Allowed

State of Rajasthan v. Indu Bala Kumawat and Ors.

Rajasthan HC1 Jun 2019SAW/1046/2018

Case brief

AI extract

What is this about?

The High Court of Rajasthan disposed of an intra-court appeal against a single judge’s order relaxing eligibility marks for OBC candidates. The bench held that eligibility conditions must prevail on the date of the advertisement and rejected the claim that a regulatory amendment could alter academic qualifications mid-process.

What did the court decide?

Quashed and set aside the order allowing 5% marks relaxation to OBC candidates and held such relaxation not applicable to recruitment initiated in January 2015.

State of Rajasthan Vs Indu Bala Kumawat and Ors. — Service and Employment | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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D.B. Spl. Appl. Writ No. 1046/2018

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The State of Rajasthan through the Principal Secretary, Department of Higher Education, Government of Rajasthan, Jaipur.

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----Appellant

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Versus

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Indu Bala Kumawat D/o Kanhaiyalal Kumawat, aged about 41 years, R/o 104, Kamla Nehru Colony, New Power House Road, Jodhpur.

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The University Grants Commission, New Delhi through its Secretary, Bahadur Shah Zafar Marg, New Delhi.

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The Rajasthan Public Service Commission, Ajmer through its Secretary.

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----Respondents

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For Appellant(s) : Mr. Manish Vyas, Additional Advocate General For Respondent(s) : Mr. Deepesh Beniwal

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HON'BLE THE CHIEF JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE DINESH MEHTA

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Judgment

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Reserved on :: 21st May 2019 st Pronounced on :: 1 June 2019

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(Per Hon’ble Dinesh Mehta, J)

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The present intra Court appeal has been preferred against the judgment and order dated 28.11.2017, passed by learned Single Judge rendered in a bunch of writ petitions led by S.B. Civil Writ Petition No.7545/2017 ( Lalit Kumar Vs. University Grants Commission & Ors.).

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It is to be noted that appointments for the post of Lecturers

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in the State of Rajasthan are governed by Rajasthan Educational

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(2 of 14)

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[SAW-1046/2018]

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Service Collegiate Branch Rules, 1986 (hereinafter referred to as “the Rules of 1986”). The Rules of 1986 instead of prescribing separate qualifications for the posts, adopts the criteria and qualifications for direct recruitment prescribed by University Grants Commission. The relevant provision contained in the Schedule appended with the Rules of 1986 reads thus:-

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“Qualifications as laid down from time to time by the University Grants Commission.

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Where no qualification have been prescribed by the University Grants Commission for the posts in certain subjects, the qualification as prescribed by the State Government through a notification in consultation with the University Grants Commission and/or the University where that particular subject is being taught.”

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The respondent No.2, the Rajasthan Public Service Commission issued an advertisement dated 12.01.2015, inviting applications for the post of Lecturers in various subjects.

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In light of the above provision regarding educational qualifications, the advertisement in question simply referred to the UGC Regulations in the following terms:-

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“”kS{kf.kd ;ksX;rk,a %& ¼in Øe la[;k 1 ls 26 rd ds fy,½

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As laid down in the Gazette of India, September 18, 2010)

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4.4.1 Arts, Humanities, Sciences, Social Sciences, Commerce, Education, Language, Law, Journalism and Mass Communication

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i. Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master’s Degree level in a relevant subject from an Indian University or an equivalent degree from an accredited foreign university.

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ii. Beside fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET.

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(3 of 14)

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[SAW-1046/2018]

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iii. Notwithstanding anything contained in subclauses (i) and (ii) to this Clause 4.4.1. candidates, who are, or have been awarded a Ph.D Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions.

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iv. NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted.”

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The advertisement also contained a clause regarding

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relaxation in the eligibility criteria, which reads as under:

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“¼v½ vuqlwfpr tkfr@tutkfr ds vH;fFkZ;ksa dks LukrdksRrj ijh{kk esa 5 izfr”kr dh NwV nsdj 55 izfr”kr ls 50 izfr”krA ¼c½ fnukad 19-09-1991 ls iwoZ LukrdksRrj Lrj dh fMxzh izkIr vH;fFkZ;ksa dks ih,p-Mh- mikf/k /kkj.k djus ij LukrdksRrj Lrj esa 5 izfr”kr dh NwV nsdj 55 ls 50 izfr”krA ¼l½ fu%”kDrtu ds vH;fFkZ;ksa dks LukrdksRrj ijh{kk esa 5 izfr”kr dh NwV nsdj 55 izfr”kr ls 50 izfr”krA”

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It is relevant to note that the University Grants Commission issued Regulations of 2010 (came into force w.e.f. 18.09.2010) which apart from all other things, prescribed the minimum qualifications for direct recruitment of University and College Teachers. It will not be out of context to refer to the relevant provision of the UGC Regulations, 2010 or the notification dated 18.09.2010:-

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“ 3.0.0 RECRUITMENT AND QUALIFICATIONS

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3.3.0 The minimum requirements of a good academic record, 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master’s Level and qualifying in the National Eligibility Test (NET), or an accredited test (State Level Eligibility Test – SLET/SET), shall remain for the appointment of Assistant Professors.

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3.4.1 A relaxation of 5% may be provided at the graduate and master’s level for the Scheduled Caste/Scheduled Tribe/Differently – abled (Physically

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(4 of 14)

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[SAW-1046/2018]

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and Visually differently-abled) categories for the purpose of eligibility and for assessing good academic record during direct recruitment to teaching position. The eligibility marks of 55% marks (or an equivalent grade in a point scale wherever grading system is followed) and the relaxation of 5% to the categories mentioned above are permissible, based on only the qualifying marks without including any grace mark procedure.”

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The above Regulations of 2010 came to be amended by way of the University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) (4^th Amendment) Regulations, 2016 (hereinafter referred to as “the Regulations of 2016), which were published in official gazette on 11.07.2016.

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As a result of the above amendment, the relevant Regulation

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3.4.1 of the Regulations came to be substituted by the following:-

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“A relaxation of 5% may be provided at the graduate and Masters level for the Scheduled Castes/Scheduled Tribes/Differently-abled (physically and visually differently-abled)/ Other Backward Classes (OBC) (Non-creamy layer) categories for the purpose of eligibility and for assessing good academic records during direct recruitment to teaching positions. The eligibility marks of 55% marks (or an equivalent grade in a point scale wherever grading system is followed and the relaxation of 5% to the categories mentioned above are permissible, based on only the qualifying marks without including any grace mark procedures.”

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9 . If the Regulations of 2010, as they existed prior to amendment on 11.07.2016, are kept in juxtaposition with the corresponding Regulation 3.4.1 after the amendment, it transpires that earlier a relaxation of 5% marks was available at the graduate and master’s level to the candidates of Scheduled Castes/Scheduled Tribes, Differently – abled (Physically and

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(5 of 14)

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[SAW-1046/2018]

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Visually differently-abled) categories which has been extended or provided to ‘Other Backward Class [OBC(non-creamy layer)] category’ also.

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It is pertinent to note that initially the last date for submitting the application was 27.02.2015, which was subsequently extended to 26.03.2015 (vide press release dated 25.02.2015) and to 31.03.2015 (vide press release dated 27.03.2015). 11. It may also be worthwhile to note that the vacancy position and class-wise reservation initially advertised vide notification dated 12.01.2015 also stood revised twice and corrigendum advertisements dated 15.10.2015, 04.03.2016 and 01.09.2016 came to be published. Other conditions including the education qualifications etc. however remained the same. Needless to state that the date of submitting the application was also extended qua the additional vacancies so advertised, in order to allow the interested candidates to fill forms, with a stipulation that the candidates who have already submitted their application form need not furnish the form afresh.

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An appraisal of the above referred advertisement dated 15.10.2015; 04.03.2016; and 01.09.2016; placed on the record of the writ petition and the conditions appended thereto reveals that the educational qualification and other eligibility conditions notwithstanding the increase/addition of the vacancy positions remained the same.

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The respondent Indu Bala Kumawat(writ petitioner in S.B. Civil Writ Petition No.7546/2017) cleared the written examination conducted for the purpose of shortlisting of the candidates but she

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(6 of 14)

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[SAW-1046/2018]

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was not called for interviews (commenced from 22.05.2017), as she had secured less than 55% marks. Hence, she approached this Court by way of filing a writ petition, inter-alia, contending that she, being an Other Backward Class candidate, was entitled for relaxation of 5% in her marks, as the relaxation of 5% was extended to OBC candidates also, by virtue of the amendment in the Regulations brought into force on 11.07.2016.

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The respondents – writ petitioner, inter-alia, contended that the relaxation of 5% brought in force by the University Grants Commission Regulations, 2016 with effect from 11.07.2016 is applicable to her, as the recruitment process commenced only after the number of vacancies under different categories and subjects were finalized. According to her the same continued till issuance of the advertisement dated 01.09.2016, and by such time the Regulation No.3.4.1 stood amended making OBC candidates entitled for relaxation.

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The petitioner laid emphasis on following note appended with the ‘other particular’ clause of the advertisement, to contend that the amended Regulation would apply.

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“(vkj{k.k dh fLFkfr ,oa fu;qfDr izfØ;k jkT; ljdkj ds funsZ”kksa ,oa uohure fu;eksa ds v/;/khu ifjorZuh; gksxhA bl izdkj lacaf/kr lsok fu;eksa esa ;fn dksbZ la”kks/ku gksrk gS] rks HkrhZ@laoh{kk ijh{kk mlds vuqlkj vk;ksftr dh tk,xh] ftlds fy, ;Fkkle; vf/klwfpr dj fn;k tk,xkA)”

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The appellant-State filed reply to the writ petition and opposed petitioner’s stand by contending that the relaxation of 5% was not available to OBC candidates in terms of Regulation 3.4.1, as it existed, on the date of issuance of the advertisement, i.e. 12.01.2015. It was contended that the University Grants

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(7 of 14) [SAW-1046/2018]

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Commission Regulations, which came to be amended on 11.07.2016, cannot be made applicable to the vacancies advertised prior to conferment of such benefit to the OBC Candidates. In relation to the corrigenda dated 15.10.2015; 04.03.2016; and 01.09.2016; it was sought to be clarified that the same were confined to the stipulation regarding additional vacancies, scheme for examination and syllabus etc. and as far as eligibility conditions are concerned, there was no amendment/alteration and they were freezed on the date of issuance of the advertisement.

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The learned Single Judge by way of the order under challenge, passed on 28.11.2017, allowed the writ petition(s) filed by the respondent and other candidates and held that the amendment brought in the Regulations by notification dated 11.07.2016, extending relaxation of 5% to Other Backward Classes is applicable to the recruitment in question. The operative portion of the judgment of the learned Single Judge reads thus:-

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“18. It is not disputed that all the Colleges of State of Rajasthan are affiliated to UGC. The condition of the advertisement stating that any amendment in the Rules from time to time shall govern the selection process makes it very clear that any changes in the Rules shall be governed even when the selection process is going and thus the notification of 11^th July, 2016 by which University Grants Commission has amended Regulation 3.4.1 by extending the scope of relaxation of 5% to the other backward classes (Creamy layer) and the same shall be applicable in the present recruitment process as per the respondent themselves.

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19. Thus in view of the aforesaid observations the present writ petitions are allowed and the respondents are directed to provide relaxation of 5% marks at UG Level, PG Level and for assessment of good academic record to the candidates belonging to SC/ST/OBC and PH Category as being mandated by the UGC Regulations of 2010 and 2016. Since

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(8 of 14)

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[SAW-1046/2018]

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already an interim order was operating in favour of the petitioners and they have participated in the selection process for the post and the selections have not culminated into finality therefore the present order shall be applicable for all petitioners only as reinitiating the selection shall be prejudicial to all the participating candidates. ”

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The State Government by way of the present intra-Court appeal called in question the judgment and order dated 28.11.2017, passed by learned Single Judge, primarily on the ground that the relaxation of 5% ordered to be given to the candidates belonging to Other Backward Classes is impermissible in law and the judgment unsustainable.

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Mr. Manish Vyas, learned Additional Advocate General appearing for the State contended that the learned Single Judge has seriously erred in making the amended Regulation No.3.4.1 applicable to the advertisement which was issued (on 12.01.2015) prior to the amendment. He submitted that it is settled proposition of law that the educational qualification and other eligibility conditions have to be reckoned as prevalent on the date of advertisement and that any subsequent amendment in the eligibility criteria cannot be applied to the recruitment initiated prior to such amendment. In support of his contention, learned Additional Advocate General relied upon the judgments of Hon’ble the Supreme Court which are as follows:

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(i) P Mahendran & Ors. Vs. The State of Karanataka & Ors. ; (1990) 1 SCC 411; and (ii) NT Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors. ; (1990) 3 SCC 157 .

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(9 of 14) [SAW-1046/2018]

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Mr. Deepesh Beniwal, learned counsel for the respondents contended that it is true that on the date of issuance of the advertisement dated 12.01.2015, there was no provision for grant of relaxation to the OBC candidates, the process of recruitment as a matter of fact, commenced on 01.09.2016, when the last corrigendum was issued and the final figures/posts available for the appointment were notified. He contended that since on the date of last corrigendum i.e. 01.09.2016, the Regulation No.3.4.1 stood amended and relaxation of 5% to the OBC candidates became available (on 11.07.2016), the writ petitioner and other OBC candidates like her cannot be denied the advantage of beneficial legislation. Learned counsel vehemently argued that the University Grants Commission Regulations are binding on the State as well as on the University, per force the provisions contained in the Rules of 1986. As such the relaxation, as provided from time to time by University Grants Commission, are also applicable.

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While inviting attention of the Court towards the note appended with the ‘other particular’ clause of the advertisement, reproduced in para No.15 (supra) he argued that in light of the clear stipulation in the advertisement that in case, any amendment is brought in the service rules, the recruitment/examination shall be held in accordance therewith; the benefit of relaxation was required to be given to the candidates and hence the same has been rightly directed to be given by learned Single Judge.

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During the course of arguments, Mr. Deepesh Beniwal learned counsel for the respondent Indu Bala Kumawat informed

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(10 of 14)

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[SAW-1046/2018]

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that pursuant to the direction given by the learned Single Judge to provide 5% relaxation, the respondent having secured 54.66% has been selected and given appointment to invoke equity in her favour and prayed that her appointment be protected.

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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.”

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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.

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In the present case, the concerned clause of the advertisement dated 12.01.2015 unequivocally provides: “as laid down in Gazette of India, September, 18^th 2010”. The date of advertisement was 12.01.2015, whereas the last date of filling up

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(11 of 14)

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[SAW-1046/2018]

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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.

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

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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:-

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“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

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(12 of 14)

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[SAW-1046/2018]

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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.

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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 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.”

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Secondly, in NT Devin Katti & Ors. Vs. Karnataka Public

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Service Commission & Ors. (supra) relevant portion whereof is being reproduced hereinfra:-

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“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

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(13 of 14)

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[SAW-1046/2018]

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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 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.”

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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.

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(14 of 14) [SAW-1046/2018]

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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 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.

¶104

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.

¶105

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).

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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.

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(DINESH MEHTA),J

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(S. RAVINDRA BHAT),CJ

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39-Ramesh/-

State of Rajasthan v. Indu Bala Kumawat and Ors.

Case brief

What is this about?

What did the court decide?

State of Rajasthan v. Indu Bala Kumawat and Ors.

Case brief

What is this about?

What did the court decide?

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