Richhpal Singh and Others Vs State of Rajasthan

N.N. Mathur, J.@mdashThousands of teachers by way of instant bunch of Writ petitions, as mentioned in Schedule appended to each petition, have challenged the Constitutional validity of the Rajasthan Panchayati Raj (Amendment) Ordinance, 2004 and Rajasthan Panchayati Raj (Amendment) Rules, 2004 providing for selection of Teachers Gr.III by the Public Service Commission and have prayed for restoring the autonomy to the Panchayati Raj Institutions in the matter of selection & appointment of primary school teachers. Petitioner-teachers have also prayed for restoration of the Notification dated 14.7.2003 providing to fill-up the posts of Teacher Gr.III to the extent of 75% from Para Teachers/Shiksha Sahyogi and 25% from the open market. It is further prayed that their services be regularized as Teacher Gr.III, who have been in continuous service for a considerable time as Para Teacher/Shiksha Sahyogi.

BACKGROUND FACTS:

2. The factual matrix in juxtaposition with the relevant rules may be set out in detail because the very narration of chronology of events would illumine the contours of controversy.

3. The Cadre of Teachers Gr.III in the State of Rajasthan is divided in two categories viz; (i) the teachers working under the Panchayat Samitis and (ii) the teachers working in the Education Department, Government of Rajasthan. The service conditions of teachers working in the Panchayat Samitis were initially governed by the provisions contained in the Rajasthan Panchayat Samitis and Zila Parishad Act, 1959 (hereinafter referred-to as "the Act of 1955") and the rules framed thereunder viz; Rajasthan Panchayat Samiti and Zila Parishads Service Rules, 1959 (hereinafter referred-to as "the Rules of 1959"). These teachers manned the primary schools situated in rural areas, whereas the teachers Gr.III working in the Education Department manned the primary schools situated in urban areas. As per the provisions contained in Section 86 of the Act of 1959, the selections to the post of Teacher Gr.III were to be made in the Panchayat Samitis. The power of selection vested with the District Establishment Committee by amending Sections 86 & 88 of the Act of 1959 with effect from 1.4.1987. The selections were to be made in accordance with the procedure prescribed by the competent authority on the basis of percentage of marks obtained in academic qualification and allied activities. However, the State Government made appointment of teachers in the rural areas under different schemes since 1984-85. The appointments were purely on contract basis on a fixed honorarium. The teachers continued to raise demand for their regularization. Thus, in the year 1989, a Notification was issued amending Rule 6 providing for regularization of those teachers, who have been in continuous service on the date of amendment. The Act of 1959 came to be replaced by the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred-to as "the Act of 1994"). The service conditions are governed by the provisions contained in Section 89 of the Act of 1994. In order to give effect to the provisions of Section 89 of the Act of 1994, rules are framed by the State Government known as Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred-to as "the Rules of 1996"). Rule 266 provided for essential academic qualification for appointment on the post of primary school teachers. The State Government in exercise of powers conferred by Rule 296 of the Rules of 1996 issued a notification dated 30.9.2000 for regularization of the teachers, who have been appointed on contract basis under the Black Board Scheme, which also included regularization of those teachers, who had passed Senior Secondary in Vocational and the State Government took the stand that they were not equivalent to academic, but provided scheme for undergoing bridge course in respect of those teachers.

SCHEMES:

4. It will be apposite to acquaint with the Schemes introduced by the State Government from time to time.

A. BLACK BOARD SCHEME:

5. In the year 1984-85, the Central Government granted some additional Grant for the purpose of equipments like blackboards, desks, Pattis etc. in the schools, as such, a Scheme was floated in the name of Black Board Scheme. Though, the pay scale of Teacher Gr.III was 490-840 but the teachers were engaged on fixed emoluments of Rs. 400/- per month on contract basis. The Scheme came to an end in the year 1987 with the end of Eighth Plan.

B. SHIKSHA KARMI SCHEME:

6. This Scheme was introduced by the Rajasthan Shiksha Karmi Board, a voluntary Society registered under the Registration Act. This Scheme was initially floated for six years and the expenditure was borne by the Sweedish International Development Agency (in short ''SIDA'')- 90% of the expenditure was borne by SIDA and 10% by the State Government. However, after nuclear test in Pokaran, the SIDA backed out and stopped the aid. After sometime, the Scheme was taken up by a British Agency known as "Department of International Development" giving aid of 75% and rest 25% to be borne by the State Government. Under the said Scheme, Shiksha Karmis i.e., Education Assistants were appointed having qualification of Eighth Standard. They were paid honorarium at the rate of Rs. 2000/- per month. On a petition find by some of Shiksha Karmis, the Shiksha Karmi Board was held to be a voluntary organisation, as such, not a State within the meaning of Article 12 of the Constitution by this Court [Kailash Verma v. State (1994(3) WLC 528)]. Thus, according to respondents, Shiksha Karmis did not hold any post in State Service or Local authority; further they are not equivalent to Grade III Teachers.

C. RAJEEV GANDHI SWARN JAYANTI PATHSHALA:

7. This Scheme was framed with dual object viz; firstly universalization of elementary Education by establishing large number of schools almost in all villages and dhanis i.e., to spread education in rural and remote areas by increasing number of schools and secondly to get the teachers at lesser salary i.e., on honorarium basis instead of regular pay scale. As per the Circular dated 23.4.1999, the schools were to be opened where there is no primary school in the radius of one kilometer and the population of the area is 200 & more. The further requirement was minimum 25 children or more, aged 6 to 11 years, for each school. The teachers engaged were paid honorarium at the rate of Rs. 1200/- per month. The State Government by notification dated 23rd April, 1999 delegated the powers to Selection Committee to prepare the merit list on the basis of percentage of marks obtained by the candidates under various heads for selection & appointment as Para Teacher/Shiksha Sahyogi in Rajeev Gandhi Swarn Jayanti Pathshala. By another Circular dated 15.4.2000, a criterion for selection & appointment was provided. Para Teachers were required to be appointed after advertisement & inviting applications. A merit list was required to be prepared as per the conditions provided in the said notification. The demands were raised for regularization of their services. It is asserted that the State Government gave them assurance from time to time for regularization of their services.

8. With a view to fulfill the assurance, Rule 266 was amended vide Notification dated 14.7.2003, whereby cent percent direct recruitment was substituted providing to the extent of 75% from the persons having four years'' experience as Para Teacher/Shiksha Sahyogi under the scheme notified by the State Government and the remaining 25% from the open market. Thereafter, the vacancies were also advertised for recruitment on the post of Teacher Gr.III. The said amendment and the advertisement dated 27.7.2003 was challenged before this Court at Jaipur Bench in (Rugha Ram v. State of Rajasthan) (S.B. Civil Writ Petition No. 4583/2003), Serious grievance was voiced as to the manner of recruitment of teachers and malpractices used therein. It was contended that there was no uniformity in the selection process because every District Establishment Committee was adjudging the candidates differently. During the course of arguments, the learned Advocate General made a statement to review the entire process of selection to the post of Teacher Gr.III. It appears that on review of entire matter, the State Government made significant amendments in the Act of 1994 by promulgating impugned Rajasthan Panchayat Raj (Amendment) Ordinance, 2004, dated 28.2.2004. After amendment, Rugha Ram''s case was disposed-of with the observations as follows:

"The respondents now will proceed further as per amendment made in the rules vide notification dated 28th February, 2004 and the requisition may be sent to RPSC at the earliest so that the recruitment, withheld for a long time, may take place at the earliest."

PROVISIONS PERTAINING TO RECRUITMENT OF PRIMARY SCHOOL OR GRADE III TEACHER:

9. Before we proceed to deal with the contention challenging the Constitutional validity of the amended provisions of the Act and the Rules, it would be convenient to briefly survey the provisions having material bearing on the controversy.

10. Section 89 relates to the Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service Rules. As per Section 89(2), the services are divided in various cadres. Section 89(2)(iii) deals with the Primary and upper Primary school teachers. Section 89(3) provides that the State Government may encadre in the service any other category or grades of officers. Section 89(6) provides that appointment by direct recruitment shall be made by a Panchayat Samiti or Zila Parishad in accordance with the rules made in this behalf. Section 90 deals with the Constitution and function of District Establishment Committee. Section 90(2) provides that the District Establishment Committee shall make selection in accordance with the rules made by the State Government for appointment of Teachers. Chapter XII of the Rules of 1996 deals with recruitment and service conditions. Rule 256 provides the category of persons ineligible for appointment in Panchayat Services. The method of recruitment has been provided in Rule 259. Sub-rule (6) of Rule 259 provides that the recruitment of the posts encadred in Panchayat Samiti and Zila Parishad services will be as per Sub-section (2) of Section 89 i.e., through District Establishment Committee. Rule 260 deals with the source of recruitment for Panchayat Samiti and Zila Parishad Services. Under Rule 263, the vacancies are required to be determined. Rule 266 provides the minimum academic qualification required for the post of L.D.C., V.L.W.-cum- Secretary and Primary School Teacher. The unamended Rule provided for appointment on the post of Primary School Teacher 100% by direct-recruitment. It also provided the minimum qualification as Senior Secondary under the new scheme or Higher Secondary under the old scheme from the Board of Secondary Education or equivalent with 5 subjects, 3 of them with Mathematics, Hindi and English. The said rule was amended vide Notification dated 14.7.2003 whereby cent percent direct recruitment was substituted by 75% from the persons having 4 years'' experience as Para Teacher/Shiksha Sahayogi under the scheme notified by the State Government and remaining 25% from other candidates. The State Government by impugned Ordinance, 2004 has made amendments in Sections 89 and 90 of the Act of 1994 and Rules 258, 259, 263, 266 and 277. The said Ordinance has taken the shape of the Act. The Syllabus of the examination has also been amended and added after Rule 296 as Schedules I and II.

11. For convenience, unamended and amended provisions (highlighted in italic & with underline) are extracted below in juxtaposition:

12. The broad features of the amendments made in the Act and the Rules are that now the selection for the Teachers in the Panchayats is to be made by the Rajasthan Public Service Commission instead of District Establishment Committee and in this respect, Sub-section (6A) has been added in Section 89. So also, a provision has been added after Sub-section (7) to the effect that no appointment on temporary basis shall be made on the posts specified in clause (iii) of Sub-section (2) i.e., Primary and upper Primary School Teachers. So also, quota fixed for teachers having 4 years'' experience has been deleted. The provision has been made to give information by the candidates as to the preference of district for place of posting in order to avoid a subsequent exercise of transfer.

CHALLENGE TO CONSTITUTIONALITY OF THE AMENDED ACT AND THE RULES:

13. The impugned amendments in the Act and the Rules are challenged on the following grounds:

(i) The State has no legislative competence to provide for conducting competitive examination for appointment to service of teacher, by R.P.S.C., as ''Panchayat'' defined under Article 243(d) means a ''Self-Government'', outside the scope of Article 321;

(ii) The impugned amendment interferes with the autonomy provided to the Panchayats by Article 243A and 243B of the Constitution of India;

(iii) The impugned amendment is hit by Article 21A, 45 and 350A inasmuch as there is a Constitutional mandate to make in endeavour by every State and the local authority to provide adequate facilities for instructions in the mother tongue at the primary stage of education to children belonging to linguistic minority groups;

(iv) The amendment is discriminatory inasmuch as there are two sets of statutory provisions for recruitment on the post of Teacher Gr.III i.e., for teachers working under the Rural Development and Panchayati Raj and other teachers in the Urban Areas under the control & supervision of Education Department.

14. Before we proceed to deal with the aforesaid contentions, it would be appropriate to acquaint with the legal position on certain general principle relating to challenge of Statute in the anvil of Article 14 and other relevant constitutional provisions and the parameters of court''s jurisdiction to examine materials for arriving at the legislative intent behind as well as the presumption of constitutionality of a Statute. The approach of the court while examining the challenge to the constitutionality of an enactment is to start with presumption of constitutionality. The Court should try to sustain its validity to the extent possible and it should strike down the enactment only when it is not possible to sustain it. Though the above proposition is well settled, still it is desirable to seek guidance from some of the leading precedents of the Apex Court.

15. In Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, the Apex Court observed:

".....it is the accepted doctrine of the American Courts, which I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles."

16. In Burrakur Coal Co., Ltd. Vs. The Union of India (UOI) and Others, the Apex Court observed:

"Where the validity of a law made by a competent Legislature is challenged in a Court of law, that Court is bound to presume in favour of its validity. Further, while considering the validity of the law the Court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained."

17. In Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, the Apex Court pointed out:

"(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;

(e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and.."

18. Recently the Apex Court in Union of India Vs. Elphinstone Spinning and Weaving Co. Ltd. and Others etc., observed as follows:

"9. A statute is construed so as to make it effective and operative. There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandates such as, those relating to fundamental rights is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will."

The Apex Court further observed that the aforesaid principle is subject to one exception that if a citizen is able to establish that the legislation has invaded its fundamental rights then the State must justify that the law is saved.

19. In Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, The Apex Court has laid down the following threefold test for examining the Constitutional validity of a provision:

"(1) Whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate;

(2) Whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment; and lastly

(3) Whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution."

20. The above excerpts reproduced from various decisions of the Apex Court furnish the relevant guidelines or factors for deciding the validity of a Statute.

CONTENTION NO. (i):

21. It is contended that the State has no legislative competence to provide for examination to be conducted by the Rajasthan Public Service Commission, hereinafter referred-to as "the RPSC" for appointment to the service of the Panchayat inasmuch as the Panchayat as defined under Article 243(d) of the Constitution means an instrument of Self Government constituted under Article 243B for the rural areas. As provided under Article 243G, the Legislature of a State endows the Panchayats with such powers and authorities as may be necessary to enable them to function as institutions of Self Government. Article 321 of the Constitution empowers the State legislature to impose additional functions on the State Commission regarding the State Services, local authorities, public institutions or any authority constituted by law. Apparently, it does not include Panchayat Services i.e., Self Government. The Constitution having conferred on Panchayat the status of Self Government, it cannot be termed as a local authority or body corporate or public institution. It is vehemently argued that after 73rd amendment in the Constitution, the Panchayat as a Self-Government is a sovereign body having both Constitutional and Statutory status, addition to Union or State Government. There is no corresponding amendment in Article 321 of the Constitution to empower the State Public Service Commission to select candidates for the Panchayati Raj Institutions. It is re-emphasized that the Panchayat is an institution of the Self Government as provided under Article 243(d) of the Constitution and the Self Government does not fall in any of the categories i.e., State or Local Self Government or Corporate Body or Public Institution.

22. Per contra, it is submitted that the Panchayat is a body incorporated as provided u/s 9(2) of the Act of 1994. It is further submitted that Article 243G is in pari materia with Article 243W and this Court while considering the provisions of Article 243W with respect to powers of the Municipality in Ram Chandra Kasliwal v. State (2004 RLR 469) held the said provision enabling and directory. It is further submitted that Article 243G empowers the State to endow the Panchayat with such powers and authority which may be necessary for functioning as institutions of self- government. It is also submitted that the petitioners have no locus standi to challenge the impugned amended provisions under Sections 89 and 90 of the Act of 1994, as it only provides the forum of selection.

23. The question arises for consideration is "whether Panchayat is one of the form of Government as Union or the State Government"?

24. Ours is a federal Constitution. It is unique, even while it has borrowed features from the American, Canadian and Australian systems. The framers of the Constitution adopted the federation from the Government of India Act, 1935. The provisions pertaining to the Union and the State relations are spread over throughout the Constitution. The Apex Court in Atiabari Tea Co. v. State of Assam (AIR 1951 SC 232) while evaluating the federal policy observed that the federal scheme involves the setting up dual Government and division of powers but the success and strength of federal policy depends upon the maximum cooperation and coordination of the Government. Just after independence in the year 1948, Pandit Nehru while stressing the importance of role of Government in democracy said-

"Local Self Government is and must be the basis of any true system of democracy. Democracy at the top may not be a success unless you build on this foundation from below."

25. Ambedkar, one of the principal architects of our Constitution derided the village as nothing but "a sink of localism, a den of ignorance and narrow-mindedness".

But Mahatma Gandhi felt that "the greater the powers of panchayats, the better for the people". He laid emphasis on the regeneration and rejuvenation of panchayats as fully self- governing units. He wanted the entire economy any politics of the Country to be built around the panchayat. Gandhiji talked of a system of panchayati raj which would be concentric where no one could say that one level was above the other, that is, the village, taluq, district, state and the Centre-each merging into the other and each equal to the other. But what finally appeared in the Constitution was Article 40 which simply casts an obligation on the State to take steps to organize village panchayats and endow them with such powers and authorities as may be necessary to enable them to function as units of Self Government and an entry in List 11 of Schedule VII where the state government has the power to legislate in regard to the Constitution and powers of municipal corporations, improvement trusts, district boards, mining settlements authorities, and other local authorities for the purpose of local self-government or village administration. So they have become creations of the legislature which, by tradition and by common law and understanding, were self-governing units. There is a long history of Panchayati Raj beginning from Balwant Rai Mehta Committee. We are not inclined to state the entire history in this regard. Suffice to say, with realization that grass-root democracy requires decentralization of powers and functions to the lowest level of administration at Panchayat and Municipal Levels, a necessity was felt for amendment in the Constitution to provide further autonomy to the local bodies like panchayats and municipalities. In the year 1987, the Government having been convinced that there is a requirement of Constitutional amendment to provide for compulsory, timely and periodic elections to local Government institutions and enlistment of appropriate functions to them alongwith funds, abortive attempt was made by introduction of 64th Constitutional amendment. Finally, 73rd and 74th Constitutional amendments were passed in 1993 making it compulsory for all States (except for some specified hill and tribal States) to have three-tier decentralization below the State level with compulsory elections every five years to the different tiers. By April, 1994, all States had enacted legislation, as required by the Constitutional amendment, to endow power and authority to panchayats to enable them to function as institutions of Self Government. This includes powers to prepare and implement plans for economic development and social justice, execute schemes entrusted to them by the State and the Central Government and exercise powers as delegated in subjects listed in the Eleventh Schedule, annexed to the amendment. These are mostly in the realm of economic development and social justice suitable for being entrusted to local bodies. The two Constitutional amendments are, indeed, landmarks.

26. Part IX under the heading "THE PANCHAYATS" as inserted by the Constitution (Seventy-third Amendment) Act, 1992 is reproduced as follows:

"PART IX

THE PANCHAYATS

243. Definitions.--In this Part, unless the context otherwise requires,--

(a) ''district'' means a district in a State;

(b) ''Gram Sabha means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level;

(c) ''intermediate level'' means a level between the village and district levels specified by the Governor of a State by public notification to be the intermediate level for the purposes of this Part;

(d) ''Panchayat'' means an institution (by whatever name called) of self government constituted under article 243B, for the rural areas;

(e) ''Panchayat area'' means the territorial area of a Panchayat;

(f) '' population'' means the population as ascertained at the last preceding census of which the relevant figures have been published;

(g) ''village'' means a village specified by the Governor by public notification to be a village for the purposes of this Part and includes a group of villages so specified.

243A. Gram Sabha.-A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may by law, provide.

243B. Constitution of Panchayats.-(1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.

(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs.

243C. Composition of Panchayats.--(1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats:

Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by the election shall, so far as practicable, be the same throughout the State.

(2) All the seats in a Panchayat shall be filed by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area.

(3) The Legislature of a State may, by law, provide for the representation-

(a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level;

(b) of the Chairpersons of the Panchayats at the intermediate level," in the panchayats at the district level;

(c) of the members of the House of the People and the members of the Legislative Assembly of the state representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level, in such Panchayat;

(d) of the members of the Council of States and the members of the Legislative Council of the State, where they are registered as electors within-

(i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level;

(ii) a Panchayat area at the district level, in Panchayat at the district level.

(4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayats.

(5) The Chairperson of-

(a) Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and

(b) a Panchayat at the intermediate level or district level, shall be elected by, and from amongst, the elected members thereof.

243D. Reservation of seats.-(1) Seats shall be reserved for-

(a) the Scheduled Castes; and .

(b) the Scheduled Tribes,

in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat.

(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.

(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.

(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide:

Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the state or of the Scheduled Tribes in the State bears to the total population of the State:

Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women:

Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.

(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of he period specified in article 334.

(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens.

243E. Duration of Panchayats, etc.-(1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting an no longer.

(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1)''.

(3) An election to constitute a Panchayat shall be completed-

(a) before the expiry of its duration specified in clause (1);

(b) before the expiration of a period of six months from the date of its dissolution:

Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period.

(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved.

243F. Disqualifications for membership-(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat-

(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:

Provided that no person shall be disqualified on the ground that be is less than twenty-five years of age, if he has attained the age of twenty one years;

(b) if he is so disqualified by or under any law made by the Legislature of the State.

(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.

243G. Powers, authority and responsibilities of Panchayat.---Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to-

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.

243H. Powers to impose taxes by, and Funds of the Panchayats.-

The Legislature of a State may, by law,-

(a) authorise a panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits;

(b) assign to a Panchayat such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits;

(c) provide for making such grants-in-aid to the Panchayats from the Consolidated Fund of the State; and

(d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Panchayats and also for the withdrawal of such moneys therefrom,

as may be specified in the law.

243I. Constitution of Finance Commission to review financial position.-(1)The Governor of a State shall, as soon as may be within one year from the commencement of the Constitution (Seventy-third Amendment) Act, 1992, and thereafter at the expiration of every fifth year, constitute a Finance Commission to review the financial position of the Panchayats and to make recommendations to the Governor as to-

(a) the principles which should govern-

(i) the distribution between the State and the Panchayats of the net proceeds of the taxes, duties, tolls and fees leviable by the State, which may be divided between them under this Part and the allocation between the Panchayats at all levels of their respective shares of such proceeds;

(ii) the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by, the Panchayats;

(iii) the grants-in-aid to the Panchayats from the Consolidated Fund of the State;

(b) the measures needed to improve the financial position of the Panchayats;

(c) any other matter referred to the Finance Commission by the Governor in the interests of sound finance of the Panchayats.

(2) The Legislature of a State may, by law, provide for the composition of the Commission, the qualifications which shall be requisite for appointment as members thereof and the manner in which they shall be selected.

(3) The Commission shall determine their procedure and shall have such powers in the performance of their functions as the Legislature of the State may, by law, confer on them.

(4) The Governor shall cause every recommendation made by the Commission under this article together with an explanatory memorandum as to the action taken thereon to be laid before the Legislature of the State.

243J. Audit of account of Panchayats.-The Legislature of a State may, by law, make provisions with respect to the maintenance of accounts by the Panchayats and the auditing of such accounts.

243K. Elections to the Panchayats.-The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.

(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:

Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.

(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).

(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.

243L. Application to Union territories.-The provisions of this Part shall apply to the Union territories and shall, in their application to a Union territory, have effect as if the references to the Governor of a State were references to the Administrator of the Union territory appointed under 239 and references to the Legislature or the Legislative Assembly of a State were references, in relation to a Union territory having a Legislative Assembly, to that Legislative Assembly:

Provided that the President may, by public notification, direct that the provisions of this Part shall apply to any Union territory or part thereof subject to such exceptions and modifications as he may specify in the notification.

243M. Part not to apply to certain area.-(1) Nothing in this Part shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas referred to in clause (2), of article 244.

(2) Nothing in this part ''shall apply to-

(a) the States a Nagaland, Meghalaya and Mizoram;

(b) the Hill areas in the State of Manipur for which District Councils exist under any law for the time being in force.

(3) Nothing in this Part-

(a) relating to Panchayats at the district level shall apply to the Hills areas of the District of Darjeeling in the State of West Bengal for which Darjeeling Gorkha Hills Council exists under any law for the time being in force;

(b) shall be construed to affect the functions and powers of the Darjeeling Gorkha Hills Council constituted under such law.

[(3A) Nothing in article 243D, relating to reservation of seats for the Scheduled Castes, shall apply to the State of Arunachal Pradesh.]

(4) Notwithstanding anything in this Constitution-

(a) the Legislature of a State referred to in Sub-clause (a) of clause (2) may, by law, extend this Part to that State, except the areas, if any, referred to in clause (1), if the Legislative Assembly of that State passes a resolution to that effect by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting;

(b) Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368.

243N. Continuance of existing laws and Panchayats.- Notwithstanding anything in this Part, any provision of any law relating to Panchayats in force in a State immediately before commencement of the constitution (Seventy-third Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement whichever is earlier.

Provided that all the Panchayats existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each house of the Legislature of that State.

243-O. Bar to interference by courts in electoral matters.- --Notwithstanding anything in this Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State."

27. It is event from the reading of Article 243B that a Panchayat is to be established in every State at the village, intermediate and district levels. Article 243(d) defines ''panchayat'' as an institution of the self-government constituted under Article 243B for the rural areas. The expression "self- government", though incorporated under Article 243(d) of the Constitution, is not defined in any of the enactments in question.

28. The Andhra Pradesh High Court in Velpur Gram Panchayat and Another Vs. Asst. Director of Marketing, Guntur and Others, observed that in absence of definition of "self-government", it becomes a political expression understood in administrative law to be a Government which can rule itself and it is beyond the meaning of autonomy. After referring-to the certain dictionary meaning, the Court ruled that a panchayat by virtue of Article 243(d) would be a self-government or may be a local self-government but not a local authority. The Court further held that the meaning of Panchayati Raj is akin to territorial kingdom however within the democratic intent and subject to the provisions of Panchayat Raj Act and the Constitution. It would be profitable to extract para 16 from the judgment as follows:

"16. The expression ''self Government'' from the latin gubernaculum means "The system of polity in a State; that form of fundamental rules and principles by which a nation or State is governed, or by which individual members of a body politic are to regulate their social actions. A constitution either written or unwritten, by which the rights and duties of citizens and public officers are prescribed and defined, as a monarchical Government, a republican Government etc. The sovereign or supreme power in a state expresses its will and exercises its functions; or the framework of political institutions, departments, and offices, by means of which the executive, legislature and administrative business of the State is carried on" (under the word "GOVERNMENT" at page 695 of Black'' Law Dictionary, sixth edition, 1990). The expression ''self-Government'' understood in that context is a sovereign Government to rule by itself. Self- Government as a noun means control of one''s own (political) affairs, and self-Government as an adjective means having control over oneself, specifically having self-Government (page 842, Penguins English Dictionary). ''Self-Government'' means "self- rule, self-determination, home rule, heteronomy, dominion rule, colonial Government, colonialism, neo coloniajism, provisional Government, coalition Government" (Item 612 page 475 of the Original Roget''s Roget''s International Thesaurus, fifth edition). The Supreme Court in Valjibhai Muljibhai Soneji and Another Vs. The State of Bombay (Now Gujarat) and Others, was considering the meaning of the expression '' local authority'', and it held that a State Transport Corporation was not a local authority although it could acquire the land by virtue of the provisions of the Land Acquisition Act. Reliance was taken from Section 3(17) of the General Clauses Act, for the purpose of knowing the meaning of the expression ''local authority''. Therefore, the meaning of local authority is restricted and exclusive of the meaning of self-Government. A local authority and local self-Government are different in form, intent and the Governments. A local authority like the municipality or as in the present case Agricultural Market Committee will be statutory authorities, whereas a Gram Panchayat as in the present case by virtue of Article 243(d) would be a self-Government or may be a local self-Government, but not a local authority. In that view of the matter, to put it in substance, a Gram Panchayat as a self-Government is a sovereign body having both constitutional and a statutory status, to not only govern itself but to govern its subjects within its territory. The meaning of Panchayat Raj is akin to a territorial kingdom, however within the democratic intent and subject to the provisions of the Panchayat Raj Act and the Constitution."

29. The survey of various amended provisions under part IX will show that the provisions are only in the nature of basic provisions and they are required to be supplemented by law made by the respective State Legislature. It is because the self-government institution for rural areas is exclusively a State subject under Entry-V List-II. As provided under Article 243C, the legislature of a State is required to make law with respect to composition of panchayats subject to Constitutional provisions contained in Part IX. According to Article 243A, a Gram Sabha exercises such powers and performs such functions at the village level as the Legislature of a State may, by law, provide. Article 243D(1) provides for the seats to be reserved for Scheduled Castes and Scheduled Tribes in every Panchayat. Sub-section (4) also directs that the offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide. Further under Sub-section (6), a State Legislature may make any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of "backward class of citizens". Even the Chairperson of a village Panchayat is to be elected in such manner as the State Legislature may provide by law as contemplated under Article 243C(5) of the Constitution. Under Article 243G, the State Legislature may, by law, endow the Panchayats with such powers and authorities as may be necessary to enable them to function as institutions of the Self-Government. Under Article 243H, the State Legislature may confer power on Panchayats to levy and collect specified taxes, duties, tolls and fees. Article 243I mandates the State Government to constitute a Finance Commission after every five years to review the financial position of the Panchayats and suggest the ways and means to strengthen their financial position. The elections of the Panchayats are to be conducted under the supervision of the state Election Commission as provided under Article 243K. Thus, though the underlying idea of Seventy-third Amendment in the Constitution by inserting Part IX may be to make Panchayats as vibrant units of Self-Government and local administration in the rural areas to strengthen the democratic institutions at the grass-root level. However, it is entirely dependent on the State Legislature. It further appears that the State Legislature has been reluctant to transfer real powers and have retained with them, or with their officials the powers of supervision, control, suspension, notification of functions, approvals of schemes and the like. Thus, it is incorrect to think that by use of expression "Self-Government" under Article 243(d), the Panchayati Raj has acquired the status as a sovereign body having both Constitutional and Statutory status at par with the Union or the State Government. In fact, the Indian Constitution clearly establishes the dual polity, a two-tier Government System with the Central Government at one level and the State Government at the other. Thus, we are of the view that the tall stand taken by the petitioners that the Panchayats have acquired the status of one of the form of Government at part with the Union Government and the State Government, cannot be accepted. The use of words "Self- Government" has not made any substantial change with the words "Local Self-Government". It can only be said that the Constitutional amendments have set the tone & spirit and provide a springboard for action.

PUBLIC SERVICE COMMISSION:

30. At this stage, it would be further desirable to acquaint with the provisions in the Constitution dealing with the Public Service Commission.

31. With a view to ensure that best available persons are selected for appointment to a post so as to avoid arbitrariness & nepotism in the matter of appointment necessary for efficient working of the democracy, an institution in the name of "Public Service Commission" has been established under Article 315(1) of the Constitution. The basic policy of the Constitution is that each State should have its own Public Service Commission. But if for administrative or financial reason, it is not possible for each State to have Commission of its own, two or more States may have a joint Public Service Commission. The Public Service Commission is an autonomous body immune from any pressures.

32. Article 321 of the Constitution of India reads as follows:

"Article 321: Power to confer additional functions on a Public Service Commission.-l. A Public Service Commission cannot take up any function other than those specified in Article 320, even at the request of the Government, unless such functions are conferred in the manner prescribed by Article 321.

2. The conditions for the conferment of additional functions under the present Articles are-(a) an Act of the competent Legislature; (b) such functions must relate to the services of the Union, or the State, or a local authority, or a statutory corporation, or a public institution. It cannot be done by any private arrangement between the Government and the Commission.

33. The Apex Court in Ashok Kumar Yadav and Others Vs. State of Haryana and Others, with respect to independence of the Public Service Commission has observed as follows:

"The value of independence, impartiality and integrity are the basic determinates of the Constitution conception of Public Service Commission and their role and functions as provided under Article 321 of the Constitution, the State legislature may impose additional functions on the State Commission regarding the State service, local authority, public institutions or any other Corporate authority constituted by law.

34. Thus, the Public Service Commission cannot take up a function other than those specified in Article 320 even if the request of the State Government, unless such functions are conferred in the manner prescribed by Article 321. The conditions for conferment of additional functions under Article 321 are (a) an Act of the competent Legislature; (b) such functions must relate to the services of the Union, or the State, or a local authority, or a statutory corporation, or a public institution.

35. Thus, the question arises for consideration is as to whether the services of Primary School Teacher Gr.III in a Panchayat falls in the category of "State Service". In alternate, further question arises, if the Panchayat is a local authority. In order to appreciate the contention, it would be necessary to restate Section 89 of the Act of 1994, which reads as follows:

"Section 89-Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service-

1. There shall be constituted for the state service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and hereafter in this section referred to as service and recruitment thereto shall be made district wise.

"Provided that selection for the post specified in clause (iii) of subsection (2) shall be "made at the state level.

2. The service may be divided into different categories, each category being divided into different grades, and shall consist of-

(i) Village level workers;

(ii) Gramsevikas;

(iii) Primary and upper Primary school teachers; and

(iv) Ministerial establishment may (except Accountants and Junior Accountants)."

36. Section 89 provides that there shall be a "State Service" in the name of Rajasthan Panchayat Samiti & Zila Parishad Service for which the recruitment shall be made district-wise. The service includes Primary and upper Primary School Teachers. Thus, for the purpose of Section 89, the Primary and upper Primary School Teachers in a Panchayat belongs to "State Service" designated as Rajasthan Panchayat Samiti & Zila Parishad Service. Such a question came up for consideration before the Apex Court in State of Gujarat and Others Vs. Raman Lal Keshav Lal and Others, In para 12, the Apex Court posed the question as follows-

"(1) Whether the Panchayat Service was a Civil Service of the State?

37. After referring-to various provisions of the Gujrat Panchayat Act, the Apex Court held that the panchayat service is constituted by the Panchayats Act and the State Government is empowered to make orders and rules regarding its organization and management.

38. In Municipal Corporation of Delhi Vs. Birla Cotton, Spinning and Weaving Mills, Delhi and Another, the Apex Court attributed all local bodies as subordinate branches of Government activity. The Apex Court observed that they are democratic institutions managed by the people. They function for public purposes and take away a part of the Government affairs in local areas. The Court further observed that they are intended to carry on local self-government but they function under the supervision of the Government.

39. The aforesaid observations have been noted by the Apex Court, with approval, in Union of India (UOI) and Others Vs. Shri R.C. Jain and Others,

40. The Apex Court in Sri R.N.A. Britto v. The Chief Executive Officer 1995 (4) SC 582) after referring-to various provisions of Karnataka Panchayat Act, held that Panchayat Secretaries under the Act are the State Government servants.

41. In Housing Board of Haryana Vs. Haryana Housing Board Employees Union and others, , while answering the question as to whether the Haryana Housing Board is a Local Authority, the Apex Court observed in para 5 and 6 as follows:-

"5. Concept of "Local Authority" is also found contained in Entry 5, List II of the Seventh Schedule of the Constitution which provides as under:-

"5. Local Government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-Government or village administration."

6. The Entry empowers the State Legislature to make law with respect to any subject relating to Local Government including the constitution of "Local Authorities". The State Legislature can also confer such powers as it itself possesses upon a "Local Authority", including the power of taxation (within the limits of List II) for the purposes of Local Self Government. The "Local Authority", undoubtedly, is a representative body but notwithstanding its representative, character, it remains a sub-ordinate Authority created by a statute and, therefore, it cannot claim the power of taxation which belongs to the State Legislature except to the extent it is conferred upon it by the statute which creates it."

42. A Division Bench of this Court in Niyaz Mohammed Khan Vs. State of Rajasthan and Another, held that the persons working as the members of the Panchayat Service are engaged in the Governmental functions and, therefore, they have to be treated as the Members of the State Civil Service. In fact the controversy involved in the instant petitions is squarely covered by the decision of this Court in Niyaz Mohammed Khan''s case (supra). The Division Bench after referring Sections 89, 91 and 93 and other provisions concluded in para 19 and 20 as follows:-

"19. The Panchayat Samitis, Zila Parisad and the Panchayats derive their authority from the statute and are under the Administrative Control of the State Government. These institutions exercise many Governmental Functions which the State Government can perform. These are the authorities which can be treated as the "State" for the purpose of Article 12 of the Constitution of India. The provisions of the Act and the Rules, to which we have adverted, clearly state that the State Government has powers (i) to encadre in the service any other category or grade of officers not included in the service; (ii) to prescribe duties and powers of employees encadred in the service; (iii) can frame rules relating to disciplinary proceedings and punishment; (iv) is the Chief Superintending and Controlling Authority in respect of all the matters relating to the administration; (v) has power to direct each or any of the Panchayati Raj Institution for the purpose of duties which it failed to perform; (vi) has power to dissolve any Panchayat Raj Institution on being satisfied that either the institution is not competent to perform or peristently making defaults in the performance of the duties or it has exceeded or abused the power; (vii) the power to appoint an Officer-in-Charge of the Panchayat and other subordinate Officers and staff for the discharge of the functions in regard to the administration of the panchayat; and (viii) to determine and adjudicate the matters relating to increment, fixation of pay, seniority etc. of the members of the service.

These are the powers which are vested in the State Government under the Act and the Rules. The State Government is, also, authorized under the Panchayati Raj Act to delegate many of its functions to the Rajasthan Panchayati Raj Institution and, also, to transfer its officers and servant to function under their supervision and control as the Members of the Panchayat Service. The persons working under the Panchayat Service are, also (i) the persons holding the post entitled (ii) being eligible for the post in the State Service or under the State Government in accordance with the Rules made in this behalf; (iii) the period spent by the person in the Panchayat Service, after transfer, can be counted for the purpose of seniority and pension; (iv) salary and allowance of the servant and officers of the Panchayat Service are to be paid from the funds contributed by the State Government or raised by the Panchayati Raj Institution in the discharge of the Governmental Functions; (v) pension is to be paid by the State Government out of the Consolidated Fund of the State; (vi) recruitment by transfer to the Government Service on reduction or abolition of the post; (vii) transfer or re-transfer from the service to the Government Service on being declared surplus; (viii) applicability of the Rajasthan Service Rules, 1951 and the Rajasthan Travelling Allowances Rules to service relating to the regularization of the pay, leave, allowances, pension etc.; (ix) eligibility of the members of the service for appointment on the next higher post in the State Service; (x) counting of the past period in the service for determining the seniority and pension; (xi) filling-up of 75% of the vacancies in the Rajasthan Educational Subordinate Service Rules by way of transfer of teachers working in the Panchayat Samities, and (xii) the transfer of a person holding a post in the State Service for a post encadred in the Panchayat Service, are the conditions which clearly show that the persons working as the members of the Panchayat Service are engaged in the Governmental functions and, therefore, they have to be treated as the Members of the State Civil Service.

20. We are, therefore, of the view that the Panchayat Service constituted u/s 89 of the Act, 1994 or u/s 86 of the Rajasthan Panchayat Samities and Zila Parishad Act, 1959 is the civil service of the State as it has all the characteristics of that service. The members of the Panchayat Service, therefore, hold the office for a civil post. The teachers working in the Government Schools which are under the control of the Panchayat Samities and Zila Parishads, are, therefore, the civil servant under the State Government and are entitled for relaxation of three years age as has been made applicable to the State Government employees. We may however, make it clear that the view taken by us in the present case applies only to the service constituted u/s 89 of the Act, 1994 or u/s 86 of the Act, 1959; but will not apply to other employees of the Panchayati Raj Institution who are not the members of the Panchayat Service. The other employees of the Panchayati Raj Institutions, who are not the members of the Panchayat Service though working with the Panchayat, cannot be treated as the members of the State Civil Services."

43. We may also notice Sub-section (11) of Section 89, which provides that post encadred in the service constituted under this Section, shall be entitled to payment of the pension by the State Government out of the consolidated fund of the State in accordance with the rules made by it in that behalf. Thus, we conclude that the recruitment to the post of Primary School Teacher or Gr.III Teacher falls in the category of State Service. The Rajasthan State Legislative Assembly is competent to confer additional functions on the RPSC with respect to recruitment of Teachers Gr.III, as they belong to "State Service" designated as Rajasthan Panchayat Samiti & Zila Parishad Service. Accordingly, first contention is rejected.

CONTENTION NO (ii):

44. It is submitted that Gram Sabha and the Panchayats are provided with autonomy under Part (IX) of the Constitution of India. Taking up recruitment of Teachers in the services of the Panchayats and entrusting to the R.P.S.C., amounts to interference with the autonomy of the local self Government constituted under Article 243B of the Constitution.

45. We are unable to agree with the submission of the learned counsel. It is of-course true that under the unamended provisions, the selection on the post of Primary School Teacher was to be made by the District Establishment Committee but now the same has been transferred to the R.P.S.C. As per the scheme of the Act, there is no change in the appointing authority. The power of appointment on the post of Primary School Teacher including the power to create posts, determine vacancies and give appointment is vested with the Panchayat. However, difference made is that under the unamended provisions, every District Establishment Committee was having their own procedure but now the same has been entrusted to the Constitutional body like R.P.S.C. The Commission shall conduct the examination and send the merit list to the respective Panchayats. The appointments are to be made as per the preference given by the candidates in the respective Panchayats. With a view to maintain purity and uniformity in the process of selection, it has always been considered to take a uniform written test. We need not emphasize that the role of a teacher is central to all process of formal education. Sub-standard teachers would be detrimental to our educational system. The Apex Court in A.K.E. Society v. Director of School Education (AIR 1989 SC 183) has described the teachers as engine of the educational system. The Apex Court observed:

"It is, therefore, needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill trained or sub-standard teachers would be detrimental to our educational system; if not a punishment on our children. The Government and the University must, therefore, taken care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration."

46. It is well settled that the State has a power to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State. Reference may be made to V.K. Sood Vs. Secretary, Civil Aviation and others, and Dinesh Kumar and Others Vs. Motilal Nehru Medical College, Allahabad and Others, Thus, it is incorrect to impute motives to the State that by impugned amendment, it intends to interfere with the autonomy of the Panchayats. The purpose appears to be to ensure purity & uniformity in the process of selection of Teachers Gr.III.

CONTENTION NO. (iii):

47. As regards third contention, as far as Article 21A of the Constitution of India is concerned, it casts an obligation on the State to provide free and compulsory education to all children of the age of six to fourteen years. The provision reads as follows:

"21 A. Right to education.-The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."

48. We have not been able to understand as to how with the change of process of selection of Primary School Teachers, there is infringement of Article 21A of the Constitution of India. Similarly, Article 45 is also not attracted in the present case, which provides that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.

49. It is submitted that the Primary School Teachers are meant to impart instructions at the primary level of students in the State of Rajasthan and, as such, there has to be emphasis for selection of only such teachers who are acquainted with the local dialect and culture, otherwise it will not be possible to impart better instructions to little ones. It is vehemently argued that with the present process of selection by the R.P.S.C., people from all over the Country will come, belonging to different parts of the Country and they will not be able to establish rapport with the little ones particularly in the rural areas. There is no rule which provides eligibility of the persons having knowledge of Rajasthani dialect or Rajasthani culture. Thus, they will be unfit to serve the purpose of imparting education in the State of Rajasthan.

50. As regards Article 350A, it is submitted that the primary school teachers are manned to impart the instructions at the primary level to the students in the State and, as such, there has to be an emphasis for selection of only such teachers who are acquainted with the local dialect.

51. In order to appreciate the contention, it would be convenient to read Article 350A as follows:

"350A. Facilities for instruction in mother-tongue at primary stage.-It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups; and the President may issue such directions to any State as he considers necessary or proper for securing the provision of such facilities."

52. A bare look at the provision clearly shows that it has no application to the instant case, as it refers to linguistic minority groups.

53. Mr. N.M. Lodha, learned Additional Advocate General, submits that the contention deserves to be rejected on the short ground that the petitioners have not pointed-out the language of linguistic minorities. In rebuttal, it is submitted that even ignoring the several dialects of Rajasthan, which have been considered by the Census Department as languages of the Rajasthan, there are languages which are part of Eighth Schedule i.e., Urdu, Punjabi, Sindhi, Marathi & Brij. According to Mr. Mridul, they have not been taken into account. Learned counsel has referred to a judgment of the Karnataka High Court reported in AIR 1989 Karn 264 . It is submitted that the writ petition was allowed on the ground that the language of linguistic minorities was not made a part of the syllabus. It is further submitted that ultimately by the time when the matter reached the Supreme Court while almost holding Article 350A of the Constitution to be mandatory, the Apex Court affirmed the decision of the Government by including the linguistic minorities as part of the syllabus. The Scheme for primary education was upheld by the Apex Court in English Medium Students Parents Association Vs. State of Karnataka and others, Learned counsel has also referred to the State Service Rules of the Rajasthan Services, wherein provision has been made either to the effect that in the course of interview, one of the criteria for success will be the knowledge of Rajasthani Culture and dialect and/or Rajasthani Culture. According to the learned counsel, such a provision ensures that primary school teacher at gross-root level will be able to graduate a tiny tot into studies of subjects which he is supposed to each.

54. In our view, the contention is absolutely off the track. A perusal of the Syllabus, which has been extracted in earlier part of the judgment, clearly shows that it includes knowledge of Rajasthani Culture, History, Geography and Hindi. It further provides that a candidate for the Primary School Teacher in the rural area must have knowledge of current affairs with special reference to State of Rajasthan. It further provides that a candidate must have the knowledge of Geography, History and Culture of Rajasthan. No case is made out to strike down the impugned amendment on the ground of violation of Article 350A. The contention is rejected, as it does not advance the case of the petitioners.

CONTENTION NO. (iv):

55. As regards the fourth contention, it is stated that the posts of Teacher Gr.III in the Education Department are governed by the Rules of 1971 and 75% of vacancies determined by the Department are required to be filled-in by transfer of teachers working in Panchayat Samities and 25% are required to face selection at the district level Committee. The say of the petitioners is that while recruitment of 75% Teachers for Panchayat Samities is through R.P.S.C., 25% selection is by a committee constituted under the Rules of 1971. It is not in dispute that the selection under the Rajasthan Panchayati Raj Act are governed by the provisions contained under the Rajasthan Panchayati Raj Act and the Rules, whereas the selection under the Rules of 1971 are governed by different law viz; Rajasthan Educational Subordinate Service Rules. Hence, there is no inequality. It further appears that prior to the amendment, there were two different modes of selection viz; in Panchayati Raj Institutions, the selections were to be made by the District Establishment Committee whereas under the Rules of 1971, a different selection board is constituted i.e., a board constituted under the Rules of 1971. A statement is made at bar by Shri Lodha, learned A.A.G., that before the State Government, a proposal is pending consideration to make a provision to the effect that no direct recruitment is made under the Rules of 1971 and all the vacancies under the Rules of 1971 are filled-in by transfer from the teachers working under the Panchayati Raj Institutions only so that every teacher has an experience of working in the rural areas at the initial stage. Thus, it is not at all a case of discrimination.

56. Thus, we are of the view that the impugned amendment is neither inconsistent with any of the Constitutional or Statutory provision nor unreasonable nor arbitrary. Accordingly, we uphold the Constitutional validity of the amended provisions of the Act of 1994 and the Rules of 1996.

PLEA FOR REGULARIZATION:

57. In the aforesaid back drop the case of the petitioners in brief is that they were appointed after due selection conducted by the respondents in accordance with the respective notifications issued by the State Government. Thus for all purposes, their appointment on the post of Para Teachers is substantive in nature and they are to be treated as regular employees of the respondent State as Teacher Gr.III and not to treat them as such is unjust, unreasonable and arbitrary in violation of Articles 14 & 16 of the Constitution of India. In alternate, it is submitted that as they have continued in service for long their services are required to be regularized. On the other hand, the case of the respondents is that the petitioners were engaged as Para Teachers by the Panchayat Samities under the Rajiv Gandhi Swaran Jayanti Pathshala Scheme. The said Scheme was framed with dual object of universalization of elementary education by establishing large number of schools almost in all villages and Dhanies with a view to spread education in rural areas. Thus, they were appointed under a Scheme of non-statutory nature. They were being paid honorarium by the Gram Panchayat and for that they were being given aid by the State Government. The Scheme was supplemented by the Circular dated 30th April, 2001 when it was provided that Para Teachers will be engaged from the same category of OBC/SC/ST to which Sarpanch of that Panchayat is elected, meaning thereby their reservation for engagement in Para Teacher was on the basis of the category to which a Sarpanch belongs. Thus, Para Teachers are entirely different from that of Government Servant. Several decisions of Apex Court have been cited by respective parties in support of their contentions.

58. In earliest case, Randhir Singh v. Union of India and Ors. (1982 SC 879) the Apex Court held that equal pay for equal work is not an abstract doctrine and how it is vital and vigorous doctrine accepted throughout the world, particularly by socialistic countries. In the said case petitioner a driver in the Delhi Police Force made a demand that his scale of pay should at least be the same as the scale of pay of other drivers in service of Delhi Administration. The Court having found that the drivers in Delhi Police Force perform the same functions and duties as other drivers in service of Delhi Administration and the Central Government and as such they were entitled to the same Pay Scale. The Court observed that the principle of equal pay for equal work though not expressly declared by the Constitution/to be a fundamental right but it certainly is a constitutional goal. This case is of no help to the petitioners as it simply pertains to equal pay for equal work.

59. In Dhirendra Chamoli and Another Vs. State of U.P., Dehradoon engaged number of persons as casual workers on daily wage basis and though they were doing the same work as is being performed by Class IV employees for not less than 12 years on regular basis, they were not being given the same salary and allowances as being paid to Class IV employees. The Court while rejecting the contention of the respondents that the petitioners had taken up employment with the Nehru Yuvak Kendra knowingly fully well that they will be paid only daily wages and therefore they could not claim more, held that petitioners were entitled to the same salary and condition of service as being received by Class IV employees, but no direction was given for regularization as there were no sanctioned posts.

60. In Surendra Singh v. Engineer-in-Chief, CPWD (1986(1) SCC 639) the Apex Court having found that the petitioners were employed by the CPWD on daily wage basis and have been working for several years directed the respondents to pay the petitioners and all other daily rated employees the same salary and allowances ad paid to the regular and permanent employees w.e.f. the date they were respectively employed.

61. In Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, the daily rated workers working in the respondent Corporation sought direction for regularization of their service in their respective units and to pay them equal, wages with initial basic pay, D.A. and other admissible allowances at par with regularly appointed employees of the respondents performing the same and similar duties. They were continuously working for the period 1982, 1983 to 1986. The Court held that the petitioners having worked for substantial period gained sufficient experience in the actual discharge of their duties attached to the post held by them. It was further observed that practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. Since the petitioners satisfied the requirement of 3 years service a direction was given that 40 of the senior most workmen should be regularized with immediate effect and remaining 118 may .'' be regularized in a phased manner.

62. In The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and others, etc. Vs. State of Karnataka and others etc., direction was sought to confirm the daily rated and monthly rated employees as regular government servants and for payment of normal salary at the rates for the appropriate categories of the government servants and other service benefits. Considering the fact that about 50000 such workers employed in different government establishments and though many of them have put in 15 to 20 years of continuous service, they were not being paid equal pay for equal work, the Court approved the scheme framed by the State for regularization of the services of the casual/daily rated employees. The court further observed as follows:-

"We are alive to the position that the scheme which we have finalised is not the ideal one but as we have already stated, it is the obligation of the court to individualise justice to suit a given situation in a set of facts that are placed before it. Under the scheme of the Constitution the purse remains in the hands of the executive. The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer. Therefore, unduly burdening the State for implementing the constitutional obligation forthwith would create problems which the State may not be able to stand. We have, therefore, made our directions with judicious restraint with the hope and trust that both parties would appreciate and understand the situation. The instrumentality of the State must realise that it is charged with a big trust. The money that flows into the Consolidated Fund and constitutes the resources of the State comes from the people and the welfare expenditure that is meted out goes from the same Fund back to the people. May be that in every situation the same tax payer is not the beneficiary. That is an incident of taxation and a necessary concomitant of living within a welfare society."

63. In Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, upon the establishment of the Kerala Water Authority under the Kerala Water Supply and Sewerage Act, 1986 all the functions of Public Health Engineering Department were also transferred to the said Authority. All the employees of the said Department were transferred to the Authority. After its constitution, the Authority too required some persons w.e.f. 13th July, 1988. The Authority came within the purview of Public Service Commission. Apprehending the termination the petitions were filed. It was contended that till the issuance of the Notification dated July 30, 1988 amending the concerned PSC Rules, there was no question of Authority consulting the PSC and therefore, appointments made prior to the date cannot be termed as irregular or unauthorized and cannot be determined on that ground. The Court interpreted Rule 9(a)(i) in the spirit and philosophy of the Constitution and gave elaborate directions for regularization in a phased manner.

64. All the aforesaid cases were surveyed by the Apex Court in State of Haryana and others Vs. Piara Singh and others etc. etc., The Court observed that the Court must while giving such directions act with due care and caution. It must ascertain the relevant facts and must be cognizant of the several situations and eventualities that may arise on account of such directions. While setting aside the direction of regularization given by the High Court the Court disapproved the wholesome regularization of all such persons who had put in one year''s of service. It would be profitable to extract para 12 of the judgment as follows:-

"12. As would be evident from the observations made and directions given in the above two cases, the court must, while giving such directions, act with due care and caution. It must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. Now, take the directions given in the judgment under appeal. Apart from the fact the High Court was not right-as we shall presently demonstrate in holding that the several conditions imposed by the two Governments in their respective orders relating to regularisation are arbitrary not valid and justified-the High Court acted rather hastily in directing wholesome regularisation of all such persons who have put in one year''s service, and that too unconditionally. We may venture to point out the several problems that will arise if such directions become the norm:

(a) Take a case where certain vacancies are existing or expected and steps are taken for regular recruitment either through Public Service Commission or other such body, as the case may be. A large number of persons apply. Inevitably there is bound to be some delay in finalising the selections and making the appointments. Very often the process of selection is stayed or has to be re-done for one of the other reason. Meanwhile the exigencies of administration may require appointment of temporary hands. It may happen that these temporary hands are continued for more than one year because the regular selection has not yet been finalised. Now according to the impugned direction the temporary hands completing one year''s service will have to be regularised in these posts which means frustrating the regular selection. There would be no post left for regularly selected persons even if they are selected. Such cases have indeed come to this court from these very two States.

(b) In some situations, the permanent incumbent of a post may be absent for more than a year. Examples of this are not wanting. He may go on deputation, he may go on Faculty Improvement Programme (F.I.P.), or he may be suspended pending enquiry into charges against him and so on. There may be any number of such situations. If a person is appointed temporarily in his place and after one year he is made permanent where will the permanent incumbent be placed on his return? Two persons cannot hold the same post on a regular or permanent basis.

(c) It may also happen that for a-particular post a qualified person is not available at a given point of time Pending another attempt at selection later on an unqualified person is appointed temporarily. He may continue for more than one year. If he is to be regularised, it would not only mean foreclosing of appointment of a regular qualified person, it would also mean appointment of an unqualified person.

(d) Such directions have also the effect of disregarding and violating the rule relating to reservation if favour of backward class of citizens made under Article 16(4). What cannot be done directly cannot be allowed to be done in such indirect manner.

(e) Many appointments may have been made irregularly-as in this case-in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a back door entry. A direction to regularised such appointments would only result in encouragement to such unhealthy practices.

These are but a few problems that may arise, if such directions become the norm. There may be many such and other problems that may arise. All this only emphasises the need for a fuller consideration and due circumspection while giving such directions."

65. In Arun Kumar Rout and Others Vs. State of Bihar and Others, the Court while holding that there is not inherent right to claim regularization as the matter of course but in the circumstances where initial appointment though was irregular but the incumbent did not lack in requisite qualification and had served the Department satisfactorily even without getting any salary for a long time, directed to fill in 50% sanctioned posts from among appellants on the basis of their inter se merit by regularization.

66. In Gujarat Agricultural University Vs. Rathod Labhu Bechar and Others, the appellant University had engaged a large number (51000) of daily rated labourers for various activities. They comprised unskilled, semi-skilled, skilled and field labourers of different categories and included plumbers, carpenters, sweepers, pump operators, helpers and masons etc. Their appointments were made in the exigencies of work dehors the recruitment rules. They were being paid wages as per the minimum waged fixed by the State Government from time to time under the Minimum Wages Act. In 1987, their claim to permanent status was referred to the Industrial Tribunal, which directed the appellant to regularize the services of all such workers who have completed 10 years of service as on 1.1.1993. Setting aside the award a Single Judge of the High Court directed the appellant to make the payment to the workman at the minimum of the pay scale and also to frame a scheme for the regularization of such daily rated labourers. The decision was upheld by the Division Bench. However, the appellant itself submitted a scheme for absorption of those employees. The Apex Court approved the scheme for absorption of those employees. The Apex Court approved the scheme with certain modification. In fact the modification was with respect to relaxation in the eligibility condition. The court observed in Para 28 as follows:-

"We feel that daily-rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts in a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence clause i(a) needs modification to this effect."

67. The learned counsel for the petitioners have referred to some more cases but it is not necessary to deal with them as they pertain to the doctrine of equal pay for equal work. . .

68. In Dr. M.A. Haque and Ors. v. Union of India and Ors. (1993(2) SCC 213) the Court observed that recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. The Court observed as follows:-

"The recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the bypassing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit.

In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions required recruitment to the services through the Public Service Commission. It appears that since Supreme Court has in some cases permitted regularisation of the irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been the the recruitment rules and the Public Service Commissions have been kept in cold storage and candidates dictate by various considerations are being recruited as a matter of course."

69. In Ramakrishna Kamat and Others Vs. State of Karnataka and Others, the appellants were appointed as teachers in various schools by Zila Parishad after being selected by Betterment Committees on payment of honorarium of Rs. 200-300 per month in the year 1988-89. They moved the State Government for regularization of their services in 1991. The State Government rejected the claim. On the decision being challenged a Single Judge of the High Court gave certain directions to mitigate their hardship. Dis-satisfied with the order of the learned Single Judge, they unsuccessfully approached to the Division Bench. The matter was carried to the Apex Court. The Court observed that while being sympathetic to the person who came before the Court, the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment.

70. In State of Orissa and Ors. v. Dipti Paul the Government of Orissa introduced a scheme under which trained matriculates wee to be engaged as Shiksha Karmis in Primary and Upgraded Upper Primary schools on fixed remuneration. The duties of Shiksha Karmis were to promote universal primary education by motivating parents of children below age of 14 years to get their children enrolled in Primary Schools and to motivate them to attend the classes regularly. The scheme was in operation for approximately 7 years. On account of various difficulties experienced by the government in the working of the scheme and complaints received the government decided to abolish Shiksha Karmis. Accordingly the scheme was abolished and a decision was taken to fill up the vacancies in the rank of Primary School Teachers through direct recruitment. The decision was challenged before the Orissa Administrative Tribunal inter alia claiming regularization as Primacy School Teachers. The Tribunal granted the relief. The decision of the Tribunal was challenged before the Apex Court. The Apex Court noticed the the scheme was for the purpose of promoting the policy of universalization of primary education. The scheme provided a fixed remuneration to those appointed under the scheme. Considering all the relevant factors the Apex Court observed that the entire scheme would be frustrated if the persons appointed under the scheme were to receive the same remuneration as Primary School Teachers from the inception. It would be profitable to extract the relevant para which reads as follows:-

"In the present case, the Scheme was for the purpose of promoting the policy of universalisation of primary education. The Scheme provided for a fixed remuneration to those appointed under the scheme The Scheme was a self contained scheme and prescribed specific duties for those engaged under it. It also gave an opportunity to those employed under his Scheme, if they had the requisite qualification and their work was found satisfactory for four years, to be considered for regular appointment as Primary School Teachers. The entire Scheme would be frustrated if the persons appointed under the Scheme were to receive the same remunerations as Primary School Teachers from the inception."

The Court held that non-formal education centres cannot be equated with the Primary Schools which are regularly run by the Education Department of the State Government. The said case is very close to the instant group of petitions.

71. In Madhyamik Siksha Parishad, U.P. Vs. Anil Kumar Mishra and others etc., the Court held that workers on temporary assignment only working on unsanctioned posts, no right of regularisation exists for such employees. The Court also disapproved the import and apply the analogy of the provisions of the Industrial Disputes Actin such cases. It would be convenient to extract the observation of the Apex Court as follows:-

"We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days'' work. The legal consequences that flow from work for the duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, in attributed to the present situation by way of analogy. The completion of 240 days'' work does not, under that law import the right to regularisation. It merely imposed certain obligations on the employer at the time of termination of the Service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here."

72. In State of Himachal Pradesh v. Suresh Kumar Verma and Anr. 1996(2) SC 455) the Court held that the appointment on daily wages basis is not an appointment to a post according to the rules. As such no appointment could be given in the regular cadre by way of regularization dehors the Rules. The Court observed as follows:-

"... It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules.

It is seen that the project in which the respondents were engaged had come to an end and that, therefore, they have necessarily been terminated for want of work. The Court cannot give any directions to re-engage them in any other work or appoint the against existing vacancies. Otherwise, the judicial process would become other mode of recruitment de hors the rules.

... The vacancies require to be filled up in accordance with the rules and all the candidates who would otherwise eligible are entitled to apply for which recruitment is made and seek consideration of their claims on merit according to the Rules for direct recruitment along with all the eligible candidates. The appointment on daily wages cannot be a conduit pipe for regular appointments which would be a back-door entry, detrimental to the efficiency of service and would breed seeds of nepotism and corruption. It is equally settled law that even for Class IV employees recruitment according to rules is a precondition. Only work-charged employees, who perform the duties of transitory nature are appointed not to a post but are required to perform the work of transitory and urgent nature so long as the work exists. One temporary employer cannot be replaced by another temporary employee."

This case is also very close to the instant case.

73. In Ashwani Kumar and Ors. v. State of Bihar and Ors. (1997(1) SC 243) the Apex Court in no uncertain term held that as the appointments have been made illegally and contrary to the recognized recruitment procedure and were highly arbitrary the same were not binding on the State. The Court further went on to hold that the initial appointment having been made contrary to the statutory rules, the continuance of such appointees must be held to be totally unauthorized and no right would accrue to them incumbents on that score.

74. In Hindustan Shipyard Ltd. and Ors. v. Dr. P. Sambasiva Rao and Ors. (1996(7) 499) the Apex Court observed,

"The process of regularization involves regular appointment which can be done only in accordance with the prescribed procedure. Having regard to the rules which have been made by the appellant Corporation, regular appointment on the post of Medical Officer can only be made after duly constituted Selection Committee has found the person suitable for such appointment."

75. In Dr. Chanchal Goyal (Mrs.) v. State of Rajasthan 2003(5) SC 144) the Apex Court categorically held that there was no scope for regularization unless the appointment was made on regular basis.

76. In A. Umarani v. Registrar Cooperative Societies and Ors. (2004 (6) SC 110) a three Judges Bench of the Apex Court after surveying almost all the cases on the point of regularization held that no regularization is permissible in exercise of statutory powers conferred upon it under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules. The Court observed as follows:

"Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation."

77. In Pankaj Gupta and Ors. v. State of Jammu & Kashmir and Ors. ( 2004(8) SC 531) the Apex Court observed,

"No person illegally, appointed or appointed without following the procedure prescribed under the law, is entitled to claim that he should be continued in service. In this situation, we see no reason to interfere with the impugned order. The appointees have no right for regularization in the service because of the erroneous procedure adopted by the concerned authority in appointing such person."

78. In Mahendra L. Jain and Ors. v. Indore Development Authority AIR (2004 SCW 6569), the Apex Court having found that the appointment on the post of Sub Engineers in Indore Development Authority were made without following the rules inasmuch as neither any intimation was given to Employment Exchange about the existing vacancies nor issued advertisement, held the appointment void ab initio. As such refused to given direction for regularization. The Court observed-

"What can be regularized is irregularity and not illegality."

79. Recently, in Sachidanandan v. State of Orissa (2004(8) SC 103 the Apex Court even struck down the validating Act, holding that ad hoc appointments made illegally, cannot stand regularized on enactment of validating Act.

80. Thus, on consideration of the cases referred to above, it emerges that the concept of regularization have been evolved by the courts in the constitutional scheme, considering the issue raised in various cases of persons who have not been appointed regularly to permanent post but appointed on temporary/casual or ad hoc or contract basis. The principle foundation for regularizing the services of the employees in cases of temporary or irregular service continued for long on equities was derived from the directives in Part IV of the constitution under Articles 39, 41 & 42. Mandate of Constitution under Articles 14 & 16 cutting the roots of arbitrariness and unreasonableness in every sphere of State action, Article 21 ensuring to life which includes right to livelihood and dignified living. Thus, under certain circumstances where not to continue a temporary or ad hoc appointment can be termed as arbitrary or unreasonable, the principle evolved for absorbing of such irregular appointees is termed as regularization. In a given case where incumbents, who have been initially appointed irregularly but within the province of the competence of appointing authority and have continued for long, discharged duties required by the employer, services may be regularized after framing a proper scheme of absorption, in terms of law laid down by Supreme Court. However, it must be borne in mind that there is no inherent or vested right of regularization, as the n9rmal rule is that regular recruitment should be made in the regular manner. This, while giving such direction, the Court must act with due care and caution. It must ascertain the relevant facts and must be cognizant of several situations and eventualities that may arise on account of such directions, including judicial restraint not to unduly over burden the State exchequer, which the State may not be able to stand. Regularization in the name of sympathetic approach cannot be one sided overlooking the other side i.e., unsympathetic to large number of eligible persons waiting for long time in queue seeking employment and encouraging back door entry, breach of statutory provisions at the cost of merit in service.

PARA TEACHERS:

81. Reverting to the cases in hand the learned counsel for the parties have referred to facts from D.B. Civil Writ Petition No. 3654/2004 (Richhpal Singh and Ors. v. State of Raj. and Ors.). This joint writ petition has been filed by 88 petitioners. It appears from Schedule A appended to the writ petition that out of 88 petitioners 61 were appointed in July, 2002, 23 in September/October, 2001. All of them have been appointed under the Rajiv Gandhi Swaran Jayanti Pathasala Scheme. Petitioners No. 64 & 65 were appointed in the year 1992 under a different non- statutory and non-existent schemes. It is stated by Mr. N.M. Lodha learned Additional Advocate General that though a tall stand has been taken by the learned counsel for the petitioners that they have been working for last number of years but from the statement made in the Schedule of each of the writ petition it is evidence that a big chunk of the petitioners have been appointed in the Rajiv Gandhi Swaran Jayanti Pathshalas in the year 2001 or 2002. It is averred that the State Government introduced a scheme in the name of Rajiv Gandhi Swaran Jayanti Pathshala vide notification dated 23rd April, 1999. As per the scheme, in the Swaran Jayanti Year with a view to universalization of education, a decision was taken to establish education centres in different villages and Dhanies. Such education centres were to be opened for providing education to the children between age 6 to 11 years in the rural areas having population of 200 or above provided it does not have school facility within a radius of 1 Km. The proposal for opening such schools was required to be considered by committee of a panchayat. It was further resolved that Para Teachers on monthly honorarium of Rs. 1200/- shall be engaged by a selection committee headed by the Sarpanch. For selection of Para Teacher a candidate was required to have passed Sr. Secondary/Hr. Secondary Examination. In tribal areas the requirement of qualification was relaxed to Matriculation. It was further provided that Para Teachers shall be appointed from the same category of reservation as to the Sarpanch. One of the sample order of appointment dated 28.8.2001 has been placed on record as Annexure-P/3. A perusal of the order shows that the selected candidates could be appointed in any primary school belonging to the State Government, or a government aided or non- government school. It was further stipulated that the experience gained as Para Teacher shall not be considered valid for appointment in government or panchayat institutions. For convenience order dated 28.8.2001 is extracted as follows:

^^dk;kZy; xzke iapk;r yw.kok tkxhj iapk;r lfefr

/kksjheUuk �ckM+esj�

�ekad % xzk-i-@2001@jk-xk-ik-@29&34                          fnukad %28-8-2001

%% vkns''k %%

Jheku mi ''kklu lfpo �izkjfEHkd f''k{kk� iapk;rh jkt foHkkx] t;iqj ds vkns''k] �ekad& i- 139�5� i-jk-fo@f''k@jk-eka-ik-@2001@1608 t;iqj fnukad 27-8-2001 ,oa Jheku vfr- eq[; dk;Zdkjh vf/kdkjh ftyk ifj"kn ckM+esj ds vkns''k �ekad&,Q&2@f''k{kk@jk-xka-ik-@ft-i-ck-@2001@2247&50 fnukad 27 vxLr 2001 Jheku [k.M izk- f''k{kk vf/kdkjh] /kksjheuk ds vkns''k �ekad 800 fnukad 27-8-2001 dh vuqikyuk esa fuEufyf[kr izf''k{k.k izkIr lg;ksfx;ksa dks muds uke ds lkeus vafdr ikB''kkykvksa esa dk;Z djus dh Loh�fr iznku dh tkrh gS A

mDr Loh�fr izkjfEHkd f''k{kk ds vUrxZr pyus okyh fdlh Hkh ljdkjh@xSj ljdkjh ;k ljdkjh lgk;rk izkIr lapkfyr ;kstukvksa ds vUrxZr gksxh A u rks dk;Z djus dh Loh�fr vkSj u gh iSjk Vhpj ds :i esa dk;Z djus dk vuqHko iSjk Vhpj dks ljdkjh laLFkk@iapk;rh jkt laLFkkvksa esa ljdkjh lsok izkIr djus ds fy, oS| gksxk A

f''k{kk lg;ksxh dks fn;k tkus okyk ekuns; ,oa vU; dk;Z izR;sd ;kstukUrxZr fufgr fu;eksa ds vurxZr gh ykxw gksxh A

�ekad %xzk-i-@2001@jk-xk-ik-@29&34                        fnukad % 28-8-2001

izfrfyfi %&

1- Jheku vfr eq[; dk;Zdkjh vf/kdkjh- ftyk ifj"kn] ckM+esj A

2- Jheku fodkl vf/kdkjh iapk;r lfefr /kksjheuk A

3- Jheku CykWd f''k{kk vf/kdkjh �izk-�/kksuheuk A

4- uksMy vf/kdkjh jk-m-izk-fo-

5- izkFkhZ Jh isykjke esx-

6- xkMZ Qkby A

,l-Mh@&        

ljiap         

xzke iapk;r yw.kok tkxhj ukxkSj

iapk;r lfefr /kksjheuk**   

82. The selected Para Teachers were also required to execute a bond. The petitioners gave an undertaking that they have joined Rajiv Gandhi Swaran Jayanti Pathshala as Para Teachers and their working shall not be treated as a service of the Government or a Wakf Board or Municipal Corporation/Council. He/she will receive only honorarium fixed under the instructions of the State. For ready reference one of the condition referred to above is extracted as follows:-

^^eSaa cLrh ds enjlk f''k{kk vk/kquhdhdj.k@jktho xka/kh Lo.kZ t;Urh ikB''kkyk ;kstuk esa f''k{kk lg;ksxh dh gSfl;r esa dk;Z d:axk@d:axh ,oa vius vkidksa jktdh; vFkok oDQ cksMZ] oDQ lfefr] uxj ikfydk fuxe@ifj"kn dk ukSdj ugha le>awxk@le>waxh A eSa bl dk;Z ds fy, dsoy ekuns; ds :i esa fu;ekuqlkj jkT; ljdkj }kjk fu/kkZfjr ns; ekuns; gh izkIr d:axk@d:axh A**

83. The petitioners have also placed on record a letter of the Dy. Secretary, Panchayati Raj. Government of Rajasthan dated 13.11.2001 wherein Rajasthan Para Teachers Sangh was informed that a proposal for regularization of their services is pending with the Government.

84. The claim of the petitioners for their regularization is opposed by the respondents on the ground that the para Teachers were appointed under a different Scheme which cannot be equated with the regularly selected Gr.III Teachers. According to the respondents the petitioners are not holding any post in the service of the State of Rajasthan or any Panchayat. As such the question of regularization does not arise. Thus, the core question which arises for consideration is as to "whether the petitioners are holding any post in the services of the State of the Panchayat"?

85. In order to appreciate the contention, it is desirable to briefly survey the provisions pertaining to recruitment of Grade III Teachers. Chapter XII of the Rules of 1996 provides for process of recruitment and other service conditions. Rules 256 provides for the suitability of the candidates for employment and it also provides for disqualification. Rule 257 deals with the strength of service. Rule 258 provides for categories of the posts. Rule 259 provides for the method of recruitment. Sub-rule (6) thereto reads as under:

"Recruitment on post encadred in Panchayat Samit and Zila Parishad services as per Sub-section (2) of Section 89, shall be made districtwise through District Establishment Committee as per provisions of Sections 80 and 90 of the Act."

86. Rule 260 provides for source of recruitment to the post. Rule 261 provides for reservation in favour of Scheduled Caste/Scheduled Tribe and other backward classes. Rule 263 deals with the determination of vacancies. Rule 265 provides for maximum and minimum age for services and also provides for certain explanation and relaxation in certain circumstances. Rule 270 provides for inviting applications by open advertisement in daily news papers having wide circulation. Rule 274 provides for procedure for preparing the merit list by the District Establishment committee. Rule 284 provides for filling up of urgent and temporary vacancies by calling the names for the Employment Exchange. Rule 296 employers the State Government to relax the rules. It is not in dispute that the said procedure has not been followed in the matter of appointment of Para Teachers. However, it is submitted that the petitioner have been appointed as per the procedure prescribed by the concerned panchayat.

87. It is submitted by Mr. P.P. Choudhary learned counsel for the petitioners that the petitioner were appointed after due recruitment and selection conducted by the respondents in accordance with the respective notifications issued by the State Government for selection, appointment and recruitment on the post of Shiksha Sa-hayogies/Para Teachers. The posts were advertised, applications from the candidates were invited and after scrutiny of the application, candidates were subjected the selection process, undertaken by the selection committee and provided under the notifications for appointment on the posts of Shiksha Sahayogies/Para Teachers. Therefore, selection and appointment of the petitioners were being in accordance with the notifications issued by the learned counsel, hence for all purposes the appointment of petitioners is substantive appointment effect after following due process of law. It is further asserted that Notification dated 23rd April, 1999 introducing the Rajiv Gandhi Swaran Jayanti Pathshala Scheme was issued by the State in exercise of powers u/s 8E of the Act of 1994 delegating the powers to Gram Sabha to prepare merit list on the basis of percentage of marks obtained by the candidates under various heads for selection and appointments Para Teachers in Primary/Upper Primary Schools/Rajiv Gandhi Swaran Jayanti Pathshalas. Subsequently, Notifications dated 30th April, 2001 and 5th August, 2002 were issued u/s 8E of the Act of 1994 laying down the criteria for selection and appointment of Para Teachers. The first Notification came up for consideration before a learned Single Judge of this Court in Mohan Lal v. State of Raj. (S.B. Civil Writ Petition No. 2171/99 decided on 16.5.2000. The Court directed for selection in accordance with the rules. This, the Notification was modified in compliance of the order of the Court.

88. Adopting the contentions raised by Mr. P.P. Choudhary learned counsel, it is further submitted by Mr. M.S. Singhvi learned counsel for the petitioners that the State was not having sufficient financial resources to meet the salaries liable to be paid to the Gr.III Teachers and, therefore, a method was evolved of engaging teachers on honorarium basis in the name of the Para Teachers. According to Mr. Singhvi the duties discharges by Para Teachers/Shiksha Sahayogies as well as the persons designated as Teachers Gr.III are same with no distinction. It is asserted that in case veil pierce, it will reveal that Para Teachers are nothing but Teachers Gr.III. Recruitment of Para Teacher after 1-999 have been made in accordance with Articles 14 & 16 of the Constitution of India i.e., by inviting applications and submitting the eligible persons to selection as per the criteria prescribed in the circulars issued by the State Government. It is further submitted that Rule 296 of Rules of 1996 makes provisions for power of relaxation. There, the circulars dated 30th April, 2000 and 30th April, 2001 would be deemed to have been issued in exercise of powers conferred by Section 8E read with Rule 296 of the Rules of 1996 relaxing the requirement of making selection though District Establishment Committee.

89. Having perused the Notification dated 23rd April 1999, it is difficult to say that it has been issued in exercise of powers u/s 8E of the Act of 1994. Section 8E deals with the function of the Gram Sabha. It enumerates the different functions of the Gram Sabha specified by the State Government from time to time. Section 8E reads as follows :-

"8E. Function of the Gram Sabha-The Gram Sabha shall, subject to such conditions and upto such extent and in such manner, as may be specified by the State Government from time to time, perform the following functions:-

(a) approve the plans, programmes and projects for social and economic development in order to priority from out of the plans, programmes and projects approved by the Ward Sabha before such plans, programmes and projects are taken up for implementation by the Panchayat;

(b) identification or selection of persons as beneficiaries under the poverty alleviation and other programmes, in order or priority Out of the persons identified by the various Ward Sabha coming under its jurisdiction;

(c) obtaining a certificate from the Ward Sabha concerned that the Panchayat has correctly utilised the funds provided for the plans, programmes and projects referred to in Clause (a) which have been expended in the area of that Ward Sabha;

(d) exercising social audit in respect of plots allotted to the weaker sections;

(e) formulating and approving development plans for Abadi lands;

(f) mobilising voluntary labour and contributions in kind or cash or both for the community welfare programmes;

(g) promoting literacy, education, health and nutrition;

(h) promotion of unity and harmony among all sections of the society in such areas;

(i) seeking clarifications from the Sarpanch and members of the Panchayat about any particular activity, scheme, income and expenditure;

(j) identification and approval of development works in order of priority from out of the works recommended by the Ward Sabha;

(k) planning and management of minor water bodies;

(l) the management of minor forest produce;

(m) control over institutions and functionaries in all social sectors;

(n) control over local plans and resources for such plans including tribal sub-plans;

(o) consider and approve the recommendations made by each Ward Sabha in the area of such Panchayat Circle; and

(p) such other functions as may be prescribed."

90. On being confronted, Mr. P.P. Choudhary learned counsel submitted that the instant notification falls in the residuary functions of the Panchayat i.e., Sub-clause (P) of Section 8E. We are unable to agree with the submission of the learned counsel. Even the reading of the Notification dated 23rd April, 1999 does not indicate that the same has been issued u/s 8E of the Act of 1994. Thus, in our view the Notification dated 23rd April, 1999 whereby the Rajiv Gandhi Swaran Jayanti Pathshala Scheme was introduced is purely of an administrative nature. Similarly, it is wrong to contend that the Circulars dated 30th April, 2001 and 5th August, 2000 were also issued in exercise of powers u/s 8E of the Act. A bare reading of the Circulars shows that they are purely of administrative nature. It clearly appears that Rajiv Gandhi Swaran Jayanti Pathshala Scheme was prepared for a particular year for universalization of primary education at the villages and Dhanies levels. Thus, the Para Teachers were recruited not under any statutory rules. They were being paid honorarium. It was clearly stipulated that their services will not be treated as a service of the Government or of any local body. Thus, it is evident that the concept of Para Teacher is entirely different from a government teacher. As already stated the Para Teachers were engaged by the local Gram Panchayat to impart primary education to the children. The concept appears to be more of a social service by local youth. We are also unable to agree with the contention of Mr. Singhvi learned counsel that there was only a difference of the nomenclature i.e., Teachers Gr.III were engaged in the name of Para Teachers. We have given the entire statutory scheme of recruitment which has admittedly not followed in the instant case. Thus, we have no hesitation in holding that it is not a fit case, issuing direction for regularization of service of petitioners, appointed as Para Teachers under a non-statutory scheme, on honorarium basis de hors the rules, by a authority not competent to appoint. We are buttressed in our view by the decision of the Apex Court in State of Karnataka v. C.K. Pattamashetty and Anr. In the said case the respondent was appointed as honorary Visiting Professor. He performed the teaching job, as such claimed the benefit of a teacher under the Karnataka Universities Act, 1976. The writ petition was allowed by the High Court. The Apex Court reversed the judgment holding that those who are appointed to work on honorary basis cannot be placed in the same class as that of salaried employees. The Court further observed-

"If the respondent had undertaken the teaching work voluntarily knowing fully well that he would not be entitled to have any financial gain thereby, he cannot be granted the same benefits only because he undertook teaching job pursuant thereto."

91. In fact the petitioners are not holding any post in the State Government and further no appointment made in breach of the rules can be regularized.

92. The instant case is very much close to a decision of the Apex Court in State of Orissa v. Dipti Paul (supra), wherein State of Orissa had engaged Shiksha Karmies in Primary and Upper Primary Schools on a fixed honorarium. The duties of the Shiksha Karmies were to promote universal primary education by motivation parents of children below the age of 14 years to get their children enrolled in Primary Schools and motivate them to attend the classes regularly. They also undertook the teaching work in the schools. The scheme remained in operation for about 7 years. The Government-abolished the scheme of the Shiksha Karmies and issued an advertisement for regular recruitment on the post of Primary Teacher. The Orissa Administrative Tribunal granted relief to the Shiksha Karmies directing the State Government to regularize their services and grant them regular pay scale of the Primary School Teachers from the date of their initial appointment. On appeal by the State of Orissa the Apex Court found that the duties assigned to Shiksha Karmies were different from duties assigned to the regularly appointed Primary School Teachers. There was neither any intention that they should discharge the same duties as of Primary School Teachers nor there was any intention to appoint them in regular cadre. The method of appointment was also different from the regular appointment of primary school teachers. The Court observed that the object of the scheme was a limited object given the limited resources at the disposal of the State. Those employed under the scheme, therefore, could not ask for more than what the scheme intended to given them. It would be convenient to extract Para 7 from the judgment-

"In the present case, the Scheme was for the purpose of promoting the policy of universalisation of primary education. The Scheme provided for a fixed remuneration to those appointed under the Scheme. The Scheme was a self contained scheme and prescribed specific duties for those engaged under it. It also gave an opportunity to those employed under this Scheme, if they had the requisite qualification and their work was found satisfactory for four years, to be considered for regular appointment as Primary School Teachers. The entire Scheme would be frustrated if the persons appointed under the Scheme were to receive the same remunerations as Primary School Teachers from the inception."

In view of the aforesaid, the Apex Court held that the Tribunal was in error in granting to Shiksha karmies the same emoluments as Primary School Teachers regularly appointed in the cadre of State Government. It may be further relevant to mention that the Para Teachers have been appointed in the education centres opened on large scale for a different purpose i.e., universalization of the education. Those centres cannot be termed as a regularly primary schools. This is the reason that the method of appointment, the source of recruitment etc. was entirely different under the scheme of Rajiv Gandhi Swaran Jayanti Pathshala than from the regular primary school.

93. In the identical situation the Apex Court in State of West Bengal and Others Vs. Monirujjaman Mullick and Others, held that the non- formal educational centres cannot be equated with the primary schools which are regularly run by the Education Department of the State Government. In the said case the certain non-formal educational centres were run by the Panchayat Samities in the rural areas. The Instructors working in the said centres claimed equal pay for equal work and also regularization. The relief was granted by the High Court. The Apex Court reversed the judgment having held,

"The non-formal educational centres cannot be equated with the primary schools which are regularly run by the Education Department of the State Government. Apart from the basis qualitative differences between the two institutions even the nature of work of the non-formal instructors and the primary school teachers is not identical. The method of appointment, the source of recruitment, method of teaching, hors of teaching and the mode of payment are entirely different. In the fact and circumstances of this case the High Court feel into patent error in applying the principle of "equal pay for equal work".

94. Thus, having given our thoughtful and anxious consideration to the issue involved we are of the view that the petitioners were engaged under a particular scheme i.e., Rajiv Gandhi Swaran Jayanti Pathshala on the fixed honorarium without following the statutory process of selection. As such they cannot be given the regular pay scale of Gr.III teachers by regularizing their services. We are told that the Rajasthan Public service Commission has already conducted the examination for recruitment on the post of Primary School Gr.III Teachers in rural areas. About more than lakh of candidates have appeared in the examination against approximately 33000 vacancies. We are also told that almost all the present petitioners have also appeared in the said examination. At this stage any direction for regularization would be per se discriminatory to the new incumbents who have become due to the appointed on merit. We may usefully quote the observation of the Apex Court made in identical circumstances in Ahmedabad Municipal Corporation v. Virendra Kumar Jayantibhai Patel (1997(7) SC . 14) as follows:-

"Under such circumstances, there is no room for sympathy or equity in the matter of such appointment specially where the recruitment in service is governed by the statutory rules. If the reasoning given by the tribunal is accepted, the statutory recruitment rules would become nugatory or otiose and the department can favour any person or appoint any person without following procedure provided in the recruitment rules which would lead to nepotism and arbitrariness. One the consideration of equity in the face of statutory rules is accepted then eligible and qualified persons would be sufferers as they would not get any chance to be considered for appointment. The result would be that persons lesser in merit would get preference in the matter of appointment merely other ground of equity and compassion. It is therefore not safe to bend the arms of law only for adjusting equity. We, therefore, find that the reasoning given by the tribunal that sympathy demands the absorption of the respondent in the service of the Corporation suffers from error of law.

PLEA FOR RELAXATION:

95. Dealing with the contention raised by Mr. M.S. Singhvi with respect to relaxation of rules, we have carefully read Rule 296 which is extracted as follows:

"Rule 296. Power to relax rules.- The State Government on a reference by the Panchayat Samiti/Zila Parishad concerned or on its own motion, in an exceptional case where the Administrative Department is satisfied that the operation of the rules relating to any provision for recruitment, if any, causes undue hardship or where the Government is of the opinion that it is necessary or expedient to relax any of the provisions of these rules may with the concurrence of Department of Personnel, relax the relevant provisions of these rules to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner."

96. A bare reading of the Rule shows that it has no application to the facts of the case. At the first instance the rule is attracted only in a case when a reference is made to the State by the Panchayat Samiti or Zila Parishad concerned. Even if it is assumed that such a power can be exercised on its own motion by the State then also it has to be exercised only in exceptional cases wherein Administrative Department is satisfied that operation of the rules relating to any provision for recruitment, if any, causes undue hardship or where the Government is to the opinion that it is necessary to expedient to relax any of the provisions of these Rules, may with the concurrence of the Department of Personnel. In the instant case there is no initiation by the Administrative Department and so as no concurrence from the Department of personnel.

97. It is further contended by Mr. M.S. Singhvi learned counsel that there has been amendment in Rule 296 of the Rules of 1996 with a view to bestow powers on the State Government to relax any requirement of rule including a rule relating to recruitment to any post in service. The learned counsel has placed reliance on a decision of the Apex Court in A. Janardhana Vs. Union of India (UOI) and Others, wherein complete relaxation of the rules for recruitment to permanent or temporary post was held to be valid. The Court held that when recruitment is from two independent sources subject to prescribed quota but the power is conferred on the Government to make recruitment on relaxing the rules in recruitment made contrary to the quota rules would be invalid unless it is shown that the power of relaxation was exercised malafidely. Apparently, the case the no bearing on the controversy involved in the instant case. The question of deemed relaxation comes only when initial appointment is made under the rules, relaxation in which is claimed. The petitioners were not engaged under any statutory rules. The Apex Court in K. Shekar Vs. V. Indiramma and Others, held that the power of selection committee to relax eligibility criteria does not include the power to do away with the criteria altogether. Accordingly the contention raised, stands rejected.

PLEA OF LEGITIMATE EXPECTATION:

98. It is further contended that the assurance was given by the Government to regularize the services of the petitioners, as such there is legitimate expectation for their regularization in regular pay scale. There is no substance in the contention raised and same same deserves to be rejected. There is no material on record to show that any sort of assurance was given by the State Government to the petitioners to regularize their services. It is well settled that expectation must be founded on sanction of law. It is held by the Apex Court in Union of India (UOI) and Another Vs. International Trading Co. and Another, that the doctrine of legitimate expectation or promissory estoppel is not attracted when a policy decision is taken by the Government is purported exercise of statutory power in public interest. It is further held that when the government has acted reasonably in good faith it is not for the court to interfere with the policy decision. Thus, the contention being devoid of merit stands rejected.

99. It is lastly contended that the advertisement issued by the R.P.S.C. for recruitment of Grade III Teachers in rural areas, as per the impugned amended Act/Rules as it has taken away their rights which has accused to them by issuing earlier Notification dated 27.7.2003 under un-amended rules. The contention deserves to be rejected, devoid of merit. Advertisement issued by the concern Department or recruiting agency, can always be withdrawn on the basis of amendment made in the Act or the Rules and fresh advertisement can be issued in place of earlier advertisement. It is held by the Apex Court in Rajasthan Public Service Commission v. Chanan Ram and Anr. (1998(2) SC 114) that on issuing a second advertisement in view of the amendment of the recruitment rules the previous vacancies stand merged and does not survive.

100. Before we part with this judgment, we record our appreciation for the assistance that we have received from the learned counsel for the petitioner M/s. P.P. Chaudhary, M.S. Singhvi and N.M. Lodha learned Additional Advocate General, who gave their valuable assistance to this Court.

101. The upshot of aforesaid discussion is that there is no merit in this bunch of writ petitions and the same stand dismissed. No order as to cost.