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Harsh Lata Dave V/S The State of Rajasthan and Others.


    S.B. Civil Writ Petition No. 3259 of 1991

    Decided On, 17 August 1998

    At, High Court of Rajasthan

    By, THE HONORABLE JUSTICE: A.K. SINGH

    For Petitioner: K.C. Samdariya And For Respondents: Vijay Bishnoi



Judgment Text


1. Heard learned counsel for the petitioner and the learned counsel for the non-petitioners.

2. The petitioner was appointed as a temporary school teacher vide Order dated 7.12.1985(Annex. 1) for the period extending upto 15.5.1986 or till the availability of regularly selected teachers whichever was earlier. Her appointment was admittedly for the period during which the schools were not closed. After the summer vacations, she was again reappointed and in this manner her appointment continued upto 11.7.1990. On 11.7.1990, her services were terminated on the ground that regularly selected teachers were available. Feeling aggrieved by the order of termination dated 11.7.1990, the petitioner filed a writ petition No. 2792/90 in which she challenged the order dated 11.7.1990. The writ petition was decided by the learned Single Judge of this court by order dated 15.3.1991. The learned Single Judge, after perusal of order Annex. 3 dated 11.7.1990 whereby services of petitioner had been terminated, held that the petitioner's services were terminated on account of the fact that regularly selected trained teachers had been made available and, therefore, the contention of the petitioner that her services had been terminated because she was not trained was found to be unsustainable. The learned Single Judge dismissed the writ petition filed by the petitioner against the Order dated 11.7.1990 but gave a direction that in case there are vacancies available and trained lady teachers were not available then she may be reappointed.

3. Feeling aggrieved by the order passed by the learned single Judge, the petitioner filed an appeals before the Divisions Bench. The Special Appeal No. 136/91 Smt. Harsh Lata Dave Vs. State and Anr. was dismissed by the Division Bench of this Court by judgment dated 27.3.1991. A review petition No. 34/91 was filed by the petitioner against the judgment dated 27.3.1991. In the review petition, it was state that the proviso added below Rule 6 of the Rajasthan Panchayat Samitis & Zila Parishad Service Rules, 1959 had not been taken into consideration. It was also stated in the review petition that the notification dated 20.9.1989, 21.6.1990, 31.8.1990 and 14.11.1990 issued by the State Government had also not been considered. The Division Bench, after hearing the learned counsel for the petitioner, dismissed the review petition by Order dated 5.8.1994. Regarding the petitioner's right to be considered for regularisation in view of the amendment brought in Rule 6 of the Rules of 1959, the division Bench made the following observations:-

"In this case a review is sought of the judgment dated 27.3.1991 on the ground that Government has issued a revised circular whereby it has sought that case be reviewed. Although the point of regularisation was pressed, but circular on the basis of which it was pressed, was withdrawn by the government and, therefore, if that point is sought to be raised now for the regularisation on the basis of later circular, then a fresh cause of action arises on the basis of circular and petitioner will be free to avail remedy under that circular. No new ground can be allowed to be raised in the review petition and, therefore, with these observations that petitioner should avail legal remedy available to him according to new circular dated 11.8.1989 and circular dated 17.3.1989 issued by the government and or any other circular alleged to have been issued on 31.8.1990. With these observations review petition stands dismissed accordingly."
4. The observations made by the Division Bench in the review petition clearly show that in the earlier writ petition, the petitioner did not challenge the termination order dated 11.7.1990 on the ground that she had not been considered in accordance with the proviso added below Rule 6 of the Rules of 1959, by amendment brought in 1989. Since the amendment brought about in the year 1989 in Rule 6, was not considered by the Court in the earlier writ petition, the Division Bench observed that the petitioner will be free to move the competent Court. The present writ petition was filed by the petitioner before the order dated 5.8.1994 passed by the Division Bench of this Court in the review petition filed by the petitioner.

5. In the present writ petition, the petitioner again challenged the termination order dated 11.7.1990 on the same grounds on which the termination order had been challenged in the earlier writ petition. Later on an application of amendment was filed and that was allowed and by amendment made in the writ petition the petitioner added paras 10(A) to 10(C). By this amendment the petitioner pleaded that in 1989 the State Government had issued a circular dated 17.3.1989 (Annex. 6) and had also issued notifications dated 21.6.1990, 31.8.1990 and 14.11.1990 to the effect that those teachers who were appointed prior to 31.12.1985 by Panchayat Samiti or the Zila Parishad, their cases should be screened and recommendation should be made in pursuance thereof. The petitioner's grievance is that the concerned authorities did not take any action in pursuance of the notification of 1989 whereby amendment was made in Rule 6 of the Rules of 1959.

6. It may be pointed out that in the year 1985 when the petitioner was appointed, as a temporary teacher under Rule 23 of the Rules of 1959, shoe was not a trained teacher. However, she was appointed as a teacher in view of the II proviso given below the rule prescribing the necessary qualification for appointment as a primary teacher. This proviso has been referred by the learned Single Judge in the judgment given in the earlier writ petition.

7. Learned counsel for the petitioner has submitted that the order of termination dated 11.7.1990 cannot be challenged again in this writ petition because the earlier writ petition had been dismissed and an appeal against the judgment passed by the learned Single Judge of this Court was also dismissed by the Division Bench and that order has become final. He has however submitted that in view of the circular of 1989 (Annex. 6), the petitioner was entitled to be considered for the regular appointment as temporary school teacher as she was continuing in service on the date the circular came into force and without considering her case and taking decision, her services were terminated by order dated 11.7.90 and, therefore, survives and the petitioner is entitled to enforce that right by filing the writ petition under Article 226 of the Constitution of India.

8. Learned counsel for the non-petitioners has opposed this petition on several grounds. The first submission of the learned counsel for the non-petitioners is no writ petitioner could be filed by the petition after the dismissal of the first writ petition challenging the order of termination dated 11.7.1990. In other words, the learned counsel for the non-petitioners has challenged the very maintainability of the writ petition. The next contention of the learned counsel for the non-petitioners is that according to the principle of constructive res judicata, it should be deemed that the court has already decided the question whether the petitioner is or is not entitled to be considered in terms of Notification 1989(Annex. 6). The argument of Shri Bishnoi appearing on behalf of the non-petitioners is that the notification Annex. 6 was issued in 1989 and at the time of filing the earlier writ petition the petitioner was well aware of the notification and, therefore, it was open to the petitioner to challenge the termination order dated 11.7.1990 on the ground that it had been passed in contravention of the notification of 1989 and since the petitioner omitted to challenge the termination order dated 11.7.1990 on the ground that it was in contravention of notification of 1989, by operation of principle of constructive res judicata petitioner is prevented from filing this second writ petition on the basis of the notification of 1989. In support of his contention, the learned counsel for the non-petitioners has placed reliance on the decision given by the Hon'ble Supreme Court in : AIR 1977 SC 1680 and 1978 SC 1283.

9. The third contention made by the learned counsel for the non-petitioners is that the petitioner is not entitled to any right of consideration in terms of notification Annex. 6 of 1989 because her services up to the date of notification were not continuous and were interrupted by breaks during which she did not held the post of the school teacher during summer vacation. It is also submitted by the learned counsel for the non-petitioner that in 1989, the petitioner was not holding the prescribed qualifications of being a trained teacher and in facts she acquired the requisite qualification in the year 1995 and, therefore, she could not be considered for regular appointment as a school teacher, in view of the terms and conditions laid down in notification Annex. 6 issued in 1989.

10. Regarding the observations made by the Division Bench in review petition, the learned counsel for the non-petitioners submitted that the non-petitioners had not been given any notice of the review petition and, therefore the observations made by the Division Bench are not binding on them. It is further submitted by the learned counsel for the non-petitioners that in any case the writ petition should have been filed after the order of the review petition made and the present writ petition which had been filed before the passing of the order in review petition is not maintainable.

11. I have carefully considered the rival contentions. It is not disputed that the petitioner had been appointed as a temporary primary school teacher in the year 1985, under Rule 23 of the Rules of 1959. Rule 23 of the Rajasthan Panchayat Samitis and Zila Parishad Services Rules, 1959 provides for temporary appointments. Sub-Rule (1) provides that in case no selection has been made or no person selected by commission is available at any time, for filling a vacancy, appointment may be made by the Appointing Authority temporarily for a period not exceeding a six months, provided the filling up of the vacancy is required emergently and a certificate to the effect that no selected is available has been obtained from the committee. Sub-Rule (2) provides that if it is proposed to fill the vacancy by direct recruitment temporarily, the nearest Employment Exchange may be asked to send a panel of names of persons possessing the required qualification at least 5 times the number of vacancies to be so filled. the appointing authority will then appoint from out of the panel of candidates suitable for the post. Sub-rule (3) provides that if it is proposed to fill vacancy by promotion temporarily, the senior most employee in the next lower grade may be so appointed by the appointing authority. It further provides that if the record of the senior most employee is not satisfactory the person immediately below him may be so appointed. Sub-rule (4) provides that the period of such temporary appointment may, however, be extended beyond six months, only with the previous concurrence of the committee. Sub-rule (5) provides that the temporary appointment made under this Rule shall not be continued for the period exceeding 12 months without the prior concurrence of the Commission and Sub-Rule (6) provides that the temporary appointment made under this Rule shall terminate as soon as a candidate selected by the Commission or Committee, as the case may be, is made available. It is further provided that candidates so made available and placed at the disposal of Panchayat Samiti/Zila Parishad shall be appointed by the appointing authority forthwith, on the vacancies against which temporary appointment have been made, and on their reporting for duty, persons holding temporary appointments shall be deemed to have vacated their office and shall not be entitled to any salary thereof.

12. A Division Bench of this Court in D.B. Civil Special Appeal No. 529/97 Panchayat Samiti vs. Dinesh Chandra, has held that Rule 23 is mandatory and the appointment cannot be continued beyond the period provided in Rule 23. In terms of Rule 23 of the Rules of 1959, the temporary appointments have to be made only in case of emergency when the regularly selected teachers are not available. Such appointment should initially be made for the period of six months but after the expiry of period of six months, such appointments may be continued subject to the previous concurrence of the committee. in any case the temporary appointments are automatically terminated after the expiry of the period of six months if concurrence for continuing them beyond six months is not obtained and as soon as regularly selected candidates are available.

13. The termination order dated 11.7.1990 which was challenged in the earlier writ petition was obviously passed under Rule 23 of the Rules of 1959. The reason for terminating the services of the petitioner was that regularly selected candidates were available. Once the regularly selected candidates were available, the appointment made under Rule 23 of the Rules of 1959 was bound to be terminated because there is no provision in the Rules providing for the continuation of appointment even after the regularly selected candidates are available. In view of the provisions of Rule 23 of the Rules of 1959, it does not appear to be necessary for the petitioner to have pleaded in the earlier writ petition that the termination order dated 11.7.1990 was illegal as she had not been considered according to the notification Annexure 6 issued in 1989. This notification merely entitles the persons who were holding the post after circular continuously for being considered for regular appointment in case they were found suitable by the Committee. The right conferred by the proviso added below Rule 6 by amendment made in 1989, does not make any provision that persons appointed under Rule 23 should be continue in service till their cases have been considered by the Committee. Therefore, it was not necessary for the petitioner to have challenged the termination order dated 11.7.1990 on the ground that she had not been considered in terms of Notification Annex. 6 issued in 1989. That being so, the principle of constructive res judicata has no application to the present case. I concur most respectfully with the observations made by the Division Bench that if the case of the petitioner is covered by the notification Annex. 6 issued in 1989 then the rights given by this notification gives the petitioner a fresh cause of action. The decisions cited by the learned counsel for the non-petitioners do not apply to the present case as the facts of the present case are different from the cases which were considered by the Hon'ble Supreme Court. The contention that the petitioner cannot avail of the notification of 1989 (Annex. 6) because she did not plead in the earlier writ petition, is, therefore rejected.

14. So far as the maintainability of the writ petition is concerned, I find force in the submission that when the termination order dated 11.7.1990 had been challenged in the earlier writ petition and the writ petition had been dismissed by the learned Single Judge as well as by the Division Bench, the petitioner could not be said to be justified in filing the second writ petition challenging the termination order dated 11.7.1990. However, it is to be noticed that by amendment, the petitioner sought the permission of the Court to add para 10(A) to 10(C) and permission have been granted, the amendment was made in the petition and in consequence of the amendment, the present writ petition is not only against the termination order dated 11.7.1990 but also for the enforcement of the right of the notification issued by the Government in 1989 (Annex. 6). Regarding the maintainability of the writ petition, the next contention of the learned counsel for the non-petitioners is that this petition ought to have been filed after the order was given by the Division Bench in the review petition and no cause of action can be said to have arisen on the basis of notification of 1989 before order was passed by the Division Bench in the review petition. i do not find any force in this submission. The Hon'ble Division Bench has stated the position of law. It has not created any fresh right in favour of the petitioner. The ratio of the order given by the Division Bench in the review petition is that the notification Annex. 6 of 1989 give her a fresh cause of action, on the basis of which the petitioner is free to file an appropriate proceeding. In view of the above mentioned facts and circumstances of the case, after entertaining the present petition and allowing the amendment, I am of the opinion that the petition cannot be dismissed on the ground contented by the learned counsel for the non-petitioners.

15. The observations made by the Division Bench in the review petition are binding on the parties inasmuch as they lay down the position of law as to the existence of independent right accruing to the petitioner under Annex. 6 of 1989 and the right of the petitioner to take appropriate remedy to enforce this right arising from fresh cause of action. I, therefore, find no substance in the submission that since there is no notice of the review petition to the non-petitioners and the order passed by the Division Bench in the review petition is not binding on them.

16. The next important question is whether there any right is available to the petitioner under the notification Annex. 6 issued by the State Government in 1989 whereby a proviso was added below Rule 6 of the Rules of 1959. A mere perusal of the notification shows that this notification applies to those employees who had been employee under Rule 23, on or before 31.12.1985 and were continuously in service up to the date of issuance of the notification dated 17.3.1989. The notification did not apply to employees appointed otherwise than Rule 23 nor it is applicable to those persons who were given appointment subsequent to 31.12.1985. The notification further shows that subject to the above mentioned condition, it is applicable to those employees who were appointed under Rule 23 and were possessing the required qualifications for appointment. The notification further provides that a committee shall consider the case of all persons in order to assess their suitability for appointment and shall make its recommendation, about the persons to be appointed as well as the Order in which they are to the given appointment. The learned counsel for the non-petitioners has submitted that in the instant case the petitioner was not entitled to any right under the notification Annex. 6 because she was not in continuous employment. It has been stressed by the learned counsel for the non-petitioners that the initial appointment as well as the appointment followed were for limited period and as per averments made in para 3 of the writ petition, the petitioner was not appointed for the period covered by the summer vacations. It is argued by the learned counsel for the non-petitioners that since there was interruption during the summer vacations, it could not be said that the petitioner was in continuous employment of the Panchayat Samiti/Zila Parishad as contemplated by the notification Annex. 6. In reply the learned counsel for the petitioner has submitted that it was an usual practice to appoint the teachers for the teaching session excluding the time covered by the summer vacations and since it was the usual practice adopted by the respondents in the matter of appointment of primary teachers under Rules 23 of the Rules 1959, the break in service during the summer vacations should be ignored. I am afraid this contention cannot be accepted. Even if the practice of giving employment for 9/10 months to the teachers were open to objection, unless by any order of the Government or direction given by this Court, the period of summer vacations is to be counted towards the service, it cannot be said that the service of the petitioner was continuous or that it was without interruption so as to entitle her to right under the notification Annex. 6. I do not find any force in the submission made by the learned counsel for the non-petitioners that the petitioner cannot be said in continuous employment on the date of notification Annex. 6 came into force and, therefore, she was not eligible.

17. It is also submitted by the learned counsel for the non-petitioners that the petitioner did not possess the requisite qualifications in the year 1985 when she was appointed under Rule 23 for the first time, nor she possessed the requisite qualification on 17.3.1989 when the Notification Annex. 6 came into force and, therefore, she cannot be said to be eligible for consideration for regular appointment because for regular appointment requisite qua

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lifications were necessary. The learned counsel for the petitioner has submitted that for the purpose of temporary appointment under Rule 23 in some districts, the II proviso below the Rule prescribing necessary qualifications provided that if trained lady teachers are not available, untrained lady teachers may be appointed. Relying on the aforesaid proviso, the learned counsel for the petitioner has submitted that the petitioner was considered eligible for appointment under Rule 23 inspite of being an untrained teachers and, therefore, her case should be deemed to be covered by the notification Annex. 6. Assuming that this submission has some force, the benefit under II proviso by which some relaxation has been made in the necessary qualifications for the appointment of primary teacher, can be obtained only for the period during which the trained teachers are not available. As soon as trained teachers become available, the II proviso ceases to operate. It has not been proved that on the day when the notification Annex. 6 came into force, trained teachers were not available. In fact it appears that the process for regular selection had been initiated and regular selection were made and after the regular selection of candidates possessing the necessary qualifications, the termination order dated 11.7.1990 was passed. Therefore, it cannot be said that the petitioner was entitled to the benefit of the II proviso below the Rule prescribing necessary qualifications, on the date of notification Annex. 6 came into force. She was admittedly not a trained teacher when Annex. 6 came into force and, therefore, she cannot be said to be eligible for consideration under the notification Annex. 6. 18. In view of the conclusions arrived at, the writ petition has no force. So far as the prayer for quashing the termination order dated 11.7.1990 is concerned, the petition is not maintainable because the earlier writ petition had been dismissed by this Court and the appeal against the Order of the learned Single Judge was also dismissed. So far as the rights under the notification Annex. 6. are concerned, the petitioner has not been able to establish that she is entitled to right of consideration under the notification Annex. 6. The petition is therefore, dismissed. the parties shall bear their own costs.
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