Akhedan v. The Director, Panchayat Raj Deptt.

Order

01/12/2008 P R E S E N T 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 2 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, 3 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 4 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 5 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 6 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 7 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 8 Welfare 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 & 9 Ors. 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 10 the 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 11 (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 12 permitted 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 13 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.” 14 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 15 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.