TMI Blog1992 (12) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... ince 1970 on the basis of residence of the candidates in a particular district, the objective being to cater to the educational needs of the districts by providing men and resources from that district itself. Advertisements were issued in different districts, inviting applications from the residents of the district having requisite qualifications, for appointment as Assistant-teachers in the primary schools within the jurisdiction of District Education Superintendent. The minimum qualifications and other requirements were set out in the advertisement. Appointments were made from a panel prepared on the basis of qualifications and eligibility of the candidates who had applied for such appointments. The panels were prepared district-wise. The High Court of Patna in Anil Kumar v. Chief Secretary 1987 PLJR 846, declared the panels, prepared on the basis of residence in a particular district, as unconstitutional. The High Court, however, directed that the appointments already made from those panels should not be disturbed but the State was restrained from making any further appointments from the panels, prepared for the different districts. In the wake of the judgment in Anil Kumar' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties, namely, those who were not appointed in spite of being on the panel and some others filed various writ-petitions in the High Court of Patna which came to be disposed of by different judgments, against which civil appeals have have been filed by special leave in this court. Besides, Writ Petition No. 911/91 has been filed by unappointed trained primary school teachers of District Gopalganj directly to this Court under Article 32 of the Constitution. Taking note of the aforesaid background, we shall now consider the individual cases. Civil Appeal Nos. 3218/91, 3219/91, 3220/91. Appellants in all these cases were appointed on 16th of June 1988 or thereabout in District Siwan, from the panel prepared in 1985. There appointments were quashed by the High Court in writ-petition Birendra Kumar Shrivastava and Ors. v. The State of Bihar and Ors. C.W..I.C. 4843/88 decided on 5.11.1990, filed by some of the non-appointed candidates of the same district, Respondents 1 to 26 herein. The appellants have questioned that part of the judgment in CWJC 4843/88, which quashes their appointments through these appeals on special leave being granted. All the appellants are admittedly con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 3218-20/91 are accordingly allowed to the extent indicated above and the judgment of the High Court in CWJC 4843/88 is set aside to that limited extent only. CA Nos. 3216/1991, 2082/1991 and WP (C) No. 911/1991 CA Nos. 3216/1991 and 2082/1991 are directed against the judgment of the High Court of Patna in CWJC No. 6595/1989, decided on 12.11.1990. While not granting any relief to the writ petitioners, the High Court also quashed the appointments of teachers who stood appointed out of the panel on the ground that no appointment made from an 'unconstitutional panel' could be allowed to stand. The appellants in both these appeals belong to District Gopalganj. While CA No. 3216/1991 has been filed by the appellants whose names had been brought on the panel but who had not been appointed till the panel was cancelled, CA No. 2082/1991 has been filed by the appellants who stood appointed out of the panel but have been ousted as a result of the High Court judgment, even though they were not parties before the High Court. WP No. 911/1991 has been filed by the trained primary school teachers who remained un-appointed on account of the cancellation of the panel, vide GO dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght the quashing of the panel prepared in 1985 and that on the other hand, their case was for quashing of the Government Order dated 1.3.1989, whereby, process of appointment from the panel prepared in 1985 had been stayed and Government Order dated 2.7.1989 whereby the existing panel had been cancelled, while retaining the persons in service already appointed from the same panel. Mr. Tarkunde submitted that the appellants had prayed for issuance of Writ of Mandamus commanding the respondents to forthwith appoint the appellants as Assistant-teachers in primary and middle schools in the district from the panel prepared in 1985 since they had been brought on the panels and had thereby acquired the right to be appointed because of the existence of vacancies. Mr. Tarkunde submitted that the names of the appellants had been sent through the employment-exchange and they had been trained at the State expense and that once the training process had started, it should be taken to the logical conclusion culminating in the appointment of the appellants and, therefore, the circular issued by the State Government on 2.7.1989, cancelling the panel prepared as early as in 1985/1986, is illegal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e some right in those empanelled to seek appointments during the life of the panel. Mr. Sibal fairly conceded that the appointments, made after the judgment in Anil Kumar's case and till Government Order dated 2.7.1989 was issued, were against the law as laid down in Anil Kumar's case, but went on to say that those appointments were not to be disturbed because some equities had come in favour of those 'wrongly' appointed candidates and asserted that non-interference with their appointments cannot form the basis of an argument based on Article 14 as the appointed and non-appointed candidates formed two distinct classes. Mr. Sibal went on to urge that the empanelment was not made by any process of selection and having been sent for training, did not create any vested right to appointment in favour of the trainees as the training was designed to confer only eligibility to the empanelists for consideration. In Anil Kumar's case (supra) where the validity of the advertisement, dated 7.5.1985, issued by the District Superintendent of Education, Hazaribagh, inviting applications for preparation of a panel of candidates for appointment to the posts of Assistant-teach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 14 of the Constitution of India. Let us first consider the nature of the panel and the rights, if any, which could flow from it. On 3.4.1964, vide letter No. PL/P/1-06/63-1726, the Secretary to the Government of Bihar directed all District Superintendents that no untrained person should henceforth be appointed as a teacher in any primary school . According to the programme, stipulated for training, a person after having acquired the qualification of matriculation/intermediate/graduation was required to get enrolled in the Primary Teachers' Training College in any of the districts in Bihar. The training period was of two academic years. The training programme was followed by a written as well as viva voce examination and the examination was held by Bihar State Primary Education Board for all the training colleges throughout the State of Bihar. The trainees, passing the examination, were awarded the certificate of BTC. Persons having qualification of B.Ed, were treated as equivalent to persons who had undergone and passed the aforesaid training and examination. The Government, of Bihar issued directions based on a policy statement that in the primary schools of any di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;, the State Government was not entitled to pick out only 7 out of them for appointment. The High Court agreeing with the petitioners issued a Mandamus to the State of Haryana to select the candidates so that their names could be brought on the High Court register for appointment as Subordinate Judges in the State of Haryana. The State of Haryana challenged the judgment in this Court. Allowing the appeal, this Court inter alia observed: ...that the mere entry in this list of the name of candidate does not give him the right to be appointed. The advertisement that there are 15 vacancies to be filled does not also give him a right to be appointed. It may happen that the Government for financial or other administrative reasons may not fill up any vacancies. In such a case the candidates, even the first in the list, will not have a right to be appointed. The list is merely to help the State Government in making the appointments showing which candidates have the minimum qualifications under the Rules. The stage for selection for appointment comes thereafter,... Thus, it was held that even the existence of vacancies does not confer a legal right on a candidate to be selected for ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andidate acquires any indefeasible right: by merely being brought on to the select-list, even where a vacancy exists. That judgment, which was based on the peculiar facts of the case, cannot, thus advance the case of the appellants in any way. That apart, both the above noted judgments came up for consideration before a Constitution Bench of this Court in Shankarsan Dash v. Union of India (1992)IILLJ18SC , where one of us (Sharma J.) (as His Lordship the Hon'ble Chief Justice then was) speaking for the Bench dealt extensively with the rights of candidates included in a merit list to an appointment. The appellant in that, case was selected In the combined Civil Service Examination held by the Union Public Service Commission for appointments to several services including the Indian Police Service (hereinafter referred to as the IPS) and the Police Services Group 'B'. The examination was conducted in October 1977 and the result was announced in May 1978. A combined merit list for the IPS and the Police Services Group 'B' was announced which included the name of the appellant. Out of the total number of 70 vacancies in the IPS, announced to be filled up, 54 wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab. Thus, the Constitution Bench while referring with approval the judgment in Subhash Chander Marwaha's case (supra) in unequivocal terms reiterated the settled law that the existence of vacancies does not confer a legal right on a selected candidate to be appointed unless the relevant Rules provide specifically to the contrary. The State, of course, must all through act bona fide and not arbitrarily both in making appointments and in not filling the existing vacancies. Mr. Tarkunde and Mr. Gupta appearing for the petitioners in W.P. No. 911/1991, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar future and for a fixed time and prepared as a result of some selection process. As is apparent, the names of some of the teachers in the panel have existed for more than 16 years. A panel of this nature, in our opinion, cannot be treated as conferring any vested or indefeasible right to the teachers to be appointed as laid down by the Constitution Bench in Shankarsan Dash's case (supra). The mere fact that the candidates who had been brought on the panel had been sent for training at the Government expense, would also not imply that any indefeasible right had been created in their favour for appointment after they had completed their training and their names were entered in the panel because the training was merely intended to confer eligibility on the candidates for being brought on the list. In the facts and circumstances of the case, we, therefore, hold that the panel prepared in the present case was only in the nature of an eligibility list of qualified trained teachers arranged according to their merit in a chronological order. It had been prepared without any process of selection whatsoever as none who was a trained qualified teacher was excluded from being broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one class and the distinction between those appointed and those waiting appointments was artificial, irrational and not based on any sound principle. Mr. Sibal, learned senior advocate appearing for the State of Bihar did not dispute that as a result of the judgment in Anil Kumar's case, the entire panel had been rendered unconstitutional but submitted that there is a clear distinction between those, who out of the panel had been appointed and those who had not been appointed. It was urged that while those who had been appointed, could be said to have acquired some vested right to continue in service, no right whatsoever was created in the non-appointees by merely being brought on the list. It was submitted that since the panel was nothing but a list of candidates found eligible and qualified, after training and had not been framed under any statutory rules but prepared under executive instructions, as a result of a policy decision, it could have been scrapped even without the judgment in Anil Kumar's case, if the Government acting bona fide and fairly, found justification to change the policy decision and not to make appointments district-wise. He submitted that tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess whatsoever on the part of the respondents. It indeed is no body's case that the decision taken by the State was actuated by any motive or the scrapping of the panel after 2.7.1989 was mala fide. Even otherwise, when the State decided to respect the equities which have arisen in favour of the teachers already appointed and serving, no fault can be found with it. Equity reforms and moderates the rigour and hardness of the law and the State acted fairly and bona fide to respect and balance the equities in favour of the appointed candidates. We must, therefore, reject the charge of arbitrariness in view of the peculiar facts of this case more particularly since we have already found that the persons on the panel had not acquired any indefeasible right to appointment merely by being placed on the panel. It also deserves to be noted here that the appellants had not questioned, as it is, the validity of appointment of the teachers, already appointed, but have on the other hand sought treatment similar to the one of the appointed teachers. The decision to save the appointments of the teachers already appointed, who form a distinct and separate class, is therefore, fair and reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he effect that the teachers who had been appointed, prior to 2.7.1989, (before or after the judgment in Anil Kumar's case) and were continuing in service, as a result of stay orders issued by this Court or the High Court, would not be disturbed notwithstanding the technicalities involved. The concession of Mr. Sibal, which appears to be based not only on the ground that these appellants had been condemned unheard but also because of the fact that equities had arisen in favour of that class of teachers and is in accord with Government Circular of 2.7.1989, has been recorded. In view of the concession by the State, Civil Appeal No. 2082/91 is allowed and the judgment of the High Court in CWJC 6595/89 decided on 12.11.1990 to that extent is set aside. The appellants shall continue in service as teachers and shall be treated to have so continued throughout. Ca No. 425411991 This appeal has been filed by 33 teachers belonging to Nalanda District. Pursuant to an advertisement, issued in October 1976 by the District Superintendent of Education Nalanda, inviting applications in the prescribed form from eligible candidates of the District, the appellants herein who posses the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Keeping in view the facts and circumstances of the case, it is hereby directed that when the advertisement comes out and the petitioners apply in response to the same, the opposite parties' in accordance with the commitment which has been given under the aforesaid letter of the Director of Primary Education will, if need be, condone the age bar and consider the case on priority basis of all these petitioners as also of other similarly situated persons whose names have figured on similar panels and whose appointments could not be made for similar reasons. The fact that some candidates figuring below' the appellants in the panel had been appointed while the appellants were left out is not denied. It has, however, been urged by Mr. Sibal that the non-appointment of the appellants was not on account of any arbitrariness or caprice on the part of the respondent-State but on account of the delay in the verification of certain facts concerning those candidates and the desire of the State not to keep the vacancies unfilled. Mr. Verma, learned Counsel for the appellants, however submitted that the appellants were not responsible for the delay in the verification of facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental Rules because matric trained teachers does not fall in class of science teachers. Therefore, for the purposes of making appointment in pay scale of matric trained, having prepared seniority wise combined waking list of arts science subject, appointment should be made seniority wise from the said waiting list. Prior to 1981 also there was no departmental provision to make separate waiting lists of the applicants of the matric arts and science and one combined waiting list was prepared. Appointment of matric science applicants had to be made on the minimum 25% posts. Having prepared the waiting list on the basis of marks obtained, there was no provision for making appointment on the basis of seniority. In this regard kindly see G.O. No. 4557 dated 15.12.1976. According to the learned Counsel, the above letter was issued with a direction to make appointments on the basis of the combined seniority list of the arts and science teachers and since in the District of Siwan two panels had been prepared, one for the science teachers and the other for the art teachers, the cases of appellant teachers had been over-looked as appointments had not been made from the combined waiting li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first time. Taking note of the concession made by the State in Civil Appeal No. 2484/91 and Civil Appeal No. 4254/91 as also the order in C.A. Nos. 3218-20/91, in our opinion it is a fit case which should be remitted to the High Court for the limited purpose to render a judgment on the question of seniority of the appellants vis-a-vis those who stand appointed and whose appointments have not been disturbed in view of the concession made in the above noted appeals in this Court. Should the High Court find, after hearing both sides, that any or all of the appellants in this case are senior to the ones who had been appointed and are continuing in service, as a result of the orders made in the aforesaid appeals and are otherwise qualified in all respects according to the scheme existing prior to 1991 Rules, it shall direct the State Government to appoint such teachers, in relaxation of the age bar wherever applicable. Civil Appeal No. 3217/91 is therefore allowed and the judgment of the High Court is set aside and the matter is remitted to the High Court for decision on the question of seniority and grant of relief in the terms indicated hereinabove. As a result of the above dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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