Virender Kumar vs State of H.P. and Others

Kurian Joseph, C.J.—Whether the selection procedure can be varied either in terms of qualification or in terms of procedure thereof, after commencement of the selection process and if so, what is the impact thereof in respect of the vacancies that existed prior to such amendment is the question arising for consideration in this case.

The Petitioner in this case is aggrieved since he has been informed by the Selection Committee that he does not satisfy the qualification for appointment to the post of TGT in various subjects. The main contention of the Petitioner is that he satisfies the qualification as it stood at the time of invitation of the application.

Short facts. The H.P. Subordinate Service Selection Board invited the applications for the post of TGT (Trained Graduate Teacher) in various subjects as per the notification dated 28th August 2008. There is no dispute that the Petitioner satisfied the requirement in terms of the R & P Rules at the relevant time. The written examination was conducted on 22nd July 2009. The Petitioner came out successful in the written examination. Thereafter, he was called for interview. At the time of interview, he was told that he does not satisfy the requirement in terms of the qualification as subsequently prescribed by the department on 22nd October, 2009.

As per the R & P rules, the requirement was only that the candidate should be a graduate in the field concerned, like Arts, Science & Commerce etc. However, as per the notification dated 22nd October 2009, the Department prescribed that the candidate in the field concerned should possess the qualification in terms of the subject combination as subsequently prescribed.

The question raised is whether the rejection of the candidature is justified in the above facts and circumstances? As already stated above, the Petitioner satisfied the requirements of qualification as prescribed in the R & P Rules. The Rules governed the field at the time of notification of the posts. When the selection process commenced, the Petitioner was fully qualified and hence he was permitted to participate in the written test. He was qualified in the test. However, midway, the rules of the game changed and the Department prescribed new qualifications. It is now settled law that the vacancies which existed prior to the amendment of the rules should be filled up only in terms of the rules as they existed prior to the amendment. See decisions of the Supreme Court in Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, Arjun Singh Rathore and Others Vs. B.N. Chaturvedi and Others, A. Manoharan and Others Vs. Union of India (UOI) and Others, A. Manoharan and Ors. v. Union of India and Ors.

Therefore, this writ petition is disposed of directing the department and the Service Selection Board to treat the Petitioner as duly qualified in terms of the qualifications as it existed at the time of the initiation of the selection process. He shall be governed by the merit in the written examination as well as in the interview.

In case, the Petitioner has not been interviewed and in case the Petitioner satisfies the qualification in terms of the judgment, he shall be interviewed forthwith.

The learned Deputy Advocate General contends that no new qualification was prescribed nor was there any amendment in the Rules. The Respondent only clarified the subject combination in terms of each subject. We are afraid, that contention cannot be appreciated. There was no such prescription of subject combination in the R & P Rules, when the applications were invited. The contention that the prescription of the subject combination is only a qualification also cannot be appreciated since it has the effect of prescription of qualification restricting the field of selection. The said R & P Rules stood at the time of issuance of the Notification, in case the Petitioner was qualified, he cannot be disqualified for selection subsequently in terms of clarification. Such a process is not a clarificatory exercise of legislative power. It is nothing but an amendment and the same can have only prospective operation, in respect of the vacancies that would arise after the amendment.

The writ petition is accordingly disposed of, so also the pending application(s), if any.