Berojgar Shastri Sangh Welfare Society Vs State of HP 12.11.2013 FULL BENCH

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Berojgar Shastri Sangh Welfare Society Vs State of HP 12.11.2013 FULL BENCH

Before :- AM Khanwilkar, C.J., Dev Darshan Sud and Kuldip Singh, JJ.
CWP Nos. 8523 of 2011 along with CWP Nos.8908, 9086, 9103, 9322, 9390, 9392, 9395 and 9399 of 2011, 153, 154, 335, 495, 497 and 501 of 2012 and 1359 of 2013 D/d. 12.11.2013.


Constitution of India, 1950, Article 226

Right of Children to Free and Compulsory Education Act, 2009, Section 25

National Council for Teacher Education Act, 1993, Sections 12 and 31

Himachal Pradesh Elementary Education Department/Shastri/Sanskrit Teacher/O.T. (Class-III, Non-Gazetted) Recruitment and Promotion Rules, 2010

For the Petitioner :- Adarsh Kumar Vashisth, Rakesh Chandel, Vikrant Thakur, Dalip K. Sharma, Sanjeev Kumar Suri and Neeraj K. Sharma, Advocates.
For the Respondent :- Shrawan Dogra, Advocate General, Anoop Rattan, Additional Advocate General, Parul Negi, Deputy Advocate General, Archana Dutt, Raj Kumar Negi and Aruna Sharma, Advocates.

Dev Darshan Sud, J. –

Facts of the case

These writ petitions were placed before the Full Bench on the submission by learned counsel for the petitioners that their case was covered squarely by the decision in Ruby Sharma and Others v. Principal Secretary (Elementary Education) and Others, CWP No.7252 of 2011, though a Division Bench, presided over by Hon’ble the Chief Justice, was pleased to hold by order dated 23.9.2013 passed in CWP No.8523 of, Berojgar Shastri Sangh Welfare Society v. State of HP and Others and companion matters that the points of law raised were covered by the decision of this Court in Desh Raj and Others v. State of HP and Others, CWP No.5278 of 2013-H and other companion matters which were disposed of by a common judgment.

2. In these writ petitions, the petitioners pray that clause-7 of Annexure-A of the HP Elementary Education Department/Shastri/Sanskrit Teacher/O.T. (Class-III, Non Gazetted) Recruitment and Promotion Rules, 2010, be struck down as violative of Part-III of the Constitution of India as the mandatory eligibility qualification for consideration to the post of ‘Shastri’ prescribing 50% marks in the ‘Shastri examination’ conducted by a recognized University/Institution violates the fundamental rights of the petitioners, the recruitment process, initiated pursuant to those Rules, be quashed, a direction issued to the State to consider the petitioners for recruitment on batchwise basis to the post of ‘Shastri’ according to the Recruitment and Promotion Rules which were in vogue at the time when the petitioners had acquired the then prescribed essential qualifications for the said posts, a writ of prohibition restraining the respondents from conducting the Teachers Eligibility Test (TET) on the basis of the Rules impugned (supra) and in case such tests are conducted, the same be quashed and set aside.

3. It is undisputed before us and admitted that by Notification dated April 5, 2010 issued pursuant to sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009, published in the Gazette of India Extraordinary Part-IV, the National Council of Teachers Education was granted the authority to lay down the minimum qualifications for consideration for appointment as a teacher to various posts. The Council issued Notification(s) from time to time prescribing the minimum marks for eligibility in the concerned field. It is these directions which have been incorporated in the said Rules by the State which have been challenged before us.

4. Notification No.EDN-C-A(3)2/2009-II, dated 17.5.2010, was issued by the State in compliance to the Notification issued by the Council where for the post of Shastri/Sanskrit Teacher/Oriental Teacher (O.T.), (Class-III, Non-Gazetted), the minimum educational qualification prescribed for consideration to the post of ‘Shastri’ is 50% marks from a University/Institution recognized by HP Government and desirable qualification of knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the State. These posts were to be filled in 100% by direct recruitment on regular basis or by recruitment on contract basis by (a) 50% on batchwise basis on merit, (b) 50% through HPSSSB, Hamirpur. We note that the posts are to be filled in by direct recruitment and not by promotion. Subsequently, the Rules were amended on 27.8.2012 where again 50% marks in ‘Shastri’ examination and passing of Teacher Eligibility Test to be conducted by the HP State Subordinate Services Selection Board were prescribed as mandatory conditions. There was relaxation up to 5% in minimum educational qualification as also in the marks in the TET for candidates belonging to the Scheduled Castes, Scheduled Tribes/OBC/PH categories.

5. We now advert to the decision in Ruby Sharma and others v. Principal Secretary (Elementary Education) and others, CWP No.5272 of 2011, decided on 27.7.2011, which was urged by learned counsel for the petitioners as determining the case of the petitioners for appointment without obtaining 50% marks in ‘Shastri’ examination. The Court notes the facts and holds:-

“Justice Kurian Joseph, C.J.(Oral).

The petition is filed with the following prayers:

i. To fill up the posts of Language Teacher with equal preference as (50% each) per old and new R and P Rules.

ii. That the Respondent No.3 may kindly be directed to call for the interview the candidates with Language Teacher (LT) eligible upto 2010.

2. Qualification for appointment to the post of Language Teacher as per amendment of 2010 is B.A. with Hindi. However the stand of the department is that those vacancies which arose prior to the amendment will be filled up as per the unamended rules with opportunity for those candidates to acquire the prescribed qualification with the stipulated time. The petitioners are qualified as per the un-amended rules. They apprehend that they will not be called for their batchwise recruitment. There is no dispute that 50% of the vacancies are to be filled up by batchwise recruitment. In respect of those 50% of the vacancies, the candidates who are qualified as per the un-amended rules are to be considered in respect of the vacancies which arose prior to the amendment. The petitioners are apprehending that the people who are qualified with B.A. Hindi will be considered in respect of the batchwise recruitment and the people like the petitioners, who are qualified as per the un-amended rules, will not be considered at all. We do not find any basis for such apprehension. As already stated above, 50% of the vacancies are to be filled up by batchwise recruitment. Among the 50% of the vacancies, those vacancies which arose prior to the amendment of the rules, are to be filled up by those persons who are qualified by the un-amended rules only. In that process, candidates will have to wait for their turn.

3. Needless also to say that in case sufficient number of candidates are not available as per the un-amended rules, in view of the relaxation said to have been given by the government, the petitioners in their turn will also be considered.

4. The writ petition is disposed of, so also the pending application(s), if any.

Copy dasti.

Kurian Joseph, C.J.
VK Sharma, J.”
(Emphasis supplied)

6. We note at this stage that the writ petition was disposed of on the stand adopted on behalf of the State that those vacancies which arose prior to the amendment of the Rules were to be filled up according to the un-amended Rules and no legal principles were raised for determination.

7. In Desh Raj and Others v. State of HP and Others, decided on 12th September, 2013 and companion matters, the case of the petitioners was that they possessed the qualification as prescribed by the Rules of 1975 and by virtue of the new Rules they became ineligible on the basis of the mandatory qualification prescribed therein. The Court noted that the Rules of 2010 were framed pursuant to the mandate contained in Right of Children to Free and Compulsory Education Act, 2009 and the Rules as framed there under. Considering the entire gamut of the case law and the ratio of P.U. Joshi and Others v. Accountant General, Ahmedabad and Others, (2003)2 SCC 632 : AIR 2003 SC 2156 and Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh v. Usha Kheterpal Wale and Others, (2011)9 SCC 645 : AIR 2011 SC 2956 negatived the contention that the Rules are ultra vires the Constitution and that the claim of the petitioners therein who sought to be considered for the post of Physical Trainer was not in consonance with law. We hold that this is the established position in law, but nonetheless, considering the case of the petitioners as urged who rely upon a number of judgments which we notice in all fairness.

8. Learned counsel for the petitioners urge that the amendment incorporated in the Rules applicable to the post of ‘Shastri’ operates retrospectively and takes away vested rights of the petitioners. They submit that the qualifications already acquired by them were in consonance with the un-amended Rules and therefore any subsequent amendment prescribing higher marks is un-constitutional. Reliance was inter alia placed on the decisions of the Supreme Court in TR Kapur and Others v. State of Haryana and Others, 1986(Supp) SCC 584 : AIR 1987 SC 415 and Chairman, Railway Board and Others v. C.R. Rangadhamaiah and Others, (1997)6 SCC 623 : AIR 1997 SC 3828, holding:-

“20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.

24. In many of these decisions the expressions “vested rights” or “accrued rights” have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889, B.S. Badera v. Union of India, AIR 1981 SC 561 and State of Gujarat v. Raman Lal Keshav Lal Soni, AIR 1984 SC 161.” (pp.637-638)

Eligibility qualification criteria – prescribing minimum marks criteria – on the date of advertisement of the vacancies is valid

9. We cannot accept these submissions for the reasons that the law is now well settled and does not require restatement/reiteration that in the case of direct recruitment, which is the case before us, the petitioners cannot plead vested right to a post and consideration has to be in terms of what the qualifications prescribed on the date of advertisement of the vacancies.

Post of Shashtri to be filled up by Direct Recruitment as per prevalent Recruitment & Promotion Rules applicable on the date when the vacancies notified.

10. In J&K Public Service Commission and Others v. Dr.Narinder Mohan and Others, (1994)2 SCC 630 : AIR 1994 SC 1808, the Supreme Court held:-

“12. It is difficult to accept the contention of Shri Rao to adopt the chain system of recruitment by notifying each year’s vacancies and for recruitment of the candidates found eligible for the respective years. It would be fraught with grave consequences. It is settled law that the Government need not immediately notify vacancies as soon as they arose. It is open, as early as possible, to inform the vacancies existing or anticipated to the PSC for recruitment and that every eligible person is entitled to apply for and to be considered of his claim for recruitment provided he satisfies the prescribed requisite qualifications. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for recruitment offending Articles 14 and 16.” (pp.641-642) (Emphasis supplied)

11. Again in Marripati Nagaraja and Others v. Government of Andhra Pradesh and Others, (2007)11 SCC 522 : 2007 AIR SCW 6861, the Court reiterates:-

“14. It is now a well settled principle of law that the rules which would be applicable for selecting the candidates would be the one which were prevailing at the time of the notification. It is also equally well settled that the State may, subject to constitutional limitations, amend the rule with retrospective effect. .

16. The State, in exercise of its power conferred upon it under the proviso appended to Article 309 of the Constitution of India, is entitled to make rules with retrospective effect and retro-active operation. Ordinarily, in absence of any rule and that too a rule which was expressly given a retrospective effect, the rules prevailing as on the date of the notification are to be applied. But if some rule has been given a retrospective effect which is within the domain of the State, unless the same is set aside as being unconstitutional, the consequences flowing therefrom shall ensure. In such an event, the applicable rule would not be the rule which was existing but the one which had been validly brought on the statute book from an anterior date. The Tribunal and the High Court, therefore, in our opinion, committed an error in opining otherwise, particularly when the constitutionality of the said rule was not in question.

17. In N.T. Devin Katti v. Karnataka Public Service Commission (1990)3 SCC 157 : AIR 1990 SC 1233, this Court categorically held:- (SCC p.165 para 11)

“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 selection 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 crystallises 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 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 of 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 of 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.” (pp.526-528) (Emphasis supplied)

12. We need not multiply precedent any further or restate the settled law applicable in the case of direct recruitment as the principle by now is well settled that recruitment to the posts by direct recruitment is governed by the Rules as prevalent on the date when the vacancies were notified.

13. In Ruby Sharma’s case (supra), the decision was on the stand adopted by the State. Pursuant to Section 25 of the Right of Children to Free and Compulsory Education Act, 2009, the National Council for Teachers Education was authorized to prescribe the minimum qualification for teachers and the State was only implementing those through amendment in the Rules.

14. We hold that Desh Raj’s case lays down the correct principle of law and that what has been decided in Ruby Sharma’s case is on the basis of concession which does not alter the settled law. The reference is answered accordingly.

Writ petitions are accordingly directed to be placed before the appropriate Division Bench for consideration.

Order accordingly.

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