Rajasthan High Court - Jaipur
Sarada Panchayat Samiti Iii Gr. ... vs State Of Rajasthan And Anr. on 12 November, 1991
Equivalent citations: 1991(2)WLN421
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT A.K. Mathur, J.
1. This writ petition along with the writ petitions mentioned in Schedule Appended to this order involves common questions of law, therefore, they are disposed of by this common order.
2. For the convenient disposal of all these writ petitions, the facts given in the case of S.B. Civil Writ Petition No. 2709/1991: Sarada Panchayat Samiti III Grad Teachers Association v. State of Rajasthan and Anr. are taken into consideration.
3. This writ petition has been filed by the Association of IIIrd Grade Teachers, whose members have been mentioned in the annexed Schedule A appended to the writ petition for espousing the common cause of all the Primary School Teachers Grade III working in the Sarada Panchayat Samiti District Udaipur.
4. It is alleged that all the members of the Association possessed the minimum requisite qualifications except the training for appointment to the post of Teacher Grade III in the present Panchayat Samiti. All these petitioners have prayed that there services may be regularised on the post of Primary School Teacher Gr. III with effect from the date of their initial appointment and they should be paid all consequential benefits and reliefs thereof. Therefore, it is prayed that the order, extending the term of teachers upto 31.5.1991, Ex. P. 7 dated 15.5.1991 may be quashed and all these teachers may be regularised and paid salary of the post.
5. It is unfortunate that the Teachers have again approached this Court by filing these writ petitions. This is the third round of litigation. The first batch of writ petitions of came up before this Court and the same were disposed of by a Division Bench of this Court in the case of Chanda Tamboli v. The Panchayat Samiti, Mandal and Anr. (D.B. Civil Writ Petition No. 2795/87, decided on June 15, 1988). In that writ petition all the questions were examined in detail and certain criterias were laid down by the Division Bench that first preference should be given to the selected candidates/teacher, then, the trained teachers should be appointed and even after some vacancies remains then untrained teachers may be paying the fixed emoluments of Rs. 400/- per month should be discontinued and all the teachers should be paid regular scale of pay admissible to Teachers Gr. III under the Pay Scales Rules and it was also laid down that they should not be appointed for the academic session only and they should be paid salary for the vacation period also. This matter was agitated before the Hon'ble Supreme Court also by filing Special Leave Petition by the untrained Teachers under Article 32 of the Constitution of India. The decision of the Division Bench in the case of Chanda Tamboli (supra) was challenged before the Hon'ble Supreme Court in the case of Ram Sukh and Ors. v. State of Rajasthan and Ors. and in that the decision given in Chanda Tamboli by this Court was upheld in toto and it was clarified that the observations made in Chanda Tamboli's case by the High Court to get the untrained teachers trained in a phased programme to enable them to improve their future prospects do not mean that it is obligatory for the Government to continue the untrained teachers till they are properly trained. It was also observed in para 7 of the judgment in Ramsukh's case (supra) as under:
7. These observations are equally relevant to primary school teacher with whom we are concerned. The primary school teachers are of utmost importance in developing a child's personality in the formative years. It is not just enough to teach the child alphabets and figures, but much more is required to understand child psychology and aptitudes. They need a different approach altogether. Only trained teachers could lead them properly. The untrained teachers can never be proper substitute to trained teachers. We are, therefore, unable to give any relief to the petitioners.
6. It was observed in para 8 of the judgment that however, these teachers have served in rural areas and by this time some of them might have become over-age. Therefore, the Government may allow them relaxation in age to the extent of service rendered as teachers for appointment under the State if they possess other requisite qualifications. Para 8 reads as under:
8. We may, however, observe that since petitioners have served in rural areas, it would be proper for the Government to allow them relaxation in age to the extent of service rendered as teachers, for appointment under the State if they possess other requisite qualifications. We accordingly direct the State Government to make an appropriate rule or order to that effect.
7. It may also be relevant to mention here that some of the teachers who were parties in Chanda Tamboli's case, have again approached this Court by filing writ petitions as members of the Association and some of the writ petitions mentioned in the Schedule have again been filed by same teachers who have failed to get relief in that litigation. But notwithstanding the fact that the Hon'ble Supreme Court while affirming the judgment of Chanda Tamboli categorically laid down that untrained teachers can never be proper substitute to trained teachers, they have again filed these writ petitions. It was also observed that primary school teachers are of utmost importance in developing a child's personality in the formative years. It is not just enough to teach the child alphabets and figures, but much more is required to understand child psychology and aptitudes and that can only be done by trained teachers. Therefore, the importance of the trained teachers was specifically emphasised.
8. It may also be relevant to mention here that another Division Bench of this Court in Smt. Yashoda Rani etc. v. State of Rajasthan and Ors. 1989 (1) RLR 69 also considered the same question.
9. Then, again a Division Bench of this Court has to consider this aspect in the case of Hari Charan v. State of Rajasthan and Ors. D.B. Civil Writ Petition No. 3112/88, decided on 7.11.1988 and in that case also it was held in reference to Rule 23(6) of the Rajasthan Panchayat Samitis and Zila Parishads Service Rules, 1959 (referred to hereinafter as the Rules of 1959') that such temporary appointments made by the Panchayat Samitis from time to time should automatically be discontinued as soon as the selected candidates are made available.
10. Then, again the matter came up before this Court in the case of Kanti Lal v. State of Raj. and Anr. S.B. Civil Writ Petition No. 1656/89, decided on 16.12.1989 and following the decision of Chanda Tamboli's the Court examined the fate of the untrained teachers and it was observed that the untrained teachers may be trained in a phased programme, but these persons after getting training will have no right to be kept in service in case the selected candidates are made available.
11. Then, again the matter of these untrained teachers came up before this Court in another batch of writ petitions which were disposed of by this Court vide its judgment dated 20.11.1990 delivered in the case of Rajvendra and Ors. v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 3663/1990; wherein after examining the various provisions of the Rules of 1959 it was observed that the Circular issued by the Government is beyond the scope of the Rules. Therefore, the same was struck down and the same position as was held in the case of Chanda Tamboli was reiterated.
12. Then again the matter of lady teachers came up for consideration before this Court and the writ petition was dismissed after examining the matter with reference to the rules obtaining for lady teachers and it was held that untrained lady teachers can only be appointed provided there are no trained teachers available in the four districts viz. Dungarpur, Banswara, Barmer and Jaisalmer in the case of Smt. Harsh Lata v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 2792/90, decided on 15.3.1991. Aggrieved against this a special appeal was preferred and the decision of the learned Single Judge was affirmed and it was clearly held in Smt. Harsh Lata v. State of Rajasthan and Ors. D.B. Civil Special Appeal (Writ) No. 136/91, decided on 27.3.1991 that the selected teachers should be first appointed and if still vacancies remain the untrained teachers should be appointed after absorbing the trained teachers. This is in short the history of litigation pertaining to these teachers.
Now, again these teachers have approached this Court now basically on the ground that since they have remained in service for a number of years therefore, their services should be regularised notwithstanding the fact that they are untrained.
13. Learned Counsel for the petitioners have made this as a principal plank for challenging their termination that they should be regularised notwithstanding the fact that the petitioners are untrained teachers and their long experience should be considered to be a good substitute for the training and in that connection a great emphasis has been laid on the observation made in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation and various other judgments of the Hon'ble Supreme Court where the Hon'ble Supreme Court has regularised the services of the incumbents on account of long continuation in service. In this connection, reference was also made to the decision of this Court given in Kalu Ram v. State of Raj. and Anr. WLR 1991(S) Raj, 451.
14. Next, it has been submitted that some of the teachers have been appointed under the Black Board Scheme sponsored by the Central Government and the Rules of 1959 have no relevance and a power has been given to the Chief Executive Officer to make appointment. Therefore, the procedure prescribed under the Rules of 1959 should not be followed. It was also contended with reference to a circular issued by the Government that 30% of the posts should be reserved for the surplus employees declared from the various departments to be absorbed against the post of teachers, it was, submitted that this is illegal because when these untrained teachers cannot be regularised then how untrained personal of other departments can be absorbed.
15. As against this learned Counsel for the respondents submitted that some of the petitioners were parties in the case of Chanda Tamboli and that matter has reached upto the Hon'ble Supreme Court and all these arguments which were now sought to be raised were considered and rejected. Therefore, according to the law of precedence, this controversy should not be raised again. In this connection learned Counsel has invited my attention to Nityananda Kar and Anr. v. State of Orissa and Ors. etc. ; The Direct Recruit Class II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors. ; Anil Kumar Neotia and Ors. v. Union of India and Ors. .
16. Learned Counsel has also submitted that against the decision given in the case of Kalu Ram (supra) by the Hon'ble Chief Justice, a review petition as well as a special appeal has already been filed and the same is pending. It is submitted that no body has appeared on behalf of the respondents and the petitioner has not brought to the notice of the Hon'ble Chief Justice the decision given in the case of Ramsukh (supra).
17. Learned Counsel for the respondents submitted that the judgment should be treated as per incuriam. Learned Counsel in this connection has invited my attention to Punjab Land Development and Reclamation Corporation Ltd. Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors. ; A.R. Antulay v. R.S. Nayak and Anr. ; and Andhra Kesari Educational Society v. Director of School Education and Ors. .
18. In the light of the various decisions of this Court given in relation to these very teachers. I shall examine the arguments advanced by the learned Counsel for the parties in greate detail.
19. The service conditions of these Third Grade Teachers working under the various Panchayat Samitis spreading all over Rajasthan are governed by the Rules known as the Rajasthan Panchayat Samitis and Zila Parishads Service Rules, 1959 (referred to hereinafter as 'the Rules of 1959').
20. Before I proceed to examine, the arguments, it will be relevant to give a short resume of these Rules. The Rules have been framed by the Government under the purported exercise of powers conferred by Sub-section (1) of Section 79 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (referred to hereinafter as 'the Act of 1959'). Rules 2 deals with the definitions and Rule 3 lays down the strength of service. Rule 4 deals with the categories of posts. In that about 18 categories have been mentioned. One of them is Primary School Teachers. Rule 5 deals with the initial constitution of the service. This was only for initial constitution at the time of promulgation of the Rules. Rule 6 deals with the sources of recruitment. There are three sources of recruitment provided under the Rules; One is by direct recruitment, another is by promotion from the lower post to a higher grade and third is by way of transfer. Then, other rules deal with various aspects like reservation of vacancies, determination of vacancies, age, etc. Rule 11 deals with the academic qualifications and qualifying service. Rule 11 lays down that for recruitment to the various categories of service incumbent should possess the minimum educational qualification or technical qualification and experience as detailed in the Schedule appended to the Rules. Thereafter the Legislature has provided the procedure for direct recruitment and how it will take place and for recruitment there should be a District Establishment Committee. On requisition the District Establishment Committee shall invite the applications through advertisement. Rule 23 deals with the temporary appointments and Sub-rule (6), which has been newly inserted lays down that as soon as the regularly selected candidates are made available, the candidates so made available and placed at the disposal of the Panchayat Samiti/Zila Parishad shall be appointed, by the appointing authority forth-with, on the vacancies against which temporary appointments have been made and on their reporting shall not be entitled to salary thereafter. Under Rule 23 the appointing authority can appointment incumbent temporarily for a period not exceeding six months. The period of such temporary appointment may however be extended beyond six months only with the previous concurrence of the Committee. But the temporary appointment under this Rule shall not be continued for period exceeding 12 months without the prior concurrence of the Commission. Then, under the Heading of Pay various other provisions relating to pay scales are dealt with.
21. Since in the present case, the basic controversy is regarding the academic qualification of an incumbent, therefore, it is necessary to reproduce here the Schedule appended to these Rules. Originally the Schedule provided 4 grades for the Primary School Teachers, which read as under:
S.No. Category of Scale of pay & Qualificati-on re- Post from which Minimum Remarks post & Grade special pay quired for direct appointment can Experience (if any) recruitment. be made by qualifications promotion required for promotion 1 2 3 4 5 6 7
2. Primary Grade I Matric Trained (i) Holder of un- Must be No. Direct School (Trained trained Matric Matric & recruitment Teachers. Matric) Grade Trained. in Grade III 604-80 5- & 100-EB-5-130
(ii) Holders of IV will have Trained Middle now be Grade. passed made Grade II (Un Holders of Un- Must have Trained trained Middle passed Matric/Matric) Grade. Matric 50-4-70-5.-80 Grade III _ _ _ _ (Trained Middle) 50-2-60-3-75.
Grade IV. _ _ _ _
(Untrained
Middle)
40-1-50
22. According to this Schedule there used to be 4 categories of teachers which have separate pay scales and separate qualifications. At that time also a Matric Trained Grade was only given to the trained teachers, and Grade II was given to untrained Matric candidates and Grade III was given to the trained Middle candidates and Grade IV was given to untrained Middle candidates. There used to a graded promotion also at that time, but in the remarks column it was clearly mentioned that no direct recruitment in Grades III and IV will now be made, meaning thereby this grade was to be phased out slowly and slowly. Thereafter from 1962 the amendments were brought about in the Pay Scales Rules and the pay scale of Rs. 60-4-80-5-100-EB-5-130 was revised to Rs. 60-4-80-5-100-EB-5-130. Then in 1969 another amendment was brought about in the Pay Scales Rules, which is known as the Rajasthan Panchayat Samitis and Zila Parishads Service (New Pay Scales) Rules, 1969 (referred to hereinafter as 'the Pay Scales Rules of 1969'). These Rules were framed under Section 79 read with Section 31 of the Act of 1959. In these pay scales Rules only one category was described which is known as 'Primary School Teachers' and the Pay Scales and the qualifications for appointment were laid down which read as under:
"6. Primary School 75-4-95-5-105-E 110-5-1 (7)(1) Pay in this scale will be Teachers. B-5-120-130-EB 60-8-20 admissible to the existing
-155-SB-165-5- 0-10-230. employees as well as fresh 200(8) recruit subject to the condition that they are at least trained matriculates or they are deemed trained matriculates, on account of experience under existing orders issued by the Govt. from time to time or persons with one year Jr. B.S.T.C. or equivalent training irrespective of whether they passed H.S. or H.S.S. prior to training.
(2) Existing persons drawing
pay in the scale of 75-200 with
B.Ed, qualification shall be
allowed benefit of 3 advance
increments less advance
increment recd, already, if any.
(3) Newly recruited untrained
teachers appointed in this scale
shall get fixed pay of Rs. 105/-
p.m.
(4) Fresh recruits with B.Ed.
qualification shall get initial pay
of Rs. 125/-in this scale.
(5) Existing untrained teachers
who do not possess the
qualification mentioned above
and are drawing pay of Rs. 105/-
or less than Rs. 105/- in the
existing Scale will received fixed
pay of Rs. 105/- until trained
under existing orders.
(6) The pay of an existing
untrained teacher in the existing
pay scale of Rs. 75-200 drawing
pay more than 105/- p.m. but
not exceeding Rs. 130/- p.m.
shall be fixed at the minimum
pay of the New Pay Scale until
he gets trained or is deemed as
trained under existing orders
and the difference between the
pay in the existing pay scale and
the pay fixed at the minimum of
the New Pay Scale, if any, shall
be treated as personal pay to be
absorbed in future increments."
23. According to these 1969 Pay Scales Rules, it was clearly mentioned that this grade will be given to these teachers either they are trained matriculates or they have been deemed to be trained matriculates under the existing orders issued by the Government from time to time or persons with one year Jr. B.S.T.C. or equivalent training irrespective of the fact that whether they passed Higher Secondary or H.S.S. prior to training. It was also clearly mentioned that if the candidates who are untrained are appointed then they will only get Rs. 105/- (fixed) p.m. Then again these pay scales rules were further revised in the year 1977 and then again in 1983 and also in the year 1987. But in all these pay scales the training was not dispensed with. The last revision of the pay scale rules which has been brought to my notice is of the year 1987. There also the requirement is that this grade is available to the teachers who are trained. No relaxation whatsoever was issued by the Government nor the rules permit any such relaxation in the matter of academic qualification i.e. training. Rule 40 deals with relaxation but it only deals with relaxation of age or experience.
24. Learned Counsel for the petitioners submitted that in the very nature of the Rules they permit a graded promotion as required by Rules 6(b) and since these incumbents had remained in service for such a long period, therefore, their experience should be deemed to be a better substitute for training and their services should be regularised. In this connection, my attention was drawn specially to the decision of the Hon'ble Supreme Court in the case of Bhagwati Prasad (supra) and of this Court in the case of Kalu Ram (supra). My attention was also invited to various decisions of the Hon'ble Court wherein the services of the incumbents have been regularised, notwithstanding the fact for a longer period of time. In that connection, reference was made to Bhagwati Devi and Ors. v. Delhi State Mineral Development Corporation ; Dr. A.K. Jain and Ors. v. Union of India and Ors. 1987 (Supp) SCC 497; UP. Income Tax Department Contingent Paid Staff Welfare Association v. Union of India and Ors. 1987 (Supp) SCC 658; Daily Rated Casual Labour Employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India and Ors. ; Delhi Municipal Karamchari Ekta Union (Regd.) v. P.L. Singh and Ors. 1988 (Supp) SCC 95; The General Secretary, Bihar State Road Transport Corpn. Patna v. The Presiding Officer, Industrial Tribunal, Patna and Ors. JT 1988 (1) SC 29; Narender Chadha and Ors. v. Union of India and Ors. ; Jacob M. Puthuparambil and Ors. v. Kerala Water Authority and Ors. ; Ratan Lal v. Raj. Housing Board, Jaipur 1990 (1) RLR 255 and Pancha Ram & Am. v. State of Raj. and Ors. 1990(2) RLR 18 and so also Rabinarayan Mohapatra v. State of Orissa and Ors. and H.C. Puttaswamy and Ors. v. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and Ors. .
25. I have heard the rival submissions of the learned Counsel at length.
26. It is true that the Hon'ble Supreme Court in various contingencies has directed the regularisation of the services of the incumbents, but in the present case this litigation started from the case of Chanda Tamboli and these incumbents have been continued in service under the various stay orders granted by this Court and otherwise also. But the fact remains that they were all untrained teachers and that aspect was discussed by the Hon'ble Supreme Court in the case of Ramsukh (supra). In that case, the Hon'ble Supreme Court did not dispense with the training of these teachers and the argument of these incumbents that their services should be regularised because of long years of service put in by them was negatived. In para 3 the Hon'ble Supreme Court has narrated the back-ground how these petitioners have approached the Hon'ble Supreme Court under Article 32 of the Constitution which reads as under:
Being aggrieved by the decision of the High Court, the petitioners have filed these Special Leave Petitions. The decision in Chanda Tamboli case is also challenged in SLP No. 11899/88. The petitioner in W.P.No. 898/88 has not approached the High Court. He has moved this Court under Article 32 of the Constitution stating that it would be futitle to approach the High Court in view of the decision in Chanda Tamboli case. He may be right in his approach.
27. In para 4 their Lordships of the Supreme Court have pointed out that how these teachers when their services were terminated on the availability of trained teachers in conformity with the decision of the High Court in the case of Chanda Tamboli approached the Hon'ble Supreme Court by filing a petition under Article 32 of the Constitution. Then in para 5 the arguments were summarised as under:
5. The contention, however, urged for the petitioners before us is that they should be provided with facilities to undergo the prescribed training. We do think that we could accept the contention. We cannot, at any rate, direct the Government to put back the petitioners into service till they are trained. No doubt the High Court in Chanda Tamboli case has directed the State Government to get the untrained teachers trained in phased programme to enable them to improve their prospects for employment. But that does not, however, mean that it is obligatory for the Government to continue the untrained teachers till they are properly trained.
28. Therefore, the learned Counsel for the respondents is justified in say that when this argument has been considered relating to these very teachers and the same has been negatived then it is not proper for this Court to review the matter once again in the light of the decision given by the Hon'ble Supreme Court in the various other cases in other contingencies.
29. I think the submission of the learned Counsel for the respondents appear to be well founded. When the decision of this Court in the case of Chanda Tamboli has been affirmed by the Hon'ble Supreme Court and a specific request made by these teachers that their services should be regularised and they should be given the facilities for training has been negatived then this Court cannot ignore the law laid down by the Hon'ble Supreme Court in this very litigation and under these very Rules. In the various decisions which have been referred to by the learned Counsel, the humanitarian consideration was paramount for regularisation of the services of the incumbents who have put in long period of service running into 5 to 10 years or more on clerical or Class IV posts. But so far as the Teachers are concerned, this very submission has been negatived by the Hon'ble Supreme Court in the case of Ramsukh (supra). Therefore, all these decisions of the Hon'ble Supreme Court for regularisation cannot come to aid of petitioners. Their Lordships of the Supreme Court have categorically emphasised that these third grade teachers shape the young generations of India in their formative stage and they play a very important role, therefore, by no amount of sympathy with these teachers the training can be dispensed with. Their Lordships of the Supreme Court observed that these primary school teachers are of utmost importance in developing a child's personality in the formative years who require proper handling by well trained teachers and they have made reference to an earlier decision of the Hon'ble Supreme Court in the case of Andhra Kesari Education Society v. Director of School Education AIR 1980 SC 183, wherein it was observed as under:
The teacher alone could bring out the skills and intellectual capabilities of students. He is the engine' of the educational system. He is a principal instrument in awakening the child to cultural values. He need to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motives into action the benefited.
30. Therefore, dispensing of the training has been specifically negatived by their Lordships of the Supreme Court. When this very case governs the service conditions of these teachers, then the reference to other cases of the Hon'ble Supreme Court where the services have been regularised on certain contingencies has no meaning so far as the present cases are concerned and no useful purpose will be served by referring those various decisions of the Hon'ble Supreme Court which have no bearing so far as the teachers are concerned and regularisation of untrained teachers cannot be ordered in view of the decision given in Ramsukh's case (supra). Therefore, this argument of the learned Counsel cannot be sustained. In this connection, reference may be made to the case of the Direct Recruit Class II Engineering Officers Association (supra) wherein the constitutional bench headed by Sabyasachi Mukharji, C.J., as he then was, observed as under":
Decision dealing with important questions concerning particular service-Rendering of decision after careful consideration-It should be respected-Scrutiny for finding out possible error-Not proper,
31. Therefore, once a decision has been given under these very Rules and this argument has been negatived by the Hon'ble Supreme Court then no amount of decisions can come to the assistance of the petitioners for regularisation of their services.
32. Similarly, in the case of Nityanctnda Kar (supra) it was observed as under:
Where the Full Bench decision of the High Court in a writ petition challenging dispute between the mergerists of the service and the direct recruits ordered that the rights accrued and the benefits conferred or derived by assigning the year of allotment should not be disturbed, after understanding of the local conditions and the history of the service and that decision had become final as the Special the Supreme Court, it was held that the settled position by that decision and tradition followed for decades in the service of that State could not be disturbed and the principle of year of allotment could not be challenged in Supreme Court vicariously by way of civil appeal or writ petition.
33. Now, as per the short history which has been narrated above, it is clear that there used to be 4 grades of teachers but after 1969 onwards in the pay scales rules there is only one category of Primary School Teachers and the so-called four grades of teachers do not exist now and the importance of the training has been emphasised right from the year 1969 vide the Pay Scales Rules and specially in the year 1983. Now, there is only one pay scale provided for the Primary School Teachers i.e. Rs. 490-10-550-15-640-20-840. This was further revised in the year 1987 to Rs. 880-15-1000-20-1200-25-1400-30-1640-40-1680. Therefore, there is no category of untrained teachers exists and all the recruitments have to be of trained teachers. Learned Counsel for the petitioners made a reference to Rule 6(b) which provided the graded promotion. Rule 6(b) should be read in the context of the four categories of teachers which used to exist but from 1969 and specially from 1983 the concept of graded promotion of teachers from Middle to Matriculate has been dropped and now there is only one Matric grade, and for which training is must. Learned Counsel also submitted that the Schedule appended to the Rules of 1959 was not amended but the Pay Scales Rules of the Panchayat Samitis were amended from time to time and the service conditions are governed by the Rules of 1959, therefore, the graded promotion from untrained to trained is still permissible.
34. This contention of the learned Counsel cannot be sustained for the simple reason that in the pay scales rules which has also been framed in the purported exercise of the powers conferred by Section 79 of the Act and thereby the pay scales have been revised with qualifications. The pay scales, previously, were prescribed in the service rules itself but now separate pay rules have been framed from time to time along with the qualifications and the revision of pay. Therefore, simply because the service Rules have not been amended, that would not be enough to say that the concept of graded promotion is still in existence. When four categories of the teachers under the Heading 'Primary School Teachers' does not exist then the concept of graded promotion so far as the teachers are concerned has no meaning. Now, the only category amongst the teachers exists is the Primary School Teachers which is normally appointed in the Primary Schools running under the various Panchayat Samitis spreading all over Rajasthan.
35. The next submission of the learned Counsel for the petitioner was regarding relaxation in the academic qualifications being trained teacher should be dispensed with in view of the long experience of these incumbents who are in service from 1985, 1986 and 1987 onwards. As already mentioned above, broadly all these untrained teachers were kept in service on account of exigency of service and on account of the litigation which has spread over during this period and the untrained teachers by one way or the other agitated the matter from different angles and have continued in service under the stay petitions. But after the decision given in the case of Ramsukh (supra) by the Hon'ble Supreme Court all these controversies have now come to an end.
36. Much emphasis was placed by the learned Counsel on two decisions, one by the Hon'ble Supreme Court in the case of Bhagwati Prasad (supra) and another of this Court given in Kalu Rain's case.
37. In the case of Bhagwati Prasad (supra), the petitioners were daily rated workers working in the respondent Corporation. They approached the Hon'ble Supreme Court under Article 32 of the Constitution of India for direction to regularise their services in the respective units and to pay them equal wages with initial basic pay, D.A. and other admissible allowances at par with regularly appointed employees of the respondent performing the same and similar duties. These incumbents were appointed between 1983 to 1986. In that context, it was observed by the Hon'ble Supreme Court that the initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. It was observed that once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In this context it was overserved that 3 years experience ignoring the artificial breaks for short period could be sufficient for confirmation. But this was a case of daily rated workers and when we have a direct decision of the Hon'ble Supreme Court so far as these teachers are concerned, that will prevail in the matter as against this case.
38. In this connection, learned Counsel for the petitioners submitted that the decision given in the case of Ramsukh (supra) was of 2 Hon'ble Judges of the Supreme Court but the present decision was given by the 3 Hon'ble Judges, therefore, this should prevail as against that. As mentioned above, the question is not of counting the Heads, but the question in the present case is that a decision given in the same matters under the same service rules that will prevail and not the decision given in a matter of class IV daily rated workers that will prevail in the matter. Therefore, this contention of the learned Counsel cannot be of any avail to the petitioners.
39. Then, the next case, which has been emphasised is that of Kalu Ram (supra). That was a case of teacher but that case should have been heard with the batch of these writ petitions, but by chance it got separated and no counsel appeared on behalf of the respondents. Mr. Dave, learned Counsel for the respondents submitted that a review petition against that very judgment has been filed which is pending before this Court and likewise the appeal preferred by the respondents. It has also been submitted by Mr. Dave and Mr. Singhvi that the decision which has been given in the matters of these very teachers and under these very service rules i.e. Ramsukh's decision was not brought to the notice of the Hon'ble Chief Justice. Perhaps if that judgment was brought to the notice of the Hon'ble Chief Justice then the fate of this case would have been different.
40. In this connection, Mr. Singhvi learned Counsel appearing on behalf of the selected candidates has submitted that Kalu Ram's decision should be treated as per incuriam. In that connection, learned Counsel has invited my attention to Punjab Land Development & Reclamation Corpn.'s case (supra) and A.R. Antutlay's case (supra).
41. In Punjab Land Development & Reclamation Corpn. case (supra), the question was that the decision given in Hariprasad Shukla case correctly laid down the law or in the case of Sundara Money case in relation to Section 25 of the Industrial Disputes Act. In that connection it was observed as under:
Though the above announcement was not made in the course of judicial proceeding it shows that it is open to House of Lords to depart from the doctrine of precedent when considered justified. Section 212 of the Government of India Act, 1935 and Article 141 of the Constitution of India were enacted to make the law declared by the Supreme Court itself. The doctrine of ratio decided has also to be interpreted in the same line. In England a decision is said to be given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords. It has been said that the decision of the House of Lords mentioned above, refers to a decision subsequent to that of the Court of Appeal. However, "a prior decision of the House of Lords inconsistent with the decision of the Court of Appeal, but which was not cited to the Court of Appeal will make the later decision of the Court of Appeal of no value as given per incuriam." But if the prior decision had been cited to the Court of Appeal and that court had misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House to rectify the mistake. In Halsbury's Laws of England (4th Edn., Vol. 10, para 745), it has been said:
While former decisions of the House are normally binding upon it, the House will depart from one of its own previous decisions when it appears right in the interests of justice and of the proper development of the law to do so. Cases where the House may reconsider its own previous decisions are those involving broad issues of justice or public policy and questions of legal principle. Only in rare cases will the House reconsider questions of construction of statutes or other documents. The House is not bound to follow a previous case merely because it is indistinguishable on the facts.
42. In the case of A.R. Antulay (supra), their Lordships of the Supreme Court observed as under in Para 42:
It appears that when this Court gave the aforesaid directions on February 16, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar case. See Halsbury's Laws of England, 4th edn., Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence 5th edn., pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. Also see the observations of Lord Goddard in Moore v. Hewitt and Panny v. Nicholas. "Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelie v. Wakeling. Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.
43. Therefore, learned Counsel submitted that Kalu Ram's judgment (supra) should be treated as per incuriam as the decision of the Hon'ble Supreme Court on the subject i.e. of Ram Sukh (supra). Therefore, that judgment will have no binding effect.
44. It is true that Kalu Ram's judgment has been, rendered without noticing the judgment of the Hon'ble Supreme Court in Ramsukh case (supra). If the decision of Ramsukh (supra) would have been brought to the notice of the Hon'ble Chief Justice perhaps this decision would not have been given. More-so, when a review petition and the special appeal against that judgment is pending, therefore, I do not think that, that decision can have any binding effect, specially in view of the decision of the Hon'ble Supreme Court in the case of Ramsukh (supra).
45. Next, it has been contended by the learned Counsel for the petitioner that in some of the cases, the incumbents have not been paid the minimum of the pay scales and they have not been paid salary for the vacation period.
46. The Government has already issued a circular after considering the decision of Chanda Tamboli and Ramsukh (supra) and this Court also in case of Rajvendra and Ors. (supra) has very categorically laid down that the incumbents should be paid the minimum of the pay scale of 3rd Grade Teachers and they should be paid for the summer vacations also. All the Panchayat Samitis who have not paid the minimum of the pay scale of IIIrd Grade Teachers and have also not paid the salary for vacations are directed to do so now. In the case of Rajvendra (supra), it was clearly mentioned as under:
All the Panchayat Samitis are directed to comply with the direction given by this Court in Chanda Tamboli's case (supra) as quoted above. In case they do not comply with the directions within a period of two months Zila Paramukh, Pradhan, Chief Executive Officer, Vikas Adhikari, as the case may be, shall be personally responsible and they will be hauled up for committing contempt of this Court and the cost of litigation will be recovered from their salary.
47. In case compliance has not been made, then the consequences have already been mentioned in the aforesaid observations. It is again directed that all the concerned Chief Executive Officers/Vikas Adhikaris, Pramukhs, Pradhans are directed to comply with the direction and make the payment of minimum of the pay scale and salary for the vacation period. A direction has already been given by the State Government for complying with the decision and it is earnestly hoped that all the Panchayat Samitis concerned shall comply with it now.
48. Learned Counsel for the petitioners has also invited my attention to the Circular Ex. P. 5 dated 11.7.1991 and specially drawn my attention to Item No. 3 whereby it has been directed to all the Collectors, Zila Pramukhs and Chief Executive Officers that it is likely that certain persons are to be declared surplus from various departments of the Government of Rajasthan, State Public Undertakings, then it may be necessary to absorb these persons against the vacant posts of these teachers. Therefore, it has been directed that they should make recruitment against the 70% of the posts and reserve 30% posts for absorbing those employees who are to be declared surplus by the State Government. It is contended by the learned Counsel that since these incumbents are working for a long period and they have obtained experience of teaching, therefore, instead of absorbing the surplus employees against the 30% of these posts, priority should be given to the petitioners in the matter of absorption, who are in the teaching profession-since 1985-86 on wards.
49. The submission of the learned Counsel is not without any force. It is true that if the surplus employees are to be absorbed against the 30% of these posts then those persons who are working vis-a-vis those candidates who have been declared surplus and the same are sought to be absorbed the petitioners and other similarly situated teachers should have priority for absorption over these surplus employees. Though no specific return has been filed on this aspect of the matter but it appears that on the one hand when it has been held by this Court as well as by the Hon'ble Supreme Court that no untrained teachers should be appointed as teachers. How can these surplus employees who do not possess the requisite academic qualifications can be appointed against these posts. A clerk or for that matter any body else who is not trained cannot be appointed as teacher. Therefore, it is not proper to appoint the surplus employees against the posts of teachers if they are not trained. Only those surplus employees who are trained can be absorbed against these vacancies and if the surplus employees are not trained then they should not be appointed. If after absorbing selected teachers and trained teachers if still vacancies remain unfilled then these teachers who have longer experience in profession should be given priority for absorption then the surplus hands from other departments.
50. It has further been submitted as envisaged under Article 21 of the Constitution of India and if these persons cannot be regularised on the posts of teachers then they should be absorbed on the post of Gram Sewaks or other posts which may be available in the department. In this connection, learned Counsel has invited my attention to Annex. P. 11, wherein some of the surplus persons of the other departments like Irrigation etc. were sought to be absorbed on various posts. In that connection, learned Counsel has invited my attention to Ramu Ram v. Astt. Engineer, P.W.D., Sub-Division Sikar and Ors. 1989(1) RLR 1 (This case has been overruled by the Hon'ble Supreme Court).
51. In this connection, it is suffice to say that if other categories of the posts are available in Panchayat Samitis then the respondents shall endeavour to absorb these petitioners first as far as possible subject to Rules.
52. My attention was also invited to the amended second proviso to Rule 6 of the Rules of 1959, which reads as under:
Provided further that the vacancies in the category of Upper Division Clerks may be filled in by direct recruitment from amongst the candidates holding degree in Arts, Science, Agriculture or Commerce of the University established by law in India, if a member of the service be found eligible for promotion to fill up such vacancies and it be not possible to fill up such vacancies by transfer in accordance with these Rules.
53. It was submitted that there are some persons who have been appointed temporarily under Rule 23 of the Rules of 1959 and they are in continuous service, therefore, their services should be regularised in terms of the aforesaid Rules.
54. It is true that in case any candidate who has been appointed on 31.12.1985 or prior to that as a teacher then in that case his services can only be regularised provided he possesses the minimum qualification for appointment as a direct recruit or by way of promotion. As mentioned above 1983 onwards there was only one category of teacher i.e. Primary School Teachers and for that the academic qualifications were matric trained. Therefore, the petitioners who are untrained their services cannot be regularised under this newly inserted proviso as they are not trained. However, this will not disentitle the lady teachers if they have been appointed prior to 1985 and serving after 1985 as the relaxation given to them specially in the backward districts of Dungarpur and Banswara and the desert districts of Barmer and Jaisalmer in case there was non-availability of trained women candidates in those districts by virtue of the amendment brought about in the Rules of 1959 by the Notification dated 22.11.1978 in Column 7 against S.No. 2 of the Schedule appended to the Rules.
55. Next, learned Counsel has submitted that appointments have been made under the Black Board Scheme in the year 1987-88 and this Black Board Scheme has been floated by the Central Government and the State Government has issued a direction to all the Chief Executive Officers/Vikas Adhikaris to make appointments under the Scheme. It is submitted that since this is a Central Government sponsored Scheme therefore, the Rules of 1959 will not apply to the appointments under the Scheme.
56. It is true that the present Scheme has been floated by the Central Government for appointment of these teachers for backward and illiterate people in the remote villages. The Government has issued a Circular on 29.4.1989 (Annex. 4) which has been placed on the record in the case of S.B. Civil Writ Petition No. 3905/91: Gopa Ram v. State of Rajasthan and in that it was clearly mentioned that as the posts have been sanctioned in various Panchyat Samitis and the recruitment has to be made. In that connection it has been directed that the District Establishment Committees shall make appointment after selecting the candidates. It certain selected candidates are there on the reserved list then the appointments shall be made out that list. The recruitment order has to be issued by the Chief Executive Officers out of the selections made by the District Establishment Committees. If the selections have been made under the Rules of 1959 then nothing wrong has been done. As a matter of fact, the appointment of teachers Gr. III is governed by the Rules of 1959 in the various Panchayat Samitis spreading all over Rajasthan. As such if the appointment has been made by the Chief Executive Officers on the basis of the selections made by the District Establishment Committees of the Zila Parishads then nothing illegal has been done. As a matter of fact, if the selections have been made under the Rules, it is all the more good rather than permitting the various Panchayat Samitis to make appointments on their own. Since these posts have been created by the Central Government and given to the State Government for appointment under the Scheme and the State Government has distributed all these posts to various Panchayat Samitis and the Panchayat Samitis have been directed to undertake the recruitment and the Panchayat Samitis have made recruitment in terms of the Rules of 1959, then it is a valid method of making recruitment and no exception can be taken to such method adopted by the Panchayat Samitis or the Zila Parishads, as the case may be.
57. In the result, this writ petition and all the writ petitions mentioned in the Schedule are disposed of the in the light of the observations made above.
There will be no order as to costs.