Supreme Court of India
GIRDHAR KUMAR DADHITCH AND ANR.versusST ATE OF RAJASTHAN AND ORS.
- Citation
- 2009 INSC 68
- Decided
- 23 January 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The 1998 select list expired after one year and, having no valid extension, cannot be used for appointments made after 18‑Nov‑1999; therefore the appellants are not entitled to appointment.
Summary
The appellants sought appointment to two vacant Physical Education Teacher posts after a 1998 recruitment, claiming they were entitled under the merit list prepared that year. The recruitment rules granting bonus marks were declared unconstitutional by the Rajasthan High Court in 1999, and the Supreme Court in Kaushal Chand Sharma (2002) upheld that decision, giving it prospective effect only up to 18‑Nov‑1999. Eight of the ten posts were filled before that cut‑off; the remaining vacancies were filled in 2003. The appellants argued that the Supreme Court ruling did not cover these later vacancies. The Supreme Court held that the 1998 select list was valid for only one year, that no lawful extension was shown, and that the prospective overruling applied solely to appointments made before 18‑Nov‑1999. Consequently, the appellants had no legal right to be appointed, and the appeal was dismissed.
Issues considered
- Does the prospective overruling in Kaushal Chand Sharma apply to vacancies remaining after the cut‑off date of 18‑Nov‑1999?
- Is a select list prepared in 1998 valid for appointments made in 2003 without a statutory extension?
- Do candidates on an expired select list acquire a legal right to appointment?
- Was the High Court correct in dismissing the writ petitions on limitation grounds?
Legislation cited
- Constitution of Indias. Article 142
Subjects
service lawappointmentprospective overrulingselect list validitymerit listbonus marksteacher recruitmentRajasthan
Judgment
[2009] 1 S.C.R. 585
,, GIRDHAR KUMAR DADHITCH AND ANR. A
v.
STATE OF RAJASTHAN AND ORS.
(Civil Appeal No. 388 of 2009)
JANUARY 23, 2009
B
[S.B. SINHA AND J.M. PANCHAL, JJ.]
• Service Law - Appointment - Appointment on ten posts
of teacher held unconstitutional by Supreme Court with
prospective effect - 8 candidates appointed prior to cut-off- c
date - Claim of unsuccessful candidates for appointment to
the vacant posts rejected holding that their case was covered
by Supreme Court judgment - Candidates taking plea that
the judgment not applicable to the vacancies remaining to be
filled after the cut-off-date - Held: The Select List for the post D
prepared in the year 1998 since expired after one year, no
appointment could be made on the basis thereof after its
expiry - Candidates not liable to be appointed.
The writ petition was filed by the appellants on the
E
ground that the rules whereunder appointment to 10
posts of Physical Education Teacher Grade-Ill, since held
unconstitutional, they should be appointed to the post,
because their position in merit list comes at serial Nos. 6
,,l<
and 9 respectively.
F
During pendency of the writ petition, the order
holding the provision unconstitutional, was upheld in
*Kai/ash Chand Sharma's vs. State _of Rajasthan and Ors.
(2002) 6 SCC 662 by Supreme Court, but the same was
given prospective effect I.e. w.e.f. 18-11-1999. G
..-.. ·"I The writ petitions were cUsmissed by Single Judge
of High Court as barred by limitation. Division Bench of
High Court upheld the order stating that the case was
585 H
586 SUPREME COURT REPORTS [2009] 1 S.C.R.
A covered by decision in *Kai/ash Chand Sharma's case.
Hence the present appeal.
In appeal to this court appellants contended that the
case was not covered by *Kai/ash Chand Sharma's case
as it covered the cases of only the employees appointed
8
on or before 18.11.1999 and not to the vacancies
remaining to be filled up thereafter, i.e. in 2003.
Dismissing the appeal, the Court
c HELD: 1. The select list was prepared in the year
1998, keeping in view the rules as they existed. The Rules
enumerating grant of bonus marks might have been
declared ultra vires but this Court in exercise of its
jurisdiction under Article 142 of the Constitution of India
0 though it fit to give a prospective effect thereto. It did so
inter alia for the purpose of protecting the services of
those teachers who had already been appointed and had
been in service for a few years. Out of ten posts, eight
teachers were appointed on or before 18th November,
E 1999 which was the cut off date. [Para 15] [590-F-H; 591-
A]
2. The select list would ordinarily remain valid for one
year. There is no basis for appointments made in 2003 or
subsequently. Whether the validity of the said select list
F was extended or not is not known. Extension of select
list must be done in accordance with law. Apart from a
bald statement that the validity of the said select list had
been extended, no document in support thereof has
been placed before the Court. [Para 19] [591-E-F]
G
State of Rajasthan and Ors. vs. Jagdish Chopra 2007 (8)
sec 161, relied on.
Case Law Reference:
H 2001 (8) sec 161 Relied on Para 19
GIRDHAR KUMAR DADHITCH AND ANR. v. STATE OF 587
RAJASTHAN AND ORS.
~
, CIVIL APPELLATE JURISDICTION: Civil Appeal No. 388 A
of 2009.
From the Judgment and final Order dated 14.2.2006 of the
High Court of Judicature for Rajasthan at Jaipur in D.B. Civil
Special Appeal (W) No. 147 of 2006.
B
M.R. Calla, Mukul Kumar, Rishi Matoliya and P.O. Sharma
for the Appellants.
+
Navin Singh and Aruneshwar Gupta for the Respondent.
c
The Judgment of the Court was delivered by
5.8. SINHA, J.1. Leave granted.
2. Interpretation of a decision of this Court in Kai/ash
Chand Sharma v. State of Rajasthan and others, [(2002) 6 D
sec 562 l is in question in this appeal which arises out of a
judgment and order dated 14th February, 2006 passed by the
High Court of Judicature of Rajasthan. Jaipur Bench, Jaipur in
D.B. Civil Special Appeal (W) No. 147 of 2006.
3. Indisputably an advertisement was issued on 9th August, E
1998 for filling up 10 posts of Physical Education Teacher
Grade-Ill. 10 Bonus marks were to be granted for candidates
who were resident of a particular district, while 5 bonus marks
;.
to the candidates belonging to rural areas.
F
4. Validity and/or legality of the said provision for grant of
bonus marks was questioned before the said High Court by
filing writ petition in the year 1999. The question was referred
to a Full Bench. A Full Bench of the said Court by a judgment
and order dated 18th November, 1999 held the said provision G
to be unconstitutional.
~-"'
5. Upon declaration of the said law by the Full Bench of
the High Court, appellants herein filed two writ petitions being
No. 1818/2001 and 1802/2001 before the said High Court inter
H
588 SUPREME COURT REPORTS (2009] 1 S.C.R.
A alia contending that in view of the said Full Bench decision, their
position would be at serial Nos. 6 and 9 in the merit list. The
said writ petitions remained pending.
6. This Court in Kai/ash Chand Sharma (supra) while
B upholding the decision of the Full Bench to the effect that grant
of such bonus marks was unconstitutional, in exercise of its
jurisdiction under Article 142 of the Constitution of India, thought
it fit and proper to invoke the dootrine of prospective over-ruling,
stating :
C "The appointments made up to 17.11.1999 need not
be reopened and reconsidered in the light of the law laid
down in this judgment".
7. Allegedly the State of Rajasthan appointed Bhanwar Lal
D Gosar (Mothsar) by an order dated 12th June, 2003. Two writ
petitions were filed by the appellants. However, in the
meanwhile one Duli Chand had filed a writ application being
S.B. Civil Writ Petition No.1401 of 2003 before the High Court.
A learned Single Judge of the High Court dismissed the said
E writ petition on 17th February, 2003 opining that the same was
barred by delay and latches. Following Duli Chand (supra) the
appellants' writ applications (Civil Writ Petition Nos. 5510/2003;
1818/2001 and 1802/2002) were also disrr.issed by the same
learned Judge by an order dated 5ih December, 2003.
"
F 8. Aggrieved by and dissatisfied therewith, the appellants
filed an intra- court appeal being D.B. Special Appeal (W) No.
103 of 2004 which was disposed of by a Division Bench of the
High Court giving liberty to the appellants to make a
representation to the concerned authority within ten days with
G a direction to the authority to dispose of the same within three
months thereafter.
9. Appellants submitted their representations on 10th July,
2005 which were rejected by the respondents by an order dated
H 30th September, 2005.
GIRDHAR KUMAR DADHITCH AND ANR. v. STATE OF 589
RAJASTHAN AND ORS. [S.B. SINHA, J.]
10. Appellants challenged the said order before the High A
Court by filing yet another writ application being S.B. Civil Writ
Petition No.9253 of 2005, which was dismissed by a learned
Single Judge of the said Court following the order passed in
Duli Chand (supra).
11. Appellants preferred an intra court appeal thereagainst. B
A Division Bench of the High Court, however, by reason of the
+ impugned judgment and order refused to interfere in the matter
on the premise that the issue stands squarely covered by the
decision of this Court in Kai/ash Chand Sharma (supra).
c
12. Mr. M.R. Calla, learned senior counsel appearing on
behalf of the appellants, would submit:-
(i) The Division Bench of the High Court misread and
misinterpreted the decision of this Court in Kai/ash
Chand Sharma (supra) in so far as it failed to take D
into consideration that the same covered the cases
of only those employees who were appointed on or
before 18th November, 1999.
(ii) Bhanwar Lal Mothsar having been appointed only
E
in the year 2003 against the vacancy which
remained to be filled up, Kai/ash Chand Sharma
(supra) cannot be said to have any application
>
whatsoever.
(iii) The contention of the respondents that two F
vacancies filled in the year 2003 - one against the
OBC quota and another against the general quota
by the persons who were placed higher in the select
list than the appellants was valid in law, cannot be
accepted as the respondents had already appointed G
four persons against the OBC quota in the year
1999 itself.
(iv) As a vacancy still exists, even without disturbing the
existing appointees, the appellant(s) can be
H
590 SUPREME COURT REPORTS [2009) 1 S.C.R.
A accommodated.
13. Mr. Navin Singh, learned counsel appearing on behalf
of the respondents, on the other hand, would contend:
(i) Contention raised by the appellants having not
B been raised before the High Court, the same should
not be allowed to be raised for the first time before
this Court.
+
(ii) Appellants having not filed any writ petition in the
year 1998-1999 the High Court had rightly
c dismissed the writ petition as being barred by
delay and latches.
(iii) Appointments having been made on the vacant
posts only in relation to the candidates of the
D reserved category and/or who had obtained higher
position in the select list, appellants cannot be
directed to be appointed at this stage.
14. Before adverting to the rival contentions raised by the
parties we may notice that according to the appellants even
E today their exists two vacancies. The purported chart prepared
by the appellants and the records placed before us show some
discrepancy. At this stage, thus, it is not possible for us to go
into the details thereof particularly when the candidates already
appointed are not parties before us. "
F 15. The select list was prepared in the year 1998. In our
opinion it would be difficult to issue any direction for
appointment of the appellants herein at this stage. Select list
was prepared keeping in view the rules as they existed. The
said Rules might have been declared ultra vires but as
G indicated hereinbefore this Court in exercise of its jurisdiction
under Article 142 of the Constitution of India though it fit to give
a prospective effect thereto. It did so inter alia for the purpose
..
of protecting the services of those teachers who had already
been appointed and had been in service for a few years. Out
H of ten posts, eights teachers were appointed on or before 18th
GIRDHAR KUMAR DADHITCH AND ANR. v. STATE OF 591
RAJASTHAN AND ORS. [S.B. SINHA, J.]
November, 1999 which was the cut off date. A
16. Indisputably the merit list was modified in terms of the
dicta laid down by this Court in Kai/ash Chand Sharma (supra).
17. The question as to whether the fresh appointees who
are, having regard to the said modification, required to be B
appointed on the premise that they are placed higher in the
select list than the appellants or not, in our opinion, cannot be
gone into by us for the first time since such a contention had
never been raised before the High Court. The entire record of
the matter, furthermore, are not before us. c
18. It is stated that two appointments were made in the year
2003 - one against OBC quota and another against General
quota. It is not possible for us to go into the question as to
whether the entire quota for appointment in the category of OBC
D
was filled up in the year 1998-1999 itself and thus appointment
made against the vacant post from the said quota is illegal or
not. The concerned respondents are not parties before us. We
have not been informed as to whether any other person has
been left out from the original merit list
E
19. Furthermore the select list would ordinarily remain valid
for one year. We fail to understand on what basis appointments
were made in 2003 or subsequently. Whether the validity of the
said select list was extended or not is not known. Extension of
select list must be done in accordance with law. Apart from a F
bald statement made in the list of dates that the validity of the
said select list had been extended, no document in support
thereof has been placed before us.
In State of Rajasthan and ors. vs. Jagdish Chopra ((2007)
G
-.. ,,. 8 SCC 161 ], this Court held:
"9. Recruitment for teachers in the State of Rajasthan is
admittedly governed by the statutory rules. All recruitments,
therefore, are required to be made in terms thereof.
Although Rule 9(3) of the Rules does not specifically H
592 SUPREME COURT REPORTS [2009] 1 S.C.R.
A provide for the period for which the merit list shall remain ,..
valid but the intent of the legislature is absolutely clear as
vacancies have to be determined only once in a year.
Vacancies which arose in the subsequent years could be
filled up from the select list prepared in the previous year
B and not in other manner. Even otherwise, in absence of any
rule, ordinary period of validity of select list should be one
year. In State of Bihar v. Amrendra Kumar Mishra (2006)
12 SCC 561, this Court opined: (SCC p.564, para 9) +
"9. In the aforementioned situation, in our opinion,
c he did not have any legal right to be appointed. Life
of a panel, it is well known, remains valid for a year.
Once it lapses, unless an appropriate order is
issued by the State, no appointment can be made
out of the said panel."
D
It was further held: (SCC p.565, para 13)
"13. The decisions noticed hereinbefore are
authorities for the proposition that even the wait list
must be acted upon having regard to the terms of
E the advertisement and in any event cannot remain
operative beyond the prescribed period."
)()()()()()()()()(
F 11. It is well-settled principle of law that even selected
candidates do not have legal right in this behalf. (See
Shankarsan Dash v. Union oflndia (1991) 3 SCC 47, and
Asha Kaul v. State of J&K (1993) 2 SCC 573)"
20. For the reasons aforementioned, we do not find any
G merit in this appeal, which is dismissed accordingly. However,
in the facts and circumstances of the case there shall be no ~ ..-
order as to costs.
K.K.T. Appeal dismissed.
H
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