Madhya Pradesh High Court
Shailesh Kumar Tiwari vs The State Of Madhya Pradesh on 15 June, 2022
Author: Maninder S Bhatti
Bench: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
WP No. 11972 of 2022
(SHAILESH KUMAR TIWARI Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 15-06-2022
Shri N.S. Ruprah, learned counsel for petitioner.
Shri Girish Kekre, learned G.A. for respondents/State.
Shri Rahul Diwaker, learned counsel for respondent No.3. Heard on I.A. No.7805/2022 which is an application for modification/recalling of order dated 30.05.2022 filed by respondents/State.
Learned counsel for respondent Nos. 1 and 2 submits that this Court has passed an order dated 30.05.2022 in complete ignorance of GOPs dated 30.07.2012 and 06.01.2016 which clearly provides that in the running test of 800 meters a candidate would be required to qualified the same in 2 min 45 seconds and for such running test only one chance/opportunity would be given to the candidate. The counsel further submits that an aspirant who is seeking induction in police force is expected to be physical tough.
The counsel further submits that there is no provision of giving second chance to the person who does not qualify the physical proficiency test in first chance or attempt. The counsel while placing reliance on the judgment of Supreme Court in the case of Maharshi Dayanand University Vs. Surjeet Kaur reported in (2010) 11 SCC 159 submits that the Court cannot issue a direction contrary to the statutory provisions.
Having heard the learned counsel for the State, it is to be noted that the respondents themselves while issuing Annexure P/10 dated 12.05.2022 during Signature Not Verified SAN the mid way cancelled the process of physical proficiency test and for Digitally signed by SHUBHAM THAKKER Date: 2022.06.17 12:00:00 IST remaining candidates a new schedule was fixed commencing from 06.06.2022.
2The action of the respondents is yet to be tested on principle of changing "rule of the games". The present case though does not pertain to change of eligibility criteria but the same pertains to change in selection procedure.
The Apex Court in paragraph 27 in the case of K. Manjusree Vs. State of Andhra Pradesh & Anr. reported in (2008) 3 SCC 512 held as under :
27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24-7-2001 and 21-2-
2002 and held that what was adopted on 30-11-2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them " P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 :
1984 SCC (L&S) 214] , Umesh Chandra Shukla v. Union of India [(1985) 3 SCC 721 : 1985 SCC (L&S) 919] and Durgacharan Misra v. State of Orissa [(1987) 4 SCC 646 : 1988 SCC (L&S) 36 : (1987) 5 ATC 148] .
Thereafter, again the Apex Court in the case of Tej Prakash Pathak & Ors. Vs. Rajasthan High Court & Ors. reported in (2013) 4 SCC 540 refer the matter to larger Bench, while observing that the salutary principle pertaining to "rules of the game" should be applied or not when the change is sought to impose a more rigorous scrutiny for selection? The following paragraphs are relevant :
10. Under the scheme of our Constitution an absolute and non-negotiable prohibition against retrospective law-making is made only with reference to the creation of crimes. Any other legal right or obligation could be Signature Not Verified SAN created, altered, extinguished retrospectively by the sovereign law-making bodies. However, such drastic power is required to be exercised in a Digitally signed by SHUBHAM THAKKER Date: 2022.06.17 12:00:00 IST manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16, etc. Changing the "Âœrules of game"Â 3 either midstream or after the game is played is an aspect of retrospective law-making power.
11. Those various cases deal with situations where the State sought to alter (1) the eligibility criteria of the candidates seeking employment, or ( 2 ) the method and manner of making the selection of the suitable candidates. The latter could be termed as the procedure adopted for the selection, such as, prescribing minimum cut-off marks to be secured by the candidates either in the written examination or viva voce as was done in Manjusree [K. Manjusree v. State of A.P., (2008) 3 SCC 512 at p. 524, para 27 : (2008) 1 SCC (L&S) 841] or the present case or calling upon the candidates to undergo some test relevant to the nature of the employment (such as driving test as was in Maharashtra SRTC.
15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the "Âœrules of the game"Â insofar as the prescription of eligibility criteria is concerned as was done in C. Channabasavaih v. State of Mysore [AIR 1965 SC 1293] , etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the "Âœrules 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.
The argument of the State that for induction in police force the candidates has to be physically tough goes contrary to Annexure P/10 dated 12.05.2022. The Police Headquarter itself issued a letter on 12.05.2022 to the Professor Examination Board and while taking into consideration, the extreme hot weather the physical proficiency test was stopped and was again rescheduled to be commenced from 06.06.2022.
In considered view of this Court, the order dated 30.05.2022 does not cause any prejudice to respondents as it has already been clarified in the order that no right shall accrue in favour of petitioner on account of participation in physical proficiency test.
In view of above, as Annexure P/10 dated 12.05.2022 is yet to be Signature Not Verified SAN examined in the light of above analysis, this Court is not inclined to Digitally signed by SHUBHAM THAKKER Date: 2022.06.17 12:00:00 IST modify/recall the order dated 30.05.2022. Accordingly, I.A. No.7805/2022 4 stands rejected.
List the matter after the return is filed by the respondents.
(MANINDER S BHATTI) JUDGE Shub Signature Not Verified SAN Digitally signed by SHUBHAM THAKKER Date: 2022.06.17 12:00:00 IST