Jharkhand High Court
Girdhari Sah And Ors., Gadadhar Mandal ... vs State Of Bihar (Now Jharkhand) And Ors. on 16 June, 2003
Equivalent citations: 2003(2)BLJR1527, [2003(3)JCR465(JHR)]
Author: Tapen Sen
Bench: Tapen Sen
JUDGMENT Tapen Sen, J.
1. In this writ application, the petitioners pray for issuance of an appropriate writ commanding upon the respondents to consider their cases for appointment on the post of Assistant Teachers in different Elementary Schools in the districts of Sahebganj and Godda after relaxing their age in the light of Government Order No. 516 dated 23.3.1982 as also in the light of the observations made by the High Court in CWJC No. 7000 of 1992 and other analogous cases reported in 1993 BBCJ 183. They also claim that they are entitled to such appointment on the basis of observations made by the Supreme Court in Contempt Petition Nos. 236-40 of 1991 and 263 of 1991 disposed of on 22.11.1991 and which has been appended as Annexure 3 to this writ application. The petitioners further pray that consequent upon their appointment, they should be granted consequential benefit and seniority with effect from the dates other persons junior to them in the panel had been appointed. The petitioners submit that the action on the part of the respondents in not considering their cases on the ground that they are over age is in violation of Government Order dated 23.3,1982 wherein maximum age limit for handicapped teachers has been relaxed in comparison to the age limit of trained/untrained teachers belonging to the general category.
2. According to the petitioners, they are all physically handicapped persons and they were appointed as Assistant Teachers in the Primary and Middle Schools of the former district of Santhal Pargana. In the year 1981-82 there was an acute shortage of teachers in the primary and middle schools in the entire district of Santhal Pargana which was subsequently divided into four other districts, namely, Dumka, Deoghar, Sahebganj and Godda. The paucity of teachers became so accentuated that the Government was forced to close down some schools and ultimately on account of political intervention, the matter was raised on the floor of the Assembly, whereafter the District Superintendent of Education advertised the posts for appointment. Thereafter the process of selection was initiated and the petitioners were appointed as Assistant Teachers in the District of Sahebganj and Godda.
3. In the year 1984 it came to light that these appointments had been made by the District Superintendent of Education in the year 1981-82 without following legal procedure and as such the Government issued an order directing cancellation of all appointments which had been made in contravention of the existing circulars and Government Orders. According to the petitioners, however, their appointments were against the quota meant for the handicapped persons and they had been appointed in the year 1981- 82 because that year itself was observed as the "Year of the Handicapped" (Viklang Varsh).
4. According to the petitioners, being aggrieved, some teachers filed writ petitions challenging their orders of termination and one such writ petition bearing No. CWJC No. 227 of 1988 was disposed of by a division bench on 11.8.1989 directing the respondent inter alia to make fresh appointment of teachers by inviting applications from those petitioners and others who had been removed on the ground of illegal appointment made by the then District Superintendent of Education. It was further directed that if those teachers fulfilled the eligibility conditions, then they could be appointed. Some teachers were unhappy with the order passed in CWJC No. 227 of 1988 and they made a grievance before the Supreme Court in SLP No. 11699 of 1990 and other analogous cases that the termination order should have been quashed by the High Court instead of directing the respondents to make fresh appointments. The petitioners have however stated at paragraph 11 of the writ application that the Hon'ble Supreme Court declined to interfere with the judgment of the High Court observing inter alia that since the same had not been subjected to any appeal, the State Government should complete the selection process within three months and in any case, not beyond 30,6.1991.
5. In compliance of the direction of the Supreme Court stated above, the Department of Education floated advertisements on 14,3.1991 and invited applications for selection on the post of Assistant Teachers from all such persons who had been appointed by the District Superintendent of Education in the year 1981-82. Subsequently a corrigendum was issued on 10.4.1991 clarifying the earlier advertisement dated 14.3.1991 to the extent that the same shall apply to all Assistant Teachers who had been appointed by the then District Superintendent of Education irrespective of the fact whether they were in service or not and also irrespective of whether they had filed any case or not. All were directed to produce their documents etc. for final selection and subsequent appointment.
6. Pursuant to the two advertisements referred to above which are contained at Annexures 2 and 2/1, these petitioners presented themselves alongwith their certificates and special interviews were conducted for the handicapped candidates in November 1991 under the chairmanship of the Director, Primary Education in the Campus of Miller School, Patna.
7. After selection, the Government selected only 81 candidates but did not select these petitioners. According to the petitioners, the selection was confined only to Trained Teachers and Untrained Teachers in the Scheduled Caste/Scheduled Tribe/ Urdu/Sanskrit categories and the untrained teachers in the General Category were not considered. Consequently, some aggrieved teachers moved the Supreme Court in Contempt Petition numbered as Contempt Petition No. 236-40 of 1991 and 263 of 1991. By order dated 22.11.1991 the Supreme Court disposed of the Contempt Applications, inter alia observing that the respondents should select and appoint untrained teachers who are otherwise qualified for appointment without putting the condition of training or age bar against them where trained teachers are not available and that the entire process should be concluded not later than three months from the date of passing of the order. The order of the Supreme Court is Annexure 3 appended to the writ application,
8. Thereafter and in compliance of the order of the Supreme Court, the respondents issued interview letters to individual teachers asking them to appear before the Selection Committee on a particular date, time and place. One such letter is annexed as Annexure 4 to the writ application. After the aforementioned interview letter, a panel of earlier appointed and terminated teachers was prepared by the Establishment Committee, but the grievance of the petitioners is that only those candidates were appointed who were either petitioners before the High Court or the Supreme Court and the other candidates who were not parties before the said courts were not appointed.
9. Consequently several writ applications were filed before the High Court and petitioner Nos. 1 to 4 filed CWJC No. 9601 of 1992, while the petitioner Nos. 5 to 7 filed CWJC No. 9552 of 1992 and the petitioner No. 8 filed CWJC No. 4799 of 1993. The main contention of these petitioners in these writ applications were that as per Annexures 2 and 2/1 (advertisements dated 14.3.1991 and 10.4.1991) they were also eligible for consideration for appointment and consequently they made a prayer that the observations of the Supreme Court included all teachers appointed by the then District Superintendent of Education in the year 1981-82 whose services had been terminated on the ground that their appointments had been made illegally. The petitioners have further stated that along with these three cases, the leading case was CWJC No. 7000 of 1992 and all these writ applications were heard together and disposed by a common judgment on 20.1.1993 which has been reported in 1993 BBCJ 183. The relevant paragraphs of the aforementioned judgment are being quoted below and they are paragraphs 30 to 46 :
"30. The bone of contention in this writ application, therefore, is that according to the State there is only one vacancy, where as according to the petitioners there are not less than 2,000 vacancies.
31. No statement has been made in the counter affidavit on behalf of the State that all the aforementioned 2,000/- vacancies have been filled up.
32. From a perusal of the statements made in the counter affidavit filed on behalf of the State in CWJC No. 20 of 1983 it appears that at one point of time about 2,000/- vacancies have been filled up.
33. It is true that before the Supreme Court of India the State had pointed out various difficulties in appointing the teachers of the panel prepared by it.
34. Manifestly, however, the said purported difficulties pointed out by the State were not considered by the Supreme Court as is unsurmountable one inasmuch as it now stands admitted by all concerned that in fact all the 331 persons who were before the Supreme Court of India have since been appointed.
35. It has not been disputed nor it could be disputed by the learned counsel appearing on behalf of the State that a panel was in fact prepared. Thus if the names of the petitioners appeared in the said panel alongwith those who were petitioners before the Supreme Court of India, there cannot be any doubt whatsoever that they stand on the same footing in as much as pursuant to the orders of the Supreme Court not only the petitioners before it/who filed application for appointment, but the petitioners before us and others also were called for interview before the Interview Board and the names of all per--sons who have come out successful were included in the panel.
36. It is, therefore, clear that all those persons who were empaneled should be treated alike and then vacant posts were bound to be filled up in accordance with the panel.
37. In terms of Article 14 of the Constitution of India, the State is bound to treat all persons similarly situated alike. It is also well known that persons similarly situated cannot be discriminated against in any manner whatsoever.
38. In this case as noticed hereinbefore, steps have been taken by the State of Bihar to act in terms of the directions of the Supreme Court as pursuant to the directions of the Supreme Court a panel consisting the names of all those persons was prepared irrespective of the fact that they were petitioners before the Supreme Court of India or not.
39. The State could not have, therefore, adopted pick and chose policies and appoint only those persons who were petitioners before the Supreme Court of India.
40. Such an action evidently was taken by the State in order to save itself from being punished under the Contempt of Court Act by the Supreme Court of India."
10. So far as the petitioner No. 8 is concerned, his writ application, namely, CWJC No. 4799 of 1993 was disposed of by a Division Bench on 25.6.1993 in the following manner :--
"In our opinion, the disputes between the parties being primarily questions of fact, the same cannot be adjudicated by this Court in writ jurisdiction. These questions are essentially to be decided by the Director, Primary Education, by referring to the respective records.
Any how, if on enquiry, it is found that the petitioners were in fact appointed, as claimed by them and subsequently terminated pursuant to Government orders and further if the facts in the case of the petitioners are found to be same as those of the petitioners in CWJC No. 7000 of 1992 (Janardan Prasad Roy and Ors. v. State of Bihar and Ors.), reported in 1993 BBCJ 183, then the claim of the present petitioners should also be disposed of in accordance with the observations and directions made in the said judgment.
The writ applications are accordingly disposed of."
11. After the aforementioned judgment had been delivered in CWJC No. 7000 of 1992, a fresh panel was prepared of all candidates who had been appointed by the then District Superintendent of Education, but who had subsequently been terminated from service.
12. According to the petitioners, many candidates have been appointed from the said panel and some persons who had got lesser marks than the petitioners had also been included in the panel whereafter they had been appointed. Even some handicapped persons having lesser marks than the petitioners have been appointed.
13. The grievance of the petitioners, therefore, is that the respondents have acted in a discriminatory manner and have not included the names of the petitioners in the panel on the ground that they are over age. Further, case of the petitioner is that they are entitled to the benefits of a circular of the Government dated 23.3.1982 issued in relation to handicapped persons. A copy whereof has been marked as Annexure 6 to the writ application. By reason of the aforementioned circular it was inter alia resolved that the age limit would be relaxed and that they would be given the benefit of a fresh interview if they had not been able to make themselves available pursuant to the advertisement dated 10.4.1981.
14. According to the petitioners, they satisfied each and every eligibility criteria as per the circular referred to above, but in-spite thereof, the respondents have not considered their cases in the right and true perspective nor they have considered their cases as per the aforesaid circular dated 23.3.1982.
15. In the counter affidavit filed by the respondent No. 3, the respondents have stated that these cases are concluded by the order of the High Court at Patna as also by the order of the Supreme Court and that the matter cannot be reopened when the panel that was prepared on 24.8.1994 became final. According to the respondents the panel was prepared in 1994 and the same was never challenged by the petitioners. They have further stated that in the year 1981-82, a large number of illegal appointments had been made in the District of Sahebganj and accordingly their services were terminated, whereafter several writ applications were filed and the Patna High Court vide order dated 11.8.1989 passed in CWJC No. 227 of 1988 and other analogous cases had directed the authority to proceed with the appointment by inviting applications etc. provided that the candidates satisfied the eligibility conditions. Thereafter the matter went to the Supreme Court as stated above and in compliance of the orders, the Government issued advertisements and in response thereto a large number of applications had been received. Subsequently interviews were held, District Level Committee was constituted to verify the documents of those who had applied pursuant to the advertisements dated 14.3.1991 and 10.4.1991. Accordingly, 81 (eighty one) Trained Teachers were appointed but this led to a Contempt Application being filed and ultimately the Supreme Court directed that all persons who were petitioners and were even untrained teachers were entitled to be selected. Accordingly, the State Government issued appointed orders in favour of 331 teachers on 6.5.1992. In another set of SLP (SLP (C) No. 10051 of 1991), it was pointed out to the Supreme Court that all vacancies had to be filled up till 1.1.1992 whereafter on 30.11.1992 the Supreme Court passed an order directing as follows :
"We therefore direct once again that if there are vacancies and if there are no trained teachers available, the untrained teachers who were employed prior to the new rule come into operation, would be reinstated in service, if after subjecting them to the selection process they are found suitable. If there are no vacancies, they would be empanelled according to their seniority in the vacancies arising in future. Unless this panel is exhausted, no new appointments of untrained teachers will be made from outside. It is understood that those eligible for being so appointed will be one, who were appointed before the new rule came into operation. While making the appointments of those who were so in service prior to the date of appointment, the State Government will relax the age limit if necessary."
[quoted from paragraph 11 of the counter affidavit]
16. The respondents have further stated that subsequently a provisional panel or a Draft Panel Districtwise and Categorywise came to be prepared and objections were invited against the Provisional Panel which was prepared in two parts. In one part, the names of those who had been selected and who had been found fit were included and the names of those persons who were not found fit were placed in the defective panel. Respondents have further stated that after considering all objections, the final panel was published and the names of the petitioners were not in the final panel. They have also stated that the petitioners did not challenge the final panel dated 24.8.1994. Mr. Shamim Akhtar, learned Standing Counsel No. 2 has further submitted that by order dated 2.9.1994 passed in Contempt Petition No. 175 of 1993 the Supreme Court had clarified that the claim of only those persons who had applied and appeared for verification of certificates/interview should be considered. According to Mr. Akhtar, the petitioners did not file any representation and the panel became final and at this stage when all appointments have been made, the case should not be allowed to be reopened as the entire panel will be disturbed. He has further argued that the validity of the aforesaid final panel dated 24.8.1994 was also made a subject matter of a Contempt Application before the Patna High Court in MJC No. 1531 of 1993 reported in Nil Madhab Das and Ors. v. State of Bihar, 2003 (3) JCR 461 (Pat) and other analogous cases. The said Patna High Court considered all aspects of the matter and disposed of the Contempt Application holding inter alia that no case for proceeding against the opposite parties under the Contempt of Courts Act had been made out. while disposing of the Contempt Applications, which were taken up along with other analogous cases, the Division Bench entered deep into the facts of the case and finally dropped the proceedings. Mr. Shamim Akhtar has drawn attention of this Court to paragraph 12 of the judgment passed in the aforementioned Contempt Applications and the relevant portion upon which he has relied upon reads as follows :
"A panel having been prepared and produced before their Lordships of the Supreme Court after considering the objections received from several teachers pursuant to advertisement (Vigyapti) vide PR-4318 (Shiksha-123) 93-94 and on consideration of the same as well as the grievances made by several teachers before the Supreme Court, the Apex Court having further directed that any objection/representation to the same to be made within four weeks and no representation thereafter would be entertained and considered and such objections numbering 1200 having been received within the specified period and having been duly considered and appropriate orders thereon having been passed by the Director of Primary Education on 29.10.1994, it must be held that the orders and directions of this Court as well as the Apex Court have been complied with. In the circumstances, in our considered opinion no case for proceeding against the opposite parties under the provisions of the Contempt of Courts Act has been made out and these contempt proceedings, accordingly, are dropped."
17. While hearing these writ applications, one of us directed the Standing Counsel No. II on 11.2.2003 vide Order No. 7 to file a supplementary counter affidavit, specially stating the reasons for which the petitioners had not been included in the final panel published on 24.8.1994.
18. Pursuant thereto a supplementary counter affidavit has been field in which at paragraph 11, it has been stated that pursuant to various directions of the Hon'ble Supreme Court and of the High Court, the cases of those persons were scrutinized and considered who had submitted their representations and thereafter their names had been entered in the panel. It has also been stated in the same paragraph that the names of the petitioners were not included in view of the fact that at no point of time they had submitted any representation before the authority. It has also been submitted in the same paragraph that pursuant to Annexure 4, i.e., the letter calling for interview, the petitioners did not appear before the District Level Committee for verification of their certificates and documents. Mr. Aparesh Kumar Singh, learned counsel for the petitioners however submitted that the aforesaid allegation to the effect that the petitioners had not appeared is not correct and in support of the aforesaid contention, he draws attention to the paragraph 13 of the reply to the counter affidavit wherein it has been stated that they appeared before the District Level Selection Committee pursuant to the aforesaid letters of interview and although they were eligible, yet the respondents did not appoint them. Mr. Aparesh Kumar Singh has further stated and submitted that all the petitioners had in fact appeared and thereafter their names were included in the proper panel which was published on 8.2.1994 in which only the names of such persons had been included who had been found fit for appointment. He refers to paragraph 25 of the reply to the counter affidavit in support of the aforesaid contention. He also refers to paragraph 26 of the reply to the counter affidavit, wherein it has been stated that so far as the petitioner No. 1 is concerned, he categorically remembers that his name had been included in the aforementioned proper panel of the Saheb-ganj District at Sl. No. 88 whereas the name of the petitioner No. 1 does find mention at Sl. No. 43. Mr. Aparesh Kumar Singh submits that although the names of the petitioners were included in the proper panel, yet for some reason or the other when the final panel was published, their names were not included.
19. From the facts pleaded and from the statements made by the learned counsel, what emerges is that in order to fill up a huge vacancy, some officers of the Government initially acted contrary to law and made large scale appointments in the year 1981-82. Having realized the illegality committed, such appointments were cancelled and thereafter a spate of litigations flooded both the High Court as also the Supreme Court. The order that the Hon'ble Supreme Court had passed was in the nature of giving specific direction to the Government to appoint and fill up Untrained Teachers who were otherwise qualified for appointment without putting any restrictions in relation to training or age bar where trained teachers were not available. Subsequently other proceedings were initiated but ultimately the Government initiated the process of appointment and it started some time in the year 1991 and ended with the publication of the final panel in the year 1994.
20. Whether the names of the petitioners were included in the draft panel or not is essentially a question of fact and save and except the bald statement of the petitioners made in their reply to the counter affidavit, there is nothing to establish or support the aforesaid contention of the writ petitioners. Moreover, the orders of the Supreme Court and of the Patna High Court clearly stood complied with. The process having ended in the year 1994 and the petitioners having not challenged the aforementioned final panel cannot be allowed to say in this writ application that they have a subsisting right for either inclusion of their name or for their appointment. Moreover, the new State of Jharkhand has also come into existence in the meantime with effect from 15th November, 2000 and it has been stated at the bar that the Government of Jharkhand has also taken steps to fill up the vacant posts of teachers.
21. Thus, what is evident is that a selection process which had been initiated in the year 1981-82 and which continued till 1993- 94 and the final publication of the panel having been made in the year 1994 itself, more than 9 (nine) years have gone by and therefore no writ of mandamus can be issued at this stage directing the Government or the State respondents to issue orders of appointment as has been prayed for by the writ petitioners in the instant writ application.
22. Learned counsel for the petitioners further submitted that by order dated 2.9.1994 the Supreme Court had given liberty to the aggrieved parties to file representation with regard to non-inclusion of any of the petitioners who were covered by the orders of the Supreme Court before the Director of Primary Education and he was directed to look into them and rectify the mistakes if any within 4 (four) weeks. This argument also does not appeal to this Court inasmuch as from a perusal of paragraph 12 of the order passed in MJC No. 1531 of 1993 [See 2003 (3) JCR ...... (Pat)j brought on record by Annexure B to the counter affidavit it is apparent that after the aforementioned order had been passed, almost 1200 objections had been received in the Office of the Director. Primary Education and on examining them, appropriate orders thereon had been, passed by the Director, Primary Education on 29.3.1994, It was in the back drop of such factual events taking place that the Division Bench, while dropping the contempt application, observed that it must be held that the orders and directions of this Court as well as of the Apex Court had been complied with. The aforesaid facts can be gathered from what has been quoted at paragraph 16 above.
For all the reasons stated, therefore, this Court holds that there is no merit in the writ application. It is accordingly dismissed. No order as to costs.