NARENDRA NATH TIWARI, J. - (1.) A hazy situation regarding the vacancies for the Physical Education Trained Teachers has given rise to these cases. All the appellants/ writ petitioners are having the qualifications of physical education trained and they have claimed for their appointment to the post of teachers in the primary schools. Their instant grievance is that although they possess the qualification and eligibility for appointment of Assistant Teachers for appointment in the primary schools of the State of Jharkhand yet their appointments are being illegally curtailed. According to the advertisement published in the local newspaper dated 22.4.2003, the required minimum qualification for appointment of teachers in the primary -schools of the State of Jharkhand is matric pass or equivalent examination having two years teachers training Le. B.Ed./Dip. in Ed./Dip. in Teach/C.P.Ed./Dip. P. Ed., which they possess but their chances of appointments have been considerably minimized by substituting a new clause subsequently that their appointments shall be made only against the vacant posts of physical trained teachers, though there was no such term in the earlier advertisement and the same was silent regarding the number/ratio of the vacancies meant for physical trained teachers in the State,
(2.) FACTS . -After the reorganization and creation of the State of Jharkhand, a new rule was framed by the State for the purpose of appointment of the teachers of primary schools, namely, Jharkhand Primary Teachers Appointment Rules, 2002, (hereinafter referred to as "the said Rules" or "Rules 2002"). According to the said Rule, appointments of primary teachers are to be made through the Jharkhand Public Service Commission (for short "JPSC"). In order to fill up the vacancies of primary school teacher in 22 districts of State of Jharkhand, the JPSC issued an advertisement on 24.8.2002 inviting applications for appointment against 9,223 vacancies of the primary teachers. In the advertisement district wise vacancies were shown. The essential qualifications and eligibility conditions included that : (a) applicant must be a citizen of India (b) applicants must have passed the matric examination/any equivalent examination and (c) the applicants must have two years teachers training and must have passed qualifications of B.Ed./Dip. in Ed./Dip. in Teach/ C.P. Ed./Dip. P. Ed. It was specifically mentioned that the selected candidates would be appointed by the District Education Establishment Committee. The said advertisement was followed by a clarification of the word "trained", candidate, which means who passed two years teachers training or possessed B.Ed./Dip. in Ed./ Dip. in Teach and C.P.Ed./Dip. P. Ed. The appellants/writ petitioners and others, who possessed the eligibility and the requisite qualifications, applied for the post and Admit Cards were issued to them for appearing in the written test scheduled to be held on 27.5.2003. In the meantime some public interest litigations were filed including W.P. (PIL) No. 2769/2003, which was disposed of along with other writ applications, in which a Division Bench of this Court held that the candidate, who do not possess the requisite qualification as per the amended Rule 4(d) of the Rules, 2002, would not be considered for recommendation/selection for appointment even if they have appeared in the written examination and their candidature will be ignored. Under the cover of the said judgment, a clarification was issued by the JPSC that the candidates having C.P.Ed./Dip.P.Ed. shall be eligible for appointment only against the vacancies of physical trained teachers. The said subsequent addendum has given rise to the present controversy, as earlier in absence of the said subsequent condition, the appellants/candidates having physical, trained certificates were to be considered for appointment against the total vacancies of 9223, whereas their chances have been reduced to bare 27 shown vacancies described district -wise as follows : (a) Gumla 6 (b) Deoghar 9 (c) Palamau 5 (d) Simdega 7 Total 27 According to the appellants/writ petitioners, the respondents are not authorized to change the condition and reduce their chances of appointment in the midst of the process and they are equally entitled for consideration of their appointments with all other candidates against 9223 posts, as they are within the ambit of the definition of "trained" candidates and they have also appeared in the same written test and they cannot be deprived of their rights by creating a different class for physical trained teachers. Rule "kha"(3) of the said Rules 2002 defines "trained" which include C.P.Ed. and Dip. P.Ed. and the candidates who possessed the said physical training qualification/certificates were also called for the written test, and were allowed to appear in the examination with all other candidates. Results of the writ petitioner of WP(S) No. 3889 and 3100 of 2004 were published and they were declared successful for Deoghar District and were recommended by JPSC for appointment as primary teachers but the results of appellants of both the LPAs were withheld which the respondents are bound to publish. The appellants/writ petitioners, thus, sought a mandamus commanding upon the respondents to take steps and issue letters of their appointment to the post of teachers in the primary schools against the existing vacancies of primary school teachers in all the districts, which was published in the advertisement dated 24.11.2002 and not to restrict/ reduce their chances for appointment only against the alleged vacant posts of physical trained teachers totaling 27 and only in four districts. The respondents -contested the appellants/writ petitioners claim taking the common ground inter alia, that the appellants/writ petitioners are physical trained and are eligible for appointment to the post of only physical trained teachers and they are entitled to be considered for appointment against the vacant post of physical trained teachers. In the first set of counter affidavit filed in the appeals on behalf of the respondent Nos. 2 and 3, it has been contended that Rule 2 "Kha" of the said appointment Rule 2002 was amended on 6,3.2003, according to which the candidates having certificate of C.P.Ed/Dip. P. Ed. shall be considered for appointment only against the vacant post of physical trained teachers. The said amended provision was brought by the State Government prior to conducting the examination on 27.5.2003. According to the vacancy position, the post of physical trained teachers are only available in the four district of the State i.e. Gumla, Deoghar, Palamau and Simdega. The Jharkhand Public Service Commission (JPSC) inadvertently, made some recommendations for appointment also %of physical trained candidates as primary trained teachers but as soon as it realized the mistake, those recommendations were withdrawn. As per the amended rule, the appellants/writ petitioners are not eligible for appointment to the post of primary teachers and their candidature can only be considered against the vacant post of physical trained teachers and the commission will recommend the names according to the position of vacancies supplied to them for those posts.
(3.) IN the second set of counter affidavit, filed on behalf of the respondent Nos. 4 and 5, almost the same grounds have been repeated. It has been contended that the vacancies report received from all the 22 Districts were sent to the JPSC in original and the appointments can be made only on the said basis. It has been stated that the physical trained candidates are not eligible for appointment to the post of primary teachers, as the curriculum and syllabus of physical training is quite different from the two years primary teachers training/B.Ed./Dip in Ed./Dip. in Teach. Merely because the appellants/writ petitioners were allowed to appear in the examination on 27.5,2003 conducted by JPSC, they cannot claim their right to be considered for their appointment against the post for which they do not possess the requisite qualifications. It has been further stated that before coming into force of the Jharkhand Elementary School Appointment Rules, 2002, the physical trained teachers were appointed in untrained pay scale and they were entitled to get trained scale after passing two years teachers training/one year in service teachers training, B.Ed./Dip in Ed./Dip in Teach. The Government of Jharkhand has adopted the Bihar Nationalized Elementary School Teachers Promotion Rules, 1993 and its subsequent amendment whereunder the teachers of elementary schools were upgraded in 8 grades of promotional avenue and under the said rule "trained" means those, who have undergone and passed the two years teachers training or B.Ed./Dip in Ed./Dip in Teach or one year training during the service tenure.;