State Of Jharkhand & Ors vs Ashok Kumar Dangi & Ors

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.

3

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 :

4

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

5

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

6

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'

8

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

9

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.

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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........"

24

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)

25

NEW DELHI, JULY 4, 2011.

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

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

27

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)