STATE OF JHARKHAND Vs ASHOK KUMAR DANGI .
Bench: G.S. SINGHVI,CHANDRAMAULI KR. PRASAD, , ,
Case number: C.A. No.-008118-008121 / 2010
Diary number: 7866 / 2006
Advocates: GOPAL PRASAD Vs
ARUN KUMAR BERIWAL
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 8118-21 OF 2010
STATE OF JHARKHAND & ORS. … APPELLANT
VERSUS
ASHOK KUMAR DANGI AND OTHERS … RESPONDENTS
With C.A. No. 8122 of 2010 and 8123-8124 of 2010
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
1. Appellants, the State of Jharkhand and its
functionaries, aggrieved by the judgment and order
dated 23rd December, 2005 of the Jharkhand High
Court, passed in LPA No. 161 of 2004 and analogous
appeals have preferred these appeals by leave of
the Court.
2. Shorn of unnecessary details, facts giving rise
to the present appeals are that the Governor of
Jharkhand in exercise of the powers conferred by
Article 309 of the Constitution of India framed
Jharkhand Primary Teachers’ Appointment Rules, 2002
(hereinafter referred to as the Rules) providing
for appointment of teachers in Primary Schools.
Rule 2(b) of the Rules defined ‘Trained’ which
reads as follows:
“2. Definitions : - x x x x x x x
(b).‘Trained’ means those persons who have received the following training from the recognized institution and has passed- (i) Two years Teachers training, or (ii) B.Ed/Dip. In Ed./Dip. In Teaching; and (iii) C.P.Ed/Dip.P.Ed.
x x x x x x x”
3. Rule 3 of the Rules conferred power to the
Jharkhand Public Service Commission
(hereinafter referred to as the ‘Commission) to
publish advertisement inviting applications
from citizens of India, who had passed
Matriculation or its equivalent examination and
trained as defined in Rule 2(b) of the Rules to
fill up the posts of Primary School Teachers.
2
In exercise of the power under Rule 3 of Rules,
the Commission made advertisement on 24th
August, 2002 inviting applications for filling
up the vacancies of the teachers in the
Government Primary Schools. The eligibility
criteria prescribed in the advertisement reads
as follows:
“The applicant must-
(a) be a Citizen of India;
(b) have passed Matric or equivalent
examination; and
(c) possess two years teachers
training or B.Ed./Dip. in Ed./Dip.
in Teaching or C.P.Ed. or
Dip.P.Ed.”
Rule 2(b) of the Rules was amended by Jharkhand
Primary Schools Appointment Amendments Rules, 2003
published on 6th March, 2003, whereby the words
‘only for the physical trained teachers’ were
inserted after Rule 2(b)(iii) of the Rules. Rule
2(b) of the Rules after its amendment reads as
follows :
3
2. Definitions :
x x x x x
x
(b) “Trained” means those persons who have
received the following training from the
recognized institution and has passed:
“(i) Two years Teachers training, or
(ii) B.Ed/Dip. In Ed./Dip. In Teaching;
and
(iii)C.P.Ed/Dip.P.Ed. only for the Physical Trained
Teachers.
In the light of the aforesaid amendment in the
Rules, the Commission published corrigendum dated
22nd April, 2003 and provided that the candidates
having C.P.Ed./D.P.Ed. will be deemed eligible for
appointment against vacancies for the post of
Physical Trained Teachers only.
4. The Commission conducted the examination of the
eligible candidates in which the writ petitioners
4
appeared. Their results were not published and
their candidature confined only to the posts of
Physical Trained Teachers. Aggrieved by that, they
filed writ petition before the Jharkhand High
Court, inter alia, praying for issuance of a writ
in the nature of mandamus commanding the State
Government and its functionaries to consider their
cases for appointment against the entire vacancies
of Primary School Teachers and further for a
direction not to restrict their candidature only to
the vacant posts of Physical Trained Teachers.
5. The learned Single Judge by its judgment dated
2nd December, 2003 dismissed the writ petition,
inter alia observing that the writ petitioners do
not possess requisite qualifications and hence; not
entitled to be considered for appointments to the
post of Primary School Teachers. While doing so,
the learned Single Judge observed as follows:
“In the instant case, admittedly,
Petitioners obtained physical training
5
course which is required for the post of
physical trained teacher. For being
appointed as a primary teacher a candidate
must possess qualification of a trained
teacher i.e. B.Ed./Dip-in-Ed/Dip-in-Teach.
In my considered opinion, therefore,
petitioners do not possess requisite
qualification for appointment on the post
of Primary teacher”
6. Aggrieved by the same, writ petitioners
preferred appeals and the Division Bench of the
High Court by the impugned order dated 23rd
December, 2005 disposed of the appeals with the
following direction :
“(I)For the present the respondents shall
make appointment of physical trained
teachers at least on the 5% posts of the
total vacancies of the primary teachers
and the JPSC shall publish the pending
results of such candidates whose results
have not been published as yet without
any further delay to the extent of the
said number of vacancies within a period
of one month from the date of
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receipt/production of a copy of this
order/judgment.
(II)The State-respondents may come with a
clear policy decision regarding the
appointment against future vacancies and
the cadre of physical trained teachers
in the schools and their promotional
avenue or any such allied matter.
(III)Since there is no separate cadre for
the present and admittedly the physical
trained teachers come within the cadre
of primary school teachers, it is held
that the appellants, and others, who
possessed the eligibility, as required
for appointments of physical trained
teachers, are entitled for appointments
as primary physical trained teachers and
they are entitled to be considered for
appointments to the extent of 5% of the
total existing vacancies and to the
extent of the reserved posts.
(IV)The physical trained candidates, who do
not possess B.Ed./Dip-in-Ed/Dip-in-Teach
or other equivalent primary teachers’
7
training course certificate, have no
right to put their claim for appointment
against the posts which are meant for
general subjects primary teachers and
their right will be confined to the
percentage of the ratio of the posts
meant for them. However, after a fresh
appointment as physical trained
teachers, they may be treated as any
other primary school teachers for the
purpose of assignment of classes or for
disciplinary conduct.”
7. The High Court had given the direction to make
appointment of Physical Trained candidates on 5% of
the total vacancies of the Primary School Teachers
taking into account the policy of the State of
Bihar. It observed that Physical Trained Teachers
and Primary School Teachers do not belong to
different cadre and further the Government of
Jharkhand has not framed any definite scheme or
policy regarding number or ratio of the post of
Physical Trained Teachers in the State. It also
8
observed that the State of Bihar had taken a policy
decision for appointment of Physical Trained
Teachers to the extent of 5% of the vacancies of
the Primary School Teachers and said policy
existing prior to the date of re-organisation of
the States has not been modified nor any other
policy decision has been taken by the State of
Jharkhand.
8. Mr. Gopal Prasad, learned Counsel for the
appellants submits that percentage of posts to be
filled by the Physical Trained candidates is a
matter of policy and the High Court erred in
directing the appellants to fill-up 5% vacancies of
Primary School Teachers by Physical Trained
Candidates. He points out that Rule 16 of the
Rules has repealed Bihar Primary School Teacher
Appointment Rules, 1991 and Bihar Primary School
Teachers Amendment Appointment Rules, 1993 or any
other Act or Rules framed by the Government of
Bihar in its application to the State of Jharkhand.
9
Accordingly, he submits that reliance on so-called
policy decision of the State of Bihar is absolutely
misplaced and the High Court erred in relying on
the said policy decision.
9. Mr. Ajay Kumar, learned Counsel appearing on
behalf of the respondents, however, submits that
every school needs a Physical Trained Teacher and
the State of Jharkhand having no policy in regard
thereto, the High Court did not err in giving
direction to fill-up 5% vacancies of the Primary
School Teachers by Physical Trained Candidates.
According to him, nothing prevents this Court to
issue mandamus directing framing of policy. He
relied on the judgment of this Court in Comptroller
and Autitor-General of India, Gian Prakash, New
Delhi and Anr.Vs. K.S. Jagannathan & Anr., (1986) 2
SCC 679 to support his contention. In this case,
it has been held as follows:
“20.There is thus no doubt that the High
Courts in India exercising their
10
jurisdiction under Article 226 have the
power to issue a writ of mandamus or a
writ in the nature of mandamus or to pass
orders and give necessary directions where
the government or a public authority has
failed to exercise or has wrongly
exercised the discretion conferred upon it
by a statute or a rule or a policy
decision of the government or has
exercised such discretion mala fide or on
irrelevant considerations or by ignoring
the relevant considerations and materials
or in such a manner as to frustrate the
object of conferring such discretion or
the policy for implementing which such
discretion has been conferred. In all
such cases and in any other fit and proper
case, a High Court can, in the exercise of
its jurisdiction under Article 226, issue
a writ of mandamus or a writ in the nature
of mandamus or pass orders and give
directions to compel the performance in a
proper and lawful manner of the discretion
conferred upon the government or a public
authority, and in a proper case, in order
to prevent injustice resulting to the
concerned parties, the court may itself
11
pass an order or give directions which the
government or the public authority should
have passed or given had it properly and
lawfully exercised its discretion.”
10. Mr. Kumar further points out that the Policy of
the State of Bihar so far as it relates to
appointment of Physical Trained Teachers, would not
eclipse by Rule 16 of the Rules. In support of the
submission, reliance has been placed on a decision
of this Court in State of Punjab & Ors. Vs. Balbir
Singh & Ors. (1976) 3 SCC 242 which reads as
follows:
“…In our judgment, when there is no change
of sovereignty of a particular State and
it is merely an adjustment of territories
by the re-organisation of a particular
State, the administrative orders made by
the Government of the erstwhile State
continue to be in force and effective and
binding on the successor State unless and
until they are modified, changed or
12
repudiated by the governments of the
successor States.”
11. We have bestowed our consideration to the rival
submissions and find substance in the submission of
the learned Counsel for the appellants. The High
Court has found that the Government of Jharkhand,
till date, had not framed any policy regarding the
number of posts to be filled by Physical Trained
Candidates. How many posts of Primary School
Teachers be filled up by Physical Trained
candidates, in our opinion, is essentially a
question of policy for the State to decide. In
framing of the policy, various inputs are required
and it is neither desirable nor advisable for a
Court of law to direct or summarise the Government
to adopt a particular policy which it deems fit or
proper. It is well settled that the State
Government must have liberty and freedom in framing
policy. Further, it also cannot be denied that the
courts are ill-equipped to deal with competing
13
claims and conflicting interests. Often, the
Courts do not have satisfactory and effective means
to decide which alternative, out of the many
competing ones, is the best in the circumstances of
the case. One may contend that providing primary
education to the children is essential for the
development of the country. Whereas others argue
that physical training of the children in the
Primary School is must as that would make the
nation healthy. As in the present case, the
candidates trained in teaching claim that the posts
of Primary School Teachers be filled by them and
Physical Trained Candidates be considered for
Physical Trained Teachers only as they in absence
of any training in education not equipped to teach
in Primary Schools, whereas Physical Trained
Teachers contend that they should be considered for
appointment against both the posts. These,
competing claims, in our opinion, need to be
addressed by the policy makers. Further, we do not
14
have the statistics as regards to the number of
Primary Schools, the resources which the Government
can spend for providing Physical Trained Teachers
and their need. In such a situation, any direction
in matters of policy is uncalled for.
12. As observed earlier, the High Court itself has
found that there is no policy in regard to the
number of posts of teachers to be filled by the
Physical Trained Candidates in the State of
Jharkhand. The Act and the Rules governing
appointment in the State of Bihar do not govern
appointment in the State of Jharkhand and those
have specifically been repealed by Rule 16 of the
Rules. Further, the need of the two States may not
be identical and it was therefore necessary for the
State of Jharkhand to frame a policy in this
regard. In the face of it, we are of the opinion
that the High Court erred in relying on the policy
of the State of Bihar and directing for filling up
15
5% posts of the Primary School Teachers by Physical
Trained Candidates.
13. Now we revert to the decision of this Court in
the case of Comptroller and Auditor-General (supra)
relied on by the respondents. In the said case
while considering the power under Article 226 of
the Constitution this Court has held that a
mandamus can be issued where the Government or a
public authority has failed to exercise or wrongly
exercised the discretion conferred upon it by a
statute or a rule or a policy decision. It has
further been observed that in order to compel the
performance of a public duty the court may itself
pass an order/direction. Here, in the present
case, neither any statute or rule or the policy of
the State of Jharkhand provide for filling up
certain percentage of the posts of Primary School
Teachers by candidates trained in physical
education. Any direction to the State Government
to make appointment of Physical Trained Candidates
16
as Primary School Teachers do not flow from any of
the rules or the policy of the State and as such
the direction to make reservation in their favour
would tantamount to framing a policy and cannot be
said to be failure to exercise the discretion
vested in the State Government.
In the case of Balbir Singh (supra) relied on by
the respondents this Court has observed that after
the reorganization of the State the administrative
orders made by the Government of the erstwhile State
continue to be in force and binding on the successor
State but while observing so this Court has made it
clear that the same shall be binding “until they are
modified, changed or repudiated by the Government of
the successor State”. As stated earlier rule 16 of
the Rules had specifically repealed the Act and the
Rules governing appointment of Primary School
Teachers in the State of Bihar and it has been
observed that those shall not govern appointments in
the State of Jharkhand. In the face of it the
17
decision relied on in the case of Balibir Singh
(supra) is clearly distinguishable.
14. Respondents contend that amendment of Rule 2
(b) (iii) of the Rules by notification dated 6th of
March, 2003 shall not apply to the appointment in
question as the process of appointment commenced,
by inviting application prior to that date, on 24th
of August, 2002. It has been pointed out that the
rights and benefits already acquired under the
Rules prior to amendment cannot be taken away by
amendment of the Rules. It is emphasized that the
respondents acquired vested right of being
considered and their rights crystallized on the
date of publication of the advertisement. It has
further been submitted that since process of the
appointment commenced with advertisement which
being an integral part of appointment same would
come to an end on declaration of result and the
consequential appointment, hence the candidates are
required to be considered on the basis of the
18
eligibility criteria initially provided in the
Rules and the advertisement. In support of the
submission, reliance has been placed on a large
number of decisions of this Court; viz., A.A.
Calton v. Director of Education (1983) 3 SCC 33;
N.T. Devin Katti v. Karnataka PSC (1990) 3 SCC 157;
Gopal Krushna Rath v. M.A.A. Baig (1999) 1 SCC 544
and Maharaja Chintamani Saran Nath Sahdeo v. State
of Bihar (1999) 8 SCC 16.
15. We do not find any substance in the submission
of the Counsel of the respondents. It is
relevant here to state that at no point of time the
writ petitioners had challenged the amendment of
Rules which provided that the Physical Trained
Candidates shall be eligible only for the
appointment to the Physical Trained Teachers as
also corrigendum issued by the Commission confining
their eligibility for the Physical Trained Teachers
19
only. Their prayers in the writ petition were as
follows:
“It is, therefore, respectfully prayed that your Lordships may graciously be pleased to admit this case, issue notices to the Respondents and direct for the following reliefs :
[I] For issuance of an appropriate Writ in the nature of mandamus commanding upon the respondents to immediately and forthwith publish the result of these petitioners in view of the fact that in terms of Annexure-I, i.e. Advertisement dated 24.8.2002 all the Petitioners had applied for being appointed as a Primary School Teacher out of 9223 seats and 528 were shown vacant in the district of Jamtara but now simply because of the fact that they posses the qualification of physical trained teachers they have been kept it on the ground that their appointment shall only be made for the vacant post of physical trained teachers in the district of Giridih and Lohardaga in non-existence;
[II]For an appropriate writ in the nature of mandamus commanding upon the respondents particularly, respondent No. 2, to consider the case of these Petitioners for being appointed as Primary Teachers as against the total vacancies of 9233 for which advertisement issued and for which the Petitioners had applied not to consider by restricting their
20
candidature only in the four districts in the State of Jharkhand;
[III] For a further direction upon the respondents to immediately and forthwith appoint the Petitioners to the post of teachers of primary schools in view of the fact that the examinations had already been conducted on 27.5.2003 and both the Petitioners had prepared very well in the said examination; and
[IV]For any other appropriate writ(s)/order(s)/direction(s) that Your Lordships may deem fit and proper for doing conscionable justice to the Petitioner in the facts and circumstance of the present case.”
16. It is in the present appeals the writ
petitioners, for the first time, have attempted to
contend that amendment to Rule 2(b)(iii) made on 6th
March, 2003, which inter alia provided that
candidates having C.P.Ed or Dip.P.Ed shall be
eligible for Physical Trained Teachers only cannot
be applied retrospectively and their cases shall be
governed by the un-amended Rules. It has been
pointed out that the amendment has not been made
21
with retrospective effect. We are not inclined to
go into this question in the present appeal for the
reason that in the light of the amendment in the
Rules, Commission issued corrigendum and confined
the candidature of persons holding qualification of
C.P.Ed. or Dip. P.Ed., like the writ petitioners,
to the posts of Physical Trained Teachers only. It
conducted the examination on that basis and the
writ petitioners without making any challenge to
the same, participated in the selection process and
appeared in the examination without any murmur. It
is only after the result was published and their
candidature not considered against the entire
vacancy of the Primary School Teachers that they
have chosen to file the writ petition with the
relief aforesaid. Any direction to consider the
candidature of the writ petitioners against the
entire vacancy of Primary School Teachers would
unsettle settled matter and shall result into chain
reaction, affecting the appointment of a large
22
number of persons.
17. Further in the case of Rajasthan Public
Service Commission vs. Chanan Ram (1998) 4 SCC 202,
this Court held that Government has the right to
make selection in accordance with the changed rules
and make final recruitment. In the said case, it
has been observed as follows:
“17……..The candidates who had appeared
for the examination and passed the written
examination had only legitimate
expectation to be considered according to
the rules then in vogue. The amended
Rules had only prospective operation. The
Government was entitled to conduct
selection in accordance with the changed
rules and make final recruitment.
Obviously no candidate acquired any vested
right against the State. Therefore, the
State was entitled to withdraw the
notification by which it had previously
notified recruitment and to issue fresh
notification in that regard on the basis
of the amended Rules……..”
23
In view of the aforesaid, it is inexpedient to
consider the authorities relied on by the
respondents in any detail. We are of the opinion
that the High Court erred in directing the
appellants to fill-up 5% vacancies of Primary
School Teachers from Physical Trained Candidates.
However, we deem it expedient that in case the
appellants have not framed any policy, it should
frame a policy before it initiates its next process
of appointment.
18. In the result, we allow these appeals, set
aside the impugned judgment and dismiss the writ
petition without any order as to costs.
…..…….………………………………….J. ( G.S. SINGHVI )
……………..……………………………….J. CHANDRAMAULI KR. PRASAD)
24
NEW DELHI, JULY 4, 2011.
25
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 8118-21 OF 2010
STATE OF JHARKHAND & ORS. … APPELLANT
VERSUS
ASHOK KUMAR DANGI AND OTHERS … RESPONDENTS
Dear
Draft Judgment in the above matters is sent
herewith for perusal and kind consideration.
With regards,
{ Chandramauli Kr. Prasad } 13.6.2011
Hon’ble Mr. Justice G.S. Singhvi
26
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 8118-21 OF 2010
STATE OF JHARKHAND & ORS. … APPELLANT
VERSUS
ASHOK KUMAR DANGI AND OTHERS … RESPONDENTS
J U D G M E N T
TO BE PRONOUNCED
BY
HON’BLE CHANDRAMAULI KR. PRASAD, J.
ON
4.7.2011 (MONDAY)
27