Madhya Pradesh High Court
Sachindra Dubey vs The State Of M.P. on 15 October, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 12150 of 2023
DR. AMOL SOLEY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WITH
CONC/05067/2023, WP/12040/2023,
WP/12171/2023, WP/12221/2023, WP/12223/2023, WP/12224/2023,
WP/12226/2023, WP/12288/2023, WP/12298/2023, WP/12302/2023,
WP/12415/2023, WP/12436/2023, WP/12458/2023, WP/12477/2023,
WP/12503/2023, WP/12544/2023, WP/12617/2023, WP/12651/2023,
WP/12665/2023, WP/12674/2023, WP/12855/2023, WP/12983/2023,
WP/13482/2023, WP/13571/2023, WP/13855/2023, WP/13993/2023,
WP/14078/2023, WP/14098/2023, WP/14222/2023, WP/14471/2023,
WP/14492/2023, WP/14672/2023, WP/14955/2023, WP/15121/2023,
WP/15123/2023, WP/15136/2023, WP/15637/2023, WP/15673/2023,
WP/15684/2023, WP/15761/2023, WP/15947/2023, WP/16039/2023,
WP/16055/2023, WP/16112/2023, WP/16225/2023, WP/16961/2023,
WP/16969/2023, WP/17121/2023, WP/17299/2023, WP/17357/2023,
WP/17467/2023, WP/17581/2023, WP/17653/2023, WP/18296/2023,
WP/18350/2023, WP/18478/2023, WP/18572/2023, WP/31530/2023,
WP/12105/2023, WP/12517/2023, WP/15526/2023 & WP/6825/2024.
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 10/17/2024
12:38:07 PM
2
........................................................................................................
Appearance:
Shri K.C. Ghildiyal, Shri Anoop Nair and Shri Samdarshi Tiwari, learned
Senior counsels and Shri Amit Kumar Chaturvedi, Shri V.C. Rai, Ms. Shikha Sahu,
Shri P.S. Tomar, Ms. Warija Ghildiyal, Ms. Ritika Chouhan, Shri Akash Singhai, Shri
Palash Upadhyay, Shri Shailesh Tiwari, Shri Akash Kaushal, Shri Priyank
Chansoria, Shri Anshul Tiwari, Shri Sanjay Kumar Malvi, Shri Takmeel Nasir, Shri
Vakeel Ahmed Ansari, Shri Ankit Saxena, Shri Nitin Jain, Shri B.S. Gandhi, Shri
Y.A. Qureshi, Smt. Nirmala Nayak, Shri Aditya Ahiwasi, Shri Sourabh Soni, Shri
Aditya Pachori, Shri Ashish Tiwari, Shri Rajesh Prasad Dubey, Shri Harish
Agnihotri, Shri Shryansh Diwar, Shri Mihir Lunawat, Shri L.N. Sakle, Shri Vikas
Mishra, Shri Vinay Singh Baghel, Shri Arvind Tiwari, Shri Amitabh Bharti, Shri
Satyendra Jain, Shri Rajendra Giri, Smt. Jyoti Jharia, Shri Avadesh Baghel, Smt.
Reena Mishra, Shri Manish Tiwari, Shri Anand Kumar Sharma, Shri Nitin Shukla,
learned counsel for petitioners in their respective petitions.
Shri B.D. Singh, Deputy Advocate General for the respondents-State.
Shri Rahul Diwakar, Shri Siddharth Sudhir Sharma and Shri Aman Gupta -
Advocates for respondent/M.P. Employee Selection Board.
Shri Parag Tiwari - Advocate for respondent/(MPPSC)
..........................................................................................................
ORDER
(Reserved on : 04.10.2024)
(Pronounced on : 15.10.2024)
Per: Hon'ble Shri Justice Vivek Jain.
The All the matters in this batch of writ petitions involves common
question of law and revolve on identical facts, hence, are being decided by
this common order. For the sake of convenience, reference to facts and
documents is taken from WP No. 12150/2023.
2. In WP No.12150/2023 challenge is made to clause 6.2 of the Rule
Book (Annexure P-4) issued in May, 2023 relating to the conduct of
Selection Examination-2023 to be held for appointment on the post of
Uchch Madhyamik Shikshak in School Education Department as also the
Tribal Development Department of the State Government wherein, the
maximum upper age limit to become eligible to appear in the selection
examination-2023 has been prescribed as 40 years for Male candidates
belonging to Unreserved Category and the same has been prescribed as 45
years for the Female candidate belonging to Unreserved category. In other
words, the benefit of circular dated 18.9.2022 (Annexure P-5) has not been
provided which provides that there shall be an additional relaxation of three
years in maximum age limit in the first advertisement issued after the date
of circular i.e. 18.9.2022, looking to the extra-ordinary situation that was
caused by covid-19 pandemic situation.
3. In WP No. 16969/2023, challenge has been made to the order dated
02.5.2023 issued by the respondents whereby for the post of Primary
Teachers also, the maximum age limit for recruitment to the post of
Primary Teachers pursuant to notice/advertisement for counselling of
candidates who appeared in the Eligibility Test of 2020 has been fixed
without granting the benefit of additional three years in terms of circular
dated 18.9.2022, for which similar grievance has been raised, as noted
above by candidates for the post of Uchch Madhyamik Shikshak.
4. It has been contended by the learned counsel for the petitioners that
after issuance of the order/circular dated 18.9.2022, the first recruitment for
Uchch Madhyamik Shikshak was initiated in May, 2023 and Rule-book is
issued alongwith the said first advertisement. Therefore, the petitioners
should be given the benefit of relaxation of additional three years in age
limit in terms of the circular dated 18.9.2022. It is the contention of the
petitioners that the respondents have erroneously not considered the
selection advertisement issued in May, 2023 to be the first advertisement
after 18.9.2022, but have wrongfully reckoned the next counselling notice
out of a series of repeated counselling processes conducted in pursuance to
the Eligibility Test 2018, to be the "first advertisement".
5. The learned counsel for the petitioners have vehemently contended
that the State had framed statutory rules known as Madhya Pradesh School
Education Service (Teaching Cadre), Service Conditions and Recruitment
Rules, 2018 (for short, "Rules of 2018"). Similar rules were framed for
schools run by School Education and Tribal Development Departments.
There was a substantial amendment in the said Rules, notified in the
Gazette on 01.12.2022. It is the case of the petitioners that though the
provision for conducting a Teachers Eligibility Test was put in place by the
National Council for Teachers Education ("NCTE" for short) by issuing
order dated 11.2.2011 exercising powers under Section 23 (1) of the Right
of Children to Free And Compulsory Education Act, 2009 (RTE Act for
short), but the State Government in Madhya Pradesh was reckoning the
Teachers Eligibility Test ("TET" for short) as a composite process of
eligibility as well as selection because no separate selection test was
conducted and on the basis of merit of TET, the appointments were made
by the State. It is the case of the petitioners that for the first time, the State
Government provided for a separate selection and eligibility test by carving
amendment in the rules on 01.12.2022. Thus, the advertisement issued in
May, 2023 for conducting the selection Test is the first advertisement after
18.9.2022, because prior to that, only repeated counselling processes were
being carried out in pursuance to TET of the year 2018, and no separate
selection test was conducted. Therefore, the processes initiated upto
01.12.2022 were only the repeated counselling processes pursuant to TET
of the year 2018, and were not fresh recruitment processes but only
ongoing steps for appointment in pursuance to the TET held in 2018 which
was a composite test of eligibility as well as recruitment. Therefore, the
selection test advertised in May 2023 is the "first" selection after issuance
of relaxation circular/order dated 18.9.2022.
6. Per contra, it was contended by the learned counsel for the State that
"selection process" is separate from "Eligibility Test". Qualifying TET is
the essential qualification as per the NCTE order dated 11.2.2011, as well
as in accordance with the Rules of 2018. TET is a requisite qualification to
participate in the selection test, and the concerned Department as per rule
position even prior to 01.12.2022 used to issue various advertisements after
conducting the TET, though no separate selection test was conducted. It is
the contention of the State that first such advertisement after conducting
TET in 2018 (for Uchch Madhyamik Shikshak) and 2020 (for Primary
Teachers) was issued on the following dates :-
For Uchch Madhyamik Shikshak /Middle School Teacher 29.9.2022
For Primary Teachers 19.10.2022
7. The State counsel thus contended that the "first" advertisement was
exhausted on 29.9.2022/19.10.2022 itself and the benefit of extra 3 years
age relaxation was duly given in the advertisements dated
29.9.2022/19.10.2022. It is also contended that now by the amendment
dated 01.12.2022, the life of TET score/qualification has been extended to
lifetime and that the first advertisement was issued on the above dates for
which the benefit of additional three years age relaxation was duly given,
as indicated from copies of first advertisements placed on record as
Annexure R-2. The State counsel also contended that TET, whether prior to
or after the amendment in rules dated 01.12.2022, is only a eligibility test,
and is like the National Eligibility Test ("NET") conducted for teaching
posts in Colleges and Universities, and the candidates need to appear
separately for selection test/process. Acquiring eligibility should not be
confused with selection as both are different concepts altogether.
8. It was also argued that relaxation is within the sole domain of the
State as policy matter of the State and that relaxation or concession cannot
be claimed as a matter of right by any candidate. The State took a decision
to restrict the benefit of relaxation and that this Court should not enlarge
the scope of relaxation and interfere in a policy decision.
9. The State also pressed in service the decision of Single Bench
rendered on 01.08.2023 in Writ Petition No. 18268/2023 (Seema Sharma
Vs. State of M.P.) and the decision dated 21.09.2023 of the Co-ordinate
Bench rendered in Writ Petition No.13696/2023 (Rampal Yadav Vs.
State of M.P.).
10. Heard the learned counsel for the parties at length and perused the
record.
11. The basic dispute that arises for determination is that which was the
"first advertisement" after 18.9.2022 when the relaxation was granted by
the State. The State has raised a very attractive argument that TET only
relates to acquiring eligibility and that it has nothing to do with actual
selection and after qualifying TET, the actual selection process is conducted
by issuing advertisements for selection. It was countered by the petitioners
raising argument that such repeated notices for appointments, are not real
advertisements, but is actually a counseling process in course of the
selection process that was kicked off by the TET conducted in 2018 for
Uchch Madhyamik Shikshak and in 2020 for Primary Teachers.
12. The Rule position after 01.12.2022 is undisputed, because now a new
clause (qa) to Rule 2 (ii) has been inserted as under :-
"(qa) "Selection Test" means the selection test to be conducted
for appointment to the posts of direct recruitment of teaching
cadre under these rules;"
13. Therefore, now it is undisputed that a separate selection test is
required to be conducted and now in May 2023, indeed a separate selection
test has been advertised, that has lead to the entire dispute arising in the
matter. The argument of the petitioners was that prior to 01.12.2022, the
TET was a composite test, i.e. eligibility test as well as selection test.
14. To appreciate this contention, the unamended position of rules will
be relevant. As per rule -5 of the unamended rules, the process for
recruitment was provided as under :-
5. Method of recruitment.--
(1) After the commencement of these rules, the persons who
have been "appointed under "Madhya Pradesh Panchyat
Adhyapak Samvarg (Employment and Conditions of Service)
Rules, 2008 and Madhya Pradesh Nagriya Nikaya Adhyapak
Samvarg (Employment and Conditions of Service)
Rules,2008;" and are presently working in the educational
institutions of School Education Department in 224
Community Development Blocks and possess other specified
qualifications shall be appointed into the Department at the
time of the initial constitution of the service. The appointment
orders of such persons shall be issued by the Appointing
Authority mentioned in column (6) of Schedule--I after
following the procedure as specified by the Government:
Provided that no person other than those referred to in clause
(b) of rule 2 shall be appointed under these rules.
(2) The Sahayak Adhyapak, Adhyapak and Varistha
Adhyapak appointed under the provision of the "Madhya
Pradesh Panchayat Adhyapak Samvarg (Employment. and
Conditions of Service) Rules, 2008" and the "Madhya
Pradesh Nagariya Nikaya Adhyapak Samvarg (Employment
and Conditions of Service) Rules, 2008" shall be appointed on
the post of Prathmik Shikshak, Madhyamik Shikshak and Ucch
Madhyamik Shikshak respectively.
(3) Sahayak Adhyapak- (Prayogshala), Sahayak Adhyapak.
(PTI), and Sahayak Adhyapak (Vocal/Instrumental) shall be
appointed on the post of Prayogshala Shikshak, Khelkood
Shikshak Category A, and Gayan Vadan Shikshak Category A
respectively.
(4) After making the recruitment under sub-rule (1), (2) and
(3) the subsequent recruitment to the service shall be made by
following methods, namely:-
(a) by selection through Eligibility Examination under direct
recruitment.
(b) by promotion
(Emphasis Supplied)
15. The aforesaid rule 5 (4) (a) clearly contemplated that the eligibility
examination shall be the selection test also, and there was no confusion to
that by the aforesaid rule. This is coupled with the fact that the provision
for conducting separate selection test was laid down for the first time by the
amendment dated 01.12.2022 with insertion of Rule 2 (ii) (qa) as quoted
above.
16. Rule 11 (2) and (8) also makes the situation more vivid. Rule 11
relates to procedure of selection and appointment through direct
recruitment. The amended and unamended provisions are as under :-
Unamended position (upto 30.11.2022)
11. Procedure of Selection and Appointment through Direct
Recruitment.-
xx xx xx
(2) "Teacher Eligibility Examination", hereinafter referred to
as "eligibility examination" shall be conducted for the
recruitment of teachers in the prescribed manner. The
eligibility examination shall be conducted by the agency
designated by the Government. The validity of the eligibility
examination shall be for a period of two years after the
declaration of result or the conduct of the next eligibility
examination, whichever is earlier.
xx xx xx
(8) The advertisement and procedure for appointment shall be
specified by an executive order of the State Government.
Amended w.e.f. 01.12.2022 (in bold)
(2) The Teacher Eligibility Test hereinafter referred to as
the Eligibility Test, shall be conducted in accordance with the
prescribed procedure. This eligibility test will be conducted
by the agency prescribed by the government; the validity of
the eligibility test will be for life. Lifetime validity will be
applicable for the eligibility test held in the year 2018and
onwards.";
Xx xx xx
(8) Subject wise selection test will be organized to fill the
vacant posts of teachers. Only the candidates who have
qualified in the Teacher Eligibility Test will be able to
participate in this selection test. Selection list will be
prepared on the basis of selection test for appointment to
vacant posts of teachers. The selection test will be conducted
by the agency prescribed by the government. The
advertisement and procedure for appointment will be
specified by the executive order of the state government.".
17. The above rule 11 (2) and (8) as inserted on 01.12.2022 leave
nothing to doubt that prior to 01.12.2022, the Eligibility examination in
itself was the eligibility as well as selection test. The estimated number of
posts is clearly mentioned as 17000 in this advertisement/public notice for
TET 2018 for Uchch Madhyamik Shikshak. Clarification (1) to para-7 of
this public notice for TET 2018 further provides that mere acquiring
qualifying marks in TET will not confer vested right to appointment, unless
other terms and conditions for appointment are fulfilled. Thus, this public
notice/advertisement for TET makes it clear as a noon day that no further
selection test was contemplated and appointments were to be made on the
post on the fulfillment of other terms and conditions.
18. During the course of hearing, learned counsel for the State was
unable to dispute the position that no further selection test was conducted
for the candidates who qualified in TET 2018 for Uchch Madhyamik
Shikshak and who were given appointment upto 01.12.2022 (on which date
the rules were amended). Undisputedly, all appointments upto 01.12.2022
were made without conducting any separate recruitment test.
19. Therefore, this Court finds substance in the contention of the learned
counsel for the petitioners that the repeated rounds conducted for
appointment pursuant to declaration of results of TET 2018 were nothing,
but mere counseling processes for appointment, because no further
selection test was ever conducted. These notices for these rounds may be
captioned as "advertisements", but were not advertisements for any fresh
vacancies, but were only repeated rounds for filling the approximate 17000
vacancies that were announced at the time of notifying TET 2018 for
Uchch Madhyamik Shikshak. The so-called advertisements (Annexure R-2)
dated 29.9.2022 (for Uchch Madhyamik Shikshak and Middle School
Teachers) and 19.10.2022 (for Primary Teachers) very clearly mention that
these are counseling processes for appointment pursuant to TET 2018 (for
Uchch Madhyamik Shikshak and Middle School Teachers) and TET 2020
(for Primary Teachers) respectively. These so-called "advertisements" read
as under :-
yksd f'k{k.k lapkyuky; e/;izns'k
xkSre uxj] Hkksiky &462023
dzekad@UCR@81@2022 Hkksiky fnukad 29@09@2022
mPp ek/;fed f'k{kdksa ,oa ek/;fed f'k{kdksa ds fu;kstu gsrq foKkiu
izksQs'kuy ,Xtkfeus'ku cksMZ] e/;izns'k Hkksiky ds }kjk vk;ksftr mPp ek/;fed f'k{kd
,oa ek/;fed f'k{kd ik=rk ijh{kk] 2018 es vgZ ik;s x;s vH;fFkZ;ksa ls Ldwy f'k{kk foHkkx ds
vUrxZr fjDr inksa dh iwfrZ dh tkuh gSA fjfDr;ksa gsrq vkWuykbZu HkrhZ dh izfdz;k mPp
ek/;fed f'k{kd gsrq fnukad 30-09-2022 ls rFkk ek/;fed f'k{kd gsrq fnukad 6-10-2022 ls
vkjaHk dh tk jgh gSA blds rgr vH;FkhZ ,e-ih-vkWuykbZu iksVZy
https://trc.mponline.gov.in ij mPp ek/;fed f'k{kd gsrq fnukad 30-9-2022 dks vijkUg
2 cts ls 10-10-2022 rd rFkk ek/;fed f'k{kd gsrq fnukad 6-10-2022 ls 16-10-2022 rd
izksQkby iath;u dj nLrkost viyksM dj ldsx
a sA fn'kk funsZ'k] fjfDr;ksa ,oa vkj{k.k bR;kfn
ls lacaf/kr foLr`r funsZ'k i`Fkd ls ,e ih vkWuykbZu iksVZy ij 'kh?kz iznf'kZr fd, tk,axsA
(vHk; oekZ)
vk;qDr]
yksd f'k{k.k
yksd f'k{k.k lapkyuky; e/;izns'k
xkSre uxj] Hkksiky& 462023
dzekad @UCR@157@2022@2008 Hkksiky fnukad 19-10-2022
izkFkfed f'k{kdksa ds fu;kstu gsrq foKkiu
izksQs'kuy ,Xtkfeus'ku cksMZ] e/;izns'k Hkksiky ds }kjk vk;ksftr izkFkfed f'k{kd ik=rk
ijh{kk] 2020 esa vgZ ik;s x;s vH;fFkZ;ksa ls Ldwy f'k{kk foHkkx ds vUrxZr fjDr inksa dh iwfrZ
dh tkuh gSA izkFkfed f'k{kd gsrq vkWuykbZu HkrhZ dh izfdz;k fnukad 17-11-2022 ls vkjaHk
dh tk jgh gSA izkFkfed f'k{kdksa dh HkrhZ gsrq Ldwy f'k{kk foHkkx ds 7429 ,oa tkutkfr;
dk;Z foHkkx ds 11098 inksa ij la;qDr dkmalfyax ds ek/;e ls HkrhZ dh dk;ZOkgh dh tk,xhA
e/;izns'k jkT; Ldwy f'k{kk lsok 'kS{kf.kd laoxZ lsok 'krsZa] ,oa HkrhZ fu;e 2018 vkSj bu
fu;eksa esa le; le; ij fd, x, la'kks/kuksa ds vuqlj.k esa izkFkfed f'k{kdksa ds fjDr inksa dh
iwfrZ ds fy, foLr`r ,e-ih-vkWuykbZu iksVZy https://trc.mponline.gov.in ij fnukad
31-10-2022 ls miyC/k jgsxkA fu;qfDr vkns'k lacaf/kr foHkkxksa }kjk muds foHkkx esa izpfyr
fu;eksa ds vuqlkj tkjh fd;s tk,axsaA
(vHk; oekZ)
vk;qDr]
yksd f'k{k.k
The circular in question dated 18.9.2022 carving out age relaxation is
as under :-
e/;izns'k 'kklu
lkekU; iz'kklu foHkkx
ea=ky;
oYyHk Hkou Hkksiky& 462004
dzekad ,Q 07&46@2021@vk-iz-@,d Hkksiky fnukad 18 flrEcj 2022
izfr]
''kklu ds leLr foHkkx]
leLr foHkkxk/;{k]
leLr laHkkx;qDr]
leLr dysDVj]
leLr eq[; dk;Zikyu vf/kdkjh] ftyk iapk;r
e/;izns'k+
fo"k;% & jkT; 'kklu dh lsokvksa esa lh/kh HkrhZ ls Hkjs tkus okys inksa ij fu;qfDr ds
fy;s fu/kkZfjr vf/kdre vk;q lhek esa NwV ckcrA
lanHkZ%& foHkkxh; ifji= dzekad lh&3&8@2016@1@3 Hkksiky fnukad 04 tqykbZ
&&&&&
bl foHkkx ds lanfHkZr ifji= }kjk jkT; ''kklu dh lsokvksa esa lh/kh
HkrhZ ls Hkjs tkus okys inksa ij fu;qfDr;ksa ds fy;s vf/kdre vk;q lhek laca/kh
funsZ'k tkjh fd;s x;s gSA
dksfoM&19 ds dkj.k foxr rhu o"kksZa ls HkrhZ ijh{kk,a fu;fer vk;ksftr
ugha dh tk ldh gSa] vr% vH;kfFkZ;ksa ds fgrksa dks /;ku esa j[krs gq, jkT; 'kklu
fnlEcj 2023 rd vH;kfFkZ;ksa dh vf/kdre vk;q lhek esa rhu o"kksZa dh NwV Hkjs
tkus okys inksa ds laca/k esa tkjh izFke foKkiu esa iznku djrk gSA
e/;izns'k ds jkT;iky ds uke ls
rFkk vkns'kkuqlkj
' ('kSyckyk ,- ekfVZu)
vij lfpo
e/;izns'k 'kklu
lkekU; iz'kklu foHkkx
20. The said circular clearly mentions that the recruitment tests have not
been regularly advertised since last 3 years due to Covid-19 pandemic and
therefore, the State will grant additional 3 years relaxation in maximum age
limit for the "next first advertisement". Even looking to the basic purpose
of this circular, it is evident that it is for those vacancies that are being
advertised for the first time after Covid-19 pandemic. The TET 2018 for
Uchch Madhyamik Shikshak was notified and conducted prior to Covid -
19 pandemic and the number of vacant posts of Uchch Madhyamik
Shikshak were also clearly notified i.e. 17000 posts. The number of Middle
School Teacher vacancies were also notified as 5670 posts. The circular
dated 18.9.2022 was not meant for posts that were already advertised and
notified prior to Covid-19 pandemic. If the respondents Departments in
these particular cases granted such relaxation to repeated rounds being
carried out for posts notified prior to Covid-19 pandemic, then it was their
choice but that would not take away the special age relaxation for the posts
being notified for the first time after Covid-19 pandemic, as provided in
circular dated 18.9.2022. Nothing could be placed on record by the State to
show whether any fresh vacancies apart from the vacancies forming part of
TET notification of 2018 were advertised by the State between 18.9.2022
and May 2023.
21. In the case of Bengal Immunity Co. Ltd. Vs. State of Bihar, AIR
1955 SC 661, the Apex Court has considered the guiding principles in
respect of taking decision over the true interpretation of statute. It be as
Penal or Beneficial, Restrictive or Enlarging Common Law. Four things are
required to be considered which have been considered as under :-
"22. It is a sound rule of construction of a statute firmly
established in England as far back as 1584 when - Heydon's
case, (1584) 3 Co Rep 7a (V) was decided that - "................for
the sure and true interpretation of all Statutes in general (be
they penal or beneficial, restrictive or enlarging of the common
law) four things are to be discerned and considered.
1 st . What was the common law before the making of
the Act., 2 nd . What was the mischief and defect for
which the common law did not provide, 3 rd . What
remedy the Parliament hath resolved and appointed to
cure the disease of the Commonwealth, and 4 th . The
true reason of the remedy; and then the office of all the
judges is always to make such construction as shall
suppress the mischief, and advance the remedy, and to
suppress subtle inventions and evasions for continuance
of the mischief, and pro private commodo, and to add
force and life to the cure and remedy, according to the
true intent of the makers of the Act, pro bono publico."
In the case of Jogendra Yadav Vs. State of Bihar, (2015) 9 SCC 244, the
Apex Court held as under :-
14. It would be apposite to refer to the principle of purposive
construction of a statute invoked by this Court in New India
Assurance Co. Ltd. v. Nusli Neville Wadia [(2008) 3 SCC 279 :
(2008) 1 SCC (Civ) 850] , which is as under : (SCC pp. 296-97,
paras 51-52)
"51. ... With a view to read the provisions of the Act in a
proper and effective manner, we are of the opinion that
literal interpretation, if given, may give rise to an anomaly
or absurdity which must be avoided. So as to enable a
superior court to interpret a statute in a reasonable
manner, the court must place itself in the chair of a
reasonable legislator/author. So done, the rules of
purposive construction have to be resorted to which would
require the construction of the Act in such a manner so as
to see that the object of the Act is fulfilled, which in turn
would lead the beneficiary under the statutory scheme to
fulfil its constitutional obligations as held by the Court
inter alia in Ashoka Mktg. Ltd. [Ashoka Mktg.
Ltd. v. Punjab National Bank, (1990) 4 SCC 406]
52. Barak in his exhaustive work on 'Purposive
Construction' explains various meanings attributed to the
term 'purpose'. It would be in the fitness of discussion to
refer to Purposive Construction in Barak's words:
'Hart and Sachs also appear to treat "purpose" as a
subjective concept. I say "appear" because, although
Hart and Sachs claim that the interpreter should imagine
himself or herself in the legislator's shoes, they introduce
two elements of objectivity : First, the interpreter should
assume that the legislature is composed of reasonable
people seeking to achieve reasonable goals in a
reasonable manner; and second, the interpreter should
accept the non-rebuttable presumption that members of the
legislative body sought to fulfill their constitutional duties
in good faith. This formulation allows the interpreter to
inquire not into the subjective intent of the author, but
rather the intent the author would have had, had he or she
acted reasonably."
22. The principle of purposive interpretation further came up for
consideration in Newtech Promoters & Developers (P) Ltd. v. State of
U.P., (2021) 18 SCC 1 wherein it was held as under :-
"139. It is settled principle of law that if the plain interpretation
does not fulfil the mandate and object of the Act, this Court has
to interpret the law in consonance with the spirit and purpose of
the statute. There is indeed a visible inconsistency in the powers
of the Authority regarding refund of the amount received by the
promoter and the provision of law in Section 18 and the text of
the provision by which such refund can be referred under
Section 40(1). While harmonising the construction of the
scheme of the Act with the right of recovery as mandated in
Section 40(1) of the Act keeping in mind the intention of the
legislature to provide for a speedy recovery of the amount
invested by the allottee along with the interest incurred thereon
is self-explanatory. However, if Section 40(1) is strictly
construed and it is understood to mean that only penalty and
interest on the principal amount are recoverable as arrears of
land revenue, it would defeat the basic purpose of the Act".
23. In the present case, the circular dated 18.9.2022 is very clear in
mentioning that the recruitment tests have not been conducted during last 3
years due to Covid-19 pandemic and therefore, the State has decided to
grant a special relaxation of 3 years in maximum age limit for all those
vacancies that are being notified upto December 2023. The selection test
for Uchch Madhyamik Shikshak has been notified in May 2023 which is
certainly after issuance of circular dated 18.9.2022 and before December
2023. The selection test notified is for 8720 posts of Uchch Madhyamik
Shikshak taken together in School Education and Tribal Development
Departments. True it is that those who have qualified TET in 2018 or 2023
are permitted in this selection process, but it is because now after
01.12.2022, TET is only an eligibility test and is not a selection test and
such candidates who qualified TET 2018 or 2023 will have to appear in
selection test after 01.12.2022.
24. So far as interference in policy decision is concerned, it is well
settled that policy decisions cannot be interfered with unless the policy is
arbitrary, irrational or against law. It is also well settled that in the matter of
policy decision regarding service conditions, the Courts cannot expect
mathematical precision in administrative actions because that is not
possible and Courts should not analyze minute administrative details. What
is important is to know whether mala fides, irrational and extraneous
factors have vitiated and fouled the policy decision. (See- Union of India
Vs. Pushpa Rani, reported in 2008 (9) SCC 242, State of Orissa Vs.
Bihari Charan Khuntia reported in 2003 (10) SCC 144, State of Punjab
and others Vs. Ram Lubhaya Bagga and others (1998) 4 SCC 117,
State of Jharkhand and others Vs. Ashok Kumar Dangi (2011) 13 SCC
383). However, in the present case, this Court has reached to a conclusion
that the respondents Departments i.e. School Education and Tribal
Development Departments, have wrongfully misapplied the policy circular
dated 18.9.2022 issued by the General Administration Department, which
is issued by the State in exercise of its Executive power under Article 162
of the Constitution of India, in the name of the Governor, and thus, was
binding on the respondent Departments of School Education and Tribal
Development. These Departments wrongly denied the benefits of this
policy circular to the candidates who applied for Uchch Madhyamik
Shikshak pursuant to advertisement issued in May 2023, by not treating
that advertisement as "first advertisement" after 18.9.2022.
25. So far as reliance placed by the State on judgment of Single Bench in
Seema Sharma (supra) is concerned, in the aforesaid case, the Single
Bench rightly observed that after 01.12.2022, the selection process is two-
phased process and TET and selection test are now disjointed. However,
the learned Single Judge did not have occasion to consider this fact that the
selection test notified in May 2023 is the first selection for new vacancies
after Covid-19 pandemic, and that the repeated processes that continued
from 2019 till 2022 in pursuance to TET 2018 for Uchch Madhyamik
Shikshak were merely consequential counseling processes pursuant to the
result of TET 2018 for the vacancies already notified at the time of TET
2018 because at that time, TET was the qualifying examination as well as
selection test. It appears that this argument was not tendered before the
learned Single Judge.
26. The Division Bench in Rampal Yadav Vs. State of M.P. (WP No.
13696/2023) has followed the view taken in Seema Sharma (supra), but
the Division Bench has merely recorded that Seema Sharma (supra) has
been decided by coordinate bench and was under impression that it is
bound by the decision in Seema Sharma (supra). However, Seema
Sharma (supra) was decided by a Single Bench and not by the Division
Bench. Even otherwise, in that case also, it was neither brought on record,
nor came up for consideration that the first vacancies after Covid-19
pandemic are notified in May 2023, and therefore, merely because some
stages of counseling pursuant to TET 2018 and 2020 were held after
18.9.2022, would not defeat the rights of candidates who have applied
pursuance to "first advertisement" in May 2023. Thus, the said order is
clearly per-incuriam so far as the issues raised in the present batch of
petitions is concerned, and on the anvil of that order alone, these petitions
cannot be dismissed. So far as reliance on the case of Ravi Mishra Vs.
State of M.P. (WP No.16843/2023) is concerned, the said case related to
selection on the post of Assistant Professor in Higher Education
Department and the legal issue of "first advertisement" never arose in that
case.
27. Therefore, the impugned clause 6.2 of the Rule book so far as it
denies the additional relaxation of 3 years in maximum age limit on
account of Covid-19 pandemic, is held illegal as it runs counter to the
policy circular dated 18.9.2022 issued by the State Government in exercise
of its Executive Power under Article 162 of the Constitution of India. It is
held that the petitioners would be entitled to the benefit of policy circular
dated 18.9.2022 for the first advertisement issued for new vacancies that
were not notified and announced while conducting TET in 2018. The
vacancies notified in May, 2023 by issuing the Rule-book Annexure P-4
will the "first advertisement" for the post of Uchch Madhyamik Shikshak.
28. Some of the petitioners are those who have not participated in the
selection tests for teachers notified in 2023 but were participants in various
rounds of counselling pursuant to TET 2018 and 2020 and seek benefit of
additional relaxation of 3 years in those successive rounds. These
petitioners would not be entitled to any relief.
29. Conc.No.5067/2023 alleging non-compliance of interim order stands
disposed of in view of final order passed in WP No. 18478/2023.
30. The petitions stand allowed and disposed of in the above terms. The
respondents shall be required to conduct selection test for those petitioners
who were not permitted to participate in selection test despite having filed
petition prior to date of test.
31. Let consequential steps be completed by State within two months of
date of this order.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
nks
