ALLAHABAD HIGHCOURT, COUTOFF, SHIKSHAK BHARTI : 68500 सहायक अध्यापक भर्ती परीक्षा में कटऑफ से सम्बंधित लखनऊ बेंच में हुई सुनवाई का आर्डर जारी, कोर्ट ने शासनादेश 09 जनवरी 2018 को माना प्रभावी, देखने के लिए क्लिक करें
Court No. - 23 Case :- SERVICE SINGLE No. - 20404 of 2018 Petitioner :- Diwakar Singh Respondent :- State Of U.P. Thru. Spl. Secy. Basic Edu. And Ors. Counsel for Petitioner :- Himanshu Raghave,Durga Prasad Shukla Counsel for Respondent :- C.S.C.,Ajay Kumar Hon'ble Irshad Ali,J . Heard learned counsel for the petitioner. Notice on behalf of respondent nos.1, 2, 3 & 5 has been accepted by the office of learned Chief Standing Counsel, whereas notice on behalf of respondent no.4 has been accepted by Sri Ajay Kumar. Contention of the petitioner is that the State Government, vide notification dated 09.11.2017, made amendment in the U.P Basic Education (Teachers) Service Rules, 1981. Under the aforesaid amendment, procedure under Rule 14 for recruitment of Assistant Teachers procedure has been prescribed. The State Government issued a notification on 09.01.2018, to fill up 68500 posts of Assistant Teachers with certain guidelines and norms for the recruitment of the teachers under the general category as well as under the reserved category. Thereafter, another government order was issued on 17.1.2018, whereby the Examination Regulatory Authority was entrusted power to conduct the recruitment examination by issuing advertisement in the newspaper inviting applications from the eligible and qualified candidates specifying the last date for submission of application form as 17.05.2018. In pursuance thereto an advertisement has been issued in the daily newspaper on 23.01.2018 inviting online applications which was followed by another advertisement (Annexure-9 to the writ petition), wherein last date for submission of application form has been fixed as 17.05.2018 and the date of examination was fixed as 27.05.2018. After initiation of selection proceeding by issuing advertisement, the State Government has issued the impugned government order dated 21.05.2018, whereby certain norms in regard to the selection already initiated has been changed. Assailing the government order dated 21.05.2018, learned counsel for the petitioner submitted that once the selection process has been initiated byissuing an advertisement in accordance with the existing rules applicable to the said selection, the same cannot be changed by issuing a government order or by making amendment under the rules. His next submission is that amended rules and government order issued modifying certain conditions shall be applicable to the next selection and not to the selection which has already been initiated. In support of his submission, he relied upon a judgment of the Hon'ble Supreme Court in the case of Gopal Krushna Rath vs. M.A.A. Baig and others reported in (1999) 1 SCC 544. He also relied upon another judgment of the Hon'ble Supreme Court in the case of K. Manjushree vs. State of Andhra Pradesh and another reported in (2008) 3 SCC 512, the question before Hon'be Supreme Court was that whether correct criterion was adopted in making recruitment for posts of District and Session Judges (Grade-II) which were governed by the Andhra Pradesh State Higher Judicial Service Rules, 1958. The Rules prescribed quota for direct recruitment, educational qualifications, etc. but did not prescribe any criterion for selection. There were however resolutions dated 24.07.2001 and 21.02.2002 which prescribed criteria for selection of candidates. According to prescribed criterion, there were 75 marks for written examination and 25 for interview. It was decided vide Resolution dated 30.11.2004 that exiting criterion would be followed but while holding written examination, 100 marks were prescribed instead of 75. The High Court (on administrative side) made two changes after written examination and interviews were over. First, marks for written examination were proportionately scaled down so as to maintain ratio between written examination and interview as 3: 1 (75:25) instead of 4:1(100:25). This was done because original criterion prescribed 75:25 ratio. Secondly, it introduced minimum qualifying marks for interview also. This resulted in reshuffling of selection list. The Supreme Court considered effect of the resolutions and concluded that the Resolutions dated 24.7.2001 and 21.2.2002 provided qualifying marks for written examination only but not for interview. Per contra, learned standing counsel appearing on behalf of the respondents submitted that by means of the government order dated 21.05.2018 although there are certain amendments under the guidelines but selection process as per Rule 14 has not been initiated till date, therefore, by issuing government order lying down certain otherprovisions than the criteria laiddown under the advertisement will not render the selection process to be illegal. Next submission of learned standing counsel is that due to issuance of government order modifying the qualification prescribed, no prejudice will be caused to the petitioner, therefore, no interference is required under Article 266 of the Constitution of India. Having heard learned counsel for the parties and perused the material on record. On perusal of the government order dated 09.01.2018, it is apparent on the face of record that the State Government notified the recruitment process to be initiated against 68500 posts of Assistant Teachers by fixing criteria therein to make selection in pursuance to the advertisement issued as per Annexure-9 to the writ petition which was subsequently followed by fixing cut off date for submission of application form as well as displaying the date of examination. The impugned government order dated 21.05.2018 has been issued modifying the certain criteria and norms fixed in the advertisement and the guidelines issued at earlier point of time on 09.01.2018. The Hon'ble Supreme Court in the case of Gopal Krushna Rath vs. M.A.A. Baig and others (supra) has held in paragraph 6 of the judgement which is quoted herein below : "6. When the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in the requirement regarding qualifications by the University Grants Commission will not affect the process of selection which has already commenced. Otherwise it would involve issuing a fresh advertisement with the new qualifications. In the case of P. Mahendran v. State of Karnataka this Court has observed: It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. The Court further observed that: Since the amending rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moverover, as the process of selection had already commenced when the amending Rules came into fores, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment." The Hon'ble Supreme Court after considering the aforesaid aspect of the matter has held in the case K. Manjushree vs. State of Andhra Pradesh and another in paragraph 25 of the judgment which is quoted hereinbelow : "25. When the Administrative Committee placed the merit lists and Selection List before Full Court, apparently objections were raised on two grounds. One related to the failure to provide the minimum of 50%, 40% and 35% marks for interviews, on the interpretation of resolution dated 30.11.2004 read with earlier resolutions dated 24.7.2001 and 21.2.2002. The second objection was that even though the Administrative Committee had resolved that the marks for written examination would be 75 and interview would be 25, at the time of tabulating the marks, the marks secured (out of 100 marks) in the written examination had been taken into account without scaling it down with reference to a maximum of 75 marks. The Full Court therefore, appointed a Sub-Committee of two Judges to examine the matter and prepare a fresh merit list and selection list. The Sub-Committee examined the matter and submitted a revised merit list by incorporating two changes. Firstly, while tabulating the marks, it scaled down the marks secured by the candidates in the written examination with reference to a maximum of 100 marks, in proportion to a maximum of 75 marks so that the final marks were with reference to a base of 75 marks for written examination and 25 marks for interview as resolved on 30.11.2004. Secondly, it applied the minimum percentage of 50%, 40% and 35% for OC, BC, SC/ST even in regard to interviews and consequently, eliminated those who secured less than the minimum in the interview from the process of selection. The final selection list was prepared with reference to the fresh merit list prepared by incorporating the said two changes. " The Hon'be Supreme Court has decided the issue that once the selection proceeding initiated in pursuance to an advertisement issued by the department than what will be the date for consideration of the date for initiation of recruitment process. The Hon'ble Supreme Court held that once the advertisement has been issued inviting application on the basis of the existing rule the date of issuance of advertisement inviting application shall be the date of initiation of selection proceeding and the selection shall be made in pursuance thereof as per the existing rule. Any amendment made subsequent to the issuance of selection process will not affect the selection process already started, therefore, the issuance of government order dated 21.05.2018 will not affect the selection proceeding initiated in pursuance to the government order inasmuch as by issuance of advertisement inviting application. In view of the proposition of law settled by the Hon'ble Supreme Court that once the game started by initiating selection proceedings rules of the game cannot be changed, therefore, matter requires consideration.
Learned counsel for the respondents prays for and is granted 03 weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within 02 week thereafter. List this petition after the expiry of the aforesaid period. Until further orders of this Court, the respondents are restrained to implement the guidelines issued under the Government Order dated 21.5.2018 in the selection proceedings initiated in pursuance to the Government Order dated 9.1.2018 and advertisement issued in pursuance thereto (Annexure-9 to the writ petition). Order Date: 24.7.2018 m.a.
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