Chattisgarh High Court
Manraj Tamboli vs State Of Chhattisgarh on 19 April, 2022
Author: P. Sam Koshy
Bench: P. Sam Koshy
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 2683 of 2018
1. Manraj Tamboli S/o Shri Manharan Lal Aged About 30 Years R/o Village
Khokhra, Tahsil Janjgir, District Janjgir Champa Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through Secretary, Health Department Mahanadi
Bhawan, Mantralaya New Raipur, District Raipur Chhattisgarh.
2. Secretary, Professional Examination Board, Raipur, District Raipur
Chhattisgarh.
3. Dean, S/o Late Lakhiram Agrawal, Memorial Medical College, Raigarh,
District Raigarh Chhattisgarh.
4. Yogesh Kumar Dansena ( Interveners ) S/o Shri Gendlal Dansena Aged
About 41 Years Chhote Attarmuda, Near Jila Panchayat Raigarh District
Raigarh Chhattisgarh.
5. Om Prakash Sidar ( Interveners ) S/o Rajkumar Sidar Aged About 29 Years
R/o Village Rembar, Post - Chikhli, Tahsil Pushaur, District Raigarh
Chhattisgarh.
6. Aarti Dehri ( Interveners ) D/o Suresh Chand Dehri, Aged About 28 Years R/o
Ram Bhata, Sanjay Maidan Ward No. 3 Raigarh District Raigarh
Chhattisgarh.
7. Narendra Singh Sidar ( Interveners ) S/o Fakeer Singh Sidar Aged About 24
Years R/o Kesla, Post Kesla, Tahsil Lailunga District Raigarh Chhattisgarh.
8. Ku. Pinki Kural ( Interveners ) D/o Chaitram Kural, Aged About 23 Years R/o
Malidipa, Baidadar, Raigarh District Raigarh Chhattisgarh.
9. Vinod Kumar Sahu ( Interveners ) S/o Bhagauram Sahu Aged About 32 Years
R/o Mudpar Post Kapan, Tahsil Akaltara District Janjgir Champa
Chhattisgarh.,
10. Dinesh Kumar Sahu ( Interveners ) S/o Tejram Sahu Aged About 26
Years R/o Mitthumuda, Rajiv Gandhi Nagar, Raigarh District Raigarh
Chhattisgarh. ---- Respondents
For Petitioners : Mr. Ajay Shrivastava, Advocate For State : Mr. R. M. Solapurkar, G.A. For Intervener : Mr. Sunil Pillai, Advocate.
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Hon'ble Shri Justice P. Sam Koshy Order On Board 19.04.2022
1. Challenge in the present writ petition is to the recruitment process initiated by the respondents No. 1 and 3 so far as filling up of the post of Ward boy/Aaya at the respondent No. 3 Medical collage, District Raigarh. The advertisement for the 42 posts of Ward boy/ Aaya was published on 19.09.2017 (Annexure P-2).
2. It would be relevant at the juncture to take note of the conditions laid down in the advertisement so far as the procedure of selection is concerned. For ready reference relevant conditions No. 17, 18, 19 & 20 are being reproduced here-in-under:-
"17- bu inksa ij fyf[kr ijh{kk yh tkosxh tks oLrqfu"B izdkj dh gksxh rFkk iz'u&i=] inksa dh izd`fr ,oa vko';d 'kS{kf.kd vgZrk ds fo"k;ksa rFkk foKku] lekftd v/;;u] xf.kr ls lacaf/kr iz'uksa ds vfrfjDr N-x- ds lkekftd] lkaLd`frd ,oa HkkSxksfyd fLFkfr ls lacaf/kr lkekU; Kku vkfn ds iz'u gks ldrs gSA blds fy;s dksbZ nkok&vkifRr@vH;kosnu ekU; ugha gksxkA 18- fyfidh; laoxZ ds inksa gsrq fyf[kr ijh{kk ds vykok dkS'ky@n{krk ijh{kk vk;ksftr dh tkosxhA dkS'ky@n{krk ijh{kk gsrq 1%5 ds vuqikr esa esfjV dzekuqlkj gh vH;fFkZ;ksa dks volj fn;k tkosxkA 19- foKkfir inksa ij p;u gsrq izkoh.; lwph] fyf[kr ijh{kk ds izkIrkad ds vk/kkj ij rS;kj dh tkosxhA 20- fyfidh; laoxZ ds inksa gsrq p;u lwph fyf[kr ,oa dkS'ky@n{krk ijh{kk esa izkIr vadks ds dqy ;ksx ds vk/kkj ij RkS;kj dh tkosxhA"
3. The petitioner being qualified for the said post, applied for the same and he was called for the written examination that was conducted on 10.12.2017. The result of the said exam was declared on 21.01.2018. It was contended by the petitioner that he stood meritorious and in the overall ranking, he was placed at serial No. 16 and in the reserved category for OBC, he was placed at serial No. 3.
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4. In terms of the conditions No. 17 and 19, the petitioner was liable to be selected for the said post either as an unreserved category or if not, at least under the OBC category considering his merit position. However, the Selection Committee thereafter changed the Rules of the game for Selection and took a decision on 22.01.2018 for preparing the select list on the basis of a further Aptitude Test to be conducted.
5. The petitioner immediately upon such decision being taken by the respondents, submitted his objection in respect of the convening of the Aptitude Test, challenging it on the ground that it is contrary to the advertisement, as also contrary to the Recruitment Rules also. The objection of the petitioner was filed as early on 29.01.2018 (Annexure P-4). Without deciding the said objection raised by the petitioner, the respondents proceeded further and ordered to have Aptitude Test on 04.02.2018. The petitioner also, since he fell within the zone of consideration, was called upon to appear in the Aptitude Test and the results of the said Aptitude Test were declared on 22.02.2018 and the petitioner was declared unqualified. Meanwhile, the petitioner also raised an objection so far as two questions i.e. question No. 2 and question No. 6 of the Aptitude Test and the changed result by the respondent-authority thereon.
6. Primary challenge to the said recruitment process by the petitioner is on the ground that the respondents have arbitrarily and with malafide intention changed the rule of the game after the recruitment process had begun. According to the counsel for petitioner, in the instant case, in-fact the recruitment process published was to the extent of 4 conducting of written examination and the declaration of the result of the written examination and the select list was to be prepared on the basis of the merits in the written examination. That was the procedure that was required to be followed for preparation of the merit list so far as the post of Ward boy / Aaya are concerned. According to the counsel for petitioner, the advertisement also specifically enumerated that the selection would be done on the basis of the merit list prepared based upon the result of the written examination to be conducted. The respondents therefore could not have been permitted to change the recruitment process and introducing another additional procedure to be followed before preparation of the final select list. This, therefore, according to the counsel for petitioner, is directly in contravention to settle legal position so far as changing of the Rules after the recruitment process has commenced as laid down by the Hon'ble Supreme Court in the case of Mohd. Sohrab Khan Vs. Aligarh Muslim University reported in (2009) 4 SSC 555 and in the case of K. Manjusree V. State of Andhra Pradesh reported in (2008) 3 SSC 512.
7. Per contra, the learned State Counsel defending the action on the part of the respondents submitted that the whole idea was to fix the most meritorious candidate suitable for the nature of job and duties to be discharged by a Ward boy and Aaya and it was in this context that the Selection Committee thought it more appropriate to hold an Aptitude Test also, in addition to the written examination already convened so that better candidates could get a chance for being selected. 5
8. The State Counsel also submitted that Rules 6 (5) of the NRrhlx<+ fpfdrlk f'k{kk foHkkx vfyfid oxhZ; (lapkyuky; fpfdrlk f'k{kk foHkkx ls lacaf/kr) r`rh; Js.kh lsok HkrhZ fu;e] 2015 whereby in the Rule itself it is provided that in a given circumstances, the Selection Committee can deviate from the normal recruitment process which is prescribed under the Rules and prescribed procedure and eligibility criteria. It is this power which has been exercised by the Selection Committee while introducing the Aptitude Test for Selecting the best candidates out of the lot.
9. The State Counsel referred to the decision of the Selection Committee Annexure R-2 stating that the Selection Committee has taken a conscious decision taking into consideration the facts and circumstances of the case and also with an intention of taking the best candidates suitable for the said posts.
10. The State counsel further submitted that since the petitioner thereafter having voluntary participated in the Aptitude Test also and since he could not qualify or come out meritorious, he cannot be permitted now to assail the selection process having taken a calculated risk and found himself disqualified.
11. The learned Counsel appearing for the intervener, in addition to adopting the reply submitted by the State Counsel, also contended that it is case where the petitioner after having raised a formal objection on 29.01.2018 to the introduction of Aptitude Test by the Selection Committee, had never pursued the said objection neither had questioned the said decision of the respondents before any Court of law. On the contrary, the petitioner appeared in the Aptitude Test voluntarily 6 and after he could not succeed, the petitioner has now turned around and tried to challenge the entire recruitment process itself which otherwise is not permissible. The said Act of the petitioner thus, cannot be accepted and the writ petition deserves to be rejected keeping in view the decision of the Hon'ble Supreme Court in the case Ashok Kumar and Anr. Vs. State of Bihar and Ors., reported in (2017) 4 SSC
357.
12.Having heard the contentions put forth on all sides and on perusal of pleadings, some of the admitted positions as it stand are that an advertisement was issued for filling up of various posts including that of Ward boy and Aaya on 19.09.2017. The petitioner being eligible for the said post, had applied. He was called for the written examination that was convened on 10.12.2017 and the results were declared on 21.01.2018 and as per the results the petitioner stood meritorious in the said written examination. However, subsequently the Selection Committee took a decision not to finalize the Selection list only on the basis of the written examination and its results but also to conduct a further Aptitude Test from among the candidates who have cleared the written examination and the candidates were called at 1:7 Ratio. The decision of the respondents to prepare the final select list on the basis of the result in the Aptitude Test was objected by the petitioner vide (Annexure P-4) immediately on 29.01.2018 itself. The said objection was not considered or decided by the respondents and they proceeded to convene the skill test on 04.02.2018 and the result which was declared on 22.02.2018 the petitioner could not find place in the merit list. Thereafter the present writ petition has been filed on 21.03.2018. 7
13. Apart from the conditions No. 17 to 20 as have been reproduced in the preceding Paragraphs, it would also be relevant at this juncture to consider the Rules of 2015 which deals with the recruitment process for the posts advertised. Clause 6 of the said Rules of 2015 deals with the procedure of the recruitment. For ready reference Clause 6 of the Rule 2015 is reproduced here-in-under:-
" 6- HkrhZ dk rjhdk-& ¼1½ bu fu;eksa ds izkjaHk gksus ds i'pkr~] lsok esa HkrhZ fuEufyf[kr rjhdksa ls dh tk,xh] vFkkZr~%& ¼d½ izfr;ksfxrk ijh{kk@p;u ds ek/;e ls] lh/kh HkrhZ }kjk] ¼[k½ lsok ds lnL;ksa dh inksUufr }kjk] ¼x½ ,sls vH;FkhZ ds LFkkukarj.k@izfrfu;qfDRk }kjk] tks ,slh lsokvksa esa inksa dks ewy@LFkkukiUu gSfl;r esa /kkj.k djrs gksa] tSlk fd bl fufeRr fofufnZ"V fd;k tk;s-
¼2½ mi&fu;e ¼1½ ds [k.M ¼d½] ¼[k½ ;k ¼x½ ds v/khu HkrhZ fd;s x;s O;fDr;ksa dh la[;k] vuqlwph&,d esa ;Fkk fufufnZ"V inksa dh la[;k ds] vuqlwph&nks esa n'kkZ;s x;s izfr'kr ls fdlh Hkh le; vf/kd ugha gksxh- ¼3½ bu fu;eksa ds mica/kksa ds v/;/khu jgrs gq,] HkrhZ dh fdlh fof'k"V dkykof/k ds nkSjku Hkjs tkus ds fy, visf{kr] lsok esa fdlh fof'k"V fjfDr ;k fjfDr;ksa dks] Hkjs tkus ds iz;kstu ds fy;s viuk;h tkus okyh HkrhZ dk rjhdk ;k rjhds rFkk ,sls izR;sd rjhds }kjk HkrhZ fd;s tkus okys O;fDr;ksa dh la[;k] izR;sd volj ij fu;qfDr izkf/kdkjh }kjk] 'kklu ds ijke'kZ ls] vo/kkfjr dh tk,xh-
(4) mi&fu;e ¼1½ esa varfoZ"V fdlh ckr ds gksrq gq, Hkh] ;fn fu;qfDr izkf/kdkjh dh jk; esa] lsok dks vR;ko';drkvksa dks ns[krs gq, ,slk djuk visf{kr gks] rks 'kklu ds lkekU; iz'kklu foHkkx dh iwoZ lgefr ls lsok esa HkrhZ ds mu rjhdksa dks NksM+] ftudks mDr mi&fu;e esa fofufnZ"V fd;k x;k gS] ,sls rjhds viuk ldsxk] ftls og bl fufeRr tkjh fd, x;s vkns'k }kjk fofgr djs-
¼5½ esfjV ds vk/kkj ij p;u ds ek/;e ls lh/kh HkrhZ }kjk Hkjs tkus okys inksa ds fy,] ekinaM 'kklu }kjk rS;kj fd;s tk;saxs- rFkkfi] fu;qfDr izkf/kdkjh ds fy;s ;g vko';d gksxk fd bl iz;kstu ds fy;s ,d p;u lfefr xfBr djs] tks bu ekinaMksa ls fHkUu dksbZ vU; ;qfDrlaxr ekinaM 'kklu dh lgefr ls viuk ldsxh-"
¼6½ lsok esa HkrhZ ds le;] Nrrhlx<+ yksd lsok ¼vuqlwfpr tfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZ ds fy, vkj{k.k½ vf/kfu;e] 1994¼dz- 21 lu~ 1994½ ds izko/kku rFkk 'kklu ds lkekU; iz'kklu foHkkx }kjk le;≤ ij tkjh funsZ'k ¼;Fkk la'kksf/kr½ ykxw gksaxs-8
14.Similarly, Rule 11 deals with the procedure laid down for Direct Recruitment by way of competitive examination, selection and interview and is being reproduced here-in-under:-
"11-izfr;ksxh ijh{kk@p;u@lk{kkRdkj }kjk lh/kh HkrhZ& ¼1½ izfr;ksxh ijh{kk }kjk lh/kh HkrhZ%& ¼,d½ fu;qfDr izkf/kdkjh ,d p;u lfefr xfBr djsxk] ftlesa ikap lnL; lfEefyr gksaxs-
nks½ lsok esa HkrhZ ds fy;s izfr;ksxh ijh{kk ,sls varjkyksa ij vk;ksftr dh tk;sxh] tSlk fd fu;qfDr izkf/kdkjh] 'kklu ds ijke'kZ ls] le;≤ ij vo/kkfjr djs-
¼rhu½ ijh{kk fu;qfDr izkf/kdkjh }kjk le;≤ ij tkjh vkns'kksa ds vuqlkj p;u lfefr esa ek/;e ls vk;ksftr dh tk;sxh-
¼2½ p;u }kjk lh/kh HkrhZ%& ¼,d½ lsok ds fy;s vH;fFkZ;ksa dk p;u] ,sls vUrjkyksa ij fd;k tk;sxk] tslk fd fu;qfDr izkf/kdkjh }kjk vo/kkfjr fd;k tk;s-
¼nks½ vH;fFkZ;ksa dk p;u] lk{kkRdkj ds vk/kj ij p;u lfefr }kjk fd;k tk;sxk- ¼rhu½ p;u lfefr] leqfpr le; vUrjkyksa ij fu;qfDr izkf/kdkjh }kjk xfBr dh tk;sxh-
¼3½ lsok esa HkrhZ ds le;] NRrhlx<+ yksd lsok ¼vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZa ds fy;s vkj{k.k½ vf/kfu;e] 1994 ¼dz] 21 lu~ 1994½ ds mica/k rFkk bl vf/kfu;e ds v/khu 'kklu ds lkekU; iz'kklu foHkkx }kjk le;≤ ij tkjh funZ's k ykxw gksxsa- ¼4½ bl izdkj vkjf{kr fjfDr;ksa dks Hkjrs le;] ,sls vH;FkhZ] tks vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZa ds lnL; gS]a dh fu;qfDr ds fy, mlh dze esa fopkj fd;k tk;sxk] ftl dze esa muds uke fu;e 12 esa fufnZ"V lwph esa vk;s gksa] pkgs vU; vH;fFkZ;ksa dh rqyuk esa mudk lkisf{kd jSad dqN Hkh D;ksa u gks-
¼5½ vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNMs+ oxksZa ¼xSj&dzheh&ys;j½ ls lacaf/kr mu vH;fFkZ;ksa] ftUgsa mudh iz'kklfud n{krk dks /;ku esa j[krs gq, fu;qfDr izkf/kdkjh }kjk fu;qfDr ds fy, ik= ?kksf"kr fd;k x;k gks] mi&fu;e ¼3½ ds vuqlkj] ;FkkfLFkfr] vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZa¼xSj&dzheh&ys;j½ ds vH;fFkZ;ksa ds fy, vkjf{kr fjfDr;ksa ij fu;qDr fd;k tk ldsxk- ¼6½ NRrhlx<+ flfoy lsok ¼efgykvksa dh fu;qfDr ds fy, fo'ks"k mica/k½ fu;e] 1997 ds mica/kksa ds vuqlkj] 30 izfr'kr inksa dks efgyk vH;fFkZ;ksa ds fy;s vkjf{kr j[kk tk;sxk] ;g vkj{k.k] leLrj ,oa izHkkxokj gksxk- ¼7½ ,sls ekeyksa esa] tgka lh/kh HkrhZ }kjk Hkjs tkus okys inksa ds fy, dqN dkykof/k dk vuqHko vko';d 'krZ ds :i esa fofgr fd;k x;k gS vkSj fu;qfDr izkf/kdkjh dh jk; esa ;g ik;k tk;s fd vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+sa oxksZa ¼xSj&dzheh&ys;j½ ls lacaf/kr vH;fFkZ;ksa ds iz;kZIr la[;k esa miyC/k gksus dh laHkkouk ugha gS] rks fu;qfDr izkf/kdkjh] vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZa ¼xSj&dzheh&ys;j½ ds vH;fFkZ;ksa ds laca/k esa vuqHko dh 'krZ dks f'kfFky dj ldsxk-
¼8½ mijksDr ds vfrfjDr] fu%'kDr O;fDr;ksa rFkk HkwriwoZ lSfudksa ds fy;s inksa dks] 'kklu }kjk le;≤ ij tkjh funsZ'kksa ds vuqlkj] vkjf{kr j[kk tk;sxk-"9
15. Taking into consideration the provisions of Rule 6 of said Rules 2015 and if we read the conditions attached to the advertisement, it would clearly reflect that the conditions to the advertisement was strictly in accordance with the Rule position. On the basis of said conditions to the advertisement, the examination was also convened on 10.12.2017 and the results were also declared on 21.01.2018. The petitioner also claims to have been found place in the merit position in the said results that was declared on 21.01.2018.
16. Coming to the issue as to whether the respondents or for that matter the Selection Committee could have deviated from the conditions stipulated in the advertisement or could have taken a decision contrary to the Rules.
17. It would be relevant to take note of Rules 6.5, which has been relied upon by the State, on the basis of which it is claimed by the State that the Selection Committee had deviated from the procedure which was otherwise prescribed under the advertisement. However, on going through clause 5 of Rules 6, it would clearly reflect that the Selection Committee in-fact has been authorized to lay down on its own eligibility criteria, the conditions and procedures for recruitment.
18. However, the said decision which has been conferred upon by the said Selection Committee, has to be taken before the recruitment process begins. Further requirement of clause 5 of Rule 6 is also that the deviation, if any, must also have the approval of the government before introducing the same. Both these factors are missing in the present facts of the case. In as much as the Selection Committee took a decision to 10 deviate from the procedure otherwise laid down after the procedure in- terms of the advertisement was concluded. Secondly, the deviation and the decision to deviate didn't have the approval of the Government.
19. In view of the same, this Court has no hesitation in reaching to the conclusion that it is a clear case where the respondents more particularly, the Selection Committee has changed the rules of the game after the game has begun.
20. It is settled position of law that once when the rules of the game has been prescribed and the recruitment process has also commenced, the respondents cannot be permitted to deviate from the said Rules and procedure prescribed. In the case of K. Manjusree V. State of Andhra Pradesh reported in 2008 3 SCC 512. In paragraph 32, 33 & 36, the Hon'ble Supreme Court dealing with a similar situation held as under:-
"32. In Maharashtra State Road Transport Corporation v. Rajendra Bhimrao Mandve 2001 (10) SCC 51, this Court observed that "the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced." In this case the position is much more serious. Here, not only the rules of the game were changed, but they were changed after the game has been played and the results of the game were being awaited. That is unacceptable and impermissible.
33. The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum 11 marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.
36. The Full Court however, introduced a new requirement as to minimum marks in the interview by an interpretative process which is not warranted and which is at variance with the interpretation adopted while implementing the current selection process and the earlier selections. As the Full Court approved the resolution dated 30.11.2004 of the Administrative Committee and also decided to retain the entire process of selection consisting of written examination and interviews it could not have introduced a new requirement of minimum marks in interviews, which had the effect of eliminating candidates, who would otherwise be eligible and suitable for selection. Therefore, we hold that the action of Full Court in revising the merit list by adopting a minimum percentage of marks for interviews was impermissible."
21.A similar view was further reiterated by the Hon'ble Supreme Court in the case of Mohd. Sohrab Khan Vs. Aligarh Muslim University, reported in (2009) 4 SSC 555 wherein again referring to a catena of decisions on the issue, the Hon'ble Supreme Court in paragraph 24, 25, 27, 28 & 29 has held as under:-
24. According to us, the Selection Committee as also the University changed the rule in the midstream which was not permissible. The University can always have a person as a Lecturer in a particular discipline that it desires to have, but the same must be specifically stated in the advertisement itself, so that there is no confusion and all persons who could be intending candidates, should know as to what is the subject which the person is required to teach and what essential qualification the person must possess to be suitable for making application for filling up the said post.
"25. We are not disputing the fact that in the matter of selection of candidates, opinion of the Selection Committee should be final, but at the same time, the Selection Committee cannot act arbitrarily and cannot change the criteria/qualification in the selection process during its midstream. Merajuddin Ahmad did not possess a degree in pure Chemistry and therefore, it was rightly held by the High Court that he did not possess the minimum qualification required for filling up the post of Lecturer Chemistry, for pure Chemistry and Industrial Chemistry are two different subjects.12
27. The Selection Committee during the stage of selection, which is midway could not have changed the essential qualification laid down in the advertisement and at that stage held that a Masters Degree Holder in Industrial Chemistry would be better suited for manning the said post without there being any specific advertisement in that regard. The very fact that the University is now manning the said post by having a person from the discipline of pure Chemistry also leads to the conclusion that the said post at that stage when it was advertised was meant to be filled up by a person belonging to pure Chemistry stream.
28. In Secy., A.P. Public Service Commission v. B. Swapna, [(2005) 4 SCC 154] at para 14 it was held by this Court that norms of selection cannot be altered after commencement of selection process and the rules regarding qualification for appointment, if amended, during continuation of the process of selection do not affect the same.
29. Further at para 15 of B Swapna case it was held that the power to relax the eligibility condition, if any, to the selection must be clearly spelt out and cannot be otherwise exercised. The said observations are extracted herein below:
"14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka (1990) 1 SCC 411 and Gopal Krushna Rath v. M.A.A. Baig (1999) 1 SCC 544.)
15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although the Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141 this Court held that once it is established that there is no power to relax essential qualification, the 13 entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised."
22.As regards the judgment relied upon by the learned counsel for the interveners i.e. the judgment of the Hon'ble Supreme Court in the case of Ashok Kumar and Another Vs. State of Bihar and Ors., reported in (2017) 4 SCC 357, this Court is of the view that the said judgment, the ratio and analogy laid down in the said judgment would not fit in the given factual matrix of the present case, for the simple reason that in the present case the petitioner had raised the objection so far as the procedure being changed by the Selection Committee at the first instance itself without waiting for long. The judgment of the Hon'ble Supreme Court in the case of Ashok Kumar (supra) was in the context where the candidates had not challenged the selection process at the first instance and took a calculated risk without any objections by participating in the fresh examination which was ordered to be conducted and only upon being disqualified at the first instance, the petitioner therein chose to challenge the same by way of a writ petition before the High Court.
23. Whereas in the instant case, it is an admitted fact that the petitioner had in-fact raised the objections at the first instance itself even before the revised procedure was acted upon by the respondents and the respondents didn't even care to decide the objections and straight away went on and acted upon the revised procedure of convening a fresh Aptitude Test. Thus, the said judgment of the Ashok Kumar (supra) would be distinguishable on its facts itself.
14
24. Since this Court finds that the deviation from the conditions stipulated to the advertisement, is contrary to the judgment of the Hon'ble Supreme Court in the case of Mohd. Sohrab Khan (supra) and as also in the case of K. Manjusree (supra), the writ petition to that extent deserves to be allowed and is ordered accordingly, the selection process initiated by the respondents so far as holding of the Aptitude Test and the results published thereafter is held to be bad-in-law and is therefore set aside / quashed so far as the recruitment process for the post of Ward Boy / Aaya. The respondents are further directed to proceed further with the recruitment process based upon the results published in the written examination held on 10.12.2017. The result of which was published on 21.01.2018 and the recruitment process be finalized on the basis of the merits from the said results. The writ petition thus stands allowed and the interim order passed earlier would stand merged with the final order passed today i.e. 19.04.2022.
Sd/-
P. Sam Koshy Judge Jyoti