Supreme Court of India
SABITA PRASAD AND ORS.versusSTATE OF BIHAR AND ORS.
- Citation
- 1992 INSC 335
- Decided
- 8 December 1992
- Disposal
- Disposed off
- Bench
- L M SHARMA
Holding
A district‑wise panel is only an eligibility list and does not create any indefeasible right to appointment; its cancellation and the preservation of existing appointments do not violate Article 14.
Summary
The Supreme Court examined the legality of district‑wise panels prepared by the State of Bihar for appointing primary‑school assistant teachers. The petitioners argued that inclusion in a panel created a vested right to appointment and that the Government's circular of 2 July 1989, which cancelled the panels but saved existing appointments, violated Article 14. The Court held that the panels were merely eligibility lists, not the result of any selection process, and therefore did not confer any indefeasible right to appointment. Consequently, the cancellation of the panels and the decision to preserve the service of teachers already appointed were not arbitrary and did not infringe the equality clause. The Court allowed the appeals seeking relief for teachers already appointed, directed consideration of pending cases of unappointed teachers under the new rules, and dismissed the petitions seeking a declaration of a right to appointment for those merely on the cancelled panels.
Issues considered
- The inclusion of a candidate in a district‑wise panel creates an indefeasible right to appointment.
- The cancellation of the panels and the saving of already made appointments violates Article 14 of the Constitution.
- The distinction between teachers already appointed and those awaiting appointment is arbitrary or discriminatory.
- Whether training at State expense confers any vested right to appointment.
- Whether the State is obligated to fill all existing vacancies.
Legislation cited
- Constitution of Indias. Article 14
Subjects
teacher recruitmenteligibility listvested rightArticle 14equalitypublic employmentcivil serviceconstitutional law
Judgment
A SABITA PRASAD AND ORS.
v.
STATE OF BIHAR AND·ORS.
DECEMBER 8, 1992
B [L.M. SHARMA, CJ., AND DR. A.S. ANAND, J.)
SerVice Law-4'aneHersons on the panel have no indefeasible right
to app()intnient..
C· Assistant Teachers-Preparation of district wise panels-Panels
prepared district-wise declared unconstitutional-Consequential
· Government's circular cancdling the panels without disturbing the appoint-
ments already made--C/aim for appointment by non-appointed teachers on
ptine~e/d the panel was in the naturepf only eligibility list prepared without
D any process of selection· and without having co-relation 'to existing or an-
ticipated vacancies-Such a panel does not confer any vested or indefeasible
right; on teachers to. be appointed-Training of teachers at State expenses
merely.confers eligibility and not vested right to be appointed-Appointed and
non-appointed teachers formed separate and distinct classes-Held
Government's order saving appointments already made is not violative of
E Artide 14 of the Constitution. ·
For appointing teachers in the primary schools the State of Bihar
was preparing district-wise panels. By its judgment in Ani/ Kumar v. Chief
Secretary, 1987 Patna Law Journal Reports 846, the High Court of Patna
F declared the panels prepared on district-wise basis as unconstitutional
but directed that the appointments already made from the panels should
not be disturbed. Further, the State was restrained from making any
further appointments from the panels prepared for the different districts.
As a follow up action of the judgment the State of Bihar issued instruc-
tions on 1.3.1989 staying further appointments from the existing panels
G and by its circul~r dated 2.7.1989 cancelled the existing panels without
disturbing the appointments already made. After the judgment of the High
Court and till the Government circular dated 2.7 .1989 was issued some
appointments were ma~e but thereafter no further appointments were
made the e;xisting panels. Those teachers who were not appointed in spite
H of being on the panel and· some others filed various writ petitions in the
438
SABITA PRASAD v. STATE OF BIHAR 439
Patna High Court which were disposed of by different judgments against A
which appeals have been preferred in this Court.
The appellants (In C.A. No.3216/91) were placed on a panel
prepared but were not appointed because. the panel was cancelled. They
tiled a petition before the High Court wliich relying upon its earlier
judgment quashed the panel including the appointments already made out B
of the said panel. The position of the petitioners in the connected petition
(911/91) is akin to that of the appellants because they also remained
unappointed on account of cancellation of panel. It was contended on
behalf of the non-appointed teachers (1) that the teachers empanelled
have acquired a vested right to be appointed as and when the vacancies C
arose and the cancellation of the panel took away their accrued rights
which was not permissible; the panel was required to remain effective till
it was exhausted and its cancellation was arbitrary; (2) the Government's
circular saving the appointments already made was violative of Article 14
of the Constitution because the distinction between those 'appointed' and D
those 'waiting appointments' was irrational; (3) the appellants having
been trained at State's expense have acquired a valuable right to be
appointed.
On behalf of the State it was contended (1) that empanelment is only
a condition of eligibility for purposes of appointment and empanelment E
itself cannot be equated with 'selection' creating a vested right in aq
empanellist to be appointed; (2) the panel prepared was no more than
arrangement of the particulars of the candidates and such a list could not
be equated with even a fixed term panel which under certain conditions
creates some right in those empanelled to seek appointment during the F
life of the panel; (3) the training was designed to confer only eligibility for
consideration and it did not create any vested right to appointments; and
(4) the appointed teachers have acquired some vested right to continue i~
service, but no right was created in the non-appointees by merely being
brought on the panel; the distinction between appointees and non-appoin-
tees, who formed two different class, was not violative of Article 14 of the G
Constitution.
The counsel for the State of Bihar also made a concession that the
appointments made after the judgment in the Anil Kumar's case and till
Government circular dated 2.7.1989 were issued were not in accordance H
440 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.
A with law but still those appointments may not be distu.rbed because some·
equities had come into existence in favour of those appointed candidates.
The appellants in the connected appeals (Nos. 3218-20 of 1991 and
2082 of1991) were appointed out of the existing panels. Some of the non-ap-
B
pointed candidates tiled petition in the High Court which quashed the
appellants appointment on the ground .that no appointment made from
..
unconstitutional panel would be· allowed to stand. The appellants filed
appeals in this Court and were continuing in· service by virtue of the stay
orders granted by this Court. On their behalf it was contended that they
should not only be retained in service but should also be granted continuity
of service.
c
In the connected appeal (No.4254/91) the appellants were included in
the panel. Aggrieved by the fact that some candidates figuring below the
appellants in the panel were appointed while the appellants were left out they
approached the High Court which held that in view of the Anil Kumar's
D judgment no effective relief could be granted to them. During the bearing of
appeal in this Court ifwas conceded that State would consider the cases ofall
such candidates whose juniors were appointed.
The other connected appeal .(No.3217/91) was also tiled by teachers
whose names were included in the panel but Who were not appointed. It was
E contended on their behalf, that they were senior to the candidates who have
been appointed while on behalf of the State it was conten.ded that there is no
material on the record to establish conclusively that the appellants were
senior to the appointed teachers.
Disposing the appeals, this Court
F
HELD: 1.• The persons on the panel had not acquired any indefeasible
right to appointment merely by being placed on the panel. [461 EJ
2. The panel prepared in the present case was only in the nature of an
eligibility listOf qualified trained teachers arranged according to their merit
G in a chronological order; 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 neither related to existing
{
vacancies .nor even to anticipated vacancies. Such a panel did not create any
vested or indefeasible right on the em panelists to be appointed.
H [458 H-459 A]
SABITA PRASAD v. STATE OF BIHAR 441
State of Haryana v. Subash Chander Marwaha·& Ors., (1974) 3 S.C.C. A
220 and Shankarsan Dash v. Union of.Jndia, [1991) 3 S.C.C. 47, relied on.
Miss Nelima Shangia v. State of Haryana & Ors., (1986) 4 S.C.C. 268;
AA. Calton v. Director of Education & Anr., [1983] 3 S.C.C. 33 and Prem
Prakash etc. v. Union of India & Ors., [1984] Supp. S.C.C. 687 held
inapplicable. B
3. 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 C
entered in the panel because the training was merely intended to confer
eligibility on the candidates for being brought on the list. Consequently,
no relief can be granted to the candidates who were waiting to be ap-
pointed but had not been appointed because of the cancellation of the
panel. [458-G, 461-H, 426-A]
D
4. The fundamemat right of equality implies that pel'Sons in like
situations, under like circumstances, are entitled to be treated a like.
Reasonable classification according to some principle to recognise intel-
ligible 1. !nequalities ~or to avoid or correct inequalities is' permissible.
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 E
to be struck down. [460-H, 461-A]
4.1. 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 F
services cannot be said to infringe Article 14, which even though all
pervasive, has to be considered in the facts and circumstances of each
case. The appointed and the non-appointed teachers formed separ~te and
distinct classes. In saving the appointments of those who stood already
appointed and were serving there was no arbitrariness whatsoever on the
-< part of the respondents. When the State decided to respect the equities G
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. The
decision to save the appointments of the teachers already appointed, who H
442 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.
A form a distinct and separate class, is therefore, fair and reasonable and
does not suffer from the vice of arbitrariness. It does not in any way offend
Article 14. There is no discrimination between the two classes of teachers,
namely, those who stood appointed and the others who were waiting to be
appointed and in whose favour no indefeasible right accrued, only by being
brought on the panel, to be appointed. [ 461 A·G]
B
State of Haryana v. Subash Chander Marwaha & Ors., [1974] 3 S.C.C.
220 and Shankarsan Dash v. Union of India, [1991] 3 S.C.C. 47, relied on.
S. The concession made- by the State to the effect that the teachers
C who had been appointed, prior to issue of Government's circular dated
2.7.1989, before or after the judgment in Anil Kumw:'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, appears to be based not only on the
ground that such appellants had been condemned unheard but also be·
cause of the fact that equities had arisen in favour of that class of teachers
D and is in accord with Government circular. Accordingly, it is directed that
such teachers shall continue in service as teachers and shall be treated to
have so continued throughout. [462 F ·ff]
Birendra Kumar Shrivastava & Ors. v. The State of Bihar & Ors.,
E C.W.J.C. No.4843/88 decided on 5.11.90 and C.W.J.C. No.6595/89 decided
on 12.11.90, partly disapproved.
6. The State shall consider the cases of such of the appellants for
appointment as primary school teachers wherever persons figuring below
them in the panel have been appointed and if necessary in relaxation of
F the age bar against the existing vacancies. (464-G]
7. C.A. No.3217/91 is remitted to the High Court for the limited
purpose to reconsider the question of seniority of the appellan~s vis-a-vis
those who stand appointed and whose appointments have not been dis·
G turbed in view of the concession made. (467-B]
From the Judgment and Order dated 12.11.90 of the Patna High ·
H Court in C.W.J.C. No. 65~5 of 1989. · . ·-
SABITA PRASAD v. STATE OF BIHAR [ANAND, J.) 443
WITH A
(CA. Nos. 3216, 3217, 3218-20, 4254/91, & W.P.(C) 911/91)
V.M.-Tarkunde, S.S. Javali, Kapil Sibal, Shanti Bhushan, K.B. Sinha,
Ms. Kumud L. Das, S.B. Upadhyay, Ranjit Kumar, B.B. Singh, R.S. Shar-
ma, S.e Patel, B.M. Sharma, S.N. Singh, T.N. Singh, Prashant Bhushan, B
Jayant Bhushan, Sunil Gupta, H.K. Puri, Jamshed Beg, Sanjeev Malhotra,
NaVin Prakash, K.N. Rai, Anil K. Jha and R.P. Singh for the appearing
partie~.
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
444 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.
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.
To
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
H 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 A
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 B
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 orafter 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
G 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
H four months,is not justified. We, accordingly, decline to grant the relief of
SABITA PRASAD v. STATE OF BIHAR [ANAND, J.] 447
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 C
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 D
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
7
448 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
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
F 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
G 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,
H 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 A
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 B
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 C
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 D
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 F
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 G
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
1
450 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
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
G 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
H on &,strict-wise basis, as according to him district-wise selection was just
·-'
SABITA PRASAD v. STATE OF BIHAR [ANAND, J.] 451
and fair and did not require to be given up. The question, however, which A
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 B
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 F
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 G
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
452 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
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
D 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
E 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
F
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
G 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
H the appointments showing which candidates have the min-
f,
SABITA PRASAD v. STATE OF BIHAR [ANAND, J.] 453
imum qualifications under the Rules. The stage for selec- A
tion for appointment comes thereafter, ...."
(p.224)
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 F
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 G
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
454 SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.
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
G 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
H this Court by special leave to appeal against the judgment of Delhi High
SABITA PRASAD v. STATE OF BIHAR [ANAND, J.] 455
Court and for a direction to be appointed to the IPS, being on the top of A
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 B
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
D
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 E
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
F
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 G
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
456 SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R.
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
F 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
G 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 F
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 G
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
458 SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R.
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
B 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
C 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
D 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
E 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
F 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
G 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
H 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 A
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 B
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 D
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 E
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
460 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.
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
D 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
E 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
H 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 A
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 B
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 D
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 E
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
F
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 G
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
G 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
H be treated to have so continued throughout.
SABITA PRASAD v. STATE OF BIHAR [ANAND, J.] 463
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 B
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 C
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 E
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 F
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
464 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R.
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
D 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
E 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
F 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
H of the teachers belonging to District Siwan whose names had been included
'
l
· SABITA PRASAD v. STATE OF BIHAR [ANAND, J.] 465
· in the panel but who had not been appointed. M_r. Javali, learned counsel A
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 B
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 D
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 E
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
G 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
H teachers. or placed above them in the panels or were even otherwise fully
SABITA PRASAD v. STATE OF BIHAR [ANAND, J.] 467
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 B
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 C
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.
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