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2010 DIGILAW 551 (JK)

Rishi Kumar Barbwa Renu Devi v. State

2010-11-04

Sunil Hali

body2010
1. In pursuance to an advertisement notification No.01 of 2009, dt. 14th of Feb’09, applications were invited by the respondent authorities for engagement of Teaching Guide under the scheme of Rehbar-e-Taleem, in Middle School, Sajwal, falling in educational zone Jourian. The petitioners in the above writ petitions along with others applied for the said post. On the recommendations of the Village Level Committee concerned, a select panel was prepared bearing No. ZEOJ/J/SSA-983 dt. 20th of April’09. In the said panel, name of Renu Devi, who is the petitioner in SWP No.2309/09, figured at SI.No.1 and that of Rishi Kumar Barbwa, who is the petitioner in connected petition, SWP No. 193/10, figured at SI. No.2. 2. The further fact is that after the aforementioned panel was prepared by the respondent authorities, a writ petition bearing SWP No. 900/09, came to be filed by the petitioner Rishi Kumar Barbwa. A plea was taken that the panel issued by the respondent authorities has not been issued keeping in view the mandate of Government Order No.288-Edu of 2009 dt. 8th of April’09. A direction was accordingly sought to respondents concerned for doing the needful accordingly and make the selection in accordance with the above Government Order. The said plea was accepted by this court and vide order dt. 29th of May’09, passed in the above writ petition, following observations were made:- "After going through the petition and considering the submissions made at the Bar, I do not feel the necessity of issuing notice to the official respondents and even the private respondent for the reason that in making selection for Rehbar-e-Taleem teacher in Middle School at village Sajwal, Government Order No. 288-Edu of 2009 dt. 8.4.2009 shall undoubtedly be adhered to." 3. It was in pursuance to the above directions issued by this court, a fresh panel was prepared, in terms of which the petitioner Rishi Kumar Barbwa, contends that he was shown to be a selected candidate for Middle School, Sajwa, under the Scheme. His grievance in the present petition is that in terms of the above select panel, he submitted his joining report before the authority concerned as a Teaching Guide in the aforementioned school but he has not been allowed to join. 4. So far as petitioner Renu Devi, who also stands impleaded as party respondent No.6 in SWP No.193/2010, in terms of order dt. 4. So far as petitioner Renu Devi, who also stands impleaded as party respondent No.6 in SWP No.193/2010, in terms of order dt. 30th of Aug’10, contends that after the issuance of the first panel dt. 20th of April’09, in which her name figured at SI.No.1, she approached the authority concerned for acting upon the said panel and issuing the engagement order in her favour, the respondent authorities did not do the needful and instead issued another panel in which the name of the said petitioner did not figure. 5. The grievance projected by the petitioner-Renu Devi is that at the time of issuance of advertisement notice dt. 14th of Feb’09, in pursuance to which the selection was made, the Government Order No.288-Edu. Of 2009 dt. 8th of April’09, was not in existence. It is contended that the advertisement notification having been issued in terms of the original Scheme as issued vide Government Order No.396-Edu of 2000 dt. 28th of April’2000, as also the Guidelines on the subject as circulated vide Government Order No.583-Edu of 2005 dt. 24th of Aug’05, which were issued in compliance to a judgment passed by a Division Bench of this court, the select panel in which her name figured at SI.No.1 i.e. dated 20th of April’09 (Annexure C), was rightly prepared keeping in view the mandate of the said scheme. It is contended that in terms of the Guidelines, referred to above, the term `Village’ as used in the original Scheme was meant to be a `revenue village’, and it was keeping in view the above clarification, issued by the respondent State, the selection was to be made strictly in accordance with the Scheme as also the above guidelines which were in existence at the time of issuance of the advertisement notification. It is, thus, contended that the second panel issued by the respondent authorities in which the name of the said petitioner has not been shown, is in violation of the Scheme, referred to above. 6. I have heard learned counsel for the parties and perused the record. 7. The only issue which requires consideration as is apparent from the pleadings of the parties is as to whether the selection in the present case is required to be made in terms of Government Order No.288-Edu of 2009 dt. 6. I have heard learned counsel for the parties and perused the record. 7. The only issue which requires consideration as is apparent from the pleadings of the parties is as to whether the selection in the present case is required to be made in terms of Government Order No.288-Edu of 2009 dt. 8th of April’09, which has been relied upon by the learned counsel for the petitioner in SWP No. 193/10, when admittedly, the said Government Order was not in existence at the time of issuance of the advertisement notice. 8. Before adverting to this issue, it would be apt to notice the aforementioned Government order. The said order reads as under: - "Government of Jammu and Kashmir Civil Secretariat Education Department Sub: - Rehbar-e-Taleem Scheme to ensure People’s participation in the management of Education at grass roots level. Government Order No.288-Edu of 2009 Dated 08.04.2009 The following explanation is added below eligibility condition No.1 laid down in Government Order No. 396 of Edu 2000 dated 28.4.2000(Rehbar-e-Taleem Scheme): - Explanation: "Village means a Revenue Village. However, where habitations in a Revenue village are scattered, a candidate belonging to a habitation, popularly known as a village, at least, one kilometer away from other habitations and having a population of more than 300 persons, shall be entitled to seek engagement as Rehbar-e-Taleem in a local school." The above explanation shall have prospective effect." A perusal of the above referred Government Order shows that the above explanation is not a clarification but a clause added to the eligibility criteria as laid in the original Scheme. It has been specifically stated in the said explanation clause that the same shall have prospective effect. 9. Under the above circumstances, the question that arises is as to whether the selection in the present case could be made taking into consideration the above explanation clause when admittedly, the same was not in existence at the time of issuance of the advertisement notice. 10. 9. Under the above circumstances, the question that arises is as to whether the selection in the present case could be made taking into consideration the above explanation clause when admittedly, the same was not in existence at the time of issuance of the advertisement notice. 10. It be seen that by applying for a particular post in terms of a advertisement notification does not give any vested right of selection to a candidate but in case, he is eligible and otherwise qualified in accordance with the existing rules and the terms and conditions as laid down in the advertisement notice, then he acquires a right of being considered for selection in accordance with those existing rules as on the date of issuance of advertisement notice. The selection process initiated in pursuance to an advertisement notice should normally be regulated by the rule or order prevailing at the time of issuance of such a notification. Any deviation from that at a later stage would be an action not in accordance with the law on the part of the recruiting authority. The subsequent amendment in the existing rules or regulations will not affect a pending selection process. Reliance in this regard can be placed on a judgment of the Apex Court reported as (1990)3 SCC 157 , N.T. Devin Katti and others v. Karnataka Public Service Commission and others. What has been observed in para 11 of the above judgment, may be noticed as under:- ".....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 crystallizes on the date of publication of advertisement, however, he has not absolute right in the matter. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallizes on the date of publication of advertisement, however, he has not absolute right in the matter. If the recruitment rules are amended retrospectively during the pendency of selection, in that even selection must be held in accordance with the amended Rules. .................................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 of 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 of 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." 11. Even a retrospective amendment in a rule which has no nexus between the concerned rule and its retrospectivity cannot be given effect to and the same has to be struck down. This position of law has been laid down by the Apex Court in the case of K. Narayana v. State of Karnataka, AIR 1994 SC 55 . 12. In the present case, the order dt. 8th of April’09, by which amendment was made to the eligibility clause by way of an explanation, as noticed above, has been given prospective effect. Therefore, such an explanation issued vide above order, which has a prospective effect, will not alter the terms and conditions of the advertisement notice dt. 14th of Feb’09, and the selection in this case is required to be made strictly in accordance with the rules and orders as existing on the date of issuance of the aforementioned advertisement notification. It is admitted position that at the time of issuance of the said notification, the Scheme as it originally existed along with the other orders issued from time to time nowhere laid down that the selection shall be made from the habitations in a revenue village having at least one kilometer distance from other habitations and having a population of more than 300 persons. The said amendment was made only on 8th of April’09, i.e., after the issuance of the advertisement notice. Therefore, the candidates who had applied in pursuance to the said notification had a right of consideration in accordance with the terms and conditions as contained in the said notification and the rules existing on the date of issue of the same. The petitioner in writ petition, SWP No.2309/09, who was considered along with other candidates on the basis of eligibility criteria prevalent at that point of time was found to be a meritorious candidate and was rightly shown at SI.No.1 of the select panel dt. 20th of April’09. The amendment made in the eligibility criteria vide order dt. 8th of April’09, thus, will not alter the said position and the select panel issued in this regard has to be acted upon. 13. For the reasons mentioned above, writ petition SWP No.2309/09, shall stand allowed. The respondent authorities are directed to operate the select panel dt. 20th of April’09, and issue order of appointment in favour of the candidates in order of merit obtained by them keeping in view the vacancies available with them. Let this be done within a period of one month from the date, a copy of this order is made available to the respondent authorities. Connected petition, SWP No. 193/2010, without being any merit shall stand dismissed.