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Madhya Pradesh High Court · body

2008 DIGILAW 1166 (MP)

SANJAY SINGH BAGHEL v. STATE OF M P

2008-09-22

RAJENDRA MENON

body2008
Judgment ( 1. ) AS questions involved in all these petitions are identical, they are being disposed of by this common order. For the sake of convenience pleadings and documents available in Writ Petition Nos. 2249/2008 (S) and 2247/2008 (S) are referred to in the order. ( 2. ) PETITIONERS were candidates who had applied for appointment on the posts of Subedar; Sub Inspector; Sub Inspector (Special Branch); Platoon Commander; and, Sub Inspector (Finger Print, Photo and Radio); in the pay scale of Rs. 5000-150-8000 and Rs. 4500-125-7000 respectively, in pursuance to an advertisement issued by the State Government in the year 2002, vide Annexure R/3. At that point of time, in all 167 posts were advertised. The recruitment to the said posts were to be held in accordance to the Madhya Pradesh Police Executive (Non-Gazetted) Service Recruitment Rules, 1997 (hereinafter referred to as rules of 1997 ). As per the Recruitment Rules, the recruitment was to be conducted in two stages. The first Stage as per Rule 2 (d) was to consist of measurement of physical standard followed by written examination; and, the second Stage as per rule 2 (k) consisted of physical proficiency test followed by interview. The Method of Recruitment and the procedure for selection as per these stages are contemplated under Rule 6 and sub-rule (8) thereof. The conditions of eligibility for recruitment are contained in Rule 8, wherein the age criteria is fixed. According to the aforesaid Rule, the candidates should have attained the age of 18 years and should not be beyond the age of 28 years as on the first day of January next following the date of commencement of the examination. Sub-rule (b) onwards of rule 8 provides for relaxation in age to various categories of employees; these included relaxation for candidates belonging to the Scheduled Caste, Scheduled tribe, Other Backward Caste categories; Employees of Madhya Pradesh" State Government, who have been in service; employees temporary in nature whose services have been retrenched; Ex-servicemen, so also Widows, Destitutes or divorced Women; Persons who have undergone Family Welfare Programme operation and are green Card Holders and various other categories of Employees, like those who have been awarded vikram Award; and, who were employees of various State Corporations and Boards. ( 3. ( 3. ) THE first Stage of Examination in pursuance to advertisement (Annexure P/3) commenced, the physical measurement examination was over and just before the written examinations were to be held, challenge to the selection process was made by various persons, by filing applications under section 19 of the administrative Tribunal Act, 1985 before the State Administrative Tribunal. These applications were registered and the proceedings for selection were stayed in the year 2002. Thereafter, due to winding up of the State Administrative Tribunal, matters were transferred to this Court and vide order-dated 19. 1. 2005 the transferred case registered as writ petition was allowed and the advertisement issued vide Annexure R/3 was quashed. A copy of the order passed in one of the writ petitions being Writ Petition No. 19668/2003 is available in the record of Writ petition No. 2249/2008 (S), as Annexure R/1 and the order-dated 19. 1. 2005 reads as under: "ms. Aparna Singh, learned counsel for the petitioner. Shri Ashok Agrawal, learned Government Advocate, for the respondents. It has been contended by the learned counsel for the parties that the present advertisement Annexure A-1 be quashed and the respondents may be directed to issue fresh advertisement following the reservation policy. The prayer is accepted. Accordingly, advertisement Annexure A-1 is quashed and the respondents are hereby directed to issue fresh advertisement by adopting the reservation policy. C. C as per rules. " From a perusal of the aforesaid order4 it is seen that both the parties agreed that the advertisement (Annexure A/1) be quashed and a fresh advertisement following the reservation policy be issued. Accordingly, this prayer was accepted and the petition was allowed, respondents were directed to issue fresh advertisements by conducting the Policy of Reservation. After 19. 1. 2005, no process was held for adopting the selection process and it was only in March 2008 that a fresh advertisement (Annexure P/5) was issued, this advertisement-contemplated appointment to the same posts, which were advertised, vide Annexure r/3, in the year 2002. However, instead of 167 posts, the total posts now advertised were 319 in various categories. The power to conduct the recruitment process in pursuance to the advertisement is conferred upon the M. P. State Professional examination Board, respondent No. 3. However, instead of 167 posts, the total posts now advertised were 319 in various categories. The power to conduct the recruitment process in pursuance to the advertisement is conferred upon the M. P. State Professional examination Board, respondent No. 3. Grievance of the petitioners now in these petitions are that in the advertisement for process of selection initiated for the m. P. Police Department Recruitment Examination 2007 (Annexure P/5), the age limit is fixed at 28 years as on 1. 1. 2008 and petitioners, who were eligible when the advertisement was issued in the year 2002 for the same selection/recruitment process are now ineligible, having crossed the upper age limit prescribed in the advertisement (Annexure P/5 ). It is the case of the petitioners that if the selection process initiated in the year 2002 was completed they would have participated in the selection process, but because of the stay granted by the State Administrative tribunal and subsequent cancellation of the selection process, their right to participate in the selection process is being taken away. Interalia contending that the recruitment now initiated vide Annexure P/5 is a continuation of the earlier recruitment and petitioners have a right to participate in the fresh recruitment by granting age relaxation, interference into the matter is sought for. ( 4. ) SHRI Aditya Adhikari, learned counsel for the petitioner, taking me through the various provisions as contained in the Rules of 1997 and the principles laid down in the case of Pitta Naveen Kumar and others Vs. Raja Narasaiah Zangiti and others, 2006 10 SCC 261 ; Madan Mohan Sharma and another Vs. State of Rajasthan and others, 2008 1 SCC Lands 885; and, in the case of Malik Mazhar Sultan and another Vs. U. P. Public Service Commission and Others, 2006 9 SCC 507 , argued that petitioners were eligible to appear and participate in the examination in view of the fact that recruitment in the year 2002 even though had commenced, but was not completed and it is now being conducted again in the year 2007 for the same vacancies that were notified in the year 2002 i. e. . 167 posts and, therefore, petitioners have a right to appear and participate in the process of selection, by claiming age relaxation as their right to appear and participate in the earlier examination was taken away for no fault on their part, but due to lapses on the part of the State Government in not issuing the advertisement properly, interference into the matter is sought for. ( 5. ) MS. Malti Dadariya, Shri B. D. Singh, Shri Rahul Rawat and Shri Sanjeev Singh, learned counsel appearing for some of the petitioners, inviting my attention to Annexure P/7, filed in Writ Petition No. 2247/2008 (S), argued that in an examination conducted by the MP Public Service Commission known as the MP Civil Services Examination, 2003, certain age relaxations were granted to candidates who were eligible in the MP Civil Services Examination, 2001, in view of certain Circulars issued by the State Government, it is argued that in the case of the present petitioners also, similar benefit should be granted and all the petitioners, who were eligible to appear in the examination and recruitment process which was initiated in the year 2002, should be granted age relaxation as was done in the case of M. P. Civil Services Examination 2001. ( 6. ) SHRI Aditya Adhikari and Ms. Malti Dadariya, learned counsel for the petitioners, argued that if the recruitment process for 167 posts that was initiated in the year 2002 was continued, petitioners would have a right to participate in the process of selection and by adopting a fresh recruitment process, by issuing fresh advertisement, prescribing conditions which are detrimental to the interest of the petitioners, their right to participate in the examination and process of selection is being curtailed, which is nothing but a malafide and arbitrary exercise of power by the State Government. Accordingly, submitting that petitioners have a right to participate in the process of selection for the posts, which were advertised in the year 2002, all the petitioners seek for interference into the matter. ( 7. Accordingly, submitting that petitioners have a right to participate in the process of selection for the posts, which were advertised in the year 2002, all the petitioners seek for interference into the matter. ( 7. ) SHRI Vinod Mehta, learned Government Advocate, refutes the aforesaid and submits that once the earlier advertisement (Annexure R/3) issued in the year 2002 was quashed by this Court, all the proceedings that were held in pursuance to the said advertisement came to an end; the present advertisement is a fresh recruitment process being conducted in accordance to the Rules of 1997 and, therefore, petitioners are required to fulfil all the eligibility criteria prescribed in the statutory recruitment Rules of 1997 and as petitioners do not fulfil the age criteria laid down in Rule 8, of the said Rules, Shri Vinod Mehta argues that no case is made out for granting any relief. It is submitted by Shri Vinod Mehta, learned Government Advocate, that all the cases relied upon by Shri Aditya adhikari are distinguishable and will not apply to the facts and circumstances of the present case. It is emphasized by him that the present recruitment process is not a continuation of the earlier recruitment process, it is a process initiated afresh after quashment of the earlier recruitment process and, therefore, petitioners are required to fulfil all the criteria laid down in the recruitment rules and in absence thereof, the State has not committed any error in disallowing the petitioners from appearing in the examination. ( 8. ) SMT. Shobha Menon, learned Senior Advocate, with Shri Rahul Choubey, learned counsel for respondent No. 3, submit that once the statutory recruitment rules prescribed the upper age limit to appear in the examination, no mandamus can be issued permitting the petitioners to appear in the examination contrary to the aforesaid Rules. It is emphasized by them that the earlier advertisement was quashed by this Court and once the earlier advertisement is quashed and a fresh recruitment process is initiated by issuing fresh advertisement, all the conditions contemplated in the advertisement read alongwith the requirements of the recruitment rules are to be fulfilled by the petitioners and in the absence of the same being fulfilled, no relief can be granted to the petitioners. Placing reliance on a judgment of the Supreme Court in the case of Tirumala Tirupati Devasthanams Vs. Placing reliance on a judgment of the Supreme Court in the case of Tirumala Tirupati Devasthanams Vs. K. Jotheeswara Pillai (D) by LRs and others [ air 2007 SC 1771 ], learned counsel for respondent No. 3, submitted that in the matter of prescribing the policy and criteria for selection as per the recruitment rules, mandamus cannot be issued by this Court exercising jurisdiction in a petition under Article 226 of the Constitution, which runs contrary to the requirement of the recruitment rules. Emphasizing that respondents are conducting the recruitment process in accordance to the criteria and eligibility conditions laid down in the rules of 1997, learned counsel seeks for dismissal of this petition. ( 9. ) HAVING heard learned counsel for the parties and on a perusal of the facts that have come on record it is clear that the only dispute in this petition is as to whether petitioners are entitled to participate in the selection process now initiated in pursuance to the advertisement (Annexure P/5) and whether the claim made by them for age relaxation can be granted? ( 10. ) FOR answering the aforesaid question, it would be appropriate to consider the rights that are available to the petitioners by virtue of the earlier process initiated and which remained incomplete because of the intervention and stay order passed by State Administrative Tribunal. ( 11. ) IN the case of Pitta Naveen Kumar (supra) the principles laid in the case of N. T. Devin Katti Vs. Karnataka Public Service Commission 1990 3 SCC 157 , is followed and it is held that a candidate making an application for appointment on a post pursuant to an advertisement does not acquire any vested right of selection. However, if it is found that he is eligible and otherwise qualified in accordance with the relevant rules, he acquired a vested right of being considered for selection in accordance with the rules that were in existence. In the case of n. T. Devin Katti (supra), it has been held by the Supreme Court that a person does not have any vested right to seek selection, but a person has a right vested in nature to seek participation in a process of selection. ( 12. ) THE aforesaid principle is laid down on the basis of an earlier judgment of the Supreme Court in the case of B. N. Nagrajan Vs. ( 12. ) THE aforesaid principle is laid down on the basis of an earlier judgment of the Supreme Court in the case of B. N. Nagrajan Vs. State of Mysore 1966 AIR SC 1942. In these cases it has been so held by the Supreme Court: "11. . . Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of Various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event 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. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature. 13. In Y. V. Rangaiah v. J. Sreenivasa Rao, 1983 3 SCC 284 : AIR 1983 SC 852 similar question arose relating to recruitment by promotion. The question was whether promotion should be made in accordance with the Rules, in force on the date the vacancies occurred or in accordance with the amended Rules. The Court observed as under (para 9 of AIR): "the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub Registrar Grade 11 will be according to the new rules on the zonal basis and not on the State wise basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. " The same view was taken in P. Ganeshwar Rao v. State of Andhra Pradesh, 1988 Supp SCC 740: AIR 1988 SC 2068 . Similar view was taken in A. A. Calton v. Director of Education, 1983 3 SCC 33 . AIR 1983 SC 1143 . It is a well accepted principle of construction that a statutory rules or Government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and government orders and any amendment of the rules or the government order pending the selection should not affect the validity of the selection made by the selecting authority or the public Service Commission unless the amended rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended Rules shall be applicable to the pending selections. " (Emphasis supplied) ( 13. ) IN the case of P. Mahendran and others Vs. " (Emphasis supplied) ( 13. ) IN the case of P. Mahendran and others Vs. State of Karnataka and others 1990 1 SCC 411 , the petitioners were eligible to appear in the examination conducted by the Government of Karnataka for appointment on the post of assistant Engineers. At the relevant time when the advertisement was issued, the qualification prescribed was Diploma in Mechanical Engineering. Candidates submitted their application with Karnataka Public Service Commission, which scrutinized the application and on the basis of the qualification prescribed selection process was held. The entire selection was challenged before the High Court and interim orders were passed by the High Court staying the selection process. In the meanwhile, the recruitment rules were amended and the criteria was changed. According to the amended criteria only Graduates in Mechanical Engineer were eligible to participate in the process of selection. When the recruitment rules were amended, High Court disposed of the petition directing for conducting fresh selection as per the subsequent amended rules. While considering the aforesaid question, the Supreme Court has laid down the principle that once a selection process is initiated then any subsequent amendment to the rules of selection will not adversely affect the right of a person who is eligible to participate in the process of selection as per the criteria laid down previously prior to amendment of the recruitment rules. the principle laid down is that even though a person does not have any vested right to seek appointment or selection to a particular post, but a person has a right to seek participation in a process of selection which is initiated and if he is eligible to participate in the process of selection at a particular point of time, any change in the process of selection or the eligibility criteria subsequently will not operate to his disadvantage. ( 14. ( 14. ) EVEN though Smt. Shobha Menon, learned Senior Advocate, appearing for respondent No. 3, may be right in submitting that in the present case there is no amendment to the recruitment rules, detrimental to the interest of the petitioners, and the respondents are only insisting upon fulfillment of the criteria laid down by the present recruitment rule, this court is of the considered view that once the law laid down is that a person has a vested right to at least participate in the process of selection, the rights which accrued to the petitioners and which were available to them in the year 2002, has to be protected. Any action, which renders them ineligible to participate in the process of selection, detrimental to their interest, cannot be permitted. The entire matter has to be evaluated by this Court taking note of the fact that in the year 2002 when 167 posts were advertised, petitioners were eligible. They participated in the process of selection, the selection process was stayed in the year 2003 by the State Administrative Tribunal and after three years, the entire selection process was quashed by this Court. After 2005, no process of selection was held, but the process is now initiated in the year 2007 by issuing the advertisement. Petitioners have come out with a case that after 2002 and till issuance of the fresh advertisement no recruitment to the posts in question, have taken place. It is their specific case that 319 posts now advertised by the advertisement (Annexure P/5), includes the 167 posts for which they had submitted their candidature and for which the selection process was initiated in the year 2002. In the return filed by the State Government this fact is not refuted. It is not the case of the State Government that the 167 posts for which recruitment process were held in the year 2002 have been filled up and are not included in the 319 posts, now being advertised by the impugned advertisement (Annexure P/5 ). That being so, it is a case where the recruitment to the 167 posts, which was initiated earlier in the year 2002, are being continued again in the year 2007. That being so, it is a case where the recruitment to the 167 posts, which was initiated earlier in the year 2002, are being continued again in the year 2007. That being so, when petitioners were eligible in the year 2002 to participate in the selection process and when the Supreme Court lays down the principle that right to participate in the selection is a vested right, this right cannot be taken away by the State government by depriving the petitioners from appearing and participating in the process of selection. ( 15. ) THIS Court cannot be oblivious of the fact that if the earlier selection was not interfered with by this Court, the process of selection would have been concluded and the right of the petitioners to participate in the said selection would have been fulfilled. The said right is now being curtailed by imposing restrictions on age, as contemplated in the recruitment rule. That being so, the same principle which is applicable with regard to amendment in the recruitment rule during the process of selection can be applied in the present case also, the cause for justice, equity and the requirement of Article 14 compels this Court to take the aforesaid view. If the right of the petitioners to participate in the process of selection is not protected, it would cause serious prejudice to the petitioners, which cannot be redressed, repaired or compensated in any manner whatsoever, they would be rendered ineligible to participate in the selection, process permanently. Petitioners are not to be blamed for the unforeseen circumstances that came into existence due to institution of proceedings by certain persons. ( 16. ) RESPONDENTS, being a State, a Model Employer, should act in a manner so as to protect the rights of the petitioners, by permitting them to participate in the process of selection, by treating them to be eligible in view of the fact that the earlier examination process, which was initiated in the year 2002 remained incomplete. That apart, Rules of 1997 contemplates various provisions for granting relaxation in the age criteria. Even though under Rule 8, the minimum age limit fixed is 18 years and the maximum age limit prescribed is 28 years, but relaxation to various categories of employees have been provided. That apart, Rules of 1997 contemplates various provisions for granting relaxation in the age criteria. Even though under Rule 8, the minimum age limit fixed is 18 years and the maximum age limit prescribed is 28 years, but relaxation to various categories of employees have been provided. In the case of Scheduled caste, Scheduled Tribe and Other Backward Categories candidates, 5 years relaxation is provided; a permanent government employee is eligible to appear upto the age of 36 years. Similarly, candidates holding temporary posts have been granted exemption upto the age of 36 years. It is, therefore, clear from the Rules that for various categories of persons the upper age limit fixed is 36 years and when the service rules itself contemplates eligibility for appointment to. certain special categories of persons upto the age of 36 years, a pragmatic approach in the peculiar circumstances is required to be taken, to do complete justice and in the light of the facts that have come on record in the present case, so also considering the injustice that may fall on the petitioners if they are not permitted to appear in the examination. This Court is of the considered view that petitioners should be granted permission to appear in the examination taking note of the fact that they were eligible when the initial examination and selection process was held in the year 2002, which remained incomplete due to reasons beyond the control of all concerned. ( 17. ) CONSIDERING these circumstances, this Court is of the considered view that petitioners have a right to participate in the selection process now initiated vide advertisement (Annexure P/5 ). The said right is available to the petitioners by virtue of the right, which was existing in their favour in the year 2002, when the earlier advertisement (Annexure R/3) was issued and continues till the recruitment process is finally concluded. ( 18. ) ACCORDINGLY, finding petitioners eligible to participate in the process of selection now initiated by the advertisement (Annexure P/5), all these petitions are allowed. It has been brought to the notice of this Court that vide interim orders passed in all these petitions, petitioners have been permitted to appear in the process of selection, but their results are not to be declared till final disposal of this petition. It has been brought to the notice of this Court that vide interim orders passed in all these petitions, petitioners have been permitted to appear in the process of selection, but their results are not to be declared till final disposal of this petition. Respondents are directed to declare the results of the petitioner and if they are otherwise eligible to seek appointment treating them to have been granted relaxation in the age criteria, process their claim in accordance to the rules and grant them appointment if they are found successful in the selection process. ( 19. ) PETITIONS stand allowed and disposed of with the aforesaid, without any order so as to cost. Petition allowed.