Md. Aman Hassan vs The State Of Bihar
2023 Latest Caselaw 2556 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.6411 of 2022
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Md. Aman Hassan Son of Md. Shamim Hassan Resident of Jabbar Chak, P.S.- Tatarpur, District- Bhagalpur.

... ... Petitioner/s Versus

1. The State of Bihar through the Director, Higher Education, Government of Bihar, New Secretariat, Patna.

2. The Director, Higher Education, Government of Bihar, New Secretariat, Patna.

3. Bihar Animal Sciences University, Near Jai Prakash International Airport, Patna through its Vice Chancellor.

4. The Vice Chancellor, Bihar Animal Sciences University, Near Jai Prakash International Airport, Patna.

5. The Registrar, Bihar Animal Sciences University, Near Jai Prakash International Airport, Patna.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s   :      Mr. Arjun Kumar, Advocate
     For the State          :      Mr. Prabhakar Jha, G.P.-27
                                   Mr. Mukund Mohan Jha, AC to GP-27
     For the University     :      Ms. Namarata Mishra, Advocate.

====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA ORAL JUDGMENT Date : 31-05-2023 Heard Mr. Arjun Kumar, learned counsel for the

petitioner, Mr. Prabhakar Jha, learned G.P.-27 for the State and

Mrs. Namrata Mishra, learned counsel appearing for the Bihar

Animal Sciences University.

2. Dissatisfied with his non selection/appointment on

the post of Assistant Professor Cum Junior Scientist in the

department of Fish Processing Technology in the college of

Fisheries, Kishanganj, under the Bihar Animal Sciences

University, Patna, in short (BASU) under the reserve category of Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

extremely backward class and/or Physically Handicapped

(Divyang), the petitioner has filed the present writ application for a

direction to the respondents to appoint the petitioner on the vacant

post of Assistant Professor cum Junior Scientist under the

appropriate category.

3. The Bihar Animal Sciences University, Patna,

invited on-line applications sometime in February 2020 from

eligible candidates for appointment on the post of University

Professor cum Chief Scientists, Assistant Professor cum Senior

Scientists and Assistant Professor cum Junior Scientist from

eligible candidates vide Employment Notice No. 01 of 2020

describing the eligibility criteria, reservation criteria and other

relevant conditions for appointment in the college of Fisheries.

The last date for submission of on-line application form and fee

was 12.3.2020. As per the advertisement at Annexure-1, there were

five posts of Assistant Professor cum Junior Scientist out of which

one (01) post was unreserved, one (01) post was for EBC-F, one

(01) post was SC, one (01) for BC and one for EWS(Female).

4. Clause 37 of the general instructions and conditions

of the Employment Notice described that as per Circular No.

11/vk0uh0&1&11/2015 lk0izk0 2342 dated 15.02.2016 in case of

unavailability of female candidate (UR-F), SC-F, EBC-F, BC-F Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

and EWS-F post may be filled up with male candidates of same

category in the same transaction. Clause 36 of the general

instructions and conditions of advertisement prescribed that

"reservation shall only be applicable to the original resident of

Bihar State, horizontal reservation to Divyang/Grand Child of

Freedom Fighter shall be applicable as per the guidelines of

Government of Bihar.

5. The petitioner who claims to have fulfilled the

eligibility criteria having first class in Bachelor of Fisheries

Sciences, 7-24 OGPA in Master of Fisheries Sciences, Ph.D from

ICAR-Central Institute of Fisheries Education, Mumbai, National

Eligibility Test qualified, Research Publication Holder in various

topics having publication in various journals, paper presentation

and participants in various Academic seminars of excellence

applied for the post of Assistant Professor cum Junior Scientist in

the department of Fish Processing Technology under the category

of EBC and PWD Physically Handicapped (Divyang). Interview

letter dated 27.8.2021 was issued to the petitioner to appear on

9.9.2021 for interview. The interview of the petitioner was fixed

on 9.9.2021 but, in the meanwhile, on 7.9.2021 the process of

interview was postponed due to some reason and the petitioner

could not be interviewed on 9.9.2021.

Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

6. The respondent Bihar Animal Sciences University,

Patna, re-advertised the earlier posts with minor changes through

Employment Notice No. 05/2021 dated 6.10.2021 with a clear

indication that the candidates who have already applied for the

post earlier vide Employment Notice No. 01 of 2020, need not

apply again as their candidature will be considered subject to

fulfillment of eligibility criteria. There was no change in general

instructions and conditions of advertisement relating to reservation

to EBC category and to Physically Handicapped Persons in the

Employment Notice dated 6.10.2021. The Bihar Animal Sciences

University, Patna, issued a fresh interview letter dated 3.3.2022 to

the petitioner requiring him to appear on 10.03.2022 and was

accordingly interviewed by the Selection Committee. The

petitioner produced all the relevant documents/testimonials,

reservation certificate etc. at the time of interview. The Bihar

Animal Sciences University published the recommendations of the

Selection Committee on 13.3.2022 for appointment on various

posts and three (03) candidates were selected for the post of

Assistant Professor cum Junior Scientist, namely, Dr. Abhishek

Thakur and Dr. Puja Saklani from unreserved category and Dr.

Parmanand Prabhakar from SC category. The petitioner was not

selected despite having required credentials including EBC Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

certificate and PWD (Physically Handicapped (Divyang))

certificate. The petitioner filed a representation in this regard

which is at Annexure-8.

7. A counter affidavit has been filed by the respondent,

Bihar Animal Sciences University, Patna, stating therein that as per

Bihar Government Circular No. 11/2015-GA-2342 dated

15.02.2016, in case of unavailability of female candidate, UR-

Female, SC-Female, EBC-Female, BC-Female and EWS-Female

post may be filled up with the male candidate of the same category

in the same transaction. No female category was available in the

said category. Accordingly, petitioner's candidature was

considered who submitted his application in the category of EBC

and the Screening Committee found him eligible under the EBC-

Female category. The University in its counter affidavit has

admitted that in both advertisements there was provisions that in

case of unavailability of EBC-Female candidate, the post shall be

transferred to EBC-male candidate and there was a provision that

Physically Handicapped Persons shall be given horizontal

reservation.

8. On 10.03.2022 the Selection Committee submitted

its recommendations of suitable and not suitable candidates

wherein three (03) candidates were only found suitable; i.e. one Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

from UR, one from SC and one from EWS category and the

petitioner was declared not found suitable for concerned post as he

could not secure statutory mandatory required percentage of 50 per

cent in interview for selection. The respondent relied upon Bihar

Animal Sciences University Statute, 2020 published in Official

Gazette on 8.2.2022 in this regard, particularly Rule 6 sub Clause

(iii) which says that "a candidate must obtain at least 50 per cent

marks in the interview to be considered in the merit order for

selection". The copy of the Notification dated 8.2.2022 of the Rule

is annexed at Annexure-G to the counter affidavit.

9. Learned counsel for the petitioner argued that in

the advertisement published for appointment and/or in the

interview letter, there was no condition that a candidate was

required to secure at least 50 per cent marks in the interview for

appointment on the post. The process for appointment commenced

in February, 2020 and the advertisement for appointment was

published inviting application from desirable candidates. The

second advertisement was issued on 6.10.2021 and in this

advertisement also there was no condition that a candidate was to

secure 50 per cent marks in the interview.

10. By way of filing counter affidavit at Annexure-

G, for the first time a Notification of the Government of Bihar in Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

Animal and Fisheries Resources Department, dated 7.2.2020 has

been brought on record which was published in Bihar Gazette on

8.2.2022 whereby the Bihar Animal Sciences University Statute,

2020 came into force and made applicable in the University. Rule

6(iii) of the same prescribes that a candidate must obtain at least

50 per cent marks in interview to be considered in the merit order

for selection. Accordingly, the submission is that the Provisions to

secure 50 per cent marks in the interview, came into force after

publication of the Notification/Statute in the Official Gazette on

8.2.2022 whereas the selection process had already commenced in

February 2020 and/or on 6.10.2021 for appointment on the post of

Assistant Professor cum Junior Scientist and other Post when

advertisements were published. As such, any Notification,

Rule/Statute issued after commencement of selection process

cannot be made applicable in the present case.

11. It has further been submitted that neither in the

advertisements nor in the important conditions and instructions

given in the advertisements or in the interview letter, the petitioner

was informed that he was required to secure 50 per cent marks in

the interview, the petitioner was denied appointment only on the

ground that he failed to secure 50 per cent marks in the interview. Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

The petitioner has specifically claimed that two (02) posts are still

vacant and the same has not been denied by the respondents.

12. On the other hand, learned counsel for the

respondents University argued that in both the advertisements,

there was a provision of transferability of candidates in the case of

non-availability of female candidate and provision for Horizontal

Reservation was present. A separate merit list on each category and

every subject of the department was prepared by the Selection

Committee and the Selection Committee submitted its

recommendation for suitable and non-suitable candidates wherein

for the post of Assistant Professor cum Junior Scientist, only three

(03) candidates were found suitable and the petitioner was not

found suitable as he could not secure statutory mandatory required

percentage of 50 per cent marks in interview for selection.

13. Learned counsel has relied upon Rule 6 (iii) of the

Bihar Animal Sciences University Statute 2020 which provides at

least 50 per cent marks in the interview to be considered in the

merit order for selection.

14. I have heard rival submissions of learned counsel

appearing for the parties and have gone through the relevant

materials available on record. Admittedly, the advertisements for

appointment on various posts including the five (05) posts of Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

Assistant Professor cum Junior Scientist in the department of Fish

Processing Technology, college of Kishanganj, was published in

February, 2020 and republished in October, 2021. Petitioner

applied pursuant to the first advertisement published in February,

2020 vide Employment Notice No. 01/2020 under EBC Category

and PWD category. The second advertisement dated 6.10.2021

vide Employment Notice No. 05/2021 clearly indicates that the

candidates who have applied pursuant to the earlier Employment

Notice No. 01/2020, need not apply again and their candidature

would be considered subject to fulfillment of eligibility criteria. It

is also not disputed that the petitioner was found eligible having

fulfilled all the eligibility criteria as per the terms of the

advertisement, was called for the interview and was considered

under EBC category since no female category under EBC category

was available. The evaluation of the petitioner done by the

Selection Committee at Annexure-F to the counter affidavit filed

by the University shows that the petitioner was awarded 6 marks in

the interview out of 15 marks which is below 50 per cent in the

interview, as such, he has been declared not fit for selection.

15. Now the main question which requires

consideration is as to whether the Rules of the game i.e. the criteria Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

for selection can be altered in the midst of the selection process

and/or after the selection process has commenced.

16. As per the settled principle of law, the selection

process starts from the date of issuance of the advertisement when

the applications are called for for the first time. In the present case,

the advertisement was published for the first time sometime in

February, 2020. The selection process comes to an end with the

preparation of select list for appointment. While process of

selection was in progress, the Bihar Animal Sciences Statute, 2020

was notified on 7.2.2020 and was published in the Bihar Gazette

on 8.2.2022 having the Provision in Sub Rule (iii) of Rule 6 of the

Statute which says that "a candidate must obtain at lest 50 per

cent marks in the interview to be considered in the merit order for

selection". It has authoritatively been held by the Apex Court and

various other Courts that the vacancies when advertised under the

rules as prevalent at that time, the selection process when started is

to be completed under the prevalent rules/regulations and any

amendment in the prevalent Rules or introducing a new Rule, if

any, subsequent to the advertisement shall be prospective and the

candidate can not be deprived of his/her right for consideration or

eligibility on the basis of new Rules brought during selection

process and/or the selection process has commenced/started. There Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

is no doubt that the authority competent to make rules and regulate

the selection can prescribe by Rules, the minimum marks for

interview but if minimum marks are not prescribed for interview

before commencement of selection process, it cannot be

introduced in the midst of the selection process.

17. The Hon'ble Supreme Court in the Judgment

reported in (2008) 3 512 (K Manjusree Vs. State of Andhra

Pradesh and Another) has held that the Rules of the game i.e. "the

criteria for selection cannot be altered by the authorities concerned

in the middle or after the process of selection has commenced". If

the Selection Committee wants to prescribe minimum marks for

interview, it should do so before commencement of selection

process. If the Selection Committee prescribed minimum marks

only for the written examination, before commencement of the

selection process, it cannot be either during the selection process

or after the selection process, add an additional requirement that

the candidates should also secure minimum marks in the interview.

18. In another Judgment, the Hon'ble Supreme Court

in the case of Hemani Malhotra Vs. High Court of Delhi with its

analogous case reported in (2008) 7 Page 11 in paragraph-15 has

held which is quoted herenblow:-

Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

"15. There is no manner of doubt that the

authority making rules regulating the

selection can prescribe by rules the

minimum marks both for written

examination and viva voce, but if minimum

marks are not prescribed for viva voce

before the commencement of selection

process, the authority concerned, cannot

either during the selection process or after

the selection process add an additional

requirement/qualification that the candidate

should also secure minimum marks in the

interview. Therefore, this Court is of the

opinion that prescription of minimum marks

by the respondent at viva voce test was

illegal".

19. Coming back to the facts of the present case it has

not been brought on record that at the time of commencement of

selection process, the conditions of advertisements, instructions,

rules and regulations prescribed minimum qualifying marks for

interview. After the commencement of selection process and

before its completion, a rule called "The Bihar Animal Sciences Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

Statute, 2020" was introduced after its publication in the Official

Gazette on 8.2.2022 in which for the first time the minimum

qualifying marks for interview has been prescribed as 50 per cent,

the Selection Committee which sat on 10.03.2022 and interviewed

the petitioner, declared him "not fit for selection" on the ground

that the petitioner did not secure minimum qualifying marks of 50

per cent in the interview inasmuch as out of 15 marks in the

interview, the petitioner has secured only 6 marks.

20. From the discussions hereinabove and the law laid

down by the Hon'ble Apex Court, there is no escape from the

conclusion that after the commencement of the selection process,

the same has to be completed as per the prescribed criteria/rules,

prevalent at that point of time and the amended Rules and/or Rules

introduced during the midst of the selection process shall not apply

to the vacancies advertised prior to coming into force the new

Rules/Statute. The rights of the candidates who applied for

appointment/selection in response to the advertisement when there

was no such criteria of securing minimum qualifying marks in

interview could not be taken away as to debar him from

consideration on the basis of the new Rules/Statute introduced in

the midst of the selection process. It is evident from the available

facts that previous Rules/Advertisements did not have any Patna High Court CWJC No.6411 of 2022 dt.31-05-2023

minimum marks for interview. Therefore, prescribing minimum

qualifying marks for interview was not permissible in the midst of

the selection process. As such, I am of the opinion that prescribing

minimum 50 per cent qualifying marks for interview by the

respondents is illegal and unacceptable.

21. In the result, this writ application is allowed and

the Respondents i.e. Bihar Animal Sciences University, Patna, is

directed to consider the petitioner for appointment on the vacant

post of Assistant Professor cum Junior Scientist under the

appropriate category within a period of one month from the date of

receipt/production of a copy of this order.

22. There shall be no order as to costs.

(Anil Kumar Sinha, J) S.Ali/-

AFR/NAFR                      AFR
CAV DATE                   26/04/2023
Uploading Date             01/06/2023
Transmission Date