IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1749 of 1997 1.RAJESH KUMAR JHA, son of Sri Deo Narayan Jha, resident of Manikpur, P.S. Kurhani, District Muzaffarpur. 2.Renu Devi wife of Sri Ashok Kumar, resident of Hari Shankar Maniyari, P.S. Maniyari District Muzaffarpur. Versus 1.THE STATE OF BIHAR 2.The Commissioner-cum-Secretary, Department of Education, Govt. of Bihar, Patna. 3.The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. 4.The Special Director (Basic and Training) Human Resources Department, Govt. of Bihar, Patna. 5.The Director Primary Education, Bihar, Patna. ----------- 10 08.07.2010 Heard Mr. Chitranjan Sinha, learned senior counsel for the petitioners and counsel for the State. In this writ application prayer of the petitioners reads as follows:- “That this writ application is being filed for issuance of a writ in the nature of certiorari quashing the order, as contained in Annexure-9 to the writ application and further for issuance of a writ in the nature of mandamus commanding the respondents to appoint the petitioners and to pay them salary for the period, they have been forced to remain out of service passing an order similar to the order, as has been passed in C.W.J.C. No.6652/95, as contained in Annexure-10 to the writ application giving the petitioners all legal and consequential benefits flowing there from.” Mr. Chitranjan Sinha, learned senior counsel appearing on behalf of the petitioners while pressing for the aforementioned relief would frankly concede that case of petitioner no.1 will have no merit if the qualification of being trained was the criteria for appointment on the post of teacher in a Basic School. He, however, would like to rely on the terms of the 2 advertisement which would go to show that there was also prospect for consideration of untrained candidate in the event of non availability of the trained candidate. It is the case of the respondents and not controverted by the petitioners that whosoever was appointed in terms of the advertisement were trained persons. That by itself would be indicative of the fact that sufficient numbers of trained candidates were available for appointment against the vacant posts sought to be filled up. That being so, case of petitioner no.1 would not merit any consideration and the impugned order so far it relates to petitioner no.1 must be upheld. Mr. Sinha would then press the case of petitioner no.2 who was a trained candidate and in this context he would refer to the order of this Court as also order of the Apex Court to contend that if there was some observation made by the Courts for keeping in view of the experience and past services giving no weightage to the case of petitioner no.2 and other similarly situated persons the denial selection and appointment of petitioner no. 2 would, in fact, amount to disobedience of the order of the Courts. In order to appreciate this submission, this Court will have to first take into account that the petitioners and others were appointed on the post of Teachers in the Basic School without publication of any advertisement and undergoing any selection process and such appointment came to be cancelled under the orders of the competent authority. When such orders were 3 challenged before this Court the only relief was given to the teachers including the petitioners was that the authorities were directed to consider representation of the petitioners and decide as with regard to so called illegality in their appointment. It further appears that the matter had traveled to the Apex Court and before the Apex Court plea of the petitioners of continuing in service despite violation of the mandatory provision and the statutory rules was not accepted and the Apex Court had only given a direction that the vacancies created on termination of services of the petitioners with other vacancies may be re-advertised and the petitioners and other terminated teachers should also be considered against that advertisement. As a matter of fact, the Apex Court in that regard had clarified that at the time of consideration of cases of the petitioners the respondents shall keep in view the experience and past services acquired by them. In order to understand such direction it is necessary to quote relevant portion of order of the Apex Court:- “………Our attention is drawn to the recruitment rules framed under the proviso to Art. 309 of the Constitution by the State Government of Bihar, Department of Education Notification dated November 5, 1981, Rule 7 of the Rules provides inter alia that the earlier provisions for the appointment of Teachers of Government Basic Schools shall remain intact. From the abstract statement showing powers delegated to the Regional Deputy Director of Education, District Education Officer etc. it appears that the Regional Deputy Director is the authority competent to make temporary appointments of the Teachers of Schools of Subordinate Education Service. The Education Department was therefore not right in treating that the appointments made by the Regional Deputy Director were invalid or irregular. 4 Although the petitioners are right in contending that the appointments were made by the appropriate authorities, i.e, the Regional Deputy Director and were therefore not invalid, but the fact remains that their appointments as Teachers were per se irregular inasmuch as the posts of temporary Teachers in Government Basic Schools were not advertised in the Newspapers. The Government must adopt the usual procedure to issue an advertisement calling applications for appointment to such posts as in case of public employment any appointment without an advertisement in the Gazette or the local newspapers as required would amount to denial of equal opportunity in the matter of employment and thus violated of Arts. 14 and 16 of the Constitution. Admittedly, the appointments of the petitioners were made without calling for such applications through an advertisement and were therefore irregular. In the circumstances we direct that the State Government shall issue an advertisement for filling up the posts of Teachers of Government Basic Schools in Tirhut Division within two months from today. It so advertised, the petitioners shall be at liberty to apply for these posts and the District Superintendent of Education while making the appointments shall keep in view their experience and post service.” Mr. Sinha, in fact, by relying on the aforementioned order of the Apex Court would submit that the respondents were required to consider the cases of terminated teachers separately in fact when the panel was also prepared separately for 165 persons, at least any one of them should have been appointed. He, would also contend that none of the terminated persons were appointed in course of selection which according to him would be demonstrative of the fact that the respondents were pre-determined to edge out the terminated persons. In the opinion of this Court, even if statement as with regard to non appointment of the terminated teachers is taken to be 5 logical conclusion, that would not make any difference in the case of petitioner no.2. The authorities while deciding the case of petitioner no.2 has recorded finding that she belongs to the general category and in the general category last person appointed amongst 342 persons in the panel had secured 1477 marks, whereas, total marks of petitioner no.2 was only 1430. Once this position becomes clear that petitioner no.2 was not having same merit as was the last candidate, in the opinion of this Court, the direction of the Supreme Court could not have been given any benefit to him inasmuch as, such direction of keeping in view either of the experience or past service could have only been taken into consideration for giving preference to petitioner no.2 if he had secured equal marks as that of the last candidate. There being difference of at least 47 marks between her and the last candidate, it would be difficult for this Court to envisage situation that the Supreme Court had directed for giving such huge weightage of almost 5% of the total marks. If that could have been taken into consideration before the Apex Court and probably it could have quantified such weightage but in absence thereof the observation of keeping in view the experience and the past service would only mean that if the two were equal in merit, one having experience of past service could have been given preference. Once this aspect becomes clear it would not be necessary for this Court to go into the aspect as to whether any one of 185 candidates empanelled separately amongst the terminated 6 teachers were appointment or not. The fact of the matter is that petitioner no.2 had secured less marks than the last candidate of her category and that should be the end of the matter. This Court can not examine cases of such other persons as no one has come before this Court with the said grievance. Judged in this background, this Court would find the impugned order as a whole rejecting prayer of the petitioners for appointment does not suffer from any error and consequently, this writ application being devoid of any merit must be and is, accordingly, dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)