workmen of Meenakshi Mills Ltd. & Ors. Vs. Meenakshi  Mills Ltd.  Anr. (1993  [3] SCC  336, at page 372), a  Constitution  Bench  of  this  Court  considered  a similar question  which arose  before it  and held that when

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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". The 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  by  it. Rejecting  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 of delegation.      In the  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.      It  was  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.      The 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

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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. The State  Government has,  therefore, submitted  that  B.T. qualification   is    superior   to   the   other   training qualification and, therefore, they have prescribed only B.T. qualification apart from a B.Ed.      Looking 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.      The 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 India &  Ors. Vs.  N. Hargopal  & Ors.  (1987 [3]  SCC 308), 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 Vs. Delhi  Administration, Delhi & Ors. (1992 [4] SCC 99, at page  111).  this  Court  approved  of  recruitment  through employment Exchanges as a method of preventing malpractices. But in  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.      There are  different methods  of inviting applications. The 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.      We do  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

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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.      In  the   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 costs.