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2014 DIGILAW 402 (RAJ)

Brij Mohan v. District & Sessions Judge, Bikaner

2014-02-06

GOPAL KRISHAN VYAS

body2014
Hon'ble VYAS, J.—In this writ petition has prayed to call the record of the selection for the post of L.D.C. conducted in pursuance of advertisement Annex.1 dated 9.1.2009 issued by the District & Sessions Judge, Bikaner whereby appointments were made on the posts of L.D.C. and to quash the order impugned dated 1.4.2010 whereby appointments were given to respondents No. 2, 3 and 4 on the posts of L.D.C. under the reserve category of SC/ST/OBC. 2. As per facts of the case, an advertisement was issued by the District & Sessions Judge, Bikaner on 9.1.2009 whereby 3 posts of L.D.C. in the pay-scale of PB-1 5200-20200 were published and applications were invited from the eligible candidates. The petitioner is possessing Master's degree in Arts (Political Science), and all other eligibility, therefore, filed an application for appointment on the post of L.D.C. in pursuance of the advertisement dated 9.1.2009. 3. The petitioner was allowed to appear in the written examination in which he was declared successful, therefore, he was directed to appear in the type test and, in that also, the petitioner was declared successful and his name stood at S.No. 1 in the merit list as he secured 209 marks out of 300 marks. 4. After completion of the process for recruitment the petitioner was expecting that as per his top merit he will be provided appointment but no appointment was given to the petitioner. Therefore, a representation (Annex. 4) will filed by the petitioner to provide appointment as per his position in the merit list. In para 7 of the writ petition, it is specifically pleaded that vide notification dated 9.1.2009 applications were invited for appointment on 3 posts of L.D.C. and in the selection process the petitioner succeeded and stood at S.No. 1; but, appointments were given only to the less meritorious candidates belonging to the SC/ST candidates whose names stood at S.No. 20, 48 and 108 in the merit list therefore, it is prayed that the appointment order dated 1.4.2010, in which, all the 3 vacancies have been filled in from amongst SC/ST category candidates may be quashed and respondent may be directed to provide appointment to the petitioner. 5. 5. Learned counsel for the petitioner submits that in the advertisement, it is nowhere notified that all the 3 vacancies are reserved for SC/ST candidates or these posts are the backlog vacancies of the previous years, which is evident from the fact that applications were invited from the candidates of all the categories including the General category and they were allowed to appear in the selection process. After completion of the selection process the petitioner stood at S.No. 1 in the merit list but without any reason no appointment order was issued to him and all the three seats were filed in from amongst the candidates belonging to the SC/ST category. 6. Learned counsel for the petitioner submits that in the reply totally untenable and unfounded grounds have been taken that for conducting process of selection a committee comprising of 3 members was constituted in which the District Judge, Bikaner, Addl. District Judge (Fast Track) No. 1, Bikaner and the Chief Judicial Magistrate, Bikaner were included to conduct the process of selection and the said committee recommended the names of SC/ST category candidates only because in the preceding three years candidates belonging to SC/ST category were not available whereas in the advertisement it is nowhere notified that these 3 vacancies will be filled in under the backlog vacancies of SC/ST candidates. According to the petitioner, the reason given in para 3 of the reply is totally contrary to the various pronouncements of the Hon'ble Supreme Court reported in (1990) 3 SCC 157 , 2007 AIR SCW 6745, AIR 2008 SC 1470 and (2008) 7 SCC 11; and, submits that in all the above judgments it has been held by the Hon'ble Supreme Court that during the process of selection neither rules can be changed nor the process of selection can be made otherwise than as advertised while inviting applications. The appointments are required to be made as per the eligibility, terms and conditions of the advertisement and, in this case, upon perusal of the advertisement it will reveal that 3 posts were advertised and applications were invited from the candidates of all the categories including the General category candidates; but, during the process of selection, the selection committee recommended names of 3 candidates belonging to only SC/ST category without having any jurisdiction, therefore, the appointment order may be quashed and respondent may be directed to consider the case of petitioner as per his merit position for appointment on the post of LD.C. 7. Per contra, learned Addl. Advocate General appearing for the respondents submits that there was backlog of vacancies of SC/ST category for the posts of L.D.C., therefore, the selection committee recommended the names of SC and ST category candidates only inspite of the fact that candidates were allowed to appear from all the categories including the General category. Therefore, if any recommendation is made by the selection committee to fill up the backlog that cannot be questioned by the petitioner. 8. Learned counsel for the private respondents is also supporting the arguments of learned Addl. Advocate General and submits that even though the petitioner stood at S.No. 1 but he is from the General category, therefore, a decision was taken by the selection committee to first fill up the backlog vacancies of ST and ST is justified because in the previous three years no suitable candidates from the SC/ST category were found suitable for appointment, therefore, there is no illegality in the appointment order issued by the respondents even though the petitioner stood at S.No. 1 in the General category. 9. After hearing learned counsel for the parties, I have perused the advertisement Annex. 1 dated 9.1.2009. Upon perusal of the advertisement it is revealed that 3 posts of L.D.C. were advertised as per the Rajasthan Subordinate Court Ministerial Establishment Rules, 1986 but, in the advertisement, it is nowhere notified that these vacancies are vacancies of backlog of SC and ST categories; more so, the applications were invited from candidates belonging to all the categories. Upon perusal of the advertisement it is revealed that 3 posts of L.D.C. were advertised as per the Rajasthan Subordinate Court Ministerial Establishment Rules, 1986 but, in the advertisement, it is nowhere notified that these vacancies are vacancies of backlog of SC and ST categories; more so, the applications were invited from candidates belonging to all the categories. Further, it is specifically mentioned that reservation will be given as per the rules; meaning thereby, out of 3 posts the reservation was to be provided as per rules but, contrary to law, although the petitioner stood at S.No. 1 in the merit list the selection committee usurped the power of the appointing authority who has determined the vacancies in question as per rules. Therefore, obviously the recommendation made by the selection committee for appointment of reserved category candidates whose names were included in the merit list at S.No. 20, 48 and 108 was not in consonance with law. 10. It is true that vacancies of backlog can be filled in but, for the said purpose, it is duty of the appointing authority to first determine the vacancies and advertise the backlog vacancies specifically for reserve categories of SC and ST; but, in the advertisement in question, it is nowhere notified that these vacancies are backlog vacancies for SC/ST category because it is evident from the advertisement that applications were invited from the candidates of all the categories and all the candidates applied for the post were allowed to appear in the written test but the selection committee recommended names of SC/ST candidates only on the ground that there was backlog of SC/ST category vacancies. 11. In the opinion of this Court, the selection committee is having jurisdiction to adjudge the suitability of the candidates for appointment and vacancies are required to be determined by the competent authority and if vacancies were advertised as per determination of the vacancies for all the categories, then, it was not open to the selection committee to recommend only SC/ST candidates for appointment ignoring the merit of the petitioner who stood top in the merit for the simple reason that applications were invited from the candidates of all the categories including General category, there-fore, all the vacancies cannot be filled in by way of providing appointment to the SC and ST candidates only. In view of the above, it is a case of illegal denial of appointment to the candidate who stood at S.No. 1 in the merit list prepared in pursuance of the selection process conducted by the respondent. 12. In the case of Ashok Kumar Sharma & Others vs. Chandra Shekhar & Another, reported in (1997) 4 SCC 18 , the Hon'ble Supreme Court held that an advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority cannot act contrary to it. Para 6 of the said judgment reads as under: "6. The review petitions came up for final hearing on 3.3.1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our Order dated 1.9.1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr. T.K. Thommen and vs. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/ published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwith-standing that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi vs. University of Rajasthan. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi vs. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview." 13. In the case of N.T. Devin Katti & Others vs. Karnataka Public Service Commission & Others, (1990) 3 SCC 157 , the Hon'ble Supreme Court held in para 11 and 13 of the judgment that person applying for appointment if otherwise qualified in accordance with existing rules or order and in terms of the advertisement acquires a vested right to be considered for selection in accordance with the rules or order. Para 11 and 13 of the said judgment read as under: "11. There is yet another aspect of the question. 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 selections 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 crystalises 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. 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. 12. In B.N. Nagarajan & Ors. vs. State of Mysore & Ors., (1966) 3 SCR 682 , the dispute related to the validity of appointment of Assistant Engineers. The Public Service Commission invited applications by issuing Notifications for appointment to the post of Assistant Engineers in October 1958, May 1959 and April 1960. The Commission made selection, interviewed the candidates and sent the selection list to the Government in October/November 1960. But before the appointment could be made the Mysore Public Works, Engineering Department Services (Recruitment) Rules 1960 came into force which prescribed different provisions than those prescribed in the earlier Notifications in pursuance whereof the Public Service Commission had made the selections. The validity of the appointment made by the Government on the basis of the selection made by the Commission was challenged. The High Court quashed the selection and appointments made in pursuance thereof. The validity of the appointment made by the Government on the basis of the selection made by the Commission was challenged. The High Court quashed the selection and appointments made in pursuance thereof. On appeal before this Court, validity of the appointment were assailed on the ground that since the appointments had been made after the amendment of the Rules the appointments should have been made in accordance with the amended Rules. A Constitution Bench of this Court rejected the contention holding that since the whole procedure of issuing advertisement, holding interviews and recommending the names having been followed in accordance with the then existing Rules prior to the enforcement of the amended Rules the appointments made on the basis of the recommendation made by the Public Service Commission could not be rendered invalid." 14. Similarly, in the case of K. Manjusree vs. State of Andhra Pradesh, (2008) 3 SCC 512 , the Hon'ble Supreme Court has held that in between the process of selection the criteria cannot be changed. Para 30 and 31 of the said judgment read as under: "30. It was submitted that Administrative Committee and Interview Committee were only delegates of the Full Court and the Full Court has the absolute power to determine or regulate the process of selection and it has also the power and authority to modify the decisions of the Administrative Committee. There can be no doubt about the proposition. The Administrative Committee being only a delegate of the Full Court, all decisions and resolutions of Administrative Committee are placed before the Full Court for its approval and the Full Court may approve, modify or reverse any decision of the Administrative Committee. For example when the resolution dated 30.11.2004 was passed it was open to the Full Court, before the process of selection began, to either specifically introduce a provision that there should be minimum marks for interviews, or prescribe a different ratio of marks instead of 75 for written examination and 25 for interview, or even delete the entire requirement of minimum marks even for the written examination. But that was not done. The Full Court allowed the Administrative Committee to determine the method and manner of selection and also allowed it to conduct the examination and interviews with reference to the method and manner determined by the Administrative Committee. But that was not done. The Full Court allowed the Administrative Committee to determine the method and manner of selection and also allowed it to conduct the examination and interviews with reference to the method and manner determined by the Administrative Committee. Once the selection process was completed with reference to the criteria adopted by the Administrative Committee and the results were placed before it, the Full Court did not find fault with the criteria decided by the Administrative Committee (as per resolution dated 30.11.2004) or the process of examinations and interviews conducted by the Administrative Committee and Interview Committee. If the Full Court had found that the procedure adopted in the examinations or interviews was contrary to the procedure prescribed, the Full Court could have set aside the entire process of selection and directed the Administrative Committee to conduct a fresh selection. The resolution dated 30.11.2004 was approved. It did not find any irregularity in the examination conducted by the Administrative Committee or the interviews held by the Selection Committee. The assessment of performance in the written test by the candidates was not disturbed. The assessment of performance in the interview by the Selection Committee was not disturbed. The Full Court however, introduced a new requirement as to minimum marks in the interview by an interpretative process which is not warranted and which is at variance with the interpretation adopted while implementing the current selection process and the earlier selections. As the Full Court approved the resultion dated 30.11.2004 of the Administrative Committee and also decided to retain the entire process of selection consisting of written examination and interviews it could not have introduced a new requirement of minimum marks in interviews, which had the effect of eliminating candidates, who would otherwise be eligible and suitable for selection. Therefore, we hold that the action of Full Court in revising the merit list by adopting a minimum percentage of marks for interviews was impermissible. 31. The Division Bench of the High Court while considering the validity of the second list, has completely missed this aspect of the matter. It has proceeded on an erroneous assumption that the resolution dated 30.11.2004 of the Administrative Committee prescribed minimum marks for interviews. 31. The Division Bench of the High Court while considering the validity of the second list, has completely missed this aspect of the matter. It has proceeded on an erroneous assumption that the resolution dated 30.11.2004 of the Administrative Committee prescribed minimum marks for interviews. Consequently, it erroneously held that the Administrative Committee had acted contrary to its own resolution dated 30.11.2004 in not excluding candidates who had not secured the minimum marks in the interview and that the Full Court had merely corrected the wrong action of the Administrative Committee by drawing up the revised merit list by applying marks for interview also. The decision of the Division Bench therefore, cannot be sustained." 15. In the case of Hemani Malhotra vs. Delhi High Court, (2008) 7 SCC 11, the following adjudication has been made in para 14 to 16, in which, it is held that changing rules of the game during the selection process is not permissible in law. Para 14 to 16 of the judgment rendered by the Hon'ble Supreme Court in Hemani Malhotra's case read as under: "14. It is an admitted position that at the beginning of the selection process, no minimum cut off marks for vive-voce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in Civil Appeal No. 1313 of 2008 filed by K. Manjusree vs. State of A.P. the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms: (SCC pp. 526-27, page 33) "The resultion dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribed by rules, the minimum marks both for written examination and interviews or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. We have no doubt that the authority making rules regulating the selection, can prescribed by rules, the minimum marks both for written examination and interviews or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview." From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive-voce. Therefore, prescribing minimum marks for vive-voce was not permissible at all after written test was conducted. 15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive-voce, but if minimum marks are not prescribed for vive-voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive-voce, test was illegal. 16. The contention raised by the learned Counsel for the respondent that the decision rendered in K. Manjusree did not notice the decisions in Ashok Kumar Yadav vs. State of Haryana as well as in K.H. Siraj vs. High Court of Kerala and, therefore, should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or nor, never fell for consideration of this Court in the decision referred to by the learned Counsel for the respondent. While deciding the case of K. Manjusree (Supra) the Court noticed the decision in (1) P.K. Ramachandra Lyet vs. Union of India (1984) 2 SCC 141 ; (2) Umesh Chandra Shukla vs. Union of India (1985) 3 SCC 721 ; and (3) Durgacharan Misra vs. State of Orissa (1987) 4 SCC 646 , and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K. Manjusree (supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision." 16. In view of the above discussion, this Court is of the considered opinion that appointment made as per the recommendation of the selection committee who took the decision in between the selection process to fill up backlog of SC/ST category is not in accordance with law; more so, the appointing authority has not only provided appointment to the less meritorious persons but also completely ignored the merit of the petitioner who stood at S.No. 1 though with open eyes he was allowed to appear in the process of selection for appointment in pursuance of the advertisement in which it is nowhere notified that all the vacancies are reserved for the SC/ST category candidates only being the backlog vacancies. The stand taken by the respondents in the reply that during process of selection the selection committee took decision to fill up vacancies of SC/ST category and recommended to the appointing authority and providing appointment to the less meritorious candidates who stood in the merit at S.No. 20, 48 and 108 is contrary to basic principle of law. The stand taken by the respondents in the reply that during process of selection the selection committee took decision to fill up vacancies of SC/ST category and recommended to the appointing authority and providing appointment to the less meritorious candidates who stood in the merit at S.No. 20, 48 and 108 is contrary to basic principle of law. The procedure adopted by the respondent is not permissible in law because if all the three vacancies belonged to the SC/ST category, then, advertisement was to be issued only for SC/ST category and not for all the categories including the General category. In the advertisement, it is nowhere notified that all the vacancies are reserved for the category of SC/ST but, during the process of selection, the selection committee illegally usurped the power of determination of vacancies and took decision to recommend the names of SC/ST candidates ignoring the merit of petitioner who stood at S.No. 1 while securing 209 marks out of 300 marks in the competitive examination. In view of the above, it is a case in which the petitioner has been denied appointment in violation of Article 14, 16 and 21 of the Constitution of India. 19. In the reply, the plea of respondents that for last three years candidates of SC/ST category were not provided appointment due to non-availability of suitable candidates, therefore, decision was taken by the selection committee to provide appointment under the category of SC./ST is hereby rejected because in the advertisement it was specifically notified that, ^^vkj{k.k dh ik=rk j[kus okys vU; oxksZ ds fy, fu;ekuqlkj in vkjfa{kr gksaxsA lHkh izdkj ds lQy vk'kkfFkZ;ksa dk iSuy rS;kj fd;k tkosxkA**( meaning thereby, as per advertisement reservation was to be given in accordance with law against the advertised vacancies but contrary to rules and advertisement all the vacancies were filled in from the candidates of SC and ST categories which is not permissible under the law. 18. Therefore, obviously the petitioner becomes entitled for appointment because denial of appointment to the petitioner is unconstitutional. Further, there is no dispute with regard to eligibility of respondents No. 2, 3 and 4 and the fact that their names were also included in the categories of SC and ST in the merit list. 19. 18. Therefore, obviously the petitioner becomes entitled for appointment because denial of appointment to the petitioner is unconstitutional. Further, there is no dispute with regard to eligibility of respondents No. 2, 3 and 4 and the fact that their names were also included in the categories of SC and ST in the merit list. 19. Therefore, this writ petition is allowed and the respondent District & Sessions Judge, Bikaner is hereby directed that without disturbing appointment of the private respondents he shall provide appointment to the petitioner against available post of L.D.C. forthwith and grant all consequential benefits on notional basis with effect from the date less meritorious persons were provided appointment on the post of L.D.C.