DINANATH SHARMA Vs. PREMIA DEVI

JUDGEMENT

(1.) THESE writ petitions are a sequel to writ petitions, WP (S) No. 5170 of 2002 and WP(C) No. 6135 of 2002 filed before this Court. The judgment in those writ petitions is Annexure A to the counter affidavit filed on behalf of the respondents in writ petition WP (C) No. 2566 of 2003 (since reported in 2003 (1) JLJR 322. The State of Jharkhand had introduced the Jharkhand Primary Schools Appointment Rules, 2002 to regulate the appointment procedure of teachers in primary schools.

(2.) THE Legislature thereupon amended Rule 4(d) and Rule 8(d). The amended Rules provided a lower and an upper age limit and for the first examination provided for relaxation of age by five years. By Rule 8(d), it enhanced the standard of examination to Primary Teachers Training Examination. Except in WP (C) No. 2566 of 2003, wherein various questions are sought to be raised, in the other writ petitions, the essential prayer is for issue of a writ of mandamus directing the State to relax the upper age limit indefinitely or, not to restrict the one -time relaxation to five years as has now been done by the amendment. It appears to us that the prayer for the issue of a writ of mandamus directing the one time relaxation indefinitely is clearly barred by the decision of the Division Bench in the earlier writ petitions. Rule 4(d) as amended has been introduced to meet the objections upheld by the Division Bench in the earlier writ petitions. It is not shown how the limit of one -time age relaxation to five years is in any manner illegal or unconstitutional. A reasonable explanation has been given by the State that there were no appointments for five years. Therefore, it is clear that the prayer in the writ petitions for permitting those who are beyond the age limit prescribed by Rule 4(d) to take the examination is clearly ineligible and cannot be granted. The writ petitions raising only that contention and containing only that prayer have only to be dismissed. Similarly, the prayer to ignore Rule 8(d) of the Rules fixing the Standard as the Primary Teachers Examination instead of Middle Standard, cannot also be sustained in the light of the earlier Division Bench decision. The Court had held that the fixation of the standard of the written examination at Middle Standard Level was against public interest and unconstitutional.

(3.) IN WP (PIL) No. 2769 of 2003, an important question has been raised. The State of Jharkhand came into existence on 15.11.2000 in terms of the Bihar Reorganization Act, 2000. The existing State of Bihar, a phrase coined by the Bihar Reorganization Act, had a Public Service Commission, as envisaged by Article 315 of the Constitution of India. It was the Bihar State Public Commission. Section 77 of the Reorganization Act provided that on and from the appointed day. the Public Service Commission for the existing State of Bihar shall be the Public Service Commission for the State of Bihar, meaning the reorganized State of Bihar as distinct from the State of Jharkhand. On a clarification sought by the Government of Bihar on the status of the Public Service Commission, vis -a -vis the State of Jharkhand, the Government of India clarified that the Government of Jharkhand will set up its own State Public Service Commission under Article 315 of the Constitution of India. Thus, it became necessary for the State of Jharkhand to bring into existence a Public Service Commission for the State. Under Article 318 of the Constitution, the Governor of the State of Jharkhand had the power to make regulations determining the number of the members of the Commission and their conditions of service and to make provisions for the staff of the Commission and their conditions of service. On 16.1.2001, the Governor promulgated the Jharkhand Public Service Commission (Conditions of Service) Regulations, 2000. Part II of the Regulation by clause 3 (1) provided that the Commission shall consist of a Chairman and four other members. There was a proviso to the effect that in the case of absence of one or more members on leave or otherwise, the remaining member/members, as the case may be, shall constitute the Commission. Regulation 3 (ii) gave power to the Governor to appoint an additional member when a member proceeded on leave preparatory to demitting office. On 19.1.2001, the State Government passed a resolution to the effect that on and from that day, there shall be an independent State Commission known as the Jharkhand Public Service Commission. The resolution envisaged publication of the same in the Gazette and it was so published. The State of Jharkhand did not straightaway appoint a Chairman and the four other members as envisaged by the Regulations. But, on 25.1.2002, the Chairman of the Public Service Commission was appointed. This was followed by the appointment of a member of the Commission. Though the Public Service Commission could have been constituted with only the Chairman as the member or only with the Chairman and Member in terms of Article 316 of the Constitution of India, here, what happened was that as against the strength determined by the Regulations framed under Article 318 of the Constitution of India, only the Chairman and a member were appointe 'd leaving the three other positions unfilled. A Division Bench of this Court dealing with a public interest litigation regarding the creation of the Jharkhand Public Service Commission, in its order dated 13.5.2002 commented on this aspect. The delay in not appointing a fulfledged Commission and in appointing a Chairman and one member alone was commented upon. Even then, the State Public Service Commission has not been constituted with the full complement of members as envisaged by the Regulations. Pending these writ petitions, the Governor named two other members whose appointments are to come into effect when they , assume charge and even today, there has been no appointment of the fourth member so as to bring into existence the full body as envisaged by Regulation 3(i) of the Regulations. It is the contention of the petitioners that a Public Service Commission for the State of Jharkhand has never come into existence as envisaged by Article 315 of the Constitution, read with the Regulations framed under Article 318 of the Constitution of India. Only a body consisting of a Chairman and four members as envisaged by the Regulations could constitute the first Public Service Commission in the eye of law and no such body having come into existence at all, the mere appointment of a Chairman and a member could not be considered sufficient to bring into existence the first Public Service Commission for the State.