MANMOHAN SHARMA Vs STATE OF RAJASTHAN
Bench: T.S. THAKUR,C. NAGAPPAN
Case number: C.A. No.-004294-004294 / 2014
Diary number: 29375 / 2012
Advocates: R. C. KOHLI Vs
PRAGATI NEEKHRA
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4294 OF 2014 (Arising out of SLP (C) No.27829 of 2012)
Manmohan Sharma …Appellant
Versus
State of Rajasthan & Ors. …Respondents
With
CIVIL APPEAL NO. 4295 OF 2014 (Arising out of SLP (C) No.28259 of 2012)
CIVIL APPEAL NO. 4296 OF 2014 (Arising out of SLP (C) No.28410 of 2012)
CIVIL APPEAL NO. 4297 OF 2014 (Arising out of SLP (C) No.28542 of 2012)
CIVIL APPEAL NO. 4298 OF 2014 (Arising out of SLP (C) No.28633 of 2012)
CIVIL APPEAL NO. 4299 OF 2014 (Arising out of SLP (C) No.28793 of 2012)
CIVIL APPEAL NO. 4300 OF 2014 (Arising out of SLP (C) No.31756 of 2012)
CIVIL APPEAL NO. 4301 OF 2014 (Arising out of SLP (C) No.31793 of 2012)
1
Page 2
CIVIL APPEAL NO. 4302 OF 2014 (Arising out of SLP (C) No.31818 of 2012)
CIVIL APPEAL NO. 4303 OF 2014 (Arising out of SLP (C) No.31819 of 2012)
CIVIL APPEAL NO. 4304 OF 2014 (Arising out of SLP (C) No.31820 of 2012)
CIVIL APPEAL NO. 4305 OF 2014 (Arising out of SLP (C) No.31821 of 2012)
CIVIL APPEAL NO. 4306 OF 2014 (Arising out of SLP (C) No.33511 of 2012)
CIVIL APPEAL NO. 4307 OF 2014 (Arising out of SLP (C) No.33830 of 2012)
CIVIL APPEAL NO. 4309 OF 2014 (Arising out of SLP (C) No.33969 of 2012)
CIVIL APPEAL NO. 4310 OF 2014 (Arising out of SLP (C) No.34934 of 2012)
CIVIL APPEAL NOs. 4311-4312 OF 2014 (Arising out of SLP (C) Nos.38305-38306 of 2012)
CIVIL APPEAL NO. 4313 OF 2014 (Arising out of SLP (C) 9159/2014 [@ CC No.21960/2012])
2
Page 3
CIVIL APPEAL NO. 4314 OF 2014 (Arising out of SLP (C) No.35 of 2013)
CIVIL APPEAL NO. 4315 OF 2014 (Arising out of SLP (C) No.40008 of 2012)
CIVIL APPEAL NO. 4316 OF 2014 (Arising out of SLP (C) No.9154 of 2013)
CIVIL APPEAL NO. 4317 OF 2014 (Arising out of SLP (C) No.4600 of 2013)
CIVIL APPEAL NO. 4318 OF 2014 (Arising out of SLP (C) No.9153 of 2013)
CIVIL APPEAL NO. 4319-4320 OF 2014 (Arising out of SLP (C) Nos.1478-1479 of 2013)
CIVIL APPEAL NO. 4321 OF 2014 (Arising out of SLP (C) No.4472 of 2013)
CIVIL APPEAL NO. 4322 OF 2014 (Arising out of SLP (C) No.8279 of 2013)
CIVIL APPEAL NO. 4323 OF 2014 (Arising out of SLP (C) No.9463 of 2013)
CIVIL APPEAL NO. 4324 OF 2014 (Arising out of SLP (C) No.9754 of 2013)
CIVIL APPEAL NO. 4325 OF 2014
3
Page 4
(Arising out of SLP (C) No.5320 of 2013)
CIVIL APPEAL NO. 4326 OF 2014 (Arising out of SLP (C) No.11173 of 2013)
CIVIL APPEAL NO. 4327 OF 2014 (Arising out of SLP (C) No.1272 of 2013)
CIVIL APPEAL NO. 4328-4329 OF 2014 (Arising out of SLP (C) Nos.8328-8329 of 2013)
CIVIL APPEAL NO. 4330 OF 2014 (Arising out of SLP (C) No.15454 of 2013)
CIVIL APPEAL NO. 4331 OF 2014 (Arising out of SLP (C)9161/2014 [@CC No.7758/2013])
CIVIL APPEAL NO. 4332 OF 2014
(Arising out of SLP (C) No.28106 of 2012)
CIVIL APPEAL NO. 4333 OF 2014 (Arising out of SLP (C) No.3962 of 2014)
CIVIL APPEAL NO. 4334-4337 OF 2014 (Arising out of SLP (C) Nos.35440-35443 of 2012)
AND
CIVIL APPEAL NO. 4338 OF 2014 (Arising out of SLP (C) No.35449 of 2012)
J U D G M E N T
T.S. THAKUR, J.
4
Page 5
1. Delay condoned.
2. Leave granted.
3. The fate of these appeals by special leave, turn on a
true and correct understanding of an order passed by this
Court in Kailash Chand Sharma v. State of Rajasthan
and Ors. (2002) 6 SCC 562. This Court was, in that case
examining whether award of bonus marks to candidates
seeking appointment as primary school teachers under Zila
Parishads in the State of Rajasthan based on the domicile of
the candidates was legally permissible. A similar question
was earlier examined and answered in the negative by a Full
Bench of the High Court of Rajasthan in Deepak Kumar
Suthar v. State of Rajasthan (1999) 2 Raj LR 692
[W.P. (C) No.1917 of 1995], which arose out of selection
of Grade II and III teachers borne in the State cadre under
the administrative control of the State Government. The
High Court had in Deepak Kumar’s case (supra) held that
although award of bonus marks was not constitutionally
valid, no relief could be given to the writ-petitioners in that
case as they did not stand a chance even if award of bonus
5
Page 6
marks to the successful candidate was disregarded and inter
se merit of the candidates determined without taking such
marks into consideration. The operative portion of the order
passed in Deepak Kumar’s case (supra) is as under:
“Instead of sending the matter to the appropriate Bench, we think it proper to dispose of this petition with a direction that no relief can be granted to the petitioners as they could not succeed to get the place in the merit list even by getting 10 bonus marks being residents of urban area, for which they are not certainly entitled. More so, the petitioners have not impleaded any person from the select list, not even the last selected candidate. Thus, no relief can be granted to them in spite of the fact that the appointments made in conformity with the impugned circular have not been in consonance with law. However, we clarify that any appointment made earlier shall not be affected by this judgment and it would have prospective application.”
4. When selection process for filling up posts of primary
school teachers in six different districts in the State of
Rajasthan commenced in the year 1998-99, award of bonus
marks based on the domicile of the candidates once again
came under challenge before the High Court. The immediate
provocation for the challenge was provided by a Circular
dated 10th June, 1998 issued by the Department of Rural
Development and Panchayati Raj which prescribed the
6
Page 7
procedure to be followed for making selections and
appointments against the available vacancies including the
method for determination of merit based on educational
qualifications of the candidates and award of bonus marks
depending upon whether the candidates were domiciled in
Rajasthan and residents of an urban or rural area of the
State. The circular said:
“This year, determination of merit has been amended and determination of merit will be done as follows:
I. Marks for educational qualification
Sl. No. Qualification Weightage
1. Secondary Examination
50%
2. Senior Secondary Examination
20%
3. STC/Bed 30%
II. Fixation of bonus marks for domiciles
Sl. No. Qualification
Domiciles of Rajasthan
10 marks
Resident of district 10 marks
Resident of rural area of district
5 marks
7
Page 8
5. Some of the candidates who hailed from outside the
districts hence not eligible for the award of bonus marks
filed writ petitions before the High Court of Rajasthan
challenging the circular in so far as the same provided for
the award of bonus marks. Those petitions when referred to
a Full Bench for an authoritative pronouncement, culminated
in the decision of the High Court in Kailash Chand
Sharma’s case (supra) in which the High Court held that
the question of constitutional validity of the bonus marks
was no longer res integra in view of the judgment of the first
Full Bench in Deepak Kumar’s case (supra). The second
Full Bench in Kailash Chand Sharma’s case (supra)
accordingly disposed of the writ petitions challenging the
circular and the award of bonus marks on the same terms as
were stated in the order passed by the first Full Bench in
Deepak Kumar’s case (supra). The Court said:
“The Full Bench of this court in Full Bench reference in Writ Petition No.1917/95 has already answered the question that arises for consideration in these matters also. These cases are to be disposed of for the very reasons stated in the Full Bench judgment aforementioned and in the same terms making it clear that the employment in the case on hand relates to Panchayat as well as Education. Merely
8
Page 9
because the employment relates to Panchayat, that does not make any difference in the light of the law laid down in the full bench judgment aforementioned. Ordered accordingly.”
(emphasis supplied)
6. It is evident that even when the Full Bench held the
award of bonus marks to be unconstitutional the writ-
petitioners in reality got no relief from the Court. The matter
did not rest there, for after the Full Bench judgment, one
more batch of writ petitions came to be disposed of by a
learned Single Judge of the High Court by his order dated
26th February, 2001 directing preparation of a fresh merit list
of candidates appointed on or before 21st October, 1999
without regard to bonus marks. An appeal filed by the State
Government against that direction failed and was dismissed
by a Division Bench of the High Court by its order dated 13th
April, 2001.
7. Aggrieved by the order passed by the Full Bench of the
High Court in Kailash Chand Sharma’s case (supra) the
writ-petitioners appealed to this Court. The State also filed
9
Page 10
an appeal against the judgment of the High Court directing
preparation of a fresh merit list. The civil appeals filed by
Kailash Chand Sharma and others and that filed by the State
of Rajasthan in Naval Kishore’s case were heard and
disposed of by this Court by an order dated 30th July, 2002
whereby this Court affirmed the view taken by the High
Court holding in no uncertain terms that the award of bonus
marks or weightage based on the place of residence or birth
was not legally permissible in the absence of any scientific
study and considerations germane to the constitutional
guarantee of equality. Having said that, this Court examined
whether the judgment holding that the weightage/bonus
marks is constitutionally impermissible ought to be given
prospective effect so that appointments made prior to the
second Full Bench judgment in Kailash Chand Sharma’s
case (supra) i.e. 18th November, 1999 are left unaffected.
This Court noted that there were several instances where
the past actions and transactions including appointments
and promotions though made contrary to the law
authoritatively declared by this Court were left untouched
either on the principle of prospective overruling or by
10
Page 11
invoking the powers of the Court under Article 142 of the
Constitution. Invoking the doctrine of prospective overruling
this Court observed that selections and promotions had in
the past been made by awarding bonus marks to the
residents of the districts concerned and that award of such
weightage was upheld even by the High Court of Rajasthan.
This Court also noted that the law on the subject was during
the relevant period in a state of flux as was evident from a
review of the decisions rendered by the Rajasthan High
Court from time to time. Taking note of these aspects this
Court recognised the need to balance competing claims by
invoking the doctrine of prospective overruling and confining
the relief to only the writ-petitioners who had moved to the
High Court. Appointments made on or after 18th November,
1999 i.e. the date on which Kailash Chand Sharma’s case
(supra) was decided by the High Court, alone were made
subject to the claims of the appellants. We shall presently
refer to the operative portion of the order passed by this
Court in Kailash Chand Sharma’s case (supra) for as
observed earlier, the controversy in this case rests entirely
on a true and correct interpretation of the said order. But
11
Page 12
before we do so, we consider it necessary to complete the
factual narrative to place the controversy before us in proper
perspective.
8. In compliance with the directions issued by this Court
in Kailash Chand Sharma’s case (supra), the State
Government issued an order dated 10th October, 2002
whereby it identified cases in which the writ-petitioners had
to be considered for appointment as teachers vis-à-vis
candidates appointed or enlisted for appointment on or after
18th November, 1999. The State Government identified 23
different cases in which candidates were found eligible for
such consideration. In the meantime, some of the
candidates who considered themselves eligible for
consideration in terms of the directions issued by this Court
in Kailash Chand Sharma’s case (supra) issued notices to
the State Government threatening the latter with contempt
proceedings for their failure to implement the directions
issued by this Court. The result was that several
appointment orders came to be issued in purported
12
Page 13
obedience of the directions issued by this Court in Kailash
Chand Sharma’s case (supra).
9. The State Government during the period started
receiving complaints inter alia alleging that fraudulent and
irregular appointments in several districts of the State had
been made in breach of the spirit underlying the directions
issued by this Court in Kailash Chand Sharma’s case
(supra). Taking note of these complaints, the State
Government issued a general order dated 23rd April, 2005
asking the Chief Executive Officers of the District Councils
concerned to issue show-cause notices to such fraudulently
and irregularly appointed candidates and to take action for
termination of their services after affording them an
opportunity of being heard in the matter. Show-cause
notices were accordingly issued to the candidates who,
according to the authorities concerned, had been
fraudulently appointed. Personal hearing was also afforded
to such affected candidates. Secretary to Government,
Department of Education, submitted a report dated 4th April,
2011 stating that the directions issued by this Court in
13
Page 14
Kailash Chand Sharma’s case (supra) were limited to only
such candidates as were parties before this Court. The
appointing officers were accordingly directed to take action
and terminate the services of candidates who did not satisfy
that condition. Services of several such persons were
accordingly terminated, aggrieved whereof the affected
candidates approached the High Court by way of writ
petitions in which certain interim orders were also passed
protecting such appointees from ouster.
10. In Suresh Chandra Sharma & Ors. v. State of
Rajasthan SLP No.21377 of 2009 arising out of a judgment
and order dated 25th March, 2009 passed by the High Court
of Rajasthan at Jaipur, the appellants had unsuccessfully
claimed a mandamus from the High Court directing their
appointment. The appellants’ case in that petition was that
although the relief granted by this Court in Kailash Chand
Sharma’s case (supra) was limited to the writ-petitioners, a
large number of persons who were not covered by the order
passed in that case were appointed as Assistant Teacher
Grade II in the Zila Parishad schools of different districts. On
14
Page 15
behalf of the State it was submitted that while some persons
including those mentioned by the appellants were appointed
by the respondents, but such illegally appointed persons
were sought to be removed by the State against which the
aggrieved persons had moved the High Court and secured
interim orders in their favour. Since the picture as to the
total number of persons appointed contrary to the directions
issued by this Court and the steps taken by the Government
for removal of those responsible for making such
appointments was not clear, this Court directed the
Secretary to the Government of Rajasthan, In charge,
Department of Education, to hold an inquiry and submit a
report as to the number of appointments made contrary to
the order of this Court in Kailash Chand Sharma’s case
(supra) and to furnish particulars of such persons as had
been appointed, the steps taken by the Government of
Rajasthan for their removal and action, if any, initiated
against those responsible for making such appointments.
11. When the matter came up again on 30th August, 2012,
the report of the Secretary to Government was filed and it
15
Page 16
was submitted on behalf of the State Government that the
State Government had terminated the services of 50
persons who were according to it illegally appointed as
teachers. It was also submitted that such employees had
questioned the order of termination before the High Court of
Rajasthan at Jodhpur in writ petitions which are pending and
in which the High Court had passed various orders staying
the operation of their termination.
12. It was in the above backdrop that this Court requested
the High Court of Rajasthan to club the pending matters and
hear them on an early date. The High Court has accordingly
heard the matters and passed the orders impugned in these
appeals which are separate but similar in content. The High
Court has dismissed the writ petitions filed by the candidates
who are said to have obtained fraudulent appointment
orders in their favour. The High Court has recorded a finding
that those appointed and removed in terms of the directions
issued by the State Government did not qualify for such
appointment on a true and proper interpretation of the order
passed by this Court in Kailash Chand Sharma’s case
16
Page 17
(supra). The High Court has drawn support from the decision
of this Court in Girdhar Kumar Dadhich and Anr. v.
State of Rajasthan (2009) 2 SCC 706, and found that the
candidates concerned had either suppressed or
misrepresented material facts only to secure fraudulent
appointments in their favour. Such candidates were not,
therefore, entitled to continue in service nor were they
entitled to any relief from the Court. The present appeals
assail the correctness of the said judgments and orders of
the High Court as already noticed above.
13. We have heard learned counsel for the parties at
considerable length who were at pains to take us through
the judgment of this Court in Kailash Chand Sharma’s
case (supra) over and over again. That was so because the
entitlement of the appellants to any relief in these
proceedings depends entirely upon whether the same is
permissible in terms of the directions issued by this Court in
Kailash Chand Sharma’s case (supra). As noticed earlier
in Kailash Chand Sharma’s case (supra) this Court
invoked the doctrine of prospective overruling primarily for
17
Page 18
two reasons. Firstly, this Court observed that for nearly one
decade selections had been made by awarding bonus marks
to residents of the districts concerned and the rural areas
falling therein which method was upheld by the High Court
in several decisions. Till the time the selection process in the
present case was initiated and completed these decisions
were holding the field. The correctness of those decisions
was, however, doubted when writ petitions filed by Kailash
Chand Sharma and others came up for hearing before a
learned Single Judge with the result that the matters were
referred to a larger Bench. By the time the judgment in
those writ petitions came to be delivered, the selection list of
candidates had been published in many districts. The law
was thus in a state of flux which justified invocation of the
doctrine of prospective overruling. This Court said:
“In the present case, the legality of the selection process with the addition of bonus marks could not have been seriously doubted either by the appointing authorities or by the candidates in view of the judicial precedents. A cloud was cast on the said decisions only after the selection process was completed and the results were declared or about to be declared. It is, therefore, a fit case to apply the judgment of the Full Bench rendered subsequent to the selection prospectively.”
18
Page 19
14. The second reason which this Court gave for invoking
the doctrine of prospective overruling was that all those
selected and appointed and selected for appointment on the
basis of the impugned selection process had not been
impleaded as parties to the writ proceedings. This Court
observed:
“One more aspect which is to be taken into account is that in almost all the writ petitions the candidates appointed, not to speak of the candidates selected, were not made parties before the High Court. Maybe, the laborious and long-drawn exercise of serving notices on each and every party likely to be affected need not have been gone through. At least, a general notice by newspaper publication could have been sought for or in the alternative, at least a few of the last candidates selected/appointed could have been put on notice; but, that was not done in almost all the cases. That is the added reason why the judgment treading a new path should not as far as possible result in detriment to the candidates already appointed. We are not so much on the question whether the writ petitioners were legally bound to implead all the candidates selected/appointed during the pendency of the petitions having regard to the fact that they were challenging the notification or the policy decision of general application; but, we are taking this fact into consideration to lean towards the view of the High Court that its judgment ought to be applied prospectively, even if the non-impleadment is not a fatal flaw.”
15. This Court next examined the extent of prospectivity
that could be given to the declaration of law vis-à-vis the
19
Page 20
selection and appointment process under challenge. A three-
fold argument was noticed by this Court in that regard.
Firstly, the Court noted the contention that those selected
and/or appointed should remain unaffected of the law
declared in Kailash Chand Sharma’s case (supra) for it
would be more rational and logical to apply the judgment to
future selections. The fortuitous circumstance of not being in
a position to securing appointment orders for a variety of
administrative reasons could not stand in the way of
candidates already appointed or to be appointed after the
date of the judgment. The rival contention urged on behalf
of the respondents that there was no legal or moral
justification for making further appointments after 18th
November, 1999 when Kailash Chand Sharma’s case
(supra) was decided was also noticed by this Court.
Reference was also made to the decision of this Court in
Madan Lal and Ors. v. State of J & K and Ors. (1995) 3
SCC 486 and other cases relied upon by the selected
candidates in support of the contention that writ-petitioners
having taken a chance and participated in the selection
process could not turn around and question the said process
20
Page 21
upon their failure to secure an appointment. It was in the
backdrop of all these submissions that this Court moulded
the relief suitably and issued directions. This Court, it is
evident, considered it just and proper to confine the relief
only to such of the candidates as were writ-petitioners
before the High Court with a direction that appointments
made on or after 18th November, 1999 in any of the districts
shall remain subject to the claims of such appellants. Para
46 of the judgment of this Court in Kailash Chand
Sharma’s case (supra) which holds the key to several
questions raised before us may, at this stage, be extracted:
“46. Having due regard to the rival contentions adverted to above and keeping in view the factual scenario and the need to balance the competing claims in the light of acceptance of prospective overruling in principle, we consider it just and proper to confine the relief only to the petitioners who moved the High Court and to make appointments made on or after 18-11-1999 in any of the districts subject to the claims of the petitioners. Accordingly, we direct:
1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis-à- vis the candidates appointed on or after 18-11-1999 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary, by displacing the candidates appointed on or after 18-11-1999.
21
Page 22
2. The appointments made up to 17-11-1999 need not be reopened and reconsidered in the light of the law laid down in this judgment.
3. Writ Petition No.542 of 2000 filed in this Court under Article 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time.”
16. A careful reading of the above leaves no manner of
doubt that (a) this Court invoked the doctrine of prospective
overruling which implies that the law declared by this Court
would apply only to future selections and appointments, (b)
that although prospective overruling left the appointments
made before 18th November, 1999 untouched, the writ-
petitioners who had moved the High Court had to be
considered afresh vis-à-vis candidates appointed on or after
18th November, 1999 or those in the select list without
giving to such appointed/selected candidates the benefit of
bonus marks under the circular, and (c) that upon such
consideration of the writ-petitioners if they are found to be
superior in merit than those appointed after 18th November,
22
Page 23
1999 they shall be offered appointments, if necessary, by
removing the latter.
17. It was strenuously contended by learned counsel for
the appellants that the expression “the appellants who
moved the High Court” appearing in para 46 (supra) was
wide enough and actually covered not only such of the writ-
petitioners as had approached the High Court in the two
batch of cases decided by this Court in Kailash Chand
Sharma’s case (supra) but also all such candidates as may
have filed writ petitions at any time after 18th November,
1999 including those who filed such petition after 30th July,
2002 when this Court decided the appeals in Kailash
Chand Sharma’s case (supra) and connected matters.
18. We find it difficult to accept that contention. There is
nothing in the judgment of this Court in Kailash Chand
Sharma’s case (supra) or the directions that were issued in
para 46 thereof to suggest that this Court was either
conscious of or informed of pendency of any writ petition
filed before the High Court after 18th November, 1999. There
is also nothing to suggest that this Court intended the
23
Page 24
benefit granted in terms of direction (1) under para 46 to
extend not only to the writ-petitioners who had moved the
High Court in Kailash Chand Sharma’s case (supra) and in
the writ petition filed by Naval Kishore and others but the
same has intended to benefit all those who had or may have
moved the High Court at any point of time. On the contrary
there is positive indication of the fact that the Court did not
intend to extend the benefit to any appellant who had
challenged the award of bonus marks and the selection
process on the basis thereof at any stage after 18th
November, 1999. This is evident from the fact that Writ
Petition No.542 of 2000 filed in this Court under Article 32 of
the Constitution of India was dismissed by this Court in
terms of direction (3) under para 46 on the ground that the
same had been filed nearly one year after the judgment of
the High Court. The expression “as it has been filed after
the judgment of the High Court” appearing in direction (3)
under Para 46 clearly suggest that for the grant of relief this
Court had only petitions filed before the judgment in
Kailash Chand Sharma’s case (supra) in mind and not
those filed after 18th November, 1999 when the said
24
Page 25
judgment was pronounced. The observation of this Court
that the writ-petitioners had offered no explanation for not
approaching the High Court under Article 226 of the
Constitution at an earlier point of time too has two distinct
facets, namely, (1) that the writ-petitioners in Writ Petition
No.542 of 2000 should have ordinarily approached the High
Court and (2) They should have done so at an earlier point
of time. The latter of these reasons again emphasized the
importance this Court attached to the delay in the filing of
the petitions in the matter of grant of relief for those who
did not challenge the selection process in good time were
not granted any relief.
19. Judged in the above backdrop the present appeals can
be classified into two categories, namely, Category I
comprising writ petitions that were filed after 18th
November, 1999 and before 30th July, 2002 as was the
position in Writ Petition No.542 of 2000 filed under Article 32
and dismissed by this Court and Category II comprising writ
petitions that were filed after 30th July, 2002. While there is
nothing that could be logically argued in regard to Category
25
Page 26
II cases for extending the benefit of the judgment in
Kailash Chand Sharma’s case (supra) to those cases,
even in regard to Category I cases the judgment of this
Court holds no hope for the appellants. All that was
contended by learned counsel for the appellants in Category
I cases was that writ petition in Naval Kishore Sharma’s
batch was filed after the pronouncement of the Full Bench
judgment of the High Court in Kailash Chand Sharma’s
case (supra). Grant of benefit to appellants in Naval Kishore
Sharma’s batch of writ petitions and refusal of a similar
treatment to the writ-petitioners who had similarly filed their
petitions no matter later in point of time would be unfair and
inequitable. They contended that the relief given by this
Court to Naval Kishore Sharma and others (supra) ought
to be extended even to other similarly situated writ-
petitioners by construing the directions of this Court in
Kailash Chand Sharma’s case (supra) liberally.
20. There is, in our opinion, no merit in that contention
either. In Category I cases none of the writ petitions were
filed earlier than the date on which writ petition in Naval
26
Page 27
Kishore Sharma’s case (supra) was filed. At any rate, the
argument that some writ petitions had been filed around the
same time when Naval Kishore Sharma’s case (supra)
was decided may be no reason for us to enlarge the scope of
the direction issued in Kailash Chand Sharma’s case
(supra) which is on true and proper construction limited to
the writ-petitioners who had moved the High Court in those
cases. We need to remind ourselves that we are not hearing
a review petition in Kailash Chand Sharma’s case (supra)
nor can we modify the order passed in that case. What
cannot be done directly by us, cannot also be done indirectly
by placing what is described as a liberal interpretation by
learned counsel for the appellants.
21. Mr. Bali, learned counsel appearing for some of the
appellants in Category II strenuously argued that although
the appellants in those cases were not writ-petitioners at
any point of time before the pronouncement of the judgment
of this Court in Kailash Chand Sharma’s case (supra)
some of the appellants could and were indeed appointed as
teachers upon consideration of their inter se merit vis-à-vis
27
Page 28
candidates who had been appointed after 18th November,
1999. It was submitted that the right of such candidates to
make a grievance against appointment of persons lower in
merit with bonus marks awarded to them was not and could
not be taken away by the judgment of this Court in Kailash
Chand Sharma’s case (supra). This would imply that even
independent of the said judgment if the writ-petitioners were
higher in merit than those appointed at any time after 18th
November, 1999, the appellants could make a grievance and
seek redress from the Government. Inasmuch as such
appointments have been made in a few cases falling under
Category II, the same could not be faulted only because the
writ petitions were filed after the judgment in the Kailash
Chand Sharma’s case (supra) was pronounced.
22. On behalf of the respondents Mr. Shiv Mangal Sharma,
Additional Advocate General for the State of Rajasthan
submitted that the appointment of Category II cases was
clearly illegal and impermissible in the light of the judgment
of this Court in Kailash Chand Sharma’s case (supra).
The contention that some of the appellants in Category II
28
Page 29
were better in merit even without deletion of bonus marks
was wholly unsustainable and without any basis whatsoever.
No such case has been made out by the appellants in their
respective writ petitions. An affidavit filed by the State has,
in that regard, clarified the position that candidates falling in
Category II not yet appointed are lower in merit with bonus
marks loaded to their merit than the last candidate
appointed under the open general category to which the
appellants also belonged.
23. There is considerable merit in the contention urged by
Mr. Sharma. The case sought to be argued at the Bar was
never set up in the writ petitions filed by the appellants
before the High Court. It was not even remotely suggested
that the appellants were appointed on account of their
superior merit without deletion of the bonus marks. Indeed
if anyone with lesser merit had been appointed writ-petitions
challenging such appointment should have been filed quickly
thereafter and not belatedly as was the position in the
instant case. That apart, the affidavit filed by the
respondents satisfactorily refutes the contention urged at
29
Page 30
the Bar by Mr. Bali. The merit position without deletion of
bonus marks did not justify the appointment of anyone
falling under Category II as they were all lesser in merit
than the last candidate appointed in the open general
category. We have, therefore, no hesitation in rejecting the
contention that the appointments of those falling under
Category II were justifiable on any ground independent of
the directions issued by this Court in Kailash Chand
Sharma’s case (supra). It is noteworthy that some of those
appointed had even filed affidavits stating that they were
parties before this Court which in fact was not the true
position.
24. On behalf of the appellant in Civil Appeal arising out of
SLP No.31818 of 2012 it was argued that the termination of
the services was unjustified having regard to the fact that
the said appellant was a writ-petitioner before the High
Court alongwith Naval Kishore Sharma and others. Writ
Petition No.2200 of 2000 filed by Danveer Singh was allowed
by the learned Single Judge of the High Court along with
Naval Kishore’s case by a common order dated 26th
30
Page 31
February, 2001. That order was challenged by the State in
Writ Appeal No.130 of 2001 but only qua other writ-
petitioners comprising the batch. The order passed in the
writ petition filed by Danveer Singh never came under
challenge before the Division Bench of the High Court.
Consequently the order passed by the Division Bench did not
pertain to the said appellant nor was he impleaded as a
party before this Court in the appeals filed by the State.
That being so, the termination of the services of Danveer
Singh on the basis that he was not a writ-petitioner before
the High Court was not justified argued the learned counsel.
It was contended that what was important was whether the
appellant was the writ-petitioner before the High Court out
of which the judgment in Naval Kishore’s case (supra)
arose. The fact that the State had not chosen to challenge
the order passed in favour of Danveer Singh could not place
the said appellant in a more disadvantageous position than
those against whom the State had filed the appeal first
before the Division Bench of the High Court and later before
this Court.
31
Page 32
25. There is, in our opinion, considerable merit in the
submission made by learned counsel for the appellant
Danveer Singh. Even Mr. Mangal Sharma appearing for the
respondent fairly conceded that on a true and proper
construction of the order of this Court in Kailash Chand
Sharma’s case (supra), the benefit of appointment to
Danveer Singh could not be denied merely because the
order passed in his favour had not been assailed by the
State or because he had not been impleaded as respondent
in the Supreme Court in the appeal filed by the State. The
termination of services of Danveer Singh cannot in that view
be sustained.
26. It was lastly contended by learned counsel for the
appellants that the appellants were appointed and have
served the schools to which they have been posted for
nearly a decade. Their appointments having been made on
a bona fide error in the interpretation of the order of this
Court but so long as there was no fraud played by the
appellants there was no reason why they should be deprived
of the benefit of such a long period of service. Alternatively,
32
Page 33
it was submitted that since the appellants have, by now,
crossed the upper age limit for recruitment as teachers, this
Court could consider issuing a direction for consideration of
their cases in future recruitments in relaxation of the age
bar.
27. The appellants had been appointed and have served for
nearly a decade but there are allegations that such
appointments were obtained by mis-representation of facts
and fraudulently. We do not consider it necessary to go into
that aspect as we are informed that criminal cases have
already been registered against appellants. Any observation
made by us whether or not the appointments were obtained
by mis-representation or by playing fraud upon the
authorities concerned is bound to cause serious prejudice to
the appellants. All that we need say is that in the facts and
circumstances of the case we do not consider the appellants
to be entitled to the relief of regularization of their services
as prayed for by them. Having said that we cannot ignore
the fact that the appellants will be left without any alternate
avenues of employment at this stage of their lives. Subject
33
Page 34
to any finding that may be recorded by a competent Court,
as regards the alleged fraudulent nature of the
appointments secured by the appellants, we direct that such
of the appellants as were appointed as teachers and as have
now been terminated may be given a one-time concession of
relaxation of the upper age limit and considered in the next
selection process in relaxation of rules regarding such age
limit prescribed for appointment as teachers. We make it
clear that the above shall be a one-time relaxation for the
appellants to try their luck in the next selection process. The
appellants or such of them as wish to avail of this concession
shall file an undertaking before the appointing authority
concerned to the effect that the fresh appointment if any
given to them pursuant to the age relaxation shall stand
terminated in case they are found guilty and sentenced to
imprisonment in the criminal case registered against them
for obtaining a fraudulent appointment. Beyond that we do
not consider the appellants to be entitled to any relief from
this Court. The appeals are with the above directions
disposed of leaving the parties to bear their own costs.
34
Page 35
………………………………….…..…J. (T.S. THAKUR)
…………………………..……………..J. (C. NAGAPPAN)
New Delhi April 1, 2014
35