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Madhya Pradesh High Court · body

2008 DIGILAW 336 (MP)

SHAILESH KUMAR SAHU v. STATE OF M. P.

2008-02-28

R.S.GARG, S.C.SHARMA

body2008
Judgment R.S.Garg, J. ( 1. ) By this writ petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the constitutional validity of sub-rule (9) of Rule 6 of Madhya Pradesh Nagriya Nikay Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005. ( 2. ) According to the petitioner, he along with others applied for his appointment as Samvida Shala Shikshak, but he was not given the weightage for his teaching experience and contrary to sub-rule (9) of Rule 6, of 2005 Rules, the respondent No.4 came to be appointed. ( 3. ) The submission made by learned counsel for the petitioner is that though Rule 6 sub-rule (9)(b) provides that a maximum of 15 marks shall be awarded for teaching experience in any school and for experience of one, two and three years; 05, 10 and 15 marks shall be awarded respectively, but the Government by adding an Explanation to it has confined the teaching experience of any school to the teaching experience of the schools which are well described in the Explanation. ( 4. ) It is also submitted by him that respondent State could not frame such Rules and create a class in the class, and refuse opportunity of employment to the persons who are well experienced in the schools run by or which are getting grant-in-aid from the Union of India/Central Government. ( 5. ) Shri Pathak, learned counsel for the State, did not address the Court because he was handicapped, as the return on behalf of the respondent State was not filed. However, he orally submitted that the Explanation carves out a reasonable classification and as such the Explanation appended to clause (ii) of sub-rule (9) of Rule 6 cannot be held to be bad. ( 6. ) Shri Mishra, learned counsel for the respondent No.4, however, submitted that the petitioner knowing well that he does not have the teaching experience of any school, well described in the said Explanation, took part in the examination and after he was refused appointment now cannot be allowed to raise the question of vires. ( 7. ) On 27.2.2008, in Writ Petition No. 7828/2006 (Ajay Tripathi and Others Vs. State of Madhya Pradesh and Others), this Court has considered the constitutional validity of Madhya Pradesh Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005. ( 7. ) On 27.2.2008, in Writ Petition No. 7828/2006 (Ajay Tripathi and Others Vs. State of Madhya Pradesh and Others), this Court has considered the constitutional validity of Madhya Pradesh Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005. The Rules governing the employment in Panchayat are pari materia with the present Rules, which are under challenge. In a detailed order, this Court has observed that the said Rules are not ultra vires the Constitution and provisions contained in Rule 6 cannot be held to be ultra vires the Constitution or ultra vires the provisions of Madhya Pradesh Panchayat Act, then unless special reasons are shown it would not be possible for this Court to hold that the pari materia Rules under scrutiny are bad. ( 8. ) True it is, that clause (b) of sub-rule (9) of Rule 6 provides additional marks for teaching experience in any school, but the Explanation has clarified what the teaching experience would mean. By giving the Explanation, the State Government has simply observed that the teaching experience would mean experience of teaching in Government Schools, Local Body (Panchayat/Urban Body) Schools, Schools receiving Grant-in-aid from Government, Education Guarantee Schools, erstwhile Non-Formal Education Centres of the Government. Teaching experience according to Explanation would also include experience as an honorary teacher appointed by the Government. ( 9. ) The word Government has been defined in Rule 2(h) to mean the Government of Madhya Pradesh. If by the Explanation Government wanted to give additional weightage or marks to the persons who acquired the teaching experience in the given class or classes, then prima facie it cannot be held that the Explanation leads to a discrimination and is not carving out reasonable classification. ( 10. ) In our opinion, the Government certainly was justified in confining the teaching experience acquired by a person in particular class, only. ( 11. ) In the matter of K.H. Siraj Vs. High Court of Kerala and Others [ (2006) 6 SCC 395 ], the petitioner before the Supreme Court challenged the examinations conducted by Kerala High Court on the ground that cut-off marks in the interviews could not be fixed for the purposes of elimination of the candidates. ( 11. ) In the matter of K.H. Siraj Vs. High Court of Kerala and Others [ (2006) 6 SCC 395 ], the petitioner before the Supreme Court challenged the examinations conducted by Kerala High Court on the ground that cut-off marks in the interviews could not be fixed for the purposes of elimination of the candidates. In paragraph 72 of the judgment, the Supreme Court observed that the petitioners had participated in the written test and in the oral test without raising any objection, though they knew well from the High Courts Notification that minimum marks have to be secured in the written test and in the oral test. ( 12. ) In the present case also, the petitioner knew that the teaching experience would mean experience of teaching in such schools which are well prescribed in the Explanation appended to Clause (b) of sub-rule (9) of Rule 6 of Madhya Pradesh Nagriya Nikay Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005. The petitioner after understanding the Rules had taken part in the process and if he could not secure employment, then at this stage he cannot be allowed to challenge the constitutional validity of the Rules. ( 13. ) Taking into consideration the totality of the circumstances, we are unable to hold that Explanation appended to Clause (b) of sub-rule (9) of Rule 6 of Madhya Pradesh Nagriya Nikay Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 is ultra vires the Constitution. ( 14. ) The petition deserves to and is accordingly dismissed. There shall be no order as to costs. Petition accordingly dismissed.