Guman Singh Vs. the State of Rajasthan and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/763183
SubjectService
CourtRajasthan High Court
Decided OnNov-22-1990
Case NumberS.B. Civil Writ Petition Nos. 1640 to 1643, 1706 to 1708 and 2623 of 1984
Judge R.S. Verma, J.
Reported in1990WLN(UC)297
AppellantGuman Singh
RespondentThe State of Rajasthan and anr.
Cases ReferredRaten Singh v. State of Raj.
Excerpt:
constitution of india - petitioners selected by commission and provisionally appointed--petitioner over age and they would be ruined if thrown out of job--held, entire service be taking in to consideration for seniority and increments.;the petitioners were selected by the appropriate commission and have also been provisionally appointed. if thses petitioners are now thrown out of job, it will totally rain them, inasmuch as all of them have now become overage for government jobs. here it would be appropriate to refer to affidavit of lumb singh filed on 30-9-90 in s.b. civil writ petition no. 2623/84. the relevant portions of this affidavit have already been quoted above, wherein is was mentioned that the entire services rendered by him from the date of his first appointment have been taken into account for the purposes of seniority and for the purposes of increments etc. ratan singh is one of the petitioners before me and the cases of the other petitioners are not different from that of ratan singh. therefore, i am of one opinion that all the petitioners including ratan singh should be treated at per and the present petitioners should not be treated differently from other teachers who are similarly situated and to whom reference was made in.;order accordingly. - - jagadeeshan's case (supra) these writ petitions must fail.r.s. verma, j.1. these writ petitions raise common questions of law and fact and hence by consent of all parties have been heard together and are being disposed by a comon judgment. i need not separately narrate facts of each case and would content myself by narrating facts pleaded in s.b. civil writ petition no. 1706/84-ratan singh v. state.2. the petitioner is a matriculate and he took admission in the jharphakar tailoring college, bombay in the acadeamic sessions 1977-78 for grant of tailoring and cutting diploma. the petitioner could not clear the main examination conducted by the said college but he appeared at a supplementary examination and cleared the same. he was appointed on the post of a teacher on a temporary basis by an order passed by vikas adhikari, panchayat samiti, jhadol on 29-10-79 (anxx. 1). his services were brought to an end on 2-5-80 but he was again appointed for the acadamic sessions 1980-81 on temporary basis. the services were again brought to an end by order dated 7-5-81. he was again appointed for the academic session 1981-82 and his services were terminated at the end of the said session. once again by order dated 30-6-82 he has appointed as a teacher vide annx. 2. he was similarly re-appointed for the session 1983-84 but his services were brought to an end by an order dated 27-6-83 (annx.3). thereafter, the petitioner came to be appointed for the various academic sessions preceding 27-6-84 on intermittent basis and his services used to be terminated for the period of the summer vacation.3. the case of the petitioner is that he expected to be appointed again as teacher under the said panchayat samiti at the commencement of the new academic session from july, 1984 but he did not receive any appointment and his information was that the diploma obtained by him was no longer recognised and hence he was no more eligible to be appointed. the case set up by the petitioner is that initially an order was issued on 28-8-74 by the govt. of rajasthan (annx. 4), whereby jharphakar tailoring college, bombay was, inter alia, recognised equivalent to a diploma in tailoring issued by the govt. handicrafts institute, jaipur for the purposes of appointments of teachers. the recognition granted by the aforesaid order was further reiterated by the government by an order issued on 14-3-78(annx. 5), and annexure 6 dated 31-7-82 wherein it was, inter alia, clarified that the aforesaid college was still recognised for purpose of giving appointments.4. it appears that annx. 4 issued by government was folowed by another order of the government issued on 15-4-78, whereby the diploma issued by the college in question had been derecognised. though this order issued on 15-4-78 does not appear on record, yet a reference to the same has been made in annx. 6 issued on 31-7-82. by this order annx. 6 the government clarified that only such persons, were eligible to be appointed as teachers in panchayat samiti who had passed the examination of the aforesaid college between the period 28-8-74 to 15-4-78.5. it appears that certain teacher, namely, ram singh, choon singh, raghuveer singh, daulat singh, lumb singh and guman singh brought to the notice of the government that though they had undergone the training during the academic session 1977-78 and had cleared the examination at the supplementary examination, yet they had not been paid their salary. upon such representation being made, the state government in the development department issued a letter dated 28-9-83 (annx. 7) that the representationists had passed a supplementary examination conducted at the end of the session 1977-78 and since the diploma was recognised for the session, they may be paid their salaries and they may be continued in services. similar orders in respect of certain other teachers was made on 6-9-83 vide ex. 8.6. it appears that an order was eventually made by the state government in the development and panchayat raj department on 25-4-84, whareby the circular issued by it on 31-7-82 was cancelled with immediate effect and a direction was given that new teacher who had obtained diploma from the aforesaid college may not be recruited and no recognition may be given to the diploma to be issued by the said college.7. the case of the petitioner is that according to his information his name was included in the list of the selected teachers but matter with regard to his appointment remained under consideration because of the controversy with regard to the fact whether diploma issued by the college was recognised one or not. it is pleaded that certain teachers selected by the commission were given appointment and was likely to be given appointment from the date of reopening of the schools after summer vacation. the petitioner's grievance is that there were other similarly situated teachers and in similar circumstances they were being continued in their post yet the petitioner was refused similar treatment. he has given names of certain persons who were serving in panchayat samiti, govindgarh who were similarly situated but were allowed to continue on the post of teachers.8. the grievance of the petitioner is that when he joined the diploma course of the jharphakar tailoring college, bombay when the same was recognised. the recognition accorded to it could not be withdrawn retrospectively so as to affect diplomas already issued. it was pleaded that order dated 15-4-78 could not have been retrospective in effect. it was pleaded that the respondents were precluded from treating the diploma obtained by the petitioner as unrecognised. had he ever known that this diploma was not recognised, he would not have chosen to undertake studies and would not have taken examination for grant of the diploma. by order dated 28-8-74 a representation was made by the government on the basis of which the petitioner was made to act to his prejudice and, therefore, by subsequent orders the diploma could not be derecognised.9. it was pleaded that the appointment given to the petitioner in the year 1979 had been continued year by year and the order dated 25-4-84 puts an embargo on the appointment of the persons possessing the diploma granted by jharphakar taoring college, bombay. this order could not be of any avail with regard to the vacancies which had occurred prior to 25-4-84. upon such averments, the petitioner prayed that the respondents maybe directed to give appointment to petitioner as a teacher grade-iii on a substantive basis pursuant to the selection by the selection commission and/or on temporary basis for the coming academic session and for this purpose it may by declared that the petitioner is possessed of requisite qualification for appointment. the petitioner further prayed that if for any reason giving of appointment to the petitioner is delayed, the respondents may be directed to give such appointment on and from the date other selected have been given appointment with all benefits consequential thereto, such as, emoluments, seniority etc., which become due to him on account of such appointment being given on the date it has been given to others.10. the writ petition was admitted way back on 6-7-84. no reply was filed to this writ petition on behalf of respondents no. 1 and 2 inspite of service. however, it appears that a reply was filed in s.b. civil writ petition no. 1642/82-roop singh v. state of rajasthan and anr., whereby the writ petition was opposed jointly on behalf of respondents no. 1 and 2.11. it appears that a stay application was filed by petitioner ratan singh being s.b. civil misc. stay petition no. 1638/84, wherein after hearing the learned counsel for the parties a direction was given as follows:heard learned counsel for the parties. respondent no. 2 is directed to provisionally consider the petitioner for selection for the post of craft tailoring teacher gr. iii and if the petitioner is selected he may be given provisional appointment on the said post. while making the said selection the respondent no. 2 will treat the diploma held by the petitioner as duly recognised.it appears that petitioner has been given appointment and has been continued in service in pursuance of the aforesaid direction issued by this court as would be evident from an affidavit moved by lumb singh in s.b. civil writ petition no. 2623/84-lumb singh v. state of rajasthan on 30-9-90. the relevant paragraphs of this affidavit reads as follows:2. it may be stated that after filing of the writ petition i was selected by the service selection commission, jaipur. that was in march, 1985, consequent to which i was given appointment by the panchayat samiti vide order dated 1-4-1985 pursuant to this appointment i and the other petitioners in writ petitions no. 1640/84, 1641/84, 1642/84, 1643/84, 1707/84 and 1708/84 are continuing in service and are being paid salary in the regular pay scale as hitherto before.3. reference may be made to what happened in s.b. civil writ petition no. 1706/84-ratan singh v. state of rajasthan.3/a. in the case of shri ratansingh a stay order was made by the court on 6-7-1984 directing the respondents to keep one vacancy of craft teacher vacant for the petitioner ratan singh.3/b. thereafter my counsel gave a notice to the concerned panchayat samiti i.e. panchayat samiti, bhim in which i and other petitioners in the aforesaid writ petitions except of shri ratan singh were employed and also to panchayat samiti, jhadol where shri ratan singh was employed.3/c. that whereas panchayat samiti, jhadol, proceeded to give appointment to shri ratan singh from july, 1984 the panchayat samiti, bhim did not choose to give appointment to me and other petitioners till we were selected and appointed with effect from 1-4-1985.3/d. shri ratansingh aforesaid has since been transferred in panchayat samiti, bhim and the entire services rendered by him from the date of his first appointment has been taken into account for the purpose of seniority and for the purposes of increments etc.it may be stated that this affidavit has not been controverted on behalf of the respondents in any way.12. since the non-petitioners did not chose to file a reply to the writ petition of ratan singh, i may here briefly indicate the pleas which had been taken by them in s.b. civil writ petition no. 2623/84 lumb singh v. state of rajasthan, whose case stands on the same footing as the case of the petitioner in all the writ petitions. the thrust of the reply is that the petitioner did not obtain diploma before 15-4-78 when recognition to the diploma of the concerned college was cancelled. as such the petitioner, was not eligible to be appointed as a teacher or a permanent basis. it was submitted that the petitioner was never selected by the rajasthan panchayat service selection commission (for short rpssc) and, therefore, in no event he could have been continued in service for indefinite period. under the service rules a panchayat samiti can give appointment for a period of six months only and then period of six months can be extended for further six months if the district establishment committee concures in the same. it was averred that temporary appointment could not-be continued for a period exceeding 12 months and hence were liable to be terminated as soon as candidates selected by rpssc became available. the appointment of the petitioner was only on a purely temporary basis till duly selected candidates were available. it is averred that the basic consideration in terminating the services of the petitioner were the terms of the appointment and the rules applicable. it was submitted that diploma of the concered institution was recognised by order dated 28-8-74 and its recognition was withdrawn on 15-4-78 and persons who had obtained diploma during this period were alone to be considered for appointment. it was submitted that the petitioner could not get preference ever the selected candidates and hence could not claim appointment as of right. it was submitted that the petitioner had only a right to be considered and had no right to be selected against a post. it was denied that order dated 15-4-78 had been given any retrospective effect. it was denied that there was no hostile discrimination against the petitioner.13. upon such picas the parties have argued this bunch of writ petitions. i have heard the learned counsel for the petitioner as also the learned asstt. govt. advocate in details.14. the learned counsel for the petitioner submits that the case of the petitioner is covered by a s.b. decision of this court rendered in s.b. civil writ petition no. 1614/86-shakti raj singh v. state of rajasthan and anr. and ors. connected 31 writ petitions which were disposed of by hon'ble mr. justice s.c. agarwal, as he then was, on january 16, 1987 at jaipur bench. he submits that ratio of that case squarely applies to the facts of these cases and all the writ petitions deserve to be accepted in terms of the aforesaid order. reliance has also been placed upon suresh pal and ors. v. state of haryana and ors. : air1987sc2027 , chandan mai nawal v. state of raj. and anr. 1986 (4) slr 337, d.b. civil petition no 430/87-gokul ram v. the state of raj. decided by hon'ble m.c. jain and hon'ble milap chandra, jj.15. learned asstt. govt. advocate vehemently opposes these writ petitions. he submits that though similar cases were disposed of by hon'ble mr. justice s.c. agarwal, as he then was, on january 16, 1987 and therein directions were given in shakti raj singh's case (supra), it would not be proper to accept the present writ petition in view of judgment rendered by the apex court in k. jagadeesan v. union of india : (1990)illj495sc . he has placed further reliance upon ram sukh and ors. v. state of raj. and ors. with aprashikshit adhyapak sangh and anr. v. panchayat samiti, gogunda and anr. : (1990)illj107sc , he submits that the government if empowered to amend the service rules at its sweet will and by such amendment retrospective effect can be given to such amended rules. he submits that k. jagadeeshan's case (supra) could not have been considered by hon'ble mr. justice s.c. agarwal, as he then was because the judgment in shakti raj singh's case (supra) was rendered on 16-1-87. he submits that in view of k. jagadeeshan's case (supra) these writ petitions must fail. he further submits that in ram sukh's case (supra) the hon'ble supreme court has taken a view that untrained teachers could not be 'proper substitute' for trained teachers and hence no relief could be granted for making the petitioner permanant. he, therefore, submits that all these writ petitions should be dismissed with cost, in reply, the learned counsel for the petitioner submits that k. jagadeeshan's case (supra) has no bearin, on the present case, because in the present case the qualification for appointment as teachers has not been changed by a rule made under article 309 of the constitution of india. he submits that k. jagadeeshan's case (supra) is applicable when rules made under article 309 are changed. in the present case, it is only the circular of the government which has retropsectively withdrawn recognition to a qualification which was previously recognised by it. with regard to case of ram sukh (supra), he pointed out that in that case the petitioner were out of job and it was in these circumstances that the hon'ble apex court declined to grant any relief to the petitioner observing that 'untrained teachers can never be proper substitute by trained teachers.' he submits that in the present case, the petitioners cannot be called untrained, in as such as they have already undergone proper training on the basis of which other persons similarly situated were duly selected and appointed. he further specifically refers to the order passed in s.b. civil writ petition no. 1706/86-ratan singh v. state on 21.9.84 by hon'ble mr. dave, j, which reads as follows:respondent no. 2 is directed to provisionally consider the petitioner for selection for the post of craft tailoring teacher gr. iii and if the petitioner is selected he may be given provisional appointment on the said post, while making the said selection the respondent no. 2 will treat the diploma hold by the petitioner as duly recognised.it is submitted that in pursuance of the aforesaid order all the petitioners have been duly selected and have been given provisional appointments on the post of craft tailoring teacher gr. iii. it is submitted that the petitioners have served for long terms and if they are thrown out of job now it would be highly inequitable and unjust becuase all of them have become overage by now.16. i have considered the rival submisson and have perused the material placed before me. i have also considered the various ruling cited before me. the petitioners in all these cases took admission in the academic session 1977-78 for the grant of tailoring and cutting diploma granted by the jharphakar tailoring college, bombay. unfortunately, the petitioners could not pass the main examination conducted at the end of this sessions but cleared the same subsequently at a supplementary examination. it is an admitted position before me that under the relevant rules the qualification prescribed for appointment as teacher grade-iii is 'matriculate.' however, rule does not specify the nature of the training. in the absence of express provisions in the rules prescribing the nature of the training it was open to the state government to recognise by executive order the diploma of jharphakar tailoring college, bombay as training for appointment on the post of primary school teacher. in fact this was done by the state government when the state government by issuing circular annx. 4 on 28-8-74, recognised the-diploma granted by jharphakar tailoring college, bombay. that this diploma had been recognised by the government becomes clearer by the circular annx. 5 issued by the government as late as 14-3-78, wherein it was clarified that diploma issued by the institutes mentioned in the letter were still recognised. this letter specifically mentions jharphakar tailoring college, bombay as one of the institutes whose diploma was so recognised. it appears from annx. 6 issued by the govt. that the recognition to these diplomas after 15-4-78 was withdrawn. however, the petitioners in these writ petitions had already undertaken study for the aforesaid diploma during the academic session 1977-78. all of them were appointed on different dates as asstt. teachers gr. iii on the basis of such diplomas, even though such appointments were temporary and used to last only during academic sessions and used be brought to an end at the end of the sessions. i have already extracted modified stay order granted by hon'ble dave, j on 21-9-84 in s.b. civil misc. stay petition no. 1638/84 in s.b. civil writ petition no. 1706/84. it appears that in consequence of this stay order the petitioners were selected for appointment as craft tailoring teachers grade iii and all of them have been provisionally appointed on such posts after such selection.17. now the first question which arises for consideration is whether the recognition already granted to the diploma could have been withdrawn retrospectively by an executive fiat of the state government. in my opinion an administrative order of this nature cannot be treated at par with statutory rules and regulations made by the government. this position was accepted in chandanmal nawal's case (supra). in this very ruling it was observed that an executive order of such a nautre could not be held to be effective from an earlier date. a similar view was taken in gokul ram v. the state of raj. (d.b. civil writ petition no. 430/87) decided by hon'ble mr. m.c. jain and hon'ble mr. milap chandra, j.j. on 10-8-87. that was a case where the state government had recognised the b.ed, degree of jabalpur university by order dated 21-9-67. the recognition was renewed but was withdrawn on 8-12-86. in that case, the petitioner had taken admission in july, 1986, and it was held that derecognition shall not affect the petitioner because he had already taken admission prior to the date of derecognition. in this judgment the hon'ble judges of the division bench followed the judgment of the apex court rendered in suresh pal's case (supra). in that case certificate course of a private institution was recognised by the government for appointment to government service, on the basis of such recognition the petitioner had joined the particular course. during the pursuance of the course by the petitioners, the course was derecognised by the government rendering the certificates obtained by them as useless. hon'ble supreme court held that it would be unjust to refuse to recognise the certificates obtained by the petitioners. their lordships in such circumstances directed the state government to recognise the certificates obtained by the petitioners and others similarly situated a result of completing the certificate course in the particular institute, for the purposes of appointment as physical training instructor in government schools in haryana. this ruling squarely applies to the facts of the present case and i am of the opinion that recognition once granted to the tailoring and cutting diplomas issued by the jharphakar tailoring college, bombay, could not have been derecognised restrospectively so as to render the certificates granted to the petitioners useless and ineffective, particularly when they had already taken admission to the course prior to the derecognition.18. i find that jagadeesan's case (supra) has no relevance to the facts of the present case. in that case, their lordship considered an earlier dictum of the apex court rendered in t.r. kapur and ors. v. state of haryana and ors. : (1987)iillj25sc , wherein it was observed as follows:an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. the rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively.however, in that very ruling itself, it was observed:unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled.in k. jagadeeshan's case (supra), observations made in t.r. kapur's case (supra) were explained and it was stated that 'there chances of promotion are not conditions in the chances of promotion did not tantamount to a change in the condition of service.' it was observed in k. jagadeeshan's case that no retrospective effect had been given to the amended rule. in view of the aforesaid position k. jagadeeshan's case (supra) has no applicability to the facts of the present case.19. i have also carefully gone through ram sukh's case (supra) and i find that the said ruling has also no application to the peculier facts of the present case. in para 6 of the ruling their lordships of the supreme court observed' we are not less sympathetic to the petitioners who are out of job but we cannot forget the welfare of those who are not before the court.' this observation goes to show that the petitioners in ramsukh's case (supra) were out of job and they wanted intervention of the apex court for getting appointment as teachers in preference to trained teachers who had already been appointed. it was in this background that the apex court said 'untrained teachers can never be proper substitute to trained teacher. we are, therefore, unable to give any relief to the petitioner.'20. the equities in the present cases are just different. as already pointed out, the various petitioner have served under different panchayat samitis for long periods, of the appointments made in their favour were temporary and used to be terminated at the end of the academic session. all the petitioners had obtained training which was initially recognised and had mere derecognised by the time they obtained their diplomas that in the petitioners had undergone the course of training prior to the derecognition of the diploma.21. as already stated under an interim order of the court the petitioners were selected by the appropriate commission and have also been provisionally appointed. if thses petitioners are now thrown out of job, it will totally rain them, inasmuch as all of them have now become overage for government jobs. here it would be appropriate to refer to affidavit of lumb singh filed on 30-9-90 in s.b. civil writ petition no. 2623/84. the relevant portions of this affidavit have already been quoted above, wherein is was mentioned that the entire services rendered by him from the date of his first appointment have been taken into account for the purposes of seniority and for the purposes of increments etc. ratan singh is one of the petitioners before me and the cases of the other petitioners are not different from that of ratan singh. therefore, i am of one opinion that all the petitioners including ratan singh should be treated at per and the present petitioners should not be treated differently from other teachers who are similarly situated and to whom reference was made in s.b. civil writ petition no. 1706/84-raten singh v. state of raj. in para c-3. i may here point out that in shakti raj singh's case (supra), hon'ble s.c. agarwal, j, as he then was, granted limited relief in view of the fact that some of the petitioners were not regularly selected by the commission but had been appointed purely on temporary basis in panchayat samitis. in the present case the situation has changed because the petitioners have already been selected by the appropriate commission. in these circumstances. i declare that the training received by the petitioners is proper training for appointment to the post of crafts teacher, gr. iii under primary schools run by panchayat samitis. the petitioners shall be granted appointments on substantive basis with effect from the date each one of then was selected by the commission and they shall earn regular increments in the appropriate grade thereafter. each one of them shall also be paid salary as crafts teacher gr. iii from the date each one of them was initially appointed. the kiatus created by summer vacations in their services shall stand regularised and they shall be deemed to have been in service continuously from the date each one of them was initially appointed. they shall be paid their arrears of salary for the summer breaks during the period of their service prior to regular selection.22. the writ petition are thus disposed of in terms of the aforesaid order. there would be no order as to costs.
Judgment:

R.S. Verma, J.

1. These writ petitions raise common questions of law and fact and hence by consent of all parties have been heard together and are being disposed by a comon judgment. I need not separately narrate facts of each case and would content myself by narrating facts pleaded in S.B. Civil Writ Petition No. 1706/84-Ratan Singh v. State.

2. The petitioner is a matriculate and he took admission in the Jharphakar Tailoring College, Bombay in the Acadeamic Sessions 1977-78 for grant of Tailoring and Cutting Diploma. The petitioner could not clear the main examination conducted by the said college but he appeared at a supplementary examination and cleared the same. He was appointed on the post of a teacher on a temporary basis by an order passed by Vikas Adhikari, Panchayat Samiti, Jhadol on 29-10-79 (Anxx. 1). His services were brought to an end on 2-5-80 but he was again appointed for the Acadamic Sessions 1980-81 on temporary basis. The services were again brought to an end by order dated 7-5-81. He was again appointed for the Academic Session 1981-82 and his services were terminated at the end of the said Session. Once again by order dated 30-6-82 he has appointed as a teacher vide Annx. 2. He was similarly re-appointed for the Session 1983-84 but his services were brought to an end by an order dated 27-6-83 (Annx.3). Thereafter, the petitioner came to be appointed for the various Academic Sessions preceding 27-6-84 on intermittent basis and his services used to be terminated for the period of the summer vacation.

3. The case of the petitioner is that he expected to be appointed again as teacher under the said Panchayat Samiti at the commencement of the new Academic Session from July, 1984 but he did not receive any appointment and his information was that the Diploma obtained by him was no longer recognised and hence he was no more eligible to be appointed. The case set up by the petitioner is that initially an order was issued on 28-8-74 by the Govt. of Rajasthan (Annx. 4), whereby Jharphakar Tailoring College, Bombay was, inter alia, recognised equivalent to a Diploma in Tailoring issued by the Govt. Handicrafts Institute, Jaipur for the purposes of appointments of teachers. The recognition granted by the aforesaid order was further reiterated by the Government by an order issued on 14-3-78(Annx. 5), and annexure 6 dated 31-7-82 wherein it was, inter alia, clarified that the aforesaid college was still recognised for purpose of giving appointments.

4. It appears that Annx. 4 issued by Government was folowed by another order of the Government issued on 15-4-78, whereby the Diploma issued by the College in question had been derecognised. Though this order issued on 15-4-78 does not appear on record, yet a reference to the same has been made in Annx. 6 issued on 31-7-82. by this order Annx. 6 the Government clarified that only such persons, were eligible to be appointed as teachers in Panchayat Samiti who had passed the examination of the aforesaid college between the period 28-8-74 to 15-4-78.

5. It appears that certain teacher, namely, Ram Singh, Choon Singh, Raghuveer Singh, Daulat singh, Lumb Singh and Guman Singh brought to the notice of the Government that though they had undergone the training during the Academic Session 1977-78 and had cleared the examination at the supplementary examination, yet they had not been paid their salary. Upon such representation being made, the State Government in the Development Department issued a letter dated 28-9-83 (Annx. 7) that the representationists had passed a supplementary examination conducted at the end of the Session 1977-78 and since the Diploma was recognised for the Session, they may be paid their salaries and they may be continued in services. Similar orders in respect of certain other teachers was made on 6-9-83 vide Ex. 8.

6. It appears that an order was eventually made by the State Government in the Development and Panchayat Raj Department on 25-4-84, whareby the circular issued by it on 31-7-82 was cancelled with immediate effect and a direction was given that new teacher who had obtained diploma from the aforesaid college may not be recruited and no recognition may be given to the Diploma to be issued by the said college.

7. The case of the petitioner is that according to his information his name was included in the list of the selected teachers but matter with regard to his appointment remained under consideration because of the controversy with regard to the fact whether Diploma issued by the college was recognised one or not. It is pleaded that certain teachers selected by the commission were given appointment and was likely to be given appointment from the date of reopening of the schools after summer vacation. The petitioner's grievance is that there were other similarly situated teachers and in similar circumstances they were being continued in their post yet the petitioner was refused similar treatment. He has given names of certain persons who were serving in Panchayat Samiti, Govindgarh who were similarly situated but were allowed to continue on the post of teachers.

8. The grievance of the petitioner is that when he joined the Diploma Course of the Jharphakar Tailoring College, Bombay when the same was recognised. The recognition accorded to it could not be withdrawn retrospectively so as to affect Diplomas already issued. It was pleaded that order dated 15-4-78 could not have been retrospective in effect. It was pleaded that the respondents were precluded from treating the Diploma obtained by the petitioner as unrecognised. Had he ever known that this Diploma was not recognised, he would not have chosen to undertake studies and would not have taken examination for grant of the Diploma. By order dated 28-8-74 a representation was made by the Government on the basis of which the petitioner was made to act to his prejudice and, therefore, by subsequent orders the Diploma could not be derecognised.

9. It was pleaded that the appointment given to the petitioner in the year 1979 had been continued year by year and the order dated 25-4-84 puts an embargo on the appointment of the persons possessing the Diploma granted by Jharphakar Taoring College, Bombay. This order could not be of any avail with regard to the vacancies which had occurred prior to 25-4-84. Upon such averments, the petitioner prayed that the respondents maybe directed to give appointment to petitioner as a teacher grade-III on a substantive basis pursuant to the selection by the Selection Commission and/or on temporary basis for the coming Academic Session and for this purpose it may by declared that the petitioner is possessed of requisite qualification for appointment. The petitioner further prayed that if for any reason giving of appointment to the petitioner is delayed, the respondents may be directed to give such appointment on and from the date other selected have been given appointment with all benefits consequential thereto, such as, emoluments, seniority etc., which become due to him on account of such appointment being given on the date it has been given to others.

10. The writ petition was admitted way back on 6-7-84. No reply was filed to this writ petition on behalf of respondents no. 1 and 2 inspite of service. However, it appears that a reply was filed in S.B. Civil Writ Petition No. 1642/82-Roop Singh v. State of Rajasthan and Anr., whereby the writ petition was opposed jointly on behalf of respondents no. 1 and 2.

11. It appears that a stay application was filed by petitioner Ratan Singh being S.B. Civil Misc. Stay Petition No. 1638/84, wherein after hearing the learned Counsel for the parties a direction was given as follows:

Heard learned Counsel for the parties. Respondent No. 2 is directed to provisionally consider the petitioner for selection for the post of craft tailoring teacher Gr. III and if the petitioner is selected he may be given provisional appointment on the said post. While making the said selection the respondent no. 2 will treat the diploma held by the petitioner as duly recognised.

It appears that petitioner has been given appointment and has been continued in service in pursuance of the aforesaid direction issued by this Court as would be evident from an affidavit moved by Lumb Singh in S.B. Civil Writ Petition No. 2623/84-Lumb Singh v. State of Rajasthan on 30-9-90. The relevant paragraphs of this affidavit reads as follows:

2. It may be stated that after filing of the writ petition I was selected by the Service Selection Commission, Jaipur. That was in March, 1985, consequent to which I was given appointment by the Panchayat Samiti vide order dated 1-4-1985 pursuant to this appointment I and the other petitioners in writ petitions No. 1640/84, 1641/84, 1642/84, 1643/84, 1707/84 and 1708/84 are continuing in service and are being paid salary in the regular pay scale as hitherto before.

3. Reference may be made to what happened in S.B. Civil Writ Petition No. 1706/84-Ratan Singh v. State of Rajasthan.

3/a. In the case of Shri Ratansingh a stay order was made by the Court on 6-7-1984 directing the Respondents to keep one vacancy of craft teacher vacant for the petitioner Ratan Singh.

3/b. Thereafter my counsel gave a notice to the concerned Panchayat Samiti i.e. Panchayat Samiti, Bhim in which I and other petitioners in the aforesaid writ petitions except of Shri Ratan Singh were employed and also to Panchayat Samiti, Jhadol where Shri Ratan Singh was employed.

3/c. That whereas Panchayat Samiti, Jhadol, proceeded to give appointment to Shri Ratan Singh from July, 1984 the Panchayat Samiti, Bhim did not choose to give appointment to me and other petitioners till we were selected and appointed with effect from 1-4-1985.

3/d. Shri Ratansingh aforesaid has since been transferred in Panchayat Samiti, Bhim and the entire services rendered by him from the date of his first appointment has been taken into account for the purpose of seniority and for the purposes of increments etc.

It may be stated that this affidavit has not been controverted on behalf of the respondents in any way.

12. Since the non-petitioners did not chose to file a reply to the writ petition of Ratan Singh, I may here briefly indicate the pleas which had been taken by them in S.B. Civil Writ Petition No. 2623/84 Lumb Singh v. State of Rajasthan, whose case stands on the same footing as the case of the petitioner in all the writ petitions. The thrust of the reply is that the petitioner did not obtain Diploma before 15-4-78 when recognition to the Diploma of the concerned college was cancelled. As such the petitioner, was not eligible to be appointed as a teacher or a permanent basis. It was submitted that the petitioner was never selected by the Rajasthan Panchayat Service Selection Commission (for short RPSSC) and, therefore, in no event he could have been continued in service for indefinite period. Under the Service Rules a Panchayat Samiti can give appointment for a period of six months only and then period of six months can be extended for further six months if the District Establishment Committee concures in the same. It was averred that temporary appointment could not-be continued for a period exceeding 12 months and hence were liable to be terminated as soon as candidates selected by RPSSC became available. The appointment of the petitioner was only on a purely temporary basis till duly selected candidates were available. It is averred that the basic consideration in terminating the services of the petitioner were the terms of the appointment and the rules applicable. It was submitted that Diploma of the concered Institution was recognised by order dated 28-8-74 and its recognition was withdrawn on 15-4-78 and persons who had obtained Diploma during this period were alone to be considered for appointment. It was submitted that the petitioner could not get preference ever the selected candidates and hence could not claim appointment as of right. It was submitted that the petitioner had only a right to be considered and had no right to be selected against a post. It was denied that order dated 15-4-78 had been given any retrospective effect. It was denied that there was no hostile discrimination against the petitioner.

13. Upon such picas the parties have argued this bunch of writ petitions. I have heard the learned Counsel for the petitioner as also the learned Asstt. Govt. Advocate in details.

14. The learned Counsel for the petitioner submits that the case of the petitioner is covered by a S.B. decision of this court rendered in S.B. Civil Writ Petition No. 1614/86-Shakti Raj Singh v. State of Rajasthan and Anr. and Ors. connected 31 writ petitions which were disposed of by Hon'ble Mr. Justice S.C. Agarwal, as he then was, on January 16, 1987 at Jaipur Bench. He submits that ratio of that case squarely applies to the facts of these cases and all the writ petitions deserve to be accepted in terms of the aforesaid order. Reliance has also been placed upon Suresh Pal and Ors. v. State of Haryana and Ors. : AIR1987SC2027 , Chandan Mai Nawal v. State of Raj. and Anr. 1986 (4) SLR 337, D.B. Civil Petition No 430/87-Gokul Ram v. The State of Raj. decided by Hon'ble M.C. Jain and Hon'ble Milap Chandra, JJ.

15. Learned Asstt. Govt. Advocate vehemently opposes these writ petitions. He submits that though similar cases were disposed of by Hon'ble Mr. Justice S.C. Agarwal, as he then was, on January 16, 1987 and therein directions were given in Shakti Raj Singh's case (supra), it would not be proper to accept the present writ petition in view of judgment rendered by the Apex Court in K. Jagadeesan v. Union of India : (1990)ILLJ495SC . He has placed further reliance upon Ram Sukh and Ors. v. State of Raj. and Ors. with Aprashikshit Adhyapak Sangh and Anr. v. Panchayat Samiti, Gogunda and Anr. : (1990)ILLJ107SC , He submits that the Government if empowered to amend the service rules at its sweet will and by such amendment retrospective effect can be given to such amended rules. He submits that K. Jagadeeshan's case (supra) could not have been considered by Hon'ble Mr. Justice S.C. Agarwal, as he then was because the judgment in Shakti Raj Singh's case (supra) was rendered on 16-1-87. He submits that in view of K. Jagadeeshan's case (supra) these writ petitions must fail. He further submits that in Ram Sukh's case (supra) the Hon'ble Supreme Court has taken a view that untrained teachers could not be 'proper substitute' for trained teachers and hence no relief could be granted for making the petitioner permanant. He, therefore, submits that all these writ petitions should be dismissed with cost, in reply, the learned Counsel for the petitioner submits that K. Jagadeeshan's case (supra) has no bearin, on the present case, because in the present case the qualification for appointment as teachers has not been changed by a rule made Under Article 309 of the Constitution of India. He submits that K. Jagadeeshan's case (supra) is applicable when rules made Under Article 309 are changed. In the present case, it is only the circular of the Government which has retropsectively withdrawn recognition to a qualification which was previously recognised by it. With regard to case of Ram Sukh (supra), he pointed out that in that case the petitioner were out of job and it was in these circumstances that the Hon'ble Apex Court declined to grant any relief to the petitioner observing that 'untrained teachers can never be proper substitute by trained teachers.' He submits that in the present case, the petitioners cannot be called untrained, in as such as they have already undergone proper training on the basis of which other persons similarly situated were duly selected and appointed. He further specifically refers to the order passed in S.B. Civil Writ Petition No. 1706/86-Ratan Singh v. State on 21.9.84 by Hon'ble Mr. Dave, J, which reads as follows:

Respondent No. 2 is directed to provisionally consider the petitioner for selection for the post of craft tailoring teacher Gr. III and if the petitioner is selected he may be given provisional appointment on the said post, while making the said selection the respondent No. 2 will treat the diploma hold by the petitioner as duly recognised.

It is submitted that in pursuance of the aforesaid order all the petitioners have been duly selected and have been given provisional appointments on the post of craft tailoring teacher Gr. III. It is submitted that the petitioners have served for long terms and if they are thrown out of job now it would be highly inequitable and unjust becuase all of them have become overage by now.

16. I have considered the rival submisson and have perused the material placed before me. I have also considered the various ruling cited before me. The petitioners in all these cases took admission in the Academic Session 1977-78 for the grant of Tailoring and Cutting Diploma granted by the Jharphakar Tailoring College, Bombay. Unfortunately, the petitioners could not pass the main examination conducted at the end of this sessions but cleared the same subsequently at a supplementary examination. It is an admitted position before me that under the relevant rules the qualification prescribed for appointment as teacher grade-III is 'Matriculate.' However, rule does not specify the nature of the training. In the absence of express provisions in the rules prescribing the nature of the training it was open to the State Government to recognise by executive order the Diploma of Jharphakar Tailoring College, Bombay as training for appointment on the post of primary school teacher. In fact this was done by the State Government when the State Government by issuing circular Annx. 4 on 28-8-74, recognised the-Diploma granted by Jharphakar Tailoring College, Bombay. That this Diploma had been recognised by the Government becomes clearer by the circular Annx. 5 issued by the Government as late as 14-3-78, wherein it was clarified that Diploma issued by the institutes mentioned in the letter were still recognised. This letter specifically mentions Jharphakar Tailoring College, Bombay as one of the institutes whose Diploma was so recognised. It appears from Annx. 6 issued by the Govt. that the recognition to these Diplomas after 15-4-78 was withdrawn. However, the petitioners in these writ petitions had already undertaken study for the aforesaid Diploma during the Academic Session 1977-78. All of them were appointed on different dates as Asstt. Teachers Gr. III on the basis of such Diplomas, even though such appointments were temporary and used to last only during Academic Sessions and used be brought to an end at the end of the Sessions. I have already extracted modified stay order granted by Hon'ble Dave, J on 21-9-84 in S.B. Civil Misc. Stay Petition No. 1638/84 in S.B. Civil Writ Petition No. 1706/84. It appears that in consequence of this stay order the petitioners were selected for appointment as craft tailoring teachers grade III and all of them have been provisionally appointed on such posts after such selection.

17. Now the first question which arises for consideration is whether the recognition already granted to the Diploma could have been withdrawn retrospectively by an executive fiat of the State Government. In my opinion an administrative order of this nature cannot be treated at par with statutory rules and regulations made by the Government. This position was accepted in Chandanmal Nawal's case (supra). In this very ruling it was observed that an executive order of such a nautre could not be held to be effective from an earlier date. A similar view was taken in Gokul Ram v. The State of Raj. (D.B. Civil Writ Petition No. 430/87) decided by Hon'ble Mr. M.C. Jain and Hon'ble Mr. Milap Chandra, J.J. on 10-8-87. That was a case where the State Government had recognised the B.Ed, degree of Jabalpur University by order dated 21-9-67. The recognition was renewed but was withdrawn on 8-12-86. In that case, the petitioner had taken admission in July, 1986, and it was held that derecognition shall not affect the petitioner because he had already taken admission prior to the date of derecognition. In this judgment the Hon'ble Judges of the Division Bench followed the judgment of the Apex Court rendered in Suresh Pal's case (supra). In that case certificate course of a private institution was recognised by the Government for appointment to Government Service, on the basis of such recognition the petitioner had joined the particular course. During the pursuance of the course by the petitioners, the course was derecognised by the Government rendering the certificates obtained by them as useless. Hon'ble Supreme Court held that it would be unjust to refuse to recognise the certificates obtained by the petitioners. Their Lordships in such circumstances directed the State Government to recognise the certificates obtained by the petitioners and others similarly situated a result of completing the certificate course in the particular institute, for the purposes of appointment as Physical Training Instructor in Government Schools in Haryana. This ruling squarely applies to the facts of the present case and I am of the opinion that recognition once granted to the Tailoring and Cutting Diplomas issued by the Jharphakar Tailoring College, Bombay, could not have been derecognised restrospectively so as to render the certificates granted to the petitioners useless and ineffective, particularly when they had already taken admission to the course prior to the derecognition.

18. I find that Jagadeesan's case (supra) has no relevance to the facts of the present case. In that case, their Lordship considered an earlier dictum of the Apex Court rendered in T.R. Kapur and Ors. v. State of Haryana and Ors. : (1987)IILLJ25SC , wherein it was observed as follows:

An authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively.

However, in that very ruling itself, it was observed:

unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled.

In K. Jagadeeshan's case (supra), observations made in T.R. Kapur's case (supra) were explained and it was stated that 'There chances of promotion are not conditions in the chances of promotion did not tantamount to a change in the condition of service.' It was observed in K. Jagadeeshan's case that no retrospective effect had been given to the amended rule. In view of the aforesaid position K. Jagadeeshan's case (supra) has no applicability to the facts of the present case.

19. I have also carefully gone through Ram Sukh's case (supra) and I find that the said ruling has also no application to the peculier facts of the present case. In para 6 of the ruling their Lordships of the Supreme Court observed' We are not less sympathetic to the petitioners who are out of job but we cannot forget the welfare of those who are not before the Court.' This observation goes to show that the petitioners in Ramsukh's case (supra) were out of job and they wanted intervention of the Apex Court for getting appointment as teachers in preference to trained teachers who had already been appointed. It was in this background that the Apex Court said 'untrained teachers can never be proper substitute to trained teacher. We are, therefore, unable to give any relief to the petitioner.'

20. The equities in the present cases are just different. As already pointed out, the various petitioner have served under different Panchayat Samitis for long periods, of the appointments made in their favour were temporary and used to be terminated at the end of the Academic Session. All the petitioners had obtained training which was initially recognised and had mere derecognised by the time they obtained their Diplomas that in the petitioners had undergone the course of training prior to the derecognition of the Diploma.

21. As already stated under an interim order of the Court the petitioners were selected by the appropriate commission and have also been provisionally appointed. If thses petitioners are now thrown out of job, it will totally rain them, inasmuch as all of them have now become overage for government jobs. Here it would be appropriate to refer to affidavit of Lumb Singh filed on 30-9-90 in S.B. Civil Writ Petition No. 2623/84. The relevant portions of this affidavit have already been quoted above, Wherein is was mentioned that the entire services rendered by him from the date of his first appointment have been taken into account for the purposes of seniority and for the purposes of increments etc. Ratan Singh is one of the petitioners before me and the cases of the other petitioners are not different from that of Ratan Singh. Therefore, I am of one opinion that all the petitioners including Ratan Singh should be treated at per and the present petitioners should not be treated differently from other teachers who are similarly situated and to whom reference was made in S.B. Civil Writ Petition No. 1706/84-Raten Singh v. State of Raj. in para C-3. I may here point out that in Shakti Raj Singh's case (supra), Hon'ble S.C. Agarwal, J, as he then was, granted limited relief in view of the fact that some of the petitioners were not regularly selected by the commission but had been appointed purely on temporary basis in Panchayat Samitis. In the present case the situation has changed because the petitioners have already been selected by the appropriate commission. In these circumstances. I declare that the training received by the petitioners is proper training for appointment to the post of crafts Teacher, Gr. III under Primary Schools run by Panchayat Samitis. The petitioners shall be granted appointments on substantive basis with effect from the date each one of then was selected by the commission and they shall earn regular increments in the appropriate grade thereafter. Each one of them shall also be paid salary as Crafts Teacher Gr. III from the date each one of them was initially appointed. The Kiatus created by summer vacations in their services shall stand regularised and they shall be deemed to have been in service continuously from the date each one of them was initially appointed. They shall be paid their arrears of salary for the summer breaks during the period of their service prior to regular selection.

22. The writ petition are thus disposed of in terms of the aforesaid order. There would be no order as to costs.