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Girdhar Kumar Dadhich And Another v. State Of Rajasthan And Others
Factual and Procedural Background
An advertisement dated 9-8-1998 invited applications for ten posts of Physical Education Teacher Grade III in the State of Rajasthan. The selection process awarded 10 bonus marks to candidates resident in a particular district and 5 bonus marks to candidates from rural areas. In 1999, these bonus-mark provisions were challenged before the Rajasthan High Court and, on 18-11-1999, a Full Bench declared them unconstitutional.
After that declaration, the present appellants filed Writ Petitions Nos. 1818/2001 and 1802/2001, contending that, once the bonus marks were removed, they stood at Serial Nos. 6 and 9 in the merit list. Meanwhile, this Court in Kailash Chand Sharma v. State of Rajasthan (2002) 6 SCC 562 upheld the Full Bench but, under Article 142, ordered that appointments made up to 17-11-1999 “need not be reopened”.
The State nevertheless appointed one Bhanwar Lal Mothsar in June 2003. The appellants and one Duli Chand filed separate writ petitions, all dismissed by a Single Judge on grounds of delay and laches. An intra-court appeal directed the appellants to make a representation, which was rejected on 30-9-2005. A further writ petition and intra-court appeal were both dismissed, the Division Bench holding that the matter was settled by Kailash Chand Sharma. The present civil appeal is against that Division Bench decision.
Legal Issues Presented
- Whether the protection accorded by this Court in Kailash Chand Sharma—that appointments made up to 17-11-1999 should not be disturbed—also shields appointments made later in 2003.
- Whether the appellants, who claim higher merit positions after exclusion of unconstitutional bonus marks, are entitled to appointment despite the lapse or possible non-extension of the 1998 select list.
- Whether the High Court correctly dismissed the appellants’ petitions on grounds of delay, laches and non-joinder of necessary parties.
Arguments of the Parties
Appellants' Arguments
- The High Court misread Kailash Chand Sharma; that decision protected only those appointed on or before 18-11-1999 and has no application to appointments made in 2003.
- Bhanwar Lal Mothsar’s 2003 appointment was against a vacancy that remained unfilled in 1999; hence the appellants, higher in merit, should have been appointed.
- The State had already filled the entire OBC quota in 1999; filling another OBC seat in 2003 violated the quota rules.
- Even without disturbing existing appointees, at least one vacancy still exists and could accommodate the appellants.
Respondents' Arguments
- New contentions raised by the appellants were never urged before the High Court and should not be entertained for the first time in this Court.
- The petitions are barred by delay and laches because the appellants did not approach the court in 1998-1999.
- Appointments made in 2003 filled vacant posts either for reserved categories or for candidates placed higher than the appellants in the select list; therefore no direction for the appellants’ appointment is warranted.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kailash Chand Sharma v. State of Rajasthan (2002) 6 SCC 562 | Unconstitutionality of bonus-mark scheme; prospective overruling—appointments up to 17-11-1999 not to be reopened. | Treated as controlling; High Court and Supreme Court used it to assess whether later appointments could be disturbed. |
| State of Rajasthan v. Jagdish Chopra (2007) 8 SCC 161 | Validity period of a select list ordinarily one year; vacancies must be determined annually. | Invoked to question how appointments were made from a 1998 list in 2003 without proven extension. |
| State of Bihar v. Amrendra Kumar Mishra (2006) 12 SCC 561 | Life of a panel is one year unless lawfully extended; no appointment can be made once it lapses. | Cited within Jagdish Chopra; reinforced the principle limiting the life of select lists. |
| Shankarsan Dash v. Union of India (1991) 3 SCC 47 | Even selected candidates have no vested right to appointment. | Quoted to underline that inclusion in a merit list does not confer an enforceable right. |
| Asha Kaul v. State of J&K (1993) 2 SCC 573 | Same principle as Shankarsan Dash—no absolute right to appointment merely by selection. | Referenced to buttress the conclusion that the appellants cannot compel appointment. |
Court's Reasoning and Analysis
The Court noted that the 1998 select list was prepared under rules later declared unconstitutional, but the judgment in Kailash Chand Sharma prospectively protected teachers appointed up to 17-11-1999. Eight of the ten posts had been filled before that cut-off date. The appellants sought to disturb appointments made in 2003, yet those later appointees were not parties to the present proceedings, and the full record was unavailable.
The Court found it “difficult to issue any direction” for the appellants’ appointment: (i) a select list ordinarily remains valid for only one year; there was no evidence that the 1998 list had been lawfully extended, (ii) determining whether the 2003 appointments breached the OBC quota or the revised merit order required factual inquiries the Court could not undertake for the first time, and (iii) the appellants had not raised several of their present arguments before the High Court.
Relying on Jagdish Chopra, Amrendra Kumar Mishra, and the line of cases beginning with Shankarsan Dash, the Court reaffirmed that mere inclusion in a panel or merit list does not create an enforceable right to appointment once the list’s validity has lapsed. Accordingly, no exception to the prospective overruling in Kailash Chand Sharma was warranted.
Holding and Implications
APPEAL DISMISSED
The dismissal leaves the 2003 appointments undisturbed and denies the appellants any right to appointment. The Court made no order as to costs and set no new precedent beyond re-affirming existing principles on the limited life of select lists and the absence of a vested right to appointment.
S.B Sinha, J.— Leave granted.
2. Interpretation of a decision of this Court in Kailash Chand Sharma v. State of Rajasthan (2002) 6 SCC 562 is in question in this appeal which arises out of a judgment and order dated 14-2-2006 passed by the High Court of Judicature of Rajasthan, Jaipur Bench, Jaipur in DB Civil Special Appeal (W) No. 147 of 2006.
3. Indisputably an advertisement was issued on 9-8-1998 for filling up 10 posts of Physical Education Teacher Grade III. 10 bonus marks were to be granted for candidates who were resident of a particular district, while 5 bonus marks to the candidates belonging to rural areas. Validity and/or legality of the said provision for grant of bonus marks was questioned before the said High Court by filing a writ petition in the year 1999. The question was referred to a Full Bench. A Full Bench of the said Court by a judgment and order dated 18-11-1999 held the said provision to be unconstitutional.
4. Upon declaration of the said law by the Full Bench of the High Court, the appellants herein filed two writ petitions being Nos. 1818 of 2001 and 1802 of 2001 before the said High Court inter alia contending that in view of the said Full Bench decision, their position would be at Serial Nos. 6 and 9 in the merit list. The said writ petitions remained pending.
5. This Court in Kailash Chand Sharma (2002) 6 SCC 562 while upholding the decision of the Full Bench to the effect that grant of such bonus marks was unconstitutional, in exercise of its jurisdiction under Article 142 of the Constitution of India, thought it fit and proper to invoke the doctrine of prospective overruling, stating:
“2. The appointments made up to 17-11-1999 need not be reopened and reconsidered in the light of the law laid down in this judgment.” (para 46)
6. Allegedly, the State of Rajasthan appointed Bhanwar Lal Gosar (Mothsar) by an order dated 12-6-2003. Two writ petitions were filed by the appellants. However, in the meanwhile one Duli Chand had filed a writ application being SB Civil Writ Petition No. 1401 of 2003 before the High Court. A learned Single Judge of the High Court dismissed the said writ petition on 17-2-2003 opining that the same was barred by delay and laches. Following Duli Chand, the appellants' writ applications (Civil Writ Petitions Nos. 5510 of 2003, 1818 of 2001 and 1802 of 2002) were also dismissed by the same learned Judge by an order dated 5-12-2003.
7. Aggrieved by and dissatisfied therewith, the appellants filed an intra-court appeal being DB Special Appeal (W) No. 103 of 2004 which was disposed of by a Division Bench of the High Court giving liberty to the appellants to make a representation to the authority concerned within ten days with a direction to the authority to dispose of the same within three months thereafter.
8. The appellants submitted their representations on 10-7-2005 which were rejected by the respondents by an order dated 30-9-2005. The appellants challenged the said order before the High Court by filing yet another writ application being SB Civil Writ Petition No. 9253 of 2005, which was dismissed by a learned Single Judge of the said Court following the order passed in Duli Chand.
9. The appellants preferred an intra-court appeal thereagainst. A Division Bench of the High Court, however, by reason of the impugned judgment and order refused to interfere in the matter on the premise that the issue stands squarely covered by the decision of this Court in Kailash Chand Sharma (2002) 6 SCC 562.
10. Mr M.R Calla, learned Senior Counsel appearing on behalf of the appellants, would submit:
(i) The Division Bench of the High Court misread and misinterpreted the decision of this Court in Kailash Chand Sharma (2002) 6 SCC 562 insofar as it failed to take into consideration that the same covered the cases of only those employees who were appointed on or before 18-11-1999.
(ii) Bhanwar Lal Mothsar having been appointed only in the year 2003 against the vacancy which remained to be filled up, Kailash Chand Sharma (2002) 6 SCC 562 cannot be said to have any application whatsoever.
(iii) The contention of the respondents that two vacancies filled in the year 2003—one against the OBC quota and another against the general quota by the persons who were placed higher in the select list than the appellants was valid in law, cannot be accepted as the respondents had already appointed four persons against the OBC quota in the year 1999 itself.
(iv) As a vacancy still exists, even without disturbing the existing appointees, the appellant(s) can be accommodated.
11. Mr Navin Singh, learned counsel appearing on behalf of the respondents, on the other hand, would contend:
(i) The contention raised by the appellants having not been raised before the High Court, the same should not be allowed to be raised for the first time before this Court.
(ii) The appellants having not filed any writ petition in the year 1998-1999 the High Court had rightly dismissed the writ petition as being barred by delay and laches.
(iii) Appointments having been made on the vacant posts only in relation to the candidates of the reserved category and/or who had obtained higher position in the select list, the appellants cannot be directed to be appointed at this stage.
12. Before adverting to the rival contentions raised by the parties we may notice that according to the appellants even today their exist two vacancies. The purported chart prepared by the appellants and the records placed before us show some discrepancy. At this stage, thus, it is not possible for us to go into the details thereof particularly when the candidates already appointed are not parties before us.
13. The select list was prepared in the year 1998. In our opinion it would be difficult to issue any direction for appointment of the appellants herein at this stage. Select list was prepared keeping in view the rules as they existed. The said rules might have been declared ultra vires but as indicated hereinbefore this Court in exercise of its jurisdiction under Article 142 of the Constitution of India though it fit to give a prospective effect thereto. It did so inter alia for the purpose of protecting the services of those teachers who had already been appointed and had been in service for a few years. Out of ten posts, eight teachers were appointed on or before 18-11-1999 which was the cut-off date.
14. Indisputably the merit list was modified in terms of the dicta laid down by this Court in Kailash Chand Sharma (2002) 6 SCC 562. The question as to whether the fresh appointees who are, having regard to the said modification, required to be appointed on the premise that they are placed higher in the select list than the appellants or not, in our opinion, cannot be gone into by us for the first time since such a contention had never been raised before the High Court. The entire records of the matter, furthermore, are not before us.
15. It is stated that two appointments were made in the year 2003—one against OBC quota and another against general quota. It is not possible for us to go into the question as to whether the entire quota for appointment in the category of OBC was filled up in the year 1998-1999 itself and thus appointment made against the vacant post from the said quota is illegal or not. The respondents concerned are not parties before us. We have not been informed as to whether any other person has been left out from the original merit list
16. Furthermore, the select list would ordinarily remain valid for one year. We fail to understand on what basis appointments were made in 2003 or subsequently. Whether the validity of the said select list was extended or not is not known. Extension of select list must be done in accordance with law. Apart from a bald statement made in the list of dates that the validity of the said select list had been extended, no document in support thereof has been placed before us.
17. In State of Rajasthan v. Jagdish Chopra (2007) 8 SCC 161 this Court held:( and 11)
“9. Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although Rule 9(3) of the Rules does not specifically provide for the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent years could be filled up from the select list prepared in the previous year and not in other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar v. Amrendra Kumar Mishra (2006) 12 SCC 561 this Court opined:
‘9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel.’
It was further held: (Amrendra Kumar case (2006) 12 SCC 561)
‘13. The decisions noticed hereinbefore are authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period.’
11. It is well-settled principle of law that even selected candidates do not have legal right in this behalf. (See Shankarsan Dash v. Union of India (1991) 3 SCC 47, (1991) 17 ATC 95 and Asha Kaul v. State of J&K (1993) 2 SCC 573, (1993) 24 ATC 576.)”
18. For the reasons aforementioned, we do not find any merit in this appeal, which is dismissed accordingly. However, in the facts and circumstances of the case there shall be no order as to costs.
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