Vinita Prajapat vs State Of Rajasthan And Ors
2021 Latest Caselaw 11589 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3336/2018 Vinita Prajapat D/o Shri Bulkichand Prajapat, R/o Ward No.8 Momasar Bas, Shri Dungargarh, Village Dungargarh, District Bikaner, Rajashtan.

----Petitioner Versus

1. The State Of Rajasthan Through The Secretary, Department Of College Education, Secretariat, Jaipur, Rajasthan.

2. The Rajasthan Public Service Commission, Ajmer Through Its Secretary.

3. Deputy Secretary, Rajasthan Public Service Commission, Ajmer, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Shreekant Verma For Respondent(s) : Mr. Rajesh Punia Mr. Rajendra Prasad

JUSTICE DINESH MEHTA

Order

27/07/2021

1. Mr. Rajesh Punia, learned counsel appearing for the

respondents at the outset submits that the issue involved in the

present writ petition is covered against the petitioner by Division

Bench judgment dated 01.06.2019 passed in SAW No.1046/2018

(State of Rajasthan Vs. Indu Bala Kumawat).

2. He further submits that the petitioner has failed in the written

examination and interview, in which petitioner was permitted to

appear pursuant to interim order passed by this Court on

07.03.2018.

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3. The operative portion of the aforesaid judgment dated

01.06.2019 passed in SAW No.1046/2018 (State of Rajasthan Vs.

Indu Bala Kumawat reads thus :-

"23. We have heard learned counsel for the parties, perused the material available on record and the law on the subject.

24. There cannot be any quarrel about the correctness of the proposition that the Regulations issued by the University Grants Commission are applicable to all the State Government run colleges and the Universities and so also about the fact that the educational qualification as provided by the University Grants Commission are applicable to the subject recruitment. But the controversy at hands is entirely different. The core question which is/was involved for the Court's consideration is/was "whether relaxation of 5% marks which was notified on 11.07.2016 by virtue of amendment in the UGC Regulations, is applicable to the subject recruitment, which commenced on 12.01.2015, as a result of publication of the first advertisement."

25. It is settled canon of law that the eligibility conditions and educational qualifications are required to be reckoned as prevailing on the date of the advertisement. In some cases it may however relate to a specific date mentioned in the advertisement or as per the last date of submitting application form, in tune with the relevant rules.

26. In the present case, the concerned clause of the advertisement dated 12.01.2015 unequivocally provides: "as laid down in Gazette of India, September, 18th 2010". The date of advertisement was 12.01.2015, whereas the last date of filling up application form was 27.02.2015 (which incidentally was extended till 31.03.2015). As such the educational qualification and other eligibility criteria prevailing on 12.01.2015 have to be taken into consideration.

27. Any subsequent amendment in the rules providing for different yardsticks, educational qualification or other criteria cannot be made applicable to the recruitment which has begun, as it would amount to changing the rules of game, after the game has stared. That apart, if the amended Regulations are held applicable, it would result in injustice and discrimination to those similarly situated individuals of OBC category, who had not applied for

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the post at all, thinking that they having secured less than 55% percentile are not eligible.

28. Our aforesaid view is fortified by the following precedents of Hon'ble the Supreme Court, firstly in P Mahendran & Ors. Vs. The State of Karanataka & Ors. (supra) relevant portions whereof are being reproduced hereinfra:-

"5. 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. 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 language which is fairly capable of either interpretation it 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. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was 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, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule 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 moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.

7. In view of the above the appellants' selection and appointment could not be held as illegal as the process of selection had commenced in 1983 which had to be completed in accordance with law as

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it stood at the commencement of the selection. The amended Rule could not be applied to invalidate the selection made by the Commission. Strangely the Tribunal did not follow the latest authority of this Court as laid down in Calton case, on the ground that the view taken in that case was contrary to the Constitution Bench decision of this Court in State of Andhra Pradesh v. T. Ramkrishna Rao, [1972] 2 SCC 830. We have carefully considered the decision but we do not find anything therein contrary to the view taken in Calton case."

Secondly, in NT Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors. (supra) relevant portion whereof is being reproduced hereinfra:-

"11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders.

Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The

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legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement.

Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature."

29. We now proceed to delve upon the sheet anchor of the contentions of Mr. Beniwal that "since the condition of the advertisement itself provided that the recruitment will be carried out on the basis of amended rules, the State/University was obliged to extend the benefit of relaxation to the OBC candidates."

30. This argument of learned counsel for the writ petitioners at the first flush appears to be attractive, but if we read the complete clause carefully, the same turns out to be untenable. A close reading and purposive interpretation of the clause leaves no room for ambiguity that it is meant for status of reservation (number of vacancies), and the manner and mode of recruitment only. Hence, in case some amendment is brought in the service rules etc. or with respect to the number of vacancies of the reserved classes or otherwise or the mode of recruitment; then the same is to be applied and duly notified.

31. In the present case, there is neither any change in reservation percentage/status nor is there any change in the process of recruitment. As such, the

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respondents-writ petitioners' claim of seeking relaxation in the eligibility criteria viz. good academic record by taking advantages of such clause which is per se impermissible and untenable, particularly in light of the authoritative pronouncement of Hon'ble the Supreme Court referred herein above.

32. Learned Single Judge has held that the amendment brought by notification dated 11.07.2016 is applicable to all the colleges of the State of Rajasthan, essentially being swayed/influenced by the fact that the condition of the advertisement stipulated that any amendment in the rule from time to time shall govern the selection process.

In our considered opinion, the learned Single Judge has erred in reading/interpreting the contentious condition of the advertisement dated 12.01.2015(reproduced in para 15 supra).

The appeal therefore succeeds; the judgment and order under appeal dated 28.11.2017 is quashed and set aside; and it is held that relaxation of 5% marks to the Other Backward Class candidates brought into force by the amending Regulation of 2016 notified on 11.07.2016, cannot be made applicable to the subject recruitment, which was initiated vide advertisement dated 12.01.2015."

4. Having regard to the submissions made and a perusal of the

judgment aforesaid, the writ petition stands dismissed.

5. Stay petition also stands dismissed accordingly.

(DINESH MEHTA),J 21-Amar/-

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