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SUMER SINGH RATHORE versus STATE & ORS

High Court of Rajasthan

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SUMER SINGH RATHORE v STATE & ORS - CW Case No. 4988 of 2003 [2005] RD-RJ 1107 (2 June 2005)

IN THE HIGH COURT OF JUDICATURE FOR RAJATHAN AT

JODHPUR

S.B.Civil Writ Petition No.4988/2003

Sumer Singh V/s State of Rajasthan and ors.

Date of Order :: 2.6.2005

HON'BLE SHRI R.P. VYAS,J.

Mr.I.R. Choudhary, for the petitioner.

Ms.V. Bora, Assistant G.A.

ORDER

BY THE COURT :

This writ petition under Article 226 of the

Constitution of India has been filed by the petitioner against the respondents with the prayer that by an appropriate writ, order or direction, the impugned directions contained in clause (1) of

Circular dated 16.8.2003 (Annex.R/2) issued by the Director,

Secondary Education, Rajasthan, Bikaner (respondent no.2) directing that for appointment to the post of Physical Training

Instructor (PTI) Gr.III, marks obtained in compulsory subjects of

Vocational Course as well as marks obtained in optional subjects of Bridge Course would be taken into consideration, be quashed and set aside and further, the respondents be directed to prepare a fresh selection list ignoring directions contained in clause (1) of Circular Annex.R/2 dated 16.8.2003 and if the petitioner comes in merit, he may be given appointment. 2. The case of the petitioner as putforward by him in this writ petition is as follows:

The petitioner passed the Secondary School

Examination and thereafter, he passed the Senior

Secondary (Vocational) Examination from the Board of

Secondary Education, Rajasthan, Ajmer.

Thereafter, the petitioner passed Certificate Course of Physical Education Examination.

The further case of the petitioner is that the respondent no.2 Director, Secondary Education, Rajasthan,

Bikaner issued advertisement Annex.1 dated 28.7.2003, which was published in the newspaper "Dainik Bhaskar" on 30.7.2003, inviting applications for recruitment to the posts of Physical Training Instructor (P.T.I.) Gr.III.

In pursuance of the said advertisement Annex.1, the petitioner being eligible applied for the post of Physical

Training Instructor (PTI) Gr.III alongwith the requisite documents.

Thereafter, after scrutiny of the application forms, a provisional merit list was prepared by the respondents.

According to the petitioner, in the said provisional merit list, the name of the petitioner was not placed at proper place.

The further case of the petitioner is that after commencement of the recruitment process, the respondent no.2 Director issued directions to all the

District Education Officers, Secondary Education including respondent no.3 through Circular Annex.R/2 dated 16.8.2003 and as per directions contained in clause (1) of circular Annex.R/2, for appointment to the post of Physical

Training Instructor (PTI) Gr.III, the marks obtained in compulsory subjects of Vocational Course as well as marks obtained in optional subjects of Bridge Course would be taken into consideration.

The petitioner has challenged the aforesaid directions contained in clause 1 of Circular Annex.R/2 dated 16.8.2003 on various grounds and the main case of the petitioner is that the Circular Annex.R/2 was issued by the respondent no.2 Director on 16.8.2003 and prior to that, selection process for appointment to the post of Physical

Training Instructor (PTI) Gr.III had already commenced in pursuance of advertisement dtd.28.7.2003 (Annex.1) and therefore, subsequent issuance of the directions through clause (1) of Circular Annex.R/2 dated 16.8.2003 that for recruitment to the posts of Physical Training Instructor

(PTI) Gr.III, merit list would be prepared taking into consideration the marks obtained in compulsory subjects of Vocational Course as well as marks obtained in optional subjects of Bridge Course, was nothing, but an arbitrary exercise on the part of the respondents and furthermore, since these directions were issued after commencement of selection process and therefore, they would not affect the selection process, which had already commenced, and thus, the action of the respondents preparing merit list on the basis of impugned directions as contained in clause (1) of Circular Annex.R/2 is illegal, unreasonable and contrary to the law laid down by the Hon'ble Supreme Court.

A reply to the writ petition was filed by the respondents and their case is that directions as contained in Circular Annex.R/2 dated 16.8.2003 were issued by the

Director (respondent no.2) for preparing merit list for appointment to the post of Physical Training Instructor

(PTI) Gr.III and as per clause (1) of Circular Annex.R/2, it was decided that while preparing merit list, the marks obtained in compulsory subjects of Vocational Course as well as marks obtained in optional subjects of Bridge

Course would be taken into consideration and since it was a policy matter, therefore, the petitioner cannot challenge the directions contained in clause (1) of Circular

Annex.R/2. Hence, this writ petition deserves to be dismissed. 3. I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the record of the case. 4. There is no dispute on the point that the petitioner passed the Senior Secondary (Vocational) Examination from the Board of Secondary Education, Rajasthan, Ajmer. 5. There is also no dispute on the point that the petitioner passed Certificate Course of Physical Education Examination. 6. There is also no dispute on the point that the respondent no.2 Director, Secondary Education, Rajasthan, Bikaner issued advertisement Annex.1 dated 28.7.2003, which was published in the newspaper Dainik Bhaskar on 30.7.2003, inviting applications for recruitment to the posts of Physical Training

Instructor (P.T.I.) Gr.III and the last date of submission of application forms was 13.8.2003. 7. There is also no dispute on the point that in pursuance of the said advertisement Annex.1 the petitioner submitted his application form for the post of Physical Training Instructor (PTI)

Gr.III alongwith the requisite documents within the stipulated period. 8. There is also no dispute on the point that after scrutiny of the application forms, a provisional merit list was prepared by the respondents and according to the petitioner, he was not placed at proper place. 9. There is also no dispute on the point that the respondent no.2 Director issued directions to all the District Education

Officers, Secondary Education including respondent no.3 through

Circular Annex.R/2 dated 16.8.2003 and as per directions contained in clause (1) of circular Annex.R/2, for appointment to the posts of Physical Training Instructor (PTI) Gr.III, the merit list would be prepared taking into consideration the marks obtained in compulsory subjects of Vocational Course as well as marks obtained in optional subjects of Bridge Course and there is also no dispute on the point that prior to issuance of that Circular

Annex.R/2 dated 16.8.2003, the selection process had already commenced. 10. There is also no dispute on the point that thereafter, a merit list was prepared on the basis of new directions contained in clause (1) of Circular Annex.R/2 dated 16.8.2003. 11. The question for consideration is whether in the facts and circumstances just mentioned above, preparation of fresh merit list for appointment to the posts of Physical Training Instructor

(PTI) Gr.III on the basis of new directions as contained in clause

(1) of Circular Annex.R/2 dated 16.8.2003 is correct one or not. 12. In P.Mahendran and ors. V/s State of Karnataka and ors.

((1990) 1 SCC 411), the Hon'ble Supreme Court has observed as under:-

"Every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights, the rule must be held to be prospective. If a rule is expressed in a language which is fairly capable of either interpretation if ought to be construed as prospective only.

In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure." 13. Thus, from the above wordings of the Hon'ble Supreme

Court, it is crystal clear that every statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. 14. A bare perusal of the Circular Annex.R/2 dated 16.8.2003 especially clause (1) shows that some amendments in the

Notification dated 31.7.2003 were made. 15. The Hon'ble Supreme Court in Gopal Krushna Rath V/s

M.A.A. Baid (dead) by LRs. ((1999) 1 SCC 544) while dealing with recruitment process has observed as under:-

"When the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in 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 new qualifications. In the present case, the appellant possessed necessary qualifications as advertised on the last date of receiving applications. These qualifications were in accordance with the rules/guidelines then in force.

The appellant obtained higher marks than the original respondent 1 (since deceased) at the selection. There is no change to the process of selection, nor is there any allegation of malafide in the process of selection. The appellant's selection is, therefore, upheld." 16. The above authority of the Hon'ble Supreme Court clearly lays down the law that when the selection process has commenced, subsequent amendment would not affect the process of selection which has already commenced. 17. In the present case, as already stated above, in pursuance of the advertisement Annex.1 dated 28.7.2003, the selection process for the post of Physical Training Instructor (PTI) Gr.III had already commenced in accordance with the directions contained in the Notification dated 31.7.2003 and advertisement

Annex.1 dated 28.7.2003 and after that, some amendments in the Notification dated 31.7.2003 in the form of new directions were made by the respondent no.2 Director through impugned clause (1) of Circular Annex.R/2 dated 16.8.2003. That apart the

Hon'ble Supreme Court in the case of Sunita Sharma V/s State of

Rajasthan reported in JT 2001 (10) SC 170 has held that Sr.

Secondary (Vocational) is equivalent to Sr. Secondary

(Academic). 18. In my considered opinion, in view of the law laid down by the Hon'ble Supreme Court in the cases referred to above, since the amendments in the Notification dtd.31.7.2003 in the form of new directions as contained in clause (1) of Circular Annex.R/2 dated 16.8.2003 were made by the respondent no.2 Director after the selection process for the post of Physical Training

Instructor (PTI) Gr.III had already commenced and therefore, the subsequent amendments in the form of directions as contained in clause (1) of Circular Annex.R/2 would not affect the process of selection which had already commenced and thus, the action of the respondents preparing a merit list for recruitment to the post of Physical Training Instructor (PTI)

Gr.III on the basis of new directions as contained in clause (1) of

Circular Annex.R/2 dated 16.8.2003 cannot be sustained and this petition deserves to be allowed.

Accordingly, this writ petition filed by the petitioner is allowed and the respondents are directed to prepare a fresh merit list for recruitment to the posts of Physical

Training Instructor (PTI) Gr.III ignoring new directions as contained in clause (1) of Circular Annex.R/2 dated 16.8.2003 and taking into consideration the directions as contained in the Notification dated 31.7.2003 and advertisement Annext.1 dated 28.7.2003 and in case the petitioner comes within the zone of selection, he may be given appointment. No order as to costs.

(R.P. VYAS)J.

RM/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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