SABITA PRASAD AND ORS. v. STATE OF BIHAR AND·ORS.

The Judgment of the Court was delivered by c DR. A.S. ANAND, J. The controversy in all these cases revolves around the appointment of assistant-teachers in the primary schools and the fall out of circular-letter, dated 2.7.1989, issued by the State of Bihar. The questions being identical, the same are being disposed of by this common judgment. Before dealing with the indiVidual cases, a reference to D the historical background would be necessary.

In the State of Bihar, appointments of teachers to primary schools were being made since 1970 on the basis of residence of the candidates in a particular district, the objective being to cater to the educational needs of the districts by proViding men and resources from that district itself. E Advertisements were issued in different districts, inViting applications from the residents of the district having requisite qualifications, for appointment as Assistant-teachers in the primary schools within the jurisdiction of District Education Superintendent. The minimum qualifications and other , requirements were set out in the advertisement. Appointments were made F from a panel prepared on the basis of qualifications and eligibility of the candidates who had applied for such appointments. The panels wer.e prepared district-wise. The High Court of Patna in Anil Kumar v. Chief Secretary 1987 Patna Law Journal Reports 846, declared the panels, prepared on the basis of residence in a particular district, as unconstitu- tional. The High Court, however, directed that the appointments already ; G made from those panels should not be disturbed but the State was restrained from making any further appointments from the panels, prepared for the different districts. In the wake of the judgment in Anil Kumar's case (supra), the Government of Bihar first issued directions to stay further appointments from the panels prepared on district-wise basis H

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A on 1.3.1989 and subsequently vide Government circular-letter dated 2.7.1983,, issued further inslructions regarding the appomtment of primary teachers. The said letter reads as follows:

"From

B Mr. Manesh Prasad, Additional Commissioner-cum-Special Secretary.

c The All Collectors/Deputy Commissioner.

Dated 2.7.1989.

Sub: Regarding the appointment of Primary Tea~hers.

D Sir,

As per instructions it is to say on the aforesaid subject you were directed to scay the appointment of Primary School Teachers through Letter No.981dated1.8.1989 of this department. E

2. The Government has taken the following decision after consultation with the Advocate General of Bihar iri respect of the order given by the Hon'ble High Court vide C.W.J.C. No.5490/86 and C.W.J.C. No.382/1988.

F 1. The panel of the candidates which have been prepared on the basis of the inhabitant of the Distt. be treated as rejected.

B, Those candidates who have already been appointed from this panel, will continue their appointment. G For the preparation of a panel of the appointment of teachers, data should. be collected from the office of the Directorate of Primary Education. There should· be no restrictio~ for the inhabitant of the District. The decision has also been taken that in all proceedings relating to

SABITA PRASAD v. STATE OF BIHAR (ANAND, J.] 445

appointment, the decision will be taken by the committee formed by the Distt. authority of general public notice will be issued from the office of the Directorate of Primary Education only for application.

According to that Public Advertisement, the last date for filing the application will be the same as well as the scrutiny of the form will also be the same in each district.

(d) Those candidates who are already in the panel but they could not be appointed due to this instruction will also be covered by the application. c On the basis of the required suitability, after including in the new panel they will be given age relaxation by the competent authority.

Yours faithfully, D Sci/ Illegible

(Manesh Prasad)"

As a consequence of the letter, dated 2.7.1989, the Collectors and E the Deputy Commissioners made no further appointments of Assistant- teachers in the primary schools from the existing panels. The aggrieved parties, namely, those who were not appointed in spite of being. on the panel and some others filed variol:ls writ-petitions in the High Colirt of Patna which came to be disposed of by different judgments, against which ciVil appeals have have been filed by special· leave in this court. B~sides, F Writ Petition No.911/91 has been filed by unappointed trained primary school teachers of District Gopalganj directly to this Court under Article · 32 of the Constitution. ·

Taking note of the aforesaid background, we shall now consider the G individual cases. ·. ·

Civil Appeal Nos.3218/91, 3219/91, 3220/91.

Appellants in all these cases were appointed on 16th of June 1988 or thereabout in District Siwan, from the panel prepared in 1985. There H

446 SUPREME COURT REPORTS [19921SUPP.3 S.C.R.

A appointments were quashed by the High Court in writ-petition Birendra Kumar Shrivastava & Ors. v. The State of Bihar & Ors., C.W.J.C. 4843/88 decided on 5.11.1990, filed by some of the non-appointed candidates of the same district, Respondents 1 to 26 herein. The appellants have questioned that part of the judgment in CWJC 4843/88, which quashes their appoint- ments through these appeals on special leave being granted. All the appel- B lants are ci.dmittedly continuing in service by virtue of the stay orders issued by this court. Though Mr. Shanti . Bhushan, learned Senior Advocate, appearing' for . the appellants, assailed, the judgment of the High Co1irt dated 5.11.1990 on various grounds, including the justification for c:Ontinua- tion of district-wise selection, which according to him was not aimed at C excluding anyone from selection and would be in the interest of local students becau5e aceording to him .the prhnary school teachers would be conversant with the different . dialects in .their own districts besides the. familiarity with local environment etc. and therefore more suitable to teach, we need not deal with the contentions raised by Mr. Shanti Bhushan on m,erits, in view of the . submission made by Mr. Sibal, learned Senior D Cbunsel, appearing for ihe State of Bihar. Mr. Sibal very fairly submitted . that th~ teache~s who ha~ been appointed till 2.7.1989, before or after Anil Kumars judgment\vb,id1 was rendered on 14.5.1987 and·were continuing iii. service by virtue of: stay-orders, issued by the courts, would be :retained in servi~1 -and theref~re,. the questions raised by Mr. Shanti Bhush~, need E ~ot be}le~ided; a:s a~ording to Mr. Sibal, those arguments may have a ~earillg . . on the ttiles~;which - . have since been promulgated by . . the'' State . in 1991.

Mr. Shanti Bhushan, however, submitted that the appellants in all the . F three appeals deserve not only to be· retained in service but also to be granted continuity of service and back wages. As already noticed, the appell~ts are continuing in service by virtue of the stay-orders issued by this Court. Since, their appeals are being allowed in view of the concession made by the State of Bihar, their claim for continuity of service in our opinion is well fo\inded. As, they are continuing in service, it is but appropriate that they should have the continuity of service for all purposes. How~ver, so far as the prayer for grant of back wages for the interregnum of about four months is concerned, adinittedly, they did not serve for that period and in our opinion, having regard to all the facts arid circumstances of the case, their prayer for grant of back wages for the small period of four months,is not justified. We, accordingly, decline to grant the relief of

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back wages, though direct their retention in service and grant them con- A tinuity of senice throughout for all other purposes. Civil Appeal Nos. 3218-20/91 are accordingly allowed to the extent indicated above and the judgment of the High Court in CWJC 4843/88 is set aside to that limited extent only.

CA Nos.3216/1991, 2082/1991 and WP (C) No.911/1991 B

CA Nos.3216/1991 and 2082/1991 are directed against the judgment of the High Court of Patna in CWJC No.6595/1989, decided on 12.11.1990. While not granting any relief to the writ petitioners, the High Court also quashed the appointments of teachers who stood appointed out of the panel on the ground that no appointment made from an 'unconstitutional panel' could be allowed to stand. The appellants in both. these appeals belong to District Gopalganj. While CA No.3216/1991 has been filed by the appellants whose names had been brought on !,he panel but who had not been appointed till the panel was cancelled, CA No.2082/1991 has been filed by the appellants who stood appointed out of the panel but have been ousted as a result of the High Court judgment, even though they were not parties before the High Court. WP No.911/1991 has been filed by the traine~ primary school teachers who remained un-appointed on account of the cancellation of the panel, vide GO dated 2.7.1989. Their position is <!-kin to that of the appellants in CA No.3216/1991. E

The appellants in CA No. 3216/1991 had applied for being appointed as AssistanHeachers in the primary schools pursuant to an advertisement, issued in the year 1985. According to the advertisement, the residents of Gopalganj district alone, possessing the requisite qualifications, were en- F titled to make applications for such appointments. The appellants alongwith others were placed on a panel out of which 435 persons were appointed. In the wake of the judgment in Anil Kumar v. Chief Secretary to the State Government of Bihar and others, (supra) declaring district-wise selection to be unconstitutional, the State Government of Bihar issued an order on 2.7.1989, after earlier staying the appointments from the panel G vide order dated 1.3.1989, cancelling the panel, while not disturbing the appointments already made. The appeilants, whu were 62 persons, before the High Court had apparently pleaded before the High Court for the quashing of the entire panel on the ground that it was unconstitutional and in the alternative to be treated at par with the appointed teachers. The H

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A High Court addressed itself to those questi?ns. Before the High Court,. respondent Nos.9 and 10 had been impleaded in the writ-petition in their representative capacity to represent the cases of the teachers who had already been appointed out of the panel, prepared in the year 1985. The High Court did not accept the stand of the State that tp.ough the panel be quashed, the appointments already made be not disturbed. Relying upon B an earlier judgment rendered by the High Court in the case of Birendra Kumar Srivastava v. State of Bihar and Ors., (CWJC No.4843/1988 - dis- posed of on 5.11.1990) wherein the entire panel of a particular district had been quashed and the appointments. of the teachers from that panel declared invalid, the writ-petition was.allowed and the panel prepared for c the district of Gopalganj including the .appointments of 435 persons out. of the said panel were quashed.

The grievance of the appellants in CA No.3216/1991 is that the High Court had misunderstood the whole intent and nature of the writ.,.petition D as also the nature of the relief sought for therein. It was submitted by Mr. Tarkunde, the learned Senior Counsel, appearing for the appellants in CA No.3216/1991, that the appellants had not sought the quashing of the panel prepared-in 1985 and that on the other hand, their case was for quashing of the Government Order dated 1.3;1989, whereby, process of appointment from the panel prepared in 1985 ·had been stayed and Government Order E dated 2.7.1989 whereby the existing panel had been cancelled, while retain- ing the persons 1n service already appointed from the same panel. Mr. Tarkunde submitted that the appellants had prayed for issuance of Writ of Mandam~ commanding the respondents to ·forthwith appoint the appd- · lants as ASsistant~teachers in primary and middle -schools in the district from the panel prepared in i985 since they had been brought on the panels and had thereby acqurred the righ~ to be appointed because of the exist- ence of vacanCies. Mr. Tarkunde 'submitted that the naines of the appel- lants had b~n sent tltt~~. the employinbnt-ex~hattge and th~y had' been trained at th6 State expense a~<i that <ince th~~trajning process had started, it should be taken to"th~ Iogicai'condu5ion CuhiiiD.atUlg m. the appc)intment of the appell~nts anc( therefore, the circhlar iSStied by the State Govern- ment on 2.7.1989, cancelling t~e panel P!epared_ as early as in 1985/1986, is illegal and unjustified. Le(lrned counsel argued tha.t tl;iough a. person who is selected does not always have any indefeasible right of appointment,. but since the appellants had been trained by the Oover~ent ~t their. expense, such a.general rule wo_uld not apply t-0 their case and a valuable right had .:

£ABITA PRASAD v. STATE OF BIHAR [ANAND, J.] 449

acc1 ued to the appellants to be appointed and the cancellation· of the panels violated that right. Apart from justifying the selectiOn. of primary school teachers on district-wise basis, the learned counsel submitted that the panel in which the names of tfte appellants figured was required to last till exhausted particularly since the vacancies existed. Emphasis was laid by Mr. Tarkunde on the discrimination which resulted by the Government Order of 2.7.1989 between the appointees and non-appointees and on that basis it was urged that the. State Government Order, dated 2.7.1989, was violative of Article 14 of the Constitution of India and had to be struck down. According to Mr. Tarkunde, if the Government had decided to give judgment in Anil Kumar's case only prospective application and allowed all the persons on the panel to be appointed as and when the vacancies arose, no hardship would have occasioned to anyone. In substance the submission of Mr. Tarkunde is that all the persons whose names had figur:ed in the panels, had acquired a vested right to be appointed as and when the vacancies arose and the cancellation of the panel took away the accrued rights of the panelists which is not permitted. He emphasised that the panel was required to remain effective till it was exhausted and its cancellation by the Government on 2.7.1989 was arbitrary and unjustified. In support of his submission, learned counsel relied upon certain judg- ments to which reference shall be made hereafter.

Mr. Kapil Sibal, learned Senior Advocate, appearing on behalf of the E State of Bihar, countered the submissions of Mr. Tarkunde and argued that empanelment is only a 'condition of eligibility for purposes of appointment and that there can be no situation where empanelment itself can be equated with "selection", creating a vested right in cm empanelist to an appointment. He submitted that the panel prepared was no more than arrangement of the particulars of the candidates, who had received train- ing, and such a list could not be equated with even a fixed term panel which under certain conditions may create some right in those empaneled to seek appointments during the life of the panel. Mr. Sibal fairly conced~ that the appointments, made after the judgment in Anil Kumar's case and till Government Order dated 2.7.1989 was issued, were against the law as laid down in Anil Kumar's case, but went on to say that those appointments were not to be disturbed because some equities had come in favour of those 'wrongly' appointed candidates and assserted that non-interference with their appointments cannot form the basis of an argument based on Article 14 as the appointed and non-appointed candidates formed two H

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A distinct classes. Mr. Sibal went on to urge that the empanelment was not made by any process of selection and having been sent for training, did not create any vested right to appointment in favour of the trainees as the training was designed to confer only eligibility to the empanelists for consideration.

B InAnil Kumar's case (supra) where the validity of the advertisement, dated 7.5.1985, issued by the District Superintendent of Education, Hazaribagh, inviting .applications for preparation of a panel of candidates for appointment to the posts of Assistant-teachers in the primary schools · of the districts and order dat~d 31.1.1986, issued by the Special Secretary, C · Department of Education, Government of Bihar, laying down the requisite qualifications and conditions for being considered for appointment to the aforesaid posts, was put in issue, the High Court frowned upon district-wise selection atid held that reservations made on the basis of residence in a district were unconstitutional and consequently, the advertisement dated 7.5.1985 and order, dated 31;1.1986 as also the panel prepared on district- D wise basis were quashed. Justice N.P. Singh, (as His Lordship then was) speaking for the Division Bench, however observed:

...."This writ application is, accordingly, allowed. But, as the persons who have already been appointed are not party to this application, their appointments cannot be held to E be invalid in their absence. However, the respondents are restrained from making any appointment from the panel prepared on the basis of the advertisement and the order aforesaid ...."

F The judgment in Anil Kumar's case, thus, saved the appoint~ent of all those who had been appointed and were not party to the writ-petition. The challenge inAnil Kumar's case related to the appointments made from. the panel prepared for District of Hazaribagh.

The judgment inAnil Kumar's case was not challenged in any higher forum. It acquired finality. The State Government issued the circular, dated 2.7.1989 as a follow-up action of Anil Kumar's judgment. The policy of holding district-wise selection was thereafter given up and in 1991 new rules dealing with the subject have been promulgated. In this situation, we are unable to agree with Mr. Tarkunde that selections could still be made on &,strict-wise basis, as according to him district-wise selection was just

p. 451 Copy page pinpoint

and fair and did not require to be given up. The question, however, which immediately comes up for our consideration is whether the persons who had been brought on the panel had acquired any indefeasible right of. appointment on that account and incidentally, the other question would be whether the Government Order, dated 2.7.1989 and the concession made by Mr. Sibal, appearing on behalf of the State of Bihar, discriminates between the persons appointed and not appointed, out of the panel declared to be unconstitutional in Anil Kumar's case, thereby violating Article 14 of the Constitution of India.

Let us first consider the nature of the panel and the rights, if any, which could flow from it. C

On 3.4.1964, vide letter No. PL/P/l-06/63-1726, the Secretary to the Government of Bihar directed all District Superintendents t~at "no un- trained person should henceforth be appointed as a teacher in any primary school". According to the programme, stipulated for training, a person D after having acquired the qualification of matriculation/intermediate/ graduation 'was required to get enrolled in the Primary Teachers' Training College in any of the districts in Bihar. The training period was of two academic years. The training programme was followed by a written as well as viva voce examination and the examination was held by Bihar State Primary Education Board for all the training colleges throughout the State E of Bihar. The trainees, passing the examination, were awarded the certifi-, cate of BTC. Persons having qualification of B.Ed. were treated as equivalent ~o persons who had undergone and passed the aforesaid training and examination. The Government of Bihar issued directions based on a. policy statement that in the primary schools of any district in Bihar, the residents of that district alone shall be entitled/eligible for appointment as a teacher. The training was undertaken by the candidates at the cxpt;nse of the State Government. After successful completion of the training and the examination, a list of all qualified persons was arranged in a list according to their merit chronologically arranged year-wise. Thus, it would be seen that training was essential to give an eligibility to the person,, otherwise qualified, to be brought on to the panel. Appointments were made on the basis of placement in the panel as and when a vacancy arose. However, the panel was not co-related either to the existing vacancies when the panel was prepared or even to the anticipated vacancies of the near future. The empanelment, v,ras not as a result of any process of selection H

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A either and none of the qualified trained teachers were excluded from being brought on the panel. The panel by the very nature of its preparation, was, therefore, no more than a list of all eligible qualified trained teachers arranged according to merit in a chronological order year-wise, which was utilised to make appointments of teachers as and when the vacancies arose. The panel prepared in different districts in a particular year had continued B to remain in existence for year after year and the eligible and qualified trained teachers of the subsequent years were placed below the candidates of the earlier years, while appointments were made on the basis of place- ment in the panel. Did the persons on such a panel acquire any indefeasible right to appointment? c In the State of Haryana v. Subash Chander Marwaha and others, (1974] 3 sec 220, as a result of a competitive examination held by the Haryana public Service Commission for recruitment of candidates for 15 vacancies of Subordinate Judges, a list of 40 candidates, who had obtained 45% or more marks in the examination which was the eligibility condition, was published. Out of the selection list, only 7, who.had secured more than 55% marks were appointed in the serial order of the list according to merit. Candidates who ranked at 8, 9 and 13 respectively in the list but had not been appointed filed a 'writ-petition under Article 226 for Mandamus, . claiming that since there were 15 vacancies and they had the necessary qualifications for appointment and had been brought on the 'select list', the State Government was not entitled to pick out only 7 out of them for appointment. The High Court agreeing with the petitioners issued a Man- damus to the State of Haryana to select the candidates so that their names could be brought on the High Court register for appointment as Subordinate Judges in the State of Haryana. The State of Haryana challenged the judgment iii this Court. Allowing the appeal, this Court inter alia observed:

".... that the mere entry in this list of the name of candidate does not give him the right to be appointed. The advertise- ment that there are 15 vacancies to be filled does not also give him a right to be appointed. It may happen that the Government for fmancial or other administrative reas0n:, may not fill up any vacancies. In such a case the candidates, even the first in the list, will not have a right to be appointed. The list is merely to help ~e State Government in making the appointments showing which candidates have the min-

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imum qualifications under the Rules. The stage for selec- A tion for appointment comes thereafter, ...."

Thus, it was held that even the existence of vacancies does not confer B a legal right on a candidate to be selected for appointment merely on the ground that the candidate's name was included in the select list.

Mr. Tarkunde, however, placed reliance qn the judgment in Miss Nelima Shangla v. State of Haryana and others, [1986] 4 SCC 268, to urge that the 'selectes' whose names are entered in the select list get a vested C right to be appointed as and when the vacancy arises. The. claim of the petitioner in Nelima Shangla's case was indeed allowed by the court but it was not on the ground that she had acquired any right by her mere entry in the selection list and the existence of vacancies. The position in that case was that the matter of selection had been referred to the Public Service D Commission, which recommended to the Government names of 17 can- didates belonging to the general category for appointment on the assump- tion that only 17 posts were to be filled up and accordingly 17 appointments were made. At the time when the appointments were made, there existed more vacancies but the stand of the State Government before this Court was that they were unable to select and appoint more candidates as the E Public Service Commission had not recommended any other candidate. It was held by this Court that ~~ was not for the Public Service Commission to take a decision of recommending only 17 names and that the Public Service Commission was obliged to prepare a complete list of all successful candidates and communicate the same to the Government, the appointing authority. It was held that the Public Service Commission erred in with- holding names of several successful candidates including the petitioner therein,. on the wrong assumption of limited number of vacancies. The Court observed that though it was open to the Government· not to fill up . all the vacancies for a valid reason, the selection could not be arbitrarily restricted to a few candidates, notwithstanding the existence of number of vacancies and availability of qualified candidates. It was in this background that the Court directed the Government of Haryana to include the name of the petitioner in the 1984 list of candidates selected for appointment of Subordinate Judges and grant her due place in the seniority list of that batch. It would, thus, be seen that it was in the peculiar facts and cir- H

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A cumstances of that case that relief was granted to the petitioner therein and it was not laid down in that judgment that a candidate acquires any indefeasible right by merely being brought on to the select-list, even where a vacancy exists. That judgment, which was based on the peculiar facts of the· ca$e, cannot, thus advance the case of the appellants iii any way. That apart, both the above noted judgments came up for consideration before a B Constitution Bench of this Court in Shankarsan Dash v. Union of Indi(I,, [1991] 3 SCC 47, where one of us (Sharma J.) (as His Lordship the Hon'ble Chief Justice then was) speaking for the Bench dealt extensively with the righ~s of candidates included in a "merit list" to an appointment.

C The appellant in that case was selected in the combined Civil Service Examination held by the Union Public Service Commission for appoint- ments to several serviees including the Indian Police Service (hereinafter referred to as the IPS) and the Police Services Group _'B'. The examination was conducted in October 1977 and the result was announced in May 1978. D A combined merit list for the IPS and the Police Services Group 'B' was announced which included the name of the appellant. Out of the total number of 70 vacancies in the IPS, announced to be filled up, 54 were of general category and the remaining 16 had been reserved for Scheduled Castes/Scheduled Tribes candidates. Since, the appellant did not get a high rank in the merit list, so as to be included in the IPS, he was offered E appointment to the Delhi, Andaman and Nicobar ·Police Service (hereinafter referred to as the DANIP) in Police Service Group 'B', which he accepted. On account of several candidates, allotted to Police.Services Group 'B' not joining, the rank of the appellant improved and ultimately, he was on top of the list. F In June, 1979, 14 vacancies arose in the IPS due to selected can- didates not joining the service. Out of the total number of 14, 11 were in the general category and 3 were in the reserved category. Three vacancies in the reserved category were filled up by the candidates who had been earlier appointed .in DANIP Service, but no appointments were made against the general category vacancies. The appellant, by a representation, prayed that general category vacancies should also be filled up and he be appointed since he was on the top of the list. The request was turned down. The appellant approached the Delhi High Court by a writ petition under Article 226 of the Constitution, which was dismissed. He then approached this Court by special leave to appeal against the judgment of Delhi High

p. 455 Copy page pinpoint

Court and for a direction to be appointed to the IPS, being on the top of the merit list as a vacancy did exist.

On behalf of the appellant it was asserted before the Constitution. Bench that since several vacancies in the general category of the IPS had remained unfilled, he was entitled to be appointed against one of those. vacancies as his name figured in th' list and was now at its top and the authorities were not justified in rejecting his representation. The Bench'. negatived the contention and observed:

"It is .not correct to say that if a number of vacancies are notified for appointment and adequate number of can- c didates are found fit, the successful candidates acquire an indefeasible right to be appoi!lted which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right~o the post. Unless the relevant recruitment rules so indic~te, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licenJ of acting in an arbitrary manner. The · decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled, 'the State is bound to respect the com- parative merit of the candidates, as reflected at the recruit- ment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find ·any discordant note in the decisions in State ofHaryana v,Subhash Chander Marwaha, Neelima Shangal v. State of Haryana, or Jatendra Kumar v. State of Punjab".

Thus, the Constitution Bench while referring with approval the judg- ment in Subhash Chander Marwaha's case (supra) in unequivocal terms reiterated the settled law that the existence of vacancies does not confer a legal right on a selected candidate to be appointed unless the relevant Rules provide specifically to the contrary. The State, of course, must all through act bona fide and not arbitrarily both in malcing appointments and in not filling the existing vacancies. H

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A Mr. Tarkunde and Mr. Gupta appearing for the petitioners in W.P. No.911/1991, however, placed reliance on AA. Calton v. Director of Educa- tion & Anr., (1983) 3 SCC 33, in support of their plea. The Division Bench in Ca/ton's case was considering the question of retrospectivity of statute law on the existing rights of the employees and it was in that context that this Court opined that existing rights cannot be taken. away by giving B retrospective effect to a statutory provision unless the statute expressly or by necessary implication provides so. In the present case, the State does not claim the retrospectivity of the 1991 Rules to deny appointments to those who had been brought on the panels. The panel came to be can- celled, as already noticed, in view of the judgment in. Anil Kumar's case c and, therefore, appointments from that panel after 2.7.1989 were not made. Even otherwise, the nature of the panel prepared in the. present case was only that of a list of the eligible· candidates possessing requisite qualifica- tions arranged in a chronological order based on their merit in a particular year. No process of selection what so ever had been undergone to prepare D the panel as none who was otherwise eligible and qualified was excluded from being brought ·on the panel. The panel prepared, therefore, was not even the product of any selection process, unlike in Caltion's case (supra) where a process of sele~tion had been undergone as is apparent from the following observation of the Bench:

E "It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under Section 16-F(4) of the Act in the case of minority institutions. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under Section 16-F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings._ The process of selection under Section 16-F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under Section 16-F(4) (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore be construed as merely a H procedural provision. It is true that the legislature may pass

SABITA PRASAD v. STATE OF BIHAR [ANAND, J.) 457.

la,ws with retrospective effect subject to .the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implica- tion directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selec- B tion had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in c question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power sub- sequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made D by him was illegal since the amending law had no retrospec- tive effect. It did not have. any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the . law as it stood at the commencement of the said proceed- E ings. We do not, therefore, fmd any substance in the con- tention of the learned counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case."

It was, therefore, in the context \Of the peculiar facts of that case that this court declined to interfere with the judgment of the High Court and it has no application to the situation existing in the present case.

Mr. Tarkunde then placed strong reliance on Prem Prakash etc. v. Union of India & Ors., [1984] Supp. SCC 687, and particularly on the following observations appearing in paragraph 15: '

"Once a person is declared successful according to the merit list of selected candidates, the appointing authority has the responsibility to appoint him, even if the number H

p. 458 Copy page pinpoint

A, of vacancies undergoes a change after his name is included in the list of selected candidates,"

in support of his submission. Here again the facts were entirely different. The observations extracted above were made on the special facts of the case as mentioned in paragraph 11 of the Judgment. Moreover,· selection had been made in that case after holding an examination and a panel for a limited time had been prepared. The number of candidates in the list was limited to the existence of vacancies, unlike in the present case where neither any period of expiry of the panel was fixed nor was the panel corelated to the number of vacancies or even prepared a:; a result of any process of 'selection'. The judgment in Prem Prak.ash's case, therefore, cannot advance the case of the appellants.

We find force in the submission of Mr. Sibal that the purpose of the panel prepared in the instant case was only to fmalise a list of eligible candidates for appointment. The panel in the instant case was too long and was intended to last indefinitely barring the future generations for decades from being considered in the vacancies arising much later. In fact the future generations would have been kept out for a very long period had the panel been permitted to remain effective till exhausted. A panel of the type prepared in the present case· cannot be equated with a panel which is prepared having corelation to the existing vacancies or anticipated vacan- cies arising in the near future and for a fixed time and prepared as a result of some selection process. As is apparent, the names of some of the teachers in the panel have existed for more than 16 years. A panel of this nature, in our opinion, cannot be treated as conferring any vested or indefeasible right to the teachers to be appointed as laid down by the Constitution Bench in Shankarsan Dash's case (supra).

The mere fact that the candidates who had been brought on the panel had been sent for training at the Government expense, would also not imply that any indefeasible right had been created in their favour for appointment after they had completed their training and their names were entered in the panel because the training was merely intended to confer eligibility on the candidates for being brought on the list. In the facts and circumstances of the case, we, therefore, hold that the panel prepared in the present case was only in the nature of an eligibility list of qualified trained teachers arranged according to their merit in a chrol'.ological order.

SABITA PRASAD v. STATE OF BIHAR (ANAND, J.] 459

It had been prepared without any process of selection whatsoever as none who was a trained qualified teacher was excluded from being brought on the list. The list was neither related to existing vacancies nor to anticipated vacancies. Such a panel did not create any vested or indefeasible right on the empanelists to be appointed.

Faced with this above fact situation, Mr. Tarkunde submitted that the Government order dated 2.7.1989 and the concession made by Mr. Sibal in favour of the candidates who had been appointed, both before and after the judgment in Anil Kumar's case discriminated against the can- didates from the panel who were unfortunate in not having received the letters of appointment. He submitted that the direction contained in the c Government Circular dated 2.7.1989 saving the appointments, from the panel, of candidates who had already been appointed was violative of Article 14 of the Constitution of India. Actording to the learned counsel, once the pant?l had been found to be unconstitutional in Anil Kumar's case, no appointment made from that panel could be saved and in case some appointments had to be saved, in fairness all candidates on the panel deserve to be appointed particularly when more than 25000 vacancies still exist. It was submitted that the State must act fairly and could not shpw favour to the persons who had been appointed and deny the benefit; to those waiting to be appointed from the same panel because of the f<Jr- tutious circumstance that the appointed ones had received their letters of appointment while the appellants had not received the appointment orders in spite of the existence of vacancies.

Mr. Gupta appearing for the petitioners in Writ Petition No.911/91 augmented the arguments of Mr. Tarkunde and submitted that even as- F suming that the district-wise appointments were bad, the Governm~nt order dated 2.7.1989 discriminated between the pre-Government Order appointees, including post Anil Kumar's judgment appointees, by saving their appointments while not granting similar relief to the non-appointees and the distinction between the two groups was not based on any rational or intelligible differentia. He snbmitted that the date of the issuance of the G Government Order was a matter of accident and 'the non-issuance of the letters of appointment to the appellants and the petitioners in Writ Petition No.911/91 prior to 2.7.1989 was merely an unfortunate circumstance. It was ~ubmitted that all the candidates who had been brought on the panel formed one class and the distinction between those "appointed" and those H

p. 460 Copy page pinpoint

A "waiting appointments" was artificial, irrational and not based on any sound principle.

Mr. Sibal, learned senior advocate appearing for the State of Bihar did not dispute that as a result of the judgment in Anil Kumar's case, the entire panel had been rendered unconstitutional but submitted that there B is a clear distinction between those, who out of the panel had been appointed and those who had not been appointed. It was urged that while those who had been appointed, could be said to have acquired some vested right to continue in service, no right whatsoever was created in the non- appointees by merely being brought on the list. It was submitted that since c the panel was nothing but a list of candidates foun~ eligible and qualified, after training and had not been framed under any statutory rules but prepared under executive instructions, as a result of a policy decision, it could have been scrapped even without the judgment inAnil Kumar's case, if the Government acting bona fide and fairly, found justification to change the policy decision and not to make appointments district-wise. He sub- mitted that though the appointments made between 1987-89 were against the law as laid down inAnil Kumar's case, yet some equities had developed in favour of the appointees by their continuing in service and it was but fair not to interfere with their appointments particularly when they were not even parties before the High Court. He submitted that the State acting fairly and bona fide did not give retrospective effect to its circular dated 2.7.1989 and therefore the charge of discrimi~ation was not well founded. Mr. Sibal stressed that the distinction between the appointees and non-ap- pointees, who framed two distinct classes, was so apparent and clear that the charge of violation of Article 14 must fail as misconceived. F In our opinion there is force in the submission of Mr. Sibal that some equities had come into existence in favour of the appointees and since the judgment· in Anil Kumar's case itself had protected the appointment of those teachers out of the panel who had been appointed but were not before the court, it was a fair exercise of discretion on the p.a-t of the· G Government not to oust those who had been appointed and were serving.

The non-interference with the appointment of teachers from the panel who stood already appointed cannot in our opinion form the basis of Article 14 argument. The fundamental right of equality implies that persons in like situations, under like circumstances, :-.re entitled to be

SABITA PRASAD v. STATE OF BIHAR [ANAND, J.] · 461

treated alike. Reasonable classification according to some principle to recognise intelligible inequalities or to avoid or correct inequalities is· permissible. It is in this background that we must divert our attention to the charge of violation of Article 14. Indeed, if the action of the State, can be shown to be arbitrary, then notwithstanding any classification it would offend Article 14 and be liable to be struck down. Those who had been appointed out of the panel as and when the vacancies arose and ·had continued in service did acquire some right to so continue and the action of the State Government in protecting their services cannot be said to infringe Article 14, which even though all pervasiv:e, has to be considered in the fact~ and circumstances of each case. The appointed and the non-appointed teachers formed separate and distinct classes. In saving the c appointments of those who stood already appointed and were serving ~here was no arbitrariness whatsoever on the part of the respondents. It indeed is no body's case that the decision taken by the State was actuated by any motive or the scrapping of the panel after 2.7.1989 was mala fide. Even otherwise, when the State decided to respect the equities which have arisen in favour of the teachers already appointed and serving, no fault can be found with it. Equity reforms and moderates the rigour and hardness of the law and the State acted fairly and bona fide to respect and balance the equities in favour of the appointed candidates. We must, therefore, reject the charge of arbitrariness in view of the peculiar facts of this case more particularly since we have already found that the persons on the panel had not acquired any indefeasible right to appointment merely by being placed on the panel. It also deserves to be noted here that the appellants had not questioned, as it is, the validity of appointment of the teachers, .already appointed, but have on the other hand sought treatment similar to the one of the appointed teachers. The decision to save the appointments of the teachers already appointed, who form a distinct and separate class, is therefore, fair and reasonable and does not suffer from the vice of arbitrari- ness. It does not in any way offend Article 14. This view also accords with the judgment in Subash Chandra Manvaha's case (supra) and the law laid down by the Constitution Bench in Shankarsan Dash's case (supra). We must, therefore, reject the argument of discrimination between the two classes of teachers, namely, those who stood appointed and the others who were waiting be appointed and in whose favour no indefeasible right accrued, only by being brought on the panel, to be appointed.

As a result of the aforesaid discussion no relief can be granted to the If

462 SUPREME COURT REPORTS [1992} SUPP. 3 S.C.R.

A candidates who were waiting to be appointed but could not be appointed because of the cancellation of the panel on 2.7.1989. These candidates shall, of course, be entitled to apply for consideration for appointments under the new Rule as and when the vacancies arise and are advertised subject to fulfilling the necessary conditions. The State Government, we· hope, will consider the question of relaxation of age bar, in suitable cases, B so as to minimise their· hardship. Civil Appeal No.3216/91 fails and is dismisse~. For the same reasons, Writ Petition (c) No.911191 also fails and · is dismissed.

Civil Appeal No. 2082191. c This appeal by special leave has been filed by the appellants who had been appointed out of the panel in various schools in District Gopalganj but have been ousted as a result of the judgment of the High Court in GWJC No.6595/89 decided on 12.11.1990, even though they were not D parties before the High Court. Mr. Mukhoty learned senior counsel ap- pearing for the appellants, while questioning that part of the judgment raised various pleas based bot~ on law and in equity, and pointed out, what he considered to be the merits of District-wise selection of teachers for primary schools. He also submitted that the mere fact that respondents E 9-10, in the writ petition had been impleaded in their "representative capacity", without in any way establishing their so called 'representative capacity', could not improve the matter as they had neither the capacity nor the authority to represent the cases of all the teachers who stood already appointed out of the panel and were continuing in service. We, however, do not consider it necessary to refer to the arguments raised by F Mr. Mukhoty in view of the concession made by Mr. Sibal to the effect that the teachers who had been appointed, prior to 2.7.1989, {before or after the judgment in Anil Kumar's .case) .and were continuing in service, as a result of stay orders issued by this Court or the High Court, would not be disturbed notwithstanding the technicalities involved. The concession of Mr. Sibal, which appears to be based not only on the ground that these appellants had been condemned unheard but also because of the fact that equities had arisen in favour of that class of teachers and is in accord with Government Circular of 2.7.1989, has been recorded. In view of the con- cession by the State, Civil Appeal No.2082/91 is allowed and the judgment of the High Court in CWJC 6595/89 decided on 12.11.1990 to that extent is set aside. The appellants shall continue in service as teachers and shall be treated to have so continued throughout.

p. 463 Copy page pinpoint

Ca No. 425411991 A

This appeal has been filed by 33 teachers belonging to Nalanda District. Pursuant to an advertisement, issued in October 1976 by the District Superintendent of Education Nalanda, inviting applications in the prescribed form from eligible candidates of. the District, the appellauts herein who posses the requisite qualifications made applications through the District Employment- Exchange. Subsequently, a panel, containing ~he names of the candidates found fit for selection on the basis of year i of training and their marks in the matriculation/secondary schools examma- tion and at the training, was prepared and the name of the appellants were included therein. Appointments were made in January 1988 for the fast time, from that panel to the post of Assistant-teachers in primary schools in Nalanda District. The appellants, however, were not appointed, though some of the teachers figuring below them in the panel were appointed. The

- ground for non-selection of the appellants was generally stated to be on · account of being over-age or not having passed the matriculation examina- · tion but having passed Pravishka Examination from Deoghar Vidyapeeth. D

Some more appointments came to be made even in February 1988. The appellants were again left out from appointments though, one Shri Dhirendra Kumar, who had on an earlier occasion been found to be over-age, was included in the list. Some more appointments came to be made on 30th of March, 1988. The appellants were once again left out while according to them some of their juniors and similarly situate candidates being over-age, were appointed. Two of such candidates have been men- tioned as Jai Prakash Narain Singh and Kishore Prasad Singh. The appel- lants have furnished details of persons who have been appointed but figured below them in the panels prepared by the State. Aggrieved, by the action of the respondent~ in excluding them from appointments while appointing persons figuring below them in the panel, 49 teachers ap- proached the High Court by Writ Petition No.3048/1988. Though the court noticed that the petitioners had been kept waiting for almost 14 years after having been empanelled but taking note of the judgment in Anil Kumar's case (supra) found that no effective relief could be granted to them. Takihg G note of the letter, issued by the Director (Primary Education)-cum-Joint Secretary, Human Resources Development Department, Bihar, dated 20th of December, 1989, whereby he had issued instructions to the effect that as and when any fresh advertisement is made and fresh panel prepared, the case of the petitioners be considered and, if need be, the age bar be H

p. 464 Copy page pinpoint

A condoned, the court disposed of the writ-petition observing:

"4. Keeping in view the facts and circumstances of the case, it is hereby directed that when the advertisement comes out and the petitioners apply in response to the same, the opposite partie~ in accordance with the commitment which B has been given under the aforesaid letter of the Director of Primary Education will, if need be, condone the age bar and consider the case on priority basis of all these petitioners as also of other similarly situated persons whose names have figured on similar panels and whose appoint- c ments could not be made for similar reasons."

The fact that some candidates figuring below' the appellants in the panel had been appointed while the appellants were left out is not denied. It has, however, been urged by Mr. Sibal that the non-appointment of the appellants was not on account of any arbitrariness or caprice on the part of the respondent-State but on account of the delay in the verification of certain facts concerning those candidates and the desire of the State not - to keep the vacancies unfilled. Mr. Verma, learned counsel for the appel- lants, however submitted that the appellants were not responsible for the delay in the verification of facts and that they could not have been left out while their juniors in the pa~el were appointed for no fault of theirs. Mr. Sibal with utmost fairness submitted that some hardship had been caused to the appellants by the action of the State and conceded that the State would consider the cases of all such candidates whose juniors had been appointed by leaving them out and if found eligible would be prepared to relax the age bar in their favour and appoint them against the existing vacancies. Mr. Verma is satisfied with this assurance made on behalf of the State. Recording the submission of Mr. Sibal, we make an order accord- ingly and allow CA No.4254/1991 and direct the consideration of the cases of the appellants for appointment as primary school teachers wherever persons figuring below them in the panel have have appointed and if v G necessary in relaxation of the age-bar against the existing vacancies. Civil Appeal No.3217/91

This civil appeal is directed against the judgment of the Patna High Court in CWJC No.4843/88 decided on 5.11.1990. It has been filed by some .li of the teachers belonging to District Siwan whose names had been included

· SABITA PRASAD v. STATE OF BIHAR [ANAND, J.] 465

· in the panel but who had not been appointed. M_r. Javali, learned counsel for the appellants submitted that in view of the concession made by Mr. Sibal in Civil Appeal Nos.3218-20/9_1, and the copcession in the case o( teachers from Nalanda District, (Civil Appeal N~.4254/91) to the effect that those teachers would also be granted fresh appointments, whose juniors had been appointed and who could not be appointed on account of delay in the verification of certain facts, the appellants also deserve the same benefit. According to the learned counsel, the appellants and the applicants in the impleadment application IA 3 and IA 6 are 73 in number and all of th.em are senior to the last candidate appointed out of 212 teachers in whose case concession has been made in C.A. Nos.3218-20/91. Learned counsel submitted that all the appellants, on account of their, c seniority deserve to be appointed Mr. Javali referred to the letter dated 2.6.1988 which had been issued after Anil Kumar's judgment to support his submissions. Para 2 of the letter reads thus:

"For the appointment of the teachers in pay-scale of Matric trained, Separate waiting lists of art and science teachers have been prepared, that is not made according to the departmental Rules because matric trained teachers does not fall in class of science teachers. Therefore, for the purposes of making appointment in pay scale of matric trained, having prepared seniority wise combined waiting list of arts science subject, appointment should be made seniority wise from the said waitmg list. Prior to i981 also there was no departmental provision to make separate waiting lists of the applicants of the matric arts 1Uld science and one combined waiting list was prepared. Appointment F of matric science applicants had to be made on the mini- mum 25% posts. Having prepared the waiting list on the basis of marks obtained, there was no provision for making appointment on the basis of seniority. In this regard kindly see G.O. No.4557 dated 15.12.1976." G According to the learned counse~ the above letter was issued with a direction to make appointments on the basis of the combined seniority list of the arts and science teachers and since in the District of Siwan two panels bad been prepared, one for the science teachers and the other for the art teachers, the cases of appellant teachers had been over-looked as· H

SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R.

A appointments had not been made from the combined waiting list but out- of separate lists and that too not according to seniority. He then rt?ferred to letter dated 1.9.1988 from the Director, Primary Education-cum-Addi- tional Secretary to the District Superintendent of the Education, Siwan, wherein this position had been clearly brought in. The said letter reads:

B "In reference to your letter No.29/M dated 25th June on the aforesaid subject, I have to say that the candidates belonging to science category who have been deprived of getting the benefit of appointment on the post of teachers by violating the Government Rules and orders, their ap- c pointment should be made immediately by the Estab- lishment Committee after making enquiry in regard to the entire facts and their certificates. A combined panel of all the candidates of matric Art and science has to be prepared on the basis of the sessions and marks obtained and there is departmental rule for making appointment on seniority D wise. It has been found during the enquiry that there are 48 such candidates in approved waitmg list who are seniors to the teachers who have been recently appointed in the light of the departmental rules. According to the rules, their appointment should have been made. , E Therefore, it is directed in the light of the order of the Government that the appointments of all such senior can- didates should necessarily be made within a month and compliance report may .be sent." F Learned counsel urged that the appellants were senior to those 212 candidates who had been appointed (having figured above them in the panel) and therefore deserved to be appointed at least afresh, if not from the date the candidates figuring below them in the panel were appointed. A perusal of the judgment of the High Court in CWJC No.4843/88 shows that the High Court did not address itself to the question of 'seniority' of Jhe appellant vis-a-vis the 2U appointed teachers and no combined waiting list was considered while disposing of the case. Mr. Sibal appearing for the State of Bibar submit~ed that there is no material on the record to establish conclusively-that the appellants were "senior" to those 212 appointed teachers. or placed above them in the panels or were even otherwise fully

p. 467 Copy page pinpoint

qmdified to be appointed as teachers. He also pointed out that since in the A High Court, no such plea had been raised, the appellants be not permitted to raise the plea here for the fi!st time.

Taking note of the concession made by the State in Civil Appeal No.2484/91 and Civil Appeal No.4254/91 as also the order in C.A. Nos.3218-20/91, in our opinion it is a fit case which should be remitted ~o the High Court ·for the limited purpose to render a judgment on the question of seniority of the appellants vis-a-vis those who .stand appointed and whose appointments have not been disturbed in view of the concession made in the above noted appeals in this Court. Should the High Court finil, after hearing both sides, that any or all of the appellants in this case ate senior to the ones who had been appointed and are continuing in service, as a result of the orders made in the aforesaid appeals and are otherwise qualified ill all respects according to the scheme existing prior to 1991 Rules, it shall direct the State Government to appoint such teachers, in relaxation of the age bar wherever _applicable. Civil Appeal No.3217/91 is therefore allowed and the judgment of the High Court is set aside and the matter is remitted to the High Court for decision on the question of seniority and grant of relief in the terms indicated hereinabove. D As a result of the above discussion CA 3216/91 and WP 911/91 fail and are dismissed. CA 2082/91; CA Nos.3218-3220/91; CA 3217/91 and CA 4254/91 are allowed to the extent and in the terms indicated in the judg- ment. There shall, however, be no order as to costs.

T.N.A. Appeals disposed qf.