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1 - 10 of 34 (4.14 seconds)State Of Mysore vs S. R. Jayaram on 23 August, 1967
In our opinion, while applying Rule 9 in the present case at hand the Government has virtually usurped the same power as were given under Rule 9(2) in the case of State of Mysore v. S. R. Jayaram (supra). The moment subsequent vacancies were available, the same were made use of for the candidates from the waiting list who are certainly less meritorious than the petitioners. The facts of the case of Special Civil Application No. 931 of 1992 are illustrative of the arbitrary manner in which the power has been exercised. This petitioner was No. 1 in the waiting list and the persons lower to him in merit have been allotted the preference and yet when the subsequent vacancies became available, this petitioner was denied his first preference and such preference to Class-I post was given to the candidates who are lower in merit. It is a case of complete and total erosion of merit on grounds which cannot be said to be germane. In such matters, the ground of administrative exigencies and that the change of preference would create administrative problems cannot be accepted. After all, the select list is based on a combined competitive examination and how a person who is lower in a merit in a select list based on the same combined competitive examination can be chosen for a higher preference to the exclusion of the person with higher merit. It does not appeal to the reason and the basic tenets on which the selections are held. If such course of action is not declared to be illegal, it would simply give rise to the recurrence and repetition of such cases and merit would go on being ignored again and again causing heart-burning amongst the persons who have obtained higher merit. As we have interpreted Rule 9 so as to save its validity on the principle of harmonious constructions, we find that whether the request of a candidate for change can be entertained or not, the Government itself is under an obligation to act in a fair manner on the concept of Article 14 of the Constitution and in the facts of the present case there is an alternative and the alternative is to change the preference without causing any prejudice to anybody's rights and there is no question of time constraints like academic courses and we have to allow the merit to prevail over so-called administrative inconvenience. Even if there is some administrative inconvenience, this price, a small price indeed, has to be paid if at all we mean the rule of law and merit to prevail. Such preferences may be changed either from Class-II to Class-I or within a class against respective posts and that in our opinion is not going to create any administrative complications. Such practice is also in vogue in the case of the selections which are held by U.P.S.C., for Ali India Services and Central Services and we may also take note of the fact that the Government itself has lately realised unfair results of past and the wisdom has dawn though lately to amend the Rules in October, 2000, and therefore, the new Rule 9 with regard to order of preference as has been now amended now takes care of it. 30. The upshot of the aforesaid discussion is that :-
Article 16 in Constitution of India [Constitution]
Union Of India (Uoi) vs M.V.V.S. Murthy on 12 November, 1987
(vi) Union of India v. M.V.V.S. Murthy, reported in AIR 1989 SC 711. Para 5. Case relating to Civil Service (Combined) Examination. It appears that in this case the candidate who gave preference for I.A.S. only was offered I.P.S., but did not join.
State Of Bihar vs Kaushal Kishore Singh & Ors on 10 April, 1997
(vii) State of Bihar v. Kaushal Kishore Singh, reported in AIR 1997 SC 2643. In this case, Class B posts were advertised by the State Selection Board. No merit list was prepared. The selections were made on the basis of the educational qualifications required for the job and on the basis of the pay-scales available at that time. The learned Advocate General has relied upon certain observations made in Para 5 of the judgment. It is of course true that in Para 5 it has been observed that the appointment is not an indefeasible and absolute right of the candidate who had applied and opted for particular post and asking for option is only a discretionary matter and the Government is not bound to select the candidates on the basis of the option given by the candidates. But we find that this case cannot be used as an authority in support of the State Government for the simple reason that in that case no merit list was prepared and without preparing the merit list the selection was based on the basis of educational qualifications required for the job and the offer was made on the basis of the pay-scale and ultimately in that case the Supreme Court held that the appointment by pick and choose method is an arbitrary exercise of the power.
Article 309 in Constitution of India [Constitution]
Veena Gupta vs University Of Delhi on 16 September, 1993
However, Mr. Patel has submitted on behalf of the petitioners that the Supreme Court itself has observed in Para 3 of this very judgment that prima facie though it appears to be some unfair, there is no alternative apart from leaving the seat unfilled, but to offer the said seat to the wait listed candidates. It was also observed that once the academic course commences the same will have to be completed within a period of three years and if the counselling goes on continuously for a long period then it may not be possible to fulfill that condition and thereby upset the course of study itself. The Supreme Court has expressed the view that the finding recorded by the Division Bench of Delhi High Court in Dr. Veena Gupta's case and High Court of Punjab and Haryana in Anil Jain's case is in accordance with the reasons and stands the test of rationality. Once the option is exercised by the candidate on the basis of which he is allotted the subject and thereafter that candidate is allowed to participate in subsequent counselling when the seat becomes vacant, the process of counselling will be endless, and as apprehended by the High Court, it may not be possible to complete the academic course within the stipulated period. Mr. Patel has submitted that in the case before the Supreme Court the time was essence of the matter whereas that factor is not available in the present case. The Government itself had taken long time even in making appointments and if we have reached the year 2001, it is not because of any fault on the part of the petitioners but because of the pendency of this matter before the Court and that should not come in the way of the candidates of higher merit for getting relief.
Sandhya Kabra And Ors. vs University Of Delhi on 7 September, 1992
(i) Full Bench decision of Delhi High Court in the case of Sandhya Kabra v. University of Delhi, reported in AIR 1993 Del. 40 relating to admission of the students in the P. G. Medical Course wherein the earlier decision of the Supreme Court reported in AIR 1971 SC 1439 was also considered.
Rajiv Mittal vs Maharshi Dayanand University & Ors on 28 November, 1997
(v) Rajiv Mittal v. Maharshi Dayanand University, reported in AIR 1998 SC 680, which is relating to the case of the students tor admission in the M.B.B.S. Course.
Naveen Jamval And Others vs Arvind Kumar Kankane And Others on 11 February, 2000
A purposive effort was also made to distinguish the case of Arvind Kumar Kenkane (supra) by stating that so far as the admissions to P. G. Medical Colleges are concerned, the students get the opportunity to change the option after declaration of the merit list and second stage is at the time of actual allotment of the preference for the purpose of making choice of subject and college and the third stage is when vacancies become available subsequently after the allotment. It was also submitted that in service matters also the fortuitous circumstances or freak case may not be material but the intent of the working of the rule has to be seen. The availability of a vacancy on account of non-joining of any candidate has to be utilised by the Government on a proper criteria of merit. It was also submitted that in education matters the Supreme Court itself has stated that there is no alternative because the course had already commenced and if the preference is allowed to be changed subsequently it may disturb the whole academic functioning. In any view of the matter, the Supreme Court has held that the process was unfair but in absence of any other alternative, the allotment of the subjects, as has been made, had to be accepted. It has been submitted that such is not the fact situation in the present case. There is no question of commencement or completion of the course or disturbing the academic functioning and even if the preferences are not allowed to be changed after allotment on the request of the concerned candidate in terms of Rule 9, the Government itself must discharge its obligation and the duty to adhere to the merit by utilising the subsequent vacancies on the basis of the merit alone, as it is not going to affect the working. It has further been submitted that the ground of the administrative exigency, as has been argued before this Court, is only a pretext to deny what is otherwise due to the petitioners. It is also pointed out that the Government itself has subsequently amended the rules during the pendency of these petitions for the same reasons as advanced by the petition and such rules have been placed on record by the Government itself and the said Rules made under the proviso to Article 309 of the Constitution of India called as Gujarat Civil Service (Class-I and Class-11) Competitive Examination Rules, 2000 have been notified on 19-10-2000 and the new Rule 9 thereunder with regard to order of preference lends a support to the arguments made on behalf of the petitioners. It was also submitted mat the U.P.S.C.-, itself follows such a procedure and change of preference is permissible there also.