Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 1891 (RAJ)

Shankar Lal v. The Director, Primary Education

2002-11-27

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 18.6.2002 with a prayer that by an appropriate writ, order or direction, the respondents may be directed to appoint the petitioner as Para Teacher Physical Education in the Gram Panchayat Galiwas Pachpadriya as he secured first merit position in the select panel dated 20.5.2002 and the respondents may further be directed to allow the petitioner for training immediately in pursuance to petitioner's merit position secured in the select list dated 20.5.2002. 2. The facts as put forward by the petitioner are as under: (i) That the petitioner belongs to Scheduled Caste and possesses Bachelor's degree in Arts and Bachelor's degree in Physical Education. (ii) That in pursuance of the advertisement dated 5.5.2002 (Annex. 1) for the post of Para Teacher Physical Education in the Gram Panchayat Galiawas Pachpadriya under Rohit Panchayat Samiti, the petitioner applied for the same. The requirement for the post of Para Teacher Physical Education in respect of educational qualification, age, selection procedure, procedure for preparation of merit list was circulated vide circular dated 30.4.2001 (Annex. 2) issued by the Secretary, Panchayati Raj Department, Jaipur. (iii) That the Selection Committee after receipt of the application forms from the eligible candidates prepared a select panel dated 20.5.2002 as per the criteria provided under the Circular 30.4.2001 (Annex. 2) in the select list dated 20.5.2002, the petitioner was placed at serial No. 1 as he secured 45.67% marks. (iv) That the further case of the petitioner is that the advertised post was reserved for Scheduled Tribe, but in view of non-availability of candidates belonging to Scheduled Tribe, select panel was prepared from amongst the candidates belonging to Scheduled Caste, OBC and General Category in preferential order. (v) That the petitioner was verbally informed about his selection as Para Teacher, Physical Education in the Gram Panchayat Galiawas under Panchayat Samiti, Rohit. (vi) That the further case of the petitioner is that since he secured first position in the select list dated 20.5.2002, therefore, a right accrued in favour of the petitioner for appointment as Para Teacher Physical Education but the respondents arbitrarily ignored the case of the petitioner and sent the respondent No. 4 for training. This action on the part of the respondents has been challenged in this writ petition. 3. This action on the part of the respondents has been challenged in this writ petition. 3. In this writ petition following submissions have been made by the learned Counsel for the petitioner: (i) That the action of the respondents by which the candidature of the petitioner was ignored violates the constitutional safeguard provided under Articles 14, 16, 21 & 300A of the Constitution of India. (ii) That the Selection Committee became functus officio after preparation of the final panel dated 20.5.2002 and thus, the act of the respondents in sending respondent No. 4 (Champa Lal) for training is nothing but glaring example of misuse of administrative power and hence the writ petition be allowed. 4. Reply to the writ petition was filed by the respondent No. 4 and it has been contended by the respondent No. 4 that the advertisement dated 5.5.2002 (Annex. 1) was issued on the basis of circular dated 30.4.2001 (Annex. 2) and the Circular dated 30.4.2001 (Annex. 2) stood superseded by the Circular dated 14.5.2002 (Annex. R/1) issued by the Director, Primary Education, Bikaner (respondent No. 1). In the circular dated 14.5.2002 (Annex. R/1) issued by the respondent No. 1 (Director, Primary Education, Bikaner) it has been made clear that any candidate having certificate of National Sports Competition will be given 15 marks, while in old Circular dated 30.4.2001 (Annex. 2) only two marks were awarded for the candidate having Certificate of National Sports Competition and thus, since the respondent No. 4 was having certificate of National Sports Competition, therefore he was awarded 15 marks and thus, he secured 57.81% marks which is more than the marks obtained by the petitioner and thus, he was rightly sent for the training. Hence, the writ petition be dismissed. 5. I have heard the learned Counsel for the parties and perused the record. 6. It is admitted position of the case that the advertisement (Annex. 1) by which the post of Para Teacher Physical Education was advertised is dated 5.5.2002 and there is also no dispute that in the advertisement dated 5.5.2002 (Annex. 1), there is mention of circular dated 30.4.2001 (Annex. 2) and appointments were to be made as per the conditions mentioned in the Circular dated 30.4.2001. There is also no dispute on the point that in the select list dated 20.5.2002, the name of the petitioner was placed at Serial No. 1. 1), there is mention of circular dated 30.4.2001 (Annex. 2) and appointments were to be made as per the conditions mentioned in the Circular dated 30.4.2001. There is also no dispute on the point that in the select list dated 20.5.2002, the name of the petitioner was placed at Serial No. 1. There is also no dispute on the point that the circular (Annex. R/1) was issued by the respondent No. 1 (Director, Primary Education) on 14.5.2002 meaning thereby before the select list was prepared on 20.5.2002. There is also no dispute on the point that in the circular dated 30.4.2001 (Annex. 2) the marks which were to be awarded to the candidates having Certificate of National Sports Competition were 2, while in the Circular dated 14.5.2002 (Annex. R/1), 15 marks were awarded for the certificate of National Sports Competition. 7. The question which arises for consideration is whether in the facts and circumstances of the present case, denial of appointment to the petitioner on the post of Para Teacher, Physical Education by placing reliance on Circular dated 14.5.2002 (Annex. R/1) and superseding the Circular dated 30.4.2001 (Annex. 2) is correct one or not. 8. In my opinion, the present writ petition deserves to be allowed because of the following reasons: (i) The Hon'ble Supreme Court in the case of P. Mahendran and Ors. v. State of Karnataka and Ors., 1990 (1) SCC 411 has observed as under: Every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights, the rule must be held to be prospective. If a rule is expressed in a language which is fairly capable of either interpretation if ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. Thus from the above wordings of the Hon'ble Supreme Court, it is crystal clear that every statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. (ii) a perusal of circular dated 14.5.2002 (Annex. R-1) shows that it was admitted by the respondents while issuing circular dated 14.5.2002 (Annex. Thus from the above wordings of the Hon'ble Supreme Court, it is crystal clear that every statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. (ii) a perusal of circular dated 14.5.2002 (Annex. R-1) shows that it was admitted by the respondents while issuing circular dated 14.5.2002 (Annex. R/1) that process of selecting para teacher was to be done in accordance with the provisions contained in the Circular dated 30.4.2001 (Annex. 2), but some amendments have been made through Circular dated 14.5.2002 (Annex. R/1). (iii) The Hon'ble Supreme Court in the case of Gopal Krushna Rath v. M.A.A. Baig, (dead)LRs., 1999 (1) SCC 544 while dealing with recruitment process has observed as under: "When the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in 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 new qualifications. In the present case, the appellant possessed necessary qualifications as advertised on the last date of receiving applications. These qualifications were in accordance with the rules/guidelines then in force. Th appellant obtained higher marks than the original respondent 1 (since deceased) at the selection. There is no challenge to the process of selection, nor is there any allegation of malafide in the process of selection. The appellant's selection is, therefore, upheld. (iv) The above authority of the Hon'ble Supreme Court clearly lays down the law that when the selection process has commenced, subsequent amendment would not affect the process of selection which has already commenced. In the present case in view of advertisement dated 5.5.2002 (Annex. 1), the selection process has started with the publication of advertisement dated 5.5.2002 (Annex. 1) in the Rajasthan Patrika and that selection process was to be done in accordance with the Circular dated 30.4.2001 (Annex. 2) meaning thereby the selection process in the present case actually commenced on 5.5.2002 and therefore, issuance of circular dated 14.5.2002 (Annex. R/1) by the Director, Primary Education (respondent No. 1) would have no affect on the selection process which was started on the publication of advertisement dated 5.5.2002 (Annex. 1) in the Rajasthan Patrika. When this being the position since on the basis of criteria found in the circular dated 30.4.2001 (Annex. R/1) by the Director, Primary Education (respondent No. 1) would have no affect on the selection process which was started on the publication of advertisement dated 5.5.2002 (Annex. 1) in the Rajasthan Patrika. When this being the position since on the basis of criteria found in the circular dated 30.4.2001 (Annex. 2), the petitioner was placed at Serial No. 1 above respondent No. 4, therefore, sending the respondent No. 4 for training on the basis of Circular dated 14.5.2002 (Annex. R/1) issued by the Director, Primary Education (respondent No. 1) against the preferential claim of the petitioner cannot be justified. By denying appointment to the petitioner after he was placed in the merit list at serial No. 1, the legal right of the petitioner has been infringed and hence, the petitioner is entitled to the relief sought for and this writ petition deserves to be allowed. Accordingly, the present writ petition is allowed and the respondents are directed to appoint the petitioner as Para Teacher Physical Education in the Gram Panchayat, Galiawas Pachpadriya under Rohit Panchayat Samiti and the respondents are further directed to allow the petitioner for training in pursuance of select list prepared by the respondents on 20.5.2002. On his appointment, the petitioner would not be entitled to the emoluments of the post for the past.Cost made easy.Petition allowed. *******