Allahabad High Court
Ram Janak Maurya And Ors. vs State Of U.P. Thru. Secy. Basic ... on 1 November, 2018
Equivalent citations: AIRONLINE 2018 ALL 4724
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on: 30.08.2018 Delivered on: 01.11.2018 Court No. - 23 Case :- SERVICE SINGLE No. - 11375 of 2018 Petitioner :- Ram Janak Maurya And Ors. Respondent :- State Of U.P. Thru. Secy. Basic Education And Ors. Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Alok Kumar Tripathi,Apoorva Tewari,Durga Prasad Shukla,Himanshu Raghav,Ram Kumar Singh,Vindheshwari Kumar with Case :- SERVICE SINGLE No. - 11947 of 2018 Petitioner :- Suryabhan Upadhyay And Ors. Respondent :- State Of U.P. Thru. Secy. Basic Edu. And Ors. Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Ajay Kumar,Shashi Bajpai with Case :- SERVICE SINGLE No. - 12656 of 2018 Petitioner :- Ram Khelawan And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. Deptt. & Ors. Counsel for Petitioner :- Alok Kr. Misra Counsel for Respondent :- C.S.C.,Dilip Mishra,Ghaus Beg,Lalji Yadav,M.M. Asthana,Prafulla Tiwari with Case :- SERVICE SINGLE No. - 5734 of 2018 Petitioner :- Santosh Kumar Kushwaha And 20 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu.Civil Sectt.Lko.& Ors Counsel for Petitioner :- Onkar Singh Kushwaha,Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 11389 of 2018 Petitioner :- Ekhlaque Ahmad And Others Respondent :- State Of U.P. Thru. Secy. Basic Education And Others Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Vindhyawashini Kumar with Case :- SERVICE SINGLE No. - 30933 of 2017 Petitioner :- Raghuvendra Arya And 3 Ors. Respondent :- State Of U.P. Thru Secy.Basic Edu.Civil Sectt.Lko. & Ors. Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Vindhya Washini Kumar with Case :- SERVICE SINGLE No. - 30943 of 2017 Petitioner :- Sushil Kumar And 23 Ors. Respondent :- State Of U.P. Thru Secy.Basic Edu.Civil Sectt.Lucknow & Ors. Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Vindhya Washini Kumar with Case :- SERVICE SINGLE No. - 31004 of 2017 Petitioner :- Jang Bahadur Jaiswal And 20 Ors. Respondent :- State Of U.P. Thru Secy.Basic Edu. Civil Sectt.Lko. &Ors. Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Vindhya Washini Kumar with Case :- SERVICE SINGLE No. - 11841 of 2018 Petitioner :- Arvind Kumar Singh And Ors. Respondent :- State Of U.P. Thru. Secy. Basic Education And Ors. Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Shobhit Mohan Shukla,Vindhyawashini Kumar with Case :- SERVICE SINGLE No. - 11843 of 2018 Petitioner :- Sheela Chaudhary And Others Respondent :- State Of U.P. Thru. Secy. Basic Education And Others Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 11844 of 2018 Petitioner :- Mohan Lal Yaduwanshi And Ors. Respondent :- State Of U.P. Thru. Secy. Basic Education And Ors. Counsel for Petitioner :- Amrendra Nath Tripathi,Onkar Singh Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 11846 of 2018 Petitioner :- Rajendra Kumar Verma And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education And Ors. Counsel for Petitioner :- Bahar Ali Counsel for Respondent :- C.S.C.,Ajay Kumar,Shobhit Mohan Shukla with Case :- SERVICE SINGLE No. - 11682 of 2018 Petitioner :- Alok Kumar Singh And Ors. Respondent :- State Of U.P. Thru. Secy. Basic Edu. & Ors. Counsel for Petitioner :- Ram Kumar Singh Counsel for Respondent :- C.S.C.,Ajay Kumar,Shobhit Mohan Shukla with Case :- SERVICE SINGLE No. - 12022 of 2018 Petitioner :- Anurag Singh And Anr. Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. And Ors. Counsel for Petitioner :- Ram Kumar Singh Counsel for Respondent :- C.S.C.,Ghaus Beg with Case :- SERVICE SINGLE No. - 12097 of 2018 Petitioner :- Siddharth Shukla & Anr. Respondent :- State Of U.P. Thru. Secy., Basic Education & Ors. Counsel for Petitioner :- Amrendra Nath Tripathi,Amrendra Nath Tripathi,Gaurav Mehrotra,Ishita Yadu Counsel for Respondent :- C.S.C.,Rahul Shukla,Rajiv Singh Chauhan with Case :- SERVICE SINGLE No. - 12098 of 2018 Petitioner :- Som Pal & Others Respondent :- State Of U.P. Thru. Secy. Basic Education & Others Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 12099 of 2018 Petitioner :- Jay Prakash Vishwakarma & 6 Ors. Respondent :- State Of U.P. Thru Secy. Basic Education & 3 Ors. Counsel for Petitioner :- Amrendra Nath Tripathi,Onkar Singh Kushwaha Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 12096 of 2018 Petitioner :- Anuradha Srivastava & 14 Others Respondent :- State Of U.P. Thru. Secretary Basic Education & 3 Others Counsel for Petitioner :- Vijay Kumar Asthana Counsel for Respondent :- C.S.C.,Ajay Kumar,Jyoti Sikka with Case :- SERVICE SINGLE No. - 12095 of 2018 Petitioner :- Girja Shanker Shukla & 14 Others Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Others Counsel for Petitioner :- Dharmendra Kumar Maurya Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 12254 of 2018 Petitioner :- Hridyesh Dubey Respondent :- State Of U.P. Thru. Secy. Basic Edu. And Ors. Counsel for Petitioner :- Rajesh Kumar Pathak Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 12319 of 2018 Petitioner :- Prashant Deepak Verma & Others Respondent :- State Of U.P. Thru. Secy. Basic Education & Others Counsel for Petitioner :- Onkar Pandey Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 12320 of 2018 Petitioner :- Pradeep Kumar Maurya And 8 Ors. Respondent :- State Of U.P. Thru Secy.Basic Edu.Civil Sectt.Lko.& Ors. Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Vindhyawashini Kumar with Case :- SERVICE SINGLE No. - 12321 of 2018 Petitioner :- Abhay Pratap Singh And Ors. Respondent :- State Of U.P.Throu,Secy.Basic Education U.P.Lko.& Ors. Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 12390 of 2018 Petitioner :- Vimlesh Kumar And Others Respondent :- State Of U.P. Thru. Secy. Basic Education And Others Counsel for Petitioner :- Alok Kumar Srivastava,Vinod Kumar Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 12391 of 2018 Petitioner :- Ram Lagan And Ors. Respondent :- State Of U.P. Thru. Secy. Basic Edu. & Ors. Counsel for Petitioner :- Amrendra Nath Tripathi Counsel for Respondent :- C.S.C.,Ajay Kumar,J.B.S. Rathour with Case :- SERVICE SINGLE No. - 13175 of 2018 Petitioner :- Chandra Kali Maurya Respondent :- State Of U.P. Thru. Prin. Secy. Basic Education & Ors. Counsel for Petitioner :- Neeraj Kumar Mishra,Umesh Dixit Counsel for Respondent :- C.S.C.,Ajay Kumar,Shobhit Mohan Shukla with Case :- SERVICE SINGLE No. - 12536 of 2018 Petitioner :- Anil Kumar Tripathi Respondent :- State Of U.P. Thru. Prin. Secy., Basic Education & Ors. Counsel for Petitioner :- Vivek Tripathi,Alok Kumar Mishra Counsel for Respondent :- C.S.C.,Ajay Kumar,Prashant Arora with Case :- SERVICE SINGLE No. - 12079 of 2018 Petitioner :- Balram Singh And Ors. Respondent :- State Of U.P.Through Prin.Secy.Basic Education Lko.And Ors. Counsel for Petitioner :- Ramesh Kumar Srivastava,Anshuman Singh Rathore Counsel for Respondent :- C.S.C.,Ajay Kumar,Prashant Arora,Shashi Bajpai with Case :- SERVICE SINGLE No. - 12285 of 2018 Petitioner :- Rajnesh Respondent :- State Of U.P. Thru. Secy. Basic Edu. And Ors. Counsel for Petitioner :- Sharad Nandan Ojha Counsel for Respondent :- C.S.C.,Ajay Kumar with Case :- SERVICE SINGLE No. - 13796 of 2018 Petitioner :- Satendra Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Basic Edu. And Ors. Counsel for Petitioner :- Ram Kumar Singh Counsel for Respondent :- C.S.C.,Ghaus Beg with Case :- SERVICE SINGLE No. - 14309 of 2018 Petitioner :- Praveen Kumar Mishra And Anr. Respondent :- State Of U.P. Thru. Secy. Basic Edu. And Ors. Counsel for Petitioner :- Ajey Singh Counsel for Respondent :- C.S.C.,C.V. Singh with Case :- SERVICE SINGLE No. - 29760 of 2018 Petitioner :- Ajit Kumar Chaubey Respondent :- State Of U.P.Thru Secy. Basic Edu. Lucknow And Ors. Counsel for Petitioner :- Vinay Misra Counsel for Respondent :- C.S.C.,Ajay Kumar,Prashant Arora Hon'ble Irshad Ali,J.
(1) Heard Sri Jaideep Mathur, learned Senior Counsel assisted by Sri Amrendra Nath Tripathi, Sri Alok Kumar Mishra, Sri Onkar Singh Kushwaha, Sri Bahar Ali, Sri Ram Kumar Singh, Sri Vijay Kumar Asthana, Sri Dharmendra Kumar Maurya, Sri Rajesh Kumar Pathak, Sri Onkar Pandey, Sri Alok Kumar Srivastava, Sri Neeraj Kumar Mishra, Sri Vivek Tripathi, Sri Ramesh Kumar Srivastava, Sri Sharad Nandan Ojha, Sri Ajey Singh and Sri Vinay Misra, learned counsel for the petitioners. Learned Advocate General on behalf of respondent Nos.1 and 2. Sri Anil Tiwari, learned Senior Counsel assisted by Sri Apurva Tiwari, learned Advocate and Sri S.K. Kalia, learned Senior Counsel assisted by Sri Durga Prasad Shukla, learned counsel for the respondents as well as Sri Vindhyawasini Kumar, learned counsel on behalf of respondent Nos.3 and 4.
(2) The controversy involved in this bunch of writ petitions is that whether permission accorded to the candidates to apply for the post of Assistant Teacher by providing first preference in the counselling from the district, where there are ''0' vacancy, is permissible under the rules applicable or not.
(3) This bunch of writ petitions is being decided by means of a common judgment treating the Writ Petition No.11375 (S/S) of 2018 (Ram Jank Maurya and others vs. State of U.P. and others) as the leading writ petition. In the leading writ petition, the petitioner has filed an amendment application for adding certain facts and grounds along with the prayer of writ of certiorari but due to raising the objection by learned counsel appearing on behalf of the respondents, he did not press the amendment application. In the bunch of writ petitions there are three writ petitions, which are numbered as Writ Petition Nos.11947 (S/S) of 2018, 12656 (S/S) of 2018 and 5734 (S/S) of 2018, wherein the petitioners have prayed for issuance of writ of certiorari quashing the instruction No.6 (ख) issued on 26.12.2016 to the extent it allows the candidates of other districts, where are ''0' vacancy to be eligible for selection in other districts on the basis of their first preference. Further prayer has been made for issuance of writ of certiorari quashing the notification dated 15.03.2017 to the extent it allows the candidates of other districts, where there are ''0' vacancy to be eligible for selection in other districts on the basis of their first preference.
(4) That the petitioners have prayed for issuance of writ of certiorari quashing Clause 6 (ख) of the notification dated 26.12.2016 to the extent it permits the applicants from the districts where no vacancy exists to apply from any district of their choice as first preference district and to issue writ of mandamus commanding the respondent Nos.3 and 4 to prepare a fresh cut off mark to appear in the first round of counselling by excluding the persons who had obtained B.T.C. training from outside the District Gonda and accordingly the first round of counselling to be declared in pursuance of the Government Order dated 15.12.2016 / 11.04.2018 and notification of the respondent No.3 dated 26.12.2016, 02.03.2017 and 16.04.2018 for appointment of 12460 posts of Assistant Teachers and outsiders to be allowed in the subsequent round of counselling only as per the policy of the State Government, as reflected in the counter affidavit filed in Writ Petition No.10131 of 2015 (M.B. Om Prakash Singh and others Vs. State of U.P. and others).
(5) The factual matrix of the case is that the State Government issued a Government Order on 15.12.2016, whereby the decision was taken to make appointment against 12460 posts of Assistant Teachers in the basic schools of U.P. run and managed by the Board of Basic Education. In pursuance to the Government Order issued on 15.12.2016, the Secretary U.P. Basic Education Board issued a Circular on 20.12.2016 fixing time schedule for selection process and declaring vacancies in respective districts of the State. The Secretary, U.P. Basic Education Board issued guidelines on 26.12.2016, providing necessary instructions in Clause 6 (ख), wherein it is provided that candidates from the districts, where no vacancies has been notified, could apply from anyone district of their first preference across the State. It is also allowed that the candidates with D.Ed. (Special Education) and four years B.L.Ed. could apply in similar manner.
(6) The District Basic Education Officer, District Gonda published an advertisement inviting applications from the eligible and qualified candidates to apply for the appointment against 12460 posts of Assistant Teachers in the basic schools of U.P. The Secretary, U.P. Basic Education Board issued a circular on 28.12.2016, whereby, the schedule to hold counselling was declared. Due to some unavoidable circumstances, the counselling could not take place as per the circular dated 28.12.2016. Thereafter, on 02.03.2017, a circular was issued by the Board giving instructions and declaring a schedule afresh.
(7) Another circular dated 09.03.2017 was issued by the Board prescribing in paragraph 2 of which that the candidates from the districts where no vacancies have been notified be included to participate in the first counselling. The petitioners, who are Shiksha Mitra submitted online applications to participate in the selection proceeding initiated in pursuance to the advertisement issued on 21.12.2016.
(8) The District Basic Education Officer, District Gonda published an advertisement displaying the schedule of first counselling from 18.03.2017 to 20.03.2017 for those candidates, who had applied on the basis of first preference District from Gonda. The first counselling took place from 18.03.2017 to 20.03.2017, in which the petitioners and the respondents participated. On 20.03.2017, the cut off was declared by the District Basic Education Officer, District Gonda. After first counselling the respondents got tentatively selected while the petitioners failed. In pursuance thereof, the original documents of the respondents were retained while that of petitioners original documents were returned.
(9) The Secretary, U.P. Basic Education Board issued a circular, whereby the selection process was stopped until further orders. The circular dated 23.03.2017, was subject matter of challenge in Writ Petition No.27870 (S/S) of 2017; Neeraj Kumar Pandey VS. State of U.P. and others, wherein, the circular issued by the Secretary, Board of Basic Education was quashed and direction was issued to complete the selection process within two months. In the mean time, an amendment was promulgated in Rule 14 (1)(a) of the U.P. Basic Education (Teachers) Service Rules, 1981 (for short ''Rules of 1981') to the effect that the restrictive condition in regard to the limitation to apply by the candidates of the district was withdrawn.
(10) Against the judgment and order dated 03.11.2017, passed in Writ Petition No.27870 of 2017 the State Government preferred special appeal No.648 of 2017, which was dismissed with a direction to complete the selection process within the period, which was prescribed in the writ petition. The State Government issued a Government Order on 11.04.2018 to complete the selection process by 15.06.2018.
(11) The Basic Education Board issued a circular on 16.04.2018 for registration of attendance to accommodate other waiting candidates in case of vacancies. The petitioner filed the present writ petition before this Court, wherein vide order dated 19.04.2018 an interim order was granted in the following manner:
"Heard Sri Amrendra Nath Tripathi, learned counsel for the petitioners.
Notices for opposite party Nos.1 & 2 have been accepted by the office of the learned Chief Standing Counsel, whereas notices for opposite party Nos.3 & 4 have been accepted by Sri Vindhyavashini Kumar, learned counsel.
By means of this writ petition, the petitioners have submitted that the Basic Education Board, Allahabad and the District Basic Education Officer, Gonda be directed to prepare fresh cut off marks after first round of counselling by excluding the persons who had obtained B.T.C. Training from outside the District-Gonda and accordingly a fresh cut off of first round of counselling will be declared in pursuance of Government Orders dated 15.12.2018 and 11.04.2018 and the notification of the Basic Education Board dated 26.12.2016, 02.03.2017 and 16.04.2018 for appointment of 12,460 posts of Assistant Teachers by allowing only the persons who had completed B.T.C. Training from the District-Gonda only and outsiders to be allowed in subsequent rounds of counselling only as per policy of the State Government reflected in counter affidavit filed by it in Writ Petition No.10131 (M/B) of 2015; Om Prakash Singh & others vs. State of U.P. As per learned counsel for the petitioners, the notification has been issued in the Newspaper dated 19.04.2018, whereby the date for verification of the original documents has been fixed for 23.04.2018 i.e. on Monday.
The submission of learned counsel for the petitioners, as aforesaid, requires consideration.
Therefore, the competent authority is directed to verify the original documents of the candidates pursuant to the notification dated 18.04.2018, published in the Newspaper on 19.04.2018, but the appointment letter of the candidates, who obtained B.T.C. Training other than the District-Gonda shall not be issued, till the next date of listing and if it is required, it may be issued after seeking leave from the Court.
Learned Standing Counsel as well as learned counsel appearing for the opposite party Nos.3 & 4 pray for and are granted two weeks' time to file their respective counter affidavits.
List this case in the week commencing 07.05.2018 as fresh along with other connected matters."
(12) Against the interim order passed by this Court on 19.04.2018, Special Appeal Nos.205 of 2018, 206 of 2018 and 212 of 2018 were filed, which were disposed of vide order dated 25.05.2018 remitting the matter before the learned Single Judge with a request to expedite the disposal of the stay vacation application.
(13) Sri Jaideep Mathur, learned Senior Advocate appearing on behalf of the petitioners has made his submission in four folds;
(i) Under Article 350-A of the Constitution of India it has been provided that every State and local authority should make endeavour to provide adequate facilities of providing teaching in mother tongue at the primary stage of education. Therefore, the provision existing to apply for the appointment against district-wise vacancy permitting candidates of the district, wherein vacancies have been advertised, is in consonance with the provisions of Article 350-A. Therefore, the permission accorded to the candidates from the districts where there is zero vacancy to apply at the first preference in any of the district of the State of U.P. is arbitrary and contrary to the Article 350-A of the Constitution of India.
(ii) U.P. Basic Education Act, 1972 provides for constitution of the Board under Section 3. Section 4 provides for functions of the Board and Section 4(2)(b) and 4(2)(h) of the Act, 1972 empowers the Board to have supervision and control over the primary schools and to take steps, which is incidental to its functions. Section 13 provides the State Government to have a control over the Board and the decision of the State Government is binding over the Board and Section 14 empowers the State Government to delegate any of its power, except the power to make rules. Section 19 empowers the State Government to frame rules regarding recruitment and conditions of service and by exercising powers under Section 19 of the 1972 Act the State Government had framed the service rules known as ''U.P. Basic Education (Teachers) Service Rules, 1981', which governs the recruitment in question. Therefore, his submission is that by issuing circulars the recruitment rules cannot be changed.
(iii) In a similar matter, vires of Rule 14(1)(a) was challenged before this Court, whereby option was provided to the candidates from the districts where there was no vacancy to apply from any districts of their choice, wherein the Board and the State Government filed their counter affidavits stating therein that only the persons, who had obtained the B.T.C. training from the concerned district, was to be allowed to participate, so that as for as possible, local persons are to be appointed, who are well acquainted with the local language and dialect of the area, so that the small kids would be provided education in their local dialect. Therefore the submission is that now the State Government cannot take ''U' turn by taking another stand in the present case.
(iv) After initiation of selection proceedings the appointing authority cannot change the rules of the game.
(14) Learned counsel for the petitioner submitted that while initiation of proceedings, the candidates of the outside the district were not allowed to participate and appear in the counseling and issuance of circular & Rule 14(1)(a) of 1981 Rules does not permit the candidates of the outside the districts to participate and appear in the counselling at the time when the process of selection was initiated. Therefore, after initiation of process, they cannot be permitted to participate in the selection proceeding in the middle of selection process.
(15) In support of submissions advanced, Sri Jaideep Mathur, learned Senior Counsel relied upon the following judgments on the point that by means of executive orders or guidelines, the statutory provisions cannot be override:
1. Government of Andhra Pradesh and others Vs. P. Laxmi Devi (SMT); (2008) 4 SCC 720, paragraph Nos.34 and 35.
2. State of Haryana Vs. Mahender Singh and others; (2007) 13 SCC 606, paragraph No.39.
3. V.C. Banaras Hindu University and others Vs. Shrikant; (2006) 11 SCC 42, Paragraph No.24.
(16) On the point of exception to the principles of estoppel by conduct or acquiescence in cases where unsuccessful candidates can also challenge the selection procedure relied upon the following judgments:
1. Raj Kumar and others Vs. Shakti Raj and others; (1997) 9 SCC 527, paragraph No.16.
2. Munindra Kumar and others Vs. Rajiv Govil and others; (1991) 3 SCC 368.
3. Dharmendra Kumar and others Vs. Abhishek Kumar and others; (2017) (5) ADJ 252 (DB) (LB), paragraph Nos.16 to 19.
4. Rajesh Kumar Srivastava and others Vs. State of U.P. and others; (2008) 9 ADJ 417 (DB), paragraph Nos.14 to 16.
(17) In rebuttal, learned Advocate General submitted that the petitioners were aware about the circulars issued permitting the candidates belonging to the zero vacancies districts of the State to apply by giving their first option. In spite of that, they participated in the selection and when they were declared unsuccessful by publishing the merit list, they are challenging the selection process. Therefore, his submission is that once the petitioners participated in the selection, they have no right to challenge the same. He further submitted that in the writ petition, there is no pleading that the petitioners were not aware about the amended notification issued from time to time permitting the candidates of the outside of the district to participate in the selection process. The petitioners became aware about the counselling and cut off merit on 20.03.2017 that they have not been selected, permitted the counselling to go on and has filed the present writ petition on 17.04.2018, which is not permissible in law. In support of his submission, he relied upon paragraph No.10 of a judgment in the case of The State of Haryana Vs. Subhash Chander Marwaha and others; (1974) 3 SCC 220.
(18) He further submitted that subsequently the Rule 14 of U.P. Basic Education (Teachers) Service Rules, 1981 was amended, therefore, the same be treated to be amended with effect from the date of initiation of selection proceeding. He further placed reliance on the alteration in changing of rules of game after the game is played upon a judgment in the case of Tej Prakash Pathak and others Vs. Rajasthan High Court and others; (2013) 4 SCC 540, paragraph Nos.14 & 15.
(19) On the point that whether in the policy decision of the State in relation to appointment and recruitment stopple is applicable, he placed reliance upon paragraph Nos.30 to 36 of the judgment in the case of V. Lavanya and others Vs. State of Tamil Nadu and others; (2017) 1 SCC 322 and on Para 10 of another judgment in the case of Reeta Singh and six others Vs. State of U.P. and two others decided on 02.02.2018.
(20) In view of the fact that entire selection proceeding was held on the basis of guidelines issued by the incompetent authority, therefore, the submission advanced and the judgments relied upon by learned Advocate General are not applicable to the present facts and circumstances of the case. Once this Court has held that the Secretary, Board of Basic Education was having no authority in law and the State Government at no point of time delegated its power to the Secretary, Board of Basic Education, therefore, the guidelines and circulars issued by him are wholly without jurisdiction and the selection made on the said basis cannot be held to be legal.
(21) Sri Anil Tiwari, learned Senior Counsel submitted that Rule 14(1)(a), in so far as it lays down the condition that the applications for appointment as Assistant Teacher or Mistress of junior basic schools shall be invited from candidates possessing prescribed training qualified from the district concerned, is in violation of fundamental rights guaranteed by Article 16 (2) of the Constitution of India and it discriminates against the trained teachers from outside the district in the matter of public employment. In support of the submissions, he relied upon the following judgments:
1. State of Orissa Vs. Sudhir Kumar Biswal; 1994 Supp (3) SCC 245; Paragraphs Nos.5-8.
2. A.V.S.N. Rao Vs. State of A.P.; (1969) 1 SCC 839; Paragraph Nos.4, 5, 6 and 9.
3. Kailash Chand Sharma Vs. State of Rajasthan; (2002) 6 SCC 562; Paragraph Nos.13 and 14.
4. Triveni Chandra Pandey Vs. State of Uttarakhand; Special Appeal No.360 of 2012.
(22) His next submission is that the petitioners have not placed material to justify distinction with the teachers recruited within the district would be familiar with the local dialect and that the better suited for communicating to the children. If the analogy of the learned counsel for the petitioner is accepted, then the same would be in violation of Article 16 (2) of the Constitution of India. In this regard, he placed reliance upon a judgment in the case of Rajesh Kumar Gupta Vs. State of U.P.; (2005) 5 SCC 172, Para 17.
(23) His next submission is that the result of the application of the impugned rule is that in districts, having relatively small number of institutions imparting BTC training, selection is made at a lower cut-off as compared to a district having larger number of institutes. This leads to selection of less meritorious candidates as compared to more meritorious candidates which adversely affects the quality of elementary education. Therefore, his submission is that it creates discriminatory classification which defeats the intend of the Right of the Children to Obtain Free and Compulsory Education Act, 2009, which violates the Article 14 of the Constitution of India. In support of his submission he placed reliance upon a judgment in the case of Radhey Shyam Singh Vs. Union of India; (1997) 1 SCC 60 (Para 8).
(24) His further submission is that the petitioners have filed the writ petitions to issue a writ of mandamus. In order to maintain the writ of mandamus, the petitioners must make a demand clear and unambiguous. The demand would be made to an officer having requisite authority to perform the act. Further more the authority should reject the demand. He pointed out that in the writ petition there is no pleading in the writ petition that the petitioners ever demanded the relief claimed before the competent authority. Therefore, this writ petition is not maintainable. In this regard, he placed reliance upon the following judgments:
1. D.N. Jeevaraj Vs. Chief Secretary Government of Karanataka; (2016) 2 SCC 653, Paragraph Nos.37 and 38.
2. Saraswati Industrial Syndicate Vs. Union of India; (1974) 2 SCC 630, Paragraph Nos.24 and 25.
3. State of Haryana Vs. Chanan Mal; (1997) 1 SCC 340, Paragraph No.49.
4. R.S.I.D.I.C. Vs. Subhash Sindhi Co-op. Housing Society, Jaipur; (2013) 5 SCC 427, Paragraph No.24.
(25) His next submission is that a writ of mandamus cannot be asked without a legal right. A person, said to be aggrieved only when his legal right is denied by someone, who has legal duty to do something, or abstained to do. In the writ petition the petitioners have failed to establish that they have been denied their legal rights. In support of his submission, he relied upon the following judgments:
1. Mani Subrat Jain Vs. State of Haryana; (1997) 1 SCC 486 (Para 9).
2. All India General Mazdoor Trade Union Vs. Delhi Administration; (1995) Supp (3) SCC 579 (Para 3).
(26) Last submission of Sri Anil Tiwari, earned Senior Counsel is that the present writ petitions have been filed after taking part in the counseling without any protest and only when they were found unsuccessful. Therefore in view of the judgment in the case of Ranjan Kumar Vs. State of Bihar; (2014) 16 SCC 187 (Para 14, 15, 16, 17 and 18), they are not entitled to get relief under Article 226 of the Constitution of India.
(27) Sri S.K. Kalia, learned Senior Counsel assisted by Sri Durga Prasad Shukla, learned counsel for the respondent nos. 7 and 8 submitted that there is no pleading in the writ petition to challenge the notification referred in the main prayer of the writ petition, whereby the candidates outside the district wherein zero vacancies were permitted to participate by providing first preference in counselling. Thus, his submission is that in absence of pleadings no relief can be granted to the petitioners.
(28) His next submission is that in pursuance to the notification, issued inviting applications from 28.12.2016 till 09.01.2017, the last date for consideration of eligibility was 09.01.2017 and in regard to that notification was issued on the website permitting the candidates of zero vacancy district of the State of U.P. to apply in any of the district of the State opting first preference. Therefore, his submission is that the argument advanced on behalf of petitioners, that they were not having knowledge, is not acceptable.
(29) His next submission is that the notification was issued on 20.12.2016, wherein under Clause 6(ख) it was provided that the candidates outside the district having zero vacancy have been permitted to participate in the selection proceeding came in to knowledge of the petitioners first time. Second time, they came to know when the notification was issued on 02.03.2017 and again on 20.03.2017, when cut off merit was displayed. Knowing this fact the petitioners participated in the selection proceedings. Therefore, they have no right to challenge the same. He relied upon a judgment in the case of Arvind Kumar Chauhan and 3 others Vs. State of U.P. and 2 others; Writ-A No.34577 of 2016.
(30) The further submission of Sri S.K. Kalia, learned Senior Advocate is that a writ of mandamus for enforcement of notification dated 15.12.2016 and 11.04.2018 are sought for. Thus, the submission is that the petitioners have prayed for enforcement of notification referred herein above. Accordingly, they cannot take ''U' turn in the matter and in case the notification has been enforced prescribing permission to the candidates of zero vacancy district by providing first preference in the counselling, the petitioners after accepting the same cannot travel beyond the scope of the writ petitions. The controversy after enforcement of the notification does not require to decide any more. In support of his submission, he relied upon a judgment in the case of Triveni Chandra Pandey Vs. State of Uttarakhand and others, Special Appeal No.360 of 2012 (Paras 7, 13, 14, 16, 17 and 20).
(31) Sri S.K. Kalia, learned Senior Counsel on behalf of respondent Nos.7 and 8 further submitted that the action of the State Government in restoring the preparation of merit list from the State level to district level has been held arbitrary and violative of Article 15(1) and 16(2) of the Constitution of India. Therefore, his submission is that the permission to the candidates of the district wherein there are zero vacancy, to apply in any of the district of the State as first preference, does not suffer from any infirmity or illegality. Reliance has been placed upon a judgment in the case of Rajesh Kumar Gupta Vs. State of U.P. and others; (2005) 5 SCC 172 (Paras 16, 17 and 18).
(32) The submission advanced by the learned counsel for the respondents that residents within a district or rural areas of that district could be a valid basis for classification for the purpose of public employment as well is overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and 16(3) of the Constitution of India. In this regard, he relied upon a judgment in the case of Kailash Chand Sharma Vs. State of Rajasthan and others; (2002) 6 SCC 562 (Paras 13, 17, 27, 34 and 48).
(33) His last submission is that the petitioners have successfully participated in the process of selection without any demur, therefore they are estopped from challenging the selection criteria inter alia with regard to requisite educational qualification being contrary to the rules. He relied upon the following judgments:
1. Dhananjay Malik and others Vs. State of Uttaranchal and others; JT 2008 (3) SC 611 (Paras 7 and 13).
2. D. Saroja Kumari Vs. R. Helen Thilakom and others; (2017) 9 SCC 478 (Paras 4 to 11).
3. Ashok Kumar and another Vs. State of Bihar and others; (2017) 4 SCC 357 (Paras 12 to 21).
(34) Having heard the rival contentions advanced by the learned counsel for the parties, I perused the material of the writ petition, counter affidavit and the rejoinder affidavit, inasmuch as the relevant Acts and Rules and the law reports relied upon by the learned counsel for the parties.
(35) To resolve the controversy involved in this bunch of writ petitions, the U.P. Basic Education Act, 1972 (hereinafter referred to as ''Act, 1972') is required to be considered by this Court. The relevant sections 3, 4, 7, 13, 14, 16, 19 and 20 of the said Act are being quoted herein below:
"3. Constitution of the Board. - (1) With effect from such date as the State Government may, by notification in the Gazette, appoint, there shall be established a Board to be known as the Uttar Pradesh Board of Basic Education.
(2) The Board shall be a body corporate having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire and to hold property and may by its name sue and be used.
(3) The Board shall consist of the following members, namely -
(a) the Director, ex officio, who shall be the chairman;
(b) two persons to be nominated by the State Government from amongst the Adhyakshas, if any, of [Zila Panchayats established under Section 17 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961];
(c) one person to be nominated by the State Government from amongst the Nagar Pramukhs, if any, of the [Corporations constituted under Section 9 of the Uttar Pradesh Municipal Corporation Act, 1959];
(d) one person to be nominated by the State Government from amongst the Presidents, if any, of the [Municipal Council and Nagar Panchayats established under the Uttar Pradesh Municipalities Act, 1916];
(e) the Secretary to the State Government in the Finance Department, ex officio;
(f) the Principal, State Institute of Education, ex officio;
[(f1) the Secretary, Board of High School and Intermediate Education, Allahabad, ex officio;
(f2) the President of the Uttar Pradesh Prathamik Shikshak Sangh, ex officio;]
(g) two educationists to be nominated by the State Government;
(h) an officer not below the rank of Deputy Director of Education, to be nominated by the State Government, who shall be the Member Secretary.
(4) An officer referred to in clause (e) of sub-section (3) may instead of attending a meeting of the Board himself depute an officer of his department not below the rank of Deputy Secretary to the State Government to attend the meeting. The officer so deputed shall have the right to speak in and otherwise to take part in the proceedings of the meetings and shall also have the right to vote.
(5) The members of the Board other than ex officio members, shall ordinarily be entitled to hold office for the period specified in the order of appointment, unless the appointment is terminated earlier by the State Government :
Provided that any member, other than an ex officio member, may at any time by notice in writing addressed to the State Government resign his office.
(6) During any vacancy in the membership of the Board the continuing members may act as if no vacancy had occurred.
(7) No act or proceeding of the Board shall be deemed to be invalid by reason merely of any vacancy in or any defect in the constitution of the Board.
4. Function of the Board. - (1) Subject to the provisions of this Act it shall be the function of the Board to organise, co-ordinate and control the imparting of basic education and teachers' training therefor in the State, to raise its standards and to correlate it with the system of education as a whole in the State.
(2) Without prejudice to the generality of the provisions of sub-section (1), the Board shall, in particular, have power -
(a) to prescribe the courses of instruction and books for basic education and teachers' training therefor;
(b) to conduct the junior high school and basic training certificate examinations and such other examinations as the State Government may from time to time by general or special order assign to it and to grant diplomas or certificates to candidates successful at such examinations;
[(c) to lay down, by general or special orders in that behalf, norms relating to the establishment of institutions by [the Gaon Shiksha Samitis or Municipalities and to superintend Gaon Shiksha Samitis, Gram Panchayats and Municipalities] in respect of the administration of institutions, for imparting instruction and preparing candidates for admission to examinations conducted by the Board];
[(cc) to take over the management of all basic schools, which before the appointed day, belonged to any local body;]
(d) to exercise supervision and control over basic schools, [District Institute of Education and Training], basic training certificate units and the State Institute of Education;
[(e) to accord approval (with or without modification) to the schemes prepared by the [Gaon Shiksha Samitis, Zila Panchayats or Municipalities] for the development, expansion and improvement of and research in basic education in any district or in the State or in any part thereof];
(f) to acquire, hold arid dispose of any property, whether movable, or immovable [* * *];
(g) to receive grants, subventions and loans from the State Government;
[(g1) subject to the general control of the State Government to issue directions not inconsistent with this Act, to Gaon Shiksha Samitis, Gram Panchayats, Zila Panchayats or Municipalities in the performance of their functions under this Act];
(g2) [* * *]
(h) to take all such steps as may be necessary or convenient for, or may be incidental to the exercise of any power, or the discharge of any function or duty conferred or imposed on it by this Act :
[Provided that the courses of instruction and books prescribed and institutions recognised before the commencement of this Act shall be deemed to be prescribed or recognised by the Board under this Act.] [(3) For the purposes of exercising powers of management, supervision and control over the basic schools under clause (cc) or clause (d) of subsection (2) which before the appointed day belonged to a local body, the powers and functions of a local body in respect of such schools shall stand transferred to the Board.]
13. Control by the State Government. - (1) The Board shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.
(2) If in, or in connection with, the exercise of any of its powers and discharge of any of the functions by the Board under this Act, any dispute arises between the Board and the State Government, or between the Board and any local body, the decision of the State Government on such dispute shall be final and binding on the Board or the local body, as the case may be.
(3) The Board or any local body shall furnish to the State Government such reports, returns and other information, as the State Government may from time to time require for the purposes of this Act.
[13A. Overriding effect. - Notwithstanding anything contained in the United Provinces Panchayat Raj Act, 1947, the Uttar Pradesh Municipalities Act, 1916 and the Uttar Pradesh Municipal Corporation Act, 1959, the provisions of this Act shall have effect.]
14. Power to delegate. - (1) The State Government may delegate any of its [powers, except the power to make rules] under this Act to the Director or to any other officer or authority subordinate to it subject to such conditions, if any, as may be specified.
(2) The Board may, by general or special order direct that any power exercisable by it under this Act, except the power to make regulations may also be exercised by its Chairman or by such Committee or officer, in such cases and subject to such conditions, if any, as may be specified therein.
17. Power to remove difficulties. - (1) If any difficulty arises in giving effect to the provisions of this Act or by reason of anything contained in this Act the State Government may, as occasion requires, by notification in the Gazette, make such incidental or consequential provisions, including provisions for adapting or modifying any provisions of this Act or of any enactment by or under which any local body is constituted but affecting the substance as it may think necessary or expedient for the purposes of this Act.
(2) No order under sub-section (1) shall be made [after the expiration of the period of two years from the date of commencement of the Uttar Pradesh Basic Education (Amendment) Act, 2000].
(3) Every order made under sub-section (1) shall be laid, as soon as may be before both the Houses of the State Legislature."
(36) On consideration of the controversy involved in the present writ petition, in regard to the first submission advanced on behalf of the petitioners by the learned Senior Advocate Sri Jaideep Mathur that under the notification issued on 15.12.2016 the State Government issued direction to the Secretary, Board of Basic Education U.P., Allahabad and to the Director, Basic Education U.P., Lucknow to initiate selection proceedings on the post of Assistant Teachers against 12460 vacancies existing in the primary schools run and managed by the Board of Basic Education, it was specifically provided under the notification that the selection/appointment shall be made in accordance with the existing rules and Government Orders issued from time to time.
(37) On perusal of the notification dated 15.12.2016, it is found correct that the State Government had issued the aforesaid direction. The Secretary, Board of Basic Education vide notification issued on 20th December, 2016 displayed the date of issuance of advertisement in the newspaper inviting applications from 21.12.2016 and 22.12.2016 through on-line and that registration of the application form will start w.e.f. 28.12.2016. Last date for registration of the application form was fixed as 09.01.2017 and for deposit of the requisite fee 11.01.2017 was the date fixed along with the other date prescribing to complete the application form with Challan and to make correction in the application till 19.01.2017 up to 5.00 p.m. In the said notification it was prescribed that the candidates belonging to the ''0' vacancy districts in the State of U.P. were permitted to apply for consideration of their candidature of first preference in a district.
(38) Thereafter the Secretary, Board of Basic Education U.P., Allahabad issued further guidelines on 26.12.2016 prescribing some provisions permitting the candidates of ''0' vacancy district for consideration of their candidature at first preference. Vacancies of the Assistant Teachers of 12460 posts were advertised vide advertisement dated 21.12.2016 fixing last date for submission of application form as 09.01.2017.
(39) For consideration of submission of the Senior Advocate Sri Jaideep Mathur and Senior Counsel appearing on behalf of the respondents, it is relevant to consider the provision contained under Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 1981. Rule 14 is being quoted herein below:
"[14. Procedure of selection. - (1)(a) Determination of vacancies. - In respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of Rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under Rule 9 and published in at least two leading daily newspapers having adequate circulation in the State as well as in concerned district inviting applications from candidates possessing prescribed training qualification and passed teacher eligibility test, conducted by the Government or by the Government of India and passed Assistant Teacher Recruitment Examination conducted by the Government.
(b) Recruitment Examination. - For every notified vacancy under clause (a) for recruitment of Assistant Master or Assistant Mistress of Junior Basic School, a separate Assistant Teacher Recruitment Examination shall be conducted by the Government.
(c) The Government may from time to time decide to appoint candidates, who are graduates along with B.Ed/B.Ed. (Special Education)/D.Ed. (Special Education) and who have also passed teacher eligibility test conducted by the Government or by the Government of India, as trainee teachers. These candidates after appointment will have to undergo six months special training programme in elementary education recognised by National Council of Teacher Education (NCTE). The appointing authority shall determine the number of vacancies as also the number to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under Rule 9 and advertisement would be issued in at least two leading daily news papers having adequate circulation in the State as well as in concerned district inviting applications from candidates who are graduates along with B.Ed./B.Ed. (Special Education) D.Ed. (Special Education) and who have also passed teacher eligibility test conducted by the Government or by the Government of India and passed Assistant Teacher Recruitment Examination conducted by the Government.
(d) The trainee teachers, after obtaining the certificate of successful completion of six months special training in elementary education, shall be appointed as assistant teachers in junior basic schools against substantive post in regular pay-scale. The appointing authority will be duty bound to appoint the trainee teachers as assistant teachers within one month of issue of certificate of successful completion of said training.
(2) Preparation of Merit List-The appointing authority shall scrutinise the applications received in pursuance of the advertisement under clause (a) or clause (c) of sub-rule (1) and prepare a merit list of such persons as appear to possess the prescribed academic qualifications and passed Assistant Teacher Recruitment Examination be eligible for appointment.
(3)(a) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (h) of sub-rule (1) of Rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points and weightage as specified in the Appendix I:
Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher:
Provided that a person working as Shiksha Mitra in Junior Basic Schools run by Basic Shiksha Parishad shall be given weightage in the recruitment of the post of Assistant Teacher, only in two consecutive Assistant Teacher Recruitment Examination conducted by the Government after July 25, 2017.
(b) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (c) of sub-rule (1) of Rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the Appendix II:
Provided that if two or more candidates obtain equal marks, the candidate senior in age. shall be placed higher.
(c) The names of candidates in the list prepared in accordance with clause (d) of subrule (1) of Rule 14 for appointment as assistant teacher shall be same as the list prepared under clause (c), sub-rule (3) of Rule 14 unless the candidate under the said list is unable to successfully complete the six months special training course in elementary education in his first attempt. If the candidate successfully completes the six months special training in his second and final attempt, the candidate's name shall be placed under the names of all those candidates who have completed the said six months special training in their first attempt.
(4) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2).
(5) The list prepared under sub-rule (2) and arranged in accordance with clauses (a) and (b) of sub-rule (3) of Rule 14 shall be forwarded by the appointing authority to the selection committee.]"
(40) On perusal of the aforesaid Rule 14, it is evident that the candidates, who were from ''0' vacancy districts, were not permitted to apply on the date of issuance of advertisement and there was a clear cut direction of the State Government that the selection shall be made on the basis of existing rules and government order issued from time to time.
(41) In support of the submissions that by means of executive orders or guidelines the statutory provisions cannot be override as well as the authority, who has not been empowered to issue executive orders or guidelines cannot hold a selection in such an arbitrary manner, learned Senior Counsel for the petitioner has relied upon the following judgments:-
I. Government of Andhra Pradesh and others Vs. P. Laxmi Devi (SMT); (2008) 4 SCC 720, paragraph Nos.34 and 35:
"34. In India the Grundnorm is the Indian Constitution, and the hierarchy is as follows :
(i) The Constitution of India;
(ii) Statutory law, which may be either law made by Parliament or by the State Legislature;
(iii) Delegated legislation, which may be in the form of Rules made under the Statute, Regulations made under the Statute, etc.;
(iv) Purely executive orders not made under any Statute.
35. If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the Directive Principles which, by Article 37, have been expressly made non enforceable)."
II. State of Haryana Vs. Mahender Singh and others; (2007) 13 SCC 606, paragraph No.39:
"39. It is now well-settled that any guidelines which do not have any statutory flavour are merely advisory in nature. They cannot have the force of a statute. They are subservient to the legislative act and the statutory rules. See Maharao Sahib Shri Bhim Singhji v. Union of India and Others (1981) 1 SCC 166, J.R. Raghupathy and Others v. State of A.P. and Others (1988) 4 SCC 364 and Narendra Kumar Maheshwari v. Union of India."
III. V.C. Banaras Hindu University and others Vs. Shrikant; (2006) 11 SCC 42, Paragraph No.24:
"24. In DDA v. Joginder S. Monga this Court categorically held: (SCC p.312, Para 30) "30. It is not a case where a conflict has arisen between a statute or a statutory rule on the one hand and an executive instruction, on the other. Only in a case where a conflict arises between a statute and an executive instruction, indisputably, the former will prevail over the latter."
It was further noticed:
"Executive instructions can supplement a statute or cover areas to which the statute does not extend. But they cannot run contrary to statutory provisions or whittle down their effect."
(42) Next submission of learned Senior Counsel for the petitioner is that there are exception to the principles of estoppel by conduct or acquiescence in cases where unsuccessful candidates can also challenge the selection procedure. In this regard, he relied upon the following judgments:-
I. Raj Kumar and others Vs. Shakti Raj and others; (1997) 9 SCC 527, paragraph No.11 & 16:
"16. Yet another circumstance is that the Government had not taken out the post from the purview of the Board, but after the examinations were conducted under the 1955 Rule and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the post were taken out from the purview thereof. thereafter the Selection Committee was constituted for selection of the condidates. The entire procedure is also obviously illegal. It is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal vs. State of J&K [(1995) 3 SCC 486] and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the selection Board or the method of Selection as being illegal; he is estopped to question the correctness of the selection. But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, So also in the method of selection and exercise of the power in taking out from the purview of the and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case, thus, we consider that the procedure offered under the 1955 Rules adopted by the Government or the Committee as well as the action take by the Government are not correct in law."
II. Munindra Kumar and others Vs. Rajiv Govil and others; (1991) 3 SCC 368, paragraph Nos.4, 5 & 10:
"4. The three unsuccessful candidates filed writ petitions in the Lucknow bench of the High Court of Judicature at Allahabd inter alia on the ground that the marks for interview and group discussion had been allocated on the higher side and against the decisions of this Court and as such the entire selection stood vitiated and was liable to be quashed. The High Court by Judgment dated 28th March, 1990 allowed the writ petitions by a common Judgment on the ground that the marks allocated for interview and group discussion were more than 20 per cent and hence the whole selection was liable to be quashed. Aggrieved against the Judgment of the High Court, the appellants have come in appeal to this Court by grant of special leave.
5. As a result of the written examination held on 9th July, 1989 as many as 386 candidates were called for group discussion/interview. Later on 49 more candidates were called for group discussion and interview. A list of 46 candidates who were declared successful was published by the Board. Out of these 46 candidates, 25 belong to the general category. The Board in its counter affidavit filed before the High Court admitted that group discussion was part of interview. If that position is accepted then it shows that 120 marks were allocated for written test and 80 marks for interview 940 for interview and 40 for group discussion) and thus it comes to 40 per cent of the total marks for interview. This court had already dealt with the question of percentage of marks to be allotted for interview for selection to the public posts in the latest decision Mohinder Sain Garg & Ors. v. State of Punjab & Ors., JT 1990 4 SC 704 where the maximum percentage has been laid down as 15 per cent of the total marks. All the earlier cases were noted in this case and the question is no longer res integra. In view of these circumstances the High Court was right in holding that the marks allocated for interview and group discussion were arbitrary. The High Court after holding the percentage of marks as arbitrary also quashed the entire selection. This Court while entertaining the special leave petition on 23rd April, 1990 stayed the operation of the Judgment of the High Court and allowed the appellants to continue in employment and as such the appellants are continuing in service. We had heard the arguments and at the time of reserving the judgment on 8th February, 1991 had given the following direction:
"We direct Learned counsel for the Board to furnish the service rules for the recruitment/selection of the Assistant Engineers of all the Electricity Boards of the various States in India. The Board shall also furnish the Rules, if any, of any other public sector undertaking where recruitment are made of Assistant Engineers or of equivalent technical personnel, where group discussions is one of the conditions of recruitment. In case group discussion is there, then all the details with regard to the percentage of marks kept for group discussion and other details including subjects given for group discussion should be furnished to this Court.
All the above material should be furnished within three weeks with an affidavit of the Secretary of the U.P. State Electricity Board."
10. The next question which arises for consideration is as to what direction would be just and proper in the circumstances of this case. We do not agree with the High Court to quash the entire selection made by the Board for the posts of Assistant Engineers (civil). It may be noted that Rajeev Govil, Vivek Aggarwal and Gyanendra Srivastava who remained unsuccessful had filed the writ petitions after taking chance and fully knowing the percentage of marks kept for interview and group discussion. It is no doubt correct that they cannot be stopped from challenging the rule which is arbitrary and violative of Article 14 of the Constitution, but in modulating the relief, their conduct and the equities of those who have been selected are the relevant considerations. The appellants have jointed the post on 28th December, 1989 and after completing the training are discharging their duties at different places. It has been submitted on their behalf that some of them had left their earlier jobs and have also become overage. Thus we do not consider it proper in the interest of justice to set aside the selections of the appellants. We have seen the marksheet of 295 candidates of the general category who had actually attended the interview and group discussion. So far as the respondents in general category are concerned, they have secured the marks in the following manner:
NAME WRITTEN TEST GROUP INTERVIEW TOTAL
DISCUSSION
------------------------------------------------------------
Rajeev Govil 85 5 29 119
Vivek Aggarwal 87.5 12 28 127.5
Gyanendra Bah-
adur Srivastava 81 17 18 116
The last candidate out of the 25 selected candidates in general category has secured 134.5 marks. Out of the 25 candidates selected in the general category, 5 candidates have secured lesser marks than Rajeev Govil in written test, 9 candidates below Vivek Aggarwal and 2 below Gyanendra Bahadur Srivastava. A persual of the marksheet also shows that 50 candidates are such who have not been selected instead of having secured 87.5 marks or above in written test, 79 candidates who have secured more than 81 marks in the written test. Even if we were inclined to give a further chance of interview and group discussion by keeping 10 per cent and 5 per cent marks respectively for interview and group discussion, in all fairness it would be necessary to give chance to all such candidates who have secured higher marks in the written test in comparison to the respondents- writ petitioners. We have already taken the view that we do not consider it just and proper to set aside the selections already made. In these circumstances even if we were inclined to give direction to the Board to create three more posts and give chance to all the candidates securing equal or higher marks in the written examination than the writ petitioners, there was a remote chance of the writ petitioners being selected..In our view such exercise would be in futility, taking in view the chance of success of the writ petitioners.
III. Dharmendra Kumar and others Vs. Abhishek Kumar and others; (2017) (5) ADJ 252 (DB) (LB), paragraph Nos.16 to 19:
16. It is noticeable that Hon'ble Supreme Court in the said case of Raj Kumar Vs. Shakti Raj (Supra) has considered the law that a candidate having taken a chance to appear in the interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the Selection Board or the method of the selection as being illegal and that he is estopped to question the correctness of the selection. Having considered the said legal principle, Hon'ble Supreme Court further carved exceptions to permit the locus to a candidate to challenge the selection even after participation and his failure therein on certain grounds such as the illegality or irregularity in the method of selection and exercise of power by the selecting body and also in the conduct of the selection in accordance with rules. In such circumstances, it has been held by Hon'ble Supreme Court that principle of estoppel by conduct will have no application.
17. We may also refer to a Division Bench Judgment of this Court in the case of Rajesh Kumar Srivastava Vs. State of U.P. through Secretary Law Department and others, reported in 2009 (1) AWC(Supp.) 239, wherein it has been held that the proposition that a candidate having participated in the selection and declared unsuccessful in the same cannot be permitted to challenge the selection, is not of universal application. It has further been held by the Division Bench of this Court in the said case of Rajesh Kumar Srivastava (Supra) that such general principle is not free from exceptions as has been held by Hon'ble Supreme Court in the case of Sadanand Halo and others Vs. Mumtaj Ali Sheikh and others, reported in (2008) 4 SCC, 619. Para-16 of the said judgment in the case of Rajesh Kumar Srivastava (Supra) is quoted herein below:-
"16. However, the above proposition is not of universal application. It is not applicable where the vires of the rules is under challenge as has been observed in Munindra Kumar (supra). It has also no application where the unsuccessful candidates challenges the selection of a unqualified selected candidate to a public office as has been held by a Division Bench of this Court in Writ Petition No. 9990 of 1992 of Dr. Syed Ahason and Ors. V. Aligarh Muslim University and Ors. decided on 23.02.07 and followed in 2007(3) ADJ 114, Aejaz Ahmad and Ors. V. Aligarh Muslim University and Ors. Even the latest decision of the Apex Court reported in MANU/SC/7226/2008: (2008) 4 SCC 619, Sadanand Halo and Ors Vs. Mumtaz Ali Sheikh and Ors. lays down that the above general principle is not free from exceptions. Now in the instant case the appellants have participated in the selection process as per the procedure prescribed and notified. However, undisputedly, the prescribed procedure though adopted but was given up as selection was alone on the basis of interview without taking into account the marks of the written test. In these circumstances their case falls within the exceptional category and they are entitle to maintain the writ petition. It was only alter selection that serious illegalities about the change in the process of selection after the candidates were examined and interviewed were detected".
18. In the instant case, what we find is that challenge to any rule or prescription or criteria or procedure for selection was not made by the petitioners before the learned Single Judge. What was assailed before the learned Single Judge was the manner in which the selection was held which according to the petitioners was contrary not only to the Service Rules, 2008 but also to the Instructions Manual. It was contended by the petitioners before the learned Single Judge that application of rounding off marks was not permissible in absence of any such provision in the Service Rules, 2008 or in the Instructions Manual. They had also contended that calling of candidates more than three times the vacancies for the purpose of group discussions was also in violation of Rule 15(f) of the Service Rules, 2008 and Clause 2.7 of the Instructions Manual.
19. In the aforesaid view of the matter, we are not impressed by the submissions made in regard to the locus of the petitioners for challenging the selection. We are, thus, in agreement with the view recorded by learned Single Judge, in this regard, in the judgment and order under appeal."
IV. Rajesh Kumar Srivastava and others Vs. State of U.P. and others; (2008) 9 ADJ 417 (DB), paragraph Nos.14 to 16:
14. A preliminary point arises as to the locus of the appellants, who are unsuccessful candidates, to challenge the aforesaid selection. In this connection reliance has been placed upon a decision of the Supreme Court reported in 1986 (Supp.) SCC 285, Om Prakash Shukla v. Akhilesh Kumar Shukla and others wherein it was held that a selection should not be set aside where the candidates challenging the selection themselves appeared in the examination without protest and have raised the challenge after realising their failure in examination. Again in Munindra Kumar and othersv. Rajiv Govil and others, AIR 1991 SC1607, the Supreme Court accepted the above principle but ruled that such candidates cannot be estopped from challenging the rules of selection which are said to be arbitrary and violative of Article 14 of the Constitution of India. The same principle without any discussion has been reiterated in Union of India and others v. S. Vinodh Kumar and Others, (2007)8 SCC 100. There is no dispute to the proposition of law that ordinarily the unsuccessful candidate who have participated in the selection without any protest, have no right to challenge the advertisement or the selection process. However, the above proposition is not of universal application. It is not applicable where the vires of the rules is under challenge as has been observed in Munindra Kumar (supra). It has also no application where the unsuccessful candidates challenges the selection of an unqualified selected candidate to a public office as has been held by a Division Bench of this Court in writ petition No. 9990 of 1992, Dr. Syed Ahason and others v. Aligarh Muslim University and others decided on 23.2.07 and followed in 2007(3) ADJ 114, Aejaz Ahmad and others v. Aligarh Muslim University and others. Even the latest decision of the Apex Court reported in (2008) 4 SCC 619, Sadanand Halo and others v. Mumtaz All Sheikh and others lays down that the above general principle is not free from exceptions. Now in the instant case the appellants have participated in the selection process as per the procedure prescribed and notified. However, undisputedly, the prescribed procedure though adopted but was given up as selection was alone on the basis of interview without taking into account the marks of the written test. In these circumstances their case falls within the exceptional category and they are entitle to maintain the writ petition. It was only after selection that serious illegalities about the change in the process of selection after the candidates were examined and interviewed were detected.
15. Apart from the above, this is a matter concerning the appointments of employees in the subordinate judiciary of the State which works under the supervisory jurisdiction and administrative control of the High Court. The Lucknow Bench of the Allahabad High Court in the case of Dinesh Kumar v. State of U.P, 2006(1) E.S.C. 666 following the decision in the case of District and Sessions Judge, Baghpat v. Ratnesh Kumar Srivastava, 2005(1) E.S.C. 724 (All) held that as the High Court exercises supervisory jurisdiction over the subordinate Courts and while exercising such jurisdiction under Article 227 of the Constitution of India it is not necessary for this Court to dismiss a writ petition on the ground that the petitioners, who are unsuccessful candidates in the selection have no locus stand when an action challenging the selection on the ground of serious illegality, irregularity, fraud or misconduct alleged to have been committed by the District Judge or the members of the selection committee either on administrative or judicial side is brought to the notice of the Court.
16. In view of aforesaid, the preliminary objection raised on behalf of the selection committee is over ruled and the petition at the behest of even the unsuccessful candidates under the facts and circumstances of the case is held to be maintainable."
(43) On overall consideration of the point of principles of estoppel, the Hon'ble Supreme Court has held in the aforesaid judgments that where it is found that the method of selection and exercise of power is not within the purview of the Board and conduct of selection is not in accordance with the rules, the principles of estoppel by conduct or acquiescence has no application to the facts of this case. Thus, this Court is of the considered opinion that the procedure, which has been followed by issuing guidelines by the Secretary, Board of Basic Education and the permission accorded to the candidates, who were not eligible as per Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 1981 permitting them to participate in the selection proceeding vitiates the entire selection proceeding. Therefore, the action of the respondents in making selection on the post of Assistant Teachers is not correct in law.
(44) Section 4 of 1972 Act lays down the provisions in regard to the functioning of the Basic Education Board, Allahabad. The Board has not been empowered to frame rules in regard to the selection of teachers to be appointed in the primary schools or upper primary schools. It is the admitted case of the parties in their submissions that the State Government has not delegated its power to the Board of Basic Education to make amendment in the rules or supplement the rules by issuing guidelines or circulars in regard to the eligibility criteria laid down under Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 1981. It is also not the case of the State Government that prior to issuance of advertisement or till the last date of submission of application form, the State Government issued government order or made amendment in the rule permitting participation of candidates belonging to the ''0' vacancy districts. On consideration of the judgments relied upon by learned Senior Counsel for the petitioner, there is no hesitation to this Court to hold that the participation of the candidates, who belong from ''0' vacancy districts, their participation in the selection proceeding was not permissible in law.
(45) In support of the submissions advanced, learned Advocate General has placed reliance upon the following judgments:
(I) The State of Haryana Vs. Subhash Chander Marwaha and others (Supra):-
"10. One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for conside- ration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appoint- ments by travelling outside the list arid (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence."
(II) Tej Prakash Pathak and others Vs. Rajasthan High Court and others (Supra):
"14. Unfortunately, the decision in Subash Chander Marwaha (supra) does not appear to have been brought to the notice of their Lordships in the case of Manjusree (supra). This Court in the case of Manjusree (supra) relied upon P.K. Ramachandra Iyer and Others v. Union of India and Others [(1984) 2 SCC 141], Umesh Chandra Shukla v. Union of India and Others [(1985) 3 SCC 721] and Durgacharan Misra v. State of Orissa and Others [(1987) 4 SCC 646]. In none of the cases, the decision in Subash Chander Marwaha (supra) was considered.
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 the case of C. Channabasavaiah 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 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."
(III) V. Lavanya and others Vs. State of Tamil Nadu and others (Supra):-
"30. It is now well settled by a catena of decisions that there can be no question of stopples against the Government in the exercise of its legislative, sovereign or executive powers (vide Excise Commissioner U.P., Allahabad v. Ram Kumar (1976) 3 SCC 540 and M. Ramanatha Pillai v. State of Kerala and Anr. (1973) 2 SCC 650). The view taken by Madurai Bench as regards the stand of the Government to relax the norms allegedly in contradiction to its earlier stand is not sustainable in law.
Point No. 3: Whether providing relaxation of 5% marks in TET amounts to change in the criteria of selection of teachers after the selection process commenced?
31. The appellants have contended that the provisionally selected candidates were called to attend certificate verification on 23.01.2014 and 24.01.2014 and weightage marks were also awarded as per the then existing Government Order. While so, by issuing impugned G.O.Ms. No.25 dated 06.02.2014 and G.O.Ms. No. 29 dated 14.02.2014 the criteria of selection was altered by relaxing passing marks by 5% in TET from 60% to 55%, thereby allowing large number of candidates who scored lesser marks to be considered for selection. As per the appellants, this has resulted in altering the criteria of selection after the commencement of selection process. Reliance is placed upon K. Manjushree v. State of Andhra Pradesh and Anr. (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 to contend that the rules of selection cannot be changed after the selection process commenced.
32. Per contra, State has contended that granting relaxation of marks to SCs/STs/OBCs and others will not amount to change in the rules of the games. By relaxation of marks more candidates belonging to reserved category are allowed to compete. The appellants cannot contend that their rights have been taken away; no prejudice has been caused to them as the selection criteria has not been altered with respect to them.
33. Appellants appeared in the TET conducted on 17.08.2013 and 18.08.2013. Respondents were to select the suitable candidates. As per the selection criteria laid down in G.O. Ms. No. 252 laid down that the candidates have to secure minimum 60% in TET so as to qualify the said exam. The weightage of the marks secured in TET was 60% and that of academic qualification was 40%. It is true that the candidates who passed TET were called to attend certificate verification on 23.01.2014 and 24.01.2014; but the selection process has not been completed. Later on, G.O.Ms. No.25 dated 06.02.2014 was issued granting relaxation of 5% marks to SC, ST, backward classes, physically handicapped, de-notified communities etc. The purpose of relaxation was to increase the participation of candidates belonging to backward classes in State's pool of teachers. The State Government merely widened the ambit of TET so as to reach out to those candidates belonging to the deprived section of the society who were not able to compete, inspite of possessing good academic records and qualifications. The change brought about in the selection criteria is Government's prerogative. In terms of their extant reservation policy, the State Government is free to take actions suitable to the socio- economic conditions prevalent in the State, especially with regard to selection of candidates belonging to reserved category to be employed in State Service. Merely, because the Government has widened the ambit of selection, so as to enable more and more candidates to take part in the selection process, the right of candidates who were already in the process cannot be said to have been adversely affected. It is in the interest of reserved category of candidates that more candidates take part in the selection process and best and most efficient of them get selected. This will not amount to change in the criteria for selection after the selection process commenced.
34. As discussed earlier, by virtue of NCTE Guidelines No.9 dated 11.02.2011, the State Government was already empowered to grant relaxation to under-privileged candidates and only in exercise of that power, G.O.Ms.No.25 was issued to create a level-playing field. Further as noted earlier, in TET-I conducted in 2012, 7,14,526 candidates had appeared and only 2448 (0.3%) had qualified. In the subsequent TET, around 6 lakhs candidates had appeared and only 20,000 i.e. 3% candidates could clear the test. Even in third TET with which we are concerned only 16,392 candidates had qualified. In that scenario to provide a level-playing field to persons belonging to SC/ST/OBC, denotified communities, differently-abled persons etc., State Government relaxed 5% marks to enable them to compete with others. It was the prerogative of the State Government to relax the passing marks with respect to reserved category candidates so that more qualified candidates could come up and participate in the selection process. In fact, even after grant of relaxation of 5% marks, many posts of reserved categories are remaining unfilled. State has placed the figures before us to show that even after granting relaxation of 5% marks, many posts of SCs/STs and other backward categories in various subjects are remaining unfilled.
35. The Government has not changed the rules of selection so far as the present appellants are concerned. Weightage of marks obtained in TET as well as that of academic qualification is still the same. The entire selection process conforms to the equitable standards laid down by the State Government in line with the principles enshrined in the Constitution and the extant reservation policy of the State. It is not the case where basic eligibility criteria has been altered in the midst of the selection process. Conducting TET and calling for certificate verification thereafter is an exercise which the State Government is obliged to conduct every year as per the Guidelines issued by NCTE. By calling for CV along with certificates of other requisite academic qualifications, a candidate's overall eligibility is ascertained and then he/she is recruited. Such an exercise by which qualified teachers in the State are segregated and correspondingly certified to that effect cannot be equated to finalization of select list which comes at a much later stage. No prejudice has been caused to the appellants, since the marks obtained by the appellants in TET are to remain valid for a period of seven years, based on which they can compete for the future vacancies. Merely because appellants were called for certificate verification, it cannot be contended that they have acquired a legal right to the post. Impugned G.O. Ms.No.25 did not take away the rights of the appellants from being considered on their own merits as pointed out by the Madras Bench. We entirely agree with the views taken by the Madras Bench that "by merely allowing more persons to compete, the petitioners cannot contend that their accrued right has been taken away".
36. Appearing in TET is synonymous to obtaining an eligibility. By obtaining pass marks in TET a candidate is not said to have been recruited. Marks obtained in TET accounts only for 60% in the final selection and rest 40% is covered by academic performance. By granting relaxation of 5% marks in TET for reserved categories only, the eligibility criteria is neither altered nor any prejudice is caused to the appellants. The contention of the appellants that the State Government cannot legally alter the selection criteria after conducting the exam does not find force in the light of view taken by a three Judge Bench of this Court in Tej Prakash Pathak and Ors. v. Rajasthan High Court and Ors. (2013) 4 SCC 540. In this case, the then Chief Justice of the concerned High Court ordered that examination conducted for the posts of ''Translators' be treated as competitive examination and only those candidates who secured a minimum of 75% marks be selected to fill up the posts in questions. In view of the decision of the Chief Justice, only three candidates were found suitable for appointment. This triggered the litigation. It was observed that there is difference between altering the basic eligibility criteria in the mid of the process of selection and altering the mere procedure of selection."
(46) The submission advanced by learned Advocate General that the amended rule shall be made applicable from the date of initiation of selection proceeding is not acceptable in law as the amendment does not prescribe that it will be made effective from some retrospective date. Therefore, the submission advanced by learned Advocate General is overruled.
(47) In support of the submissions advanced, Sri Anil Tiwari, learned Senior Counsel for the respondent has placed reliance upon the following judgments:-
I. State of Orissa Vs. Sudhir Kumar Biswal (Supra):-
5. The next rule to be challenged is a part of Rule 6(1) which reads as below:
"Direct recruitment to the cadres of Revenue Inspectors, Amins and Collection Moharrirs for the district shall ordinarily be made annually by the Collector, who shall invite applications from the candidates of the district through advertisement in the newspapers of the State."
6. The offending portion of this rule are the words "from the candidates of the district". Shri Panda appearing for the appellants has submitted in this connection that this is ordinary requirement because of the word ''ordinarily' appearing in the sub-rule. We are, however, of the view that the word ''ordinarily' as used and placed in the sub-rule, refers to the periodicity which is said to be annual. It has no connection with the place of residence of the candidates.
7. As to this part of the sub-rule, it has been pointed out by the Tribunal that the same is in conflict with Article 16(2) of the Constitution, which has been laid down that no citizen shall be discriminated against, inter alia, on the ground of "place of birth, residence or any of them". The aforesaid part of the sub-rule is thus clearly violative of the aforesaid prohibition and has, therefore, rightly been held to be ultra vires.
8. We, therefore, reverse the view taken by the Tribunal qua the proviso to Rule 5(1), subject to the observations made by us relating to its real purport and reach, but affirm its view as regards the challenged part of Rule 6(1). As the selection had, however, been made on the basis of the applications which had been invited from the candidates of the concerned district alone, the selection made pursuant to such an invitation cannot be sustained. The selection of the respondents in CA No. 2419 of 1993 cannot, therefore, be upheld. The appellants are directed to issue fresh advertisement by inviting applications for the posts in question from the candidates of all the districts of the State. [May it be stated that the requirement of residence within a State is not prohibited by Article 16(2) as was held in Pradeep Jain v. Union of India 1984 3 SCC 654.] Appointments shall be made thereafter in accordance with the provisions contained in the rules and other statutory provisions holding the field.
II. A.V.S.N. Rao Vs. State of A.P. (Supra):-
"4. The question is one of construction of this article, particularly of the first three clauses, to find out the ambit of the law taking power of Parliament. The first clause emphasises that ware shall be in India equality of opportunity for all citizens in matters of employment or appointment to any office under the late. The word 'State' here is to be understood in the extended use given to it by the definition of that word Art. 12. The second clause then specifies a prohibition against discrimination only on the grounds of religion, race, sex, descent, place of birth, residence or any of them. The intention here is make every office or employment open and available to every citizen, and inter alia to make offices or employment in one part India open to citizens in all other-parts of India. The third pause then makes an exception. This clause was amended by the Constitution (Seventh Amendment) Act, 1956. For the original words of the clause 'under any State specified in the First schedule or any local or other authority within its territory any requirement as to residence within-that State', the present words from 'under the Government' to 'Union territory' have been substituted. Nothing turns upon the amendment which seeks to apply of the exception in the clause to Union territory and to remove ambiguity in language.
5. The clause thus enables Parliament to make a law in a special case prescribing any requirement As to residence within a State or Union territory prior to appointment, as a condition of employment in the State or Union territory. Under Art. 35(a) this power is conferred upon Parliament but is denied to the Legislatures of the States, notwithstanding anything in the Constitution, and under (b) any law in force immediately before the commencement of the Constitution in respect to the matter shall subject to the terms thereof and subject to such adaptations that may be made under Art. 372 is to continue in force until altered or repealed or amended by Parliament.
6. The legislative power to create residential qualification for employment is thus exclusively conferred on Parliament. Parliament can make any law which prescribes. any requirement as to residence within the State or Union territory prior to employment or appointment to an office in that State or Union territory. Two questions arise here. Firstly, whether Parliament', while prescribing the requirement, may prescribe the requirement of residence in a particular part of the State and, secondly, whether Par- liament can delegate this function by making a declaration and leaving the details to be filled in by the rule making power of the Central or State Governments. Mr. S. V. Gupte, for the petitioners, points out that the ;Constitution is speaking of State and Union territory. It has already made a declaration that no person shall be disqualified for any office in the territory of India because of his residence in any particular part of India. The exception, therefore, must be viewed narrowly and not carried to excess by interpretation. The article speaks of residence in a State and means only that. If it chose to speak of residence in parts of State such as Districts, talauqas, cities, towns etc. more appropriate and specific language could have been used such as 'any requirement as to residence within that State or Union territory or part of that State or Union territory'. Having used the word State, the unit State is only meant and not any part thereof. Reference is made to the history of the drafting of the Article and the debates in the Constituent Assembly which bear out this contention.
9. The claim for supremacy of Parliament is misconceived. Par- liament in this, as in other matters, is supreme only in so far as the Constitution makes it. Where the Constitution does not concede supremacy, Parliament must, act within its appointed functions and not transgress them. What the Constitution says is a matter for,construction of the language of the Constitution. Which is the proper construction of the two suggested? By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be no discrimination, among other things, on the ground of residence. Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advance States into less developed States may have to be prevented, and a residential qualification may, therefore, have to be prescribed, the exception in clause (3) was made. Even so,, that clause spoke of residence within the State. The claim of Mr. Setalvad that Parliament can make a provision regarding residence in any particular part of a State would render the general prohibition lose all its meaning. The words 'any requirement' cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate. We accordingly reject the contention of Mr. Setalvad seeking to put a very wide and liberal construction upon the words 'any law' and 'any requirement'. These words are obviously controlled by the words 'residence within the State or Union territory' which words mean what they say, neither more nor less. It follows, therefore, that S. 3 of the Public Employment (Requirement as to Residence) Act , 1957, in so far as it relates to Telengana (and we say nothing about the other parts) and Rule 3 of the Rules under it are ultra vires the Constitution."
III. Kailash Chand Sharma Vs. State of Rajasthan (Supra):-
"13. Before proceeding further we should steer clear of a misconception that surfaced in the course of arguments advanced on behalf of the State and some of the parties. Based on the decisions which countenanced geographical classification for certain weighty reasons such as socio- economic backwardness of the area for the purpose of admissions to professional colleges, it has been suggested that residence within a district or rural areas of that district could be a valid basis for classification for the purpose of public employment as well. We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Art. 16(3). An argument of this nature flies in the face of the peremptory language of Article 16 (2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself be it be within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into Districts with a view to offer employment to the residents of that District on a preferential basis. At this juncture it is appropriate to undertake a brief analysis of Article 16.
14. Article 16 which under clause (1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State reinforces that guarantee by prohibiting under clause (2) discrimination on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Be it noted that in the allied Article Article 15, the word 'residence' is omitted from the opening clause prohibiting discrimination on specified grounds. Clauses (3) and (4) of Article 16 dilutes the rigour of clause (2) by (i) conferring an enabling power on the Parliament to make a law prescribing the residential requirement within the State in regard to a class or classes of employment or appointment to an office under the State and (ii) by enabling the State to make a provision for the reservation of appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the State. The newly introduced clauses (4-A) and (4-B), apart from clause (5) of Article 16 are the other provisions by which the embargo laid down in Article 16 (2) in somewhat absolute terms is lifted to meet certain specific situations with a view to promote the overall objective underlying the Article. Here, we should make note of two things: firstly, discrimination only on the ground of residence (or place of birth) in so far as public employment is concerned is prohibited; secondly, Parliament is empowered to make the law prescribing residential requirement within a State or Union Territory, as the case may be, in relation to a class or classes of employment. That means, in the absence of parliamentary law, even the prescription of requirement as to residence within the State is a taboo. Coming to the first aspect, it must be noticed that the prohibitory mandate under Article 16(2) is not attracted if the alleged discrimination is on grounds not merely related to residence, but the factum of residence is only taken into account in addition to other relevant factors. This, in effect, is the import of the expression 'only'."
IV. Triveni Chandra Pandey Vs. State of Uttarakhand (Supra).
V. D.N. Jeevaraj Vs. Chief Secretary Government of Karanataka (Supra):-
"37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra that:
"12.Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.
13.A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted."
38. A salutary principle or a well recognized rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India[7] in the following words:
"24..... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 13, p. 106):
"Demand for performance must precede application- As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal." In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."
VI. Saraswati Industrial Syndicate Vs. Union of India (Supra):-
"24. As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceedings was before the High Court. The powers of the high Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless the well recognised rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Evert in cases of alleged breaches of mandatory duties the salutary general rule which is subject to certain exceptions applied by us as it is in England when writ of Mandamus is asked for could be stated as we find it set out in Halsbury's Taws of England (3rd edition vol. 13 p. 106):
"As a general rule the order will not be granted unless the party complained of has known what it was he was required to do so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that that demand was met by a refusal."
25. In the cases before us there was no such, demand refusal. Thus no ground whatsoever is shown here for the issue of any writ order or direction under Article 226 of the Constitution. These appeals must be and are hereby dismissed but in the circumstances of the case we make no order as to costs."
VII. State of Haryana Vs. Chanan Mal (Supra):-
"49. (3) Any petitioner who applies for a writ or order in the nature of a mandamus should, in compliance with a well known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established."
VIII. R.S.I.D.I.C. Vs. Subhash Sindhi Co-op. Housing Society, Jaipur (Supra):-
"24. The primary purpose of the writ is to protect and establish rights, and to impose a corresponding imperative duty existing in law. It is designed to promote justice, (ex debito justiceiae) and its grant or refusal is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or establish a legal right but, to enforce one that stood already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal. Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for issuance of the writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether proper pleadings are being made. Further in order to maintain the writ of mandamus, the first and foremost requirement is that, the petition must not be frivolous and it is filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand. (Vide: Commissioner of Police, Bombay v. Govardhandas Bhanji, AIR 1952 SC 16; Praga Tools Corporation v. Shri C.V Imanual & Ors., AIR 1969 SC 1306; Punjab Financial Corporation v. Garg Steel, (2010) 15 SCC 546; Union of India & Ors. v. Arulmozhi Iniarasu & Ors., AIR 2011 SC 2731; and Khela Banerjee & Anr. v. City Montessori School & Ors."
IX. Mani Subrat Jain Vs. State of Haryana (Supra):-
"9. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something (See Halsbury's Laws of England 4th Ed. Vol. I, paragraph 122; State of Haryana v. Subash Chander Marwaha & Ors.(1) Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed & Ors. (2) and Ferris Extraordinary Legal Remedies paragraph 198."
X. All India General Mazdoor Trade Union Vs. Delhi Administration (Supra):-
"3. It would thus be seen on a plain reading of the said provision that the appropriate Government is charged with the duty to consider whether or not in the facts and circumstances of a given case it is necessary to prohibit employment of contract labour in any process, operation or other work in any establishment. Of course, this it must do after consultation with the Central Board or as the case may be, a State Board constituted under Sections 3 and 4 respectively of the Act. Sub-section (2) of Section 10 provides that before issuance of any notification regard shall be had by the appropriate Government to the conditions of work and benefits provided for the contract labour in the given establishment and other relevant factors enumerated in clauses (a) to (d) of that sub-section and the decision in that behalf of the appropriate Government is made final by the Explanation thereto. In the present case, the question which arises for consideration is whether the requirements for the issuance of a notification under Section 10 of the Act have been satisfied. That is a question to which the appropriate Government must first address itself because it would be required to consult the Board also after collecting and collating the factual data. Unfortunately, the Union in the instant case did not approach the appropriate Government to make out a case for the issuance of a notification under Section 10 of the Act. Had it done so the factual data would have been available to this Court and if despite a case having made out for issuance of a notification under Section 10 the appropriate Government had unreasonably refused to exercise power, this Court in its review jurisdiction would have been able to grant a mandamus on being satisfied that the requirements for the issuance of a notification had been established. In the absence of any probe by the appropriate Government it is difficult for this Court to collect all the information directly and proceed to issue a mandamus without the appropriate Government having an opportunity to examine the request made by the petitioner-Union. We think that in such cases it is appropriate that the authority established under the statute is approached first in point of time so that it is in a position to collect and collate the data and place it in the correct perspective for decision making and if despite a case having been made out, the appropriate Government does not exercise power, the aggrieved workers can certainly move the appropriate forum for writ of mandamus. We are, therefore, of the opinion that in the facts and circumstances of this case and having regard to the case-law in this behalf and particularly the decision in R.K. Panda v. Steel Authority of India1, it would be appropriate to dispose of these cases with a direction that the present writ petitions be treated by the appropriate Government, i.e. Respondent 1, as a representation by the workmen and the appropriate Government take a decision on the demand made by the workmen whether or not a case for issuance of a notification under Section 10 of the Act is made out."
XI. Rajesh Kumar Gupta Vs. State of U.P. (Supra):-
"17. Although a feeble attempt was made by the counsel on behalf of the State respondents that different districts have different dialects and therefore, it would be necessary to restrict the selection to candidates conversant and fluent in those regional dialects, we are not satisfies that adequate material was presented to the High Court on the basis of which this distinction could have been justified. In the first place, there was no material to indicate that dialects vary from district to district. Consequently, there was no material to indicate that a candidate from one district was no likely to be familiar with the dialect of another district for which he applied for training. There was also no material placed on record to indicate that training was to be in local dialect for the local school only. Finally, if the emphasis is really on the regional dialect, nothing prevented the State government from making the knowledge of a specified regional dialect as preferential criterion for recruitment. For these reasons, we agree with the view taken by the Division Bench on this issue and hold that restriction of the selection and preparation (1)of merit list at the district level was arbitrary and violative of Article 15(1) and 16(2) of the Constitution."
XII. Radhey Shyam Singh Vs. Union of India (Supra):-
"8. It is needless to emphasis that the purpose and object behind holding a recruitment examination is to select suitable and best candidates out of the lot and such an object can only be achieved by making a common select list of the successful candidates belonging to all the zones. On the other hand if zone-wise selection is made then various candidates who appeared in some of the zones and secured more marks than those who are selected from other zones would be deprived of their selection resulting into great injustice and consequent discrimination. Thus there can be said to exist no nexus between the aforesaid process of zone-wise selection and the object to be achieved, that is, the selection of the best candidates. That being so the process of selection as envisaged in paragraph 16 of the advertisement in question and reproduced in the earlier part of this judgment would lead to discriminatory results because by adopting the said process of zone-wise selection would result in the devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who has secured more marks and consequently the rule of equal chance for equal marks would be violated. Such a process would not only be against the principles enunciated in Article 14 and 16 of the Constitution but it would also result in heart burning and frustration amongst the young men of the country. The rule of equality of opportunity for every individual in the country is an inalienable part of our constitutional guarantee and that being so a candidate who secures more marks than another is definitely entitled to get preference for the job as the merit must be the test when selecting a candidate for recruitment for the posts which are advertised. In the present case admittedly the process of selection as envisaged in paragraph 16 of the advertisement in question is violative of Article 14 and 16 of the Constitution of India as it has been demonstrated from the marks st of the appellants placed before us at the Bar during the course of arguments that they had secured more marks than those secured by some of the selected candidates."
(48) Once this Court has held that the proceeding of selection was based on guidelines and circulars issued by the Secretary, Board of Basic Education for which he was not competent, the arguments advanced and the judgments relied upon by Sri Anil Tiwari, learned Senior Counsel do not attract to this Court. Therefore, the submissions advanced by learned Senior Counsel are not acceptable in law and are hereby rejected.
(49) In support of the submission advanced, Sri S.K. Kalia, learned Senior Counsel for the respondent has also relied upon the following judgments:
I. Dhananjay Malik and others Vs. State of Uttaranchal and others (Supra):-
"7. It is not disputed that the writ petitioners- respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
13. A Constitution Bench of this Court in the case of Sant Ram Sharma vs. State of Rajasthan, AIR 1967 SC 1910, has pointed out at p.1914 SC that the Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
II. D. Saroja Kumari Vs. R. Helen Thilakom and others (Supra):-
"4. The main ground urged on behalf of the appellant is that Respondent No.1 having taken part in the selection process could not be permitted to challenge the same after she was unsuccessful in getting selected. The law is well settled that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection.
5. In Dr. G. Sarna vs. University of Lucknow & Ors.,1 the petitioner after appearing in the interview for the post of Professor and having not been selected pleaded that the experts were biased. This Court did not permit the petitioner to raise this issue and held as follows :-
"15.We do not, however, consider it necessary in the present case to get into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection (1976) 3 SCC 585 Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee......"
6. In Madan Lal & Ors. vs. State of J&K & Ors. 2 , the petitioner laid challenge to the manner and method of conducting viva-voce test after they had appeared in the same and were unsuccessful. This Court held as follows :-
"9.......Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted......"
7. In Manish Kumar Shahi vs. State of Bihar,3 , this Court held as follows :-
"23.......Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name (1995) 3 SCC 486 (2010) 12 SCC 576 does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
8. In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others 4 the petitioners took part in the process of selection made under the general Rules. Having appeared in the interview and not being successful they challenged the method of recruitment itself. They were not permitted to raise such an objection. This Court held as follows :-
"24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
9. Same view has been taken in Madras Institute of Development Studies and Another vs. Dr. K. Sivasubramaniyan and others 5.
(2013) 11 SCC 309 (2016) 1 SCC 454
10. The Kerala High Court did not note the above mentioned judgments and ignored the well settled position of law in rejecting the specific plea raised by the appellant herein that the appellant could not raise the issue that no direct recruitment should have been conducted once she had applied for and taken part in the selection process by direct recruitment.
11. As far as the present case is concerned an advertisement was issued by Respondent No.6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent No.1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this we need not go into the other issues raised."
III. Ashok Kumar and another Vs. State of Bihar and others (Supra):-
"12. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.
13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla[4], this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar[5], this Court held that :
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same... (See also Munindra Kumar v. Rajiv Govil[6] and Rashmi Mishra v. M.P. Public Service Commission[7])."
14. The same view was reiterated in Amlan Jyoti Borroah (supra) where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.
15. In Manish Kumar Shah v. State of Bihar[8], the same principle was reiterated in the following observations :
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the Petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in MadanLal v. State of J. and K. MANU/SC/0208/1995 : (1995) 3 SCC 486, MarripatiNagaraja v. Government of Andhra Pradesh and Ors. MANU/SC/8040/2007 : (2007) 11 SCC 522, Dhananjay Malik and Ors. v. State of Uttaranchal and Ors. MANU/SC/7287/2008 : (2008) 4 SCC 171, AmlanJyotiBorooah v. State of Assam MANU/SC/0077/2009 : (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines."
16. In Vijendra Kumar Verma v. Public Service Commission[9], candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.
17. In Ramesh Chandra Shah v. Anil Joshi, candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that :
"18. It is settled law that a person who consciously takes partin the process of selection cannot, thereafter, turn around and question the method of selection and its outcome." In Chandigarh Administration v. Jasmine Kaur[11], it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey[12], this Court held that : "Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared.
There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam.
19. In the present case, regard must be had to the fact that the appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment that the interpretation of Rule 6 was not free from vagueness. There was in other words no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90:10 allocation.
20. The decision in Raj Kumar v. Shakti Raj[14] (which was relied upon by the appellants) involved a case where government was found to have committed glaring illegalities in the procedure. Hence, it was held that the principle of estoppel by conduct or acquiescence had no application. The decision is distinguishable.
21. In this view of the matter, the Division Bench cannot held to be in error in coming to the conclusion that it was not open to the appellants after participating in the selection process to question the result, once they were declared to be unsuccessful. During the course of the hearing, this Court is informed that four out of six candidates, who were ultimately selected figured both in the first process of selection as well as in the subsequent selection. One candidate is stated to have retired."
IV. Triveni Chandra Pandey Vs. State of Uttarakhand and others (Supra):-
"7. In the present case, the facts as to petitioner's participation are somewhat different. The petitioner has applied for the post of "Primary School Teacher" and he had prayed that his candidature be considered for selection on the post from other districts as well, besides his home district. Therefore, the contention of learned Advocate General has no substance and the law laid down & the Hon'ble Apex Court is not applicable to the facts of the present case. Moreover, the petitioner here has raised a matter which is extremely important wherein he has alleged violation of his Fundamental Rights. He applied as a candidate from District Udham Singh Nagar where he indeed participated but his claim to participate in other districts cannot be denied is what he argues relying upon Articles 16(1),16(2) and 16(3) of the Constitution of India.
13. We are presently concerned with Clauses (2) and (3) of Article 16 of the Constitution of India. As per Clause (2) no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Therefore, there can be no discrimination against a citizen on ground of his place of birth or residence. articles 16(1) & (2) of the constitution of india makes it very clear that our Constitution makes every office and employment open to all its citizens. It does not discriminate them on place of birth or residence. Clause (3) makes an exception as there may a given situation where the consideration of residence or place of birth may be justified and therefore for abundant precaution the Constitution has given this power only to the Parliament and that too for a very limited purposes under Clause (3) of Article 16, where Parliament has been given power for making any law prescribing, in regard to a class or classes of employment or appointment to an officer under the Government or, or any local or other authority "within a State or Union Territory" prior to such employment or reappointment. In Clause (3) the necessary phase would be 'as to residence within the State or Union territory'. Therefore, even Parliament has got a limited power as in a given situation it can prescribe a qualification of residence "within a State or Union territory". In other words, even the Parliament does not have power under the Constitution of India to prescribe a residence of a village, Tahseel of a District as presently has been done by the State Government. A Constitution Bench of Hon'ble Apex Court in the case of A.V.S. Narasimha Rao v. State of Andhra Pradesh (1969) 1 SCC 839 : (AIR 1970 SC 422), has declared that the law enacted by Parliament in pursuance of Clause (3) of Article 16 making a special provision for domicile within Telengana (a region of the State of Andhra Pradesh) for the purpose of public employment within that region and the rules made there under is ultra vires the Constitution. The Hon'ble Apex Court has stated as under:
The legislative power to create residential qualification for employment is thus exclusively conferred on Parliament. Parliament can make any law which prescribes any requirement as to residence within the State or Union Territory prior to employment or appointment to an office in that State or Union Territory. Two questions arise here. Firstly, whether Parliament, while prescribing the requirement, may prescribe the requirement of residence in a particular part of the State; and, secondly, whether Parliament can delegate this function by making a declaration and leaving the details to be filled by the rule-making power of the Central or State Governments.
14. The Hon'ble Apex Court went on to elaborate the provisions of Clauses (1), (2) and (3) of Article 16, as under:--
By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be no discrimination, among other things, on the round of residence. Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advanced States into less developed States may have to be presented, and a residential qualification may, therefore, have to be prescribed, the exception in Clause (3) was made. Even so that clause spoke of residence within the State. The claim of Mr. Setalvad that Parliament can make a provision regarding residence in any particular part of a State would render the general prohibition lose its meaning. The words 'any requirement' cannot be read to warrant something which could have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in districts, taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow construction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate.
16. We are of the view that the State cannot discriminate among its citizens, inter alia, on the basis of residence or place of birth. This power has been given to the Parliament to make any special law prescribing any criteria of residence in a State. Further even the Parliament has been given power only to fix the residence in a State meaning thereby even the Parliament does not have power to fix the criteria of a District or a Tahseel or Panchayat or Village of that area. In the present case the State has fixed the residence as a criteria for appointment, which fixed residence in a district, is clearly in violative of Article 16(2) of the Constitution of India.
17. The argument of the State as well as some of the respondents is that residence is a valid criteria here as a person residing in a particular area would be well versed in the area and would be in a position to communicate in the dialect spoken in that area. The requirement of residing is hence being justified on these grounds. Such arguments are nothing short of parochial in nature and run counter to our constitutional principles and constitutional morality. Hon'ble Apex Court in the case of Kailash Sharma v. State of Rajasthan (AIR 2002 SC 2877), had to say on this aspect which is as under:--
"Before proceeding further we should steer clear of a misconception that surfaced in the course of arguments advanced on behalf of the State and some of the parties. Based on the decisions which countenanced geographical classification for certain weighty reasons such as socio-economic backwardness of the area for the purpose of admissions to professional colleges, it has been suggested that residence within a district or rural areas of that district could be a valid basis for classification for the purpose of public employment as well. We have no doubt that such a sweeping argument which has the overtones of parochialism is liable to be rejected on the plain terms of Article 16(2) and in the light of Article 16(3). An argument of this nature flies in the face of the peremptory language of Article 16(2) and runs counter to our constitutional ethos founded on unity and integrity of the nation. Attempts to prefer candidates of a local area in the State were nipped in the bud by this Court since long past. We would like to reiterate that residence by itself be it be within a State, region, district or lesser area within a district cannot be a ground to accord preferential treatment or reservation, save as provided in Article 16(3). It is not possible to compartmentalize the State into Districts with a view to offer employment to the residents of that District on a preferential basis. At this juncture it is appropriate to undertake a brief analysis of Article 16."
20. Article 350A of the Constitution of India was inserted in the Constitution by way of 7th Amendment Act, 1956. It was done on the recommendation of the State Reorganization Commission as though States were reorganized primarily on the basis of "language", yet many of the States there were pockets where a group of persons spoke a language different than the one spoken by the majority of the population in the State. In order to protect their language, Reorganization Commission recommended that the language of linguistic minority group be protected. Article 350A of the Constitution of India has no application in the State of Uttarakhand for the simple reason that the language being spoken by almost all in Uttarakhand is "Hindi". Hindi is also the official Language of the State of Uttarakhand. If there are variations of "Hindi" spoken in Uttarakhand such as "Garhwali" and "Kumauni" and irrespective of the facts whether these are dialects or variation of Hindi language or a different language, as there may be no universally acceptable criteria which distinguishes a language from a mere dialect, yet the fact remains that Article 350A of the Constitution of India has no application to the present controversy. Moreover, even when Uttarakhand was a part of the State of U.P., the medium for instruction in primary schools, particularly, in Government primary schools was "Hindi" and the instructions were in Hindi and so were the text books, which were in Hindi. Therefore, the reliance on Article 350A of the Constitution of India is wholly misconceived."
V. Rajesh Kumar Gupta Vs. State of U.P. and others (Supra):-
"16. The Division Bench of the High Court came to the conclusion that the merit list could not be prepared on districtwise basis and that restricting the selection and preparation of merit list at the district level was not justified and amounted to discrimination. It was also found that though at one stage the State government had decided to prepare the merit list on the State level, it was suddenly changed to the district level and the reasons advanced for the sudden change were found to be wholly irrelevant and unjustified. The action of the State government in restoring the preparation of merit list from State level to district level was held arbitrary and violative of Articles 15(1) and 16(2) of the Constitution of India. The High Court has referred and relied on a number of judgement of this Court which have frowned upon recruitment on the basis of criteria restricted to candidates from specified local areas.
17. Although a feeble attempt was made by the counsel on behalf of the State respondents that different districts have different dialects and therefore, it would be necessary to restrict the selection to candidates conversant and fluent in those regional dialects, we are not satisfies that adequate material was presented to the High Court on the basis of which this distinction could have been justified. In the first place, there was no material to indicate that dialects vary from district to district. Consequently, there was no material to indicate that a candidate from one district was no likely to be familiar with the dialect of another district for which he applied for training. There was also no material placed on record to indicate that training was to be in local dialect for the local school only. Finally, if the emphasis is really on the regional dialect, nothing prevented the State government from making the knowledge of a specified regional dialect as preferential criterion for recruitment. For these reasons, we agree with the view taken by the Division Bench on this issue and hold that restriction of the selection and preparation of merit list at the district level was arbitrary and violative of Article 15(1) and 16(2) of the Constitution.
Whether the provisions of Article 350-A of the Constitution of India are attracted in the present case
18. There was no material for the High Court to show that the case of any linguistic minority was involved, hence the High Court rightly held that Article 350-A was not violated.
Whether the selection of candidates for special BTC training is contrary to the provisions of the basic Education Act, 1972 and U.P. Basic Education (Teachers) Services Rules, 1981."
VI. Kailash Chand Sharma Vs. State of Rajasthan and others (Supra).
(50) The submissions advanced by learned counsel appearing on behalf of the respondents whether that is on the point of issuance of writ of mandamus or on the point that in the writ petition there is no prayer for setting aside the selection of the candidates belonging to the ''0' vacancy districts, the relief claimed cannot be granted even if it is found dehors the rules. The submissions supported by the law reports have been duly considered and it was found that the participation of the candidates of ''0' vacancy districts are based on issuance of circulars issued by the Board of Basic Education for which the Board was not competent to make any alteration or amendment in the rules governing the selection on the post of Assistant Teachers to be appointed in the primary schools and upper primary schools run and managed by the Board of Basic Education. Therefore, the submissions advanced by learned counsel for the respondents and the law reports relied upon have no substance and are hereby rejected.
(51) This Court on examination of law reports and submissions advanced by learned counsel for the respondents has no hesitation to record that the selection proceeding, which has been concluded without making amendment in Rule 14 of ''Rules of 1981'' and without issuing government order by the State Government, the participation of the candidates belonging to ''0' vacancy districts is contrary to Rule 14 of U.P. Basic Education (Teachers) Service Rules, 1981. In the three writ petitions, which are numbered as Writ Petition Nos.11947 (S/S) of 2018, 12656 (S/S) of 2018 and 5734 (S/S) of 2018, the participation of candidates, who were belonging to ''0' vacancy districts have been challenged by making prayer for issuance of writ of certiorari. Therefore, the submissions of Sri Anil Tiwari, learned Senior Counsel and Sri S.K. Kalia, learned Senior Counsel for the respondent that the writ of mandamus can be issued if there is demand and the cause is inconsonance with the provisions contained under the relevant rules. The submission of Sri S.K. Kalia, learned Senior Counsel is also that the in the leading writ petition there is a prayer for enforcement of notifications issued on 15.12.2016, 11.04.2016, 26.12.2016, 02.03.2017 and 16.04.2018 and in case it is accepted, then participation of the candidates from ''0' vacancy districts is liable to be enforced. There are bunch of writ petitions, which have been argued by learned counsel appearing on behalf of the petitioners. In three above referred writ petitions prayer has been made for quashing the participation of candidates belonging to ''0' vacancy districts, who have been permitted to appear dehors the rules. This Court cannot shut its eyes while deciding the controversy of participation of candidates in a selection proceeding. The selection on the post of Assistant Teachers in the institutions run and managed by the Board of Basic Education are made in accordance with the provisions contained under the U.P. Basic Education (Teachers) Service Rules, 1981.
(52) On perusal of Rule 14, it is also apparent that on the date of initiation of selection proceedings till the last date of submission of application form, there was no amendment in Rule 14 of U.P. Basic Education (Teachers) Service Rules, 1981 nor the State Government by issuing government order has supplemented the lacking of permitting those candidates to participate in the selection proceeding, who were belonging from the outside districts. The Rule 14 was amended at subsequent point of time and in this regard learned Advocate General submitted that in case the candidates from outside districts were permitted to participate in a selection proceeding on the ground that there was violation of Articles 14 and 16 of the Constitution of India and certain candidates were restrained and taking into consideration the said aspect of the matter amendment has been incorporated permitting them to participate, then the same from inception is not acceptable. Amendment in the statute, if it is not providing that the same will be made applicable from retrospective effect, cannot be made applicable from retrospective effect. On the date of initiation and till last date of submission of application form there was no provision under the rules permitting the candidates from ''0' vacancy districts to participate in the selection proceeding. Therefore, their participation is contrary to the Rule 14 of U.P. Basic Education (Teachers) Service Rules, 1981. Thus, their selection by giving first preference vitiates in law.
(53) On consideration of the aforesaid judgments, this Court holds that the selection proceeding is based on circulars and guidelines issued by incompetent authority, who is not empowered under the Act to issue guidelines or circulars governing the service rules in regard to selection and appointment of Assistant Teachers in primary schools and upper primary schools run and managed by Board of Basic Education. It is the State Government, who has been empowered under the Act of 1972 to frame rules and issue government orders. Therefore, the submissions advanced by Sri S.K. Kalia, learned Senior Counsel have no substance and are hereby rejected.
(54) In regard to the submissions advanced by learned counsel for the respondents that after participation the petitioners cannot challenge the selection process, wherein they have been declared to be unsuccessful, on perusal of the record of the writ petitions and other material on record, it is found that Rule 14 of U.P. Basic Education (Teachers) Service Rules, 1981 does not permit participation of candidates belonging to ''0' vacancy districts. Therefore, this Court records that their participation has affected the entire selection proceeding and merit of the candidates appeared in the selection proceeding. Therefore, the judgments relied upon by learned counsel for the respondents on the point of estoppel do not attract to the present facts and circumstances of the case and the submission advanced by learned counsel for the respondents are not tenable in law.
(55) This Court on overall consideration of the judgments and rules applicable and the government order and circulars issued by the Board of Basic Education, found that the selection proceeding is contrary to the U.P. Basic Education (Teachers) Service Rules, 1981. The Secretary, Board of Basic Education is not the competent authority to substitute anything in the rules nor he has the authority to make amendment in the rules governing the selection proceeding on the post of Assistant Teachers in the institutions run and managed by Board of Basic Education. It is not the case of the respondents that the State Government has delegated its power to the Board of Basic Education to issue circulars or orders to supplement the criteria of selection in the selection proceeding involved in the present writ petitions. Therefore, there is no hesitation to this Court to hold that the entire selection proceeding is in utter disregard of the U.P. Basic Education (Teachers) Service Rules, 1981. Therefore, there is no hesitation to this Court to accept the submissions advanced by Sri Jaydeep Mathur, learned Senior Counsel on the point that if there is violation of rules in a selection proceeding and the candidates participating in the said selection proceeding has been declared to be unsuccessful, then they have the right to challenge the same before this Court. The judgments relied upon by him clearly support the submissions advanced in this regard.
(56) Sri S.K. Kalia, learned Senior Advocate has advanced the submission that the petitioners have filed writ petitions for issuance of writ of mandamus to enforce the notification issued prescribing permission to the candidates belonging to the ''0' vacancy districts, then they cannot take ''U' turn in making their submissions. In case the notification referred in the prayer are issued then the provisions containing therein permitting the candidates of ''0' vacancy districts shall be made applicable. The submission appears attractive but once the selection has been held contrary to the rules, then there is no hesitation to hold that the selection being dehors the rules cannot be permitted to continue any more. The judgments relied upon by learned Senior Counsel in support of his submissions do not attract to present facts and circumstances of the case. Therefore, the submissions advanced being not sustainable in law, are hereby overruled. It is, however, made clear that in pursuance to an interim order granted by this Court on 19.04.2018, the appointment letters were not issued to the candidates, who obtained B.T.C. training from other than District Gonda.
(57) In view of the finding recorded above, the selection on the post of Assistant Teachers against 12460 vacancies initiated in pursuance to the advertisement issued on 21.12.2016 vitiates in law and is hereby set-aside.
(58) The writ petitions succeed and are allowed.
(59) The respondent Nos.3 and 4 are directed to initiate fresh proceeding of selection by fixing a cut of date to appear in the counselling for selection and appointment on the post of Assistant Teachers in accordance with Rule 14 of U.P. Basic Education (Teachers) Service Rules, 1981 as existing on the date of initiation of selection proceeding by issuing notice in the widely circulated newspapers of the state level as well as of the locality permitting the eligible and qualified candidates to appear in the counselling.
(60) The said exercise shall be completed within a period of three months from the date of production of a certified copy of this order.
Dated: 01.11.2018 Pkb/Adarsh