AI Structured Summary
Not yet generated for this judgment
Judgment
Om Prakash-VII, Member (J)
The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
i) Issue a writ, order or direction in the nature of certiorari quashing the impugned letter dated 25.7.2011 and 8.8.2011 (Annexure No. 14 and 15 of compilation No.1) by commanding officer respondent authorities.
ii) Issue a writ order or direction in the nature of mandamus commanding the respondents to issue appointment letter to the applicant on the post of Watchman in view of letter dated 26.2.2009 issued by the Commanding Officer.
iii) Issue a writ, order or direction in the nature of this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
iv) To award the cost in the favour of the applicant.
The brief facts of the case are that in pursuance of the advertisement dated 28.3.2008 for selection to the post of Chaukidar, applicant applied. The qualification mentioned in the advertisement was shown as Class 8th pass or qualification of equivalent to class 8th. Applicant appeared in the written and physical test held on 5th June, 2008. He also attended the interview on 24.7.2008 along with all documents required by the respondents. Applicant deposited the medical fitness on 6.3.2009. Applicant approached the department and also submitted representation dated 28.12.2010 for issuing appointment letter but did not receive any information. Commanding Officer issued the information on 8th May, 2011 that the Group D post has been held in abeyance till further order. Ultimately, applicant received the letters dated 25.7.2011 and 8.8.2011. In letter dated 25.7.2011, it has been stated that the selection procedure has been kept in abeyance for the selection of Group D post and in letter dated 8.8.2011, it has been stated that by letter of Central Govt. dated 10.8.2009, the post of group D has been cancelled.
Respondents filed counter reply, inter alia contesting the case of the applicant on the ground that in pursuance of the advertisement for appointment of Chaukidar, applicant applied and had been provisionally selected subject to production of medical fitness. In the meantime, with the recommendations of 6th CPC, the minimum education qualification for a candidate has been mandatorily increased to 10th pass. This is applicable for both Group C and D posts. All existing group D posts that were filled by persons with below 10th pass were provided an option to get into the new band by passing a job training test. However, the fresh recruitment case which were pending could not be finalized in the light of ambiguity in their educational qualification requirement. IHQ, Ministry of Defence issued direction on the subject that no fresh recruitment is to be made against existing Group D posts and recruitment process for the existing Group D posts for which non-availability certificate have already been issued to be kept in abeyance till further orders.
Heard learned counsel for the parties.
Learned counsel for the applicant argued that the selection of the applicant for the post of Chaukidar has not been cancelled till date because no order of cancellation of selection has been issued by the respondents. It is further argued that in the advertisement, the minimum qualification was prescribed as 8th pass or equivalent to 8th and the same cannot be changed between the selection process. Applicant was provisionally selected and he was hoping for appointment letter but respondents in their counter appointment has stated that on the recommendations of 6th CPC, the minimum education qualification for a candidate has been mandatorily increased to 10th pass hence, selection has been kept in abeyance. Learned counsel for the applicant has relied upon the decision of Hon’ble Apex Court in the case of Madan Mohan Sharma and another Vs. State of Rajasthan and others reported in (2008) Supreme Court cases (L&S) 885.
Learned counsel for the respondents argued that as per the VIth CPC recommendations no fresh recrtt. Is to be made against existing Group D posts. Hence rectt. Process for the existing Group D posts for which NACs have already been issued by AG/MP-4(Civ)(b) will be held in abeyance till further orders are issued. This information has been given to the applicant by the respondents vide letter dated 8th May, 2011 (Annexure No. 9 to the O.A.).
We have considered the rival submission and have gone through the entire record.
From perusal of record, it is evident that in the advertisement, the minimum qualification was prescribed for the post was 8th or equivalent to 8th but as per the version of respondents, after coming of 6th CPC, the minimum qualification has been increased to 10th. On the basis of 8th qualification, exam was conducted, applicant qualified the written and interview. He was sent for medical test. Applicant submitted medical certificate and waiting for appointment letter but respondents on the basis of increased qualification has kept the selection in abeyance. No cancellation order has been issued till date.
The legal position is well settled by repeated pronouncements of Hon’ble Supreme Court and of various Honble High Courts in a catena of judgments that “the Rules of the games cannot be changed after the game is over or even in the midst of the game”. In other words, the terms and conditions of selection and appointment contemplated in the recruitment notifications cannot be altered in the mid of the selection process or after completion of the recruitment. Neither the eligibility criteria nor the nature of the appointment or vacancies advertised can underego any change after the publication of the recruitment notification.
In Bishnu Biswas and others Vs. Union of India and others (2014) 5 SCC page 774, an advertisement was published calling applications for appointment to the post of Group ‘D’ staff. The recruitment rules only provided for a written examination having 50 maximum marks. After holding written examination, notice was issued, calling the successful candidates for interview. Although, such interviews was not part of the recruitment process, a select list was published, which was challenged in the Tribunal. The Tribunal returned the finding that the manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The High Court upheld the reasoning of the Tribunal. The Hon’ble Supreme Court in para 19 and 20 held as follows:-
“19. In the instant case, the rules of the game had been changed after conducting the written test and admittedly not at the stage of initiation of the selection process. The marks allocated for the oral interview had been the same as for written test i.e. 50% for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured 47 marks out of 50 in the written test had been given only 20 marks in the interview while large number of candidates got equal marks in the interview as in the written examination. Candidate who secured 34 marks in the written examination was given 45 marks in the interview. Similarly, another candidate who secured 36 marks in the written examination was awarded 45 marks in the interview. The fact that today the so called selected candidates are not in employment, is also a relevant factor to decide the case finally. If the whole selection is scrapped most of the candidates would be ineligible at least in respect of age as the advertisement was issued more than six years ago.
Thus, in the facts of this case the direction of the High Court to continue with the selection process from the point it stood vitiated does not require interference. In view of the above, the appeals are devoid of merit and are accordingly dismissed. No costs.”
Likewise, in Tej Prakash Pathak and others Vs. Rajashthan High Court and others 2013 (4) SCC page 540, it has been held by Hon’ble Apex Court that the criteria for selection cannot be changed during the course of the selection arbitrarily.
Further, in the case of Salam Samarjeet Singh Vs. High Court of Manipur at Imphal, decided on 7th October, 2016, Hon’ble Apex Court has held that rules of the game cannot be changed in midst of the selection process, otherwise it will vitiate the selection. During the selection process, the selection criteria cannot be changed by adding an additional eligibility conditions.
In Ramesh Kumar Vs. High Court of Delhi and another decided on 1.2.2010, Hon’ble Apex Court held that a selection has to be made as per existing rules. After the selection process has been initiated, the selection criteria cannot be changed in the midst of selection process. Once the selection process starts, it is not permissible for the competent authority to change the selection criteria.
In the case of K. Manjusree Vs. State of Andhra Pradesh, Appeal Civil No. 1313/2008, decided on 15.2.2008 by three Judges Constitution Bench , (2008) 3 SCC page 512, Hon’ble Supreme Court, on finding that the introduction of requirement of minimum marks for interview, after the entire selection process consisting of written examination and interview was completed, held that it will amount to changing the rules of game after the game was played and therefore, impermissible.
In the case of Madan Mohan Sharma and another Vs. State of Rajasthan and others (supra), Hon’ble Apex Court held as under:-
“As per the circular which was obtaining at the time when the advertisement was issued was dt. 4.7.1995, the criteria for selection to the post of Teacher Grade III was Secondary Examination though this was changed during the pendency of the advertisement. Subsequent amendment of the Rules which was prospective cannot be made retrospective so as to make the selection on the basis of the Rules which were subsequently amended. If this was to be done, then the only course open was to recall the advertisement No.1/1996 and to issue fresh advertisement according to the Rules which had come into force. Secondly, this was not done and erroneously the authorities made the amended Rules applicable and proceeded with the selection which resulted into litigation and ultimately Radhey Shyam Sharma succeeded in that litigation and it was held that the selection should be made as per Secondary Examination marks, the criteria which was prevalent at the time when the advertisement was issued. “
In the present case, nature of the qualification even though shown in the advertisement as ‘8th or equivalent’ has been altered as 10th after the selection process and on this basis, respondents have kept in abeyance the selection process, wholly in an arbitrary manner. Therefore, the action of the respondents cannot be considered as fair, just and proper. Therefore, we are of the view that a serious prejudice has been caused to the applicant. Hence the applicant is entitled for the relief as prayed for and O.A. deserves to be allowed.
Accordingly, O.A. is allowed. Orders dated 25.7.2011 and 8.2011 are quashed. Respondents are directed to issue appointment letter to the applicant on the post of Watchman considering the qualification as 8th as published in the advertisement. This exercise shall be completed within a period of 2 months from the date of receipt of certified copy of this order.
There shall be no order as to costs.