Patna High Court
State Of Bihar And Ors. vs The Chairman, Vidyalaya Sewa Board And ... on 16 December, 2004
Equivalent citations: 2004(3)BLJR2333
ORDER Nagendra Rai, A.C.J. and S.N. Hussain, J.
1. All the eight appeals are barred by limitation.
2. Having heard learned counsel for the parties and taking into consideration the averments made in the limitation petitions, we find that sufficient cause has been shown for condonation of the delay. Accordingly, the delay in filing the appeals is condoned and the limitation petitions, thus, stand allowed.
3.. Four appeals bearing L.P.A. Nos. 439, 445, 446, and 447, all of 2001 arise out of C.W.J.C. Nos. 7732, 2294, 8926 and 9259, all of 2000, which related to appointment of Biology Teachers in the Secondary Schools in the State of Bihar. The learned Single Judge by order dated 15.2.2001 has disposed of those writ applications and directed the State to consider the cases of the appellants both in the unreserved and reserved categories, i.e. 50% of the posts against the existing vacancies, both in the Secondly and Project Schools and its was further directed that the whole exercise was to be completed within a period of three months.
4. L.P.A. Nos. 1347, 1354, 1380 and 1435, all of 2001 arise out of C.W.J.C. Nos. 12625/2000, 3920/2001, 752/2001 and 3773/2001, which related to appointment of Mathematics Teachers in the Project Schools. The learned Single Judge, by order dated 19.9.2001, allowed the writ applications in the light of the direction issued in C.W.J.C. No. 2994/2000 and other analogous cases.
5. The facts which are not in dispute are that on 9.3.1888, the Director, Secondary Education, Government of Bihar, sent a requisition to the Vidyalaya Sewa Board for sending panels of teachers in Mathematics, Biology and other subjects. The number of vacancies in the Biology subject was 400, in the Mathematics, it was 200 and in physical education, it was 125. The advertisement was published for appointment of Assistant Teachers in the Nationalised Secondary Schools as well as in the Project Schools. According to the advertisement, qualifications of Graduation from a recognised University, B.Ed./Dip-in-Ed./C.T or other equivalent training were required for the said post. Vidyalaya Sewa Board prepared a (sic) 1990 for appointment in the Biology subject. On 20.2.1991, the State Government did not approve the panel and cancelled it and demanded a fresh panel. In the meantime, new reservaton policy of the State Government came into force in 1991. It appears that panels of other subjects were sent and no objection was raised, but the Education Department vide letter dated 4.11.1993 raised objection not to send the panel with regard to these three subjects unless roster clearance is made according to the new reservation policy. The Board in terms of the earlier requisition issued a fresh advertisement in the year 1995 in the subjects of Economics, Mathematics, Biology and Physical Education dispensing with the requirement of training for appointment of teachers. In the said advertisement, the State Government clarified that those, who have already applied pursuant to the earlier advertisement, were not required to apply against. In case, the applicants had become age-bar, they were to be treated as eligible and, thereafter, a fresh advertisement was issued in 1995, by which applications were invited. Untrained teachers were also permitted to apply.
6. The writ petitioners of C.W.J.C. No. 9259 of 2000 applied in pursuance of earlier advertisement and the petitioners of other writ applications applied in pursuance of subsequent advertisement. The Board prepared a fresh panel and sent the same in 1998 for appointment, the State Government arbitrarily and without any cause has not made appointment. Hence, the writ applications were filed.
7. The State has admitted that in view of the several allegations, earlier panel sent by the Board was cancelled and vide letter dated 20.2.1991, as request was made to send a fresh panel in different subjects including Biology with a clear stipulation that the candidates who have applied, need not apply afresh. While the said request was made, in the meantime new reservation policy of 1991 came into force and was introduced by the State Government in 1991 and a modified Rules was introduced in 1993 and by letter dated 4.11.1993 the Vidyalaya Sewa Board was informed that according to the new Rules of reservation, no appointment can be made. It was further intimated that according to the information received from the Field Officers, the vacancies in Biology subject and Mathematics subject are few and the number of backlog is very high. The Board was requested not to send the panels in the said subject till further request was made by the department to that effect. However, the Vidyaiaya Sewa Board sent the panel. Subjects were also indicated in the counter-affidavit but it is to be stated that the learned Single Judges having accepted the number of vacancies as given by the State in the subject of Biology and Mathematics have issued the direction.
8. The learned Single Judge in the earlier batch of the applications allowed the case on the ground that though inclusion of the name in the panel does not give indefeasible right to a candidate, but once his name is included in the panel, his candidature cannot be rejected on the whims and caprices of the State Government and the reasons have to be assigned for not making appointments. The reason assigned by the State Government for not making appointment that as the new reservation policy has come into force in the meantime and a fresh roster has to be prepared, was irrelevant and that ground was taken without application of mind for the simple reason that the candidates selected, include both general as well as reserved candidates and the State Government cannot fill up the backlog in a particular year, on the other hand, the vacancies have to be treated yearwise and in that vacancy reservation has to be made keeping in view the maximum limit of 50%. He also did not accept the case of the State with regard to the fact that even untrained teachers would be appointed on the ground that the advertisements were made in pursuance of that the writ petitioner-respondents were selected and that can be challenged subsequently by unsuccessful candidates after appointments are made of untrained candidates and in view of the urgency of the matter, the appointment cannot be withheld on that ground. In the subsequent batch of the writ applications, the learned Single Judge also adopted the same reasoning as stated above.
9. The facts, which have emerged are that on the request of the State Government, a panel was prepared in two subjects and when the panel was sent to it for making appointment, it has not passed any order up-till-now but in the writ application, a plea was taken that because of new reservation policy, which requires roster clearance, a fresh panel is to be prepared.
10. A great Philosopher Sir Arbindo and sage of our times said : "The past is our foundation, the present our material and the future our aim and summit. Each must have its due and natural place in a national system of education". The past is praiseworthy. But the present education system, we can only say what was sensed by Marcellus in Scene V of Act I in Shakespeare's Hamlet "Something is rotten in the State of Denmark". The future is uncertain and as such what would be the dialogue between the past, present and future in the education system in this State is dark. Be that as it may, we have to decide the controversy and not to go into all these things, hoping that a day will come when the education system will improve in this State.
11. The settled-law is that mere inclusion in the select list does not confer on the candidates empanelled in the list an indefeasible right to appointment, but at the same time, it is also equally well-settled that the State cannot act on its whims or caprices. It has to act fairly and the decision not to fill up vacancies is to be taken for relevant or appropriate reasons. In this connection, it is relevant to quote the law laid down by a Constitution Bench of the Apex Court in the case of Shankaran Das v. Union of India, reported in (1991) 3 SCC Page 47, wherein at paragraph No. 7 it was held as follows :-
"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha, (1974) 3 SCC 220, Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 or Jatendra Kumar v. State of Punjab, (1985) 1 SCC 122."
12. The Apex Court, while considering the aforesaid case in the case of Asha Paul v. State of J&K, reported in (1993) 2 SCC 573 has held that the other respect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, in pursuance of which the Commission issues a notification, holds written test, conducts interview, prepares a select list and then communicates to the Government and the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. No Government can adopt such a stand with any justification today and in this connection they relied upon a judgment in the case of Shankarsan Das(supra).
13. After receipt of the panel, the Government has not taken any decision and is sitting over the matter since 1988. As stated above, there is no dispute that the whole education system is in disarray. Since 1988, no appointment has been made in the subjects. One can imagine the fate of the students and the position of the Secondary and Project Schools and also the fate of the younger generations of the State. .
14. The learned Single Judge, relying upon the judgment of the Apex Court in the case of Indra Sawhney v. Union of India, reported in AlR 1993 SC 477, has rightly held that the existing vacancies cannot be filled up from the reserved categories alone and if there is backlog then the recruitment cannot exceed 50 per cent of the vacancies and a year has to be taken as a unit or basis, as the case may be, for applying the rule of 50% and not the entire cadre strength.
15. Thus, the very ground given by the State Government for not making appointment is non est or a pretext not to proceed with the appointment. There is another reason to come to be conclusion that the ground taken by the State Government is not fair for the reason that the process of appointment had started in 1988 and as such the policy of reservation, which was in force at the relevant time, when the selection process had started, will cover the case and not the subsequent amendment.
16. Dr. S.N. Jha, learned Senior Counsel appearing for the students in Biology subject in L.P.A. No. 447 of 2001, arising out of C.W.J.C. No. 9259/2000, submitted that the only trained teachers should to be appointed in terms of the Rule and untrained teachers cannot be appointed. The other submission advanced by Dr. Jha is that once the rule required that the training is must for appointment of teachers, the same cannot be done away by any executive instruction.
17. We are unable to agree with the aforesaid submissions. The requirement of training has not been done away by the executive instruction/circular, rather it has supplemented the rule that even untrained teachers can also apply. Thus, it is not a case of sub-planting, but a case of supplementing the rules. Thus apart, in a similar matter where untrained persons were also first appointed as teachers in Primary Schools, the matter came to this Court and this did not interfere with the matter. The said judgment was upheld by the Apex Court in the case of Ram Vinay Kumar v. State of Bihar, reported in 1997 (1) PLJR 108.
18. Thus, we do not find any cogent reason to take a different view than what has been taken by the learned Single Judge. Accordingly, all the eight appeals are dismissed and the State is directed to consider the matter in the light of the directions issued by learned Single Judge in those writ applications.