WPSS/412/2022 on 27 March, 2023

[Cites 15, Cited by 0]

Uttarakhand High Court

WPSS/412/2022 on 27 March, 2023

2. Since common questions of law and facts are involved in these writ petitions, therefore they were heard together and are being decided by a common judgment. However for the sake of brevity, facts of Writ Petition (S/S) No.338 of 2022 alone are being considered and discussed.

3. Petitioner responded to an advertisement dated 13.10.2021 issued by Uttarakhand Medical Service Selection Board (respondent no. 3), whereby applications were invited for appointment to 306 posts in Technician cadre in Government Medical Colleges. The said advertisement was issued in terms of the Recruitment Rules notified on 13.04.2020, in which one of the condition of eligibility was two years experience in the related field, from an Institute recognised by State Government.

4. However, the requirement of having two years experience in the related field from a Government recognised Institute, was done away with by an amendment in the Recruitment Rules made vide notification dated 29.11.2021 and instead, it was provided that one should have completed internship in the related field.

5. Copy of the amended Rules was sent by the Appointing Authority to the Selecting Body vide communication dated 29.12.2021 with a request to issue amended advertisement. The Selecting Body issued amended advertisement on 06.01.2022. Candidates, who could not apply earlier due to the condition of two years experience, also applied pursuant to the amended advertisement issued on 06.01.2022.

6. Petitioners are aggrieved by the amended advertisement dated 06.01.2022, which is referred in the petition as corrigendum. The relief sought in the writ petitions are as follows:-

"(i) Issue a writ, order or direction in the nature of Certiorari calling for the record and quashing the Corrigendum dated 06.01.2022 issued by the Selecting Body (Annexure No... to the writ petition, 3 whereby the qualification for the post of Radiographic Technician has been amended based on the Notification dated 29.11.2021, inasmuch as the Notification dated 29.11.2021 was not retrospective in its applicability.

(ii) Issue a wit order or direction in the nature of Mandamus directing the Selecting Body to hold and conclude the selection process for the post of Radiographic Technician on the basis of the qualification prescribed in the Advertisement dated 13th August 2021, which was on the basis of the Service Rules of 2020.

(iii) Issue a wit order or direction in the nature of Mandamus directing the respondent Department to grant appropriate weightage by way of allotting marks for the period the petitioners have worked on contract basis in the Govt. Medical College Srinagar on the post of Radiographic Technician."

7. It is submitted on behalf of the petitioners that such candidates, who are eligible in terms of the original advertisement/recruitment Rules, alone can be permitted to participate in the selection process and candidates, who are not having two years experience in terms of original Recruitment Rules, notified on 13.04.2020, cannot be considered in the ongoing selection process. It is contended that amendment made after commencement of process cannot affect the ongoing selection as it will amount to changing rules of the game in the midst of recruitment process. It is further contended that amendment Rules notified on 29.01.2021 have not been given retrospective operation, therefore, relaxation in the condition of two years experience, given by the said Rules cannot be made applicable to the selection process which had begun much earlier.

8. Learned counsel for the petitioners has placed reliance upon a judgment rendered by this Court in WPSS No. 825 of 2020 (Umesh Chandra Upreti vs. State of Uttarakhand & others). Para 7 of the said 4 judgment, on which reliance has been placed, is extracted below:-

"7. Mr. Lalit Samant, learned counsel for the petitioners submits that it is settled law that rules of the game cannot be changed mid-way and the selection process has to be completed as per the service rules, which were applicable on the date of commencement of promotion exercise. He, however, submits that the promotion exercise was commenced on 20.06.2019 when advertisement was issued by respondent no.3; while, the requirement of having B.Ed./L.T. was introduced by amending the Rules in the month of December, 2019. Thus, according to him, the amended Service Rules cannot be made applicable to the promotion exercise, which commenced in the month of June, 2019. He, however, submits that a Division Bench of this Court has dealt with identical question in Writ Petition (S/B) No. 139 of 2021. Perusal of the said judgment reveals that the question before Division Bench was whether the amendment made in the Rules subsequent to commencement of selection process can be pressed into service for treating a person ineligible for promotion, who was otherwise eligible. Paragraph nos. 5 & 6 of the said judgment are reproduced below:-

"5. Thus, it is contended by the learned counsel for the petitioner that when the petitioners entered in service, they were guided by 2014 Rule. Even when the department took a decision to give promotion, an advertisement was issued. They were qualified. But by virtue of the amendment dated 23.12.2019 which is prospective in nature they become ineligible for the post.

6. We are of the opinion that the Service (Amendment) Rule 2014 is not retrospective in effect and the rules are supposed to come into force at once i.e. on 23.12.2019, it cannot be made applicable to the petitioners while considering their case for promotion. It is also brought to our notice that pursuant to the order passed by this Court on 22.03.2021/ 02.08.2021, the petitioners were called for counselling for the post of Assistant Teacher L.T. (Physical Education) and as per the submission of the learned counsel for the petitioners they have been selected but promotional post have not been allotted because of the pendency of the writ application. However, the learned Standing Counsel do not have instructions regarding the same."

9. This Court is not impressed by the contention raised on behalf of the petitioners. It is an admitted position that the Recruitment Rules were amended soon after issuance of the advertisement and by that time, no progress was made in the selection process. The amendment in Recruitment Rules was immediately sent to the Selecting Body for issuing revised advertisement 5 and accordingly, the Selecting Body issued revised advertisement on 06.01.2022. The revised advertisement is on record as Annexure - 7 to the writ petition, in which it is clearly mentioned that candidates, who were not having two years experience have also become eligible, subject to completion of internship in the related field, from a recognized Medical Institute. Applications were invited from candidates who had become eligible in terms of the amendment in the Rules, upto 27.01.2022. In the revised advertisement, it was mentioned that candidates who had applied pursuant to the original advertisement, need not apply again.

10. It is thus apparent that neither selection criteria was altered nor any additional condition of securing minimum pass marks/cut off marks was added by the amendment. Eligibility of petitioners to participate in the selection was also not disturbed by the amendment in the Recruitment Rules. The only change, which was brought about, was that candidates who were not eligible earlier for want of two years' experience were also made eligible, subject to completion of internship in the related field.

11. Thus, no prejudice is caused to petitioners by amendment in the Recruitment Rules or by the revised advertisement, which was issued in view of amendment in the Recruitment Rules. The only perceptible change, which was brought about by the advertisement issued on 06.01.2022, was that field of eligibility was widened so as to include candidates who were left out, in view of condition of two years experience, in the original Rules.

12. In the humble opinion of this Court, mere widening of field of eligibility, in view of amendment in the Recruitment Rules, will not amount to changing Rules of the game in the midst of selection process.

13. Hon'ble Supreme Court in the case of Anupal Singh and others Vs. State of Uttar Pradesh, reported in (2020) 2 SCC 173 has held that correction of mistake in calculation of number of vacancies in different categories in order to satisfy the percentage of reservation as per provisions of U.P. Reservation Act, 1994 cannot be said to be changing the rules or basis of selection, as eligibility criteria was not changed. Paragraph nos. 47 to 53 of the said judgment, are reproduced below:-

"47. The case in hand is distinguishable from those cases where the mode of selection was altered by fixing the cut-off marks after the selection process had completed/commenced; whereas in the present case only wrongful calculation in the number of vacancies in different categories had been corrected in order to satisfy the percentage of reservation against various categories as per the provisions of the U.P. Reservation Act, 1994. Such correction cannot be said to be changing the rules or basis of selection. The eligibility criteria was not changed.

48. It is also pertinent to note that the proposition of law that rules of game cannot be changed after the selection has been commenced itself has been referred for reconsideration by a larger Bench in Tej Prakash Pathak v. Rajasthan High Court. While referring the matter to a larger Bench, in Tej Prakash, the Supreme Court explained the ambit of the expression "changing the rules of the game" as under :

"11. Those various cases deal with situations where the State sought to alter (1) the eligibility criteria of the candidates seeking employment, or (2) the method and manner of making the selection of the suitable candidates. The latter could be termed as the procedure adopted for the selection, such as, prescribing minimum cut-off marks to be secured by the candidates either in the written examination or viva voce as was done in K. Manjusree v. State of A.P. [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] or the present case or calling upon the candidates to undergo some test relevant to the nature of the employment (such as driving test as was in Maharashtra SRTC v. Rajendra Bhimrao Mandve [Maharashtra SRTC v. Rajendra Bhimrao Mandve, (2001) 10 SCC 51 : 2002 SCC (L&S) 720] .

* * *

15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the "rules of the game" insofar as the prescription of eligibility criteria is concerned as was done in C. Channabasavaih v. State of Mysore [C. Channabasavaih v. State of Mysore, AIR 1965 SC 1293], etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the "rules of the game" stipulating the procedure for selection more particularly when the change 7 sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard."

49. As discussed earlier, the case in hand is clearly distinguishable from K. Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] and Hemani Malhotra [Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203] . The diploma-holders were wrongly counted against the vacancies in OBC category; while they could not have been counted against OBC category and while doing so, a wrongful calculation had been arrived and the same has to be corrected by counting the diploma-holders against the general category.

50. It is to be pointed out that Instruction 7 in the advertisement dated 22-10-2013 stipulates that the number of vacancies may increase or decrease. The Agriculture Service Rules, 1993 clearly stipulate that it is the prerogative of the Government to determine the number of vacancies in accordance with the Rules. As per Rule 15 of the Agriculture Service Rules, 1993, "the recruitment authority would determine the number of vacancies for Scheduled Castes, Scheduled Tribes and other category candidates under Rule 6." Rule 6 stipulates that "reservation for Scheduled Castes, Scheduled Tribes and other Backward Class candidates would be done according to the orders of the Government prevalent at the time of appointment".

51. Rule 15(3) of the Agriculture Service Rules, 1993 provides for calling the successful candidates, keeping in mind the vacancy of the reserved categories required under Rule 6 after the declaration of result of written examination and for the adequate representation of each category, three times of candidates qua vacancies are required to be invited for the interview. Thus, on the total advertised number of seats for open category i.e. 3616 × 3 = 10,848 candidates were eligible under Rule 15(3) of the Agriculture Service Rules, 1993 to be called for interview.

52. In the impugned judgment [Manish Upadhyay v. State of U.P., 2017 SCC OnLine All 334 : (2017) 3 All LJ 610] , the High Court has observed that by decreasing the number of seats of general category, number of candidates of general category were illegally deprived from appearing in the interview. The High Court has also observed that by increasing the number of seats of OBC category, more candidates have been called for interview, even though they were not eligible as per advertisement dated 22-10-2013 and thus, changing the number of vacancies for each category, has prejudiced the number of candidates who are to be called for interview. The relevant findings of the High Court are as under:

"......Thus, on the total advertised number of seats for open category i.e. 3616 × 3 = 10848 candidates were eligible under Rule 15(3) for interview test. However, by decreasing the number of seats vide letter dated 20-8-2014 i.e. 2515 × 3 = 7545 candidates were invited, thus, 10848 − 7545 = 3303 candidates were illegally deprived to appear in the interview test. However, in the Other Backward Class category, only 566 vacancies were advertised against which only 1698 candidates would be eligible to appear in the interview. However, by illegally increasing the number of vacancies to 2030, 6090 candidates had been invited for the interview. Thus, in the Other Backward Class category, 6090 − 1698 = 4392 more candidates were called for the interview, even though they were not eligible as per advertisement dated 22-10-2013. Thus, by changing the number of vacancies for different categories amounts to violation of Rule 15(3) of the 1993 Rules during the pendency of the advertisement and thus, depriving of 3303 general category candidates, even to appear in the interview and allowing 4392 more candidates of OBC in the zone of consideration for the 8 selection, amounts to changing the rule of the game during the process of selection......".

53. By careful consideration, we are unable to countenance the above view taken by the High Court that the change in number of vacancies has illegally deprived 3303 candidates in general category from appearing in the interview and had benefited the OBC category candidates. Be it noted that the writ petitions were filed by the candidates who appeared for interview and were unsuccessful. It is not known that what were the marks secured by the writ petitioners/candidates in the written examination and what were their position in the merit list. The writ petitioners who are unsuccessful candidates have not demonstrated as to how they were prejudicially affected by the change in number of vacancies against "general category"

and "OBC category". The High Court was not right in making a generalised observation that decrease in the number of vacancies against "general category" has illegally deprived 3303 candidates from appearing in the interview."

14. Hon'ble Supreme Court in the case of Aarya Zonal Manageer, Bank of India vs. K. Babu & another reported in (2019) 8 SCC 587 has held in para 14 that "if there is any change in qualification / criteria after the notification is issued but before the completion of the selection process and the employer / recruiting agency seeks to adopt the change it will be incumbent on the employer to issue a corrigendum incorporating the changes to the notification and invite applications from those qualified as per the changed criteria and consider the same along with the applications received in response to the initial notification."

15. Respondents have acted as per the law enunciated by Hon'ble Supreme Court in the aforesaid judgment. In terms of the amended Recruitment Rules, revised advertisement was issued and applications were invited from those, who became eligible as per changed eligibility criteria and they were considered with candidates, who submitted application in response to the original advertisement. Thus, merely because petitioner's chance of success may have been reduced due to increase in the number of candidates competing for limited number of posts, will not be a valid ground to quash the revised advertisement.

16. The judgment rendered by this Court in WPSS No. 825 of 2020, relied by learned counsel for petitioners, is distinguishable on facts, as it was a case of promotion in which petitioner was eligible on the date promotion exercise commenced. However, by an amendment made subsequently, an additional qualification was added due to which he became ineligible. In that backdrop, it was held that subsequent amendment in the Service Rules will not apply to ongoing promotion exercise. In the matter of promotion, a Government Servant acquires a right to be considered for promotion upon completing required length of service on the feeder post as per the existing Rules and such acquired right cannot be taken away by subsequent amendment in the Service Rules. However, in case of open selection/direct recruitment, a candidate has no such acquired or vested right and selection has to be made as per the prevailing Service Rules.

17. Although, petitioners applied pursuant to the advertisement, which was issued in terms of un- amended Recruitment Rules, however that in itself will not create any right in their favour and they cannot contend that any amendment in the Rules made after date of issuance of advertisement, cannot be made applicable to the ongoing selection. Petitioners could have a grievance if their eligibility was taken away by amendment in the Rules or the selection criteria was changed to their detriment. Nothing of the sort has happened in the present case, therefore, the grievance raised by petitioners appears to be unfounded.

18. This Court in WPSS No. 1211 of 2021 (Om Prakash Gaur & another vs. State of Uttarakhand & 10 others) while dealing with a similar challenge thrown by candidates, who had applied pursuant to the original advertisement, to widening of field of eligibility by amending the Recruitment Rules, held as under:-

"10. From the aforesaid judgment, it is apparent that norms of recruitment cannot be altered, post commencement of selection process, if such alteration causes prejudice to a candidate.

11. The question before this Court would be whether any prejudice is caused to the petitioners by inclusion of candidates without B.Ed. degree, in the ongoing selection. Secondly, whether the challenge thrown by petitioners to the press release, issued on 12.03.2021 in terms of amended rules, can be entertained after their participation in the selection process, held in terms of amended Rules.

12. It is not the case of the petitioners that by the amended Rules and the press release, issued pursuant thereto, their eligibility for participation in the selection was taken away. It is also not their case that mode & manner of making selection of suitable candidates has undergone any change by the amended Rules. It is also not their case that criteria for selection has been altered to the prejudice of petitioners by application of amended Rules to the ongoing selection. The only change, which has been brought about is in the field of eligibility, as earlier, candidates not having B.Ed. qualification were ineligible and by the amendment, non-B.Ed. candidates have become eligible.

13. In my humble opinion, no prejudice is caused to the petitioners by inclusion of non-B.Ed. candidates in the selection process, therefore, it cannot be said that rules of the game have been changed midway to the prejudice of the petitioners. Thus, there is no illegality in the press release dated 12.03.2021, the challenge thereto is without any substance.

14. Even otherwise also, it cannot be contended that right of petitioners got crystallized, merely by submitting application in response to the advertisement issued on 13.10.2020, so as to prevent the employer from changing the condition of eligibility, as mentioned in the advertisement. Thus viewed, employer was well within its right to issue press release in terms of the amended Rules before the selection process could progress post advertisement of vacancies.

15. By the press release, all candidates who had become eligible in terms of the amendment, were given opportunity to apply for the post of Assistant Teacher L.T. Grade (Art), therefore, it cannot be said that equal opportunity was not given to such candidates who could not apply earlier. The press release would amount to corrigendum to the earlier advertisement issued on 13.10.2020. Thus plea of violation of "Right to Equality"

to the eligible candidates also cannot be accepted."

19. In the case of State of Himachal Pradesh & others Vs. Raj Kumar & others, reported in 2022, reported in 2022 SCC OnLine SC 680, Hon'ble Supreme 11 Court has held that services under the State are in the nature of a status, a hallmark of which is the need of the State to unilaterally alter the rules to subserve the public interest. The rights and obligations of persons serving the Union and the States are to be sourced from the rules governing services. It has further been held in the said judgment that statement in Y.V. Rangaiah v. J. Sreenivasa Rao that "the vacancies which occurred prior to the amended rules would be governed by old rules and not by amended rules", does not reflect the correct proposition of law governing services under the Union and the States under part XIV of the Constitution. For ready reference paragraph nos. 70 to 75 of the said judgment, are reproduced below:-

"70. A review of the fifteen cases that have distinguished Rangaiah would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under:

1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah's case must be understood in the context of the rules involved therein.

2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the "rule in force" as on the date consideration takes place.

The right to be considered for promotion occurs on the date of consideration of the eligible candidates.

3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government.60 There is no obligation for the Government to make appointments as per the old rules in the event of restructuring of the cadre is intended for efficient working of the unit.61 The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14.

4. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately.

5. When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases.

71. The above-referred observations made in the fifteen decisions that have distinguished Rangaiah's case demonstrate that the wide principle enunciated therein is substantially watered-down. Almost all the decisions that distinguished Rangaiah hold that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of law that existed on the date when they arose. This only implies that decision in Rangaiah is confined to the facts of that case.

72. The decision in Deepak Agarwal (supra) is a complete departure from the principle in Rangaiah, in as much as the Court has held that a candidate has a right to be considered in the light of the existing rule. That is the rule in force on the date the consideration takes place. This enunciation is followed in many subsequent decisions including that of Union of India v. Krishna Kumar (supra). In fact, in Krishna Kumar Court held that there is only a "right to be considered for promotion in accordance with rules which prevail on the date on which consideration for promotion take place."

73. The consistent findings in these fifteen decisions that Rangaiah's case must be seen in the context of its own facts, coupled with the declarations therein that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of rules which existed on the date which they arose, compels us to conclude that the decision in Rangaiah is impliedly overruled. However, as there is no declaration of law to this effect, it continues to be cited as a precedent and this Court has been distinguishing it on some ground or the other, as we have indicated hereinabove. For clarity and certainty, it is, therefore, necessary for us to hold;

(a) The statement in Y.V. Rangaiah v. J.

Sreenivasa Rao that, "the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules", does not reflect the correct proposition of law governing services under the Union and the States under part XIV of the Constitution. It is hereby overruled.

(b) The rights and obligations of persons serving the Union and the States are to be sourced from the rules governing the services.

Application of the principle to the facts of the present case:

74. Returning to the facts of the present case, we have noticed that the High Court has proceeded on the premise that the vacancies occurring before the amendment of the Rules on 25.11.2006 must be governed by the 1966 Rules. The decision of the High Court took within its sweep even the 7 new posts of Labour Officers that were sanctioned by an inter- departmental letter dated 20.07.2006, which included even the 3 posts allocated for direct recruitment. The direction of the High Court to encompass even the 3 posts allocated for direct recruitment was on the ground that the posts were sanctioned on 20.07.2006, which is prior to the amendment of the Rules on 25.11.2006.

75. We have already held that there is no right for an employee outside the rules governing the services. We have also followed and applied the Constitution Bench decisions in Union of India v. Tulsiram Patel (supra) and 13 more particularly the decision in Roshan Lal Tandon v. Union of India (supra) that the services under the State are in the nature of a status, a hallmark of which is the need of the State to unilaterally alter the rules to subserve the public interest. The 2006 rules, governing the services of the Respondents came into force immediately after they were notified. There is no provision in the said rules to enable the Respondents to be considered as per the 1966 Rules. The matter must end here. There is no other right that Respondents no. 1 to 3 can claim for such consideration."

20. Contention raised on behalf of petitioners that in the absence of any enabling provision in the amendment Rules, notified on 29.11.2021, the same cannot be given retrospective operation so as to affect ongoing selection, is also without force.

21. It is not the case of petitioners that benefit of relaxed condition of eligibility was given to a small group of persons without issuing corrigendum/revised advertisement. From the relief clause of writ petition, it is apparent that benefit of amended eligibility condition was given to all by issuing revised advertisement, although, petitioners referred it as corrigendum.

22. Issuance of revised advertisement in terms of amended Rules amounts to initiation of selection process afresh, therefore, the contention that amended Rules cannot be applied retrospectively, is without any force.

23. It is well settled that a candidate selected for appointment to a post has no indefeasible right of appointment. Similarly, mere participation in a selection for appointment does not create any right in favour of a person. Petitioners have merely applied pursuant to earlier advertisement, thus, they cannot claim any right based on their application made pursuant to earlier advertisement, therefore, they cannot question the decision of appointing authority and 14 the selecting body to apply the amended Rules to the ongoing selection so as to enlarge the field of eligibility. The decision to remove condition of two years' experience and in its place insert the condition of internship is in the realm of policy decision and as employer, the State Government can alter the eligibility condition and interference with such alteration can be made when it is so arbitrary or unreasonable, which no reasonable person of ordinary prudence would have made.

24. Learned counsel for petitioners then submitted that petitioners have put in more than 10 years of service in Government Medical Colleges as contract employee, therefore, they should be given weightage for their experience in the ongoing selection process.

25. Whether any weightage is to be given for experience or not can only be decided by the State Government, and in the absence of any enabling provision in the Rules, this Court cannot direct the respondents to grant weightage to petitioners for their past experience. Moreover, selection process is concluded and only result remains to be declared, therefore, if any weightage is given to petitioners for experience at this belated stage, it will result in revision of the select list and it will also amount to changing rules of the game in the midst of recruitment.

26. In such view of the matter, this Court is of the considered opinion that issuance of any direction for grant of weightage to petitioners at this stage would be unwarranted.

27. However, having regard to the fact that some petitioners have served for 20 years as contract employee in Government Medical Colleges and have sharpened their skill due to long experience, therefore, to utilize their experience in public interest, State Government may take a decision, which shall be applicable in future selection.

28. In such view of the matter, while holding that there is no scope for interference with the ongoing selection, the writ petitions are disposed of with liberty to petitioners to approach the State Government by making a representation for grant of weightage/bonus marks for their experience. If such representation is made, State Government shall consider the request made by petitioners and pass appropriate orders, as per law, within six months.

(MANOJ KUMAR TIWARI, J.) Arpan

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Uttarakhand High Court