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Article 14 in The Constitution Of India 1949
The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959
The Reformatory Schools Act, 1897
Article 21 in The Constitution Of India 1949
Section 4 in The Reformatory Schools Act, 1897
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Bombay High Court
Ramdas S/O Arjun Jape, Ajay ... vs State Of Maharashtra And Others ... on 11 October, 2002
Author: Marlapalle
Bench: B Marlapalle, D Karnik

JUDGMENT

Marlapalle, J.

1. The Government of Maharashtra, vide Government Resolution dated 10th of March, 2000, brought into force a scheme for appointment of Shikshan Sevaks in place of regular Assistant Teachers in the primary schools run by the Zilla Parishads, Municipal Councils, Municipal Corporations, Cantonment Boards and aided private institutions from the academic year 2000-01. The details of the scheme have been set out in Scheduled-A to the said Government Resolution, whereas Schedule-B is a model appointment order for the post of Shikshan Sevak and Schedule-C is the format of undertaking to be furnished by the appointee at the time of joining.

By Government Resolution dated 27th of April, 2000 the scheme for appointment of Shikshan Sevaks in place of Assistant Teachers in the secondary schools, higher secondary schools, junior colleges and teachers training colleges has been announced by the State Government for the academic year 2000-01 onwards. This scheme is applicable to the recognised private secondary schools and the details of the scheme are set out in Schedule-A annexed to the said resolution, draft appointment order in Schedule-B and Schedule-C is the written undertaking to be furnished by the appointee. The Government Resolution dated 27th April, 2000 does not cover the secondary schools run by the Zilla Parishads, Municipal Councils, Municipal Corporations, Cantonment Boards or similar local self government bodies.

In both the schemes the Shikshan Sevaks so appointed shall not be eligible for regular pay scale though they are required to hold the requisite qualifications as a trained teacher i.e. trained graduate or trained undergraduate. Instead, they would be offered an amount of Rs.2,500/- per month as honorarium for primary schools, an amount of Rs.3,000/per month for secondary schools and teachers training colleges and Rs.3,500/- for appointments under the higher secondary schools/ junior colleges. In case the candidates, who did not possess the training qualifications, were appointed, they would be offered Rs.1,500/- per month for primary schools. In both the schemes it was stipulated that if the appointee works satisfactorily for a period of five academic years he/ she would be appointed in regular post of Assistant Teacher in the regular pay scale and the earlier service as Shikshan Sevaks would not be taken into consideration for pay fixation, pension or for any other purposes.

2. The Shikshan Sevaks scheme for secondary schools annexed with Government Resolution dated 27th July, 2000 came to be challenged in writ petition Nos. 2940 of 2000, 2980 of 2000 and 3654 of 2000 before the Principal Bench at Mumbai, whereas the Shikshan Sevaks scheme for primary schools annexed to Government Resolution dated 10th of March, 2000 came to be challenged in writ petition No. 3681 of 2000 before this Bench. On 16th August, 2000 the following directions came to be issued in the batch of petitions pending before the Principal Bench:

"i) The G.R. would apply only to the aided institutions and the unaided schools, Junior colleges etc. will not be covered by the scheme.

ii) The G.R. will not apply to teachers who are working as part-timers on clockwork basis and they will be paid the salary as before.

iii) G.R. will not apply to teachers who are declared as surplus and required to be located and also to teachers who had worked as permanent and confirmed teacher in the past and who has resigned from service and seeking a fresh employment.

iv) G.R. will also be inapplicable to teachers working on a temporary basis against reserve posts for backward class and they will continue to receive salary as per the MEPS Rules till the duly selected candidates from backward classes is available or teacher concerned is absorbed in service according to the relevant rules and regulations.

v) Shikshan Sevak will get honorarium of Rs.3,000/- for primary teachers (Std.V-VII) (as against Rs.2,500/-), Rs.4,000/- for secondary teachers (as against Rs.3,000/-) and Rs.5,000/for higher secondary teachers (as against Rs.3,500/-).

vi) The Shikshan Sevak will be appointed for a duration of 3 years and upon successful completion of the said period, he/ she will be absorbed in service and treated as a regular teacher within the meaning of MEPS Act, 1977 and MEPS Rules, 1981.

vii) The honorarium of Shikshan Sevak as fixed above shall be payable on a month to month basis without any deductions.

viii) The period of 3 years shall be counted for the purpose of pension and the other retirement benefits.

ix) The scheme will be inapplicable to the head of the institution who will be appointed in accordance with the MEPS rules, 1981 and entitled to receive the salary as per the prescribed scale.

x) The appointment of the Shikshan Sevak will be made by following procedure prescribed under the MEPS rules i.e. advertisement and interviews.

xi) No untrained teacher will be appointed to the post of Shikshan Sevak however, in case of post reserved for backward classes, if trained teacher is not available, the post may be filled in by an untrained teacher subject to an appropriate undertaking that he/ she will acquire the necessary qualification within the prescribed period.

xii) Lady Shikshan Sevak will be entitled to maternity leave as prescribed under the MEPS Rules, 1981."

In Writ Petition No. 3681 of 2000 this Bench noted its agreement with the view taken by the Division bench at Mumbai (by way of interim arrangement) save and except the following modifications which would be made applicable to the Shikshan Sevaks under the primary schools all over the State, as per the order dated 26th September, 2000.

"(i) The scheme formulated by the Government of Maharashtra vide Government Resolution dated 10.3.2000 shall be allowed to be operated for a period of two years and on successful completion of this tenure of two years, the concerned Shikshan Sevak shall be regularised as an Assistant Teacher subject to his satisfactory performance and availability of the vacancy, including the reservation roster as may be applicable.

(ii) The vacancies reserved for Scheduled Caste, Scheduled Tribes. Other Backward Class, VJ and NT and all other categories, if remained vacant due to non availability of the trained teachers, shall not be filled in by appointing any untrained Shikshan Sevaks, whether belonging to such reserved category otherwise and on such vacant reserved posts, trained candidates (H.S.C.+D.Ed.) shall be appointed on temporary basis and till such period the posts are filled in by reserved category candidates, however, without exceeding the two years tenure. Such an appointment of the open category candidate against a reserved vacancy shall not create any right of permanent employment in his favour. However, it may be considered as an additional qualification for being considered for regular appointment against the open category vacancy under the Zilla Parishad or in the private schools, in future.

(iii) The Scheme shall not be applicable to the post of Head Master and the Shikshan Sevaks shall be appointed only against the vacancies of Assistant Teachers.

(iv) While appointing the candidates for the posts of Shikshan Sevak, the reservation for women, as per the State Governments policy in vogue at present, shall be followed, in addition to the Constitutional reservations as mentioned in the scheme. We clarify that the reservation for women shall be treated as horizontal and not vertical reservation. We also make it clear that other special category reservations, life physically impaired persons, project affected persons and freedom fighters ward etc. shell also be applicable to the said Scheme and all these reservations shall be treated as horizontal reservations.

(v) In addition to the Committee constituted in terms of the order dated 16/8/2000 passed at Bombay, we direct that Review Committee for assessing the performance of Shikshan Sevaks at the end of every term, shall be constituted, consisting of the following members :-

(a) Education Officer (Primary) of the Zilla Parishad, and

(b) Head Master of the concerned school."

3. While the challenge to both these schemes was pending before the Principal Bench and this Bench separately, some of the Zilla Parishads in the State had already undertaken the recruitment process for Shikshan Sevaks in primary schools and more particularly the following Zilla Parishads, in the month of June/ July, 2000.

(i) Osmanabad - select list of 450 candidates was prepared.

(ii) Jalna - select list of 304 candidates was prepared.

(iii) Aurangabad - 517 posts of Shikshan Sevaks were filed in.

(iv) Chandrapur - 478 posts of Shikshan Sevaks were filled in.

(v) Wardha - 161 posts of Shikshan Sevaks were filled in.

(vi) Yeotmal - 85 posts of Shikshan Sevaks were filled in.

(vii) Nanded - select list of 558 candidates was prepared.

(viii) Latur - Select list of 76 candidates was prepared.

5. Consequent to the orders dated 16th of August, 2000 and 26th of September, 2000 the Government of Maharashtra vide order dated 4th of October, 2000 stayed all further recruitment process for the posts of Shikshan Sevaks and also directed not to make such appointments until further orders. However, by Government Resolution dated 13th October, 2000 the State Government lifted the ban on the recruitment of Shikshan Sevaks in the secondary and higher secondary schools and modified the original scheme of 27th of April, 2000 by incorporating the directions given by the Principal Bench vide its order dated 16th of August, 2000. But the State Government did not lift the ban on the appointment of Shikshan Sevaks in the primary schools run by the Zilla Parishads, Municipal Councils/ Corporations, Cantonment Boards and the private aided institutions.

6. The Ahmednagar Zilla Parishad, for the first time, initiated the process for recruitment of Shikshan Sevaks in primary schools in January, 2001 by inviting list of candidates from the District Employment Exchange, Commissioner (Tribal Development), District Social Welfare Officer and Project Officer (Integrated Tribal Welfare Project). The Zilla Parishad did not invite applications by releasing a proclamation either in the local newspapers or by displaying it on its notice board or the notice boards of employment exchange etc. The said selection progressed further till the stage of publication of select list. In some other districts also select lists were finalised by the same process. In the meanwhile, this petition was moved before us on or about 22nd February, 2001 challenging the validity of clause No. 13 of Schedule-A to the Shikshan Sevaks Scheme announced vide Government Resolution dated 10th of March, 2000 which did not provide for inviting applications through advertisements released in the local newspapers. The relevant portion of the said clause, impugned in this petition reads as under:

----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- ----------------------------------------------------- -----------------------------------------------------

7. On 30th April, 2001 an interlocutory order came to be passed staying all further appointments, in case the order dated 4th October, 2000, imposing ban on appointments of Shikshan Sevaks in primary schools was withdrawn. By further order dated 4th July, 2001 the instant petition came to be disposed of. The operative part of the said order reads as under:

"i) From the lists of the candidates which are presently with the Government and/ or respondents, the respondents are allowed to appoint 25% of the total seats for a period of two months on ad hoc basis with a clear cut understanding to the candidates that if they are not found meritorious after the list is prepared on the basis of the advertisement, their services will come to an end;

ii) For the post of Shikshan Sevak which are available with the respondents throughout the Maharashtra, the respondents will publish the advertisement disclosing the number of seats, reservations, availability of the seats in each of the District making it clear that every one who is possessed of the necessary qualification is eligible to apply for such post in any District of his choice and/ or in many Districts of his choice;

iii) Such advertisement shall be published by the respondents within a period of ten days from the date of this order;

iv) The advertisement shall be published in a newspaper having a wide circulation in the State of Maharashtra and also in the respective Districts where the posts are available;

v) The candidates shall be given period of ten days to make an application to the respondents authorities after the publication of the said advertisement;

vi) Thereafter the merit list based on performance in the written examination of the D.Ed. course shall be prepared by the respondents. The said list shall be displayed on the respective notice boards of the Collector and Education Officer (Primary) of the respective Districts for the inspection and objection by the candidates;

vii) After considering the objections, if any, filed by the candidates, the final list shall be prepared by the respondents;

viii) After preparation of the final list, the respondents shall select the candidates from the said list on the basis of merit equal to the number of vacancies available. If in this process it is noticed that any candidate who is appointed by the earlier direction on ad hoc basis for two months period is not a meritorious one, his services shall be terminated with immediate effect and the meritorious candidate should be appointed in his place immediately by way of substitution;

ix) The candidates who are already appointed on ad hoc basis as stated earlier if found meritorious, the appointment orders may be issued along with other selected candidates;

x) We make it clear that 100% recruitment of the total posts available is to be made as stated earlier by issuance of the advertisement only, in view of the various enactments covering the field.

xi) In view of the concession, henceforth whenever such a recruitment is to be carried out, the Government will follow the procedure as directed in this order and by no other means.

xii) In view of the S.L.P. pending before the Apex Court in respect of the question covering the period or tenure of such appointments under the said scheme in a juxta position with various Statutes and the Rules covering the field, we have not considered this aspect and we have not given any directions to this effect."

8. The State Government issued a resolution dated 9th July, 2001 and lifted the ban on the appointment of Shikshan Sevaks in the primary schools by taking into consideration the pendency of the Special Leave Petition filed before the Apex Court challenging the order dated 26th September, 2000 passed in Writ Petition No. 3681 of 2000 by this Bench. The said Government Resolution also took note of the order dated 4th July, 2001 passed in the instant petition and in obedience thereof directed to continue with the appointments of Shikshan Sevaks. One more Government Resolution was issued on 12th July, 2001 amending the Shikshan Sevak Scheme applicable to the primary schools on the lines of the directions issued on 16th August, 2000, 26th September, 2000 and 4th July, 2001 by this Court and subject to the final decision in the pending Special Leave Petition (Civil) No. 21020 of 2000 challenging the order passed in Writ Petition No. 3681 of 2000. Civil Appeal No. 1464 of 2002 arising out of this S.L.P. came to be allowed by the Apex Court vide order dated 22nd February, 2002 and our order dated 26th September, 2000 passed in the said Writ Petition was quashed and set aside. It was stated by the learned Solicitor General appearing for the State of Maharashtra before the Apex Court that the Shikshan Sevak Scheme announced by Government Resolution dated 27th April, 2000 and as modified by order dated 16th of August, 2000 by the Principal Bench was working to the satisfaction of all. The Apex Court observed as under:

"In our view the Division Bench of the Bombay High Court at Aurangabad ought not to have disturbed the earlier order passed by a coordinate bench of the same High Court at Bombay. In order to maintain judicial discipline as the Division Bench at Aurangabad was in disagreement with the said order, the matter should have been directed to be placed before the Chief Justice for passing appropriate orders.

We are, therefore, of the opinion that the impugned order passed by the Aurangabad Bench is not sustainable and accordingly it is quashed. We, however, make it clear that the appointments of the respondents as primary teachers would not be affected. The appeal is allowed and impugned order is set aside. No costs."

Consequent to the order dated 22nd February, 2002 passed by the Apex Court, Writ Petition No. 3681 of 2000 came to be restored and has been admitted vide our order dated 26th March, 2000. It has been directed to be heard with Writ Petition No. 3242 of 2001 wherein the entire Shikshan Sevak Scheme, as applicable to the primary schools, has been assailed.

9. On the other hand, the order dated 4th July, 2001 passed in the instant petition came to be challenged in Special Leave Petition (Civil) Nos. 19081 of 2001 in which the Apex Court was pleased to pass the following order on 29th October, 2001:

"Permission to file S.L.P. granted. Issue notice. The post in question need not be filled up until further orders."

10. Civil Appeal Nos. 1718, 1719 and 1721 to 1726 of 2002 came to be decided by the Apex Court vide its order dated 25th February, 2002 and the said order reads as under:

"The High Court disposed of certain matters without even hearing the appellants before us, who are directly affected by the order made by the High Court and they are the persons who have been selected to fill certain posts. There is hardly any answer on behalf of the respondents to the grievance made before us. In the circumstances, the order made by the High Court is set aside and the matters shall stand remitted to the High Court for fresh consideration in accordance with law after allowing the appellants before us to come on record as parties. The interim order granted by this Court shall continue to be operative until disposal of the Writ Petition by the High Court. Considering the nature of the Dispute, it would be appropriate for the High Court to dispose of the matter as expeditiously as possible. The Appeals are allowed accordingly."

11. Consequently, the instant petition was restored and rule was granted for being heard with writ petition No. 3242 of 2001 vide our order dated 26th March, 2002. The stay order granted by the Apex Court on 29th October, 2001 operates till this petition is finally decided and accordingly all the appointments of Shikshan Sevaks in primary schools run by the Zilla Parishads have been stayed.

12. The State Government issued another resolution dated 27th March, 2002 taking into consideration the order passed by the Apex Court in Civil Appeal No. 1464 of 2002 and further modifying the earlier Government Resolution dated 12th of July, 2001 in respect of the Shikshan Sevaks Scheme, as applicable to the primary schools. Admittedly, the State Government has not yet issued any resolution consequent to the orders passed by the Apex Court on 25th February, 2002 in Civil Appeal Nos. 1718, 1719 and 1721 to 1726 of 2002 whereby the order passed in the instant petition on 4th July, 2001 came to be quashed and set aside. It is the stand of the State Government that as the appointments to the posts of Shikshan Sevaks have been stayed until further orders and till this petition is finally decided, the State Government would take appropriate steps in amending the scheme depending upon the final outcome in this petition.

13. In the meanwhile, pursuant to the resolution dated 12th July, 2001 fresh process of recruitment for the post of Shikshan Sevaks in primary schools was undertaken in almost all the Zilla Parishads and more so by amending clause 13 of the original scheme formulated vide Government Resolution dated 10th of March, 2000. It is also stated across the Bar that almost all the intervenors, who had found their place in the select list, prepared in June/ July, 2000, by following the procedure, as set out in clause No. 13 of the original scheme of Shikshan Sevaks, again responded to the fresh selection process and they underwent the same.

14. The instant petition deals with the selection of Shikshan Sevaks in the primary schools only and that too run by the Zilla Parishads, and more particularly the challenge to the provisions of clause 13 regarding the mode of inviting applications or names of candidates from the prescribed four agencies only and to the exclusion of the mode of proclamations to be published in the local newspapers.

15. It is required to be noted that as the order passed by this Court on 4th July, 2001 in the instant petition has been set aside by the Apex Court in Civil Appeal No. 1718 of 2002 and connected appeals, clause 13, as incorporated in the Government Resolution dated 12th July, 2001 amending the process of recruitment of Shikshan Sevaks, is no more valid and any action taken by the State Government, on the basis of the said order passed by this Court, is a nullity as at present. At the same time, while setting aside the order passed by us in writ petition No. 3681 of 2000 the Apex Court, in Civil Appeal No. 1464 of 2002, has duly considered the State Governments contention that the Shikshan Sevak Scheme for secondary schools was modified as per the order dated 16th August, 2000 in Writ Petition No. 2940 of 2000 and was working to the satisfaction of the Government. The said order of the Apex Court dated 22nd February, 2002 in a way leads to an inference that the scheme of Shikshan Sevaks applicable to the primary schools, as per Government Resolution dated 10th of March, 2000, also stood modified to the extent as directed by order dated 16th August, 2000 in Writ Petition No. 2940 of 2000 and inspite of its distinguishing features viz. the scheme announced by the Government Resolution dated 10th of March, 2000 being applicable to the primary schools run by the Zilla Parishad, Municipal Councils/ Corporations and private aided institutions and the scheme announced by the Government Resolution dated 27th of April, 2002 being applicable only to the aided private secondary schools. Under these circumstances, the State Government is bound to follow the scheme of Shikshan Sevaks as originally announced vide Government Resolution dated 10th of March, 2000 and to the extent modified by order dated 16th August, 2000 by this Court (Principal Bench). As per these modifications the honorarium payable at the rate of Rs.2,500/- per month has been enhanced to Rs.3,000/- per month and it shall be payable on month to month basis without any deductions. The Shikshan Sevaks will be appointed for a duration of three years instead of five years as was originally envisaged and upon successful completion of the said period he/ she will be absorbed in service and treated as a regular teacher within the meaning of Maharashtra Employees of Private Schools Act, 1971 (MEPS Act, for short) and the Rules hereunder or similar statute governing the regular employees under the Zilla Parishad or the Municipal Councils/ Corporations.

16. As per the order dated 16th August, 2000 the appointment of Shikshan Sevak is required to be made by following the procedure prescribed under the M.E.P.S. Rules i.e. advertisement and interviews. However, it is required to be noted that the M.E.P.S. Rules are applicable only to the primary schools run by the private managements and they are not applicable to the primary schools run by the Zilla Parishads or the Municipal Councils/ Corporations. The recruitment of Assistant Teachers in the primary schools run by the Zilla Parishad is governed by the Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967 [for short, recruitment rules of 1967] and on completion of three years tenure as Shikshan Sevaks they are required to be absorbed in the permanent employment of the Zilla Parishad without following any fresh process of recruitment, provided there was nothing adverse against them, according to our order dated 16th August, 2000.

17. With this background we are required to consider two main issues for deciding this petition viz. (i) whether inviting names of the candidates for appointment to the post of Shikshan Sevaks from the prescribed four agencies i.e. the employment exchange, Commissioner, Tribal Development, District Social Welfare Officer and Project Officer (Integrated Tribal Development Project) without inviting applications by publishing proclamation in the local newspapers is illegal, arbitrary and violative of Articles 14 and 21 of the Constitution, and (ii) if the above issue is decided in the affirmative or in the negative what is to be done with the select lists already prepared in June/ July, 2000 as well as pursuant to the Government Resolution dated 12th July, 2001.

18. Shri Dhorde, the learned counsel for the Petitioners submitted before us that under the Recruitment Rules, 1967 it was provided that applications for filling in posts were required to be invited by proclamations released in the press and not by approaching the employment exchange or any other government office alone. Even when the recruitment under the Zilla Parishads or the Municipal Corporations was required to be undertaken by the Subordinate Services Selection Board, the proclamations were published in the local newspapers for wide circulations as per the government resolutions issued from time to time. When Shikshan Sevaks appointed and continued for a period of three years are going to be regularised in the services of the Zilla Parishad as Assistant Teachers in the primary schools, there is no reason why the additional mode of releasing proclamations in the local newspapers was abandoned by the State Government while incorporating clause 13 in the Shikshan Sevaks Scheme and this failure on the part of the State Government vitiates the selection process inasmuch as the Assistant Teachers in the permanent employment of the Zilla Parishad would enter in service without strict compliance to the recruitment rules and more particularly in regard to the selection process. Countering the claim of the intervenors the petitioners contend that though the intervenors were in the select list prepared for the appointment of Shikshan Sevaks by the respective Zilla Parishads, they could not claim a vested right for appointment to the said post on the basis of such a selection In support of these contentions reliance has been placed on the decisions in the case of " K. Jayamohan v. State of Kerala and another " and "State of U.P. V/s Ram Swarup Saroj" .

On the point of delay in challenging the validity of clause 13 of the Shikshan Sevaks Scheme in the instant petition, the learned counsel submitted that the Petitioners being from Ahmednagar district, had no opportunity to face the consequences of the said clause as the recruitment process for the post of Shikshan Sevaks under Zilla Parishad, Ahmednagar was undertaken for the first time in January, 2001 and even if in some other Zilla Parishads the said process had started in June/ July, 2000, the Petitioners for the first time realised the consequences of the impugned clause only when the Ahmednagar Zilla Parishad commenced the selection process. In such circumstances, the Petitioners have approached this Court in time and their claim cannot be thrown out on the ground of delay, latches or for the reasons of being an academic one.

19. Coming to the case made out by the intervenors, who were the appellants before the Apex Court in Civil Appeal No. 1718, 1719 of 2002 and other connected appeals, it has been submitted by the respective learned counsel that there is no infirmity in the provisions of clause 13 and the same could not be termed as ultra vires the provisions of Article 14 or 21 of the Constitution. The Employment Exchange and other three offices of the Government are the agencies where the names of unemployed D.Ed. youths are registered on year to year basis and, therefore, all those unemployed youths would be offered an opportunity to compete in the selection process. Merely because there is no provision in the impugned clause for inviting applications by publishing the proclamation in the newspapers the selection process cannot be disturbed by holding that the said clause is unconstitutional, arbitrary or illegal. The Petitioners have belatedly filed the petition and selection process in some of the district was already completed, in some cases appointment orders were issued and in the remaining cases appointment orders could not be issued only because the State Government issued directives on 4th of October, 2000 asking the Zilla Parishads to stay the process of appointment. This stay is continued right up to 9th July, 2001 and, therefore, the selected candidates viz. the intervenors could not receive the appointment orders. There was no illegality in their selection and for no fault attributable to them, they were deprived of the appointment to the post of Shikshan Sevaks in the respective Zilla Parishads. In the meanwhile, some of the candidates who were already in the select list have crossed the age limit and if they are required to undergo fresh selection process, they would be disqualified at the threshold on the ground of overage. In addition, owing to the influx of D.Ed. candidates every year, the capacity of the select candidates to compete with the freshers would be put to limitations more so because the merit list is required to be drawn on the basis of the written marks (theory papers) in the D.Ed. examinations. Though, almost all the intervenors have responded to the second selection process and their names appeared in the select list, their place of merit has been shifted downwards and the possibilities of some of them being not considered for appointment cannot be ruled out on account of non-availability of vacancies to that extent. For example, if a candidate was at serial No. 50 in the select list prepared in June/ July, 2000, he would not retain the same position and he may be at serial No. 100 or 500 in the select list prepared by following the procedure set out in Government Resolution dated 12th of July, 2001 and, thus, their interests have been adversely affected more so because some of them may not find their place within the number of seats available in a particular Zilla Parishad. If a Zilla Parishad has 100 vacancies for the post of Shikshan Sevaks, the intervenor who is at serial No. 101 or beyond in the second select list may not get an appointment though he was at serial No. 50 in the first select list of June/ July, 2000. In addition, some of the intervenors who found their place in the first select list had crossed the maximum age limited of 30 or 35 years as the case may be and they were not eligible for being considered in the second selection process.

Coming to the challenge to the validity of clause 13, reliance has been placed on decisions in the case of "Union of India and others V/s N. Hargopal and others" , "Excise Superintendent, Malkapatnam

V/s K.B.N. Visweshwara Rao and others" and "Arun Tewari and others V/s Zila Mansevi Shikshak Sangh and others" .

20. On behalf of the State Government return has been filed by the Deputy Secretary, School Education Department as well as Secretary to the Government of Maharashtra, School Education Department. It has been submitted that in Ahmednagar district requisition for 300 posts of Shikshan Sevaks was submitted by the Member Secretary of the District Selection Committee as constituted under the Shikshan Sevaks Scheme on 11th January, 2001 to the Employment Exchange Officer and other three offices of the Government and they were informed that names of D.Ed. candidates in the ratio of 1:5 were required to be submitted. Accordingly, names of 1500 candidates were received by the District Selection Committee on 22nd February, 2001 and these were of candidates who were registered up to 15th of October, 1998. Unemployed candidates possessing D.Ed. qualifications are required to register their names with the four offices specified and almost all of them do so as soon as they pass their D.Ed. examination. The selection under the scheme is made on the basis of marks obtained in written examinations of the D.Ed. course and there is a transparency guaranteed in the selection process inasmuch as no name other than the names received from the four named agencies could be added in the list of candidates for selection to the post of Shikshan Sevak. It has also been pointed out that no outer date of registration with any of these four offices was prescribed up to which candidates may be considered for selection and, therefore, it was left to these four offices to forward the list on the basis of seniority in registration and in the ratio of 1:5. This system definitely has a rationale and there is no scope for pick and choose at the discretion of the officers concerned inasmuch as the employment office or the other three offices are required to send the names strictly as per seniority in registration. It is also stated that the candidates who are selected in the process are removed from the rolls of the employment exchange as well as the other three offices and thus making way for the remaining candidates registered with these offices in the subsequent selection process so that only unemployed candidates are considered and there is sufficient assurance in that regard. This cannot be assured by the process of releasing proclamations in the local newspapers. Civil Application No. 3977 of 2002 has been filed on behalf of the Respondent State Authorities praying for leave to issue appointment orders either to the candidates who are in the first select list or in the second select list so that the existing vacancies in the primary schools of the Zilla Parishads are filled in without any further delay. It is also contended that there are number of primary schools in the remote rural areas where the students are suffering due to inadequate number of teachers in the primary schools run by the Zilla Parishads and undertaking any fresh selection process would not only put an additional financial burden on the State exchequer but indeed it would cause irreparable loss to the children waiting for additional teachers to teach them in the current academic year. The Government has, thus, made out a case of an exigent situation and shown its flexibility to accept any alternative suggestion by this Court which would ultimately result in issuing appointment orders in favour of the candidates who are already on the select list.

21. There are about 64,500 primary schools spread out in 35 districts of Maharashtra catering to a student population of about 125 Lakhs. The education scenario in the primary and secondary schools in Maharashtra could be better appreciated by the following charts: --------------------------------------------------------- Sr. Particulars. Primary Secondary No. Schools. Schools. ---------------------------------------------------------

01. Number of schools. 64,500 14,000

02. Strength of students. 1,25,00,000 78,00,000

03. Strength of Teachers: 3,15,000 2,29,000 --------------------------------------------------------- --------------------------------------------------------- Sr. Particulars. D.Ed. B.Ed. No.

---------------------------------------------------------

01. Yearly intake capacity. 15,000 12,000

02. Registered with 35,000 26,000 employment agencies.

Every year approximately 7,500 vacancies in the post of Assistant Teachers arise due to retirement/ resignations and as at present there are 20,000 vacancies to be filled in the primary schools alone. The State Government had placed restrictions on filling of regular posts of teachers from June, 1998 and these restrictions were removed only after the impugned scheme of Shikshan Sevaks was introduced. However, purportedly owing to the orders passed by this Court the same restrictions were continued from 4th October, 2000 onwards and they were lifted only in July, 2001. In view of the order passed by the Apex Court in Civil Appeal Nos. 1718 and 1719 of 2002 the stay on the appointments of Shikshan Sevaks continued and it so continues till the instant petition is decided by us. The vacancy position in the primary schools is thus appalling and there is an urgent need of appointments being cleared without any further loss of time.

22. One of the reasons for putting restrictions on appointment of teachers in 1998 was financial crisis and subsequently the Government of Maharashtra took a policy decision to make applicable the Fifth Pay Commission Recommendations even to the teachers as a result of which the monthly salaries increased more than two fold. On one hand the exchequer was crumbling with the weight of salary bills and on the other hand vacancies of teachers were increasing every academic year not only because of retirements/ resignations but even on account of opening of new schools in rural as well as urban areas. The State Government was faced with a difficult task of finding a way out so as to meet its financial commitments as well as the increased demand for teachers. The State Government was also alive to the reality that it was not able to release the salaries of the government employees for months together. The decision of the Gujarat High Court approving the scheme of Vidya Sahayak Scheme implemented by the Gujarat Government since June, 1998 came to the rescue of the State Government which decided to incorporate/ adopt a parallel scheme and thus the scheme of Shikshan Sevak was born. This Court in all the petitions challenging the validity of the scheme for primary as well as secondary schools has permitted the State Government to implement the same with certain modifications, by way of interim measure and pending the final decision on the said challenge raised in the petitions. All these are relevant considerations to be born in mind while deciding the instant petition and we cannot consider the arguments and counter arguments in isolation. The attendant circumstances do matter in finding out a balancing assimilation with the sole intention that the students in the primary schools do not suffer any further and more so by keeping in mind the provisions of Articles 21 and 45 of the Constitution which lay down that the State should provide free and compulsory education for all children up to the age of 14 years.

23. As per section 4 of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 (for short, Employment Exchange Act) which was brought into force from 1st May, 1960, it is mandatory to notify the vacancies in certain categories to the Employment Exchange and failure to do so is an offence punishable as per section 7 of the said Act. The candidates who completed the D.Ed. course are, by and large, made aware while they are studying the said course that they are required to register their names with the Employment Exchange, District Social Welfare Officer, Commissioner, Tribal Development and Project Officer (I.T.D.P.) and barring a few exceptions almost all of them do so. It has come on record that the D.Ed. candidates who have registered their names way back in 1992-93 are still waiting for their turn to get an appointment as a teacher. It is not necessary that every such candidate who has passed his D.Ed. course is likely to have the knowledge of impending selection process through the local newspapers. His natural expectation would be to hear from the government agencies with whom he has registered his name. At the same time any scheme leading to selection for the post of teacher in the present context must be available to those who are unemployed and the ones who are already employed do not participate in the fresh selection process. By inviting the names from these government agencies this is assured. There is one more facet which also needs consideration. There may be a youth who has passed out his D.Ed. examination in 1999 and has registered his name with one of the government agencies immediately thereafter when the requisition is sent for recruitment of teachers to these agencies, he may not find his name in the sponsored list sent in response to the requisition merely because of the vast number of senior candidates above him. If the authorities invite applications by proclamations in the newspapers, it is possible that this candidate may not have the knowledge of such a proclamation and on the other hand a candidate who has passed along with him or in the subsequent years would respond to these proclamations and participate in the selection process. This would defeat one of the purpose implied under the Shikshan Sevaks Scheme and, therefore, care must be taken that employment opportunities are available to the unemployed youths who have completed the course earlier and have registered their names with the government agencies though an additional mode of inviting the applications through newspaper publications would not be an illegality.

24. Before we deal with the challenge raised by the petitioners, it would be imperative to deal with their own actions. Petitioner No. 1 has passed his D.Ed. examination in April, 1992 and was registered with the Employment Exchange on 24th August, 1992. His registration was valid for a period of three years and it was subject to renewal thereafter. He did not do so. Petitioner No. 2 passed his D.Ed. examination in April, 1994, Petitioner No. 3 passed the said examination in 1994 and the Petitioner No. 4 in April, 1997. All of them had registered their names with the employment exchange but did not renew the same in some cases immediately after three years. Nevertheless all of them re-registered their names with the employment exchange on 3rd February, 2000 which indicates that as on the day the District Selection Committee forwarded its requisition i.e. on 11th January, 2001, all of them were registered with the employment exchange and they could not find their names in the list forwarded by the employment exchange to the District Selection Committee because of the fresh registration alone. If they had maintained their original registration and renewed it on expiry of three years, all of them could find their place in the said list forwarded by the employment exchange to the District Selection Committee at Ahmednagar as the list was in respect of candidates who had registered up to 15th October, 1998. This clearly demonstrates that inviting names from employment exchange could not have caused any prejudice to the petitioners and there could be no cause for them to challenge the validity of clause 13 of the Scheme.

25. In the case of Union of India and others V/s N. Hargopal and others (supra) while holding that the instructions issued by the Government from time to time having the effect of compelling the employers to restrict their field of choice to candidates sponsored by the employment exchange did not offend Articles 14 and 16 of the Constitution, it was further observed thus: "9.... ... ... The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes, a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore, consider that insistence on recruitment through Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The submission that Employment Exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of recruitment, we think that any restriction that employment in government departments should be through the medium of employment exchanges does not offend Articles 14 and 16 of the Constitution. ... ..."

In the case of "Delhi Development Horticulture Employees Union V/s Delhi Administration" the Supreme Court approved of recruitment through employment exchanges as a method of preventing malpractices. However, in the subsequent decision in the case of Excise Superintendent (supra) a three Judge Bench after adverting to the earlier decision in Hargopals case (supra) stated:

"6.... ... It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/ establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication issued in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."

[Emphasis provided]

In the case of Arun Tewari and others (supra) the earlier decisions in the case of Hargopal (supra) as well as Excise Superintendent (supra) were considered. The Madhya Pradesh Government decided to fill in about 7000 to 11000 posts of Assistant Teachers in the Primary/ Middle Schools to implement the scheme known as "Operation Blackboard Scheme" under the financial clearance from the Government of India. In order to implement the scheme within the 8th plan period and keeping in view the need for a time bound program the recruitment process was initiated and the selection of Assistant Teachers in 1993 would be made by a committee as constituted and the revenue districts shall be unit for selection of teachers. The lists of eligible candidates were obtained from District Employment Officers, who were matriculates and above and had B.T.I. or B.Ed. qualifications. The recruitment process was challenged and one of the issues related to inviting applications from employment exchange instead of by advertisement, also fell for consideration and in its reply the Apex Court observed:

"20. The next contention relates to inviting applications from employment exchanges instead of by advertisement. This procedure has been resorted to looking to the requirements 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. ... ..."

In the case of "Kailashchand Sharma etc. etc. V/s State of Rajasthan and others"

it has been held that preferential treatment on grounds of residence within the State, Region and district etc. is not permissible for appointment of teachers. Residence by itself - be it within a State, Region, District or lesser area within a district cannot be a ground to accord preferential treatment or reservation save as provided in Article 16(3) of the Constitution.

26. The Petitioners have solely relied upon the observations made by the Apex Court in the case of Excise Superintendent (Supra). However, what has been mandated in the said decision is inviting applications from the employment exchange and the employment exchange to sponsor the names of the candidates to the requisitioning department strictly according to seniority and reservation as per requisition. When it came to the other mode of inviting applications like advertisement in the newspapers having wider circulation, display on office notice boards, announcement on radio, television and employment news bulletin etc. the Supreme Court used the word "should call for the names" by these means. This was more of a desire so as to ensure fair play and equality of opportunity in the matter of employment to all eligible candidates. While requisitioning the names from the employment exchange, social welfare department and other government agencies is a mandatory requirement, inviting applications by way of proclamations, released in local press, is more of a desirability and failure to provide for such publication in the press would not amount to an act of arbitrariness or in violation of Article 14 and 21 of the Constitution as has been contended by the Petitioners.

27. Our attention was invited to the provisions of Rule 3 (2) of the Maharashtra Zilla Parishads (Divisional and District Selection Boards) (Functions) Rules, 1962. Subclause (a) thereunder requires the Secretary of the Selection Board to announce in as many news papers as considered necessary the number of vacancies likely to be filled in with the respective qualifications required under the relevant recruitment rules, inform also the employment exchange in the area, if any, of such qualifications and number of vacancies and indicate in the manner in which the employment exchange should recommend the names of candidates for selection. On the basis of these requirements under the Rule it cannot be said that there was infirmity or infraction of the recruitment rules of 1967 because the provisions relied upon are from the Divisional and District Selection Boards (Functions) Rules. The Shikshan Sevak scheme does not envisage recruitment to be made by the Divisional District Selection Board or the Subordinate Services Selection Board. The said scheme has been allowed to be operated pursuant to the interlocutory orders passed by this Court with certain modifications and subject to the final decision in the pending petitions which have assailed the constitutional validity of the said scheme. The recruitment drive undertaken for the post of Shikshan Sevak is more of a time-bound action requiring speedier finalisation of the select list in the special circumstances. No doubt it would be more desirable and advantageous to have wider circulation and invite applications from candidates and provide opportunities to all unemployed D.Ed. candidates irrespective of, whether they are registered with the four government agencies. In some cases such candidates may not have an access to the newspapers and in some other cases they may not have an access to the employment exchange or other government agencies. What is important to be noted is an opportunity to be provided to unemployed D.Ed. candidates for going through the selection process and on the basis of his year of passing. The Government has shown its willingness to make such additional provisions in future and till the final decision in the pending petitions challenging the vires of the scheme is rendered by this Court.

28. All the Petitioners were enrolled with the employment exchange at Ahmednagar and on expiry of three years period instead of renewing the enrollment they resorted to fresh enrollment on 3rd February, 2000. In the affidavit in reply filed on behalf of the State Government correspondence with the employment exchange has been brought on record and it has been clearly stated that the names of the 1500 candidates sponsored were strictly as per the seniority in the respective reserve categories and all those registered as on 15th October, 1998 were included in the lists submitted to the Selection Committee. The mandate as laid down by the Apex Court in the case of Hargopal (supra) in this regard, was duly followed.

29. The appointments of Assistant Teachers in the Zilla Parishad Schools are covered by the Recruitment Rules of 1967 and Rule 5 of the said Rules prescribes the qualifications and methods of appointment which shall be as specified in Appendix No. IV. At serial No. 8 and 9 in the said Appendix the posts of Head Master and Assistant Teachers in the Primary Schools have been listed and in the column of qualifications and methods for appointment for the Assistant Teachers in Primary Schools it is prescribed, as under:

(i) Appointment shall be made by nomination from amongst candidates who have passed the S.S.C. examination or Matriculation examination and the D.Ed. examination.

(ii) The selection for appointment to the post of Primary School Teachers reserved for women and Scheduled Castes, Scheduled Castes Converts to Buddhism, Scheduled Tribes, Denotified Tribes and Nomadic Tribes and Other Backward Communities shall be made in the order of preference as indicated therein.

There is no requirement specified in the Appendix or under Rule 5 of the Recruitment Rules of 1967 that the applications from eligible candidates are required to be invited by publication by a proclamation in the local newspapers and, therefore, the contention of the Petitioners that such a requirement is mandatory is without any support.

30. In such circumstances, it cannot be held that the original provision of clause 13, as impugned in this petition, is illegal or unconstitutional only because it does not provide for inviting applications by advertisement in the local newspapers though such may be an additional mode desirable in future. The Zilla Parishads have already gone through two rounds of selection process, first as per the impugned provisions of clause 13 and the second pursuant to the orders passed by this Court on 4th July, 2001 in the instant petition and which order has been set aside by the Apex Court. The fact remains that all those who were in the first select list have also responded to the second recruitment derive in response to the newspaper advertisements and almost all of them are in the second select list as well. There may be few who may loose their opportunity, though selected in the first select list, on account of overage and some others may be listed at a much lower place in the second select list in view of the comparative merit assessment of the D.Ed. written examination and thus may loose the chance of being appointed in response to the second select list. As noted earlier, we will have to find out a proper synchronization of these two lists so as to do justice to the parties and more particularly the students, keeping in mind the principles of equity, though it is well established by a catena of decisions of the Apex Court that the selected candidates do not have a vested right for appointment and the right of employment is fructified only when the order of appointment is issued pursuant to the said selection.

31. In the premises, we hold that the method of inviting applications under clause 13 of the Shikshan Sevak Scheme dated 10th March, 2000 from the specified government offices namely employment exchange, district social welfare officer, Commissioner (Tribal Development), Project Officer (Integrated Tribal Welfare Project) cannot be held to be illegal, arbitrary or unconstitutional and it is desirable that in addition to these modes applications are also invited by publishing a proclamation in the local newspapers in future. The challenge raised in this petition, therefore, fails.

To meet the emergent requirements of Assistant Teachers in the primary schools under the Zilla Parishads for the current academic year i.e. 2002-2003 we direct that, at the first instance, all those candidates who were in the first select list prepared as per the impugned provisions of clause 13 of the Shikshan Sevak Scheme shall be issued appointment orders and in case there are any further vacancies in the concerned Zilla Parishads, the candidates selected pursuant to the selection process undertaken as per the Government Resolution dated 12th of July, 2001 shall be issued appointment orders strictly as per the merit list and by excluding those names who are already in the first select list. A candidate who has been issued appointment order for the post of Shikshan Sevak shall be given a period of two weeks to report for duty and on his/ her so joining he/ she shall not be considered for appointment in any other district. The appointment orders be issued within two weeks from today, and without considering the age bar, if at present, and the selected candidates may be advised to contact the concerned Zilla Parishads by way of a press/ media release in addition to individual communications to them.

While appointing Shikshan Sevaks there shall be no restrictions of being a resident of the same district but once so appointed, there could be no transfer in the district of his/ her choice during the period of three years or while absorption unless the Director of Education is satisfied of exceptional reasons warranting such a transfer. As soon as the appointed candidate joins as Shikshan Sevak, in any particular Zilla Parishad, the Government agency which had sponsored his/ her name shall be intimated immediately to remove his/ her name from the register.

The Director of Education may call upon the Principals of all the D.Ed. colleges all over the State directing them to display a notice at a prominent place in the respective colleges advising the final year D.Ed. students to enroll their names with the specified four government agencies immediately on completing the D. Ed. course, each year.

The Shikshan Sevaks so appointed shall be continued for a period of three years without any fresh process of selection as directed by our order dated 16th August, 2000.

The process for selection of Shikshan Sevak for the ensuing academic year shall be initiated in the month of May, 2003 and completed by 10th of June, 2003. The Government may consider to centralize the selection process for the post of Shikshan Sevaks for the Primary Schools run by the Zilla Parishads, Municipal Councils/ Corporations, as well as private aided institutions all over the State of Maharashtra for the academic year 2003-2004 onwards so as to fulfill the dual aim of providing employment opportunities to the D.Ed. candidates and to meet the budgetary constraints.

The State government may issue a fresh Government Resolution setting out the guidelines governing the scheme of Shikshan Sevak for the primary schools on the basis of the orders passed by this Court and upheld by the Apex Court, before 31st December, 2002.

The Government shall take decision regarding the applicability of the Shikshan Sevak Scheme of 27th of April, 2000 to the Secondary, Higher Secondary Schools and D. Ed. Colleges run by the Zilla Parishads, Municipal Councils/ Corporations as well as Cantonment Boards on the lines of the applicability of the same scheme to the primary schools before 31st December, 2002.

These directions shall be subject to the final decision in Writ Petition No. 3681 of 2000 pending before us.

Petition is disposed of accordingly. Rule discharged. No costs.