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Madhya Pradesh High Court · body

2012 DIGILAW 220 (MP)

Anil Bhatt v. State Of M. P.

2012-02-21

ALOK ARADHE

body2012
Judgment ( 1. ) SHRI Praveen Verma, learned counsel for the petitioners. SHRI Swapnil Ganguli, learned Panel Lawyer for the respondents No. 1 to 3. Smt. Sarita Chourasiya, learned counsel for the respondent No. 4. ( 2. ) WITH the consent of the learned counsel for the parties the matter is finally heard. ( 3. ) IN this writ petition, the petitioners seek quashment of the circular dated 28-1-2009 (Annexure-P/6) as well as the selection list contained in Annexure-P/8. IN order to appreciate the petitioners challenge to the impugned orders, few facts need mention, which are stated infra. ( 4. ) THE petitioners were working as Instructors in the Non-formal Education Centre which is run by the respondents. In exercise of powers conferred under Rule 14 of the M. P. Nagriya Nikay Samvida Shala (Niyojan Evam Samvida Ki Sharte), Rules, 2005 (hereinafter referred to as 2005 Rules'), it was decided to fill up the vacancies of contract teachers Grade-3 by conducting an examination for Gurujis working in M. P. Education Guarantee Schools and the Instructors/Supervisors working in Non-formal Education Centres. For the purposes of holding of the examination, the Rules were framed by the State Government which are known as M. P. Nagriya Nikaya Samvida Shala (Niyojan Evam Samvida Ki Sharte), Rules 2005. Admittedly, the examination was held by the Professional Examination Board as per the provisions of the aforesaid Rules on 3-8-2010. THE petitioners admittedly cleared the aforesaid examination and were declared successful, which is apparent from the select list (Annexure-P/4). Subsequently, the State Government issued a Circular (Annexure-P/6) which provides that the Instructors and Supervisors of erstwhile Government Non- formal Education Centres, who had worked continuously for one year as on 31st March, 2000 or worked continuously up to one year till any date in between the 31st March and 29 August, 2000, may be appointed on the post contract teacher Grade-3. In pursuance of the aforesaid circular fresh select list was prepared, vide Annexure-P/8 in which names of the petitioners were not included by applying the criteria which was prescribed in the Circular (Annexure-P/6). Subsequently, by a notification which was published in the gazette, dated 4th January, 2010, the M. P. Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract), Rules, 2005 were amended and 'Rule 7-A' in the 2005 Rules was inserted and in Rule 7-A(2) the same criteria which was contained in Annexure-P/6 was prescribed. Subsequently, by a notification which was published in the gazette, dated 4th January, 2010, the M. P. Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract), Rules, 2005 were amended and 'Rule 7-A' in the 2005 Rules was inserted and in Rule 7-A(2) the same criteria which was contained in Annexure-P/6 was prescribed. In the aforesaid factual background the petitioners have approached this Court. ( 5. ) SHRI Praveen Verma, learned counsel for the petitioners submitted that once the process of selection had commenced as per the Rules in vogue at that point of time, the criteria for selection could not have been changed midway and the petitioners could not have been disqualified on the basis of the criteria for selection which was changed midway. In support of his submission, learned counsel for the petitioners has placed reliance on the decision of the Supreme Court reported in 2008 AIR SCW 1850. ( 6. ) ON the other hand, Shri Swapnil Ganguli, learned Panel Lawyer for the respondents No. 1 to 3 submitted that the petitioners cannot be permitted to assail the select list contained in Annexure-P/8, as the selected candidates have not been impleaded as respondents in the writ petition. The writ petition suffers from the vice of non-joinder of necessary parties. In support of the aforesaid proposition learned Panel Lawyer for the State has placed reliance on the decision of the Supreme Court reported in (2001) 6 SCC 380 . It is further submitted by him that the State Government had clear intention to amend the criteria for selection which is evident from the Circular (Annexure-P/6) which ultimately culminated in the Notification, dated 4-10-2001 by which the 2005 Rules were amended. It was also submitted that if there is an intention to amend the criteria pending selection process, the process of selection can be withheld by the authorities and the posts can be filled up in accordance with the amended criteria. In support of the aforesaid submission, learned Panel Lawyer for the respondents No. 1 to 3 has placed reliance on the decisions of the Supreme Court reported in (2003) 4 SCC 712 and (1997) 3 SCC 59 . ( 7. ) LEARNED counsel for the respondent No. 4 adopted the submissions advanced on behalf of the respondents No. 1 to 3. ( 8. ) I have considered the submissions made on both sides. ( 7. ) LEARNED counsel for the respondent No. 4 adopted the submissions advanced on behalf of the respondents No. 1 to 3. ( 8. ) I have considered the submissions made on both sides. Before dealing with the matter on merit, I may deal with the primary objection which has been raised on behalf of the respondents No. 1 to 3 that the writ petition suffers from the vice of non-joinder of necessary parties. It is relevant to mention that this Court while entertaining the writ petition vide order dated 7-1-2011 in view of the order passed by the Division Bench in W.P. No. 1811/2010 had directed respondents to keep six posts for contract teachers Grade-3 vacant. In view of the aforesaid order, six posts were directed to keep vacant. Even in the absence of selected candidates relief can be granted to the petitioners. Therefore, it cannot be said that the writ petition suffers from the vice of non-joinder of necessary parties. Besides, that it is not the case of the parties that all 372 posts in question in District, Chhatarpur have been filled up. ( 9. ) IN K. Manju Sree vs. State of Andhra Pradesh and another, (2008) 3 SCC 512 the Supreme Court has held that the selection criteria has to be prescribed in advance. It has further been held that after process of selection is over, the criteria for selection cannot be changed which would amount to changing the rules of the game. Similar view has been taken in Hemani Malhotra vs. High Court of Delhi, (2008) 7 SCC 11 and Barot Vijaykumar Balakrishna and others vs. Modh Vinaykumar Dashrathlal and others, 2011 AIR SCW 3937. IN the backdrop of well settled legal position facts of the case may be seen. ( 10. ) ADMITTEDLY, the examination in question was held under the 2005 Rules. Rules 4 and 5 deals with minimum educational qualification as well as prescribe minimum marks for qualifying examination. From a perusal of Rule 4 it is apparent that a candidate must have passed the Higher Secondary School Examination or an equivalent examination. Rule 5 provides that in the qualifying examination candidates belonging to SC/ST/OBC and disabled category should have secured a minimum 40 % marks whereas cut-off marks in respect of other categories were fixed 50%. From a perusal of Rule 4 it is apparent that a candidate must have passed the Higher Secondary School Examination or an equivalent examination. Rule 5 provides that in the qualifying examination candidates belonging to SC/ST/OBC and disabled category should have secured a minimum 40 % marks whereas cut-off marks in respect of other categories were fixed 50%. In pursuance of the notification of the vacancies, the examination was held on 31-8-2008 in which the petitioners appeared and they were declared successful. ADMITTEDLY, the petitioners were declared successful in the examination which was held on 31-8-2008. Thereafter, Annexure-P/6, i.e., The circular, dated 5-10-2009 was issued by which the criteria for selection was changed and the revised select list was issued which is contained in Annexure- P/8 which is legally impermissible. The contention of learned counsel for the respondents that the State Government could have withheld the process of selection and could have filled up subsequently in accordance with amended criteria need not be examined as no such plea in the return has been taken. ( 11. ) THE amendment made in the Rules which was published in the gazette, dated 4-1-2010. It is well settled in law that prima facie every amendment is prospective unless there is clear indication in statute or rule that it would apply with retrospective effect. It is not discernible from the amendment that it is retrospective in nature. Therefore, the amended rule would not apply retrospectively to the proceedings for selection which were already completed. For this additional reason also, the action of the respondents in excluding the names of the petitioners from consideration cannot be sustained in the eyes of law. ( 12. ) IN the result, the Circular (Annexure-P/6) is quashed. The respondents are directed to consider the case of the petitioners for appointment on the post or contract teacher grade-3 in view of the unamended criteria and in the light of Annexure-P/5, and if the petitioners are found otherwise eligible for appointment; to issue order of appointment. IN the result, the writ appeal is allowed. Appeal allowed.