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2017 DIGILAW 2563 (RAJ)

Yogendra Singh v. State of Rajasthan

2017-11-23

PUSHPENDRA SINGH BHATI

body2017
ORDER : Pushpendra Singh Bhati, J. Petitioner has preferred this writ petition under Article 226 of the Constitution of India praying for the following reliefs :- "It is, therefore, most humbly prayed that this writ petition may kindly be allowed with cost and :- 1. by appropriate writ, order or direction; the provisional select list dated 06.07.2017 may kindly be quashed and set aside and considered the candidature of the petitioner on the post of Compounder/Nurse Junior Grade in pursuance of the advertisement 2/2013 and provide appointment to the petitioners. 2. Further, by an appropriate writ, order of direction, the respondents may kindly be directed to provide 30 bonus marks for the experience for the more than three years service in the NRHM Scheme. 3. Pending the petition, if any order is passed or any action is taken prejudicial to the interest of petitioners, same may kindly be quashed and set aside. 4. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. 5. Costs of the writ petitions may kindly be awarded to the petitioner." 2. Learned counsel for the petitioner has drawn attention regarding the facts of appointment on the post of Compounder/Nurse Junior grade in Homeopathy Department while awarding appropriate bonus marks according to the advertisement No. 2/2013. The petitioner is seeking the original condition of bonus marks which was to be kept at 30 bonus marks as per the advertisement. The advertisement No. 2 of 2013 dated 16.08.2013 for the post of Compander/Nurse Junior Grade clearly stipulated 10, 20 and 30 bonus marks for 1, 2 and 3 years respectively. 3. The Division Bench of this Hon'ble Court in Gunjan Gaur v. State and Another D.B. Civil Writ Petition No. 12688 of 2013, D.B. Civil Writ Petition No. 10163 of 2013 Praveen Kumar and Others v. State and Others and D.B. Civil Writ Petition No. 10219 of 2013 Narensh Kumar v. State and Others passed on order dated 22.01.2014 whereby the 30 bonus marks were declared unconstitutional and directed the respondents to give 15 marks maximum as bonus marks. In compliance of the orders passed by Hon'ble Division Bench of this Court, the respondents have scaled down the maximum bonus marks 30 to 15 vide order dated 24.02.2015, thereafter in accordance with such scaled down bonus marks, the selection process commenced with and provisional select list has been made. 4. Learned counsel for the petitioner has argued that Division Bench of this Hon'ble Court has been reversed by the judgment of Hon'ble Apex Court in State of Rajasthan and Others v. Archana Etc., Civil Appeal No. 11406 of 11407 of 2016 in Civil Appellate Jurisdiction, decided on 29.11.2016, whereby the judgment capping the bonus marks to 15 marks was set aside and the State was allowed to operate its own policy on its own terms. Thus, learned counsel for the petitioner have primarily argued that the original advertisement No. 2/2013 issued on 16.08.2013 carried a condition for maximum 30 bonus marks and thus, the same condition ought to be adopted by the respondent as the Division Bench judgment is no longer in vogue and rather has been reversed by the Hon'ble Apex Court. 5. Learned counsel for the petitioner has further argued that the Hon'ble Apex Court has the settled law that the rule of the games cannot be changed during the selection process after the advertisement has been made and selection process has commenced. 6. Learned counsel for the petitioner has cited the following precedent law in his favour to fortify the above mentioned contention. 7. Learned counsel for the petitioner has relied upon the judgment in A.A. Catton v. The Director of Education, 1983 (3) SCC 33 , the relevant portion of this judgment, reads as under:- "It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18,1975 taking away the power of the Director to make an appointment under section 16-F (4) of the Act in the case of minority institutions. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under section 16-F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under section 16-F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection under section 16-F of the Act commencing from the stage of calling for applications for a post upto the date on which the Director becomes entitled to make a selection under Section 16-F(4) (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16 of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the Legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case." 8. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case." 8. Learned counsel for the petitioner has also relied upon the judgment in Hemani Malhotra v. High Court of Delhi A.I.R. 2008 SC 2013, the relevant portion of this judgment, reads as under:- "From the record of the case it is evident that the public advertisement was issued by the respondent for direct recruitment to Delhi Higher Judicial Services. As per the said advertisement written examination was to be held on March 12, 2006. The selection process was of two stages: stage one was written examination comprising one paper only of 250 marks, whereas stage two included interview/vive-voce. As per the advertisement minimum qualifying marks in the written examination were specified to be 55% for General candidates and 50% for Scheduled Castes and Scheduled Tribes candidates but no cut off marks were prescribed for vive-voce test at all. The averments made in the petitions which are not effectively controverted by the respondent would indicate that oral interview was postponed by the respondent on six occasions and was finally conducted by the Selection Committee only on February 27, 2007. However, before that date criteria of cut off marks for vive-voce test was introduced by the respondent. 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 against the State of A.P. & Anr. decided on February 15, 2008, the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms:- The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. decided on February 15, 2008, the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms:- The resolution 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 prescribe 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." 9. Learned counsel for the petitioner has also relied upon the judgment in P. Mohanan Pillai v. State of Kerala, A.I.R. 2007 SC 2840, the relevant portion of this judgment, reads as under:- "Why such a decision had been taken after the publication of the result of the written examination and after calling 36 candidates for interview is not known. Why the Company intended to enlarge the zone of consideration from 1 : 3 to 1 : 4 has also not been disclosed. Why the cut-off mark was also lowered remained a mystery. It may be that in a given situation, a decision of the State may be changed, but therefor good and sufficient reasons must be assigned. The Company failed to do so. The decision taken in this behalf smacks of arbitrariness. It prejudiced the candidates like the appellant. Why the cut-off mark was also lowered remained a mystery. It may be that in a given situation, a decision of the State may be changed, but therefor good and sufficient reasons must be assigned. The Company failed to do so. The decision taken in this behalf smacks of arbitrariness. It prejudiced the candidates like the appellant. It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed." 10. Learned counsel for the respondent has however submitted that the rule of the games were in fact not changed and only a bonus marks criteria was uniformly and universally changed, which would not affect any one person as it is a proposition equally applicable to all the candidates. 11. Learned counsel for the respondent has further submitted that the decision of the State Government to pass the order dated 24.02.2015 was in compliance of the Division Bench's order of this Hon'ble Court and thus, are well justified. 12. Learned counsel for the respondent has stated that the reversal by the Hon'ble Apex Court was only on 29.11.2016 whereas the order dated 22.01.2014 has already been complied by them for the purpose of present recruitment. Learned counsel for the respondent has further stated that the judgment is directly not on the current recruitment but it pertains to another set of recruitment. 13. Learned counsel for the respondents has further stated that compliance of Hon'ble Division Bench judgment passed in the concerned litigation regarding the bonus marks cannot be said to have changed the rule of the games and respondents were having no choice but to abide by the order of Hon'ble Division Bench passed on 22.01.2014. Learned counsel for the petitioner has further stated that the selection process is over and provisional select list has been issued. 14. After hearing counsel for the parties and perusing the precedent law cited at Bar, this Court is of the opinion that the selection process of Compounder/Nurse Junior Grade in pursuance of the advertisement dated 16.08.2013 under the Rules of Rajasthan Aurvedic Unani Homeopathy and Naturopathy Subordinate Service Rules 1965 and the amended Rules of year 2010 and 2013 and the selection process is going on. 15. 15. This Court also finds that Hon'ble Division Bench of this Court had passed the orders in Gunjan Gaur v. State and Another D.B. Civil Writ Petition No. 12688 of 2013 D.B. Civil Writ Petition No. 10163 of 2013 Praveen Kumar and Others v. State and Others and D.B. Civil Writ Petition No. 10219 of 2013 Narensh Kumar v. State and Others regarding the recruitment in question on 22.01.2014 and abiding by the judgment of the Division Bench of this Court, the bonus marks were capped to 15 marks. The capping of 15 bonus marks was strictly in compliance of the orders of this Hon'ble Division Bench on 22.01.2014. The order passed by the State Government on 24.02.2015 was thus, a mere compliance and thereafter, the respondents have moved ahead and completed the selection process and provisionally select list has already been changed. The subsequent judgment of Hon'ble Apex Court dated 29.11.2016, whereby the State has been free to make its own policy does not go against the norms of the present case as the Hon'ble Apex Court has lefted to the discretion of the State Government and in the present case also State Government has exercised its discretion vide order dated 24.02.2015, which is Annexure R/2 of the petition. Therefore, the decision of the State Government to go ahead with the capping of 15 bonus marks in its own policy and decision which has of course been taken in compliance of order of Division Bench of this Court and are in consonance with the orders passed by the Hon'ble Apex Court in the matter of State of Rajasthan v. Archana as virtually the Hon'ble Apex Court has said the following words :- "The policy propounded by the State must be allowed to operate on its own terms." 16. The State terms are clear and therefore, at this stage no interference is called for. The precedent law of the rule of the games not being changing would not apply in the present case as the order passed by the State Government is in accordance with its discretion granted by the Hon'ble Apex Court and was in direct compliance of the orders passed by the Division Bench of this Hon'ble Court and hence, the precedent law cited by the learned counsel for the petitioner shall not apply in the present case. 17. 17. In light of the aforesaid observations, this writ petition is dismissed.