MADAN MOHAN SHARMA & ANR.versusSTATE OF RAJASTHAN & ORS.

                         [2008] 3 S.C.R. 232                                ..

A               MADAN MOHAN SHARMA & ANR.
                                 II.
                 STATE OF RAJASTHAN & ORS.
                  (Civil Appeal No. 1506 of 2008)
                        FEBRUARY 22, 2008
B
           (A.K. MATHUR AND ALTAMAS KABIR, JJ.)

         Service Law:

         Rajasthan Panchayat Samitis and Zila Parishad
c (Service) Rules, 1959; r 17(2)/Rajasthan Panchayati Raj
    Rules, 1996; rr233, 266, 274 and 296/Circulars dated 24. 7.95
    and 20. 7. 96:
        Appointment of Teachers Grade Ill by relaxing
  qualification ulr.296 of 1996 Rules - Challenge to - Allowed
D
  by Single .fudge of High Court - Affirmed by Division Bench
  of High Court - Correctness of - Held: Incorrect - Once
  Circular laying down criteria for selection of candidates for
  certain post issued, selection process should continue on the
  basis of the criteria so laid down - Selection should not be
E made on the basis of revised criteria in terms of revised
  Circular issued - Revised Circular issued by the authorities
  exercising unfettered discretion under r 206 of 1996 Rules
  relaxing qualification facilitating· appointment of appellants -
  Since r296 conferring unbridled power of relaxation on the
                                                                     -.
F Government. it was struck down by the High Court -
  Appointment of appellants made thereafter cannot survive -
  However, appellants have served as teachers in terms of order
  of Supreme Court and have become over-aged, they may be
  considered for future appointment by giving relaxation in age.
G
        Zilla Parishad Sawai Madhopur, Rajastha11 had
  issued an advertisement for appointment for the posts of
  Teachers Grade-Ill in terms of a Circular dated 24.7.95             -'f   )

  issued by thEl State Government of Rajasthan. The Circular

H                                232
                MADAN MOHAN SHARMA & ANR. v. STATE OF              233
        /                RAJASTHAN & ORS.

            laid down the criteria for selection of the candidates on     A
            the basis of the marks secured by them in Secondary
            Examination and also in B.Ed./BSTC. Another Circular was
            issued by the Government changing the eligibility
            qualification from Secondary Examination to Higher
            Secondary Examination. In the meantime, Rajasthan             B
            Panchayat Raj Rules, 1996 were notified. In terms of r.266
            of the Rules, eligibility qualification for appointment was
            further revised from Higher Secondary to Senior
            Secondary Examination, which was challenged by the
            affected candidates by filing a writ petition, Single Judge   c
            of the High Court allowed the writ petition directing the
            authorities to determine the merit of the candidates on
            the basis of marks obtained by them in the Secondary
            Examination in terms of earlier Circular dated 24.7.95.
            Aggrieved, the present appellants filed writ petitions
       ,r                                                                 D
            challenging the lowering down <?f the eligibility criteria
            from Higher Secondary to Secondary Examination. Later,
            the State Government in exercise of their discretionary
            power for relaxation of educational qualification in terms
            of r.296 of the Rules of 1996 issued directions to appoint
            the present appellants as teachers Grade-Ill. Thereafter, a   E
            number of writ petitions were filed before the High Court.
            Single Judge of the High Court struck down r.296 of the
            Rules of 1996 being ultra vires and unconstitutional
            conferring unbridled powers upon the executive, and also
            set aside appointment of the appellants. Aggrieved against    F
            this order, appeal was filed by both the present appellants
            challenging the order of the Single Judge of the High
            Court. The Division Bench of the High Court affirmed the
            order of the Single Judge of the High Court. Hence the
            present appeal.                                               G
                 Appellants contended that during the pendency of
i ..        the selection process, the eligibility criteria was changed
            and the date for submission of the application in
            pursuance to the advertisement was extended and Rule
                                                                          H
    234      SUPREME COURT REPORTS' ·            - [2008] 3 S.C.R.
                                                                      '
A 266 of the Rules of 1996 came into being on 30.12.1996
  whereby it was provided that Higher Secondary
  Examination shall be the criteria for preparing the merit
  list. As such, as per the service rules, the selection should
  have been made on the basis of Higher Secondary
B Examination marks and. not on the basis of Secondary
  Examination marks.
          Dismissing the appeal, the Court
         HELD: 1.1 Once the advertisement had been issued
c   on the basis of the circular obtaining at that particular time,
    the effect would be that the selection process should
    continue on the basis of the criteria which was laid down
    and it cannot be on the basis of the criteria which has
    been made subsequently. (Para - 4) [240-C, D]
D      1.2 The question is once Rule 296 of the Rules of
  1996 conforring the power to the State to relax the
  qualification is struck down then the appointment of the
  appellants cannot survive. This has rightly been laid
  down by th1~ Division Bench of the High Court. (Para - 4)
E [241-A, B]
       1.3 Once the rule has been struck down the effect
  would be that it stood in the statute book. The posts were
  again advertised in 1998 and the selection has already
  been undertaken, therefore, the selection pursuant to
F earlier Advertisement No.1/1996 is over and whatever the
  posts which have been left over and could not be filled
  up after fresh selection is undertaken. Whatever posts
  were left over will automatically be included in 1998
  selection. It will be futile exercise to constitute a committee
G headed by the Chief Secretary to examine as to whether
  vacancies of teacher Grade Ill pursuant to advertisement
  No.1/1996 still exists and whether after the judgment of
                                                                          ~   I
  Single Judge, of the High Court any appointment for'the
  post of Teacher Grade Ill was given by relaxing the
H educational qualification under Rule 296. The direction
             MADAN MOHAN SHARMA & ANR. v. STATE OF                     235
                RAJASTHAN & ORS. [A.K. MATHUR, J.]

         issued by the Division Bench of the High Court was totally A
         unwarranted and the selection which had taken place on
         the basis of the Advertisement No.1 of 1996 in terms of
         the circular dated 24. 7.1995 was correct. The eligibility
         criteria for appointment of Teacher Grade Ill on the basis
         of Secondary Examination was correctly taken into B
  ....   consideration. The relaxation granted to the appellants
         cannot be availed of by them as r.296 of the Rules of 1996
         has already been held ultra vires by Single Judge of the
         High Court which has been upheld by the Division Bench
         of the High Court. (Para - 4) [241-D, E, F, G; 242-A, B]             c
                1.3 Appellants who are already serving under orders
         of this Court, by this time have become over-aged. In
         case, in future, any selection for the post of Teacher Grade
         Ill is undertaken, they may be allowed to apply for the
         same despite the fact that they have become over-aged. D
         They are granted one more chance and the age bar will
         not come in their way to apply for future vacancy.
         (Para - 5) [242-C, D]
              CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1506
         of 2008                                                 E

               From the final Judgment and Order dated 19.12.2005 of
         the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipl,Jr
  ~
         in D.B. C.S.A. No. 76/2001 in SB CWP No. 612/2000.
             M.R. Calla, Mukul Kumar and P.O. Sharma for the                  F
         Appellants.
               D.K. Garg, Dr. Bheem Pratap Singh and Abhishek Garg,
         for the Applicant.
              Kumar Karthikey, Aruneshwar Gupta, Sudhakar G
         Choudhary, Binay Kumar Jha, Debasis Misra and Rameshwar
' ~      Prasad Goyal for the Respondents.
              The Judgment of the Court was delivered by
              A.K. MATHUR, J. 1. Leave granted.
     236          SUPREME COURT REPORTS                 (2008] 3 S.C.R.


A,        2. This appeal is directed against the order dated
     19.12.2005 passed by the Division Bench of the ·Rajasthan High
     Court when:by the Division Bench of the Rajasthan High Court
     has disposed of the appeal with the following direction.
           " (i) Vl/e direct the State Government to forthwith constitute
B          a Committee headed by the Chief Secretary to examine
           as to whether vacancies of Teacher Grade Ill pursuant to
           advertisement No, 1/96 still exist and whether after the
           judgment dated February 12,2001 of learned Single Judge
           any appointment on the post of Teacher Grade Ill was
c          given by giving relaxation under Rule 296 of 1996 Rules.
           (ii)   Any appointment so given under Rule 296, which
                  was struck down, shall be subject to enquiry.
           (iii) The meritorious persons included in the select list
D                drawn in pursuance of advertisement No.1/96 shall          ...
                 l),e considered for appointment on the basis of their
                 merit against the vacant posts of Teacher Grade Ill.
           (iv) The appellants MMS and OKS (Appeal No.76/2001)
                who have served nearly six years as Teacher Grade
E               II~ and have become overage by now, shall be
                rE!Considered on the basis of their merit in secondary
                eJ<amination and till final decision is arrived at, they
                shall be allowed to work on the post of Teacher
                Grade II and their services shall not be terminated."
F
        3. Brief facts which are necessary for disposal of this
  appeal are that the vacancies in the posts of Teacher Grade 111
  were advertised by the Zilla Parishad Sawai Madhopur on
  25.5.1996 on the basis of the circular dated 24. 7.1995 issued
G by the State Government in exercise of powers under Rule 17(2)
  of the Rajasthan Panchayat Samitis and Zila Parishad (Service)
  Rules, 1959 (hereinafter to be referred to as the Rules of 1959).'          ....
  The last datE~ for submission of application and documents in
  support of eligibility and merit was fixed as17.6.1996. The
  selection circ:ular dated 24. 7.1995 laid down that the selection
H
                MADAN MOHAN SHARMA & ANR. v. STATE OF                     237
                   RAJASTHAN & ORS. [A.K. MATHUR, J.)

            shall be made on the basis of the marks secured by the A
            candidates in Secondary Examination and B.Ed/ Basic School
            Training Course (BSTC) for preparation of the merit list for
            appointment of Teacher Grade Ill. Thereafter, on 20.7.1996
            another circular was issued by the State Government whereby
            the earlier criteria for determination of merit for appointment of B
            Teacher Grade Ill was superseded and revised criteria was
     .,,_
            prescribed and the basis for assessment of merit was the marks
            obtained in the Higher Secondary Examination and B.Ed/ BSTC
            course and the last date for submission of application and other
            relevant documents in support of eligibility and merit for selectionc
            of appointment as Teacher Grade Ill was extended up to
            30.10.1996. Thereafter, it was further extended up to 20.12.1996.
            On 30.12.1996 Rajasthan Panchayati Raj Rules, 1996
            (hereinafter to be referred to as the Rules of 1996) were notified.
            Rule 266 of the Rules of 1996 provided that Senior Secondary
                                                                                 D
            with BSTC course shall be the minimum qualification for
     ...    appointment of Primary Teachers. A writ petition being S.B.C.W.
            No.147 of 1997, Radhey Shyam Sharma & Anr. V. State of
            Rajasthan was filed which was allowed by learned Single Judge
            of the High Court of Rajasthan on 6.11.1996. Learned Single
            Judge held that the criteria on the date of issuance of E
            advertisement was to be followed and the State Government
            was directed to consider the merit of the candidates in view of
            the circular dated 24.7.1995 i.e. Seconqary Examination with
            B.Ed./ BSTC was considered the basis for selection. Thereafter,
            four special appeals were filed against the order of the learned F
            Single Judge. Out of the four special appeals, one was filed by
            the State of Rajasthan i.e. State of RaJasthan v. Radhey Shyam
            Sharma and another appeal as filed by Dharmendra Kumar
            Sharma and Madan Mohan Sharma, the appellants before us.
            Thereafter, a request was made that the special appeals be G
            allowed to be withdrawn. Learned Division Bench of the High
            Court permitted the writ petitions to be withdrawn and as a result
            of the withdrawal of the writ petitions, order dated 6.11.1997
f   _..
            was declared as " no longer stands". Thereafter, the selection
            process commenced on the basis of the circular dated H
    238      SUPREME COURT REPORTS                  (2008] 3 S.C.R.


A 24. 7 .1995 and the merit list was prepared on the basis of the
  Secondary Education qualification. Aggrieved against this,
  Madan Mohan Sharma and Dharmendra Kumar Sharma
  (appellants) filed another writ petition being S.B.C.W.P.No.1771
  of 1999 challenging the lowering down the eligibility criteria of
s Higher Secondary Education to the Secondary Education.
  During the pendency of the writ petition, the State of Rajasthan
  issued another circular on 12.3.1999 whereby a decision was
  taken invoking Rule 296 of the Rules of 1996 to appoint Shri
  Madan Mohan Sharma and Shri Dharmendra Kumar Sharma
c relaxing the educational qualification. Meanwhile, selection
  process had been completed and merit list was prepared in
  terms of the circular dated 24. 7.1995 and in the month of
  September, 1999 appointment of 232 candidates was made
  out of the merit list prepared in terms of Rules 27 4 of the Rules
  of 1996. According to the State, after making the selection of
0
  233 candidates only 93 posts were available which were to be
  filled up in terms of the circular dated 20.7.1996. Meanwhile, on
  6.12 .1999 the State Government in exercise of their
  discretiona~v power for relaxation of educational qualification
  under Rule 296 of the Rules of 1996 issued directions to appoint
E both Madan Mohan Sharma and Dharmendra Kumar Sharma
  in Panchayat Samiti Todabhim District Karauli vide order dated
  6.1.2000 and 11.1.2006 on the post of Teacher Grade Ill. After
  appointment of these two persons namely, Madan Mohan
  Sharma and Dharmendra Kumar Sharma a spate of writ
F petitions followed before the learned Single Judge. The said
  writ petitions came to be disposed of by the learned Single
   Judge of the High Court on 12.2.2001. Learned Single Judge
  struck down Rule 296 of the Rules of 1996 being ultra vi res and
   unconstitutional conferring unbridled powers upon the executive
G and the appointment of both the candidates i.e. Madan Mohan
   Sharma and Dharmendra Kumar Sharma was set aside.
   Learned Single Judge in his order dated 12.2.2001 observed
   as follows:
          " More so, as fresh advertisement has been issued in
H



                                                                       •
          MADAN MOHAN SHARMA & ANR. v. STATE OF                      239
            RAJASTHAN & ORS. [A.K. MATHUR, J.]
_,.
           1998 and appointments have been made in pursuance                A
           thereof, question of filling up the vacancies in pursuance
           of Advertisement 1/96 does not arise."
            Aggrieved against this order appeal was filed by both the
      present appellants challenging the order of the learned Single
      Judge. Learned Division Bench after considering the arguments B
      from various angles found that Rule 296 of the Rules of 1996
      which gives power to the State Government for relaxation and
      which has been struck down by learned Single Judge as correct
      and if it was allowed to continue this would give unfettered power
      to the executive to make appointment in picking and choosing C
      candidates from the bottom of the merit list ignoring a large
      number of candidates over and above them. It was further
      observed that the said rule was rightly declared unconstitutional
      and invalid by learned Single Judge, The Division Bench


-     concluded by making the following observations:
           "21. We ourselves have scanned Rule 296of1996 Rules
           and we find that it gives unfettered powers to the Executive
                                                                         D



           to relax the eligibility criteria including the qualification,
           age and experience. It enables the Executive to make
           appointment by pick and choose of the candidates from            E
           the bottom of merit list ignoring the claim of large number
           of candidates over and above them. In our opinion, the
           said rule was rightly declared ultra vires and
           unconstitutional by the learned Single Judge. Since the
           appointment of MMS and OKS was made under the                    F
           discretionary power provided by Rule 296 in our opinion,
           it was rightly set aside by the learned Single Judge. "
           Thereafter, looking to the period of six years of service of
      Madan Mohan Sharma and Dharmendra Kumar Sharma and G
      having found them to be suitable on the basis of Higher
      Secondary Grade on account of which they were selected earlier,
      the Division Bench issued directions as aforesaid. Aggrieved
      against this order the present appeal has been filed by the
      appellants.
                                                                            H
    240       SUPREME COURT REPORTS                   [2008] 3 S.C.R.


A         4. We have heard learned counsel for the parties and
    perused the records. Mr.M.R.Calla, learned senior counsel
    appearing for the appellants has strenuously urged that during
    the pendency of the selection process, the eligibility criteria was
    changed a1nd the date for submission of the application in
B   pursuance to the advertisement was extended and Rule 266 of
    the Rules of 1996 came into being on 30.12.1996 whereby it
    was provided that Higher Secondary Examination shall be the
    criteria for preparing the merit list. A& such, as per the service
    rules, the selection should have been made on the basis of
c   Higher Secondary Examination marks and not on the basis of
    Secondary Examination marks. We regret this cannot be
    accepted. Once the advertisement had been issued on the basis
    of the circular obtaining at that particular time, the effect would
    be that the selection process should continue on the basis of
    the criteria which was laid down and it cannot be on the basis of
0
    the criteria which has been made subsequently. As per the
    circular which was obtaining at the time when the advertisement
    was issued was dt. 4.7.1995, the criteria for selection to the
    post of Teacher Grade Ill was Secondary Examination though
    this was changed during the pendency of the advertisement.
E   Subsequent amendment of the Rules which was prospective
    cannot be made retrospective so as to make the selection on
    the basis of the Rules which were subsequently amended. If
    this was to be done, then the only course open was to recall the
    advertisement No.1 /1996 and to issue fresh advertisement
F   according to the Rules which had come into force. Secondly,
    this was not done and erroneously the authorities made the
     amended Rules applicable and proceeded with the selection
    which resulted into litigation and ultimately Radhey Shyam
     Sharma succeeded in that litigation and it was held that the
G    selection should be made as per Secondary Examination
     marks, the criteria which was prevalent at the time when the
     advertisement was issued. Thereafter looking to the hardship
     the Government invoked the r;ower of relaxation under Rule 296
     of the Rules of 1996 and order of appointment was issued in
H    favour of both the appellants. This again resulted into litigation
                MADAN MOHAN SHARMA & ANR. v. STATE OF                      241
                   RAJASTHAN & ORS. [A.K. MATHUR, J.)
     --<'
             and ultimately, in that litigation, Rule 296 of the Rules of 1996    A
            was struck down being ultra vires and consequently, the
            appointment of both the appellants were set aside. The Division
             Bench of the High Court looking to the hardship of the candidates
JO
             issued the direction as aforesaid. The question is once Rule
            296 of the Rules of 1996 conferring the power to the State to         B
             relax the qualification is struck down then the appointment of
     ,,..    both these candidates cannot survive and this has been paid
             down by the Division Bench of the High Court and rightly so.
             We fail to understand that where was the need for a Committee
             headed by the Chief Secretary of the State to examine the            c
             matter. Once the power of relaxation of eligibility criteria
            conferred on the State under Rule 296 has been struck down by
            the learned Single Judge and the same having been upheld by
             the Division Bench of the High Court cannot be sustained as
            the said Rule 296 has already been struck down. Once the rule
                                                                                  D
            has been struck down the effect would be that it stood in the
            statute book. The posts were again advertised in 1998 and the
     ""'    selection has already been undertaken, therefore, the earlier
            selection pursuant to Advertisement No.1 /1996 is over and
            whatever the posts which have been left over and could not be
            filled up after fresh selection is undertaken. Whatever posts were    E
            left over will automatically be included in 1998 selection. It will
            be futile exercise to constitute a committee headed by the Chief
            Secretary to examine as to whether vacancies of teacher Grade
            Ill pursuant to advertisement No.1/1996 still exists and whether
            after the judgment of learned Single Judge any appointment on         F
     "      the post of Teacher Grade Ill was given by relaxing the
            educational qualification under Rule 296. We think that direction
            issued by the Division Bench of the High Court was totally
            unwarranted. Once the Division Bench has found that the earlier
            selection pursuant to Advertisement No.1/1996 is valid. The           G
            Division Bench should have stopped there. Therefore, under
            these circumstances, we are of opinion that the direction given
            by the Division Bench of the High Court in paragraph 26 of the
     "I
            judgment is totally unwarranted and the selection which had taken
            place on the basis of the advertisement No.1 of 1996 on the           H
   242       SUPREME COURT REPORTS                   [2008) 3 S.C.R.


A basis of the circular dated 24.7.1995 was correct. The eligibility
  criteria for appointment of Teacher Grade Ill as Secondary
  Examination was correctly taken into consideration for selection.
  The relaxation granted to these two appellants cannot be availed
  of by them as Rule 296 of the Rules of 1996 has already been
B held ultra vires by learned Single Judge which has been upheld
  by the Division Bench of the High Court.
         5 As a result of above discussions, we do not find any         ·""
  merit in this appeal and the same dismissed with no order as to
  costs. However, these two appellants who are already serving
C under orders of this Court, by this time they have become over-
  aged. In case in future any selection for the post of Teacher Grade
  Ill is undertaken, these appellants be allowed to apply for the
  same despite the fact that they have become over-aged. They
  are granted one more chance and the age bar will not come in
D their way to apply for future vacancy.
    S.K.S.                                      Appeal dismissed.