Madhya Pradesh High Court
Vinod Kumar Pathak vs The State Of Madhya Pradesh on 14 May, 2019
1
Writ Petition No.7605/2019
THE HIGH COURT OF MADHYA PRADESH
WP-7605-2019
[Vinod Kumar Pathak & Ors. vs. State of M.P. & Ors.]
Gwalior, Dated 14.05.2019
Shri MPS Raghuvanshi, learned counsel with Shri Shivendra
Singh Raghuvanshi, learned counsel for the petitioners.
Shri Pratip Visoriya, learned Government Advocate for the
respondents/State.
Petitioners seek following reliefs:
"(i) That, Sub Rule 2 of Rule 7(A) of Rules 2005 or retrospective amendment dated 21.3.2018 Annexure P/1 be declared utra-virus and order annexure P/2 series be quashed with a further direction to the respondents to issue the appointment order, after considering the case of the petitioners in view of the un-amended criteria, for appointment on the post of Contract Teacher Grade -3 and found otherwise eligible for appointment with all consequential benefits.
(ii) That, the judgment delivered in the case of Manmohan Mathur be declared fully applicable in the case of the petitioners.
(iii) That, the other relief doing justice including cost be awarded."
After hearing learned counsel for the petitioners at length, we are of the opinion that the issue raised in present petition is squarely covered by the decision in Writ Petition No.28143/2018 (Udhaybhan Singh & Ors. vs. State of M.P. & Ors.) decided on 07/03/2019, wherein it was held:
"15. Thus besides the issue as regard to retrospective operation of Rule 7-A brought in 2 Writ Petition No.7605/2019 vogue vide amendment dated 21/03/2018, it is also to be considered whether the petitioners are entitled for the relief for direction to the respondents to consider and appoint the petitioners as Samvida Shala Shikshak Grade III.
16. The State on its turn while not disputing the facts and events adverted. And the fact of the petitioners having qualified in the Eligibility Test 2008; however, question their entitlement for the relief sought for consideration for appointment as Samvida Shala Shikshak Grade III on the contention that one time relaxation was granted to the Co-ordinators/ Supervisors of non-formal education. The acquisition of eligibility was not for time immemorial. It is contented that the validity of the eligibility examination is for two years after the declaration of result or next eligibility examination to be held, whichever is earlier. Reference is made to sub-rule (2) of Rule 6 of the Rules of 2005.
17. Sub-rule (2) of Rule 6 of Rules 2005 as was substituted vide notification No. F-2-01-2013- XXII-P-2 dated 24/09/2014 published in Madhya Pradesh Rajpatra (Asadharan) dated 24/09/2014 at page 902 is as under:-
"(2) 'Samvida Shala Shikshak Eligibility Examination', hereinafter referred to as 'Eligibility Examination' as prescribed shall be conducted for the employment of Samvida Shala Shikshak. The eligibility examination shall be conducted by an agency prescribed by the Government.
The validity of the eligibility examination shall be for two years after declaration of result or next eligibility examination to be held, which will be earlier."
18. That prior to its substitution, sub-rule (2) of Rule 6 was in the following form:-
"(2) 'Samvida Shala Shikshak Eligibility Examination', hereinafter referred to as 'Eligibility Examination' shall be conducted by such norms as prescribed for the employment of Samvida Shala 3 Writ Petition No.7605/2019 Shikshak. The eligibility examination shall be conducted by an agency prescribed by the Government. The validity of the eligibility examination relating to year 2011-12 and validity of result of eligibility examination to be held after the aforesaid year shall be valid for employment of Samvida Shala Shikshak, Excluding the validity of result of examination held in the year 2005 and 2008."
19. The aforesaid sub-rule was substituted on 17/01/2014 vide notification No. F-2-1-2013- XX-P-2 dated 17/01/2014 published in Madhya Pradesh Rajpatra (Asadharan) dated 17/01/2014 page 68. Prior to it and w.e.f. 27/06/2011, sub- rule (2) reads thus:-
"(2) 'Samvida Shala Shikshak Eligibility Examination', hereinafter referred to as 'Eligibility Examination' as prescribed shall be conducted for the employment of Samvida Shala Shikshak. The eligibility examination shall be for two years after declaration of result or next eligibility examination to be held, which will be earlier."
20. It is urged on behalf of the State that since the petitioners have no accrued right for even consideration for appointment to the post of Samvida Shala Shikshak, there is no right in them to question the validity of Rule 7-A of 2005 Rules. As regard to the decisions in Anil Bhatt (supra), Manmohan Mathur (supra) and connected Writ Petitions, it is urged that the petitioners therein filed petitions before the next eligibility test held in the year 2011; therefore, there is no parity between the present petitioners and the petitioners in W.P. No. 1102/2010 (supra), W.P. No. 1688/2009 (supra), W.P. No.6268/2009 (supra), W.P. No. 1472/2011 (supra), W.P. No. 6819/2011 (supra), W.P. No.6857/2010 (supra), W.P. No. 6744/2010 (supra), W.P. No. 4445/2010 (supra), W.P. 4 Writ Petition No.7605/2019 No.6792/2010 (supra), W.P. No. 6782/2010 (supra), W.P. No. 9217/2012 (supra).
21. There is substantial force in the contentions on behalf of the State as regard to legal right of the petitioners to seek direction for their consideration for appointment as Samvida Shala Shikshak Grade III. Sub-rule (2) of Rule 6 of the Rules 2005 determines the outer limit within which the eligibility examination is valid. In the case at hand, it is not in dispute that besides two years from the date of declaration of result, the next eligibility examinations were held in 2011. Being trite it is that an appointment is not a right, there is no vested right in the petitioners to seek mandamus for consideration for appointment. For an Authority, in respect of the proposition that an incumbent has no right of appointment, reference can be had of the decisions in State of Haryana Vs. Subhash Chander Marwaha and others [(1974) 3 SCC 220], Jatinder Kumar and others Vs. State of Punjab and others [(1985) 1 SCC 122], Miss Neelima Shangla Vs. State of Haryana and others [(1986) 4 SCC 268], Shankarsan Dash Vs. Union of India [(1991) 3 SCC 47].
22. In Subhash Chander Marwaha (supra), it is held:-
"10. One fails to see how the existence of vacancies give 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 consideration. 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. .....
11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr. Rai Shivendra Bahadur v. The Governing Body of the 5 Writ Petition No.7605/2019 Nalanda College (AIR 1962 SC 1210) that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived. "
23. In Jatinder Kumar (supra), it is held:-
"16. .... The Candidates did not acquire any right merely by applying for selection or for appointment after selection. ...."
24. In Miss Neelima Shangla (supra), it is held:-
"4. .... But having regard to the fact that most of the others have not chosen to question the selection and the circumstance that two years have elapsed we do not propose to make any such general order as that would completely upset the subsequent selection and create confusion and multiplicity of the problems. ..."
25. In Shankarsan Dash (supra), it is held:-
"9. .... We, therefore, reject the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules."
26. The next question which arises for consideration is whether when the petitioners have no vested or accrued right for appointment nor for consideration have any locus to maintain Writ Petition under Article 226 of the Constitution.
27. In State of Orissa Vs. Madan Gopal Rungta [AIR 1952 SC 12], it is held:-
"5. .... The language of the Article shows that the issuing of writs or directions by the Court is founded only on its decision 6 Writ Petition No.7605/2019 that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article. ...."
28. It can be argued that the petitioners still have the right to question the validity of Rule 7-A of Rules 2005.
29. In Sheoshankar Vs. State Government of Madhya Pradesh and others [AIR 1951 Nagpur 58], it is held by Full Bench:-
"43. It is true that Article 226 gives the power not only for the enforcement of fundamental rights but also for 'any other purpose'. The words 'any other purpose' are of very wide significance, but it cannot be postulated that the High Courts were given unlimited power to do anything by their writs, orders or directions. Some limitations must be placed by the High Court on its own powers. In the Bombay Prohibition case, 'Fram Nusserwanji v. State', AIR (38) 1951 Bom 210, (Chagla C.J.) & in 'Indian Sugar Mills Ltd. v. Secretary to Govt. of U.P.', 1950 ALJ 767, the same opinion was expressed.
44. While I do not pretend to lay down principles for all cases, I am quite clear that a petition for the examination of the constitutionality of an Act does not lie even under the wide powers conferred by Article 226. There is no need to go into the question whether original jurisdiction is conferred by Article 226. Even in those countries where original jurisdiction is possessed judgments are not rendered unless the petitioner can show some 7 Writ Petition No.7605/2019 injury or some imminent injury to himself as a cause of action. But in no country is the constitutionality of a statute examined on a mere petition to a superior Court. In other words, advisory opinions or declaratory judgments on the constitutionality of legislation cannot be given apart from some concrete injury or controversy.
100. But that apart, even the constitutionality of the legislation can be challenged by a petitioner only if he can show injury to himself. ...."
30. Reference in the context can also be had of the decision in Dwarkadas Shrinivas Vs. The Sholapur Spinning & Weaving Co. Ltd. [AIR 1954 SC 119], wherein it is held:-
"46. .... The true principle being that only a person who is directly affected by a law can challenge the validity of that law and that a person whose own right or interest has not been violated or threatened cannot impugn the law on the ground that somebody else's right has been infringed, the same principle must prevail irrespective of the form of the proceeding in which the question of constitutionality is raised."
31. In Om Prakash Shukla Vs. Akhilesh Kumar Shukla and others [AIR 1986 SC 1043], it is held:-
"23. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of 8 Writ Petition No.7605/2019 Kanpur also. They were not responsible for the conduct of the examination."
32. In view whereof, since there is no accrual of right in favour of the petitioners for appointment as Samvida Shala Shikshak Grade III and the right for consideration is exhausted with the expiry of two years and with the holding of next examination in the year 2011, we refrain from examining the validity of Rule 7-A of the Rules of 2005 in context to its being made effective from retrospective date at the instance of the petitioners and keep the issue open to be decided in appropriate case."
In view whereof, the present Writ Petition is also dismissed in the same terms. No costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pwn*
PAWAN
Digitally signed by PAWAN KUMAR
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR, postalCode=474011,
st=Madhya Pradesh,
KUMAR
2.5.4.20=baa18e83a2af7a1611e0bb 9811a10869c6907cfbb375a7a236a2 5ad39f3a2027, cn=PAWAN KUMAR Date: 2019.05.15 18:32:55 +05'30'