Uttarakhand High Court
Om Prakash Gaur And Another ... vs State Of Uttarakhand And Another on 21 September, 2021
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 1211 of 2021
Om Prakash Gaur and another ...Petitioners
Versus
State of Uttarakhand and another ....Respondents
Present:-
Mr. Abhilash Nainwal, Advocate for the petitioners.
Mr. M.C. Tiwari Deputy Advocate General and Mr. S.K. Mishra,
Standing Counsel for the State/respondent no.1.
Mr. Lalit Samant, Advocates for the respondent no.2.
Hon'ble Ravindra Maithani, J. (Oral)
Aggrieved by the change of eligibility criteria, while recruitment process was still on, the petitioners approached this Court and questioned the press release issued by respondent no.2, Uttarakhand Subordinate Service Selection Commission (for short, " the Commission").
Heard.
Admit.
CSC takes notice for the respondent no.1. Mr. Lalit Samant, Advocate takes notice for the respondent no.1 Counter affidavit may be filed within three weeks. Rejoinder affidavit, if any, may be filed thereafter.
List for final hearing on 20.10.2021, just after fresh cases.
Interim Relief Application (IA) No. 1 of 2021
2. Heard on interim relief application.
3. By means of instant interim relief application, the petitioners seek direction that the respondent no.2 may be restrained to complete the selection process of the Non-B.Ed. candidates who participated pursuant to the impugned press release dated 12.03.2021 during the pendency of the present writ petition.
24. It is the case of the petitioners that the responding to an advertisement dated 13.10.2020 issued by the respondent no.2, Commission, the petitioners applied to the posts of Assistant Teacher, LT Grade, Art. The eligibility criteria for the post was graduation as well as the B.Ed. Degree. The applicable Rules were the Uttarakhand Subordinate Education (Training Graduate Grade) Service Rules, 2014 (for short, "2014 Rules"). On 25.02.2021, 2014 Rules were amended and the requirement of B.Ed. for the post was deleted, when the recruitment process was still on, on 12.03.2021, respondent no.2, Commission issued a press release (Annexure 5 to the writ petition), by which, it was notified that :-
(i) B.Ed. is no more an essential qualification for the post and;
(ii) Time to file application form has been extended and such candidate may also apply to the post now, who are eligible, in view of the amendment carried out in the 2014 Rules on 25.02.2021.
5. It is the case of the petitioners that while recruitment is still on, how could eligibility criteria for the post may be amended and particularly, how such amended Rules be made applicable retrospectively?
6. Heard learned counsel for the parties and perused the record.
7. Learned counsel for the petitioners would submit that once the recruitment is initiated by way of publication of the advertisement, everything gets crystallized on the date when advertisement was issued. During the course of recruitment procedure service Rules cannot be changed, so as to effect the eligibility criteria and particularly, even if, such amendment is made that may not be made applicable to the process of recruitment, which was already underway.
8. In support of his contention, learned counsel has placed reliance upon the principles of law, as laid down in the case of State of Bihar Vs. Mithilesh Kumar, MANU/SC/630/2010. Reference has been made to paragraph nos. 11, 12 and 15 of it. In paragraph no. 11 and 12 in the judgment of Mitilesh Kumar (supra), the arguments have been referred to and in para 3 15 of it, the Hon'ble Supreme Court observed that "the decisions which have been cited on behalf of the Respondent have clearly explained the law with regard to the applicability of the Rules which are amended and/or altered during the selection process. They all say in one voice that the norms or Rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect."
9. 2014 Rules were amended on 25.02.2021. The amendment has also been filed as annexure 8 to the writ petition. The amendment has not been given retrospective effect.
10. The Court wanted to know from the learned counsel for the State as well as from the learned counsel for the respondent no.2, Commission as to why did it happen? Yesterday, this matter was heard twice i.e. in the forenoon as well as in the afternoon. The order which was passed in the afternoon is as hereunder:-
"When the matter is taken up at 02:00 PM, learned State counsel would tell the Court that they had never modified the requisition, which was sent prior to advertisement of the post by the respondent No.2, Uttarakhand Subordinate Service Selection Commission (for short, "the Commission").
Learned counsel for the respondent no.2, the Commission would submit that the petitioners have participated in the process.
The Court takes strong objection to the way, the query which was posed in the forenoon, has been replied on behalf of the respondent no.2, the Commission. The Court never wanted to know from the respondent no.2, the Commission, as to whether the petitioners have participated in the process or not. What the Court wanted to know from the respondent no.2, the Commission was, "as to how could they change the eligibility criteria midway, particularly post advertisement". No answer.
When asked about it, as to how could the respondent no.2, the Commission change the eligibility criteria post advertisement, moreover, when State of Uttarakhand has not changed or modified requisition informing about eligibility criteria, learned counsel for the respondent no.2, the Commission still seeks time to get instructions.
Learned counsel for the respondent no.2, the Commission would seek instructions on the following points:-
(1) Who decided that the eligibility criteria should be changed post publication of the advertisement, midway the recruitment process?
(2) Who was the final authority, who put seal on it? (3) Can the Uttarakhand Subordinate Service Selection Commission on its own change the rule of the recruitment post advertisement without any request 4 having been received from the State of Uttarakhand?
(4) Has the respondent Commission committed gross illegality in conducting a public examination? If so, who is to be held accountable and how to proceed against such person in the respondent no.2, the Commission?
List tomorrow, just after fresh."
11. Today, learned counsel for the respondent no.2, Commission would submit that pursuant to a letter received from the State of Uttarakhand, the impugned press release dated 12.03.2021 was issued by the Commission informing about the change of eligibility criteria as well as extension of time to file the application form.
12. Learned State counsel very strongly object to the statement made on behalf of the respondent no.2, Commission. He would submit that the State of Uttarakhand had not required the respondent no.2, Commission to change the eligibility criteria, instead the State had only suggested that the time for submitting the application form may be extended by one month.
13. The Court wanted to know from the learned counsel for the State as well as learned counsel for the respondent no.2,Commission, as to whether, post publication of the advertisement, the service Rules may be amended and be made applicable to the recruitment process, which had initiated prior to amendment, particularly when, the amendment has not been given retrospective effect? To it, learned State counsel would answer that it cannot be done. He also submits that the State Government did not request for that to the respondent no.2,Commission. Learned counsel for the respondent no.2, Commission would also submit that it cannot be done.
14. Before this Court, at the state of admission itself, on behalf of the State as well as respondent no.2, Commission it is admitted that the press release dated 12.03.2021 could not have been issued by the Commission. It appears that respondent no.2, Commission has committed gross mistake in conducting this public examination by inviting applications from the candidates, who were not eligible on the date when the advertisement was issued.
15. Generally, the Court should be much slow in interfering with the process of public recruitment to the posts, which are to be filled up by the public 5 examination, but when such glairing mistakes are brought to the notice of the Courts, perhaps Courts are under constitutional and legal obligations to intervene. Therefore, as an interim measure, this Court is of the view that directions need to be issued.
16. Till the next date of listing, the process of the recruitment, as initiated by way of publication of the advertisement dated 13.10.2020 shall remain in abeyance.
17. Interim relief application stands disposed of accordingly.
18. This Court would have normally stopped at this stage, but the way respondent no.2,Commission has been working has also been brought to the notice of this Court in Writ Petition (S/S) No. 918 of 2021. Incidentally, it is also listed for hearing today. In that writ petition, the Coordinate Bench of this Court observed on 29.07.2021 as hereunder:-
"This writ petition is not only an isolated example, where there has been a discrepancy in the process of selection, which has been resorted to by the Commission. There had been number of other similar writ petitions, which has earlier come before this Court, where a wrongful answer key was given to the question options given in the OMR sheet to the candidates. This faulty process of selection resorted to by the respondent dis-entitles them to even continue to function as an independent body for holding the transparent process of selection. In that eventuality, this Court while exercising its jurisdiction under Sub Article (2) of Article 317 of the Constitution of India, issues a show cause notice to the Secretary of the respondent no.4, to give his reply within a period of four weeks from today, as to why the reference for suspension of the Commission, may not be sent to the Governor for failing to discharge the functions as provided under Article 320 of the Constitution of India, and for failing to discharge the responsibilities and duties of being an independent agency, whose functions are expected to be carried in the light of the provisions contained under Article 320 of the Constitution of India.
The petitioners are directed to implead the Secretary of the Commission as a party respondent, by name, to the writ petition. Till the next date of listing, the result as declared by respondents and the consequential appointment in pursuance to it, would be kept in abeyance.
Interim Relief Appl. No.01 of 2021 stands disposed of.
19. Let Secretary to the respondent no.2, Commission be made party in this writ petition as well. He shall be made party by the Registry itself and amended memo shall be kept on record and thereafter, notice shall be issued to him. He shall file his counter affidavit within three weeks.
620. In view of the statement given on behalf of the respondent no.2, Commission today that the press release dated 12.03.2021 ought not to have been issued by the Commission, the Secretary to the respondent no.2, Commission, who is to be made a party in the petition, shall explain as to why the State of Uttarakhand be not requested to take action against him.
21. Respondent no.2, Commission shall also place on record the entire file including notings etc. which led the Commission to issue press release on 12.03.2021.
(Ravindra Maithani, J.) 21.09.2021 Jitendra