# SABITA PRASAD AND ORS v. STATE OF BIHAR AND·ORS - **Citation:** [1992] Supp. 3 S.C.R. 438 - **Court:** Supreme Court of India - **Decided:** 1992-12-08 - **Bench:** L.M. Sharma, Dr. A.S. Anand - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sabita-prasad-and-ors-v-state-of-bihar-and-ors-11643 - **Pages:** 30 ## Headnote SerVice Law-4'aneHersons on the panel have no indefeasible right to app()intnient .. C · Assistant Teachers-Preparation of district wise panels-Panels prepared district-wise declared unconstitutional-Consequential · Government's circular cancdling the panels without disturbing the appointments already made--C/aim for appointment by non-appointed teachers on ptine~e/d the panel was in the naturepf only eligibility list prepared without D any process of selection· and without having co-relation 'to existing or anticipated vacancies-Such a panel does not confer any vested or indefeasible right; on teachers to. be appointed-Training of teachers at State expenses merely.confers eligibility and not vested right to be appointed-Appointed and non-appointed teachers formed separate and distinct classes-Held Government's order saving appointments already made is not violative of E Artide 14 of the Constitution. · For appointing teachers in the primary schools the State of Bihar was preparing district-wise panels. By its judgment in Ani/ Kumar v. Chief Secretary, 1987 Patna Law Journal Reports 846, the High Court of Patna F declared the panels prepared on district-wise basis as unconstitutional but directed that the appointments already made from the panels should not be disturbed. Further, the State was restrained from making any further appointments from the panels prepared for the different districts. As a follow up action of the judgment the State of Bihar issued instructions on 1.3.1989 staying further appointments from the existing panels G and by its circul~r dated 2.7.1989 cancelled the existing panels without disturbing the appointments already made. After the judgment of the High Court and till the Government circular dated 2.7 .1989 was issued some appointments were ma~e but thereafter no further appointments were made the e;xisting panels. Those teachers who were not appointed in spite H of being on the panel and· some others filed various writ petitions in the 438 SABITA PRASAD v. STATE OF BIHAR 439 Patna High Court which were disposed of by different judgments against A which appeals have been preferred in this Court. The appellants (In C.A. No.3216/91) were placed on a panel prepared but were not appointed because. the panel was cancelled. They tiled a petition before the High Court wliich relying upon its earlier judgment quashed the panel including the appointments already made out B of the said panel. The position of the petitioners in the connected petition (911/91) is akin to that of the appellants because they also remained unappointed on account of cancellation of panel. It was contended on behalf of the non-appointed teachers (1) that the teachers empanelled have acquired a vested right to be appointed as and when the vacancies C arose and the cancellation of the panel took away their accrued rights which was not permissible; the panel was required to remain effective till it was exhausted and its cancellation was arbitrary; (2) the Government's circular saving the appointments already made was violative of Article 14 of the Constitution because the distinction between those 'appointed' and D those 'waiting appointments' was irrational; (3) the appellants having been trained at State's expense have acquired a valuable right to be appointed. On behalf of the State it was contended (1) that empanelment is only a condition of eligibility for purposes of appointment and empanelment E itself cannot be equated with 'selection' creating a vested right in aq empanellist to be appointed; (2) the panel prepared was no more than arrangement of the particulars of the candidates and such a list could not be equated with even a fixed term panel which under certain conditions creates some right in those empanelled to seek appointment during the F life of the panel; (3) the training was designed to confer only eligibility for consideration and it did not create any vested right to appointments; and (4) the appointed teachers have ## Text _Characters 0–39,796 of 73,019. This is a partial read: ask again with offset=39796 for what follows._ A B SABITA PRASAD AND ORS. v. STATE OF BIHAR AND·ORS. DECEMBER 8, 1992 [L.M. SHARMA, CJ., AND DR. A.S. ANAND, J.) SerVice Law-4'aneHersons on the panel have no indefeasible right to app()intnient .. C · Assistant Teachers-Preparation of district wise panels-Panels prepared district-wise declared unconstitutional-Consequential · Government's circular cancdling the panels without disturbing the appointments already made--C/aim for appointment by non-appointed teachers on ptine~e/d the panel was in the naturepf only eligibility list prepared without D any process of selection· and without having co-relation 'to existing or anticipated vacancies-Such a panel does not confer any vested or indefeasible right; on teachers to. be appointed-Training of teachers at State expenses merely.confers eligibility and not vested right to be appointed-Appointed and non-appointed teachers formed separate and distinct classes-Held Government's order saving appointments already made is not violative of E Artide 14 of the Constitution. · For appointing teachers in the primary schools the State of Bihar was preparing district-wise panels. By its judgment in Ani/ Kumar v. Chief Secretary, 1987 Patna Law Journal Reports 846, the High Court of Patna F declared the panels prepared on district-wise basis as unconstitutional but directed that the appointments already made from the panels should not be disturbed. Further, the State was restrained from making any further appointments from the panels prepared for the different districts. As a follow up action of the judgment the State of Bihar issued instructions on 1.3.1989 staying further appointments from the existing panels G and by its circul~r dated 2.7.1989 cancelled the existing panels without disturbing the appointments already made. After the judgment of the High Court and till the Government circular dated 2.7 .1989 was issued some appointments were ma~e but thereafter no further appointments were made the e;xisting panels. Those teachers who were not appointed in spite H of being on the panel and· some others filed various writ petitions in the 438 SABITA PRASAD v. STATE OF BIHAR 439 Patna High Court which were disposed of by different judgments against A which appeals have been preferred in this Court. The appellants (In C.A. No.3216/91) were placed on a panel prepared but were not appointed because. the panel was cancelled. They tiled a petition before the High Court wliich relying upon its earlier judgment quashed the panel including the appointments already made out B of the said panel. The position of the petitioners in the connected petition (911/91) is akin to that of the appellants because they also remained unappointed on account of cancellation of panel. It was contended on behalf of the non-appointed teachers (1) that the teachers empanelled have acquired a vested right to be appointed as and when the vacancies C arose and the cancellation of the panel took away their accrued rights which was not permissible; the panel was required to remain effective till it was exhausted and its cancellation was arbitrary; (2) the Government's circular saving the appointments already made was violative of Article 14 of the Constitution because the distinction between those 'appointed' and D those 'waiting appointments' was irrational; (3) the appellants having been trained at State's expense have acquired a valuable right to be appointed. On behalf of the State it was contended (1) that empanelment is only a condition of eligibility for purposes of appointment and empanelment E itself cannot be equated with 'selection' creating a vested right in aq empanellist to be appointed; (2) the panel prepared was no more than arrangement of the particulars of the candidates and such a list could not be equated with even a fixed term panel which under certain conditions creates some right in those empanelled to seek appointment during the F life of the panel; (3) the training was designed to confer only eligibility for consideration and it did not create any vested right to appointments; and (4) the appointed teachers have acquired some vested right to continue i~ service, but no right was created in the non-appointees by merely being brought on the panel; the distinction between appointees and non-appointees, who formed two different class, was not violative of Article 14 of the G Constitution. The counsel for the State of Bihar also made a concession that the appointments made after the judgment in the Anil Kumar's case and till Government circular dated 2.7.1989 were issued were not in accordance H 440 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R. A with law but still those appointments may not be distu.rbed because some· equities had come into existence in favour of those appointed candidates. B c The appellants in the connected appeals (Nos. 3218-20 of 1991 and 2082 of1991) were appointed out of the existing panels. Some of the non-appointed candidates tiled petition in the High Court which quashed the appellants appointment on the ground .that no appointment made from unconstitutional panel would be· allowed to stand. The appellants filed appeals in this Court and were continuing in· service by virtue of the stay orders granted by this Court. On their behalf it was contended that they should not only be retained in service but should also be granted continuity of service. In the connected appeal (No.4254/91) the appellants were included in the panel. Aggrieved by the fact that some candidates figuring below the appellants in the panel were appointed while the appellants were left out they approached the High Court which held that in view of the Anil Kumar's D judgment no effective relief could be granted to them. During the bearing of appeal in this Court if was conceded that State would consider the cases of all such candidates whose juniors were appointed. The other connected appeal .(N o.3217 /91) was also tiled by teachers whose names were included in the panel but Who were not appointed. It was E contended on their behalf, that they were senior to the candidates who have been appointed while on behalf of the State it was conten.ded that there is no material on the record to establish conclusively that the appellants were senior to the appointed teachers. F Disposing the appeals, this Court HELD: 1 .• The persons on the panel had not acquired any indefeasible right to appointment merely by being placed on the panel. [ 461 EJ 2. The panel prepared in the present case was only in the nature of an eligibility listOf qualified trained teachers arranged according to their merit G in a chronological order; It had been prepared without any process of selection whatsoever as none who was a trained qualified teacher was excluded from being brought on the list. The list neither related to existing vacancies .nor even to anticipated vacancies. Such a panel did not create any vested or indefeasible right on the em panelists to be appointed. H [458 H-459 A] .. { -< SABITA PRASAD v. STATE OF BIHAR 441 State of Haryana v. Subash Chander Marwaha·& Ors., (1974) 3 S.C.C. A 220 and Shankarsan Dash v. Union of.Jndia, [1991) 3 S.C.C. 47, relied on. Miss Nelima Shangia v. State of Haryana & Ors., (1986) 4 S.C.C. 268; AA. Calton v. Director of Education & Anr., [1983] 3 S.C.C. 33 and Prem Prakash etc. v. Union of India & Ors., [1984] Supp. S.C.C. 687 held inapplicable. 3. The mere fact that the candidates who had been brought on the panel had been sent for training at the Government expense, would also B not imply that any indefeasible right had been created in their favour for appointment after they had completed their training and their names were C entered in the panel because the training was merely intended to confer eligibility on the candidates for being brought on the list. Consequently, no relief can be granted to the candidates who were waiting to be appointed but had not been appointed because of the cancellation of the panel. [458-G, 461-H, 426-A] D 4. The fundamemat right of equality implies that pel'Sons in like situations, under like circumstances, are entitled to be treated a like. Reasonable classification according to some principle to recognise intelligible 1. !nequalities ~or to avoid or correct inequalities is' permissible. Indeed, if the action of the State can be shown to be arbitrary, then notwithstanding any classification it would offend Article 14 and be liable E to be struck down. [460-H, 461-A] 4.1. Those who had been appointed out of the panel as and when the vacancies arose and had continued in service did acquire some right to so continue and the action of the State Government in protecting their F services cannot be said to infringe Article 14, which even though all pervasive, has to be considered in the facts and circumstances of each case. The appointed and the non-appointed teachers formed separ~te and distinct classes. In saving the appointments of those who stood already appointed and were serving there was no arbitrariness whatsoever on the part of the respondents. When the State decided to respect the equities G which have arisen in favour of the teachers already appointed and serving, no fault can be found with it. Equity reforms and moderates the rigour and hardness of the law and the State acted fairly and bona fide to respect and balance the equities in favour of the appointed candidates. The decision to save the appointments of the teachers already appointed, who H 442 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R. A form a distinct and separate class, is therefore, fair and reasonable and does not suffer from the vice of arbitrariness. It does not in any way offend Article 14. There is no discrimination between the two classes of teachers, namely, those who stood appointed and the others who were waiting to be appointed and in whose favour no indefeasible right accrued, only by being B brought on the panel, to be appointed. [ 461 A·G] State of Haryana v. Subash Chander Marwaha & Ors., [1974] 3 S.C.C. 220 and Shankarsan Dash v. Union of India, [1991] 3 S.C.C. 47, relied on. S. The concession made- by the State to the effect that the teachers C who had been appointed, prior to issue of Government's circular dated 2.7.1989, before or after the judgment in Anil Kumw:'s case and were continuing in service, as a result of stay orders issued by this Court or the High Court, would not be disturbed, appears to be based not only on the ground that such appellants had been condemned unheard but also be· cause of the fact that equities had arisen in favour of that class of teachers D and is in accord with Government circular. Accordingly, it is directed that such teachers shall continue in service as teachers and shall be treated to have so continued throughout. [ 462 F ·ff] Birendra Kumar Shrivastava & Ors. v. The State of Bihar & Ors., E C.W .J.C. No.4843/88 decided on 5.11.90 and C.W .J.C. No.6595/89 decided on 12.11.90, partly disapproved. 6. The State shall consider the cases of such of the appellants for appointment as primary school teachers wherever persons figuring below them in the panel have been appointed and if necessary in relaxation of F the age bar against the existing vacancies. (464-G] 7. C.A. No.3217/91 is remitted to the High Court for the limited purpose to reconsider the question of seniority of the appellan~s vis-a-vis those who stand appointed and whose appointments have not been dis· G turbed in view of the concession made. (467-B] From the Judgment and Order dated 12.11.90 of the Patna High · H Court in C.W.J.C. No. 65~5 of 1989. · . · - SABITA PRASAD v. STATE OF BIHAR [ANAND, J.) 443 WITH (CA. Nos. 3216, 3217, 3218-20, 4254/91, & W.P.(C) 911/91) V.M.-Tarkunde, S.S. Javali, Kapil Sibal, Shanti Bhushan, K.B. Sinha, Ms. Kumud L. Das, S.B. Upadhyay, Ranjit Kumar, B.B. Singh, R.S. SharA ma, S.e Patel, B.M. Sharma, S.N. Singh, T.N. Singh, Prashant Bhushan, B Jayant Bhushan, Sunil Gupta, H.K. Puri, Jamshed Beg, Sanjeev Malhotra, NaVin Prakash, K.N. Rai, Anil K. Jha and R.P. Singh for the appearing partie~. The Judgment of the Court was delivered by DR. A.S. ANAND, J. The controversy in all these cases revolves around the appointment of assistant-teachers in the primary schools and the fall out of circular-letter, dated 2.7.1989, issued by the State of Bihar. c The questions being identical, the same are being disposed of by this common judgment. Before dealing with the indiVidual cases, a reference to D the historical background would be necessary. In the State of Bihar, appointments of teachers to primary schools were being made since 1970 on the basis of residence of the candidates in a particular district, the objective being to cater to the educational needs of the districts by proViding men and resources from that district itself. E Advertisements were issued in different districts, inViting applications from the residents of the district having requisite qualifications, for appointment as Assistant-teachers in the primary schools within the jurisdiction of District Education Superintendent. The minimum qualifications and other , requirements were set out in the advertisement. Appointments were made F from a panel prepared on the basis of qualifications and eligibility of the candidates who had applied for such appointments. The panels wer.e prepared district-wise. The High Court of Patna in Anil Kumar v. Chief Secretary 1987 Patna Law Journal Reports 846, declared the panels, prepared on the basis of residence in a particular district, as unconstitutional. The High Court, however, directed that the appointments already ; G made from those panels should not be disturbed but the State was restrained from making any further appointments from the panels, prepared for the different districts. In the wake of the judgment in Anil Kumar's case (supra), the Government of Bihar first issued directions to stay further appointments from the panels prepared on district-wise basis H 444 SUPREME COURT REPORTS [1992) SUPP. 3 S.C.R. A on 1.3.1989 and subsequently vide Government circular-letter dated 2.7.1983,, issued further inslructions regarding the appomtment of primary teachers. The said letter reads as follows: "From B Mr. Manesh Prasad, Additional Commissioner-cum-Special Secretary. To c The All Collectors/Deputy Commissioner. Dated 2.7.1989. Sub: Regarding the appointment of Primary Tea~hers. D Sir, E F G H As per instructions it is to say on the aforesaid subject you were directed to scay the appointment of Primary School Teachers through Letter No.981dated1.8.1989 of this department. 2. The Government has taken the following decision after consultation with the Advocate General of Bihar iri respect of the order given by the Hon'ble High Court vide C.W.J.C. No.5490/86 and C.W.J.C. No.382/1988. 1. The panel of the candidates which have been prepared on the basis of the inhabitant of the Distt. be treated as rejected. B, Those candidates who have already been appointed from this panel, will continue their appointment. For the preparation of a panel of the appointment of teachers, data should. be collected from the office of the Directorate of Primary Education. There should· be no restrictio~ for the inhabitant of the District. The decision has also been taken that in all proceedings relating to SABITA PRASAD v. STATE OF BIHAR (ANAND, J.] appointment, the decision will be taken by the committee formed by the Distt. authority of general public notice will be issued from the office of the Directorate of Primary Education only for application. According to that Public Advertisement, the last date for filing the application will be the same as well as the scrutiny of the form will also be the same in each district. ( d) Those candidates who are already in the panel but they could not be appointed due to this instruction will also be covered by the application. On the basis of the required suitability, after including in the new panel they will be given age relaxation by the competent authority. 445 A B c Yours faithfully, D Sci/ Illegible (Manesh Prasad)" As a consequence of the letter, dated 2.7.1989, the Collectors and E the Deputy Commissioners made no further appointments of Assistantteachers in the primary schools from the existing panels. The aggrieved parties, namely, those who were not appointed in spite of being. on the panel and some others filed variol:ls writ-petitions in the High Colirt of Patna which came to be disposed of by different judgments, against which ciVil appeals have have been filed by special· leave in this court. B~sides, F Writ Petition No.911/91 has been filed by unappointed trained primary school teachers of District Gopalganj directly to this Court under Article · 32 of the Constitution. · Taking note of the aforesaid background, we shall now consider the G individual cases. ·. · Civil Appeal Nos.3218/91, 3219/91, 3220/91. Appellants in all these cases were appointed on 16th of June 1988 or thereabout in District Siwan, from the panel prepared in 1985. There H 446 SUPREME COURT REPORTS [19921SUPP.3 S.C.R. A appointments were quashed by the High Court in writ-petition Birendra Kumar Shrivastava & Ors. v. The State of Bihar & Ors., C.W.J.C. 4843/88 decided on 5.11.1990, filed by some of the non-appointed candidates of the same district, Respondents 1 to 26 herein. The appellants have questioned that part of the judgment in CWJC 4843/88, which quashes their appointB ments through these appeals on special leave being granted. All the appellants are ci.dmittedly continuing in service by virtue of the stay orders issued by this court. Though Mr. Shanti . Bhushan, learned Senior Advocate, appearing' for . the appellants, assailed, the judgment of the High Co1irt dated 5.11.1990 on various grounds, including the justification for c:Ontinuation of district-wise selection, which according to him was not aimed at C excluding anyone from selection and would be in the interest of local students becau5e aceording to him . the prhnary school teachers would be conversant with the different . dialects in . their own districts besides the. familiarity with local environment etc. and therefore more suitable to teach, we need not deal with the contentions raised by Mr. Shanti Bhushan on m,erits, in view of the . submission made by Mr. Sibal, learned Senior D Cbunsel, appearing for ihe State of Bihar. Mr. Sibal very fairly submitted . that th~ teache~s who ha~ been appointed till 2.7.1989, before or after Anil Kumars judgment\vb,id1 was rendered on 14.5.1987 and·were continuing iii. service by virtue of: stay-orders, issued by the courts, would be :retained in servi~1-and theref~re,. the questions raised by Mr. Shanti Bhush~, need E ~ot be}le~ided; a:s a~ording to Mr. Sibal, those arguments may have a ~earillg on the ttiles~;which have since been promulgated by the' State in . . - . . . ' . 1991. Mr. Shanti Bhushan, however, submitted that the appellants in all the . F three appeals deserve not only to be· retained in service but also to be granted continuity of service and back wages. As already noticed, the appell~ts are continuing in service by virtue of the stay-orders issued by this Court. Since, their appeals are being allowed in view of the concession made by the State of Bihar, their claim for continuity of service in our opinion is well fo\inded. As, they are continuing in service, it is but G appropriate that they should have the continuity of service for all purposes. How~ver, so far as the prayer for grant of back wages for the interregnum of about four months is concerned, adinittedly, they did not serve for that period and in our opinion, having regard to all the facts arid circumstances of the case, their prayer for grant of back wages for the small period of H four months,is not justified. We, accordingly, decline to grant the relief of SABITA PRASAD v. STATE OF BIHAR [ANAND, J.] 447 back wages, though direct their retention in service and grant them conA tinuity of senice throughout for all other purposes. Civil Appeal Nos. 3218-20/91 are accordingly allowed to the extent indicated above and the judgment of the High Court in CWJC 4843/88 is set aside to that limited extent only. CA Nos.3216/1991, 2082/1991 and WP (C) No.911/1991 B CA Nos.3216/1991 and 2082/1991 are directed against the judgment of the High Court of Patna in CWJC No.6595/1989, decided on 12.11.1990. While not granting any relief to the writ petitioners, the High Court also quashed the appointments of teachers who stood appointed out of the C panel on the ground that no appointment made from an 'unconstitutional panel' could be allowed to stand. The appellants in both. these appeals belong to District Gopalganj. While CA No.3216/1991 has been filed by the appellants whose names had been brought on !,he panel but who had not been appointed till the panel was cancelled, CA No.2082/1991 has been D filed by the appellants who stood appointed out of the panel but have been ousted as a result of the High Court judgment, even though they were not parties before the High Court. WP No.911/1991 has been filed by the traine~ primary school teachers who remained un-appointed on account of the cancellation of the panel, vide GO dated 2.7.1989. Their position is