Bharthari Singh vs State Of Chhattisgarh

Ajay Kumar Tripathi, J

Heard Counsel for the parties.

The bunch of appeals arise out of a common order passed by the learned Single Judge on 07.07.2017. Since common questions of law arose from

identical facts, they all got clubbed and heard together.

Prayer made before the writ Court on behalf of the Appellants was to consider their cases for appointment on the post of Assistant Professors and

Lecturers in different disciplines in Government Engineering Colleges and Government Polytechnic Colleges, respectively.

An advertisement No.3/15 dated 09.07.2015 was published on 15.07.2015 by the Chhattisgarh Public Service Commission. The advertisement laid

down the basic qualification in relation to the posts of Assistant Professors and Lecturers of the respective disciplines. Based on the response, the

exercise for recruitment was carried out and we are now told that all the appointments have been made, though some vacancies still remain.

The Appellants who were Petitioners before the writ Court argued that the various educational qualification which they possess are equivalent to

what was advertised in the advertisement and therefore, they had due eligibility for consideration for appointment. However, taking a hyper-technical,

if not an erroneous view that they did not strictly fulfill the requirement of the educational kind, which was made known in the advertisement, they

were debarred from participation at the stage of interview. This became the reason for the litigation.

The issue for consideration before the learned Single Judge therefore was whether these Appellants could be said to possess the rightful

qualification in the disciplines for which they were aspirant in terms of the advertisement or whether equivalence could be used for the purposes of

giving them the benefit of doubt of having fulfilled the eligibility of minimum educational qualification.

In the impugned order, the learned Single Judge has prepared a chart of all the candidates, who were Petitioners before the Court, the posts on

which they had applied, the educational qualification in terms of the advertisement which was needed and then, the qualifications which the Appellants

had. It goes without saying that the variation in the requirement as per the advertisement and the degrees or diplomas which most of these Appellants

had, by itself indicates the difference. However, during the pendency of the adjudication of the writ applications, a development took place. A

notification dated 02.02.2017 came to be published in the Official Gazette where an amendment was brought about in the two Service Rules relating to

the Engineering Colleges as well as the Polytechnic Colleges of the State of Chhattisgarh. This notification or the amendments now incorporates or

includes the various degrees or diplomas possessed by the Appellants.

Therefore, it was urged before the writ Court that the State Government realized its folly and that was the reason why they brought about the

amendment and incorporated the degrees which most of these Appellants have. It is their stand that even if for the sake of argument, these Appellants

were held to be ineligible at the threshold, there was no ambiguity left now since the State Government itself gave recognition to the degrees of the

Appellants by way of an amendment, brought about in exercise of power under Article 309 of the Constitution of India.

The stand of the Respondents before the learned Single Judge, which is also the stand before us, is that the recruitment exercise has to be carried

out and completed strictly in conformity with the advertisement. All eligibilities and requirements must be in place before the cut-off date and any

subsequent development altering that situation cannot accrue to the advantage of otherwise ineligible candidates. Ineligible here means not having the

requisite qualification in the respective stream.

The learned Single Judge besides taking note of the fact that similar writ applications had earlier stood dismissed but also took note of the plethora

of decisions of the Hon'ble Supreme Court to hold that the notification dated 02.02.2017 cannot come to the rescue of the Appellants, because it has

no retrospectivity. It may help the Appellants in future recruitment, but keeping in mind the well settled principles of law that the rule of the game

cannot be allowed to be changed midway through the process of the game till the recruitment is over. The advantage which the Appellants are looking

for, before the writ Court being embolden by notification dated 02.02.2017 would be unavailable to them, especially, when the notification does not

indicate that it will relate back to when the rules in questions were notified or the advertisement was issued by the Chhattisgarh Public Service

Commission.

The learned Single Judge further went into the argument as to what the expression “relevant subject†for appointment on a post for reference

to the qualification means. He took support from a decision rendered by the Hon'ble Supreme Court in case of Ganapath Singh Gangaram Singh

Rajput v. Gulbargha University Represented by its Registrar and Others reported in (2014) 3 SCC 767. Paragraphs-21 & 22 of the decision of the

Hon'ble Apex Court was reproduced to show that when applications are invited for filling up various posts in different subjects in terms of the

advertisement, the word “relevant subject†in the context of appointment to the post would mean the “relevant subject†and not

“appropriate subjectâ€​.

The learned Single Judge therefore took a view that the Petitioners who are Appellants before us cannot be allowed the benefit of appointment

and consideration, if they do not have the requisite educational qualification in terms of the advertisement and that the amendment to the Rule dated

02.02.2017 cannot be allowed to relate back to the advertisement of 2015.

The counsel representing the Appellants more or less take a similar stand which was taken before the learned Single Judge that if the State

Government had given due recognition to the subjects and the degrees which most of these Appellants had by notifying and incorporating the same by

way of an amendment, the advantage of such a decision should have been allowed to be taken and there should have been a direction for

consideration of their candidature as well.

There are two things which is coming in the way of such a direction. One, that many a candidate who may otherwise would have been aspirants

may not have applied looking at the qualification which was needed for the posts in question. Any recruitment process which is set in motion has to be

completed in terms of the requirement laid down in the advertisement and any leeway, if given midway, would amount to violation of Article 14 and 16

of the Constitution of India.

That is the reason why even the Hon'ble Supreme Court has from time to time reiterated the principle that the rule of the game cannot be changed

midway through the game.

The exercise for recruitment in terms of the advertisement has already been completed and appointments made. No doubt, there were certain

vacancies which subsists after the appointment, but those vacancies will have to carried over for the next round of recruitment exercise or

advertisement which may be issued or will be issued by the State authorities. Insofar as the notification dated 02.02.2017 is concerned, all

advertisements which will be issued after 02.02.2017 for such recruitment will have the amended provisions incorporated in the advertisement and

advantage will surely be drawn by all such eligible candidates, whose degree have now been recognized through the amendment. But the same cannot

be allowed to relate back or there cannot be any direction for consideration of the candidature of such candidates i.e. the Appellants on the basis of

the said amendment.

The Court has been informed by counsel for the Respondents that similar matter was considered by the Division Bench which was WP(S)

No.2992 of 2015 disposed off on 14.09.2015.

It may be so, but the said decision may not have strictly come in the way of grant of any relief to the Appellants provided the other legal

submissions were sustainable in law.

The view taken by the learned Single Judge in the given facts as well as the ambit of the principles of law, which has been pressed in the service

by him cannot be said to be erroneous in any manner and therefore, all the appeals are dismissed being devoid of merit.

Before parting, however, the Court can observe that it will be in the interest of the State that the vacancies which are pending in the Engineering

Colleges and

Polytechnic Colleges in the State of Chhattisgarh would be required to be filled up keeping the interest of the students in mind, because the teacher-

student ratio needs to be maintained and it is the duty of the State to ensure that no subject goes unattended in absence of qualified teachers in those

institutions.