Shiv Raj Pareek and ors. Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]sections 163-a & 166; [r.m. lodha, shiv kumar sharma & ashok parihar, jj] award passed by tribunal under section 163-a nature of held, the award passed by tribunal under section 163-a of act under structured formula is a final award and once that award has been passed, no further award under chapter xii of m.v. act could be passed by the tribunal. the provisions contained in sections 163-a and 166 of act provide for two different modes but the two modes cannot simultaneously be invoked by the claimants. the claimant must opt/elect to go either for a proceeding under section 163-a or under section 166 of the m.v. act but not under both. the award under section 163-a is final and cannot be described as interim and no proceeding for compensation under section 166 can be undertaken once the award is declared under section 163-a. - the petitioner also relied upon few more orders like orders dated 25.2.2002 and 11.4,2002 etc. 4. the writ petitions can be bifurcated into two categories because of the simple reason that the state government invited applications of the ex-ad hoc teachers for appointment to the teachers grade iii and the last date for submitting the application by the teachers was 15.3.2003. the writ petitions have been filed by the persons who submitted their applications by or before 15.3.2003 as well as who submitted their applications after 15.3.2003. in most of the writ petitions, replies were filed virtually admitting the entire claim of the petitioners with a plea that in view of the order dated 31.7.2003, presently no appointments are given and whenever further directions will be issued, the process of appointment shall be undertaken by the respondents. 7. changing the view, the state submitted in this subsequent reply that in fact the large number of petitioners jointly filed the writ petitions whereas factual aspect and merit of each of the petitioner is different, in view of the fact that some of the petitioners have worked only for few days, like only for 5 or 13 days and have been clubbed with who completed 240 days or even more. 2002 (1) wln 97 which was the decision of this court rendered on 12.2.2001, whereas the petitioners has placed on record the document showing that the various zila parishads not only recommended the names of the teachers for appointments but even gave appointment to various contract teachers after the decision of this court in renu sharma's case (supra). therefore, the petitioners are arbitrarily denied benefit which has been given to other persons who are similarly situated to the petitioners. virendra kumar jayantibhai patel (1997)iillj765sc also held that if any room given for equity or sympathy, recruitment rules would become nugatory and field would be left open for nepotism, not safe to bend arms of law for adjusting equity. therefore, even if the state government gave appointments or zila parishads recommended names of any of the contract teachers for appointment to the teacher grade iii, against the rules which were in existence before 16.11,1999 and provided appointments to ineligible persons even after decision of this court in ram sharma's case, that cannot be a ground to seek relief by claiming parity, equality or equity as laid down by the hon'ble apex court in the cases referred above. in fact the petitioners failed to establish their any legal right for seeking appointments.prakash tatia, j.1. this bunch of writ petitions has been filed on common grounds by various incumbents who are seeking appointment on the post of teachers grade-ill on the basis of policy decision taken by the state for giving regular appointment as teacher grade iii but the petitioners could not get the appointments because of the order passed by the state government dated 31.7.2003, copy of which is placed on record as annexure- r/l in s.b. civil writ petition no. 12/2003, wherein it is stated that the education minister called a meeting of the district education officers and instructed that no steps be taken for appointing teachers out of the contract teachers till further orders.2. according to the petitioners, a scheme was floated by the state government in the year 1985 for the appointment on the post of teacher grade iii on contract basis on a consolidated salary of rs. 400/- per month. large number of persons including the petitioners were provided appointments on the posts of teacher grade iii under the said scheme on the consolidated salary of rs. 400/- per month. it is stated by the petitioners that during the summer vacation, their services were discontinued/terminated and on the commencement of the next academic year in the month of july, they were re-appointed. the petitioners, therefore, deprived of the salary of that period. it is stated that even experience certificates were issued to some of the petitioners by the competent authorities. in s.b. civil writ petition no. 12/2003, the petitioners produced copy of the experience certificate to show that he was appointed on 10.4.1985 and his services were discontinued on 3.1.1992. according to the petitioners, aggrieved against the low consolidated salary of rs. 400/- per month, several writ petitions were filed before the high court which were decided by the division bench by order passed in d.b. civil writ petition no. 2795/1987 wherein it has been held that the teachers appointed in panchayat samitis on a consolidated salary of rs. 400/- per month are entitled to receive their salary in the regular pay scale of teachers grade iii working under the state government. according to the petitioners, the state government obeyed the order of this court and started making payment of salary to such teachers in the regular pay scale of the post in question. the division bench also directed the state government to impart training by correspondence course to such teaches who are working on the consolidated salary of rs. 400/- per month. this direction was also complied with in the most of the cases but the petitioners were not given benefit of this training course (obviously because they were not given benefit of this training course (obviously because they were not in service). the petitioners also stated in the writ petition that out of 11 petitioners in s.b. civil writ petition no. 12/2003, two petitioners ram kumar joshi and shiv raj pareek submitted s.b. civil writ petition no. 2840/1995, which was referred to the larger bench in view of the conflicting judgments of this court and ultimately the said writ petition was dismissed by the high court as not pressed. according to the petitioners, the controversy involved in that writ petition was only with respect to payment of arrears of salary from the date of initial appointment and for imparting training by correspondence course. it is stated that about 80 of the similarly situated teachers were given opportunity to get the training by correspondence course but the petitioners who are few in number have not been given this opportunity to take the training by correspondence course, which is according to the petitioners, due to in action on the part of the state government.3. according to the petitioners, the cabinet took a decision for providing relaxation in the provisions of rule 296 of the rajasthan panchayati raj rules, 1996 and it is decided that the persons who were appointed on contract basis and who have served for more than 240 days in a calendar year, they shall be taken back in service provided they fulfill requisite educational qualification and teachers training. to give effect, an order was issued on 30.9.2000. the said decision was again conveyed to the concerned authorities vide letter dated 7.11.2001 having number 1228. by this letter, directions were issued to all the concerned authorities that further relaxations in the rules have been made and it is made clear that the candidates who have served on the post of teacher grade iii on contract basis, shall also be re- employed and while remaining in service, they are required to acquire necessary eligibility within a period of three years. the petitioner also relied upon few more orders like orders dated 25.2.2002 and 11.4,2002 etc. to show that it was the conscious decision statement of the state government, rather the policy decision of the state government taken by the cabinet that the contract teachers who once served should be offered appointment on regular basis. not only this but that order was complied with and large number of persons were given appointment following the said decision of the state government. when the petitioners came to know that the appointment are being given by the state government, they also submitted their request letters that they may also be given appointment on the post of teacher grade iii. despite their entitlement for the appointment on the post and parity with other persons, the respondents do not give appoint merit to the petitioners, therefore, the petitioners submitted writ petitions seeking directions against the grant of approval of various zila parishads for providing appointments to the petitioners on the post of teacher grade iii with all consequential benefits.4. the writ petitions can be bifurcated into two categories because of the simple reason that the state government invited applications of the ex-ad hoc teachers for appointment to the teachers grade iii and the last date for submitting the application by the teachers was 15.3.2003. the writ petitions have been filed by the persons who submitted their applications by or before 15.3.2003 as well as who submitted their applications after 15.3.2003. in most of the writ petitions, replies were filed virtually admitting the entire claim of the petitioners with a plea that in view of the order dated 31.7.2003, presently no appointments are given and whenever further directions will be issued, the process of appointment shall be undertaken by the respondents. the order dated 31.7.2003 has been taken as ban against the appointment of the contract teachers. a detail rejoinder has been filed in s.b. civil writ petition no. 12/2003 by the petitioners and the petitioners took a plea that by the order dated 3.1.7.2003 (ann.r./1), the appointments were stayed till further order but in the order no reasons have been assigned. it is submitted that the decision of minister is not binding against the cabinet decision and, therefore, the appointments cannot be withheld on the basis of such an order issued on oral instructions of the minister of the department. it is also submitted that in some of the zila parishads, appointments have been made even after the order dated 31.7.2003. the petitioners also submitted that in s.b. civil writ petition no. 502/2003-nathu ram godara v. state of raj. and ors. validity was challenged regarding providing re-employment to the contract teachers. the state filed the reply stating therein that the persons who are already working on contract basis, they were given appointments pursuant to cabinet decision dated 7.11.2001. the said decision was admitted to be just, proper and reasoned one. the copy of the reply has been placed on record by the petitioner along with the rejoinder.5. it will be worthwhile to mention here that a different reply has been filed by the state and in s.b. civil writ petition no. 6014/2003. in this writ petition, the state gave background under which the decision was taken and also submitted that earlier decision was taken to give appointments to the contract teachers on regular basis and for that purpose, appropriate amendment was made in the rules of rajasthan panchayati raj rules, 1996 and which deal with the method of recruitment of teachers. rule 296 gives power of relaxation in the rules for appointment and before 16.12.1999, there was limited scope for relaxation in the rules for appointment but a notification was issued by the state government on 16.11.1999 and the scope of relaxation was enlarged to give unlimited powers to the state government in the matter of appointments. earlier it was notified that persons who worked earlier as contract teachers on fixed pay of rs. 400/- per month may be appointed on regular basis provided they have completed 240 days and if they are possessing qualifications as required by law but condition of working of 240 days etc. waived by an order and thereafter requirement of training was also waived. it was decided that a person who had worked as contract teacher then he could be appointed as teacher grade iii with the condition that within a period of three years, he will get himself trained. meaning thereby, the length of service rendered as contract teacher, requirements of qualification, age etc. were relaxed and some appointments were given to the contract teachers but those appointments were challenged by filing writ petition before this court and this court in s.b. civil writ petition no. 1722/2000- renu sharma v. the state of rajasthan struck down the amended provisions of rule 296 of the rajasthan panchayati raj rules, 1996. it is also stated by the respondents that the said decision was approved and followed in various other decisions of this court and even the division bench of this court in d.b. civil special appeal (writ) no. 223/2002-yogesh chandra joshi v. state of rajasthan held that such relaxation cannot be sustained, in view of the above legal position, it is submitted by the respondents that appointment could be given only as per the procedure contained in the rules of 1996 and so also on the basis of the educational and training qualifications as envisaged in the rules.6. it is also submitted by the respondents that the state government has realized that such appointments are not just and proper, hence under the instructions of the then chief minister, it was directed not to appoint teachers in such manner and so was conveyed in the meeting of the officers of the department on 17.7.2003 and then the respondents issued circular dated 19.7.2003 not to appoint teachers in such manner. according to the respondents, the rules of 1996 have been further amended vide notification dated 28.2.2004 and fresh advertisement inviting applications for appointment on the post of teacher grade iii was issued after cancelling the earlier advertisement dated 27.7.2003 which was issued for the same purpose. the similar matter also came up before this court for consideration in writ of ruga ram v. state of raj. wherein this court observed that the respondents now will further, as per amendments made in the rules vide notification dated 28.2.2004 and the requisition may be sent to r.p.s.c. at the earliest so that the recruitment withheld for a long time, may take place at the earliest. the amendment made in the mode of recruitment vide notification dated 28.2.2004 and advertisement inviting applications for appointment of teacher grade iii were also challenged before this court but all the writ petitions were dismissed by this court vide judgment dated 4.1.2005 rendered in d.b. civil writ petition no. 3654/2004- richpal singh v. state of rajasthan. after upholding of amendment made vide notification dated 28.2.2004, according to the respondents, about 31,000/-appointments have already been made.7. changing the view, the state submitted in this subsequent reply that in fact the large number of petitioners jointly filed the writ petitions whereas factual aspect and merit of each of the petitioner is different, in view of the fact that some of the petitioners have worked only for few days, like only for 5 or 13 days and have been clubbed with who completed 240 days or even more. the respondents placed on record a chart showing the qualifications and working period etc. of the petitioners as schedule-b. it is also stated that some of the petitioners are not having requisite educational qualifications and one of the petitioner in s.b. civil writ petition no. 6014/2003 (petitioner no. 5) is only secondary school pass. according to the respondents, by present writ petitions, the petitioners are in fact, want to have concession or relaxation in the rules for getting appointments and that cannot be given by issuing directions of the court by issuing writ of mandamus. the respondents also controverted the petitioners' allegation of their harassment and allegations of malafides. copy of this reply was provided to the other counsels of the other writ petitions.8. the learned counsel appearing for the petitioners-shri p.p. choudhary submitted that all pleas taken by the respondents have no application to the facts of the most of the writ petitions including the writ petitions which are having the similar facts of s.b. civil writ petition no. 12/2003. it is also submitted that the petitioner's only grievance was that despite cabinet decision to give appointments to the contract teachers, the state authorities are not giving appointments to the petitioners and in reply, the only order which has been placed on record by the respondents in s.b. civil writ petition no. 12/2003 dated 31.7.2003 purports to convey that till further orders, no appointment be given. such an interim stay cannot continue for indefinite period so as to nullify the decision of cabinet and policy decision of the state for giving appointments to the contract teachers who rendered their services earlier. it is also submitted that in reply the respondents admitted that as soon as fresh instructions will be issued, the appointments will be given, therefore, now the respondents have no right to turn round and submit that no appointments can be given. it is also submitted that though it is stated by the learned addl. advocate general before this court that subsequently the cabinet decided to authorize the chief minister to take a decision in this matter and the chief minister took a decision not to give appointment but neither the decision was placed on record nor any order in pursuance of such decision has been submitted by the respondents in any of the writ petitions. therefore, the writ petitions of the petitioners deserves to be allowed.9. the learned counsel appearing for the petitioners servashri shri p.p. choudhary, m.r. singhi, b.m. bohra, v. jain, k.r. choudhary, b.n. kalla, sanjeet purohit, vivek shah, r.s. saluja, mahipal rajpurohit, k.k. shah, p.s. bhati, vinod purohit, sumer danger, s.l. jain, sandeep saruparia, arjun purohit, kuldeep mathur and l.s. jodha, all pointed out that the state is now relying upon the judgment of this court delivered in the case of renu sharma and ors. v. state of rajasthan and ors. 2002 (1) wln 97 which was the decision of this court rendered on 12.2.2001, whereas the petitioners has placed on record the document showing that the various zila parishads not only recommended the names of the teachers for appointments but even gave appointment to various contract teachers after the decision of this court in renu sharma's case (supra). therefore, the petitioners are arbitrarily denied benefit which has been given to other persons who are similarly situated to the petitioners. to meet with the contention of the respondents, the learned counsel for the petitioners vehemently submitted that the petitioners are not seeking appointments dehors rules but the petitioners are seeking appointments under the policy decision taken by the state government itself. the petitioners are not seeking relaxation in rules but their appointments are the substantial appointments under a policy decision to prove employment to the persons who rendered their services earlier. it is also submitted by the learned counsel for the petitioners that there is no reasoned order passed denying the right of the petitioners for getting appointments and order is required to be judged by the reasons cited in the order only and the reasons cannot be supplemented even by way of pleading or even by affidavits as held by the constitutional bench of the hon'ble apex court in the case of mohinder singh gills and anr. v. the chief election commissioner, new delhi and ors. : [1978]2scr272 . all the learned counsels for the petitioners also submitted that the controversy in the renu sharma's case (supra), was entirely different and, therefore, the judgment of renu sharma (supra), is required to be read in the context in which the said judgment was delivered.10. the learned counsel shri n.m. lodha, addl. advocate general vehemently submitted that even if there was a decision of cabinet to give appointments to the contract teachers even then no appointments can be given against the rules for appointments of teachers grade iii. the state might have made efforts to give appointment to teachers and for that purpose might have amended the rule 296 but the said amendment was challenged on the ground that it confers unbridled power upon the executive which may make the statutory provision redundant and the decision given in renu sharma's case (supra) is final. the validity of the judgment of the renu sharma has not been challenged before appropriate forum, therefore, today if any order appointing the petitioners on the post of teachers grade iii is issued, that will be against the mandatory provisions of rules 1996. not only this but it will deprive the eligible candidate from getting appointment. the learned counsel for the respondents submitted that same view was taken by this court in the cases of smt. sharmila pandya v. the state of raj. and ors. 2001 (5) wlc (raj.) 131 : rlw 2001(3) raj. 1630, d.b. civil special appeal (w) no. 223/2003-yogesh chandra joshi and anr. v. state of raj. and ors., decided on 4.9.2003 and in the case of state of raj. and ors. v. sanjay kumar 2003 wlc (raj.) uc 587. the learned counsel for the respondents also relied upon several other judgments in support of his contention.11. i considered the learned counsel for the parties and perused the judgments relied upon by both the learned counsels.12. hon'ble the apex court in the case of a.k.e. society v. director of school education air 1989 sc 183 held that no untrained teacher should be appointed because the teacher alone could bring out the skills and intellectual capabilities of students. he is the engine of the educational system and he is a principal instrument in awakening the child to cultural values. the ill trained or substandard teachers would be detrimental to our educational system, if not a punishment on our children and the same view was taken when the matter from rajasthan reached to the hon'ble supreme court in the case of ram sukh and ors. v. state of rajasthan and ors. : (1990)illj107sc , wherein hon'ble the apex court held that observations made in the case of a.k.e. society v. director of school education (supra), equally relevant to primary school teachers and the primary school teaches are of utmost importance in developing a child's personality. this court in the case of indira kumari arya v. the state of rajasthan and others s.b. civil writ petition no. 5655/1992, decided on 21.7.1993, directed the state government to issue instructions to the zila parishads and panchayat samitis that no untrained teacher shall be appointed as general teacher in the service of the panchayat samitis. not only this but this court directed that if the untrained teachers are continuing in service, steps should be taken to fill posts held by such untrained persons by regular selection. if the selected hand is not available, then at least trained persons should be appointed.13. the hon'ble supreme court in the case of sukhdev singh v. bhagataram : (1975)illj399sc held that the statutory authorities cannot deviate from the conditions of service. any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violation of rules and regulations. the existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. therefore, no relief can be granted to the petitioners on the ground of alleged discrimination or violation of article 14 of the constitution because the concept of equality as envisaged under article 14 is a positive concept which cannot be enforced in a negative manner, as held by the hon'ble supreme court in the case of state of bihar v. kameshwar prasad singh and anr. : air2005sc2755 and the hon'ble apex court in the case of m/s anand buttons ltd. etc. v. state of haryana and ors. : air2005sc565 held that two wrongs do not make one right and in the facts of that case the state government wrongly decided to give benefit to some other units on the basis of construction put up, does not entitle the petitioner units to claim similar relief. therefore, even if some appointments were given dehors rules and contrary to the law laid down by the courts, the petitioners cannot claim the benefit by invoking article 14 in their favour.14. the hon'ble apex court in the case of ahmedabad municipal corporation v. virendra kumar jayantibhai patel : (1997)iillj765sc also held that if any room given for equity or sympathy, recruitment rules would become nugatory and field would be left open for nepotism, not safe to bend arms of law for adjusting equity. in the case of richhpal singh v. state of rajasthan 2005 (1) wlc (raj.) 548 : rlw 2005(1) raj. 682, plea for relaxation was considered in detail by the division bench of this court and in the same judgment plea of relaxation of rules was also considered and in the light of the reasonings given in richhpal singh (supra), it will be unjust to give appointments to the petitioners who rendered their services as contract teachers only that too as back as in the year 1984, i.e., more than 20 years ago and for short period. even giving training to these persons to make them qualified cannot be ordered because of the reason that hundred and thousands of eligible candidates are available for the post and giving preference to these petitioners, those eligible candidates will be deprived from getting opportunity of appointments to the post.15. it is true that in s.b. civil writ petition no. 12/2003 and identical writ petitions, the state submitted replies with only plea that due to the ban imposed by communication dated 31.7.2003, the appointments are not given to the various contract teachers but at the same time, the pleas which have been taken in the subsequent replies by the state government cannot be ignored in view of the reply which has been filed by the state in s.b. civil writ petition no. 12/2003 because of the simple reason that even if the parties agree for an order, it is not obligatory upon the court of law to pass the order merely on the basis of the said agreement particularly where the parties are seeking relief on the basis of their constitutional right. the court cannot ignore the rules or the law which is relevant for the purpose of deciding the cases and which might not have been brought to the notice of the court by any of the parties.16. so far as the contentions of the petitioners that they rendered their services as contract teachers from the year 1984 and lastly upto the year 1989 is concerned, this fact became not much relevant because of the fact that if the initial appointment is not legal or has not been made by following the procedure of law or the appointment is not regular appointment, the persons served even for longer period cannot claim his regularization on the basis of length of his service. in these cases, the petitioners are not claiming regularization of their service on the basis of length of their past service. the petitioners are claiming that the decision was taken by the state to give appointments to the various persons who served as contract teachers under the scheme which was floated in the year 1984-85 and is known as black-board scheme. it is not in dispute that for appointment of teacher grade iii, the rules are framed under the panchayati raj which are known as rajasthan panchayati raj rules, 1996. the state has power to amend the rules, is not in dispute but when amendment of rule is hit by the constitutional provisions, the amendment can be struck off. in these cases, it is not in dispute that the contract teachers were given appointments in a particular scheme known as black-board scheme and they were engaged as teachers on consolidated amount of rs. 400/- per month. the scheme continued only upto 1987 but the appointments were given even upto the year 1992, is the admitted case of the state. the petitioners since earlier filed the writ petitions only because of the fact that the state authorities were giving appointments to the contract teachers in pursuance of the cabinet decision dated 13.9.1999 and they might not be aware of the change in stand of the state in relation to the appointments of the contract teachers despite subsequent cabinet decision but when reply was filed by the state in s.b. civil writ petition no. 6014/2003 and the copy of the reply was supplied to other counsels, the petitioners cannot take a plea that simply because the state in the earlier filed reply has not taken the pleas which have been raised in subsequently filed reply, therefore, cannot raise the pleas in writ petition no, 12/2003 and connected writ petitions in which identical replies have been filed because of the simple reason that the pleas taken by the state are more founded upon the legal position rather, than factual. even if for time being we ignore the subsequent decision of the state government authorising the chief minister to take decision in matter and the chief minister took the decision of not giving appointments to contract teachers more, even then it was the duty of the petitioners to show under which provision of law they can get appointments particularly when appointments are governed by the rules of 1996 as amended time to time. some of the petitioners even have no educational qualification so as to make them eligible for appointments on the post and almost all the petitioners are not trained teachers as the petitioners are seeking direction for imparting training to them. the petitioners' counsels relied upon the rule which was amended by the notification dated 16.11.1999 but that notification was quashed by this court in the case of renu sharma (supra), and the same view was taken in various judgments of this court including division bench judgment of this court referred above. therefore, even if the state government gave appointments or zila parishads recommended names of any of the contract teachers for appointment to the teacher grade iii, against the rules which were in existence before 16.11,1999 and provided appointments to ineligible persons even after decision of this court in ram sharma's case, that cannot be a ground to seek relief by claiming parity, equality or equity as laid down by the hon'ble apex court in the cases referred above. there appears no reason for issuing a direction to the state government for giving appointments to such large number of petitioners who rendered their services in past as teachers and against consolidated amount of rs. 400/- per month which will deprive the eligible candidates from getting the appointments. in fact the petitioners failed to establish their any legal right for seeking appointments. even if the order dated 31.7.2003 (annex.r/1) submitted in the writ petition no. 12/2003 by the respondents is quashed, even then if any order of giving appointment to the petitioners will be given, that will be in violation to the statutory provisions of law, therefore, the judgment which was relied upon by the learned counsel for the petitioners delivered in the case of mohinder singh gill (supra), has no application to the facts of these cases. the matter of regularization and relaxation for giving appointments has been considered by the division bench of this court after considering various judgments of the hon'ble' supreme court on this issue in the case of richhpal singh (supra), and in view of the reasonings given in the above judgment, the petitioners cannot claim appointments on the post of teacher grade iii which impliedly is seeking an order of relaxation in basic qualification for appointments to the teacher grade iii.17. in view of the above reasons, i do not find any merit in all these writ petitions and all the writ petitions of the petitioners are hereby dismissed.