Research › Search › Judgment

Madhya Pradesh High Court · body

2025 DIGILAW 160 (MP)

Niranjan Sharma v. State of Madhya Pradesh

2025-03-04

VIJAY KUMAR SHUKLA

body2025
ORDER 1. The present petition is filed challenging the order/notification dated 16.4.2024 issued by the respondent No.1/MPPSC and also the merit list dated 1.8.2024 for the post of Lecturer in "Rachna Sharir" in the department of Ayush/ respondent No.2 on the ground that by the said order/notification, the respondent No.1 has changed the criteria of selection for shortlisting the candidates, which was contrary to the main notification issued by the respondent No.1. 2. Facts in brevity is that the petitioner who is a qualified Doctor is Post Graduate in MD Ayurveda in Rachna Sharir. He has secured 78% marks in MD Examination. Respondent No.1 has issued an advertisement/notification dated 10.7.2023 for filling up of post of Lecturer in Rachana Sharir in the department of respondent No.2. It is pertinent to mention that in the notification dated 10.7.2023 the criteria for shortlisting of candidates for selection of Lecturer in “Rachana Sharir” was prescribed in clause 9 of schedule-I of advertisement dated 10.7.2023 according to which the candidates have to be shortlisted on the basis of marks obtained in the qualifying exam. The petitioner applied for the post of Lecturer in Rachana Sharirin the department of respondent No. 2. 3. It is stated that respondent No.1 vide notification dated 16.4.2024 modified the criteria for selection of Lecturer in Rachana Sharir modifying the criteria marks of graduation examination i.e. marks scored by the candidates in BAMS examination were made the eligibility criteria for shortlisting of candidates instead of qualifying marks on the basis of post-graduation i.e. MD Rachana Sharir or MSC Anatomy. 4. On the basis of the aforesaid modified criteria for selection, the impugned select list/merit list has been published on 1.8.2024. It is argued that the aforesaid modification of criteria after issuance of the advertisement is a change of Rule of Game and therefore, the impugned merit list Annexure P/5 is liable to be set aside and respondent no.1 be directed to prepare a fresh merit list on the basis of the unmodified criteria taking into consideration the qualified examination of MD Rachana Sharir or MSC Anatomy for the post of Lecturer in Rachana Sharir. In support of his submission, learned counsel for the petitioner relied on the judgments passed by the apex Court in the case of Bedanga Talukdar v. Saifudaullah Khan and Ors reported in (2011) 12 SCC 85 and also the judgment passed in the case of Manoj Kumar v. Union of India reported in 2024 (3) MPLJ (SC) 50. 5. The respondents No.1 and 2 filed their reply and submitted that the aforesaid impugned modification does not amount to change of criteria of eligibility for selection and therefore, there is no change of Rule of Game. It is argued that as per clause 09 of the advertisement, if the candidates are less than 500 then in that event, the interview will be taken place on the basis of the marks secured in the eligibility examination. As per clause 3 of the advertisement under Essential Educational Qualification both MD Rachana Sharir and MSC Anatomy degree-holding candidates can apply for the said post. However, due to the fact that there is a difference in making a graduate degree, as in some universities, only grading is awarded instead of marks as such. To avoid such difficulties, it was decided by the department that the shortlisting of the candidates will be done on the basis of undergraduate (UG) marks. 6. After hearing learned counsel for the parties, this Court by order dated 28.1.2025, directed counsel for the state to show under what authority of law the state government has issued the notification dated 16.4.2024 on the basis of which the criteria for shortlisting of UG qualifying marks were taken into consideration. 7. The respondent No.2/State Government filed an additional reply to justify the same. It is submitted that the petitioner has participated in the examination of lecturer Rachana Sharir, which was advertised in 2023 by MPPSC. As per clause 09 of the advertisement, it is made clear that if there are less than 500 candidates in the examination, the commission will not conduct any written examination and will directly call the candidates for the interview. It is further submitted that against the advertisement, total 60 candidates have submitted their forms online. 8. As per clause 09 of the advertisement, it is made clear that if there are less than 500 candidates in the examination, the commission will not conduct any written examination and will directly call the candidates for the interview. It is further submitted that against the advertisement, total 60 candidates have submitted their forms online. 8. A peculiar situation and controversy arose while evaluating the percentage of Post-graduation of the candidates for preparation of the merit list as there were many candidates who were Post-graduate from other states and were evaluated in CGPA or assessment basis and not in a percentage basis. Thus, to overcome this controversy, the Additional Secretary, Ayush Department, with powers conferred in the rule 2, Part 5 of “Rules of Business,2023” and sub-rule 3, 4 & 5 of Rule 6 of the “Autonomous Government Ayurveda, Homeopathy, and UnaniCollege and Hospital Service (Teaching Cadre) Recruitment Rules, 2022” (hereinafter referred as Rules, 2022) communicated to the Secretary, Madhya Pradesh Public Service Commission and directed to consider the candidates on the basis of their marks obtained as per undergraduate marksheets of BAMS. It is further submitted that, as per the changed process of making the merit list, the Madhya Pradesh Public Service Commission set the cut-off marks to 70.92% with respect to the undergraduate percentage obtained by the candidates and the petitioner has only obtained 68.99% as a result of which the petitioner was barred to appear in the interview. 9. Thus, both the respondents argued that the aforesaid notification would not amount to change of criteria of selection and therefore, there is no change of Rule of Game as argued by counsel for the petitioner. The decision taken by the respondent was fair, transparent and non-discriminatory and the same has not caused any prejudice to any candidates as all the candidates were having graduation (UG) degree. 10. After hearing learned counsel for the parties, the sole question arises for consideration whether the subsequent notification dated 16.4.2024 amounts to change of rule of Game of the selection? 11. In order to appreciate the aforesaid issue, it is relevant to mention here that the advertisement was issued on 10.7.2023 for filling up the post of Lecturer in Rachna Sharir in the department of respondent No.2. 11. In order to appreciate the aforesaid issue, it is relevant to mention here that the advertisement was issued on 10.7.2023 for filling up the post of Lecturer in Rachna Sharir in the department of respondent No.2. The criteria for short listing of candidates for selection of Lecturer in Rachna Sharir was prescribed in Clause 09 of the Schedule 01 of the advertisement, according to which the candidates have to be shortlisted on the basis of marks obtained in the qualifying examination. The qualifying examination for Lecturer in Rachna Sharir is MD Rachna Sharir or MSC Anatomy but the fact has to be kept in mind that every candidate who is possessing the MD or MSC (PG) is having essential qualification of UG as stated by the respondent while evaluating the percentage of PG of the candidates in preparation of the merit list. It was found that there were many candidates who were Post-graduated from other states and were evaluated CGPA or assessment basis and not in a percentage basis, therefore, it was not possible to shortlist the candidates on the basis of the percentage of Post-graduation. The State Government in exercise of power under Rule 2, Part 5 of Rules of Business, 2023 and Sub-rule 3,4,5 of Rule 6 of the Rules, 2022, decided to consider the candidates on the basis of their marks obtained as per UG marksheets of BAMS. As per the changed process of making the merit list, the MPPSC commission set the cut-off marks to 70.92% with respect to UG percentage obtained by the candidates and the petitioner has obtained only 68.99% as a result of which, the petitioner could not qualify for the interview. 12. In view of the aforesaid backdrop of the facts, a survey has to be done to the law laid down by various Courts in regard to the change of Rule of Game in a selection after the commencement of the selection process. 13. It is a salutary principle that "Rule of Game" so far the prescription of eligibility of criteria is concerned, the same cannot be changed after the commencement of the selection as held in C.Channabasavaih v. State of Mysore reported in AIR 1965 SC 1293 . The similar view is taken by the apex Court in the case of K.Manjusree v. State of AP reported in (2008) 3 SCC 512 . 14. The similar view is taken by the apex Court in the case of K.Manjusree v. State of AP reported in (2008) 3 SCC 512 . 14. The issue before the Constitutional Bench in the case of Tej Prakash Pathak and Ors. v. Rajasthan High Court passed in Civil Appeal No.2634/2013 was that A three-Judge Bench of this Court while accepting the salutary principle that once the recruitment process commences the State or its instrumentality cannot tinker with the “Rules of Game” insofar as the prescription of eligibility criteria is concerned, wondered whether that should apply also to the procedure for selection. In that context, doubting the correctness of a coordinate Bench decision in K. Manjusree (supra), for not having noticed an earlier decision in Subash Chander Marwaha3, vide order 4 dated 20 March 2013, it was directed that the matter be placed before the Chief Justice for constituting a larger Bench for an authoritative pronouncement on the subject. 15. The Constitutional Bench answered the reference as under :-- "(1) Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies; (2) Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness; (3) The decision in K. Manjusree (supra), lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra), deals with the right to be appointed from the Select List whereas K. Manjusree (supra), deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues; (4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, nondiscriminatory/ nonarbitrary and has a rational nexus to the object sought to be achieved. (5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. (5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps; (6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list." 16. Para nos.30 and 31 of the said judgment is relevant to quote here as under :-- "30. What is clear from above is that the object of any process of selection for entry into a public service is to ensure that a person most suitable for the post is selected. What is suitable for one post may not be for the other. Thus, a degree of discretion is necessary to be left to the employer to devise its method/ procedure to select a candidate most suitable for the post albeit subject to the overarching principles enshrined in Articles 14 and 16 of the Constitution as also the Rules/Statute governing service and reservation. Thus, in our view, the appointing authority/ recruiting authority/ competent authority, in absence of Rules to the contrary, can devise a procedure for selection of a candidate suitable to the post and while doing so it may also set benchmarks for different stages of the recruitment process including written examination and interview. However, if any such benchmark is set, the same should be stipulated before the commencement of the recruitment process. But if the extant Rules or the advertisement inviting applications empower the competent authority to set benchmarks at different stages of the recruitment process, then such benchmarks may be set any time before that stage is reached so that neither the candidate nor the evaluator/ examiner/ interviewer is taken by surprise. The decision in K. Manjusree (supra), does not proscribe setting of benchmarks for various stages of the recruitment process but mandates that it should not be set after the stage is over, in other words after the game has already been played. The decision in K. Manjusree (supra), does not proscribe setting of benchmarks for various stages of the recruitment process but mandates that it should not be set after the stage is over, in other words after the game has already been played. This view is in consonance with the rule against arbitrariness enshrined in Article 14 of the Constitution and meets the legitimate expectation of the candidates as also the requirement of transparency in recruitment to public services and thereby obviates mal practices in preparation of select list. 31. As already noticed in section (A), a recruitment process inter alia comprises of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Subject to the rule against arbitrariness, how tests or viva voce are to be conducted, what questions are to be put, in what manner evaluation is to be done, whether a short listing exercise is needed are all matters of procedure which, in absence of rules to the contrary, may be devised by the competent authority. Often advertisement(s) inviting applications are open-ended in terms of these steps and leave it to the discretion of the competent authority to adopt such steps as may be considered necessary in the circumstances albeit subject to the overarching principle of rule against arbitrariness enshrined in Article 14 of the Constitution." 17. In para 31, the apex Court held that whether shortlisting exercise is needed are, all matters of procedure which, in the absence of rules to the contrary, may be devised by the competent authority and the procedure of short listing to adopt such steps as may be considered necessary in the circumstances albeit subject to the overarching principle of rule against arbitrariness enshrined in Article 14 of the Constitution of India. 18. In the case of Ramesh Kumar v. High Court of Delhi and Another reported in (2010) 3 SCC 104 , the Hon'ble Supreme Court held that the authority may prescribe a minimum benchmark not only for the written test but also for the viva voce. It was held in para-15 as follows :-- "15. 18. In the case of Ramesh Kumar v. High Court of Delhi and Another reported in (2010) 3 SCC 104 , the Hon'ble Supreme Court held that the authority may prescribe a minimum benchmark not only for the written test but also for the viva voce. It was held in para-15 as follows :-- "15. Thus, the law on the issue can be summarised to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum benchmarks for written test as well as for viva voce." 19. The respondent/state has come out with a specific plea that in exercise of power under rule 2, Part 5 of “Rules of Business,2023” and sub-rule 3, 4 & 5 of rule 6 of the Rules, 2022, it was considered necessary to resolve the difficulty faced in evaluating the percentage of Post-graduation of the candidates for preparation of merit list as there were many candidates who were Post-graduate from other states and were evaluated in CGPA or assessment based and not in percentage basis, therefore, to over come the said situation, the notification was issued to consider the candidates on the basis of their marks obtained as per Under-graduate marks of BAMS which would not amount to change of the Rule of Game. The aforesaid notification cannot be said to be arbitrary and discretionary. Admittedly, the petitioner and all the candidates were having Under graduate qualifications and the merit list has been prepared on the basis of percentage of the marks of Under-graduate. 20. Thus, this Court does not find any illegality in the impugned notification and the merit list. 21. The petition is dismissed. No order as to costs.