Vishnu Sahu vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—Since WP (S) Nos. 6797, 6032, 6114, 6251, 6256, 6267, 6289, 6294, 6302, 6324, 6365, 6491, 6492, 6500, 6501, 6502, 6562, 6563, 6567, 6573, 6605, 6606, 6664, 6672, 6713, 6720, 6740, 6767, 6795, 6799, 6800, 6801, 6802, 6803, 6804, 6805, 6806, 6807, 6808, 6809, 6810, 6813, 6814, 6815, 6822, 6823, 6843, 6846, 6851, 6875, 6890, 6898, 6934, 6951, 6952, 6958, 6967, 6974, 6979, 7022, 7055, 7117, 7135, 7155, 7320, 7323, 7367, 7371, 7387, 7422, 7529, 7562, 7571, 7604, 7605, 7606, 7607, 7608 & 7647 of 2010 and W.P. (S) Nos. 73, 115, 120, 139, 237, 621, 685 & 3752 of 2011 involve common facts as well as common question of law, thus, they are being considered and disposed of by this common order. Challenge in this batch of petitions is to the advertisements dated 27-10-2010, 27-9-2010, 29-10-2010, 8-10-2010, 14-10-2010, 12-10-2010, 22-10-2010 and 21-10-2010 issued by the District Education Officers, Durg, Baloda Bazar, Dhamtari, Bilaspur, Raigarh, Kabeerdham, Janjgir-Champa and Mahasamund, respectively, for appointment on the post of Head Master of Primary Schools under the limited competitive examination for regular Shiksha Karmis Grade I, II and III. The eligibility criteria provided in the advertisement was that all the Shiksha Karmis Grade I, II and III, should have minimum Higher Secondary pass certificate and B.Ed/D.Ed/B.T.I. trained. It was provided that the Shiksha Karmis should have 7 years of experience. It was further clarified that the Shiksha Karmis posted in the schools of Department of Panchayat and Urban Administration Department, may participate in the selection process.

Learned counsel appearing for the respective petitioners would jointly submit that the advertisements impugned herein, are contrary to the provisions of the Chhattisgarh Non-Gazetted Class III Education Service (School Level Service) Recruitment and Promotion Rules, 2008 (for short ''the Rules, 2008'').

Shri Ashok Swarnakar, learned counsel appearing for the petitioners in W.P.(S) Nos. 6797, 6799, 6800, 6801, 6802, 6803, 6804, 6805, 6806, 6807, 6808, 6809 and 6810 of 2010, would submit that the experience prescribed for Shiksha Karmis does not include the experience obtained under the contract service and Guruji under the Education Guarantee Scheme run by the Rajiv Gandhi Shiksha Mission.

Shri Parag Kotecha, learned counsel appearing for the petitioners in W.P.(S) No. 6324, 6672 & 6795 of 2010 and W.P.(S) No. 237 & 621 of 2011, would submit that the Rules, 2008 is applicable to every member of service under the Rules, 2008 only. Under Rule 4 of the Rules 2008, the service shall consist of persons who at the commencement of these rules are holding substantively the post specified in Schedule I, persons recruited to the service before the commencement of these rules, and persons recruited to the service in accordance with the provisions of these rules. Thus, the Shiksha Karmis who are not holding the substantive post in accordance with the Schedule I appended to the Rule 4 of the Rules, 2008, cannot be considered as eligible candidate for promotion to the post of Head Master in Primary School. The advertisement issued by the District Education Officer, Bilaspur, adds in the essential qualification B.T.I. trained also, which is not provided in the Schedule III of the Rules, 2008. Schedule IV of the Rules 2008 provides for five years teaching experience in Government/Panchayat Schools. However, in the advertisement, 7 years experience on the post of Shiksha Karmi Grade I, II and III has been provided, which is contrary to the provisions of the Rules, 2008.

Shri Prateek Sharma, learned counsel appearing for the petitioners in W.P.(S) No. 7387 of 2010 and W.P.(S) No. 73 of 2011 would submit that direction of the respondent authorities after initiation of selection process for appointment on the post of Head Master on the basis of promotion, to treat the examination as direct recruitment applicable to Shiksha Karmis Grade I, II and III is not only contrary to the Rules, 2008, but tantamount to change of the process of selection, which is not permissible under the constitutional scheme.

Shri Manoj Paranjpe, learned counsel appearing for the petitioners in W.P.(S) No. 7647 of 2010 and W.P.(S) No. 685 of 2011, would submit that the Rules, 2008 provides that the appointment on the post of Head Master in Primary School shall be only by pro-notion. Thus, treating the same as direct recruitment without change in Rules, 2008 is not permissible and the same is unconstitutional. The reservation roster has also not been followed, though the same is mandatory and constitutional requirement. The direction dated 27-11-2010 issued by the Director, Public Instructions, Chhattisgarh to all the District Education Officers of the State of Chhattisgarh to treat the selection process as a direct recruitment for Shiksha Karmis on the post of Head Master Primary School is not justified, as once the selection process has commenced, there cannot be a change in the policy, rules or instructions, contrary to the advertisement.

Shri K.R. Nair, learned counsel appearing for the petitioners in W.P.(S) Nos. 6491 and 6492 of 2010 would submit that no employer can promote the employee of another employer. Shiksha Karmis are the employees of Jila Panchayat appointed by the Chief Executive Officer under the Shiksha Karmi Rules framed under the provisions of the Chhattisgarh Panchayat Raj Adhiniyam, 1993. The post of Head Master, Primary School, is under the School Education Department of the State Government. The post in issue for which recruitment is being done is Head Master, Primary School, under the provisions of the Rules, 2008 and they are holders of civil post. Thus, the advertisement for direct recruitment not filling up by promotion of its own employees is contrary to the rules. The advertisement prescribes 7 years teaching experience without break, when under the rules, there is no such intention as to whether there should be a break or without break. For promotion, there should be a Committee under the Rules and in the advertisement, there is no provision for the same. Initially, in the Rules, it was provided that if the list of Assistant Teacher of School Education department is exhausted, the posts will be filled by Shiksha Karmi Grade I, II and III having 7 years experience through limited examination by the Department of Panchayat and Urban Administration. Subsequently, this part was amended and the ''Panchayat and Urban Development Department'' was substituted by the ''School Education Department'', which cannot be done. If some persons have been selected on the basis of illegal advertisement, they do not have any right to continue on the post. According to the petitioner, there should be a cut off marks. In support of his contention, Shri Nair placed reliance upon the decision of the Supreme Court, rendered in Ramesh Gajendra Jadhav Vs. Secretary, Late S.G.S.P. Mandal and Others,

Shri Jitendra Pali, learned counsel appearing for the petitioners in W.P.(S) Nos. 6713 & 7323 of 2010 would submit that the experience does not mean experience as Shiksha Karmis only. The experience of teaching in other institutes may also be treated as the experience. Shri Pali placed reliance upon the decision of the Supreme Court in Mohd. Altaf (1) and others v. U.P. Public Service Commission and another (2008) 14 SCC 139.

Shri Mateen Siddique, learned counsel appearing for the petitioners in W.P.(S) Nos. 6256, 6266, 6573, 6767, 6958, 7155 & 7422 of 2010 and W.P.(S) Nos. 115, 120, 139 of 2011, would submit that the respondents authorities have prescribed the incorrect eligibility criteria and the candidates like the petitioners have deliberately been kept out. Shri Siddique would further submit that Schedule III prescribes for criteria for direct recruitment. Therefore, B.Ed/D.Ed criteria is for the direct recruitment but the same has been wrongly interpreted by the respondent authorities.

Learned counsel appearing for the other petitioners would adopt similar submissions, as aforestated.

On the other hand, Shri Y.S. Thakur, learned Deputy Advocate General appearing for the State would submit that the prescription of experience is a policy matter and the same cannot be faulted with unless the same is alleged to be against the public policy or unconstitutional. Shiksha Karmi means only Shiksha Karmi appointed in accordance with the provisions of the M.P./C.G. Panchayat Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1997, Shiksha Karmis appointed under the Chhattisgarh Municipality Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1998 and the Chhattisgarh Municipal Corporation Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1998. Thus, any other appointment either on the post of Shiksha Karmi or Guruji cannot be treated as appointment and experience obtained by the petitioners thereon as a part of experience, as the rule is clear that experience should be on the post of Shiksha Karmis Grade I, II and III for 7 years. The Shiksha Karmis of other districts can also appear in the examination and there is no bar to that extent.

The contention that use of H.B. Pencil is contrary to rules is of no significance, as in the selection process, pen/pencil, anything can be used. The prescription of qualification and the mode of selection have clearly been specified in the rules and any provision, which is contrary to the rules in the advertisement is not at all sustainable in the eyes of law. The condition of B.Ed/D.Ed has been prescribed not only for Assistant Teachers but for Shiksha Karmis also. Thus, the same cannot be held as arbitrary or unreasonable. In promotion, there is no provision for reservation of O.B.C./Women/Handicapped, but only for S.C. & S.T. which has been provided in some of the districts. It is admitted that the reservation has been provided in case of direct recruitment to the post of Head Master in District Baloda Bazar to all the categories i.e. S.C./S.T/OBC/Women. Under the rules, the Head Masters are to be recruited only through promotion as provided in Schedule III, column 5, entry 1. The feeder cadre of Assistant Teachers have been declared as dying cadre and when sufficient number of Assistant Teachers are not available, a transitory provision has been made allowing the Shiksha Karmis to enter the service through limited examination. It is admitted that Head Masters is not a promotional post of Shiksha Karmis under the provisions of Rule 6(1)(a) of the Rules, 2008. Rule 20 of the Rules, 2008 provides for interpretation that if any question arises relating to interpretation of these rules, it shall be referred to the Government whose decision thereon shall be final. Since, the rules are not under challenge, thus, no provision can be held as arbitrary, unreasonable or unconstitutional. It is further submitted that if it is found that the advertisements for appointment by direct recruitment are not in accordance with the rules, the State may be permitted to issue fresh advertisement in accordance with the rules and further make necessary amendment, if so advised in the rules for appointment of Head Master in Primary Schools, at the earliest.

After hearing, this batch of petitions was closed for orders, the State has filed an affidavit on 3-3-2012 stating that the terms of the advertisement are varying from district to district and also are not in accordance with the provisions of the Rules, 2008. Thus, the State may be permitted to cancel all the advertisements, which are in question and to proceed with fresh recruitment process in accordance with the rules, if necessary by making certain amendments in the rules. Where the process of selection has concluded, the State may be permitted to take corrective measures in those cases also. It is further submitted that the needful will be done within a period of four months so that the Head Masters are available before beginning of the next academic session.

Shri Ajay Shrivastava, learned counsel appearing for the intervenor in W.P. (S) No. 7647 of 2010 would submit that the Division Bench of this Court in Pardeshi Ram Verma and others v. State of Chhattisgarh and others W.P. (S) No. 6055 of 2010, decided on 25-10-2010, and other connected writ petitions, has held that the selection process of Head Master was a direct recruitment, thus, no argument was available on this issue.

I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

The relevant rules of the Rules, 2008 as well as the schedules appended thereto, including the amendments, are as under:

Scope and Application.--Without prejudice to the generality of the provisions contained in the Chhattisgarh Civil Services (General Conditions of Service) Recruitment Rules, 1967, these rules shall apply to every member of the Service.

Constitution of the Service.--The Service shall consist of the following persons:--

(i) Persons who at the commencement of these rules are holding substantively the posts specified in the Schedule I;

(ii) Persons recruited to the service before the commencement of these rules; and

(iii) Persons recruited to the service in accordance with the provisions of these rules;

Method of Recruitment.--(1) Recruitment to the service after commencement of these rules shall be by the following methods, namely:--

(a) Direct recruitment by selection;

(b) By promotion of substantive members of Chhattisgarh School Education Service from a lower cadre to a higher cadre as specified in Schedule IV.

(c) By transfer of persons who hold in substantive or temporary capacity such posts in such services, as may be specified in this behalf.

(2) The number of persons recruited under clause (b) or clause (c) of sub-rule (1) shall not at any time exceed the percentage shown in Schedule II of the number of duty posts, (as specified in Schedule I).

(3) Subject to the provisions of these rules, the method or methods of recruitment to be adopted for the purpose of filling any particular vacancy or vacancies in the services as may be required to be filled during any particular period of recruitment and the number of persons to be recruited by each method shall be determined on each occasion by the appointing authority.

(4) Notwithstanding anything contained in sub rule (2), if in the opinion of the Appointing Authority the exigencies of the service so required, he may, after seeking the approval of the Government adopt such methods of recruitment to the service other than those specified in sub rule as it may, by order issued in this behalf prescribe.

Appointment by Promotion.--(1) There shall be constituted a committee consisting of members mentioned in Schedule IV, for making primary selection for promotion of eligible candidates.

(2) The committee shall meet at intervals ordinarily not exceeding one year.

(3) Roster shall be applicable in accordance with the Chhattisgarh Public Service (Promotion) Rules, 2003.

Conditions regarding eligibility for Promotion.--The committee shall consider the cases of all persons who on the 1st day of January of the year, had completed number of years of service, whether officiating or substitutive on the post from which promotion is to be made, as specified in column (4) of Schedule IV.

Preparation of the list of suitable officers.--(1) The committee shall prepare a list of such persons who satisfy the condition prescribed in the rule (14) and are held by the committee to be suitable for the promotion in service. This list shall be sufficient to cover probable vacancies for 2 (Two) years.

(2) The selection for inclusion on such list shall be based on merit and suitability in all respects with due regard to seniority.

(3) The names of persons included in the list shall be arranged in the order of seniority in service as specified in column (2) of Schedule (IV):

Provided that any junior person who in the opinion of the committee is of exceptional merit and suitability may be assigned in the list a higher place than those of other senior persons.

(4) The list so prepared shall be reviewed and revised every year.

(5) If in the process of selection, review or revision, it is proposed to supersede any member of Chhattisgarh Education Service (Non-collegiate) Non-Gazetted Class III the committee shall record its reasons for the proposed supersession.

Interpretation,--If any question arises relating to the Interpretation of these rules, it shall be referred to the Government whose decision thereon shall be final.

SCHEDULE I

[See Rule 4, 5]

SCHEDULE II

SCHEDULE III

[See Rule 2-(a)]

SCHEDULE IV

[See Rule 6, 13]

Raipur, the 29th May, 2010

NOTIFICATION

No. F 1-56/2008/20-One. The following amendments are being made in the notification of Chhattisgarh School Education Non-gazetted Class III Education (School Level Service) Recruitment Bharti and Promotion Rules 2008 No.-1/56/2008/20-One departmental Notification dated 3-9-2008.

By order and in the name of the Governor of Chhattisgarh,

WILLIAM KUJUR, Deputy Secretary.

The advertisements dated 27-10-2010, 27-9-2010, 29-10-2010, 8-10-2010, 14-10-2010, 12-10-2010, 22-10-2010 and 21-10-2010 issued by the District Education Officers, Durg, Baloda Bazar, Dhamtari, Bilaspur, Raigarh, Kabeerdham, Janjgir-Champa and Mahasamund, respectively, are as under:

District Durg

Education District Baloda Bazar

District Dhamtari

District Bilaspur

District Raigarh

District Kabeerdham

District Janjgir-Champa

District Mahasamund

The Chhattisgarh Civil Services (General Conditions of Service) Recruitment Rules, 1967, in addition to the Rules, 2008 are also applicable, in case of appointment of the Head Master, Primary School. The M.P./C.G. Civil Services (Reservation in Promotion and Limits on the Extent of Zone of Consideration) Rules, 1997 (for short ''the Reservation Rules, 1997''), which clearly provides for reservation in promotion to the Government Servants belonging to the Scheduled Castes and Scheduled Tribes, is also applicable in case of appointment of Head Masters on promotion.

Rule 3 of the Rules, 1997 reads as under:

Rule 3--Reservation in Promotion.--Reservation in Promotion to the Government Servants belonging to the Scheduled Castes and the Scheduled Tribes shall be as under:--

(i) Where the fit list is to be prepared on the basis of seniority subject to fitness:--

(ii) Where the fit list is to be prepared on the basis of merit-cum-seniority,--

(iii) Reservation in promotion shall be available in all such cadres/posts, in which promotion quota is 25 percent or more.

The Rules, 2008 are framed by the State Government in exercise of its power under Article 309 of the Constitution of India. Rule 4 of the Rules, 2008 provides for constitution of the service and, as such, the Head Master, Primary School, Upper Division Teacher, Music Teacher, Tabla Teacher, Agriculture Teacher, Librarian Higher Pay Scale, Librarian Low Pay Scale, Assistant Teacher/Assistant Teacher Science, and P.T.I. Teacher as specified under Schedule I as per Rule 4 constitute service.

Rule 6 of the Rules, 2008 deals with the method of recruitment i.e. (a) direct recruitment (b) by promotion of substantive members of Chhattisgarh School Education Service from a lower cadre to a higher cadre as prescribed in Schedule IV and (c) by transfer of persons who hold in substantive or temporary capacity, such posts in such services, as may be specified in this behalf, which is not relevant in the present controversy.

Schedule IV provides for promotion to the post of Head Master, Primary School. The feeder cadre is Assistant Teacher/Assistant Science Teacher having five years teaching experience in Government/Panchayat school. Thus, the Shiksha Karmis who are admittedly the employees of Jila Panchayat under different setup of rules i.e. M.P./C.G. Panchayat Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1997, Shiksha Karmis appointed under the Chhattisgarh Municipality Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1998 and the Chhattisgarh Municipal Corporation Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1998, and also under the Chhattisgarh Panchayat Shiksha Karmi (Recruitment & Conditions of Services) Rules, 2007 (for short, ''the Rules, 2007''), as pleaded by the learned counsel appearing for the State, can not form the feeder cadre for promotion to the post of Head Master, Primary School. They belong to other services.

Schedule II of the Rules, 2008 provides that the recruitment of the Head Master, Primary School, will be by 100% promotion of the members of service and column 6 provides that the post of Head Master will be filled by Shiksha Karmi Grade I, II and III having seven years experience, through limited examination by Panchayat and Urban Administration & Development Department, which has been modified by notification dated 29-5-2010 whereby the word ''Panchayat and Urban Administration and Development Department'' was deleted and substituted by the word ''School Education Department''. Thus, Shiksha Karmis Grade I, II and III having seven years experience through limited examination by School Education Department, may not be relevant.

The advertisement dated 27-9-2010 issued by Education District, Baloda Bazar provides that only Shiksha Karmis Grade I, II and III working in the schools of Panchayat and Urban Administration & Development Department having seven years of experience with B.Ed/D.Ed training will be eligible for participating in the selection process of limited competitive examination. There is no mention of the requisite qualification of Higher Secondary Pass certificate and further no provision for reservation under the Reservation Rules, 1997, which is applicable in case of promotion in the State of Chhattisgarh.

The advertisement dated 29-10-2010 issued by District Dhamtari provides for Higher Secondary pass certificate and B.Ed/D.Ed training. However, the advertisement was made applicable only to those Shiksha Karmis who are posted and serving in District Dhamtari only. There is a provision of reservation of 20 seats to Scheduled Caste, 26 seats to Scheduled Tribes and 19 seats for other backward class. In addition, the horizontal reservation, 30% seats in case of women, 6% in case of disable persons and 10% in case of ex-servicemen, has also been provided.

The advertisement dated 21-10-2010 issued by District Mahasamund provides that only the Shiksha Karmis Grade I, II and III working in the Panchayat and Urban Administration & Development Department, of District Mahasamund will be eligible for participation. The requisite qualification prescribed was Higher Secondary/Graduate/Post Graduate examination pass and B.Ed/B.T.I./D.Ed trained. There is a provision for reservation of S.C./S.T. The essential qualification shown in the advertisement is contrary to the Rules, 2008.

In Janjgir-Champa, the advertisement was issued on 22-10-2010. The new qualification of B.T.I. in addition to B.Ed/D.Ed has been added. It was also stated that Shiksha Karmi I, II and III, working in revenue District Janjgir-Champa, alone would be eligible for participating in the examination.

On 12-10-2010, advertisement was issued by the District Education Officer, Kabeerdham. In addition to Higher Secondary pass certificate, B.T.I. trained Shiksha Karmis have also been included in addition to D.Ed/B.Ed trained Shiksha Karmis. There is no restriction, in respect of district, for making application.

Advertisement was issued on 8-10-2010 in respect of District Bilaspur. It provides for higher Secondary Examination certificate. B.Ed/D.Ed and also B.T.I., which is not mentioned in schedule. This also restricts the choice for making application by providing that only Shiksha Karmis working in Bilaspur Revenue District will be eligible for appearing in the examination. Further, it was provided that only H.B. pencil could be used during the examination.

The advertisement issued by District Durg on 27-10-2010 confines only to the Shiksha Karmis working in Revenue District Durg.

In Raigarh, advertisement was issued on 14-10-2010 which provides that there should be seven years experience without break, which is not contemplated in the rules and only those Shiksha Karmis working in the schools of Panchayat and Urban Administration and Development Department, would be eligible for participating in the selection process.

On bare perusal of the Rules, 2008 as explained hereinabove, there is no scope for treating the Shiksha Karmis as the feeder cadre for appointment to the post of Head Master, Primary School as prescribed under Rule 6(1)(b) of the Rules, 2008, that is the promotion to the post of substantive members of Chhattisgarh School Education Service. It can be made from a cadre specified in Schedule IV. In Schedule IV, only Assistant Teacher/Assistant Science Teacher are eligible for promotion. Though, in Schedule III, Shiksha Karmi Grade I, II and III having seven years experience have also been made eligible. They cannot be held as eligible, as Rule 6 makes it clear that promotion can be only from lower cadre to a higher cadre as specified in Schedule IV. There is no amendment in Schedule IV which is the relevant schedule for the purpose of promotion to higher post. There is no dispute that there cannot be a direct recruitment to the post of Head Master, Primary School, as under Schedule II, the post of Head Master can be filled up by 100% promotion from the members of service and the Shiksha Karmis Grade I, II and III are not the members of the service, under the Rules, 2008. Admittedly, they are appointed under the provisions of M.P./C.G. Panchayat Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1997, Chhattisgarh Municipality Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1998 and the Chhattisgarh Municipal Corporation Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1998 and the Rules, 2007, as has been clarified by the State also in its submission, as aforestated, that the Shiksha Karmi means only Shiksha Karmi appointed in accordance with the provisions, as aforestated.

The issue as to whether Shiksha Karmi Grade I, II and III who are not members of service, can form a feeder cadre for promotion to the post of Head Master, Primary School, as is evident from Schedule IV came into consideration before the learned Division Bench of this Court, in Pardeshi Ram Verma (supra) and other connected writ petitions, while considering the circular dated 20-9-2010, whereby all the District Education Officers of the State were directed to fill in vacant posts of Head Masters by conducting limited examination of the Shiksha Karmis as provided under the Rules, 2008. The learned Division Bench of this Court, held that the post of Head Master Primary School, are to be filled firstly by 100% promotion of the members of service i.e. Assistant Teacher/Assistant Teacher Science, and only after the list of Assistant Teacher of School Education Department is exhausted, the remaining posts are to be filled by Shiksha Karmi Grade I, II and III, having seven years experience, through limited examination. In the said decision, the learned Division Bench observed as under:

In the instant case, recruitment on the post of Head Master Primary School is being made by a limited examination from amongst Shiksha Karmi Grade I, II & III, having 7 years experience as provided in Schedule II made under Rule 6 and it is not the case of promotion of Shiksha Karmis.

As it has been held that this is not a case of promotion, then there is no other method for appointment on the post of Head Master, Primary School. There cannot be a direct recruitment on the post of Head Master, Primary School, from Shiksha Karmi Grade I, II and III also. Under the Rules, 2008, it is provided that appointment on the post of Head Master, Primary School, is only by way of 100% promotion. Thus, all the advertisements holding the limited examination, not for promotion but for appointment of Shiksha Karmis Grade I, II and III, having seven years experience, is contrary to the Rules, 2008 and as such, unconstitutional and illegal.

The Supreme Court, in State of Uttaranchal Vs. Alok Sharma and Others, , held that recruitment in Government service must be carried out in terms of the rules framed under a statute or the proviso appended to Article 309 of the Constitution of India. (See: para 15, page 653). (Also see Yogesh Kumar and Others Vs. Government of NTC, Delhi and Others,

The Supreme Court, in State of Bihar and Others Vs. Mithilesh Kumar, observed as under:

While a person may not acquire an indefeasible right to appointment merely on the basis of selection, in the instant case the fact situation is different since the claim of the respondent to be appointed had been negated by a change in policy after the selection process had begun.

It is indisputable that the Shiksha Karmis are the employees of Jila Panchayat appointed by the Chief Executive Officer under the provisions of the Chhattisgarh Panchayat Raj Adhiniyam, 1993. It is a trite law that the Court cannot direct to make appointment contrary to the rules. (See: S. Renuka and Others Vs. State of Andhra Pradesh and Another, ).

In Malik Mazhar Sultan and Another Vs. U.P. Public Service Commission and Others, the Supreme Court observed as under:

The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.

Further, in State of West Bengal Vs. Subhas Kumar Chatterjee and Others, , the Supreme Court held as under:

30....The State Government is under obligation to follow the statutory rules and give only such pay scales as are prescribed under the statutory provisions. Neither the Government can act contrary to the rules nor the court can direct the Government to act contrary to rules. No mandamus lies for issuing directions to a Government to refrain from enforcing a provision of law. No court can issue mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law. Such directions may result in destruction of rule of law.

As explained in the preceding paras, all the advertisements issued by the District Education Officers were not in accordance with the Rules, 2008. Thus, all the advertisements are not in conformity with the provisions of the Rules and are also violative of Article 14 and 16 of the Constitution of India, as all the eligible candidates could not have made applications on account of illegal advertisements, which are contrary to the Rules, 2008.

It is a trite law that any selection or appointment in contravention of the rules cannot sustain. Thus, the impugned advertisements are de hors the constitutional scheme of employment, being contrary to the provisions of the Rules, 2008 and as such, all the appointments/selection on the basis of impugned advertisements are illegal and the selected candidates, even after appointment; do not acquire any indefeasible right to continue on the post.

As far as determination of experience is concerned, the contention of learned counsel for the petitioners that the experience of teaching obtained in different institutions i.e. Guruji under the Education Guarantee Scheme, run by Rajiv Gandhi Shiksha Mission and contract teachers, may be counted for the purpose of seven years experience for Shiksha Karmi Grade I, II and III is concerned, on perusal of the relevant provisions, it reveals that these posts will be filled by Shiksha Karmi I, II and III having seven years, experience clearly indicates that the experience of working as Shiksha Karmi, appointed under the above stated rules, framed under the Panchayat Raj Adhiniyam, 1993, is relevant.

Reliance of Shri Pali upon the decision of the Supreme Court rendered in Mohd. Altaf (1) (supra), is not applicable to the facts of the present cases as in the said case, it was not provided that teaching experience should be that of a teacher in Government College or Government aided or unaided college or institution, thus, it was held that a Lecturer having three years teaching experience in C.T./L.T. Training College is also eligible. Hence, teaching experience gained elsewhere does not make the candidate eligible under the Rules, 2008.

In Ramesh Gajendra Jadhav (supra), wherein the advertisement was made for part time Lecturer and the selection committee selected him as a full time Lecturer, the Supreme Court held that it would add arbitrariness or unfairness to the entire process of selection. The appointment of the appellant, even if otherwise, in accordance with procedure would stand vitiated on this ground alone.

The mistakes in issuance of advertisement and selection pursuant to the advertisement, cannot vest indefeasible legal right in the candidates, who have been appointed in the said selection process. In view of foregoing, it is ordered that:

a. All the impugned advertisements in question are quashed and, as such, all consequential actions including selection/appointments are also held as illegal.

b. The State Government, as pleaded by the learned Deputy Advocate General appearing for the State, is granted liberty to make necessary amendment in the Rules, 2008 and thereafter, issue fresh advertisement for recruitment to the post of Head Master, Primary School, if so advised.

c. The candidates, who have been appointed against the promotion post of Headmaster pursuant to the illegal advertisements, shall continue on the original post of Shiksha Karmis and the extra payment, if any, made to them shall not be recovered.

d. Resultantly, the petitions are allowed to the extent indicated above.

e. No order as to costs.