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PETITIONER:

ARUN TEWARI & ORS.

Vs.

RESPONDENT:

ZILA MANSAVI SHIKSHAK SANGH & ORS. ETC.

DATE OF JUDGMENT: 01/12/1997

BENCH:

SUJATA V. MANOHAR, M. JAGANNADHA RAY

ACT:

HEADNOTE:

JUDGMENT:

THE 1ST DAY OF DECEMBER, 1997

Present:

Hon'ble Mrs.Justice Sujata V.Manohar

Hon'ble Mr.Justice M.Jagannadha Rao

P.P.Singh, Prakash Srivastava, B.S.Banthia, S.K.Agnihotri,

A.K.Singh, Anoop G.Choudhary, K.V.Sreekumar, R.C.Gubrele end

Ms.Nanita Sharma, Advs. for the appearing parties.

J U D G M E N T

The following Judgment of the Court was delivered:

[With CA Nos. 813/95, 4168/95, C.A. Nos 8443-8446/97

(Arising out of SLP (C) Nos. 10462/95, 14389/95, 26032/95

and 4579/97)]

Mrs. Sujata V.Manohar, J.

Delay in S.L.P(C) Nos. 10462, 14389 & 26032 of 1995 is

condoned.

Leave in S.L.P. (C) Nos. 10462, 14389 26032 of 1995 and

4579 of 1997 is granted.

Intervention applications are allowed.

Civil Appeal No.77 of 1995 and appeals arising from the

four special leave petitions are from a judgment and order

of the Madhya Pradesh Administrative Tribunal at Jabalpur,

dated 18.3.1994 in a group of applications challenging the

amendments made in the Madhya Pradesh Non-Gazetted Class III

Education Service (Non-Collegiate Service) Recruitment and

Promotion Rules, 1973 by a notification published in Madhya

Pradesh Government Gazette (Extra Ordinary) dated 10.5.1993

and another notification published in Madhya Pradesh

Government Gazette (Extra Ordinary) dated 17.6.1993; as also

the circulars of the School Education Department dated

5.8.1993 and 9.8.1993. By the impugned judgment and order,

the Madhya Pradesh Administrative Tribunal struck down the

two amendments and the circulars. These related to criteria

and procedure for selection of Assistant Teachers in the

Madhya Pradesh Education Service under the Operation Black

Board Scheme. As a result, selection of around 7000

Assistant Teachers and the ongoing process of selection of

such teachers in some districts was set aside at the

instance of the applications who were persons not eligible

for selection under the impugned amendments.

C.A.No.813/95 challenges a subsequent order of the

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Madhya Pradesh Administrative Tribunal dated 31.10.1994. In

the group of applications finally decided on 18.3.1994, the

Tribunal had granted on 14.9.1993 an interim stay of the

impugned amendments and circulars. On 15.9.1993, the Deputy

Director of Education, Hoshangabad issued appointment

letters to 86 selected persons. These appointment letters

have been set aside by the Tribunal in the light of its

judgment and order of 18.3.1994, by the impugned order of

31.10.1994.

C.A.No. 4168/95 is against the order of the Madhya

Pradesh Administrative Tribunal dated 26.11.19194. After the

above interim order of 14.9.1993, the Deputy Director of

Education, Dhar had issued on 16.9.1993 appointment letters

to 48 selected candidates. He cancelled the appointments by

his order of 26.7.1994 in view of the Tribunal's judgment

and order of 18.3.1994. The selected candidates applied to

the Tribunal for their continuation. Their applications have

been dismissed by the Tribunal in view of its judgment and

order of 18.3.1994, by the impugned order of 26.11.1994.

The recruitment, inter alia, of Assistant Teachers of

Madhya Pradesh is governed by the Madhya Pradesh Non-

Gazetted Class III Education Service (Non-Collegiate

Service) Recruitment and Promotion Rules, 1973 (hereinafter

called the 'Recruitment Rules'). The method of recruitment

is direct recruitment by competitive examination followed by

an interview. During the eight Plan period i.e. from 1992 to

1997 the Central Government sponsored a scheme known as

Operation Black Board Scheme. Under this scheme the

Government of India gave financial clearance to the State of

Madhya Pradesh to implement this scheme by appointing an

Additional Teacher in all primary/middle schools which had

only one teacher in order to improve the standards of

education. In order to implement the scheme the State of

Madhya Pradesh decided to fill in about 7,000 to 11,000

posts of Assistant Teachers in such schools.

As the scheme was to be implemented within the Eighth

Plan period, in order to expedite implementation, the

respondent-State, on 10.5.1993, amended Rule 10(3) of the

Recruitment Rules by adding a proviso. Rule 10 is as

follows:-

"10. Direct Recruitment by

Selection:

(1) There shall be a committee for

selection by direct recruitment,

the membership of which shall be

like the membership of the

Committee constituted for selection

by promotion.

(2) Selection for recruitment to

the service shall be held at such

intervals as the appointing

authority may fix time to time

determine.

(3) The Selection of candidates for

service shall be made by the

committee by conducting a

competitive examination and after

interviewing them."

The proviso which has been inserted by the amendment of

10.5.1993 is as follows:-

"Provided that in any specific

circumstance the State Government

may, in consultation with the

general Administration Department

prescribe the criteria and

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procedure for the selection of

candidates."

By publication in Madhya Pradesh Government Gazette

Extra Ordinary dated 7th of June, 1993 a further amendment

was made in Schedule III Item at serial No.7 in column 5 of

the Recruitment Rules by inserting the following

qualification for recruitment of L.D.Ts. (Assistant

Teachers): "Basic Training Certificate or B.Ed. Degree".

On 21.5.1993 the School Education Department proposed a

scheme for selection of Assistant Teachers under the said

proviso for the purposes of the Operation Black Board

Scheme. It was proposed that selections would be made

district-wise by inviting applications from employment

exchanges. The selection would be made by selection

committees constituted in each district to be presided over

by a nominated officer in each district. The administrative

department of the Government put up this scheme for approval

of the Governor and the Governor approved the proposal on

16.6.1993. On 30.7.1993 the Secretary, School Education

Department sent the file to the Secretary of the General

Administration Department for the purposes of approval under

the proviso to Rule 10(3). The Secretary, General

Administration Department returned the file with there marks

"since the Administration Department approval of Hon'ble

Governor had already been obtained the consent of the

General Administration Department was not essential". With

the approval of the Principal Secretary, General

Administration Department, the file was returned to School

Education Department on 4.8.1993.

As a result, instruction were issued in the exercise of

powers under the proviso the Rule 10(3), prescribing the

criteria as per amended Recruitment Rules and procedure for

selection of eligible candidates. The prescribed

qualifications under Schedule IV as amended were: Basic

Training Certificate or B.Ed. qualification. District

Employment Exchanges were asked to sponsor eligible

candidates from their list. The selection was to be made

district-wise. The Secretary, Education Department sent D.O.

letters in August 1993 to Deputy Directors of Education in

the State informing them about the decision of the State

Government for implementation of Operation Black Board

Scheme. Keeping in view the need for a time-bound programme,

the recruitment process was initiated and a time-bound

programer to implement the scheme was launched. The

instruction provided that the power to select Assistant

Teachers during 1993 was withdrawn from the purview of

Junior Service Selection Board by G.A.D. order dated

19.5.1993. The selection of Assistant Teachers in 1993 will

be made by a Committee which shall be presided over by a

nominated officer. The Revenue District shall be the unit

for selection of the teachers. The instruction further

stated that the criteria for selection and the weight to be

given on each head were a detailed in Schedule III.

As a result, lists of eligible candidates were obtained

from District Employment Officers, who were matriculates or

above and had B.T.I. or B.Ed. qualification. They were

interviewed by a Selection Committee in accordance with the

criteria in Schedule III. Select lists were thereafter

prepared in the order of merit. Appointment letters were

issued to selected candidates in most districts before these

were challenged before the Tribunal. These assistant

teachers have been appointed initially on probation for a

period of two years and on successful completion of

probationary period their pay would be in accordance with

the minimum of the regular scale and admissible allowances.

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All the original applications before the Tribunal who

have challenged the provisions for recruitment of Assistant

Teachers under the Operation Black Board Scheme did not

possess the requisite qualifications for being selected

under the said scheme as Assistant Teachers. Their names do

not figure among the lists forwarded by the concerned

District Employment Exchanges. Surprisingly, the

applications filed by all these persons and/or groups before

the Tribunal did not make the selected/appointed candidates

who were directly affected by the outcome of their

applications, as party respondents. The Tribunal has passed

the impugned order without making them parties or issuing

notice to any of them. The entire exercise is seriously

distorted because of this omission. They have now filed the

present appeals after they have been granted leave to file

the appeals. In the case of Prabodh Verma & Ors. Vs. State

of Uttar Pradesh & Ors. (1984 [4] SCC 251 at page 273),

this court observed that in the case before them there was a

serious defect of non-joinder of necessary parties and the

only respondents to the Sangh's petition were the State of

Uttar Pradesh and its concerned officers. The employees who

were directly concerned were not made parties -- not even by

joining some of them in a representative capacity,

considering that their number was too large for all of them

to be joined individually as respondents. This Court

observed that High Court ought not have decided a writ

petition under Article 226 of the Constitution without the

persons who would be vitally affected by its judgment being

before it as respondents or at least some of them before it

as respondents in a representative capacity. These

observations apply with equal force here. The same view has

been reiterated by this Court in Ishwar Singh & Ors. Kuldip

Singh & Ors. (1995 Supp [1] SCC 179), where the Court said

that a writ petition challenging selection and appointments

without impleading the selected candidates was not

maintainable. (Vide also J. Jose Dhanapaul Vs. S. Thomas &

Ors. (1996 [3] SCC 581, paragraph 4). On this ground alone

the decision of the Tribunal is vitiated. However, even on

merit we do not find that the judgment of the Tribunal can

be sustained.

The first contention is to the effect that the proviso

to Rule 10(3) is bad in law because it confers unguided and

excessive delegation of powers to that State Government in

the matter of criteria and procedure for recruitment. Now,

the Recruitment Rules have been framed under the proviso to

Article 309 of the Constitution of India. These Rules, inter

alia, prescribe the procedure for selection and the criteria

for selection. The proviso which has been inserted in Rule

10(3) gives to the State Governments in consultation with

the General Administration Department, power to prescribe

separate criteria and procedure for selection of candidates

in specific circumstances. The power to frame these criteria

and procedure is not delegated to any subordinate authority.

The very authority which framed the original Rules is

delegated the power to frame special Rules prescribing

criteria and procedure in specific circumstances in

consultation with the General Administration Department. The

question of excessive delegation does not, therefore, arise

because the rule-making authority has given to itself the

power to prescribe criteria and procedure for selection in

specific circumstances.

In the case of Workmen of Meenakshi Mills Ltd. & Ors.

Vs. Meenakshi Mills Ltd. Anr. (1993 [3] SCC 336, at page

372), a Constitution Bench of this Court considered a

similar question which arose before it and held that when

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the discretion is given to the Government itself and not to

a subordinate officer, it cannot be said that there is

excessive and uncontrolled delegation. The provision for

consideration before the Court in that case was "the State

Government or any authority so specified in this behalf".

The validity of this provision was assailed on the ground

that it gave unfettered and uncontrolled discretion tot he

State Government or to the offices authorised by it.

Rejecting this contention, this Court said that the

discretion is given in the first place to the State

Government itself and not to a very subordinate officer like

the licensing officer. The fact that the power of delegation

is to be exercised by the State Government itself is a

safeguard against the abuse of this power of delegation.

In the present case the criteria and procedure have to

be prescribed by the State Government itself in exercise of

power conferred on its by statutory Rules. This cannot be

considered as excessive delegation. Also. prescribing of

separate criteria and procedure is permitted only in

specific circumstances. In the present case, the departure

from normal recruitment process has been occasioned on

account of the time-bound programme of the Operation Black

Board Scheme. This necessitated a large number of Assistant

Teachers being recruited to strengthen the education

programme of the State within a time-bound schedule. If the

State Government felt that the existing procedure would be

unduly time-consuming, and provided a special procedure

which is not unfair, no objection can be raised to such

procedure when an express power has been conferred on the

State in this connection.

It was next contended that the criteria and the

procedure prescribed under the proviso require consultation

with the General Administration Department. This was not

done. From the facts which have been set out above, however,

it is clear that the scheme which was framed by the Central

Government was placed by the General Administration

Department before the Governor for approval and was sent

back to the School Education Department by the General

Administration Department. When a formal approval of the

General Administration Department was asked for

subsequently, it was pointed out by the General

Administration Department that this was not required when

their department had itself obtained the approval of the

Governor to the scheme. This contention has, therefore, no

substance.

The next contention challenge the qualifications which

are prescribed by the amendment to Scheduled III as being

unfair. The prescribed qualifications are Basic Training

Certificate or a B.Ed. Degree. It was contented that the

prescription of these qualifications is unreasonable and

discriminatory because there are other qualifications which,

according to the original applicants, are equivalent and

which should have been included. It is urged that Montessory

and Mahilla Bal Sevika Prasikshan Pramanpatras and Diploma T

are equivalent qualifications. It has been pointed out by

the State that the B.T. Certificate qualification is

superior to the qualifications of Diploma T, Montessory and

Mahilla Sevika Prasikshan Pramanpatras. The criteria for

selection of students. syllabus and period of training are

all different for pre-primary prasikshan (Montessory) and

Bal Sevika Prasikshan. Minimum qualification for admission

is middle school and High School and the period of training

in both the courses is one year only. For Diploma T the

minim qualification for admission is a Higher Secondary

School Education. For B.T.I. the minimum qualification is

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passing of the Higher Secondary School Examination in the

Second Division and the courses are also different. The

State Council of Educational Research and Training

considered the question of equivalence of B.T.I. and Diploma

This recommendation was accepted by the State Government.

The State Government has, therefore, submitted that B.T.

qualification is superior to the other training

qualification and, therefore, they have prescribed only B.T.

qualification apart from a B.Ed.

Looking to the above reasons set out by the State

Government for recognising a B.T. qualification as superior

to Diploma T and other qualifications the exclusion of other

qualifications cannot be held to be discriminatory or

unreasonable. A higher qualification which is prescribed for

a particular scheme cannot be considered as violative of

Article 14. When candidates with higher qualifications are

available, choosing them instead of candidates with inferior

qualifications is not violation of Article 14 or 16.

The next contention relates to inviting applications

from Employment Exchanges instead of by advertisement. This

procedure has been resorted to looking to the requirement of

a time-bound scheme. The original applicants contended that

if the posts had been advertised, many others like them

could have applied. The original applicants who so complain,

however, do not possess the requisite qualifications for the

post. As far as we can see from the record, nobody who had

the requisite qualifications, has complained that he was

prevented from applying because advertisement was not

issued. What is more important, in the special circumstances

requiring a speedier process of selection and appointment,

applications were invited through employment exchanges for

1993 only. In this context, the special procedure adopted is

not unfair. The State has relied upon the case of Union of

India & Ors. Vs. N. Hargopal & Ors. (1987 [3] SCC 308),

where Government instruction enjoining that the filed of

choice should, in the first instance, be restricted to

candidates sponsored the first instance, be restricted to

candidates sponsored by the Employment Exchanges, was upheld

as not offending Article 14 and 16 of the Constitution. In

the case of Delhi Development Horticulture Employees' Union

Vs. Delhi Administration, Delhi & Ors. (1992 [4] SCC 99, at

page 111). this Court approved of recruitment through

employment Exchanges as a method of preventing malpractices.

But in the subsequent and more recent case of Excise

Superintended Malkapatnam, Krishna District A.P. V. K.B.N.

Visweshwara Rao & Ors. [(1996) 6 SCC 216], this Court has

distinguished Union of India V. Hargopal (supra) on the

basis of special facts of that case. It has observed that

the better course for the State would be to invite

applications from employment exchanges as well as to

advertise and also give wide publicity through TV, Radio

etc. The Court had to consider whether persons who had

applied directly and not through employment exchange should

be considered. The Court upheld their claim for

consideration.

There are different methods of inviting applications.

The method adopted in the exigencies of the situation in the

present case not be labelled as unfair, particularly when,

at the relevant time, the two earlier decisions of this

Court were in vogue.

We do not see any reason to fault procedure prescribed

or the qualifications prescribed or to set aside these

selections and consequent appointments since none of the

grounds on which the amendments, circulars and selection

have been challenged, is sustainable in law. We have been

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informed that after the stay of the judgment of the Tribunal

by this Court, those who were selected/appointed under the

prescribed procedure have been given appointments and they

have been functioning as Assistant Teachers. In the case of

selected candidates not joining, the persons kept on the

relevant waiting list in order of merit have been given

appointments. There is no reason to set aside these

appointments.

In the premises, the impugned amendments to the

Recruitment Rules as also the circulars relating to the

procedure for selection and the criteria for selection are

upheld. All these are allowed and the impugned judgments and

orders of the Tribunal are set aside. There will, however,

be no order as to costs.