Rajasthan High Court - Jaipur
Satish Kumar vs State (Panchayati Raj) Ors on 4 April, 2018
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 18442/2017
Satish Kumar S/o Shri Dalip Singh, Aged About 25 Years, R/o
Village Ramsar, Post Pacheri Chhoti, Tehsil Buhana, District
Jhunjhunu (Raj.)
----Petitioner
Versus
1. The State Of Rajasthan Through Its Principal Secretary,
Panchayati Raj Department, Govt. Of Rajasthan,
Secretariat, Jaipur
2. The Director, Elementary Education, Bikaner (Rajasthan)
3. Sushila Kumari Yadav D/o Shri Mukhtyar Singh, R/o P.no.
5, Payal Vihar Colony, Jaipur 302030 (Raj.)
4. Satpal S/o Shri Mahander Kumar, R/o Village Post
Ramsara Narayan, Distt. Hanumangarh (Raj.)
----Respondents
For Petitioner(s) : Mr. Mahendra Shah, Mr. Vigyan Shah,
Mr. Kamlesh Sharma
For Respondent(s) : Mr. S. K. Gupta, AAG, Mr. Banwari Lal
Sharma, Mr. N. N. Sharma
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Order
04/04/2018
REPORTABLE
Briefly, the essential skeletal materials facts necessary for
appreciation of the controversy raised are, that an advertisement
number 01/2016, was issued for appointment to the post of
Teacher Grade-III on 6th July, 2016, for Rajasthan Primary and
Upper Primary School Teachers Direct Recruitment Examination,
2016, for Non-TSP area to fill up 6299 posts for Teacher Grade-III
(Level-I) (Class I to V) and 6045 posts of Teacher Grade-III
(Level-II) (Classes VI to VIII), which was subjected to challenge.
(2 of 36) [CW-18442/2017]
The controversy was eventually resolved by the Division Bench of
this Court vide adjudication dated 27 th April, 2017, in a batch of
intra-court appeals lead case being D. B. Special Appeal Writ No.
1464/2016 (Sher Singh & Ors. Vs. Dinesh Singh & Ors.); leading
to amendment vide notification dated 29th August, 2017, in the
Rajasthan Panchayati Raj Rules (Forth Amendment) Rules, 2017 of
Rule 266(3) of Rajasthan Panchayati Raj Rules, 1996 (for short
'Rules of 1996'), which provided for qualifications for post of
Teacher Grade-III (Level-II) (Class VI to VII), of 'Mathematics' and
'Science', separately.
2. The State-respondents issued advertisement number
01/2017, inviting applications from eligible candidates. The
minimum educational qualifications as contemplated under Clause
6.1, of the advertisement for Teacher Grade-III (Level-II) for Class
VI to VII, specifically contemplated under Clause 6.1 B (ii) and (iii)
that for the post of teacher of Mathematics, the candidates must
have passed graduation or equivalent examination of mathematics
as an optional subject. Similarly, for the post of teacher of
Science, the candidate must have passed graduation or equivalent
examination with at least one subject as an optional subject from
Chemistry, Physics, Botany, Zoology, Micro-Biology, Bio-technology
and Bio-chemistry.
3. Referring to criteria for selection as contemplated under the
advertisement under Clause 10(2) and 11; learned counsel for the
petitioner would submit that the State-respondents have not
drawn the merit list of the participating candidates in accordance
with amendment made vide notification dated 29 th August, 2017.
(3 of 36) [CW-18442/2017]
It is further pointed out that the State-respondents have
proceeded contrary to the minimum qualifications as contemplated
by Section 23(1) of The Right of Children to Free and Compulsory
Education Act, 2009 (for short, the Act of 2009) and Notification
issued by the National Council for Teacher Education (NCTE) dated
29th July, 2011, in exercise of powers conferred by Sub-section 1
of Section 23 of the Act of 2009.
4. Learned counsel for the petitioner has also referred to
advertisement dated 13th July, 2016, issued by the Rajasthan
Public Service Commission, Ajmer, wherein separate vacancies
were identified for the post of teachers of mathematics and
teachers of Science, in consonance with the Act of 2009 so also
the Notification dated 29th July, 2011, issued by the NCTE.
Reference has also been made to the recruitment process of
Navodaya Vidyalaya Samiti of the year 2016, to the same effect.
5. Mr. Vigyan Shah, learned counsel for the petitioner relying
upon the adjudication by the Division Bench of this Court in the
case of Sher Singh & Ors. (supra), which has also been followed
by another Division Bench of this Court in D.B. Civil Writ Petition
No.11012/2016; Ajay Singh and Ors. Vs. State of Rajasthan,
decided on 29th May, 2017, asserted that RTET/REET contemplates
a bench mark which prospective teachers must achieve before
they can claim appointment to the respective post. Thus, a
teacher seeking appointment in a particular subject must have
knowledge of that subject and training to teach that subject.
Specific reference has been made to paragraph 15, 16, 20, 22, 34
(4 of 36) [CW-18442/2017]
and 35 of the adjudication in the case of Sher Singh & Ors.
(supra).
6. Reference has also been made to the text of amendment of
Rule 266(3) vide Notification dated 29th August, 2017, which
provides for qualifications as laid down by NCTE under the
provisions of Sub-section (1) of Section 23 of the Act of 2009 from
time to time.
7. Learned counsel for the petitioner has also emphasized on
the meaning and import of "Teaching Subject" as detailed out
under the General Guidelines for Pre-Teacher Education Test and
Pre-B.A-B.Ed/B.Sc.-B.Ed/Test-2016.
8. Repelling the preliminary objections raised on behalf of the
respondents, learned counsel for the petitioner argued that the
Notification issued on 21st February, 2018, amending Rule 266(3)
of the Rajasthan Panchayati Rules, 1996, contemplating
qualifications for teacher of 'Science and Maths' with optional
subject from amongst Chemistry, Physics, Botany, Zoology, Micro-
Biology, Bio-technology and Bio-chemistry and Mathematics;
cannot be applied to the instant process of recruitment wherein
the result was declared on 25th January, 2018, for the Notification
contemplates that it shall came into force with immediate effect
i.e. 21st February, 2018. Therefore, it is not open for the State-
respondents to apply the Notification with retrospective effect.
9. Learned counsel further submits that the adjudication by a
Coordinate Bench of this Court at Principal Seat, Jodhpur, in the
case of Rahul Kumar Jain & Anr. Vs. State of Rajasthan & Ors.:
(5 of 36) [CW-18442/2017]
SBCWP No. 16532/2017, decided on 5th March, 2018, which has
been heavily relied upon by the respondents, has no application to
the facts of the case at hand so also in the face of adjudication by
the Division Bench in the case of Sher Singh & Ors. and Ajay
Singh & Ors. (supra).
10. It is further pointed out that the reasons based on
reasonings, recorded by the Division Bench while adjudicating
upon the controversy in the case of Sher Singh & Ors. (supra),
have not been discussed, at all, in the case of Rahul Kumar Jain
(supra). That apart the Notification dated 29 th July, 2011, issued
by the Central Government in exercise of powers conferred by
Sub-section (1) of Section 23 of the Act of 2009, being Central
Legislation would govern the field. Hence, amendment, to the
contrary, by the State Legislation to that extent cannot be applied
to the recruitment process. In order to fortify his stand learned
counsel has relied upon the opinion of the Apex Court of the land
in the case of Gaurav Pradhan & Ors. Vs. State of Rajasthan &
Ors.: 2017 (4) SCT 89 (SC), and P. Mahendra & Ors. Vs. State of
Karnataka & Ors.; and Matteesh Y Annigeri & Ors. Vs. State of
Karnataka and Ors.: (1990) 1 SCC 411.
11. Emphasizing the importance of well trained teachers for they
are required to teach children of an impressionable age, contrary
to norms prescribed; learned counsel has relied upon the opinion
of the Apex Court of the land in the case of L. Muthu Kumar &
Another Vs. State of Tamil Nadu & Ors.: (2000) 7 SCC 618 and
Deepa Augustine Vs. Geetha Alex & Ors.:(2008) 16 SCC 526 (para
8).
(6 of 36) [CW-18442/2017]
12. Per contra; Mr. S. K. Gupta, AAG, reiterating the preliminary
objections contended that the petitioner after having participated
in the recruitment process and realizing that he would not be able
to make it to the merit list, has raised the issue for identification
of post separately for Science and Mathematics teachers.
13. According to Mr. S. K. Gupta, AAG, the petitioner has been
declared eligible for consideration of his candidature in 'Maths and
Science' as would be evident form the certificate issued in his
favour in the Rajasthan Eligibility Examination for Teachers
(REET), 2015.
14. Learned counsel further submits that recruitment on the post
of teacher of 'Science and Maths' on the criteria as adopted by the
State-respondents, is in accordance as well as in consonance with
the Notification dated 21st February, 2018. Further, recruitments
have already been made for TSP areas, on the same criteria, and
therefore, it will not be justifiable to adopt a different criteria for
appointment to the same post for Non-TSP areas.
15. Referring to adjudication by a Co-ordinate Bench of this
Court, at Principal Seat, Jodhpur, in the case of Rahul Kumar Jain
(supra), learned counsel pointed out that a challenge on identical
grounds has already been declined; considering the opinion of the
Division Bench in the case of Sher Singh & Ors. (supra); hence,
the instant writ application merits rejection on that count alone.
Moreover, even if this Court is of the opinion that the amendment
vide Notification dated 21st February, 2018, of Rule 266(3) of the
(7 of 36) [CW-18442/2017]
Rajasthan Pancayati Rules, 1996, cannot be applied; it may be
made applicable to future recruitment processes, without
disturbing the ongoing recruitment process.
16. Heard the learned counsel for the parties and with their
assistance perused the relevant materials available on record as
well as gave my thoughtful consideration to the rival submissions
at Bar.
17. Indisputably, as a consequence of adjudication made by the
Division Bench of this Court in the case of Sher Singh & Ors.
(supra), the State-respondents issued Notification dated 29 th
August, 2017, providing for educational qualifications for the post
of Teacher Grade-III (Level-II) (Class VI to VIII), for the teacher
of "Mathematics" and teacher of "Science", separately.
18. On 11th October, 2017, the instant writ application was
registered and was to be listed for admission on 23 rd October,
2017, before the Court. Pending the writ proceedings, the State-
respondents issued impugned corrigendum on 30th October, 2017,
to impugned advertisement dated 11th September, 2017, wherein
applications were invited from eligible candidates for appointment
to the Teacher Grade-III (Level-II) (Science and Maths), and
therefore, the petitioner sought amendment in the writ
application, which has been allowed and response to the amended
writ application has also been filed by the respondents.
Considering the urgency of the matter, the writ application was
taken up for final disposal at this stage as consented by the
learned counsel for the parties.
(8 of 36) [CW-18442/2017]
19. Notification number 01/2017, dated 11 th September, 2017,
was issued inviting applications from eligible candidates in terms
of Clause 6, 6.1, which specifically contemplated that the
candidate must have passed gradation or equivalent examination
with at least one subject as an optional subject in mathematics
who desired consideration of his candidature for Teacher Grade-III
(Level-II) (Mathematics); and one subject as an optional subject
from amongst Chemistry, Physics, Botany, Zoology, Micro-Biology,
Bio-technology and Bio-chemistry, for appointment to the post of
teacher of 'Science'.
20. A glance of reasons recorded by the Division Bench of this
Court while adjudicating upon somewhat identical controversy in
the case of Sher Singh & Ors. (supra), would reflect the
underlying object of appointment of teachers in a particular
subject, which needs no reiteration for what has been observed by
the Division Bench in paragraph 15, 16, 20, 22, 23, 34 and 35,
relying upon the opinion of the Supreme Court in the case of
Mamata Mohanty and Bhupendra Nath Tripathi and Ors., which
reads thus:
"15. In the first batch of petitions, the petitioners were of
two categories, one who possessed English as a subject at
B.Ed. Level and has also obtained for English as one of the
language paper in REET-2015 but did not want those
candidates to be considered for being considered for
appointment as Teachers in the subject of English who did
not possess the subject of English either at level of the
B.Ed. Examination or those who had not opted English as
subject in both papers i.e. language-1 and language-2.
16. The other batch of candidates are those who did not
possess teaching subject of English in B.Ed. qualification
nor had English in graduation but had opted for English as a
(9 of 36) [CW-18442/2017]
language in REET Examination. There is another batch of
candidates who did not have B.Ed. with English but had
English in Graduation and also opted for English in REET
Examination. Another batch of candidates are those who
had B.Ed. With English as a teaching subject and also
Graduate with English as an optional subject but they did
not opt for English as a language for REET-2015. All these
sets of candidates in the aforesaid appeals/petitions
before us are claiming that they alone should be allowed to
participate for selection excluding the others.
20. In the case of State of Orissa & anr. Vs. Mamata
Mohanty: (2011) 3 SCC 436, it has been held by the
Supreme Court as under:-
"29. Education is the systematic instruction, schooling
or training given to the young persons in preparation for
the work of life. It also connotes the whole course of
scholastic instruction which a person has received.
Education connotes the process of training and
developing the knowledge, skill, mind and character of
students by formal schooling. The excellence of
instruction provided by an educational institution mainly
depends directly on the excellence of the teaching
staff. Therefore, unless they themselves possess a good
academic record/minimum qualifications prescribed as
an eligibility, it is beyond imagination of anyone that
standard of education can be maintained/enhanced.
"18....We have to be very strict in maintaining high
academic standards and maintaining academic discipline
and academic rigour if our country is to progress".
"30....Democracy depends for its very life on a high
standard of general, vocational and professional
education. Dissemination of 'learning with search for
new knowledge with discipline all round must be
maintained at all costs".
33. In view of the above, it is evident that education is
necessary to develop the personality of a person as a
whole and in totality as it provides the process of
training and acquiring the knowledge, skills, developing
mind and character by formal schooling. Therefore, it is
necessary to maintain a high academic standard and
academic discipline along with academic rigour for the
progress of a nation. Democracy depends for its own
survival on a high standard of vocational and
(10 of 36) [CW-18442/2017]
professional education. Paucity of funds cannot be a
ground for the State not to provide quality education to
its future citizens. It is for this reason that in order to
maintain the standard of education the State
Government provides grant-in-aid to private schools to
ensure the smooth running of the institution so that the
standard of teaching may not suffer for want of funds.
34. Article 21A has been added by amending our
Constitution with a view to facilitate the children to get
proper and good quality education. However, the quality
of education would depend on various factors but the
most relevant of them is excellence of teaching staff.
In view thereof, quality of teaching staff cannot be
compromised. The selection of the most suitable persons
is essential in order to maintain excellence and the
standard of teaching in the institution. It is not
permissible for the State that while controlling the
education it may impinge the standard of education. It
is, in fact, for this reason that norms of admission in
institutions have to be adhered to strictly. Admissions
in mid academic sessions are not permitted to maintain
the excellence of education.
59. The rule of law inhibits arbitrary action and also
makes it liable to be invalidated. Every action of the
State or its instrumentalities should not only be fair,
legitimate and above-board but should be without any
affection or aversion. It should neither be suggestive of
discrimination nor even give an impression of bias,
favouritism and nepotism. Procedural fairness is an
implied mandatory requirement to protect against
arbitrary action where Statute confers wide power
coupled with wide discretion on an authority. If the
procedure adopted by an authority offends the
fundamental fairness or established ethos or shocks the
conscience, the order stands vitiated. The decision
making process remains bad."
22. Right to Education Act was enacted with the sole
purpose to provide uniform education to all the children
upto the age of 14 years in the State. The very purpose of
incorporating an additional condition of passing TET to be
conducted by the appropriate Government of the State,
was to provide a benchmark which the prospective
Teachers must achieve before they can be appointed on
their respective post. While such a benchmark is
necessitated for the purposes of uniformity and minimum
(11 of 36) [CW-18442/2017]
standard of education in the State, the requirement of
having B.Ed. or BSTC qualification has not been done away
with. For a Teacher to be appointed in a particular subject,
he is expected to have knowledge of that subject and must
have studies it extensively so that he may be able to give
back to the student what he has learnt. At the same time,
he must also have knowledge and training to teach that
subject. Thus, the pedagogy i.e. an art or science of
teaching education instructional methods have to be
essentially engrained in him before he embarks upon the
noble profession of teaching.
23. The question, which arises for consideration of this
Court, as noted above, is limited to as to how the merit is
to be prepared. We find that as per the advertisement,
which requires a candidate to have a particular minimum
educational qualification and also to have REET eligibility,
has decided to prepare merit only on the basis of the
marks obtained in the REET which has resulted in causing
ambiguity, confusion and administrative chaotic situation
where a candidate may be able to secure appointment as a
Teacher in a particular subject, even though he may not
have studied that subject at all. Such cannot be the
purpose of selection and we, therefore, hold that the
advertisement condition of preparation of merit itself
being vague and contrary to the purpose sought to be
achieved, deserves to be set aside and we accordingly do
so. It may also be noted that a subject Teacher of level-2
is also entitled for further promotion under the relevant
educational service rules in that subject to the level of
Teacher Gr. II in order to teach higher classes. If a
candidate enters on the lower post, even without having the
minimum qualifications in that subject, would amount to
resulting in a chaotic situation."
34. Within our Constitution, we have specifically
demarcated the ambit of power and boundaries of the
three organs of the society by laying down principles of
separation of powers which have to be adhered for
carrying out democratic functioning of the country.
Subordinate legislations are framed by the executive by
exercising the delegated powers conferred by the statute
which is the rule making power. Thus, it is inappropriate for
the Courts to issue a mandate to the State of its
authorities to act in a particular fashion and manner. We
are afraid that the directions issued by the learned Single
Judge would amount to legislate as to how the
appointments should be made and what should be the
(12 of 36) [CW-18442/2017]
qualification for the post of Teacher in the subjects and
what should be the minimum qualification for appointment
of a Teacher in a particular subject. However, suffice it to
state that the decision to incorporate the marks obtained
at various levels to treat a particular individual as eligible
for appointment as a Teacher in a particular subject, would
solely rest with the Government who may frame rules
thereto and this Court cannot embark upon such an
exercise.
35. The question, which arises for consideration of this
Court, as noted above, is limited to as to how the merit is
to be prepared. We find that as per the advertisement,
which requires a candidate to have a particular minimum
educational qualification and also to have REET eligibility,
has decided to prepare merit only on the basis of the
marks obtained in the REET which has resulted in causing
ambiguity, confusion and administrative chaotic situation
where a candidate may be able to secure appointment as a
Teacher in a particular subject, even though he may not
have studied that subject at all. Such cannot be the
purpose of selection and we, therefore, hold that the
advertisement condition of preparation of merit itself
being vague and contrary to the purpose sought to be
achieved, deserves to be set aside and we accordingly do
so. It may also be noted that a subject Teacher of level-2
is also entitled for further promotion under the relevant
educational service rules in that subject to the level of
Teacher Gr. II in order to teach higher classes. If a
candidate enters on the lower post, even without having the
minimum qualifications in that subject, would amount to
resulting in a chaotic situation."
21. At this juncture, it will be profitable to take note of the
relevant text of the Notification dated 29 th August, 2017, which
reads thus:
"Level (ii) Class VI to VII Qualifications as laid down by
the National Council for Teacher
Education under the provisions
of sub-section (1) of section 23
of the Right of Children to Free
and Compulsory Education Act
2009 (Central Act. No.35 of
2009), from time to time,
and
(13 of 36) [CW-18442/2017]
(I) for the teacher of Social
Science, the candidate must
have passed graduation or
equivalent examination with at
least one subject as an optional
subject from amongst History,
Geography, Economics, Political
Science, Sociology, Public
Administration and Philosophy;
(ii) for the teacher of
Mathematics, the candidate
must have passed
graduation or equivalent
examination with
Mathematics as an optional
subject;
(iii) for teacher of Science,
the candidates must have
passed graduation or
equivalent examination with
at least one subject as an
optional subject as an
optional subject from
amongst Chemistry, Physics,
Botany, Zoology, Micro-
Biology, Bio-technology and
Bio-chemistry;
(iv) for the teacher of language,
the candidate must have passed
graduation or equivalent
examination with the
corresponding language as an
optional subject;
(v) the candidate who has
Graduated in Elementry
Education (B.El.Ed.) or
B.A.B.Ed./B.Sc.B.Ed., i.e. a
candidate with the qualification
of four years integrated course,
must also have passed the
qualifying examination with the
corresponding subjcet; and
(vi) must have passed the
REET/RTET in the subject
applying for.
(14 of 36) [CW-18442/2017]
22. A glance of meaning of the phrase "Teaching subject" as
provided under the General Guidelines for admission to B.Ed. and
4 year B.A.-B.Ed/B.Sc.-B.Ed. Course, in various Teacher Training
Institution/Colleges, in the State of Rajasthan would reflect that a
subject offered by the candidate at his/her Bachelor's or Master's
Degree Examination as an optional subject or as a subsidiary
subject, provided the candidate studied it for at least two years
and also taken University Examination each year. It will be
relevant to take note of the text of Clause 10 of the General
Guidelines aforesaid, which reads thus:
"10. For admission in the B.Ed. Course candidate must
have teaching subjects at Bachelor/Master Degree level.
(i) 'Teaching subject' means a subject offered by the candidate
at his/her Bachelor's or Master's Degree Examination as an
optional subject or as a subsidiary subject, provided that the
candidate studied it for at least two years and also taken
University Examination each year. This shall not include such
subjects as were studied by him/her only for a part of the
Bachelors' Degree course shall not be considered as teaching
subject. Thus the qualifying subjects like General English,
General Hindi, General Education/History of Indian Civilization
and Culture, Elementary Mathematics, etc. prescribed for the
first year T.D.C. or second year course of the University or a
subject dropped by a candidate at the part-I stage of the
Degree course shall not be treated as a teaching subject. In
the case of Honours Graduates, besides the Honours
Graduates, besides the honours subject, the subsidiary
subjects would also be taken into account, provided the
candidate studied the same for last two academic sessions and
also passed University Examination. The marksheet of Final
year examination should clearly indicate the marks of
compilation of Part-I, Part-II and Part-III in the case of three
years degree course or Part-II and Part-III examinations in
the case of two years degree course separately.
(ii) Only such candidate shall be allowed to offer social studis
for the B.Ed. Examination as have taken their Bachelors Degree
with atleast two subjects out of History, Political Science,
Public Administration, Economic, Geography, Philosophy,
Psychology and Scociology.
(15 of 36) [CW-18442/2017]
(iii) A person having Bachelors Degree in agriculture shall be
allowed to offer General Science and Biology for B.Ed.
Examination. General Science may also be allowed to be offered
by a candidate passing the degree of B.Sc. (Home Science) or
Passing the B.Sc. Examination with chemistry with any one
subject of Life Science, i.e. Biology or Botany or Zoology.
(iv) A candidate who has offered Political Science or Public
Administration at this Bachlor's or the Master's Degree
Examination shall be eligible to offer Civics as a teaching
subject in the B.Ed. Examination."
23. National Council for Teacher Education (in short 'NCTE'), in
exercise of powers conferred by Sub-Section 1 of Section 23 of the
Act of 2009 and in pursuance of the Notification dated 31 st March,
2010, has carried out amendments from time to time, laying down
minimum qualifications for a person to be eligible for appointment
as a Teacher. The relevant Notification dated 29th July, 2011, for
para 5 of the Principal Notification, has substituted the following,
contemplating thus:
"5.(b) The minimum qualification norms referred to in this
Notification apply to teachers of Languages, Social Studies,
Mathematics, Science, etc. In respect of teacher for Physical
Education, the minimum qualification norms for Physical
Education teachers referred to in NCTE Regulation dated 3 rd
November, 2001 (as amended from time to time) shall be
applicable. For teachers of Art Education, Craft Education,
Home Science, Work Education, etc. the existing eligibility
norms prescribed by the State Governments and other school
management shall be applicable till such time the NCTE lays
down the minimum qualifications in respect of such teachers."
24. The petitioner applied for consideration of his candidature for
appointment to the post of Teacher Gr.-III for Science as well as
Mathematics (non-TSP), for the reason that he is eligible for
appointment to the post of in either of the subject i.e.
Mathematics or Science, in view of the fact that he studied Physics
subject, which has been indicated with subject Code 9202 in the
(16 of 36) [CW-18442/2017]
marksheet issued by the University of Rajasthan for B.Ed
Examination-July, 2014. He has also studied the subject
Mathematics which has been indicated with subject Code 9211 in
the same marksheet.
25. A glance of optional subject of the petitioner, as reflected in
Part-III Examination, 2013, issued on 26th July, 2013; details out
the optional subject of the petitioner as Physics with subject Code
3170, Chemistry with subject Code 3171 and Mathematics with
subject Code 3175 (Annexure-5). Learned counsel successfully
demonstrated that the State-respondents have considered and
treated as eligible the candidates namely: Dinesh Sharma, Neha
Manwani, Suman and Prahlad Rai Kumawat, who did not study
'Mathematics' as an optional subject and this factual matrix could
not be dispelled by the counsel for the respondents.
26. A Division Bench of this Court dealt with the issue in a great detail in the case of Sher Singh & Ors. (supra), holding that the advertisement therein, required a candidate to have a particular minimum educational qualification and also to have REET eligibility. For the merit was drawn on the basis of the marks obtained in REET which resulted into ambiguity, confusion and administrative chaotic situation where a candidate may be able to secure appointment as a 'Teacher' in a particular 'subject', even though he might not have studied 'that subject' at all, and therefore, such a criteria was held to be vague and contrary to the purpose sought to be achieved. Thus, quashment of the earlier advertisement dated 6th July, 2016, led to issuance of impugned advertisement with corrigendum dated 30 th October, 2017 and the result (17 of 36) [CW-18442/2017] dated 25th January, 2018, with reference to 927 vacancies in the recruitment process involved herein.
27. The petitioner instituted the instant writ application on 11 th October, 2017, much before the declaration of the result on 25 th January, 2018 and the Notification dated 21 st February, 2018, amending the Rule 266 (3) of the Panchayati Raj Rules, 1996. In the case of Ajay Singh and Ors.(supra), a Division Bench of this Court while relying upon the opinion of earlier Division Bench in this case of Sher Singh and Ors. (surpa), in no uncertain terms held that what was prayed for by the petitioners (Ajay Singh and ors.), did not arise for consideration in view of the fact advertisement dated 6 th July, 2016, was already quashed leaving it open for the State Government to initiate process for recruitment afresh in view of the observations made in the case of Sher Singh and Ors.
(supra), keeping in the directives issued by NCTE vide Notification dated 29th July, 2011. Here, it will be profitable to take note of the text of the adjudication in the case of Ajay Singh and Ors.i (surpa), which reads thus:
"Counsel for the petitioner submits that although the purposive interpretation which has been extended by the Division Bench certainly take note of the grievance of the petitioners as well but there is no clarity in the Notification of NCTE, of which reference has been made, dt.29.07.2011 and to be more specific about relevant subject and in absence of there being clarity in the Notification of NCTE, pursuant to which the process of selection was initiated by the State Government that apprehends the present petitioners that whether it is possible without assailing the validity of Notification of NCTE.
Reply to the writ petition has been filed by respondent No.1- NCTE and in para-16 of the reply, the NCTE has (18 of 36) [CW-18442/2017] made its intention clear that pedagogy in a Teacher Education Programme is an integral and essential component of D.El.Ed. & B.Ed. syllabus and left it for the concerned authority to take cognizance. We consider it appropriate to quote para-16 of the reply filed by the NCTE which reads ad infra:-
"16. That however it is submitted that pedagogy in a teacher education programme is an integral and essential component of the D.El.Ed. & B.Ed. syllabus. It is expected that the appointing authority take cognizance of this fact."
Counsel for NCTE submits that what has been intended by the NCTE has been noticed by the Division Bench in its judgment referred to supra and after the interpretation has come on record, there is no further need to dwell upon the question which has been raised in the instant petition and the grievance of the petitioner has been taken note of needs no further endeavor in examining the question raised for consideration of this court.
After we have heard counsel for the parties and taking note of the clarification made by the Division Bench of this court, of which we have made a reference, what has been prayed for by the petitioner in assailing the validity of Notification of NCTE does not arise for consideration and after the advertisement dt.06.07.2016 has been quashed the fresh process be initiated keeping in view the observations made in the judgment referred to supra and it is further left open for the State Government to lay down the criteria of selection keeping in view the directives of NCTE dt.29.07.2011.
After we have heard counsel for the parties and taking note of the grievance of the petitioner and keeping in view the judgment of the coordinate Bench of this court, of which we have made reference supra, there is no requirement to have any further deliberation on the issue raised for consideration.
Consequently, the instant writ petition in the light of the judgment of Division Bench, referred to supra, stands disposed of."
(19 of 36) [CW-18442/2017]
28. The amendment issued vide Notification dated 21 st February, 2018, amending Rule 266(3) providing for qualifications for the Teachers of 'Science and Mathematics' after initiation of the recruitment process and the result declared on 25 th January, 2018, cannot justify the action of the State-respondents. Firstly, the Notification dated 21st February, 2018, cannot be applied with retrospective effect, and, Secondly, the qualifications prescribed vide amendment dated 21st February, 2018; are contrary to the Notification dated 29th July, 2011, issued by the National Council for Teacher Education (NCTE).
29. In the case of Zile Singh Vs. State of Haryana and Ors.:
(2004)8 SCC1, the Apex Court of the land dealt with the issue of Disqualification for Membership brought in by Haryana Municipal (Amendment) Act, 1994, by inserting Section 13A in Chapter III of the Principal Act, dealing with the situation, where a person having more than two children on or after the expiry of one year of the commencement of the Act, was treated as the 'substitution' distinguishing it from 'supersession' resulting into repeal of earlier provision and its replacement by the new provision. Thus, taking into consideration, the legislative intent to impose a disqualification, an exception was carved out for a fact situation for the operation of the newly introduced disqualification, and therefore, the Supreme Court, concluded in favour of the retrospectivity in factual matrix of that case. In the case at hand, the facts and circumstances, are entirely different and distinguishable for what has been held by the Division Bench of this Court in the case of Sher Singh and Ors. (supra), which has attained finality.
(20 of 36) [CW-18442/2017]
30. In the case of Gaurav Pradhan and ors. Vs. State of Rajasthan and Ors.: 2017(4) SCT89 (SC), the Apex Court of the land in no uncertain terms held thus:
"3. The Rajasthan Public Service Commission issued an advertisement dated 14.10.2010 inviting applications for selection on various posts of constables. On 25.10.2010 another advertisement was issued by the Rajasthan Public Service Commission for selection on the post of Sub Inspector of Police. The selection process for the posts of constables as well as post of Sub Inspector of Police comprised of the different stages. During process of selection, the State Government issued a circular dated 11.05.2011 providing that candidates of BC/SBC/SC/ST irrespective of whether they have availed of any concession including relaxation in age shall be migrated against open category vacancies if they have secured more marks than the last candidate of open category. Select list of constables was issued on 01.07.2011 whereas result of Sub Inspector of Police was issued on 25.02.2013. Various writ petitions were filed by the general category candidates where they have questioned the circular dated 11.05.2011 and preparation of select list accordingly. The case of the general category candidates was that those reserved category candidates who have taken concession of relaxation of age in competition for post of constable/SI of Police cannot be migrated to general category vacancies. Learned Single Judge decided Special Writ Petitions vide judgment dated 27.12.2012 taking view that circular dated 11.05.2011 is not applicable since the recruitment process had began prior to circular 11.05.2011. It was held that migration of reserved category candidates to open/general category can be permitted as per earlier circular dated 24.06.2008. With regard to circular dated 11.05.2011, it was held that the said circular needs to be given proper interpretation. Learned Single Judge held that only those who have taken benefit of concession of fee and not the relaxation in age during the process of selection would be allowed to migrate to open/general category if obtained equal or more marks to the last candidate in open/general category. As noted above, other group of writ petitions was decided by the Single Judge vide judgment dated 08.11.2013 following the judgment dated 27.04.2012.
6. Shri Sushil Kumar Jain, learned senior Counsel for the Appellants in support of the appeals contends that the reserved category candidates who had participated in the (21 of 36) [CW-18442/2017] selection after obtaining the benefit of relaxation in age cannot be allowed to be treated in the open/general category and as per the Government circular dated 24.06.2008 such candidates have to be treated in the reserved category candidates. He submits that circular dated 11.05.2011 reversing the earlier provision for migration in the general/open category was not applicable in the present case since the advertisements were issued much before the aforesaid circular and the recruitment process had begun. It is submitted that the judgment relied on by the Division Bench in coming to the conclusion that relaxation in age does not prohibit the reserved category candidates from migrating the open/general category quota are not applicable in the facts of the present case. Shri Jain submits that the issue raised in these appeals is fully covered by the judgment of this Court dated 6th April, 2017 in C.A. No. 3609 of 2017, Deepa E.V. v. Union of India and Ors. It is submitted that in view of the judgment of this Court in Deepa E.V., the appeals deserve to be allowed setting aside the judgment of the Division Bench and restoring that of learned Single Judge.
12. We have considered the submissions of the parties and perused the records. From the submissions of the learned Counsel for the parties and materials on record the following issues arise for consideration in these appeals:
(1) Whether the reserved category candidates who had taken benefit of age relaxation in the selection in question and have obtained marks equal or more to last general category candidate would be treated in the general/open category candidates or ought to have been confined in the reserved category candidates.
(2) Whether the circular dated 11.05.2011 issued by the State Government changing the criteria for migrating reserved category candidates into general category candidates can be applied in respect to the selection which had already began on issuance of advertisements dated 14.10.2010 and 25.10.2010.
46. As noticed above Rule 7(1) of 1989 Rules expressly provides that "reservation of vacancies for the Scheduled Castes and the Scheduled Tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion". The circular of the Government shall be treated to be in force for the purpose of reservation which is in force at the time of recruitment. Recruitment commenced (22 of 36) [CW-18442/2017] by the advertisement dated 7.10.2010 and 25.10.2010 at that time only circular dated 24.06.2008 was in force, hence, subsequent circular dated 11.05.2011 cannot be applied in the present recruitment . There cannot be any dispute that the policy of reservation can always be changed by the State Government and the State Government can change the manner and methodology of implementing the reservation and criteria of reservation of the reserved category candidates and general category candidates. It is also relevant to note that both learned Single Judge and Division Bench have not approved circular dated 11.05.2011 in toto. Both the Courts have held that apart from age relaxation, if the candidate has taken any other relaxation circular dated 11.05.2011 cannot help him in migrating into general category candidate.
48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court."
31. In the case of P. Mahendran and ors. Vs. State of Karnataka and ors.: (1990)1 SCC 11, the Supreme Court in unequivocal terms observed that the right is created in favour for consideration for appointment to the post in accordance with the (23 of 36) [CW-18442/2017] terms and conditions of advertisement and existing recruitment rules and this right cannot be affected by amendment of any rule unless the amending rule is retrospective in nature. Here, it will be profitable to take note of the text of paragraph 2, 3, 4 and 5 of the opinion, which reads thus:
"2. The dispute involved in the present cases relates to the selection and appointment of Motor Vehicle Inspectors. Recruitment to the said post is regulated by the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 (hereinafter referred to as 'the Rules') framed under Article 309 of the Constitution. These Rules provide for direct recruitment to the post of Motor Vehicle Inspectors and it further lays down the minimum qualification requiring a candidate to be holder of Diploma in Automobile Engineering or Mechanical Engineering. In 1978 the Karnataka Public Service Commission held selections and about 200 posts of Motor Vehicle Inspectors were filled up from amongst the candidates holding Diploma in Mechanical Engineering and in Automobile Engineering. On September 28, 1983 the Public Service Commission issued an advertisement (published in the Karnataka Gazette on October 6, 1983) inviting applications for 56 posts of Motor Vehicle Inspectors which was later on increased to 102 posts. The advertisement specifically stated that the selection shall be made in accordance with the Recruitment Rules 1976 and it further stated that a candidate for selection must be holder of Diploma in Automobile Engineering or Mechanical Engineering. The appellants/petitioners (in writ petition) who were holding Diploma in Mechanical Engineering alongwith others applied for selection to the post of Motor Vehicle Inspectors. The Commission after scrutiny of the application forms issued letters for interview to the suitable candidates and the Commission commenced the holding of interviews in August, 1984. It appears that the Commission refused to interview some candidates who were competing for selection against the reserved seats for 'local candidates' on the ground that they were not entitled to be treated as 'local candidates' as they had not actually worked as 'local candidates' in the post of Motor Vehicle Inspectors and further they had secured low percentage of marks, they were further not entitled to be interviewed against the seats earmarked for general pool as the marks secured by them were less than the percentage of marks obtained by the last candidate called for interview. The candidates (24 of 36) [CW-18442/2017] claiming reserved seats as 'local candidates' filed a number of petitions under Article 226 of the Constitution before the High Court of Karnataka and obtained stay orders as a result of which the selection could not be completed. Later interim orders were modified by the High Court and the Commission was permitted to proceed with the selection reserving seats for the petitioners. The High Court further modified its order at a later stage permitting the Commission to make selection and appointment with a condition that the appointments so made will be subject to the decision of the writ petitions.
Thereafter the Commission resumed interviews again and it completed the same by 2nd June 1987 and declared the result of the selection on 22.6.1987 which was published in the Karnataka Gazette dated 23rd July, 1987. The selected candidates were given intimation of their selection and the State Government took steps for imparting them three months' training before appointing them as Motor Vehicle Inspectors.
3. Meanwhile, the State Government of Karnataka amended the Recruitment Rules by a Notification dated May 4, 1987 published in the Gazette on 14.5.1987 omitting the qualification of Diploma in Mechanical Engineering for the post of Motor Vehicle InspectOrs. Consequent to the amendment of Rules the holders of Diploma of Automobile Engineering became exclusively eligible for appointment to the post of Motor Vehicle Inspectors and the holders of Diploma in Mechanical Engineering ceased to be eligible for selection and appointment to the said post. Some of those candidates who were unsuccessful at the selection held by the Commission preferred applications before the Karnataka Administrative Tribunal at Bangalore for quashing the select list prepared by the Commission and also for quashing the Notification dated 28.9.1983 inviting applications for appointment to the post of Motor Vehicle Inspectors on the ground that after the amendment of Rules in 1987, no person holding the Diploma in Mechanical Engineering was qualified for appointment, therefore fresh selection should be made in accordance with the amended Rules. The State Government of Karnataka as well as the appellants both contested the applications and asserted that the 1987 amendment to the Recruitment Rules were not retrospective instead the amendments were prospective and the amended Rules did not affect the selections which were in the process of finalisation by the Commission. The Tribunal held that after the amendment of the Recruitment Rules in May, 1987 the Commission could not make selection or determine the result on the basis of the Rules which existed prior to 14th May 1987 and as such the selection of candidates (25 of 36) [CW-18442/2017] holding Diploma in Mechanical Engineering was illegal as holders of Diploma in Mechanical Engineering ceased to be eligible for appointment to the post of Motor Vehicle Inspectors with effect from the date of publication of the amending Rules. On these findings the Tribunal allowed the applications and quashed the advertisement issued under the Notification dated 28.9.1983 as well as the select list published by the Public Service Commission and it further issued directions to the Public Service Commission to invite fresh applications and to make selections in accordance with the amended Rules. Aggrieved, the appellants who had been selected by the Commission for appointment to the posts of Motor Vehicle Inspectors have preferred appeal before this Court. Some of the selected candidates have directly approached this Court by means of writ petition under Article 32 of the Constitution for issue of mandamus directing the State Government to appoint the selected candidates.
4. There is no dispute that under the Recruitment Rules as well as under the advertisement dated 6. 10.1983 issued by the Public Service Commission, holders of Diploma in Mechanical Engineering were eligible for appointment to the post of Motor Vehicle Inspectors alongwith holders of Diploma in Automobile Engineering. On receipt of the applications from the candidates the Commission commenced the process of selection as it scrutinised the applications and issued letters for interview to the respective candidates. In fact the Commission commenced the interviews in August 1984 and it had almost completed the process of selection but the selection could not be completed on account of interim orders issued by the High Court at the instance of candidates seeking reservation for local candidates. The Commission completed the interviews of all the candidates and it finalised the list of selected candidates by 2nd June 1987 and the result was published in the State Gazette on 23rd July 1987. In addition to that the selected candidates were intimated by the Commission by separate letters. In view of these facts the sole question for consideration is as to whether the amendment made in the Rules on 14th May 1987 rendered the selection illegal. Admittedly the amending Rule does not contain any provision enforcing the amended Rule with retrospective effect. In the absence of any express provision contained in the amending Rule it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impair the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. In fact the entire selection in the normal course would have been finalised (26 of 36) [CW-18442/2017] much before the amendment of Rules, but for the interim orders of the High Court. If there had been no interim orders, the selected candidates would have been appointed much before the amendment of Rules. Since the process of selection had commenced and it could not be completed on account of the interim orders of the High Court, the appellants' right to selection and appointment could not be defeated by subsequent amendment of Rules.
5. It is well-settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision. or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter."
32. In the case of State of Uttar Pradesh and Ors. Vs. Bhupendra Nath Tripathi and ors.:(2010) 13 SCC 203, while dealing with the issue of Teacher Training Course and Eligibility qualifications for selection for Teacher training course in the backdrop of provision of National Council for Teacher Education, 1993, the Apex Court of the land observed thus:
(27 of 36) [CW-18442/2017] "14. We have given our thoughtful consideration to the entire issue that arises in this matter for our consideration. The directive principle contained in Article 45 has made a provision for free and compulsory education for all children upto the age of 14 years within 10 years of promulgation of the Constitution of India but the nation could not achieve this goal even after 50 years of adoption of the provision. The task of providing education to all children in this age group gained momentum after National Policy of Education (NPE) was announced in 1986. It was felt that though the Government of India in partnership with State Governments had made strenuous efforts to fulfill the mandate and though significant improvements were seen in various educational indicators, the ultimate goal of providing universal and quality education still remained unfulfilled. In order to fulfill that goal, it was felt that an explicit provision should be made in the Part of the Constitution relating to Fundamental Rights. Right to Education is now a guaranteed fundamental right under Article 21A. It commands that:
"21-A. Right to education.- The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine.
15. The State as at present is under the constitutional obligation to provide education to all children of the age of 6 to 14 years. The State by virtue of Article 21A is bound to provide free education, create necessary infrastructure and effective machinery for the proper implementation of the right and meet total expenditure of the schools to that extent. Right to Education guaranteed by Article 21A would remain illusory in the absence of State taking adequate steps to have required number of schools manned by efficient and qualified teachers.
16. Before teachers are allowed to teach the children, they are required to receive appropriate and adequate training from a duly recognized training institute. It has been observed by this Court:
"14..... Allowing ill-trained teachers coming out of derecognized or unrecognized institutes or licensing them to teach the children of impressionable age, contrary to the norms prescribed, will be detrimental to the interest of the nation itself in the sense that in the process of building a great nation, teachers and educational institutions also play vital role.
(28 of 36) [CW-18442/2017] In cases like these, interest of individuals cannot be placed above or preferred to larger public interest" (See L. Muthukumar v. State of T.N. SCC p.626, para 14.) Such is the importance of proper training to the teachers before they are allowed to teach the children of impressionable age.
33. In the case of L. Muthukumar and Another Vs. State of T.N. and ors.:(2000) 7 SCC 618, the Supreme Court taking note of the fact that in a few cases where mistakes were committed while issuing diplomas/certificates to the teachers coming out of derecognized or unrecognized institutes was held to be detrimental to the interest of the nation itself. On a survey of earlier opinions, the Supreme Court observed thus:
"14. Having regard to the specific stand of the respondents and in the light of the Division Bench judgment of the High Court in the case of the P.M. Joseph which was affirmed by this Court in Civil Appeal Nos. 2914-16 of 1993 decided on June 15, 1993 (St. John's Teachers Training Institute case) aforementioned no mark sheet or diploma/ certificate can be issued. Further two special leave petitions filed against the same judgment of the High Court (SLP No. 10110/ 93 and 9421/93) were also dismissed by this Court on 4-10-1993 and 19-7-1993 respectively. It is not expected that the respondents would issue diplomas/certificates with the endorsement to other candidates. Assuming that in few cases such mistakes are committed in issuing diplomas/certificates with the endorsement that the Teacher Training Institute in which a student studied is not recognized by the Director of School Education, Government of Tamil Nadu, such mistakes cannot be allowed to be repeated or perpetuated in the light of the judicial pronouncements referred to above, which have become final. Added to this, the institutes where the Petitioners underwent training which were de- recognized by virtue of judgment in P.M. Joseph's case were covered by the said judgment. Hence the Petitioners cannot escape but are bound by the said judgment. Their seeking writ of mandamus for issuance of mark sheets and/ or diplomas/certificates contrary to the said judgment, that too after a period of six years, could not be granted by the High Court and rightly so in our opinion. We are of the (29 of 36) [CW-18442/2017] considered opinion that before teachers are allowed to teach innocent children, they must receive appropriate and adequate training in a recognized training institute satisfying the prescribed norms, otherwise standard of education and career of children will be jeopardized. In most civilized and advanced countries, job of a teacher in primary school is considered important and crucial one because moulding of young minds begins in primary schools. Allowing ill-trained teachers coming out of derecognized or unrecognized institutes or licensing them to teach the children of impressionable age, contrary to the norms prescribed, will be detrimental to the interest of the nation itself in the sense that in the process of building a great nation, teachers and educational institutions also play vital role. In cases like these, interest of individuals cannot be placed above or preferred to larger public interest. Thus considering all relevant aspects, Petitioners' prayers cannot be granted. Hence we do not find any substance in the second contention urged by the learned Counsel for the petitioners."
34. The plea of adjudication in the case of Rahul Kumar Jain & Anr.
Vs. State of Rajasthan and Ors.:SBCWP No.16532/2017, decided on 5th March, 2018, may not detain for this Court for a long for the adjudication cannot be treated as precedent in the face of adjudication by a Division Bench of this Court in the case of Sher Singh & Ors.
(supra), and is per incurium. In the case of Roger Shashoua and ors.
Vs. Mukesh Sharma and Ors.: (2017) 14 SCC 722, the Supreme Court while explaining the meaning of ratio decidendi and per incuriam rule, observed thus:
"42. In Sundeep Kumar Bafna (supra), the Court referred to the Constitution Bench decision in Union of India v. Raghubir Singh and Chandra Prakash v. State of U.P. and thereafter expressed its view thus:
"19. It cannot be overemphasized that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam Rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, Rule or Regulation, which was not brought to the notice of (30 of 36) [CW-18442/2017] the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam Rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam."
55. At this juncture, we think it necessary to dwell upon the issue whether Shashoua principle is the ratio decidendi of BALCO and Enercon (India) Ltd. (supra) and we intend to do so for the sake of completeness. It is well settled in law that the ratio decidendi of each case has to be correctly understood. In Regional Manager v. Pawan Kumar Dubey, a three-Judge Bench ruled:
7. ... It is the Rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts."
56. In Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. MANU/SC/0219/2002 : (2002) 4 SCC 638, another three-Judge Bench, dealing with the concept whether a decision is "declared law", observed:
"7. ...But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law" it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered....
(31 of 36) [CW-18442/2017]
63. Thus, the analysis made in the said case, the two- Judge Bench has opined that a precedent is a judicial decision containing a principle which forms an authoritative element termed as ratio decidendi and any reasons assigned in support of such interim order containing prima facie findings are only tentative. There cannot be any quarrel over the aforesaid proposition of law. However, the controversy involved in this case has its distinctive characteristics. The Commercial Court in London, interpreting the same agreement adverted to earlier judgments (may be in anti-suit injunction) and held that in such a situation the Courts in London will have jurisdiction. The analysis made therein, as has been stated earlier, has been appreciated in BALCO and Enercon (India) Ltd. (supra) and this Court has approved the principle set forth in the said case. Once this Court has accepted the principle, the principle governs as it holds the field and it becomes a binding precedent. To explicate, what has been stated in Shashoua as regards the determination of seat/place on one hand and venue on the other having been accepted by this Court, the conclusion in Shashoua cannot be avoided by the parties. It will be an anathema to law to conceive a situation where this Court is obligated to accept that the decisions in BALCO and Enercon (India) Ltd. (supra) which approve Shashoua principle are binding precedents, yet with some innate sense of creativity will dwell upon and pronounce, as canvassed by the learned senior Counsel for the Respondent, that inter-party dispute arose in the context of an anti-suit injunction and, therefore, the same having not attained finality, would not bind the parties. This will give rise to a total incompatible situation and certainly lead to violation of judicial discipline. We cannot conceive it to be permissible. Therefore, without any hesitation, we reject the said submission."
35. In the case of Government of Andhra Pradesh & anr.
Vs. B. Satyanarayana Rao (Dead) by LRS & Ors. etc. etc.:
(2000) 3 SCC 715, the Supreme Court held that rule of per incuriam can be applied where a Court itself omits to consider a binding precedent of the same Court or the superior Court. At this juncture, it will be profitable to take note of text of paragraph 8, which reads thus:
(32 of 36) [CW-18442/2017] "8. Learned counsel for the respondent attempted to convince us that the decision in the case of State of A. P. v. V. Sadanandam (supra) has to be ignored on the principle of per incuriam as certain relevant provisions of the Rules were not considered in the said case, and in any case this case requires to be referred to a larger Bench of three Judges. Rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. This is not the case here.
In State of A. P. v. V. Sadanandam (supra) the controversy was exactly the same as it is here and this Court after considering paragraph 5 of the Presidential Order of 1975 held that the Government has power to fill a vacancy in a zone by transfer. We, therefore, find that rule of per incuriam cannot be invoked in the present case. Moreover, a case cannot be referred to a larger Bench on mere asking of a party. A decision by two Judges has a binding effect on another co-ordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law. We, therefore, reject the arguments of learned Counsel for the respondents."
36. In the case of State of U.P. and another Vs. Synthetics and Chemicals Ltd. And Another: (1991) 4 SCC 139, the Supreme Court observed that decision not express, nor founded on reasons nor proceeding on consideration of the issue, cannot be deemed as "law declared". Here it will be relevant to take note of the text of paragraph 18, 25 and 32, which reads thus:
"18. It is in this background that the cardinal question has to be examined, that is, whether or not the power of the State to levy tax on the sale or purchase of goods falling under Entry 54 of List II will comprehend industrial alcohol. It is significant that the taxing power of the State on a matter falling within its competence under this Entry, namely, sale or purchase of goods (other than newspapers) is, subject to the taxing power of Parliament under Entry 92A of List I, and other provisions of the Constitution, plenary and unlimited, and untrammelled by the supervisory or regulatory power of Parliament under Entry 52 of List I read with its concurrent power under Entry 33 of List III. This is the crucial distinction between the wide taxing power of the State under Entry 54 of List II and its conditional or restricted taxing power, for example, over (33 of 36) [CW-18442/2017] mineral rights mentioned in Entry 50 of that List which was considered in India Cement Ltd. & Ors. v. State. of Tamil Nadu & Ors., [1990] 1 SCC 12. Similarly, the power of the State in respect of potable alcohol (as distinguished from industrial alcohol) falling under Entry 8 of List II is significantly unfettered, unlike, for example, mines and mineral development over which the regulatory power of the State is specifically stated to be subject to the regulatory power of Parliament (see entry 23 of List II read with Entry 54 of List I). The legislative competence of the State in respect of mines and -I minerals was accordingly held to be denuded to the extent that the 83 field was covered by section 9 of the Central Act, namely, Mines and Minerals (Regulation and Development Act), 1957 see India Cement (supra). Unlike mines and minerals, alcohol stands on a different footing, and is dealt with differently, dependant on whether it is potable or not. What is significant is that legislation falling in pith and substance under Entry 8 or Entry 51 of List II in relation to alcoholic liquor for human consumption (as distinguished from industrial alcohol) whether for the purpose of levying vend fee or transport fee or excise duty, strictly confined to such articles, is not subject to challenge on the ground of legislative incompetence or repugnancy by reason of the power vested in Parliament under Entry 52 or Entry 84 of List I or Entry 33 of List III. Incompetence or repugnancy arises only when the impact of the legislation falls, not incidentally, but substantially on industrial alcohol so as to transgress on a field occupied by Parliament.
25. The power of regulation and control is separate and distinct the power of taxation. Legislative exercise of regulation or control referfable to Entry 52 of List I or Entry 8 of List II is distinct and different from a taxing power attributable to Entry 54 of List II or Entry 92A or 92B of List I. The power to levy taxes on sale or purchase or consignment in referrable to these Entries, and subject to the other provisions of the Constitution, the taxing power of the State is not cut down by the general legislative control vested in Parliament and 87 referrable to the general topics of legislation.
32. These decisions unmistakably demonstrate the power of the State to levy taxes on the sale or purchase of goods other than newspapers but subject to Entry 92A of List I which deals with the legislative power of Parliament to levy taxes on the sale or purchase of goods other than newspapers where such sale or purchase takes place in the course of inter-State trade Or commerce. Subject to the overriding power of Parliament in respect of what falls under Entry 92A and the provisions of Article 286, the State has full legislative competence in levying taxes (34 of 36) [CW-18442/2017] on the sale or purchase of goods other than newspapers. The power to tax under Entry 54 of List 11 being a specific power, it cannot be cut down or in any manner lettered by the general power of control exercised by Parliament by legislation on a matter falling under Entry 52 of List I relating to an industry, the control of which by the Union is declared by Parliament by law to be expedient in the public interest, read with Entry 33 of List III dealing with trade and commerce in and the production, supply and distribution of the products of any such controlled industry, and imported goods of the same kind as such products, and other articles mentioned in Entry 33. The impugned provision of the Uttar Pradesh Sales of Motor Spirit, Diesel Oil and Alcohol Taxation (Amendment) Act, 1976 levying tax at the 90 point of first purchase of alcohol in the State is undoubtedly an impost failing in pith and substance under Entry 54- of List II. In the absence of any fetter on the legislative power and in the absence of any valid challenge against the provision as a colourable piece of legislation, the impugned legislative enactment remains unimpeachable.
37. From the factual matrix of the case at hand, it is evident that the State-respondents issued advertisement providing for eligibility criteria in consonance with law declared by the Division Bench of this Court in the case of Sher Singh and ors. (supra). The advertisement inviting application from eligible candidates for appointment to the post of Teacher Gr.III (Level-II), was issued on 30th October, 2017. Hence, the Notification dated 21 st February, 2018, prescribing a criteria contrary to the terms and conditions of the advertisement dated 30th October, 2017, cannot be upheld.
Further, the criteria amended subsequent to declaration of result of the recruitment process, involved herein; also runs contrary to the opinion of the Division bench in the case of Sher Singh and Ors. (supra). The criteria is also contrary to the Notification dated 29th July, 2011, issued by National Council for Teacher Education, 1993, which has been enacted with the object to achieve planned (35 of 36) [CW-18442/2017] and Co-ordinated development of teacher education system throughout the country.
38. For the reasons and discussions aforesaid and in view of the singular facts of the case at hand; the writ application succeeds and is hereby allowed.
39. The State-respondents are directed to re-draw the merit list for 927 vacancies for the post of Teacher Gr.III (Level-II) Science and Mathematics; separately, in consonance with Notification dated 29th August, 2017.
No costs.
(VEERENDR SINGH SIRADHANA),J
Pooja/pcg
(36 of 36) [CW-18442/2017]
As per direction of His Lordship, this matter may be listed in the category of "pronouncement of order" on 3 rd April, 2018, in Court No. 8.
S.B. Civil Writs No. 18442/2017 Satish Kumar
----Petitioner Versus The State Of Rajasthan & Ors.
----Respondents For Petitioner(s) : Mr. Mahendra Shah, Mr. Vigyan Shah, Mr. Kamlesh Sharma For Respondent(s) : Mr. S. K. Gupta, AAG, Mr. Banwari Lal Sharma, Mr. N. N. Sharma HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA By Order (Court Master)