MADAN MOHAN SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Leave granted.

(2.) This appeal is directed against the order dated 19.12.2005 passed by the Division Bench of the Rajasthan High Court whereby the Division Bench of the Rajasthan High Court has disposed of the appeal with the following direction.

(3.) Brief facts which are necessary for disposal of this appeal are that the vacancies in the posts of Teacher Grade III were advertised by the Zilla Parishad Sawai Madhopur on 25.5.1996 on the basis of the circular dated 24.7.1995 issued by the State Government in exercise of powers under Rule 17(2) of the Rajasthan Panchayat Samitis and Zila Parishad (Service) Rules,1959 ( hereinafter to be referred to as the Rules of 1959). The last date for submission of application and documents in support of eligibility and merit was fixed as17.6.1996. The selection circular dated 24.7.1995 laid down that the selection shall be made on the basis of the marks secured by the candidates in Secondary Examination and B.Ed/ Basic School Training Course (BSTC) for preparation of the merit list for appointment of Teacher Grade III. Thereafter, on 20.7.1996 another circular was issued by the State Government whereby the earlier criteria for determination of merit for appointment of Teacher Grade III was superseded and revised criteria was prescribed and the basis for assessment of merit was the marks obtained in the Higher Secondary Examination and B.Ed/ BSTC course and the last date for submission of application and other relevant documents in support of eligibility and merit for selection of appointment as Teacher Grade III was extended up to 30.10.1996. Thereafter, it was further extended up to 20.12.1996. On 30.12.1996 Rajasthan Panchayati Raj Rules, 1996 (hereinafter to be referred to as the Rules of 1996) were notified. Rule 266 of the Rules of 1996 provided that Senior Secondary with BSTC course shall be the minimum qualification for appointment of Primary Teachers. A writ petition being S.B.C.W. No.147 of 1997, Radhey Shyam Sharma & Anr. V. State of Rajasthan was filed which was allowed by learned Single Judge of the High Court of Rajasthan on 6.11.1996. Learned Single Judge held that the criteria on the date of issuance of advertisement was to be followed and the State Government was directed to consider the merit of the candidates in view of the circular dated 24.7.1995 i.e. Secondary Examination with B.Ed./ BSTC was considered the basis for selection. Thereafter, four special appeals were filed against the order of the learned Single Judge. Out of the four special appeals, one was filed by the State of Rajasthan i.e. State of Rajasthan v. Radhey Shyam Sharma and another appeal as filed by Dharmendra Kumar Sharma and Madan Mohan Sharma, the appellants before us. Thereafter, a request was made that the special appeals be allowed to be withdrawn. Learned Division Bench of the High Court permitted the writ petitions to be withdrawn and as a result of the withdrawal of the writ petitions, order dated 6.11.1997 was declared as " no longer stands". Thereafter, the selection process commenced on the basis of the circular dated 24.7.1995 and the merit list was prepared on the basis of the Secondary Education qualification. Aggrieved against this, Madan Mohan Sharma and Dharmendra Kumar Sharma (appellants) filed another writ petition being S.B.C.W.P.No.1771 of 1999 challenging the lowering down the eligibility criteria of Higher Secondary Education to the Secondary Education. During the pendency of the writ petition, the State of Rajasthan issued another circular on 12.3.1999 whereby a decision was taken invoking Rule 296 of the Rules of 1996 to appoint Shri Madan Mohan Sharma and Shri Dharmendra Kumar Sharma relaxing the educational qualification. Meanwhile, selection process had been completed and merit list was prepared in terms of the circular dated 24.7.1995 and in the month of September, 1999 appointment of 232 candidates was made out of the merit list prepared in terms of Rules 274 of the Rules of 1996. According to the State, after making the selection of 233 candidates only 93 posts were available which were to be filled up in terms of the circular dated 20.7.1996. Meanwhile, on 6.12.1999 the State Government in exercise of their discretionary power for relaxation of educational qualification under Rule 296 of the Rules of 1996 issued directions to appoint both Madan Mohan Sharma and Dharmendra Kumar Sharma in Panchayat Samiti Todabhim District Karauli vide order dated 6.1.2000 and 11.1.2006 on the post of Teacher Grade III. After appointment of these two persons namely, Madan Mohan Sharma and Dharmendra Kumar Sharma a spate of writ petitions followed before the learned Single Judge. The said writ petitions came to be disposed of by the learned Single Judge of the High Court on 12.2.2001. Learned Single Judge struck down Rule 296 of the Rules of 1996 being ultra vires and unconstitutional conferring unbridled powers upon the executive and the appointment of both the candidates i.e. Madan Mohan Sharma and Dharmendra Kumar Sharma was set aside. Learned Single Judge in his order dated 12.2.2001 observed as follows :