Rajasthan High Court - Jodhpur

Kailash Choudhary vs State Of Rajasthan (2024:Rj-Jd:38167) on 17 September, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:38167]

 HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                  JODHPUR
           S.B. Civil Writ Petition No. 17316/2023

Kuldeep Bangara S/o Gordhan Ram, Aged About 29
Years, Chua, Nagaur, Rajasthan.
                                                          ----Petitioner
                              Versus
1.      State Of Rajasthan, Through The Secretary,
        Department      Of      Education,         Government        Of
        Rajasthan, Secretariat, Jaipur.
2.      Director,    Secondary         Education          Department,
        Bikaner, Rajasthan.
3.      Joint Director, School Education Department, Pali
        Division, Rajasthan.
4.      District Education Officer, Secondary Education
        Department, Sirohi, Rajasthan.
5.      District Education Officer, Secondary Education
        Department, Nagaur, Rajasthan.
6.      Principal,   Mahatma           Gandhi          Govt.      School
        Sheoganj, Sirohi, Rajasthan.
                                                     ----Respondents
                        Connected With
           S.B. Civil Writ Petition No. 17323/2023
Kailash Choudhary S/o Hanuman Ram Choudhary, Aged
About 23 Years, R/o Ladaniyo Ki Dhaniya, Nevra Road,
Osian, Jodhpur, Rajasthan.
                                                          ----Petitioner
                              Versus
1.      State Of Rajasthan, Through The Secretary,
        Department      Of      Education,         Government        Of
        Rajasthan, Secretariat, Jaipur.
2.      Director,    Secondary         Education          Department,
        Bikaner, Rajasthan.
3.      Joint Director, School           Education Department,
        Bikaner Division, Rajasthan.
4.      District Education Officer, Secondary Education
        Department, Pali, Rajasthan.
5.      District Education Officer, Secondary Education

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        Department, Jodhpur Rural, Rajasthan.
6.      Principal, Mahatma Gandhi Govt. School, Rohat,
        Pali, Rajasthan.
                                                     ----Respondents


For Petitioner(s)      :   Mr. Vikram Singh Bhati
For                    :   Mr. N.K. Mehta, Dy.G.C.
Respondent(s)



          HON'BLE MR. JUSTICE FARJAND ALI

Order

17/09/2024

1. The instant writ petitions are filed with the following

prayers :-

"A. By an appropriate direction, order Writ, any order passed by the respondents denying to include name of petitioner in office order dated 4.10.2023 (Annex-6) may kindly be quashed quashed and set aside qua the petitioner.

B. By an appropriate Writ, order or direction, the respondents may kindly be directed to treat the petitioner as eligible for the purpose of appointment in Mahtma Gandhi English medium school.

C. By an appropriate Writ, order or direction, the respondents may kindly be directed to include name of petitioner in office order dated 4.10.2023 (Annex-6) and provide posting to the petitioner in Mahtma Gandhi English medium school as per choice submitted by petitioner. D. By an appropriate Writ, order or direction, the respondents may

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kindly be directed to relieve the petitioner and permit the petitioner to join at his new posting place.

E. By an appropriate Writ, order or direction, condition no. 13 of office order dated 4.10.2023 (Annex-6) and any order passed by the respondents denying to relieve the petitioner and denying the petitioner to join at new posting place may kindly be quashed and set aside qua the petitioner."

2. Learned counsel for the petitioners submits that in

pursuance to the advertisement, the petitioners entered

into the process of selection, however, their result was

not declared only for the reason that they were already

working in the another scheme of Mahatma Gandhi

School (English Medium). He heavily placed reliance on

the judgment passed by a coordinate Bench of this Court

in a batch of writ petitions led by S.B. Civil Writ

Petition No.16275/2023 [Vikram Singh & Anr. Vs.

State of Rajasthan & Ors.] decided vide order dated

20.10.2023.

3. Mr. NK Mehta learned Dy.G.C. for respondents

department is contended that the case of Vikram Singh

(supra) is not applicable to the case of the petitioners,

since there is distinction between both the cases. In the

case Vikrma Singh (supra), the petitioners of that case

had been selected and were not given posting owing to

the reason that they were already working in the same

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scheme, however, in the present case, a distinct feature

is that the petitioners have not been selected yet.

4. Heard. Perused the material available on the

record.

5. The controversy involved in their cases is squarely

covered by the judgment passed by a coordinate Bench

of this Court in the case of Vikram Singh (supra), the

relevant part of which is reproduced hereunder :-

"10. The Rules of 2023, inter-alia, provide under Rule 8 the eligibility for selection as under:

"8. Eligibility for selection.- Only such persons shall be eligible for consideration for appointment to the posts specified in Schedule- I, who are incumbents of the department, preferably of the district in which vacancies are to be filled, and eligible for posting/appointment in the English Medium Schools on the posts specified in Schedule-I."

11. The Rule specifies that an incumbent of the Department, preferably of the district in which vacancies are to be filled, are eligible for posting/ appointment in English medium schools. Admittedly, the advertisement(s) issued by the respondents only indicated the said eligibility. As the English medium schools are under the School Education Department, Rajasthan as is evident from the Rules of 2023, the petitioners working at Mahatma Gandhi Government (English Medium) Schools, were all incumbents of the Department and as such in terms of the advertisement(s) were clearly eligible. On their filling up the application forms indicating their present place of posting, they were issued the admit cards for the purpose of written examination, a prima facie indication regarding their eligibility. Whereafter, when the result was declared and their names appeared in the merit list, the orders were issued

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according appointment to them at Mahatma Gandhi Government (English Medium) Schools, for which the petitioners had applied.

12. It appears that, in the meanwhile, it dawned on the respondents that those who were already working in English medium schools, their appointments pursuant to fresh advertisement would result in the posts at schools where they were working getting vacant, vide 24.09.2023 (Annex.R/4 filed in CWP No.16275/2023), it was inter-alia stipulated as under :

Þvaxzsth ek/;e fo|ky; ¼S.V.M.S. lfgr½ esa lk{kkRdkj izfØ;k }kjk iwoZ esa p;fur f'k{kd dk iqu% p;u ugha fd;k tk,A p;u gsrq lk{kkRdkj dh i`Fkd ls izfØ;k fd;s tkus dh vko';drk ugha jgsxh] p;u laca/kh 'ks"k fn'kk&funsZ'k iwokZuqlkj ;Fkkor jgsaxsAß"

13. On account of above stipulation, Clause (11), which is under challenge, was inserted in the orders of appointment, as under:

Þ11- mijksDr dkfeZd esa ls ;fn dksbZ dkfeZd iwoZ ls vaxzsth ek/;e fo|ky; ¼S.V.M.S. lfgr½ esa lk{kkRdkj ds ek/;e ;s p;fur gksdj dk;Zjr gS rks ,slh fLFkfr esa mUgsa dk;ZeqDr ugha fd;k tkosAß"

14. Rule 10 of the Rules of 2023 relating to criteria for selection though empower the Director to formulate, amend and issue further detailed instructions as per exigency, besides the other requirements indicated in the Rule reads as under:

"10. Criteria for selection- Selection shall be made by the Selection Committee, concerned after an interview having regard to the personality, character, previous record of service and previous experience in respective services or any other criteria of selection e.g. proficiency in English language communication skill and teaching his/her subject well through English medium or whatever the committee considers to be appropriate. The Director shall be empowered to formulate, amend and issue the further detailed instruction as per the exigency."

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However, the issue which arises is whether the instruction can be issued even after the selection is over so as to disqualify the eligible candidates?

15. The Hon'ble Supreme Court in Suresh kumar Lalit kumar Patel (supra) referred to various decisions dealing with the aspect of changing the qualifying norms and held as under:

"..... An advertisement, made pursuant to a notification, binds the parties. It has got all the trappings of a statutory prescription, unless it becomes contrary to either a rule or an Act. A change, if any, can only be brought forth by way of an amendment and nothing else. Such an amendment even if it is permissible can be tested on the touchstone of Article 14 of the Constitution of India."

16. In the present case, even if it is accepted that the intention to provide for restriction to some extent, may be justified, for the reasons indicated by the counsel for the respondents and noticed hereinbefore, it was necessary for the respondents to have first formulate the instructions in terms of Rule 10 and thereafter issue an advertisement. Once, no such restriction was imposed in the advertisement and the petitioners applied pursuant to the advertisement(s), were subjected to written test, stood in the merit and were issued orders of appointment, but placing restriction of not relieving them, the same clearly amounts to changing the rules of game after the game is over.

17. It would be noticed that the advertisement was issued on17.06.2023 and the directions issued on the said date i.e. 17.06.2023 (Annex.R/

3) only provided that the incumbents of the Department would be eligible and no ineligibility worth the name was indicated qua those already working in Mahatma Gandhi Government (English Medium) Schools. The written test was heldin the

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month of August, 2023 and whereafter the result was declared and it is only after the declaration of the result, just prior to issuance of the orders of appointment that further directions dated 24.09.2023 (Annex.R/4) placing the restriction, noticed hereinbefore, was introduced, which was already too late and as such the restriction imposed in the orders of appointment, based on the said instructions, cannot be sustained.

18. In case the respondents wanted to enforce the said restriction, they were required to clearly indicate the said restriction in the advertisement itself so that those who were already working at English medium schools, did not apply pursuant to the advertisement and subject themselves to the recruitment process and at the end of the recruitment process, were not faced with the situation as the present petitioners have been made to face.

19. Consequently, the writ petitions filed by the petitioners are allowed. Clause (11) indicated in the orders of appointment restricting the relieving the petitioners, is quashed and set aside. The respondents are directed to relieve the petitioners from their present positions and permit them to join at the place(s) where they have been provided appointment by the said orders."

6. Admittedly the advertisement dated 17.06.2023

issued by the Director Secondary Education Rajasthan,

Bikaner, regarding vacancy, does not contain any

condition restraining certain class of persons from

applying in pursuance of the advertisement. Simply

because the petitioners were working in another scheme

of Mahatma Gandhi; they cannot be prohibited from

making an attempt for recruitment in another scheme

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unless it is specified in the advertisement itself. Thus, the

issue is now no more res integra in light of the judgment

referred supra. It does not matter that the petitioners