Supreme Court of India
STATE OF JHARKHAND & ORS.versusASHOK KUMAR DANGI AND OTHERS
- Citation
- 2011 INSC 435
- Decided
- 4 July 2011
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
Directing a specific percentage of primary teacher appointments to physical‑trained candidates is a policy decision that lies solely with the State, and the High Court erred in issuing such a directive.
Summary
The Supreme Court examined a dispute over the recruitment of primary school teachers in Jharkhand, where candidates holding C.P.Ed./Dip.P.Ed. sought appointment as primary teachers and the High Court had directed that 5% of vacancies be filled by physical‑trained candidates based on Bihar's policy. The Court held that determining the percentage of such appointments is a policy matter exclusively for the State and that the High Court erred in issuing a directive that effectively created policy. It noted that the Jharkhand Primary Teachers' Appointment Rules, 2002 (as amended in 2003) expressly limit C.P.Ed./Dip.P.Ed. holders to physical‑trained teacher posts, and that the amendment was prospective, not retrospective. The Court further observed that no existing statute or rule in Jharkhand mandates a reservation for physical‑trained candidates, and therefore a judicial order directing such reservation amounts to policy‑making beyond the scope of Article 226. Consequently, the appeals were allowed, the High Court judgment set aside, and the writ petition dismissed. The Court advised the State to frame an appropriate policy before any future recruitment.
Issues considered
- Whether the High Court could direct the State to fill 5% of primary teacher vacancies with physical‑trained candidates based on the policy of Bihar.
- Whether such a direction constitutes impermissible policy‑making under Article 226 of the Constitution.
- Whether the amendment to Rule 2(b)(iii) of the Jharkhand Primary Teachers' Appointment Rules, 2002, applies retrospectively to candidates who applied before the amendment.
- Whether the State is obligated to frame a policy for the appointment of physical‑trained teachers.
- Whether candidates holding C.P.Ed./Dip.P.Ed. are eligible for appointment as primary school teachers.
Legislation cited
- Constitution of Indias. Article 226, s. Article 309
Subjects
service lawrecruitmentprimary school teachersphysical trainingpolicyjudicial reviewArticle 226appointment ruleseligibilityreservation
Judgment
[2011) 7 S.C.R. 748
A STATE OF JHARKHAND & ORS.
v.
ASHOK KUMAR DANGI AND OTHERS
(Civil Appeal Nos. 8118-21 of 2010)
JULY 4, 2011
B
[G.S. SINGHVI AND CHANDRAMAULI
KR. PRASAD, JJ.]
Service Law:
c
Recruitment to the posts of Primary School Teachers in
State of Jharkhand - Eligibility - Claim of candidates holding
C.P.Ed./Dip. P.Ed. - Division Bench of High Court directing
to fill up 5% of total vacancies by Physical Trained
0 candidates taking into account the policy of State of Bihar -
HELD - How many posts of Primary School Teachers would
be filled up by Physical Trained candidates, is essentially a
question of policy for the State to decide - High Court erred
in relying on the policy of the State of Bihar and directing for
E filling up 5% posts of the Primary School Teachers by
Physical Trained candidates - The Act and the Rules
governing appointment in the State of Bihar do not govern
appointment in the State of Jharkhand and those have
specifically been repealed by r. 16 of the Rules - However it
is deemed expedient that in case the authorities have not
F framed any policy, they should frame a policy before it initiates
its next process of appointment - Jharkhand Primary
Teachers' Appointment Rules, 2002 - rr. 2(b), (iii) and r.16 -
Constitution of India, 1950.
G Constitution of India, 1950:
Article 226 - Direction by Division Bench of High Court
in writ appeals to authorities to fill up 5% vacancies of Primary
School Teachers by physical trained candidates - HELD: At
H 748
STATE OF JHARKHAND & ORS. v. ASHOK KUMAR 749
. DANGI
no point of time the writ petitioners had challenged the A
amendment of Rules or the corrigendum issued by the
Commission -Neither any statute nor rule nor the policy of
the State of Jharkhand provide for filling up cerlain percentage
of the posts of Primary School Teachers by candidates
trained in physical education - Any direction to the State B
Government to make appointment of Physical Trained
candidates as Primary School Teachers would tantamount to
framing a policy and any such direction in matters of policy
is uncalled for - Jharkhand Primary Teachers' Appointment
Rules, 2002. c
The Jharkhand Public Service Commission, in
exercise of the power under r. 3 of the Jharkhand Primary
Teachers' Appointment Rules, 2002, by advertisement
dated 24-8-2002, invited applications for filling up the
vacancies of teachers in Government Primary Schools. D
Rule 2(b) of the Rules was amended by Jharkhand
Primary Teachers' Appointment (Amendments) Rules,
2003 published on 6-3-2003, prescribing in clause (iii) of
r.2(b) of the Rules, "C.P. Ed. or Dip. P. Ed only for the
physical trained teachers". Consequently, the E
Commission published corrigendum dated 22-4-2003 and
provided that the candidates holding C.P.Ed./Dip.P.Ed.
will be deemed eligible for appointment against
vacancies for the posts of Physical Trained Teachers
only. F
A writ petition was filed before the High Court, inter
a/ia, praying for issuance of a writ in the nature of
mandamus commanding the State Government and its
functionaries to consider the cases of candidates with G
C.P. Ed. or Dip. P. Ed, also for appointment against the
entire vacancies of Primary School Teachers. The Single
Judge dismissed the writ petition. However, in the
appeals filed by the writ petitioners, the Division Bench
·of the High Court gave direction to make appointment of H
750 SUPREME COURT REPORTS [2011] 7 S.C.R.
A Physical Trained candidates on 5% of the total vacancies
of Primary School Teachers taking into account the
policy of the State of Bihar. Aggrieved, the State
Government filed the appeals.
Allowing the appeals, the Court
B
HELD: 1.1. It is well settled that the State Government
must have liberty and freedom in framing policy. How
many posts of Primary School Teachers be filled up by
Physical Trained candidates, is essentially a question of
C policy for the State to decide. In framing of the policy,
various inputs are required and it is neither desirable nor
advisable for a court of law to direct or summarise the
Government to adopt a particular policy which it deems
fit or proper. [para 11] [759-G-H; 760-A-B]
D
1.2. In the instant case, the candidates trained in
teaching claim that the posts of Primary School Teachers
be filled by them and Phy~ical Trained candidates be
considered for Physical Trained Teachers only; whereas
E Physical Trained candidates contend that they should be
considered for appointment against both the posts.
These, competing claims need to be addressed by the
policy makers. Further, the Court does not have the
statistics such as the number of Primary Schools, the
resources which the Government can spend for
F providing Physical Trained Teachers and their need. In
such a situation, any direction in matters of policy is
uncalled for. [para 11] [760-C-E]
1.3. The Act and the Rules governing appointment in
G the State of Bihar do not govern appointment in the State
of Jharkhand and those have specifically been repealed
by r. 16 of the Jharkhand Primary Teachers' Appointment
Rules, 2002. Further, the need of the two States may not
be identical and it was, therefore, necessary for the State
H of Jharkhand to frame a policy in this regard. In the face
STATE OF JHARKHAND & ORS. v. ASHOK KUMAR 751
DANGI
of it, the High Court erred in relying on the policy of·the A
State of Bihar and directing for filling up 5% posts of the
Primary School Teachers by Physical Trained candidates.
[para 12] [760-F-H; 761-A]
State of Punjab & Ors. Vs. Balbir Singh & Ors. 1976 (2) 8
=
SCR 115 (1976) 3 SCC 242, distinguished. .
2.1. As regards the exercise of power under Article
226 of the Constittution, in the instant case, neither any
statute nor rule nor the policy of the State of Jharkhand
provide for. filling up certain percentage of the posts of C
Primary School Teachers by candidates trained in
physical education. Any direction to the State
Government to make appointment of Physical Trained
candidates as Primary School Teachers do not flow from
any of the rules or the policy of the State and as such the D
direction to make reservation in their favour would
tantamount to framing a policy and cannot be said to be
failure to exercise the discretion vested in the State
Government. [para 13] [761-B-E]
E
Comptroller and Autitor-General of India, Gian Prakash,
New Delhi and Anr. Vs. K. S. Jagannathan &Anr. 1986 (2) SCR
17 = (1986) 2 sec 679 - distinguished.
2.2. At no point of time the writ petitioners had
challenged the amendment of Rules which provided that F
the Physical Trained candidates shall be eligible only for
the appointment to the p'ost of Physical Trained Teachers
as also corrigendum issued by the Commission
confining their eligibility for the Physical Trained
Teachers only. In the light of the amendment iri the Rules, G
the Commission issued corrigendum and confined the
candidature of persons holding qualification of C.P.Ed.
or Dip. P.Ed., like the writ petitioners, to the posts of
Physical Trained Teachers only. It conducted the
examination on that basis and the writ petitioners without H
752 SUPREME COURT REPORTS [2011] 7 S.C.R.
A making any challenge to the same, participated in the
selection process and appeared in the examination. It is
only after the result was published and their candidature
not considered against the entire vacancy of the Primary
School Teachers that they have chosen to file the writ
8 petition. Any direction to consider the candidature of the
writ petitioners against the entire vacancies of Primary
School Teachers would unsettle the settled position and
shall result into chain reaction, affecting the appointment
of a large number of persons. [para 15-16) [762-F-G; 764-
C C-0)
Rajasthan Public SeNice Commission vs. Chanan Ram
1998 (1) SCR 1099 = (1998) 4 sec 202, relied on.
2.3. The High Court erred in directing the appellants
D to fill-up 5% vacancies of Primary School Teachers from
Physical Trained candidates. However, this Court deems
it expedient that in case the appellants have not framed
any policy, they should frame a policy before initiating the
next process of appointment. [para 17] [785-A-B]
E
A.A. Calton v. Director of Education (1983) 3 SCC 33;
N. T. Devin Katti v. Kamataka PSC (1990) 3 SCC 157; Gopal
Krushna Rath v. M.A.A. Baig (1999) 1 SCC 544; and
Maharaja Chintamani Saran Nath Sahdeo v. State of Bihar
1999 (3) Suppl. SCR 518 = (1999) 8 sec 16 - cited.
F
Case Law Reference:
1986 (2) SCR 17 distinguished para 10
1976 (2) SCR .115 distinguished para 10
G
(1983) 3 sec 33 cited para 14
1999 (1) sec 544 cited para 14
1999 (3) Suppl. SCR 518 cited para 14
H (1990) 3 sec 157 cited para 14
STATE OF JHARKHAND & ORS. v. ASHOK KUMAR 753
DANGI
1998 (1) SCR 1099 relied on para 17 A
CIVIL APP ELLATE JURISDICTION : Civil Appeal Nos.
8118-8121 of2010.
From the Judgment & Order dated 23.12.2005 of the High
Court of Jharkhand, Ranchi in LPA Nos. 161 & 87 of 2004, B
W.P. (S) Nos. 3889 and 3100 of 2004.
WITH
C.A. Nos. 8122, 8123-8124 of 2010. c
Gopal Prasad, Krishnanand Pandeya, Ratan Kumar
Choudhuri for the Appellants.
Sunil Kumar, Ajay Kumar, Arun Kumar Beriwal, Anil Kumar
Tandale, A.P. Saharya, Sandeep Nagora, Himanshu Shekhar, o
Pawan Kr. Mishhra, Kumud Lata Das for the Respondents.
The Judgment of the Court was delivered by
CHANDRAMAULI KR. PRASAD, J. 1. Appellants, the
State of Jharkhand and its functionaries, aggrieved by the E
judgment and order dated 23rd December, 2005 of the
Jharkhand High Court, passed in LPA No. 161 of 2004 and
analogous appeals have preferred these appeals by leave of
the Court.
F
2. Shorn of unnecessary details, facts giving rise to the
present appeals are that the Governor of Jharkhand in exercise
of the powers conferred by Article 309 of the Constitution of
India framed Jharkhand Primary Teachers' Appointment Rules,
2002 (hereinafter referred to as the Rules) providing for G
appointment of teachers in Primary Schools.
Rule 2(b) of the Rules defined 'Trained' which reads as
follows:
"2. Definitions : - H
754 SUPREME COURT REPORTS [2011] 7 S.C.R.
A xxxxxxx
(b). 'Trained' means those persons who have received the
following training from the recognized institution and has
passed-
B (i) Two years Teachers training, or
(ii) B.Ed/Dip. In Ed./Dip. In Teaching; and
(iii) C.P.Ed/Dip.P.Ed.
C xxx xxxx"
3. Rule 3 of the Rules conferred power to the Jharkhand
Public Service Commission (hereinafter referred to as the
'Commission) to publish advertisement inviting applications
o from citizens of India, who had· passed Matriculation or its
equivalent examination and trained as defined in Rule 2(b) of
the Rules to fill up the posts of Primary School Teachers. In
exercise of the power under Rule 3 of Rules, the Commission
made advertisement on 24th August, 2002 inviting applications
E for filling up the vacancies of the teachers in the Government
Primary Schools. The eligibility criteria prescribed in the
advertisement reads as follows: -
"The applicant must-
F (a) be a Citizen of India;
(b) have passed Matric or equivalent examination; and
(c) possess two years teachers training or B.Ed./Dip. in
Ed./Dip. in Teaching or C.P.Ed. or Dip.P.Ed."
G
Rule 2(b) of the Rules was amended by Jharkhand
Primary Schools Appointment Amendments Rules, 2003
published on 6th March, 2003, whereby the words 'only for the
physical trained teachers' were inserted after Rule 2(b)(iii) of
H
STATE OF JHARKHAND & ORS. v. ASHOK KUMAR 755
DANGI [CHANDRAMAULI KR. PRASAD, J.]
· . the Rules. Rule 2(b) of the Rules after its amendment reads as A
follows:
2. Definitions :
xx xxxx
B
(b) "Trained" means those persons who have received the
following training from the recognized institution and has
passed: ·
"(i) Two years Teachers training, or
c
(ii) B.Ed/Dip. In Ed./Dip. In Teaching; and
(iii) C.P.Ed/Dip.P.Ed. only for the Physical Trained
Teachers.
D
In the light of the aforesaid amendment in the Rules, the
1 Commission published corrigendum dated 22nd April, 2003
.and provided thatthe candidates having C.P.Ed./D.P.Ed. will
be deemed eligible for appointment against vacancies for the
post of Physical Trained Teachers only.
E
4. The Commission conducted the examination of the
eligible-candidates in which the writ petitioners appeared, Their
results were not published and their candidature confined only
to the posts of Physical Trained Teachers. Aggrieved by that,
they filed writ petition before the Jharkhand High Court, inter F
. alia, praying for issuance of a writ in the nature of mandamus
commanding the State Government and its functionaries to
consider their cases for appointment against the entire
vacancies of Primary School Teachers and further for a
direction not to restrict their candidature only to the vacant posts G
of Physical Trained Teachers.
5. The learned Single Judge by its judgment dated 2nd
December, 2003 dismissed the writ petition, inter alia
H
756 SUPREME COURT REPORTS [2011] 7 S.C.R.
A observing that the writ petitioners do· not possess requisite
qualifications and hence; not entitled to be considered for
appointments to the post of Primary School Teachers. While·
doing so, the learned Single Judge observed as follows:
"In the instant case, admittedly, Petitioners obtained
B
physical training course which is required for the post of
physical trained teacher. For being appointed as a primary
teacher a candidate must possess qualification of a
trained teacher i.e. 8.Ed./Dip-in-Ed/Dip-in-Teach. In my
considered opinion, therefore, petitioners do not possess
c requisite qualification for appointment on the post of
Primary teacher"
6.Aggrieved by the same, writ petitioners preferred
appeals and the Division Bench of the High Court by the
D impugned order dated 23rd December, 2005 disposed of the
appeals with the following direction :
"(I) For the present the respondents shall make
appointment of physical trained teachers at least on
the 5% posts of the total vacancies of the primary
E
teachers and the JPSC shall publish the pending
results of such candidates whose results have not
been· published as yet without any further delay to
the extent of the said number of vacancies within a
period of one month from the date of receipt/
F production of a copy of this order{judgment.
(II) The State-respondents may come with a clear
policy dei::ision regarding the appointment against
future vacancies and the cadre of physical trained
G teachers in the schools and their promotional
avenue or any such allied matter.
(Ill) Since there is no separate cadre for the present
and admittedly the physical trained teachers come
within the cadre of primary school teachers, it is
H
STATE OF JHARKHAND & ORS. v. ASHOK KUMAR 757
DANG! [CHANDRAMAULI KR. PRASAD, J.]
held that the appellants, and others, who possessed A
the eligibility, as required for appointments of
physical trained teachers, are entitled for
appointments as primary physical trained teachers
and they are entitled to be considered for
appointments to the extent of 5% of the total B
existing vacancies and to the extent of the reserved
posts.
(IV) The physical trained candidates, who do not
possess B.Ed./Dip-in-Ed/Dip-in-Teach or other C
equivalent primary teachers' training course
certificate, have no right to put their claim for
appointment against the posts which are meant for
general subjects primary teachers and their right will
be confined to the percentage of the ratio of the
posts meant for them. However, after a fresh D
appointment as physical trained teachers, they may
be treated as any other primary school teachers for
the purpose of assignment of classes or for
disciplinary conduct."
E
7. The High Court had given the direction to make
appointment of Physical Trained candidates on 5% of the total
vacancies of the Primary School Teachers taking into account
the policy of the State of Bihar. It observed that Physical Trained
Teachers and Primary School Teachers do not belong to F
different cadre and further the· Government of Jharkhand has
not framed any definite scheme or policy regarding number or
ratio of the post of Physical Trained Teachers in the State. It
also observed that the State of Bihar had taken a policy
decision for appointment of Physical Trained Teachers to the G
extent of 5% of the vacancies of the Primary School Teachers
and said policy existing prior to the date of re-organisation of
the States has not been modified nor any other policy decision
has been taken by the State of Jharkhand.
8. Mr. Gopal Prasad, learned Counsel for the appellants H
758 SUPREME COURT REPORTS [2011] 7 S.C.R.
A submits that percentage of posts to be filled by the Physical
Trained candidates is a matter of policy and the High Court
erred in directing the appellants to fill-up 5% vacancies of
Primary School Teachers by Physical Trained Candidates. He
points out that Rule 16 of the Rules has repealed Bihar Primary
B School Teacher Appointment Rules, 1991 and Bihar Primary
School Teachers Amendment Appointment Rules, 1993 or any
other Act or Rules framed by the Government of Bihar in its
application to the State of Jharkhand. Accordingly, he submits
that reliance on so-called policy decision of the State of Bihar
c is absolutely misplaced and the High Court erred in relying on
the said policy decision.
9. Mr. Ajay Kumar, learned .Couns~I appearing on behalf
of the respondents, however; submits that every school needs
a Physical Trained Teacher and the State of JJ1arkhand having
D no policy·iri regard thereto, the High Court did ~ot err in giving
direction to.fill-up 5% vacancies of the Primary School Teachers
by Physical. }rained Candidates. According to 'him, nothing
prevents this .Court to issue mandamus directing framing of
policy. He reffed on the judgment of this Court irf·comptroller
E and Autitor-General of India, Gian Prakash, New Delhi and
Anr. Vs. K. S. Jagannathan & Anr., (1986) 2 SCC 679 to
support his contention. In this case, it has been held as follows:
"20. There is thus no doubt that the High Courts in India
F exercising their jurisdiction under Article 226 have the
power to issue a writ of mandamus or a writ in the nature
of mandamus or to pass orders and give necessary
directions where the government or a public authority has
failed to exercise or has wrongly exercised the discretion
conferred upon it by a statute or a rule or a policy decision
G
of the government or has exercised such discretion mala
fide or on irrelevant considerations or by ignoring the
relevant considerations and materials or in such a manner
as to frustrate the object of conferring such discretion or
the policy for implementing which such discretion has been
H
STATE OF JHARKHAND & ORS. v. ASHOK KUMAR 759
DANGI [CHANDRAMAULI KR. PRASAD, J.]
conferred. In all such cases and in any other fit and proper A
case, a High Court can, in the exercise of its jurisdiction
under Article 226, issue a writ of mandamus or a writ in
. the nature of mandamus or pass orders and give
directions to compel the performance in a proper and
lawful manner of the discretion conferred upon the B
government or a public authority, and in a proper case, in
order to prevent injustice resulting to the concerned parties,
the court may itself pass an order or give directions which
the government or the public authority should have passed
or given :had it properly and lawfully exercised its c
discretion. n
10. Mr. Kumar further points out that the Policy of the State
of Bihar so far as it relates to appointment of Physical Trained
Teachers, would not eclipse by Rule 16 of the Rules. In support
of the submission, reliance has been placed on a decision of D
this Court in State of Punjab & Ors. Vs. Balbir Singh & Ors.
(1976) 3 sec 242 which reads as follows:
of
"... In our judgment, when'there is no change sovereignty
of a particular State and it·is merely an adjustment of E
territories by the re-organisation of a particular State, the
administrative orders mad~ by the Government of the
erstwhile State continue to be in force and effective and
binding on the successor State unless and until they are
modified, changed or repudiatect by the governments of F
the successor States."
11. We have bestowed our consideration to the rival
submissions and find substance in the submission of the
learned Counsel for the appellants. The High Court has found
that the Government of Jharkhand, till date, had not framed any G
policy regarding the number of posts to be filled by Physical
Trained Candidates. How many posts of Primary School
· Teachers be filled up by Physical Trained candidates, in our
opinion, is essentially a question of policy for the State to
decide. In framing of the policy, various inputs are required and H
160 SUPREME COURT REPORTS (2011] 7 S.C.R.
A it is neither desirable nor advisable for a Court of law to direct
or summarise the Government to adopt a particular policy
which it deems fit or proper. It is well settled that the State
Government must have liberty and freedom in framing policy.
Further, it also cannot be denied that the courts are ill-equipped
B to deal with competing claims and conflicting interests. Often,
the Courts do not have satisfactory and effective means to
decide which alternative, out of the many competing ones, is
the best in the circumstances of the case. One may contend
that providing primary education to the children is essential for
c the development of the country. Whereas others argue that
physical training of the children in the Primary School is must
as that would make the nation healthy. As in the present case,
the candidates trained in teaching claim that the posts of
Primary School Teachers be filled by them and Physical Trained
Candidates be considered for Physical Trained Teachers only
0
as they in absence of any training in education not equipped
to teach in Primary Schools, whereas Physical Trained Teachers
contend that they should be considered for appointment
against both the posts. These, competing claims, in our opinion,
E need to be addressed by the policy makers. Further, we do not
have the statistics as regards to the number of Primary
Schools, the resources which the Government can spend for
providing Physical Trained Teachers and their need. In such a
situation, any direction in matters of policy is uncalled for.
F 12. As observed earlier, the High Court itself has found that
there is no policy in regard to the number of posts of teachers
to be filled by the Physical Trained Candidates in the State of
Jharkhand. The Act and the Rules governing appointment in the
State of Bihar do not govern appointment in the State of·
G Jharkhand and those have specifically been repealed by Rule
16 of the Rules. Further, the need of the two States may not
be identical and it was therefore necessary for the State of
Jharkhand to frame a policy in this regard. In the face of it, we
are of the opinion that the H.igh Court erred in relying on the
H policy of the State of Bihar and directing for filling up 5% posts
STATE OF JHARKHAND & ORS. v. ASHOK KUMAR 761
DANGI ~HANDRAMAULI KR. PRASAD, J.]
of the Primary School Teachers by Physical Trained A
Candidates.
13. Now we revert to the decision of this Court in the case
of Comptroller and Auditor-Genera/ (supra) relied on by the
respondents. In the said case while considering the power 8
under Article 226 of the Constitution this Court has held that a
mandamus can be issued.where the Government.or a public
authority has failed to exercise or wrongly exercised the
discretion conferred upon it by a statute or a rule or a policy
decision. It has further been observed that in order to compel C
the performance of a public duty the court may itself pass an
order/direction. Here, in the present case, neither any statute
or rule or the policy of the State of Jharkhand provide for filling
up certain percentage of the posts of Primary School Teachers
by candidates trained in physical education. Any direction to
the State Government to make appointment of Physical Trained D
Candidates as Primary School Teachers do. not flow from any
of the rules or the policy of the State and as such the direction
to make reservation in their favour would tantamount to framing
a policy and cannot be said to be failure to exercise the
discretion vested in the State Government. E
In the case of Ba/bir Singh (supra) relied on by the
respondents this Court has observed that after the
reorganization of the State the administrative orders made by
the Government of the erstwhile State continue to be in force F
and binding on the successor State but while observing so this
Court has made it clear that the same shall be binding "until
they are modified, changed or repudiated by the Government
of the successor State". As stated earlier rule 16 of the Rules
had specifically repealed the Act and the Rules governing G
appointment of Primary School Teachers in the State of Bihar
and it has been observed that those shall not govern
appointments in the State of Jharkhand. In the face of it the
decision relied on in the case of Balibir Singh (supra) is clearly
distinguishable.
H
762 SUPREME COURT REPORTS (2011) 7 S.C.R.
A 14. Respondents contend that amendment of Rule 2 (b)
(iii) of the Rules by notification dated 6th of March, 2003 shall
not apply to the appointment in question as the proce!ls of
appointment commenced, by inviting application prior to that
date, on 24th of August, 2002. It has been pointed out that the
B rights and benefits already acquired under the Rules prior to
amendment cannot be taken away by amendment of the Rules.
It is emphasized that the respondents acquired vested right of
being considered and their rights crystallized on the date of
publication of the advertisement. It has further been submitted
c that since process of the appointment commenced with
advertisement which being an integral part of appointment
same would come to an end on declaration of result and the
consequential appointment, hence the candidates are required
to be considered on the basis of the eligibility criteria initially
provided in the Rules and the advertisement. In support of the
0
submission, reliance has been placed on a large number of
decisions of this Court; viz., A.A. Calton v. Director of
Education (1983) 3 SCC 33; N. T. Devin Katti v. Karnataka
PSC (1990) 3 SCC 157; Gopal Krushna Rath v. MA.A. Baig
E (1999) 1 SCC 544 and Maharaja Chintamani Saran Nath
Sahdeo v. State of Bihar (1999) 8 SCC 16.
15. We do not find any substance in the submission of the
Counsel of the respondents. It is relevant here to state that at
no point of time the writ petitioners had challenged the
F amendment of Rules which provided that the Physical Trained
Candidates shall be eligible only for the appointment to the
Physical Trained Teachers as also corrigendum issued by the
Commission confining their eligibility for the Physical Trained
Teachers only. Their prayers in the writ petition were as follows:
G
"It is, therefore, respectfully prayed that your Lordships may
graciously be pleased to admit this case, issue notices to
the Respondents and direct for the following reliefs :
(I) For issuance of an appropriate Writ in the nature of
H mandamus commanding upon the respondents to
STATE OF JHARKHAND & ORS. v. ASHOK KUMAR 763
DANG! [CHANDRAMAULI KR. PRASAD, J.]
immediately and forthwith publish the result of these A.
petitioners in view of the fact that in terms of Annexure-1,
i.e. Advertisement dated 24.8.2002 all the Petitioners had
applied for being appointed as a Primary School Teacher
out of 9223 seats and 528 were shown vacant in the district
of Jamtara but now simply because of the fact that they B
posses the qualification of physical trained teachers they
have been kept it on the ground that their appointment shall
only be made for the vacant post of physical trained
teachers in the district of Giridih and Lohardaga in non-
existence; c
[II] For an appropriate writ in the nature of mandamus
commanding upon the respondents particularly,
respondent No. 2, to consider the case of these Petitioners
for being appointed as Primary Teachers as against the
total vacancies of 9233 for which advertisement issued and D
for which the Petitioners had applied not to consider by
restricting their candidature only in the four districts in the
State of Jharkhand;
[Ill] For a further direction upon the respondents to E
immediately and forthwith appoint the Petitioners fo the
post of teachers of primary schools in view of the fact that
the examinations had already been conducted on
27.5.2003 and both the Petitioners had prepared very well
in the said examination; and F
[IV] For any other appropriate writ(s)/order(s)/direction(s)
that Your Lordships may deem fit and proper for doing
conscionable justice to the Petitioner in the facts and
circumstance of the present case."
G
16. It is in the present appeals the Writ petitioners, for the
first time, .have attempted to contend that amendment to Rule
2{b){iii) made on 6th March, 2003, which inter alia provided that
candidates having C.P.Ed or Dip.P.Ed shall be eligible for
Physical Trained Teachers only cannot be applied H
764 SUPREME COURT REPORTS [2011] 7 S.C.R.
A retrospectively and their cases shall be governed by the un-
amended Rules. It has been pointed out that the amendment
has not been made with retrospective effect. We are not
inclined to go into this question in the present appeal for the
reason that in the light of the amendment in the Rules,
B Commission issued corrigendum and confined the candidature
of persons holding qualification of C.P.Ed. or Dip. P.Ed., like
the writ petitioners, to the posts of Physical Trained Teachers
only. It conducted the examination on that basis and the writ
petitioners without making any challenge to the same,
c participated in the selection process and appeared in the
examination without any murmur. It is only after the result was
published and their candidature not considered against the
entire vacancy of the Primary School Teachers that they have
chosen to file the writ petition with the relief aforesaid. Any
direction to consider the candidature of the writ petitioners
0
against the entire vacancy of Primary School Teachers would
unsettle settled matter and shal! result into chain reaction,
affecting the appointment of a large number of persons.
17. Further in the case of Rajasthan Public Service
E Commission vs. Chanan Ram (1998) 4 SCC 202, this Court
held that Government has the right to make selection in
accordance with the changed rules and make final recruitment.
In the said case, it has been observed as follows:
"17 ........The candidates who had appearad for the
F
examination and passed the written examination had only
legitimate expectation to be considered according to the
rules then in vogue. The amended Rules had only
prospective operation. The Government was entitled to
conduct selection in accordance with the changed rules
G and make final recruitment. Obviously no candidate
acquired any vested right against the State. Therefore, the
State was entitled to withdraw the notification by which it
had previously notified recruitment and to issue fresh
notification in that regard on the basis of the amended
H Rules ........ "
STATE OF JHARKHAND & ORS. v. ASHOK KUMAR 765
DANG! ~HANDRAMAULI KR. PRASAD, J.)
In view ofthe aforesaid, it is inexpedient to consider the A
authorities relied on by the respondents in any detail. We are
of the opinion that the High Court erred in directing the
appellants to fill-up 5% vacancies of Primary School Teachers
from Physical Trained Candidates. However, we deem it
expedient that in case the appellants have not framed any B
policy, it should frame a policy before it initiates its next
process of appointment.
18. In the result, we allow these appeals, set aside the
impugned judgment and dismiss the writ petition without any C
order as to costs.
R.P. Appeals allowed.
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