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W.P.(C)NO. 59 of 2010

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 59 OF 2010

Nesar Ahmed & Anr. …........ Petitioner(s)

Versus

State of Jharkhand & Ors. ….........Respondent(s)

With

W.P. (Civil) No. 173 of 2010; W.P. (Civil) No. 39 of 2011

J U D G M E N T

A.K. SIKRI, J.

1.All the petitioners, in these three Writ Petitions filed under Article 32 of

the Constitution of India, are similarly situated. After getting the requisite

training they  have  acquired the  nomenclature  of 'trained teachers'.  They

seek an appointments in the schools run by the Respondent­State of

Jharkhand as assistant teachers. Some IAs filed by several similarly situated

teachers for impleadment and seeking the same relief. It is for this reason

that these petitions were conjointly heard.

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2.The  exact  prayer, contained in  Writ  Petition (Civil)  No.  173  of  2010,

would give a glimpse of the nature of the case set up by these petitioners

and the precise relief which these petitioners pray for. This prayer reads as

under:

“It is, therefore, respectfully prayed that Your Lordships may graciously be pleased to:

i)Issue a writ, order or direction directing the respondents more particularly Respondent Nos. 1 to 3 to appoint the petitioners and similarly circumstanced Trained Teachers in order of seniority.

ii)Issue a writ, order or direction directing the respondents and more particularly the State of Jharkhand (Respondent Nos. 1 to 3) to protect fundamental right of Primary Education to the children of State of Jharkhand by appointing the Trained Teachers available in the Jharkhand State on the sanctioned vacant posts of Assistant Teachers.

iii)Pass such other or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interests of justice.  

 The background  in which these petitions  have come to be  filed  is

somewhat detailed one with chequered history, riddled with previous

litigation benefit whereof the petitioners are seeking. However, we would

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endeavour to traverse through these events in as simple a  manner as

possible.

3. As  is  well  known, the State of  Jharkhand was created in  the year

2000. Before that it was a part of the State of Bihar. All these petitioners

belong to undivided Bihar vintage. They claim that they are qualified and

trained teachers who acquired requisite qualification and underwent

necessary training and thus became eligible to be considered for

appointment as primary teachers in the schools run by the State Government

as per the provisions of the Extant Rules on the subject. However, even when

the Government was legally bound to appoint only the trained teachers, on

the basis of  an advertisement issued on 6.10.1991 by the Government of

Bihar for filling up of 25,000 posts of Assistant Teachers, the State recruited

17,281 untrained  teachers  out  of total  appointments  of  19,272  Assistant

Teachers made in the said recruitment process. This selection was

challenged by some persons  by filing writ  petition in the  High  Court  of

Judicature at Patna which was decided on 26.9.1996. The High Court did

not quash the appointments already made, though at the same time it held

that the  State  would  not force  a  person to confine  his application to  a

particular district.  Against this order, Special Leave Petition No. 23187 of

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1996  was  preferred  before this  Court. In those  proceedings an affidavit

dated 14.8.1997 was filed by the Deputy Superintendent of Education, Bihar

Government agreeing to appoint trained teacher against existing vacancies.

Having regard to the averments made in the said affidavit, SLP was disposed

of vide order dated 5.9.1997. This case is known as Ram Vinay Kumar & Ors.

v. State of Bihar and Ors. (1998) 9 SCC 227. The exact directions regarding

appointment to the  post  of  Assistant  Teachers  which  were  given by this

Court are the following:  

“(i) The Commission shall conduct a special selection for the purpose of appointment of these unfilled posts from amongst applicants who had submitted their applications.  

(ii) The selection shall be confined to applicants possessing teacher's training/ qualification obtained from government/ private teacher's training institutions.  

(iii) The selection shall  be made by holding a preliminary test and a written examination of the candidates who qualify in the preliminary test.  

(iv)In case the number of persons found suitable for appointment in such special selection exceeds the number of posts for which recruitment was to be made on the basis of advertisement dated 6.10.1991, the surplus number of candidates who have been found suitable for the appointment would be justified against posts to be filled on the basis of subsequent selection.

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(v)The special selection which is to be conducted in pursuance of these directions shall be completed by the Commission by 31.1.1997.”

4.In nut­shell, the direction was to conduct a special selection for filling up

of the unfilled posts from amongst the applicants who had already submitted

their  applications  pursuant to the  advertisement issued and  it  was  to  be

confined to those applicants who were possessing teachers training/

qualification obtained from Government/ private teachers' training

institution i.e. from amongst the trained teachers. As per the petitioners as

on 30.9.1993 there were about 45,000 vacancies in as much as against total

post of 2,09,981, number of teachers working were 1,54,751. Furthermore,

in next three years about 18,431 teachers were expected to retire. Therefore,

projected vacancies were approximately 63,000. On the creation of the State

of Jharkhand in terms of Bihar  Reorganisation Act, 2000 proportionate

vacancies i.e. one­third came to the share of State of Jharkhand which would

mean that 21,000 vacancies were available on the date on which this State

was created.

5. It is stated by the petitioners that for almost 7 years from the date of

directions given in Ram Vinay Kumar's Case, no action was taken. It forced

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certain sections of trained teachers to approach the Patna High Court by way

of several Writ Petitions. All these Writ Petitions were heard together with

leading case known as Nand Kishore Ojha & Ors. v.  State of Bihar and Ors.

(CWJC 13246/2003). These Writ Petitions were allowed by the Patna High

Court vide judgment dated 1.7.2004. In the said judgment it was  inter alia

noted that there were number of unfilled vacancies because of which

primary schools were lying empty. The High Court deprecated the inaction

on the part of the Government of Bihar in not implementing the judgment of

this Court in Ram Vinay Kumar's Case, on one pretext or the other, thereby

creating a human rights problem in denying a young generation its right to

basic education. According to the High Court, the solution was simple viz. to

follow the judgment of this Court in Ram Vinay Kumar's case from where the

circumstances has been left out. The High Court also calculated the number

of existing vacancies in the manner already pointed out above.  On this basis

direction was given to carry out the selection process as per the mandate of

this Court contained in the case of Ram Vinay Kumar.  

6. The State of Bihar challenged the aforesaid judgment of High Court

by filing Special Leave Petitions in this Court. However, thereafter affidavit

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dated 18.1.2006 was filed by the Commissioner­cum­Secretary,  Education

Department, Government of Bihar alongwith an application for withdrawal

of those Special Leave Petitions. In the affidavit an undertaking was given

that only trained teachers were appointed as Assistant teachers in the State

of Bihar. Further owing to the reason that the number of available teachers

in the State of Bihar were less than the available sanctioned post and no test

for selection  was required. On the basis of this affidavit, orders dated

23.1.2006 were passed permitting the Government to withdraw the Special

Leave Petitions.

7. When the undertaking given in the said affidavit was not

implemented immediately thereafter, some persons filed Contempt Petition

No. 207 of 2006 in this  Court  which  was  disposed of by orders  dated

19.3.2007 with a direction to the State of Bihar to implement its

undertaking.

Operative part of the said order reads as under:

“In paragraph 17 of the said affidavit in reply dated 7.2.2007, it is stated that priority has been given to trained teachers in appointment and only if trained teachers are not available in sufficient numbers, the case of untrained teachers are considered by the concerned by the Panchayati Raj Institute (PRI) to achieve the constitutional goal of free and

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compulsory education for children from age 6­14, and in this regard the State of Bihar and other answering respondents are complying with the orders of the High Court and also of this Court. A rejoinder has also been filed by the petitioner disputing the statements made by the State of Bihar in the affidavit dated 7.2.2007.

 In view of the categorical statement now made that the priority will be given to the trained teachers in appointment and also the clarification made in paragraphs 19 to 222 of aforesaid affidavit dated 7.2.2007,  we direct the State of Bihar to implement the  undertaking  given  by the  State  of Bihar earlier and also now  by the present affidavit dated 7.2.2007 in letter and spirit by appointing the trained teachers on priority basis.

 The Contempt Petition is disposed of accordingly.”

8. Still  this undertaking was not complied with which led to filing of

another  Contempt  Petition  No.  297  of  2007  titled  Nand Kishore  Ojha  v.

Anjani  Kumar  Singh  in  which following interim orders  dated 9.12.2009

were passed.  

“Accordingly, without issuing a Rule of Contempt, we direct that the 34,540 vacancies shown as available in the advertisement published in December, 2003, be filled up from amongst the trained teachers who are available, in order of seniority. As indicated above, this is to be done on a one­time basis  and must  not  be taken  as the regular  practice to  be followed.

Let the Contempt Petition be adjourned for a further period of six weeks to enable the State Government to implement this order and to submit a report on the next date as to the result of the discussions held between the petitioner and the

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concerned authorities.”

9. Thereafter, the State of Bihar filled up the vacant post of Assistant

Teachers in terms of its undertaking thereby recruiting from amongst the

trained teachers  who had applied  earlier,  pursuant to the  advertisement

given in the year 1991. Many had become over aged in the meantime, and

age relaxation was given in their cases.

10.  What is narrated above is the history of litigation in the State of Bihar.

In so far as State of Jharkhand is concerned (respondent herein), as already

pointed out above, approximately 21,000 vacant post  were transferred to

this State. The respondent advertised these vacancies in the year 2002 by

giving relaxation in age by 5 years only. Because of this reason many trained

teachers, in which category of the petitioners include, could not be

appointed as Assistant Teachers, being overage. The petitioners, in this

backdrop, contend that they are entitled to the benefit of Ram Vinay Kumar's

judgment of this Court rendered much before the creation of the Jharkhand

State and applied to the erstwhile unified Bihar and the judgment be

implemented in their case as  well as it has happened qua the trained

teachers in State of Bihar in the manner explained above. We may point out

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at this stage that respondent State is making appointment only from

amongst trained teachers. The problem, however, has arisen because fo the

reason that these petitioners have become over aged and wanted total age

relaxation. To put it, succinctly they are claiming parity with their

counterparts in the State of Bihar and submitting that when those teachers

were appointed by giving age relaxation, there is no reason to deprive the

petitioners from the same treatment which would, otherwise, be

discriminatory and violative of Article 14 of the Constitution.  

11. The petitioners have pointed out that the respondent­State had set up

a Committee in the year 2001 for implementation of the judgment and even

the said  Committee in its report  dated  31.5.2001  recommended  that  all

vacancies in the State of Jharkhand be filled with trained teachers within

two months.  The operative portion of the said  recommendation reads as

under:

“Since the Government at its own level have imparted teacher training to the thousands and the trained teachers were in the hope  for the  two decades that they will  be appointed as  a teacher. It is totally unjustified and in­human that the Government appoints untrained persons and thereby ruined the future of trained teachers. Therefore, the committee here by recommends that all the vacancies in the State of Jharkhand be fulfill with trained teachers within 2 months. If

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number of trained teachers exceeds the number of vacancies, then the vacancies be fulfilled on the basis of seniority of the trained teachers i.e. in the order of their getting training. Thereafter, the trained teachers remained unemployed be appointed against subsequent vacancies. In the appointment process the rule of age limit be diluted because for the two decades the trained  teachers  are  waiting appointments  and due to this reason they crossed their age  limit  without any fault on their part. The other untrained persons may be employed only after accommodating all trained teachers. The Government should take policy decision for the future if it has to appoint trained teachers to impart training to the persons after getting them selected by the Commission. However, the committee is of the view that appointment of trained teachers would not burden state treasury, whereas imparting training to the persons after  getting them selected on salary cannot said to  be a reasonable course.  Hon'ble  Supreme  Court of India and expert committee has also directed to appoint the trained teachers.”

12.The aforesaid arguments of the petitioner may appear to be attractive in

first blush. After all, judgment in Ram Vinay Kumar's case was rendered by

this Court for unified Bihar. This judgment, after the bifurcation of the State

into two, has been implemented in the State of Bihar irrespective of the fact

that those trained teachers in State of Bihar had become overage, they have

been  given the  appointments.  Therefore, the  same  treatment  could  have

been accorded to the petitioners as well who are similarly situated and by

quirk of fate became the residents/ domiciles of State of Jharkhand.

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However, these observations would be valid when we see only one side of

the coin. It is equally necessary to take notice of the developments which

happened in State of Jharkhand, after its creation. In order to find out as to

whether those events would in any way alter the situation thereby making it

to be a different case.

13. Mr.  Amarendra  Sharan, learned  Senior  Counsel appearing for the

State submitted that after  the creation of Respondent­State, it framed its

own rules known as Jharkhand Primary School Appointment Rules, 2002 (in

short 'Rules 2002). These Rules, inter alia, prescribed teachers eligibility test

and the passing of this test is a principle condition for appointment. Rule 4

of the said Rules provided a lower and upper age limit for appearing in the

examination to be held as part of the selection process of teachers. But a

concession was given by the said Rule to the effect that there will be no such

limitation on the upper age for the first examination to be held. This was on

the  basis that for  a  number  of  years,  no  examination  had been  held  or

selection made and all those who had acquired Teachers' Training should

have an opportunity to appear in the first examination. It was intended to be

a one time concession. It meant that even a person who would attain the age

of superannuation within six months of being selected or appointed, could

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appear in the examination.  Manifest intention of this  Rule  was to give

benefit to persons like the petitioners herein. Rule 8 thereof provided that

the knowledge level for the written examination for selection would be the

middle level examination.

14. Inspite of this step taken by the State, the legal events were destined

to take difficult course altogether. It so happened that the non­fixation of an

upper  age  limit for  candidates  and  fixing  the  knowledge at  middle level

academic standard was challenged before the High Court in W.P. (C) No.

5170 of 2002 and W.P. (C) No. 6135 of 2002. These Writ Petitions were

allowed and the High Court struck down the unbridled concessions given

regarding the upper age limit and the fixation of  middle level as the

standard for the written test to be conducted. The High Court declared these

provisions void on the ground the non­prescription of an upper age limit and

the fixation of middle level examination knowledge for the candidates are

arbitrary, suffer from non­application of mind and not based on any

intelligible differentia having nexus with the object sought to be achieved.

The High Court thus found both those provisions violative of Article 14 of

the Constitution of India, though the said Article was not specifically

referred to.  The court also  declared that the said two stipulations  were

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against the public interest. For want of further challenge, this decision of the

Division  Bench  became final.  The  Legislature, thereupon, amended  Rule

4(d) and Rule 8(d). The amended Rules provided a lower and an upper age

limit  and for the first  examination provided for relaxation of age by five

years.  By Rule 8(d), it  enhanced the standard of examination of Primary

Teachers  Training  Examination. In  August  2002, first advertisement  was

issued for making recruitments followed by supplementary/ second

advertisement dated 21.4.2003 on the basis of these amend Rules. Even the

amend  Rules 4(d)  &  8(d)  were challenged in numerous  Writ Petitions,

which came to be filed in the Jharkhand High Court with lead matter in W.P.

(C) No. 2566 of 2003 titled Jharkhand Rajye Berojgar Prathmik Prashikshit

Sikshak Sangh & Ors. v. State of Jharkhand & Ors. The reliefs sought for in

that Writ Petition were the following:

(i) For quashing the Rule 4(d) and 8(d) of the Jharkhand Primary School  Appointment  Rules  2002 and  the  amended Rules of 2003 as notified through notification dated 1.7.2002 and the notification through 6.3.2003 (as contained in Annexure­1 & 2 of the writ application)

(ii) For directing the respondents to hold selection of primary schools teacher by taking examination/ selection test of matriculation and its equivalent standard.

(iii) For accommodation of  all the  trained teachers  by  the

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respondents up to a reasonable age by giving them opportunity of employment and their appointment as Primary School Teachers to be appointed by the State Government by relaxing the age of a reasonable extent.

(iv) For lifting the one chance bar for appointment of primary school teachers from the category of trained teacher candidates.

(v) For any other appropriate relief (s) to which the petitioners are found entitled in law and equity.”

15. In essence, the petitioners challenged amended Rule 4(d) and Rule

8(d) of the Rules, 2002 claiming that these provisions were not only

unconstitutional but in violation of the directions given in the earlier

judgment. It was specifically pleaded that there could not have been upper

age limit for appointment of trained teacher. Though the applications were

invited from only trained teachers but age relaxation upto 5 years only was

given. This was challenged as arbitrary, malafide and against public interest.

In this Writ Petition interim orders dated 13.5.2003 were passed by the High

Court  allowing  the  petitioners to  appear  on  the  examination,  which  was

scheduled to be held on 27.5.2003.

16. Interestingly, one PIL was also filed in the form of W.P.   (PIL) No.

2769 of 2003 wherein the petitioner had claimed that no concession was

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required to be given to these persons, in terms of age relaxation or otherwise

and the recruitment be made strictly in accordance with the extant Rules.

17. All these  Writ Petitions  were heard together and disposed of by

passing orders dated 29.9.2003. In the said judgment various other issues

regarding composition of State Public Service Commission were touched and

considered as well. We are eschewing discussion on those aspects as that is

not relevant for our purpose. In so far as the Writ Petitions which were filed

certain trained teachers and their associations (to which category the present

petitioners fall and  most of these petitioners  were party to those  Writ

Petitions) they were dismissed by the High Court with the following

observations:

“In one of the writ petitions, this court issued a direction that the three  writ petitioners in that  writ petition, would be permitted provisionally to take the examination or to writ the examination even if they did not fulfil the age requirement or age qualification, subject to the result of the writ petition. It appears that some unruly  elements  on  the  strength of that order forced some of the officers or the authorities to issue them hall tickets to appear in the examination even though they were over aged and did not qualify as per the amended rule issued pursuant to the  earlier  decision  of the  Division Bench.  It is  made clear that those who did not possess the requisite age qualification as per the amended Rule 4(d) of the Rules, even if they have written the examinations, would not be considered for recommendation, selection or

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appointment by the Commission or by the Government appearance of those who did not possess the requisite qualifications or the age qualifi9cation, will be ignored by all those concerned with the process of selection and appointment.

 In the result, the writ  petitions,  other than W.P. (PIL) No. 2769 of 2003 are dismissed. W.P. (PIL) No. 2769 of 2003 is partly allowed with the directions to the State of State of Jharkhand and the State Public Service Commission not to proceed with the recommendatory process until the full State Public Service  Commission as envisaged by the Jharkhand Public Service Commission (Conditions of Service) Regulations, 2000 comes into existence. It is made clear that the steps so far taken and the examinations conducted will be treated as valid. There will be no order as to costs.”

18. The High Court thus refused to extend the benefit of total age

relaxation but limited it upto 5 years, as envisaged in the Rule. No further

challenge was laid to that judgment allowing it to attain finality.

Appointments were made in accordance with the Rules,  2002. Thereafter

another advertisement  was issued in the year 2008 further and further

appointments were made on the basis thereof.

19. From the above, the position which prevails in the State of Jharkhand,

can be summarised as below:

(i) After the constitution of  the formation of the State of Jharkhand it has framed its own Rules for recruitment to the post of Assistant/ primary teachers.

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(ii) As per these Rules the appointment is to be made only from amongst the trained teachers.

(iii) In the recruitment processes undertaken up to now, the state has made the appointments strictly in accordance with the Rules and after following the due selection procedure from amongst the trained teachers.

(iv) In the Rules which were framed initially, one time age relaxation was provided with the provision that there would not be any upper age limit. However, that Rule was challenged before the High Court and High Court struck down the said Rule as un­constitutional. Complying with the directions contained in the said judgment Rules were amended and the amended Rules provide for relaxation upto 5 years.

(v) When Selection process commenced  in the  year  2002 ­2003 by  issuing advertisement these very teachers  (namely the petitioners) through their associations etc. filed writ petitions claiming complete age relaxation instead of relaxation only upto 5 years of age. However, these  writ petitions  were  dismissed  by the  High  Court vide judgment dated 29.9.2003. This judgment has also attained finality.

20. In this scenario it would be difficult to give any relief to the

petitioners  herein. In fact,  what the  petitioners  are  demanding now was

sought to be given  by the  State in the form of  un­amended  Rule  4  by

providing one time relaxation in upper age limit. However, that Rule has

been struck down as un­constitutional. Giving the relief claimed in these writ

petitions would amount to negating the judgment of the High Court though

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it  has become final.  Moreover,  recruitments were made in the year 2003

wherein many such teachers participated. For last 10 years, the respondent

is making the appointments of trained teachers and it is not the case of the

petitioners that untrained teachers are appointed. Appointment are made by

following the Recruitment Rules scrupulously. The Petitioners in these writ

petition  did  not even  disclose the facts  pertaining to the two  rounds  of

litigation in the  High Court culminating into decision dated 29.9.2003

(reported as 2003(1) JLJR 322). Only after the second recruitment process

which was held in year 2008, present writ petitions were filed in the year

2010 or thereafter.  

21. Having regard to the above it would not be permissible to the

petitioners to compare their case with their counterparts in Bihar. As far as

the counterparts in the State  of  Bihar  are  concerned  they had  filed writ

petitions well in time i.e. way back in the year 2003 in Patna High Court

wherein those persons succeeded. The Patna High Court allowed those writ

petitions vide judgment dated 1.7.2004 directing the State of Bihar to

implement the judgment in Ram Vinay Kumar's Case. In such circumstances

this Court would not be inclined to grant any relief to the petitioners   in

these petitions filed under Article 32 of the Constitution, more so when it is

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found that the respondent/ State of Jharkhand has taken steps in conformity

with the statutory recruitment rules framed under proviso to Article 309 of

the Constitution.  

22. Finding  no  merits in these  writ  petitions, same  are  dismissed.  All

pending I.As also stand dismissed.  

….................................J. [Surinder Singh Nijjar]

…................................J. [A.K. Sikri]

New Delhi February 25, 2014

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