RAMJIT SINGH KARDAM & ORS. v. SANJEEV KUMAR & ORS.

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A “Malice in law

47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. ‘Legal B malice’ or ‘malice in law’ means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. C

62Copy pinpoint62. The malice in law has been dealt as “something done without lawful excuse”. The malice in law is also mala fide exercise of power, exercise of statutory power for purposes foreign to those for which it is in law intended. In the present case, the power to device the mode of F selection and fix the criteria for selection was entrusted on the Commission to further the object of selection on merit to fill up post in State in consonance with the provisions of Articles 14 and 16 of the Constitution of India.When the alteration of criteria has been made, which has obviously affected the merit selection as we have found above, the allegations which have been made in the writ petition against the G Commission in conducting the selection are allegations of malice-in-law and not malice-in-fact.

63Copy pinpoint63. The High Court had summoned the original records of the Commission including the marks awarded to the candidates both on basic qualification as well as essential qualification as well as viva voce. The H

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observations, which have been made by the Division Bench in paragraphs A 34 and 36 were inferences drawn by the High Court based on pattern of the marks allocated to some of the selected candidates and non-selected candidates. The observation of the High Court that “it cannot be a mere co-incidence that 90% of the meritorious candidates in academics performed so poorly in viva voce that they could not secure even 10 B marks out of the 30 marks or that the brilliance got configurated only in the average candidates possessing bare eligibility” where inferences drawn from result sheet and re-affirms the allegations of malice-in-law. The inferences drawn by the High Court, thus, cannot be said to be unfounded nor are based on no material or perverse so as to call for any interference by this Court in these appeals. We, thus, do not find any C substance in the submission of Shri Sibal that since no specific allegations against Chairman and members have been made and they being not impleaded as the parties, the allegations in the writ petition regarding allocation of marks in viva voce cannot be looked into by the High Court. Point No.6 is answered accordingly. D Point No.7

64Copy pinpoint64. The learned Single Judge in the impugned judgment while allowing the writ petition issued following directions: - “These writ petitions are thus allowed. The purported selection made by the Haryana Staff Selection Commission in pursuance to the advertisement No.6/2006, result whereof was published on 11.4.2010 relating to category No. 23 for the posts of PTIs, is hereby quashed. A direction is issued to the Haryana Staff Selection Commission to hold a fresh selection, in accordance with law, within a period of five months from the date of receipt of certified copy of this order.”

65Copy pinpoint65. Learned counsel appearing for the Commission and for the State of Haryana submitted that no fresh selection canbe conducted on the post of PTI in view of the statutory rules namely, Haryana School Education State Cadre Service Rules, 2012, he submits that in the affidavit, which has been filed by the Commission on 11.².2020, in paragraph 4, following has been stated:- “4. That so far, the details of the vacancies existing as on date in the relevant PTI Cadre, the Haryana Staff Selection Commission wrote a letter to Department of School Education to get the status H

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A of existing vacancies in PTI Cadre. In response to above said letter, the Department of School Education provided the following response and the operative part of said response is reproduced as follows:- “In this regard, it is submitted that the Classical & Vernacular B (C&V) cadre which includes the appointment of PTI also has been declared diminishing cadre by the Government of Haryana by way of notifying the Haryana School Education (Group-C) State Cadre Service Rule, 2012 vide notification No.GSR-12/ Const./Art.309/2012 dated 11.04.2012. The operative part of these rules, defined in Rule-9(5) is relevant to be detailed herein:- C The present Classical & Vernacular (C&V) cadre consisting of the posts of Sanskrit Teachers, Hindi Teachers, Punjabi Teachers, Physical Training Instructors (PTIs), Art & Craft Teachers (Drawing Teachers), Tailoring Teachers and Tabla Players and governed by the Haryana State Education School D Cadre (Group C) Service Rules, 1998 shall be converted to TGT in relevant subject and no further requirement shall be made to these categories when the present incumbent on the notification of these rules vacate the post on his promotion, retirement or any other purpose. E Since all the vacancies which were in existence on 11.04.2012 have already been converted in TGT cadre and further the vacancy came into existence due to promotion, retirement or any other ground of a PTI has also got converted in TGT cadre, therefore, there exists no post of PTI now. F The latest status of vacancies of PTI is submitted for consideration and further action thereon.”

66Copy pinpoint66. Elaborating his submission, learned counsel submits that the post of PTI is a dying cadre and now under Rules, 2012, there is post of TGT (Physical Education), which has higher qualifications, i.e., Graduate G with Physical Education from a recognised university. He submits that all posts of PTI have been converted into TGT, thus, fresh selection, if any, can be only on the post of TGT (Physical Education). He has also referred to Rule 9(5) of Rules, 2012, which is to the following effect:- “9(5). The present Classical & Vernacular (C&V) Cadre consisting H of the posts of Sanskrit Teachers, Hindi Teachers, Punjabi

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Teachers, Physical Training Instructors (PTIs), Art & Craft A Teachers (Drawing Teachers), Tailoring Teachers and Tabla Players and governed by the Haryana State Education School Cadre (Group C) Service Rules, 1998 shall be converted to TGT in relevant subject and no further recruitment shall be made to these categories when the present incumbent on the notification of these rules vacate the post on his promotion, retirement or any other purpose.”

67Copy pinpoint67. Rule 2(h) defines TGT in following words:- “(h) “TGT” means Trained Graduate Teacher in the relevant subject appointed after notification of these rules and shall include masters appointed before notification of these rules;”

68Copy pinpoint68. Rule 9(1) deals with recruitment in the services. Rule 9(1)(j), which is relevant for the present case as follows:- “(j) in the case of TGT Physical Education (PT Master),- D (i) 67% by direct recruitment on contract basis; and (ii) 33% by Promotion from PTIs; or (iii) by transfer or deputation of anofficial already in service of any State Government, Government of India; “

69Copy pinpoint69. When the rule contemplates filling up of the post of TGT E (Physical Education) by 33% by promotion from PTI, PTI continues in the establishment, who can be promoted as TGT (Physical Education). The submission cannot be accepted that all PTI in block have been upgraded as TGT (Physical Education). Had the rule contemplated such result, there was no question of filling up TGT (Physical Education) by F 33% by promotion from PTI. This court had occasion to examine Rules, 2012 in State of Haryana and Another Vs. Sandeep Singh and Others, (2019) 6 SCC 453. A writ petition was filed in the High Court by a teacher occupying the post of Drawing Teacher, he claimed that Drawing Teacher has been converted into Trained Graduated Teacher (TGT) under Rule 9(5), hence, the writ petitioners were also entitled to G be promoted from the day their juniors were promoted as Trained Graduate Teachers. This Court examined the Scheme of Rules, 2012 elaborately and following was laid down in paragraphs 19 and 20:- “19. The entire argument of the appellants is based upon the expression used that C&V teachers governed by the 1998 Rules H

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A shall be “converted to TGT in relevant subject”. The question is whether such C&V teachers stand upgraded to the post of TGT though, their promotion channel under the 1998 Rules was to the post of Master which alone has been treated as TGT as defined in Rule 2(h) of the 2012 Rules and in view of express language of Rule 7 which mandates that the appointment shall be made to the post of TGT only in accordance with the qualifications prescribed in the 2012 Rules.

20. The reading of the Rules would show that C&V teachers are treated to be TGT so as to avoid anomalous situation where the C&V teachers after the commencement of the 2012 Rules would not be governed by any set of Rules. Therefore, the expression that such C&V teachers stand converted to TGT is only to facilitate their service conditions to be governed by the 2012 Rules rather than to upgrade the C&V teachers as members of TGT cadre. The feeder and the promotional cadre cannot be treated on a par by virtue of the expression used in Rule 9(5) of the 2012 Rules that the C&V teachers shall be converted to TGT. Such conversion is only for a limited purpose of the 2012 Rules being extended to them and that such C&V teachers do not become member of the “cadre” eligible for promotion as Elementary School Headmaster. Rule 9(5) of the 2012 Rules does not use the word “cadre”. E Therefore, such teachers cannot be treated to be part of TGT cadre. Such interpretation is further supported by the fact that C&V Teacher is a dying cadre and no further recruitment is to be made in these categories.”

70Copy pinpoint70. This Court in the above judgment has held that there is no automatic conversion, upgradation of C&V Teachers into TGT and only to facilitate their service conditions, they are to be governed by Rules, 2012.

71Copy pinpoint71. We in the present case are concerned with a selection, which was undertaken in pursuance of advertisement No.6/2006 for 1983 posts of PTI, result of which selection was declared on 10.04.2010. Challenge was made to the said selection in various writ petitions, which writ petitions were allowed by learned Single Judge vide judgment dated 11.⁹.2012. The selection dated 10.04.2010 was set aside, quashed and the Commission was directed to hold a fresh selection within a period of five months. When the selection was set aside for the post of PTI, the

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fresh selection ought to be held as per the advertisement No.6/2006 and process of recruitment initiated with the advertisement No.6/2006 has to be brought to its logical end and for the purpose of selection in pursuance of advertisement No.6/2006, Rules, 2012 shall not come into way. We may also notice Rule 20 of Rules, 2012, which is to the following effect:- “20. The Haryana State Education School Cadre (Group-C) B Service Rules, 1998, amended from time to time in so far as they are applicable to the posts included in the Service are hereby repealed: Provided that any order made or action taken under the rules so repealed shall be deemed to have been made or taken C under corresponding provisions of these rules.”

72Copy pinpoint72. The selection on the post of PTI vide advertisement No. 6/2006 was under the statutory rules then existing and selection process, which has been initiated under erstwhile rules was to be continued and had not to be scrapped as is clear from the Scheme of Rules, 2012. In D any view of the matter, when the selection for 1983 posts of PTI was set aside and the High Court directed to hold a fresh selection, the selection process was to be continued and completed under the orders of the High Court. We, thus, reject the submission of the learned counsel for the Commission and the State that fresh selection cannot be held as per direction of the learned Single Judge affirmed by the Division Bench. E We, however, are of the view that selection initiated vide advertisement No.6 of 2006has to be proceeded further from the stage the criterion was arbitrarily changed by the Chairman. The completion of selection has to be only from amongst the candidates who had applied against post of PTI, including those who were selected. F

73Copy pinpoint73. The learned Single Judge after quashing the select list published on 11.04.2010 directed for fresh selection on post of PTI. The learned Single Judge, however, did not issue appropriate consequential directions for holding the fresh selection. There was no defect in the advertisement dated 20.06.2006 and mode of selection as envisaged by public notice G dated 28.12.2006. The arbitrariness crept thereafter from the stage of scrapping the written test scheduled to take place on 20.07.2008. The directions ought to have been issued to complete the process from that stage i.e. the stage of holding the written test. All the candidates who had applied for the post of PTI including those selected, ought to have been permitted to take the written test. We need to clarify that in the H

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A facts of the present case there was no requirement of fresh advertisement and inviting fresh applications. In the event fresh applications are called, large number of applicants who participated in the selection would have become over age. All the applicants who had applied in response to advertisement No.6 of 2006 had right to participate in selection as per criterion notified on 28.12.2006. The direction of learned Single Judge B needs modification and clarification to the above effect.

74Copy pinpoint74. We may also notice one more submission of the learned counsel for the appellant. Learned counsel for the appellant submits that in pursuance of selection dated 10.04.2010, the appellants were appointed and they have now continued for more than nine years and at this juncture, C it is not equitable to throw out them from their posts. In the present case, result of the selection dated 10.04.2010 was published on 11.04.2010 and the writ petitions were filed in May, 2010 itself, i.e., immediately. Selection was set aside by learned Single Judge on 11.⁹.2012. The continuance of the appellants is only by way of interim order. This Court D has also passed an order on 29.11.2013 for maintaining status quo, which order has been continued till this date. When the continuance of a person on a post is by virtue of an interim order, the continuance is always subject to outcome of the litigation. The displacement of appellants from their posts is inevitable consequence of upholding of the judgment of the High Court. A Constitution Bench of this Court in C. Channabasavaih E Etc. Etc. Vs. State of Mysore and Others, AIR 1965 SC 1293 has made following observations in paragraph 9 in such a situation, which is beneficial to record, is as follows:- “9. It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection F before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidates do the right thing………………………...”

75Copy pinpoint75. In view of the foregoing discussions and conclusions, we dispose of these appeals with the following directions: (i) The Commission shall conclude the entire selection process initiated by the advertisement No.6 of 2006 as per criterion notified on 28.12.2006 i.e. holding objective type written test of 200 marks and viva voce of 25 marks. All the applicants

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who had submitted applications in response to the above advertisement including those who were selected shall be permitted to participate in the fresh selection as directed. (ii) The candidates who have been selected and have worked on the post of PTI shall not be asked to refund any of the salary and other benefits received by them as against their working on the posts. No refund shall also be asked from those candidates who after their selection worked and retired from service. (iii) The entire process be completed by the Commission within a period of five months from the date Commission starts working after the present lockdown is over, which was the time fixed by the learned Single Judge for completing the process. (iv) The costs imposed by the Division Bench in paragraph 54 of the judgment of the High Court are deleted except the costs imposed on the Commission.

76Copy pinpoint76. We, thus, while upholding the judgments of the High Court, subject to the modifications as above, dispose of these appeals.

77Copy pinpoint77. Before we close, we record our appreciation to learned counsel for the parties, who have rendered valuable assistance to the Court in deciding these appeals.

Devika Gujral Appeals disposed of.