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2003 DIGILAW 943 (JHR)

Radhika Sharma v. State Of Jharkhand

2003-08-04

P.K.BALASUBRAMANYAN, R.K.MERATHIA

body2003
JUDGMENT 1. Pursuant to Annexure 1 advertisement dated 28.8.2002, the petitioner applied for appearing in the Primary Trained Teachers Appointment Examination scheduled to be held in the State of Jharkhand. In column 2 there was no prescription of an upper age limit for appearing in the examination. The petitioner duly applied. The advertisement did not fix a date for the examination. It only indicated that the date of the examination will be announced later. But before any date could be announced for holding the examination, the non-prescription of an upper age limit and the qualification prescribed for selection were challenged before this Court in a series of writ petitions. On 3.12.2002, a division bench of this Court, to which one of us is party (R.K. Merathia, J.) struck down Rules 4(d) and 8(d) of Jharkhand Primary Schools Appointment Rules, 2002. Rule 4(d) fixed no upper age limit for candidates to appear in the ensuing examination alone and Rule 8(d) provided a qualification of middle standard level for the examination. This Court struck down those provisions. In paragraph 12 of the judgment reported as Satya Narayan Pandey and Ors. v. State of Jharkhand and Ors., 2003 (1) JLJR 322 , this Court held that "non-prescription of upper age limit and the fixation of the middle- level examination knowledge expected of candidates are arbitrary, suffering from non-application of mind and not based on intelligible differentia or any nexus sought to be achieved. We also hold and declare that these two stipulations are against public interest. We, therefore, strike down, both the aforesaid two stipulations in 2002 Rules, but leave open to the State in the light of the aforesaid observations to suitably recast the same in best public interest" 2. The State of Jharkhand accepted this judgment. It issued a fresh notification amending Rules 4(d) and 8(d). By the amended Rule 4(d), an upper age limit was fixed with a proviso for one time relaxation up to five years. Under Rule 8(d) the standard of examination was prescribed as Primary Teachers Training Examination, thus enhancing the standard of the examination. Annexure-A, public notice was issued for information of the applicants who had already submitted their applications pursuant to Annexure-1 advertisement. 3. We are concerned in this case with age and qualification. Unfortunately for the petitioner, she was over aged by five days, as per the amended Rule 4(d). Annexure-A, public notice was issued for information of the applicants who had already submitted their applications pursuant to Annexure-1 advertisement. 3. We are concerned in this case with age and qualification. Unfortunately for the petitioner, she was over aged by five days, as per the amended Rule 4(d). Therefore, she was not issued the admit card for appearing in the examination. She filed the writ petition in this Court on 2.6.2003. 4. The examination, as per the amended rule was to be held on 27.5.2003. The petitioner got intimation of the reason for rejection of her application on 23.5.2003 when an announcement in that behalf was made, according to her, over the loudspeaker. But on 27.5.2003, the examination was cancelled in some centres. Therefore, though the petitioner did not approach this Court with the present writ petition before 27.5.2003, taking advantage of the postponement of the examination in certain centres, she approached this Court with the present writ petition on 2.6.2003 seeking the issue of a writ of mandamus, directing the authorities to issue her an admit card and to permit her to appear for the examination which was to be held in some centres. On 12.6.2003, the writ petition came up before the learned Single Judge. The learned Single Judge referred the writ petition to a Division Bench since the connected matters had already been referred to a Division Bench. Thus the petitioner could not get any interim direction in the writ petition so as to take the examination, at least provisionally. 5. The learned Government Counsel submitted that the writ petition has become infructuous since no relief can be granted to the petitioner in view of the fact that the postponed examination in some centres has also been held. Counsel for the petitioner sought to meet this contention by pointing out that the writ petition was filed before the examination was held on 12.6.2003 and consequently, the factum of holding of the examination after the writ petition was filed, cannot prejudice the petitioner. For the purpose of this case, we do not think it necessary to go into this controversy or to take a final decision thereon. We, therefore, are not pursuing this aspect further. 6. Going by the amended Rule 4(d), the petitioner was over aged. She could not therefore normally appear in the examination. For the purpose of this case, we do not think it necessary to go into this controversy or to take a final decision thereon. We, therefore, are not pursuing this aspect further. 6. Going by the amended Rule 4(d), the petitioner was over aged. She could not therefore normally appear in the examination. But learned counsel for the petitioner contended that since the petitioner had applied under the earlier advertisement Annexure 1 which did not prescribe an age limit for appearing in the examination and the petitioner was governed by the conditions that then existed, the petitioner was entitled to appear in the examination and entitled to an appointment if she qualified in that examination. Counsel relied on the decision of the Supreme Court in N.T. Devin Katti and Ors. v. Karnataka Public Service Commission and Ors., (1990) 3 SCC 157 , wherein, their lordships held that generally, a candidate has a right to be considered in accordance with the terms and conditions of the advertisement, as his right crystallizes on the day of its publication. However, he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event, the selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. Counsel submitted that a look at Annexure A the notification relating to the amendment would clearly show that it is prospective. There was nothing to show that it was to be retrospective. The earlier advertisement Annexure 1 could not be faulted because under Article 309 of the Constitution of India, there was no obligation on the State as such to prescribe an age limit. Learned counsel submitted that the Division Bench of this Court had not struck down the rule that was available when Annexure 1 advertisement was issued on the ground that it violated any of the provisions of Part III of Constitution of India. It cannot, therefore, be taken that the said rule got effaced from the statute book from its very inception. In that context, when the amended rule came into force only midstream, the petitioner could not be affected and the right to appear could not be affected. 7. It cannot, therefore, be taken that the said rule got effaced from the statute book from its very inception. In that context, when the amended rule came into force only midstream, the petitioner could not be affected and the right to appear could not be affected. 7. On going through the decision of the Division Bench striking down Rule 4(d) of the rules, we are not in a position to accept the submission of leaned counsel that the striking down was not for violation of Part III of the Constitution of India. We have quoted the relevant portion of that judgment earlier. According to us, it is clear that Rules 4(d) and Rule 8(d) were struck down on the ground that they violated Article 14 of the Constitution. Since the striking down was for offending part III of a Constitution of India, the argument of learned counsel for the petitioner in that behalf lacks foundation. In other words, the provision in Rule 4(d) relied on by the petitioner became non est being found unconstitutional for violation of Article 14 of the Constitution of India. Even otherwise, after that advertisement, the rule was struck down by the High Court and pursuant thereto, an amended notification or a fresh notice was given to the applicants after bringing the rules in conformity with what has been directed by the High Court. No person can claim that he has got right to be considered on the basis of the original notification which was based on an unconstitutional rule, as declared by the High Court. In other words the effect of accepting the argument of learned counsel for the petitioner would be to ignore the binding decision of the High Court and to proceed as if it has no effect and as if nothing has happened to interfere with the proposed examination, as per Annexure-1 notification. The acceptance of such an argument is impermissible. We have, therefore, no hesitation in rejecting the argument. 8. As far as the decision of the Supreme Court relied on by the learned counsel is concerned, clearly, in the present circumstances, the principle of that decision cannot be applied. First of all, here, the earlier rule on which the claim of the petitioner is based was found to be unconstitutional by this Court. 8. As far as the decision of the Supreme Court relied on by the learned counsel is concerned, clearly, in the present circumstances, the principle of that decision cannot be applied. First of all, here, the earlier rule on which the claim of the petitioner is based was found to be unconstitutional by this Court. Secondly, only an advertisement had been issued and not even a day for holding the examination had been prescribed in Annexure-1 advertisement. By the time the date of examination could be fixed, this Court had struck down Rule 4(d) with which we are concerned. That led to the Government amending the relevant rule and notifying all those applicants who had applied pursuant to Annexure 1 of the rule brought in pursuant to the decision of the High Court. Thus the candidates were clearly informed that they would be governed by the amended rule while considering their eligibility to appear in the scheduled examination. Of course, strictly speaking, the State should have called for fresh applications on the basis of a fresh advertisement. Probably, the State thought that candidates who had already applied, need not be asked to submit fresh applications all over again. Based on that alone, it cannot be contended that the petitioner is entitled to ignore the qualification prescribed by Rule 4(d) by the amendment pursuant to the decision of the High Court. In this case, the amended rule is applicable for the examination conducted pursuant to Annexure 1 notification as amended by Annexure-A further notification. Hence the ratio of the decision of the Supreme Court relied on does not apply. 9. Thus on a consideration the relevant aspects, we are satisfied that the petitioner is not entitled to any relief in this writ petition. 10. The writ petition is, therefore, dismissed.