Dismissed

Dr. Anjali Joshi v. State of Chhattisgarh

Chhattisgarh HC10 May 2019WPS/1512/2019

Case brief

AI extract

What is this about?

This order addressed writ petitions challenging the Chhattisgarh Educational Service Recruitment Rules, 2019, which required a minimum of 50% marks in graduation. The court held the Rules were valid, clarified no inherent power to round off marks without explicit rule provision, and dismissed the petitions while leaving the exercise of relaxation power under the Rules open for others.

What did the court decide?

The writ petitions are dismissed. Interference is declined. The rules are held constitutional and valid.

Dr. Anjali Joshi Vs State of Chhattisgarh — Service and Employment | Chhattisgarh HC (2019)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (S) No. 1512 of 2019

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Dr. Anjali Joshi, aged about 33 years, D/o Shri Hirachand Joshi R/o Quarter No. 2/A, Sadak No. 33, Sector - 11, Zone - 2, Khursipar, Bhilai, District Durg Chhattisgarh.

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Mahesh Kumar Gupta, Aged about 33 years, S/o Shri Ghayneshwar Prasad Gupta R/o Village - Bundiya, Post - Bhatgaon, District Surajpur Chhattisgarh.

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Jafir, Aged about 34 years, S/o Shri Basir Ahmed R/o Ward No. 42, Sahid Abul Hamid Ward Chandmari Road, Ambikapur, District Surguja Chhattisgarh.

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---- Petitioners

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Versus

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State of Chhattisgarh Through Secretary, Department Of Higher Education Mahanadi, Bhavan, Mantralaya, New Raipur, District Raipur Chhattisgarh.

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Chhattisgarh Public Service Commission Through Secretary, Shankar Nagar, Raipur, District Raipur Chhattisgarh.

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The University Grant Commission Through The Secretary, Bahadur Shah Zafar Marg, New Delhi.

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---- Respondents

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And

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Writ Petition (S) No. 2575 of 2019

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Dr. Manjula Dubey, Aged About 43 Years, W/o Shri Umesh Dubey R/o Parijat Colony, District Bilaspur Chhattisgarh

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---- Petitioner

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Versus

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State of Chhattisgarh Through Secretary, Department of Higher Education Mahanadi Bhawan Mantralaya New Raipur District Raipur Chhattisgarh.

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Chhattisgarh Public Service Commission Through Secretary, Shankar, Nagar, Raipur, District Raipur Chhattisgarh.

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The University Grant Commission Through The Secretary, Bahadur, Shah Zafer Marg, New Delhi.

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---- Respondents

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AND

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Writ Petition (S) No. 2836 of 2019

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Smt. Rajeshwari Tiwari W/o Shri Hemant Tiwari Aged About 43 Years R/o Near Water Tank, Ward No. 18, Shikaripara, Baloda, District Balod Chhattisgarh.

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---- Petitioner

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Versus

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State of Chhattisgarh Through Its Secretary, Higher Education Department Mahanadi Bhawan, Mantralaya, Naya Raipur, Raipur Chhattisgarh.

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Chhattisgarh Public Service Commission Through Its Secretary, Shankar Nagar, Road, Raipur Chhattisgarh.

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---- Respondents

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For Petitioner	: Shri Vinay Pandey and Shri Mateen Siddique, Advocates.
For Respondent-State	: Smt. Fouzia Mirza, Additional Advocate General with
	Shri Vikram Sharma, Panel Lawyer.
For Respondent-PSC	: Shri Ashish Shrivastava, Advocate.
For Respondent-UGC	: Shri Sachin Singh Rajput, Advocate.

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Hon'ble Shri P.R. Ramachandra Menon, Chief Justice Hon'ble Shri Prashant Kumar Mishra, Judge

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Order on Board

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Per P.R. Ramachandra Menon, Chief Justice

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10/05/2019

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Selection to the post of Assistant Professor in the Higher Education Department of the 1^st Respondent-State is under challenge in these writ petitions.

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The main grievance is that the qualifications have been prescribed in such a manner that the Petitioners are virtually prevented from participating in the process of selection, despite possessing much higher educational standards, even securing 'Doctorate' in some cases and are virtually weeded out.

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The thrust of the submission is with reference to the irony in prescribing the essential qualifications as to the post graduation and such other traits, which they do satisfy, and still giving importance to the insignificant aspect of acquiring graduation with the 'level' as sought to be secured (50%) so as to have them branded as persons of 'good academic record'. In other words, the non-satisfaction of 50% marks for graduation level, so as to be called as 'persons having good academic record', virtually deter the Petitioners from submitting applications and considering their candidature, though they satisfy all the qualifications prescribed by the University Grants Commission in this regard.

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Writ Petition (C) No. 1512 of 2019 is treated as the lead case.

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We have heard Shri Vinay Pandey and Shri Mateen Siddique, learned counsel for the respective Petitioners, Smt. Fouzia Mirza, learned Additional Advocate General alongwith Shri Vikram Sharma, learned Panel Lawyer for the State, Shri Ashish Shrivastava, learned Standing Counsel for the Respondent-Public Service Commission and Shri Sachin Singh Rajput, learned Standing Counsel for the Respondent-University Grants Commission.

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Factual matrix reveals that all the Petitioners are post graduates and the 1^st Petitioner is having 'Doctorate' as well in the relevant subject. On 23.01.2019 (Annexure P/1) advertisement was issued inviting applications for selection of persons for appointment to various posts including Assistant Professors. The essential qualifications notified are given below:

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“(iv) vko';d 'kS{kf.kd vgZrk, %&

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¼d½ vPNs 'kS{kf.kd fjdkMZ ds lkFk fdlh Hkkjrh; fo'ofo|ky; ls LukrdksRrj mikf/k Lrj esa lacaf/kr fo"k; esa de ls de 55% vad ¼vFkok@,oa 7 fcUnq xzsfMax i)fr esa xzsM ch½ vFkok fdlh ekU;rk izkIr fons'kh fo'ofo|ky; ls led{k mikf/k A

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¼[k½ mijksDr vgZrkvksa dh iwfrZ djus ds ckn Hkh] vH;FkhZ dks ;wthlh] lh,lvkbZvkj }kjk lapkfyr jk"Vªh; ik=rk ijh{kk ¼usV½ vFkok ;wthlh }kjk izR;kf;r ¼EkkU;rk izkIr½ lerqY; ijh{kk tSls fd LVsy@lsV mRrh.kZ djuk gksxkA

¶47

¼x½ mi&[k.M ¼d½ rFkk ¼[k½ esa vUrfoZ"V fdlh ckr ds gksrs gq, Hkh] ,sls vH;FkhZ] ftuds ikl fo'ofo|ky; vuqnku vk;ksx ¼,e‐ fQy@ih,p‐Mh‐ iznku djus ds fy, U;wure ekud ,oa izfdz;k½ fofue;] 2009 ds vuqlkj ih,p‐Mh‐ mikf/k gks ;k ftUgsa iznku dh xbZ gks] dks lgk;d izk/;kid ;k mlds lerqY; in esa HkrhZ rFkk fu;qfDr ds fy;s usV@LysV@lsV dh U;wure ik=rk 'krksZ dh vfuok;Zrk ls NwV jgsxh A

¶48

¼?k½ ,sls fo"k;ksa esa LukrdksRrj dk;Zdze] ftlds fy;s usV@LysV@lsV ijh{kk vk;ksftr ugha dh tkrh gS] ds fy;s usV@LysV@lsV dh vfuok;Zrk ugha gksxh A

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Vhi%& ¼1½ os vH;FkhZ tks] fnukad 11 tqykbZ] 2009 lgk;d izk/;id in ds fy, ,e‐fQy@ih,p‐Mh‐ gsrq ikB~;dzeksa ds fy, iathd`r gSa] mikf/k iznku djus okys lacaf/kr laLFkku ds rRdkfyu v/;kns'k@mifof/k@fofu;eksa }kjk 'kkflr gksaxs A ih,p‐Mh‐ mikf/k /kkjd vH;fFkZ;ksa dks fuEufyf[kr 'krksZa ds v/;/khu U;wure ik=rk 'krksZ ls NwV izkIr gksxh%

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¼d½ vH;FkhZ dks dsoy fu;fer i)fr ls ih,p‐Mh‐ mikf/k iznku dh xbZ gks;

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¼[k½ de ls de nks ckg~; ijh{kdksa }kjk 'kks/k izca/k dk ewY;kadu fd;k x;k gks; ¼x½ vH;FkhZ us vius ih,p‐Mh‐ 'kks/k dk;Z esa ls nks 'kks/k i= izdkf'kr fd, gksa] ftlesa ls de ls de ,d i= lanfHkZr tuZy esa izdkf'kr gqvk gks; ¼?k½ vH;FkhZ us vius ih,p‐Mh‐ 'kks/k dk;Z esa ls nks isij laxksf"B;ksa@lEesyuksa esa izLrqr fd, gksa; ¼³½ vH;FkhZ dk ekSf[kd lk{kkRdkj lapkfyr fd;k x;k gks A mi;ZqDr ¼d½ ls ¼³½ dks dqyifr@izfr&dqyifr@ladk; v/;{k ¼'kS{kf.kd dk;Z½@ ladk; v/;{k ¼fo'ofo|ky; f'k{k.k½ }kjk izekf.kr fd;k tkuk pkfg, A ¼2½ vPNs 'kS{kf.kd fjdkMZ ls vfHkizsr gS %& ¼,d½ Lukrd ¼vaMj xzstq,V½&U;wure 50% ¼3½ ;w‐th‐lh‐ dh ifjorZu rkfydk ds vuqlkj] izfr'kr vadksa dks fuEukuqlkj ifjofrZr fd;k tk;sxk %& Js.kh Js.kh fcUnq ¼ikbZaV½ lerqY; izfr'kr 'O' 5.50 – 6.00 75 – 100 'A' 4.50 – 5.49 65 – 74 'B' 3.50 – 4.49 55 – 64 'C' 2.50 – 3.49 45 – 54 'D' 1.50 – 2.49 35 – 44 'E' 0.50 – 1.49 25 – 34 'F' 0.00 – 0.49 00 - 24 ¼4½ ¼,d½ vuqlwfpr tkfr@vuqlwfpr tutkfr@fu%'kDr O;fDr rFkk nf"Vghu O;fDr@vU; fiNM+k oxZ ¼xSj le) Jsf.k;ka½ ds laoxZ ds O;fDr;ksa dh] f'k{k.k laca/kh LFkkuksa ¼inksa½ ij lh/kh HkrhZ ds nkSjku muds ik=rk ,oa vPNs 'kS{kf.kd fjdkMZ ds fu/kkZj.k ds mn~ns'; ls Lukrd Lrj ij rFkk LukrdksRrj Lrj ij 5% dh NqV miyC/k djkbZ tk ldsxh A ik=rk ds fy, 55% vad ¼vFkok tgka dgha xzsfMax iz.kkyh dk vuqlj.k fd;k tk jgk gS] ogka ij ikbaV Ldsy dh led{k Js.kh esa½ rFkk mijksDr mfYyf[kr laoxksZa ds fy;s 5% dh NwV] fdlh vuqxzg vad ds lfEefyr djus dh izfdz;k ds fcuk] dsoy vgZdkjh vadksa ij vk/kkfjr jgsxh A

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¼nks½ ,sls ih,p‐Mh‐ /kkjd] ftUgksaus viuh LukrdksRrj fMxzh 19 flrEcj 1991 ls iwoZ gh izkIr dj yh gks] ds vadksa esa 5% dh NwV iznku dh tk;sxh tks fd 55% ls 50% gksxh A ¼rhu½ tgka ij fdlh ekU;rk izkIr fo'ofo|ky; }kjk xzsfMax iz.kkyh dk vuqlj.k fd;k tk jgk gks] ogka lacaf/kr Js.kh] tks 55% ds ;Fkk lerqY; ekuh xbZ gks] ik=rk le>h tk;sxh A”

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Under 'tip No. 2', it was stated that the persons to be appointed should be candidates having 'good academic record' and the said term was defined as persons who have secured a minimum of 50% marks at the under graduate level. The case of the Petitioners was that the said stipulation, to have minimum of 50% marks at the graduate level, was insisted virtually in conformity with the Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990 (for short, 'the 1990 Rules) formulated by the State, which however cannot have any application to the case in hand.

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The Petitioners have conceded that the validity of the said Rules was under challenge before this Court on an earlier occasion and after a threadbare analysis of the relevant provisions, it was held that the 1990 Rules was intra-vires and the writ petitions were dismissed accordingly as per Anneuxre P/5. The said decision however cannot place a bar or hurdle in the way of the Petitioners as sought to be contended by them, stating that it has lost significance insofar as new set of Regulations have been formulated and published by the University Grants Commission in the year 2018 namely; " The University Grants Commission (Minimum Qualification for Appointment of Teacher and Other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulation 2018 ". The University Grants Commission does not stipulate any such qualification as disputed herein. Though there was such a stipulation to have obtained 50% of minimum marks at the graduate level, earlier, the same was deleted and as per the rules which govern the field as on date, the Petitioners are qualified in all respects as per the norms stipulated by the University Grants Commission. This being the position, there cannot be any situation prescribing something contrary to the norms prescribed by the University Grants Commission and hence, the candidature of the Petitioners is liable to be considered. It is also contended that, when there is a conflict between the rules prescribed by the University Grants Commission and the qualifications prescribed by the State Government, the former will have to prevail.

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The pleadings and prayers in WP(C) No. 1512 of 2019 were moulded in such a manner that the rules framed by the State Government in the year 1990 had lost its sanctity, insofar as the field is taken over and governed by the University Grants Commission norms. It was asserted that the '1990 Rules' of the State were not amended so as to insist any such rider to have 50% marks in graduation level and hence, only the University Grants

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Commission norms could be given effect to. However, during the course of the proceedings, it was brought on record that the State Government had taken necessary steps to amend the '1990 Rules' and it was accordingly, that Chhattisgarh Educational Service (Collegiate Branch, Gazetted) Recruitment Rules, 2019 ( for short 'the 2019 Rules' ) were framed and published, a copy of which came to be produced as Annexure P/8 in this writ petition. In the said circumstances, the writ petition came to be amended, incorporating additional pleadings/grounds/prayers raising a challenge against the 2019 Rules as well.

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The Petitioners in the other cases have approached this Court raising a similar challenge in respect of the 2019 Rules and contending that the University Grants Commission Regulations will have to be given effect to, in conducting and finalising the selection, by virtue of which the norm of 50% marks in graduation level is not liable to be given effect to.

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There is another ground for some of the Petitioners in the writ petitions that they belong to a reserved category in respect of whom the prescribed minimum marks for graduation level is only 45%. It is stated that they have scored marks less by a fraction of 1% and that the persons who have scored marks of more than 44.5% or more are liable to be declared as having scored the minimum by adopting the principles of rounding off. Such an exercise is stated as permissible in law and reliance is sought to be placed on the verdicts passed by the Apex Court in State of UP & Another v. Pawan Kumar Tiwari & Others ; (2005) 2 SCC 10 (para 7), Kalyani Mathivanan v. K.V.Jeyaraj & Others ; (2015) 6 SCC 363, State of Punjab & Another v. Asha Mehta ; (1997) 11 SCC 410, besides making a reference to the verdict passed by a Division Bench of Madras High Court in The Director of Teacher Education, Research & Training & Others v. Joseph Chellamuthu Teacher Training Institute ; Writ Appeal No. 1582 of 2007 and that of the learned Single Bench of the Rajasthan High Court in

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Shilpi Lodha v. Registrar, National Law University ; Writ Petition No. 2354 of 2017.

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The claim is vehemently opposed by the State, the Public Service Commission and the University Grants Commission, asserting that there cannot be any relaxation of the norms in absence of a clear and enabling provision to have such relaxation. Maintenance of academic standards is of paramount importance and as such, the same cannot be watered down on individual basis. It is stated that there is no conflict between the University Grants Commission norms and the law framed by the State adding that the State is well within its power and authority to prescribe the relevant Rules/norms/criteria in terms of Article 309 of the Constitution of India. It is also pointed out that a similar clause stipulating 'good academic record' defining the need of having 50% marks at the graduation level was existing earlier as well as, in the 1990 Rules; the validity of which was sought to be challenged by filing Writ Petition (S) No. 5201 of 2014 and connected cases. Referring to the binding judicial precedents, a detailed analysis was made by a Division Bench of this Court and the issue has been finalised as per Annexure P/5 judgment dated 27.08.2015. It is exactly the similar Rule, that has been brought into effect while reframing the same as Annexure P/8 in 2019 and as such, the finding and observations made by this Court in Annexure P/5 are equally applicable in respect of Annexure P/8 Rules as well. Reliance is sought to be placed on the verdict rendered by the Apex Court in State of Orissa & Another v. Mamata Mohanty ; (2011) 3 SCC 436 with particular emphasis upon paragraphs 29 to 34, 39 to 42 and 48.

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The learned Standing Counsel for the Public Service Commission draws our attention to the observations made by the Apex Court in paragraph 39 in Mamata Mohanty's case (supra) as to the necessity to have good academic record and to have the selection finalilsed accordingly. Similarly, reference is made to paragraphs 17 to 19, 25 to 27, 29, 31, 34 and 35 of

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Annexure P/5 verdict passed by the Division Bench of this Court, wherein also specific reference has been made to the law declared by the Apex Court on the point. It is pointed out that there was a provision under Rule 24 of the 1990 Rules as to the 'power of relaxation' and the right of the competent authority to grant relaxation in terms of Rule 24 was left open by the Bench while passing Annexure P/5 verdict; adding that similar provision is retained under the new Rules of 2019 as well as (Rule 22).

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While supporting the submissions made by learned counsel for the State and the learned counsel for the Public Service Commission, learned Standing Counsel for the University Grants Commission submits that, earlier, the 1990 Rules insisted for having a minimum marks of 50% marks at the Higher Secondary level as well, besides the need to secure 50% minimum marks in the undergraduate level. Later, a conscious decision was taken to delete the minimum prescribed in respect of the Higher Secondary level alone; while deciding to retain the minimum of 50% marks at the under graduate level. This by itself is a pointer to the effect that the need to maintain the minimum marks at the undergraduate level was felt necessary by the State and that, it is not a case of accidental slip or omission in having the issue considered. Similarly, with regard to the claim for 'rounding off', it is seriously objected by the State, Public Service Commission as well as the University Grants Commission; pointing out that the power to relax the rules has to be specifically provided under the rule itself and in the absence of any rule, no such exercise could be pursued by this Court which will virtually amount to re-writing the law.

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The learned Additional Advocate General submits that the entry 'Education' is at serial No. 25 of the List III i.e. the concurrent list of the 7^th Schedule to the Constitution of India, which of course is 'subject to' entries at Serial No. 63 to 66 of List I, i.e. the Union List. There is no challenge with regard to the power, competence or authority of the State to legislate upon the subject.

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Submission is also made with reference to the dictum in D.S.Nakara & Others v. Union of India ; (1985) 1 SCC 305, adding that there must be intelligible differentia, which is quite lacking in the instant case projected by the Petitioners.

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The first point to be considered is whether there is any conflict between the qualifications stipulated by the University Grants Commission and those stipulated by the State. It is true that the minimum qualification has been set forth by the University Grants Commission as per the Annexure P/3. There is no case that the said Rules/norms have been sought to be watered down by the State in any manner and they stand intact insofar as requisite qualifications have been notified as the prescribed/essential/basic qualifications. What the State has done is that, over and above the qualifications mentioned by the University Grants Commission, so as to maintain the optimum level of academic standards, the State found it appropriate to confine the selection fixing the zone of consideration only to the candidates having good academic records as defined therein i.e. having 50% minimum marks in the under graduation level as well. In other words, the qualifications prescribed by the State is in addition or supplementary to the qualifications prescribed by the University Grants Commission. It is a settled law that there is no bar in fixing higher qualification norms by the State so as to meet their requirements over and above the minimum qualification prescribed by the University Grants Commission or such other authorities.

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Coming to the question of 'rounding off', the learned counsel for the Petitioners submits that such a course is possible and permissible in view of the verdict passed by the Apex Court in Pawan Kumar Tiwari (supra), Kalyani Mathivanan (supra), Asha Mehta (supra) . Going by the above judgments, it is seen that such a course was permitted by the Supreme Court in the particular facts and circumstances of the case, and more

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particularly in relation to the admissions in the academic fields. Of course, the decision rendered by the Apex Court in Pawan Kumar Tiwari (supra) pertains to recruitment of Civil Judges and the circumstances are quite discernible from the factual scenario projected therein. That apart, the benefit given by the Supreme Court by virtue of the exclusive power vested in the Supreme Court under Article 142 of the Constitution of India is not available with this Court.

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With regard to the question of 'rounding off', apart from the submission that such course can be pursued only if the rules specifically provide for the same, the learned Additional Advocate General pointed out that if any such course is pursued or permitted, it will vitiate the whole exercise, insofar as the vested rights of others who are standing in the queue or who could not apply earlier (as such a permissible exercise was not notified in the advertisement) will be very much adversely affected. This Court is aware of the situation that the norms for selection, once notified, cannot be changed during the process of selection. The Apex Court has made it clear that the rules of the game cannot be changed, once the game has commenced, in K. Manjushree v. State of Andhra Pradesh ; (2008) 3 SCC 512. Insofar as Annexure P/1 notification does not provide for any such exercise, there is a possibility that several other similar candidates who could not secure a minimum of 50% in the undergraduate level, but having secured less than a fraction of 0.5% might have chosen to refrain from the field of selection, who otherwise would have applied had it been notified to them then and there. For this reason also, interference of this Court is not warranted.

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The factual position as well as the legal points discussed by the Division Bench of this Court (Annexure P/5) are exactly similar to the case in hand; but for the difference that, in place of Annexure P/8 Rules herein, it was the '1990 Rules' in Annexure P/5 where exactly similar terminology in respect of the term 'good academic record' defining the said term as 'prescribing

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minimum of 50%' existed. It was after considering the said factual aspect, in the light of the relevant provisions of law and the binding precedents, that Annexure P/5 verdict was passed. We are of the view that the said verdict is squarely applicable in the given context in relation to Annexure P/8 Rules.

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For the said reasons, we cannot but hold that the challenge raised against Annexure P/8 Rules as to its constitutional validity fails and no new ground has been brought forth to challenge the said Rules, but for the vague averments. The learned counsel for the Petitioners submits that the power of relaxation is of course protected even in 2019 Rules (Rule 22) and that this Court while passing Annexure P/5 verdict had left the said issue open (with reference to the exactly similar Rule as contained in Rule 24 of the 1990 Rules). We make it clear that similar course could be pursued in the present cases as well and the rights and liberties of the Petitioners who are eligible to seek for the benefit, if any flowing from Rule 22 of the Rules 2019 (Annexure P/8) are left open.

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With the above observations, interference is declined. The writ petitions are dismissed.

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Sd/Sd/( P.R. Ramachandra Menon) (Prashant Kumar Mishra) CHIEF JUSTICE JUDGE

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Amit

Dr. Anjali Joshi v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Dr. Anjali Joshi v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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