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CASE NO.: Appeal (civil)  1506 of 2008

PETITIONER: Madan Mohan Sharma & Anr

RESPONDENT: State of Rajasthan  & Ors

DATE OF JUDGMENT: 22/02/2008

BENCH: A.K.MATHUR & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  

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

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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

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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

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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.

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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.