कटऑफ सम्बन्धित ऑर्डर
Court No. - 23 Case :- SERVICE SINGLE No. - 20404 of 2018 Petitioner :- Diwakar Singh Respondent :- State Of U.P. Thru. Spl. Secy. Basic Edu. And Ors. Counsel for Petitioner :- Himanshu Raghave,Durga Prasad Shukla Counsel for Respondent :- C.S.C.,Ajay Kumar Hon'ble Irshad Ali,J .
Heard
learned counsel for the petitioner. Notice on behalf of respondent
nos.1, 2, 3 & 5 has been accepted by the office of learned Chief
Standing Counsel, whereas notice on behalf of respondent no.4 has been
accepted by Sri Ajay Kumar. Contention of the petitioner is that the
State Government, vide notification dated 09.11.2017, made amendment in
the U.P Basic Education (Teachers) Service Rules, 1981. Under the
aforesaid amendment, procedure under Rule 14 for recruitment of
Assistant Teachers procedure has been prescribed. The State Government
issued a notification on 09.01.2018, to fill up 68500 posts of Assistant
Teachers with certain guidelines and norms for the recruitment of the
teachers under the general category as well as under the reserved
category. Thereafter, another government order was issued on 17.1.2018,
whereby the Examination Regulatory Authority was entrusted power to
conduct the recruitment examination by issuing advertisement in the
newspaper inviting applications from the eligible and qualified
candidates specifying the last date for submission of application form
as 17.05.2018. In pursuance thereto an advertisement has been issued in
the daily newspaper on 23.01.2018 inviting online applications which was
followed by another advertisement (Annexure-9 to the writ petition),
wherein last date for submission of application form has been fixed as
17.05.2018 and the date of examination was fixed as 27.05.2018. After
initiation of selection proceeding by issuing advertisement, the State
Government has issued the impugned government order dated 21.05.2018,
whereby certain norms in regard to the selection already initiated has
been changed. Assailing the government order dated 21.05.2018, learned
counsel for the petitioner submitted that once the selection process has
been initiated byissuing an advertisement in accordance with the
existing rules applicable to the said selection, the same cannot be
changed by issuing a government order or by making amendment under the
rules. His next submission is that amended rules and government order
issued modifying certain conditions shall be applicable to the next
selection and not to the selection which has already been initiated. In
support of his submission, he relied upon a judgment of the Hon'ble
Supreme Court in the case of Gopal Krushna Rath vs. M.A.A. Baig and
others reported in (1999) 1 SCC 544. He also relied upon another
judgment of the Hon'ble Supreme Court in the case of K. Manjushree vs.
State of Andhra Pradesh and another reported in (2008) 3 SCC 512, the
question before Hon'be Supreme Court was that whether correct criterion
was adopted in making recruitment for posts of District and Session
Judges (Grade-II) which were governed by the Andhra Pradesh State Higher
Judicial Service Rules, 1958. The Rules prescribed quota for direct
recruitment, educational qualifications, etc. but did not prescribe any
criterion for selection. There were however resolutions dated 24.07.2001
and 21.02.2002 which prescribed criteria for selection of candidates.
According to prescribed criterion, there were 75 marks for written
examination and 25 for interview. It was decided vide Resolution dated
30.11.2004 that exiting criterion would be followed but while holding
written examination, 100 marks were prescribed instead of 75. The High
Court (on administrative side) made two changes after written
examination and interviews were over. First, marks for written
examination were proportionately scaled down so as to maintain ratio
between written examination and interview as 3: 1 (75:25) instead of
4:1(100:25). This was done because original criterion prescribed 75:25
ratio. Secondly, it introduced minimum qualifying marks for interview
also. This resulted in reshuffling of selection list. The Supreme Court
considered effect of the resolutions and concluded that the Resolutions
dated 24.7.2001 and 21.2.2002 provided qualifying marks for written
examination only but not for interview. Per contra, learned standing
counsel appearing on behalf of the respondents submitted that by means
of the government order dated 21.05.2018 although there are certain
amendments under the guidelines but selection process as per Rule 14 has
not been initiated till date, therefore, by issuing government order
lying down certain otherprovisions than the criteria laiddown under the
advertisement will not render the selection process to be illegal. Next
submission of learned standing counsel is that due to issuance of
government order modifying the qualification prescribed, no prejudice
will be caused to the petitioner, therefore, no interference is required
under Article 266 of the Constitution of India. Having heard learned
counsel for the parties and perused the material on record. On perusal
of the government order dated 09.01.2018, it is apparent on the face of
record that the State Government notified the recruitment process to be
initiated against 68500 posts of Assistant Teachers by fixing criteria
therein to make selection in pursuance to the advertisement issued as
per Annexure-9 to the writ petition which was subsequently followed by
fixing cut off date for submission of application form as well as
displaying the date of examination. The impugned government order dated
21.05.2018 has been issued modifying the certain criteria and norms
fixed in the advertisement and the guidelines issued at earlier point of
time on 09.01.2018. The Hon'ble Supreme Court in the case of Gopal
Krushna Rath vs. M.A.A. Baig and others (supra) has held in paragraph 6
of the judgement which is quoted herein below : "6. When the selection
process has actually commenced and the last date for inviting
applications is over, any subsequent change in the requirement regarding
qualifications by the University Grants Commission will not affect the
process of selection which has already commenced. Otherwise it would
involve issuing a fresh advertisement with the new qualifications. In
the case of P. Mahendran v. State of Karnataka this Court has observed:
It is well settled rule of construction that every statute or statutory
rule is prospective unless it is expressly or by necessary implication
made to have retrospective effect. The Court further observed that:
Since the amending rules were not retrospective, it could not adversely
affect the right of those candidates who were qualified for selection
and appointment on the date they applied for the post, moverover, as the
process of selection had already commenced when the amending Rules came
into fores, the amended Rules could not affect the existing rights of
those candidates who were being considered for selection as they
possessed the requisite qualifications prescribed by the Rules before
its amendment." The Hon'ble Supreme Court after considering the
aforesaid aspect of the matter has held in the case K. Manjushree vs.
State of Andhra Pradesh and another in paragraph 25 of the judgment
which is quoted hereinbelow : "25. When the Administrative Committee
placed the merit lists and Selection List before Full Court, apparently
objections were raised on two grounds. One related to the failure to
provide the minimum of 50%, 40% and 35% marks for interviews, on the
interpretation of resolution dated 30.11.2004 read with earlier
resolutions dated 24.7.2001 and 21.2.2002. The second objection was that
even though the Administrative Committee had resolved that the marks
for written examination would be 75 and interview would be 25, at the
time of tabulating the marks, the marks secured (out of 100 marks) in
the written examination had been taken into account without scaling it
down with reference to a maximum of 75 marks. The Full Court therefore,
appointed a Sub-Committee of two Judges to examine the matter and
prepare a fresh merit list and selection list. The Sub-Committee
examined the matter and submitted a revised merit list by incorporating
two changes. Firstly, while tabulating the marks, it scaled down the
marks secured by the candidates in the written examination with
reference to a maximum of 100 marks, in proportion to a maximum of 75
marks so that the final marks were with reference to a base of 75 marks
for written examination and 25 marks for interview as resolved on
30.11.2004. Secondly, it applied the minimum percentage of 50%, 40% and
35% for OC, BC, SC/ST even in regard to interviews and consequently,
eliminated those who secured less than the minimum in the interview from
the process of selection. The final selection list was prepared with
reference to the fresh merit list prepared by incorporating the said two
changes. " The Hon'be Supreme Court has decided the issue that once the
selection proceeding initiated in pursuance to an advertisement issued
by the department than what will be the date for consideration of the
date for initiation of recruitment process. The Hon'ble Supreme Court
held that once the advertisement has been issued inviting application on
the basis of the existing rule the date of issuance of advertisement
inviting application shall be the date of initiation of selection
proceeding and the selection shall be made in pursuance thereof as per
the existing rule. Any amendment made subsequent to the issuance of
selection process will not affect the selection process already started,
therefore, the issuance of government order dated 21.05.2018 will not
affect the selection proceeding initiated in pursuance to the government
order inasmuch as by issuance of advertisement inviting application. In
view of the proposition of law settled by the Hon'ble Supreme Court
that once the game started by initiating selection proceedings rules of
the game cannot be changed, therefore, matter requires consideration.Court No. - 23 Case :- SERVICE SINGLE No. - 20404 of 2018 Petitioner :- Diwakar Singh Respondent :- State Of U.P. Thru. Spl. Secy. Basic Edu. And Ors. Counsel for Petitioner :- Himanshu Raghave,Durga Prasad Shukla Counsel for Respondent :- C.S.C.,Ajay Kumar Hon'ble Irshad Ali,J .
Learned counsel for the respondents prays for and is granted 03 weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within 02 week thereafter. List this petition after the expiry of the aforesaid period. Until further orders of this Court, the respondents are restrained to implement the guidelines issued under the Government Order dated 21.5.2018 in the selection proceedings initiated in pursuance to the Government Order dated 9.1.2018 and advertisement issued in pursuance thereto (Annexure-9 to the writ petition). Order Date: 24.7.2018 m.a.
