Full Judgment Text
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
JUDGMENT
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.
1
Page 1
W.P.(C)NO. 59 of 2010
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
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.
JUDGMENT
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
2
Page 2
W.P.(C)NO. 59 of 2010
endeavour to traverse through these events in as simple a manner as
possible.
| the State<br>a part of | of Jhark<br>the State |
|---|
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
JUDGMENT
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
3
Page 3
W.P.(C)NO. 59 of 2010
1996 was preferred before this Court. In those proceedings an affidavit
dated 14.8.1997 was filed by the Deputy Superintendent of Education, Bihar
| ments ma | de in the s |
|---|
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.
JUDGMENT
(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.
4
Page 4
W.P.(C)NO. 59 of 2010
(v)The special selection which is to be conducted in
pursuance of these directions shall be completed by the
Commission by 31.1.1997.”
| n was to<br>amongst t | conduct a<br>he applica |
|---|
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
JUDGMENT
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
5
Page 5
W.P.(C)NO. 59 of 2010
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
| ese Writ P | etitions w |
|---|
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
JUDGMENT
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
6
Page 6
W.P.(C)NO. 59 of 2010
dated 18.1.2006 was filed by the CommissionercumSecretary, Education
Department, Government of Bihar alongwith an application for withdrawal
| were app | ointed as |
|---|
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
JUDGMENT
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
7
Page 7
W.P.(C)NO. 59 of 2010
| 2007.<br>e categoric | al statem |
|---|
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.
JUDGMENT
“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
8
Page 8
W.P.(C)NO. 59 of 2010
concerned authorities.”
9. Thereafter, the State of Bihar filled up the vacant post of Assistant
| undertaki | ng thereb |
|---|
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
JUDGMENT
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
9
Page 9
W.P.(C)NO. 59 of 2010
at this stage that respondent State is making appointment only from
amongst trained teachers. The problem, however, has arisen because fo the
| succinctly | they ar |
|---|
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
JUDGMENT
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
10
Page 10
W.P.(C)NO. 59 of 2010
| age limit<br>d teacher | be dilut<br>s are wa |
|---|
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
JUDGMENT
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.
11
Page 11
W.P.(C)NO. 59 of 2010
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
| ld in any | way alter |
|---|
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
JUDGMENT
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
12
Page 12
W.P.(C)NO. 59 of 2010
appear in the examination. Manifest intention of this Rule was to give
benefit to persons like the petitioners herein. Rule 8 thereof provided that
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
JUDGMENT
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
13
Page 13
W.P.(C)NO. 59 of 2010
against the public interest. For want of further challenge, this decision of the
Division Bench became final. The Legislature, thereupon, amended Rule
| amination | provided |
|---|
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:
JUDGMENT
(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
14
Page 14
W.P.(C)NO. 59 of 2010
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.
| he one c<br>chers from | hance ba<br>the cate |
|---|
(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
JUDGMENT
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
15
Page 15
W.P.(C)NO. 59 of 2010
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.
| itions we<br>9.2003. In | re heard<br>the said |
|---|
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
JUDGMENT
16
Page 16
W.P.(C)NO. 59 of 2010
| result, the<br>2003 are d | writ pet<br>ismissed. |
|---|
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
JUDGMENT
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.
17
Page 17
W.P.(C)NO. 59 of 2010
(ii) As per these Rules the appointment is to be made only
from amongst the trained teachers.
| appoint<br>following | ments stri<br>the due s |
|---|
(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.
JUDGMENT
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
18
Page 18
W.P.(C)NO. 59 of 2010
it has become final. Moreover, recruitments were made in the year 2003
wherein many such teachers participated. For last 10 years, the respondent
| teachers | are appoi |
|---|
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
JUDGMENT
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
19
Page 19
W.P.(C)NO. 59 of 2010
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.
| in these | writ peti |
|---|
pending I.As also stand dismissed.
….................................J.
[Surinder Singh Nijjar]
…................................J.
[A.K. Sikri]
New Delhi
February 25, 2014
JUDGMENT
20
Page 20
W.P.(C)NO. 59 of 2010
JUDGMENT
21
Page 21