HIGH COURT OF CHHATTISGARH: BILASPUR DIVISLON BENCH: HON'BLE SHRI DHIRENDRA IWISHRA.^ HON'BLE SHRI R.N. CHANDRAKAR, JJ Bi®ai£SiWI" «!gl5:,',':^..: ||ggg:lgs'as--r-'('&s~i "r""" v^-- WritPetition No.1528 of 2006 PETITIONERS: : ArvindMishra and others. -Versus- RESPONDENT: State of Chhattisgarh and others. WritPetition (sl No.4778 of 2008 -ri^ PETITIONERS: : SK Dubey and another -Versus- RESPONDENTS: State of Chhattisgarh and others Writ Petition (sl No.1519 of 2008 PETITIONERS: : Vijay Tande and another -Versus- RESPONDENTS: State of Chhattisgarh and another Writ Petition (sl No.2724 of 2007 PETITIONERS: : Dr. RK Gouraha and others -Versus- RESPONDENT: State of Chhattisgarh and another ORDER FOR CONSIDERATION HON'BLE SHRI R.N. CHANDRAKAR, J -9 oe-5 Sd/- Dhirendra Mishra Judge s&'- R.N. Chandrakar Judge ^ POST FOR ORDER ON IS' AUGUST, 2009 Sai- V '^^S^".'S' TS?IT3?'y'S^SK^':.':ST''i7''^:j'; HIGH COURT OF CHHATTISGARH: BILASPUR DIVISION BENCH: HON'BLE SHRI DHIRENDRA MISHRA, & HON'BLE SHRI R.N. CHANDRAKAR. JJ Writ Petition No.1528 of 2006 PETITIONERS: 1. Arvind Mishra, S/o Shri Dashrath Lal Mishra, aged about 40 years, Occupation Lecturer, Govt. Higher Secondary School Bemetara at present working as Block Education OfRcer, Bemetara, District Durg (CG) Anil Kumar Tiwari, s/o Shri Bhuneshwar Prasad Tiwari, aged about 40 years, Occupation Lecturer, Govt. Boys Higher Secondary School, Sarkanda Bilaspur (Chhattisgarh) DK Jain S/o Late PR Jain, Aged about 43 years, Occupation Lecturer, Govt. College of Education Bilaspur (CG) Dilip Kesharwani, S/o Shri Dayanand Gupta, Aged about 45 years, Occupation Lecturer, At present posted as Assistant Project Officer Rajiv Gandhi Shiksha Mission, Raipur (CG) Moti Chandra Rai, S/o Shri Jagdish Prasad Rai, Aged about 42 years, Occupation Head Master, Govt. Multipurpose hligher Secondary School, Bilaspur (CG) Anupam Singh, S/o Shri PH Singh, Aged about 36 years, R/o Madhuban Road, Bilaspur (CG) Ku. Anita Barwe, D/o Shri SU Banve, Aged about 34 years, Occupation Upper Division Teacher posted in Govt. Higher Secondary School Kannewada, Balod, District Durg (CG) R/o 21/B, Street MPR, Sector II, Zone 1 Bhilai, District Durg (CG) Santosh Kumar Mishra, S/o Shri Radheshyam Mishra, Aged about 39 years, 9. 10 RESPONDENT: -Versus- 1. 2. 3. Occupation Assistant Teacher (Lower Division Teacher) Govt. Girls Higher Secondary School, Bemetara, District Durg (CG) Ganesh Das Kurrey, Aged about 37 years, S/o Shri Baliram Kurrey, Working as Shiksha Karmi Grade I, Posted at Government Shivlal Higher Secondary School, Bemetara, District Durg (CG) Paras Kumar Ratrey, Aged about 38 years, S/o Shri GD Ratrey, Working as Shiksha Karmi Grade II Posted at Govt. Higher Secondary School, Baijalpur, Tehsil Bemetara, District Durg (CG) State of Chhattisgarh : Through the Secretary Department of School Education, Mantralaya, DKS Bhawan, Raipur (CG) Director, Directorate Public Instructions, Pension Bada, Raipur (CG) Public Service Commission, Through the Secretary, Shankar Nagar Road, Raipur (CG) ^5 Writ Petition (s) No.4778 of 2008 PETITIONERS: 1. 2. RESPONDENTS: -Versus- 1. SK Dubey, S/o Shri JP Dube, Aged about 41 years, Working as Lecturer, Government Higher Secondary School, Pali, District Korba (Chhattisgarh) Raj Kumar Dwivedi, S/o Ramdhan Dwivedi, Aged about 41 years, working as Upper Division Teacher, Chhattisgarh Higher Secondary School, Birkona, Distt. Bilaspur (CG) State of Chhattisgarh : Through the Secretary School Education Department, DKS Bhavan, Raipur (CG) 2. 3. 4. Chhattisgarh Public Service Commission, Through its Secretary, Shankar Nagar, Raipur (CG) The Examination Controller, Chhattisgarh Public Service Commission, Shankar Nagar, Raipur (CG) The Upper Secretary, Chhattisgarh Public Service Commission, Shankar Nagar, Raipur (CG) ^l Writ Petition (st No.1519 of 2008 PETITIONERS: 1. 2. -Versus- RESPONDENTS: Vijay Tande, S/o Shri Makhan Lal Tande, aged about 38 years, presently working as Lecturer, Govt. Higher Secondary School, Semartal, Distt. Bilaspur, R/o Deonandan Nagar, Sarkanda, Bilaspur (CG) Dhananjay Pandey, S/o Shri NK Pandey, Aged about 41 years, presently working as Head Master, Govt. Higher Secondary School, Hardikala (Tona), Distt. Bilaspur, R/o Tikra Para, Bilaspur (CG) State of Chhattisgarh : Through the Secretary School Education Department, DKS Bhavan, Raipur (CG) The Chhattisgarh State Public Service Commission, Raipur (CG) WritPetitiojl (s) No.2724 of 2007 PETITIONERS: Dr. RK Gouraha, Aged about 40 years, S/o Shri TP Gouraha, working as Lecturer in Government Girls Higher Secondary School, Akaltara, District Janjgir Champa (CG) Narendra Kumar Kaushik, aged about 44 years, S/o Shri RS Kaushik, working as Lecturer in Government Higher Secondary School, Pandhi, District Bilaspur (CG) Shiv Kumar Gendle, Aged about 46 years, S/o Shri GD Gendle, working as Lecturer 4. RESPONDENT: -Versus- 1. 2. in Government Higher Secondary School, Beltara, District Bilaspur (CG) KK Banjare, aged about 40 years, S/o Shri SP Banjare, working as Head Master in Government Middle School, Chantidih, Bilaspur (CG) State of Chhattisgarh : Through the Secretary, Department of School Education, Mantralaya, DKS Bhawan, Raipur (CG) Chhattisgarh State Public Service Commission, through its Secretary, State Public Commission, Shankar Nagar Road, Raipur (CG) " "), Presenh Shri Prateek Sharma, Advocate for the petitioners in WP No. 1528/06. Shri Anand Dadariya, Advocate for the petitioners in WP(s)No.4778/08 & 1519/08. Shri Sanjay K. Agrawal, Advocate for the petitioners in WP(s)No.2724/07 and for interveners in WP No. 1528/06. Shri Kishore Bhaduri, Addl. Advocate General for the State in all the petitions. Shri Ashish Shrivastava, Advocate for respondent-Chhattisgarh State Public Service Commission. Shri Rajiv Shrivastava and Shri Ali Asgar, Advocates for the interveners in WP No.1528/06 & WP(s) No. 4778/08. ORDER (Passed on }?>' August, 2009) PER DHIRENDRA MISHRA, J. 01. These petitions are being disposed of by this common order as subject-matter of these petitions are - selection process commenced by the Chhattisgarh State Public Sen/ice Commission (in short "PSC") for selection on the post of Principal, Higher Secondary School in the Department of School Education vide advertisement dated 14.1.2005 published on 19.1.2005. k 9~. 02. The petitioners in WP No. 1528/06 are Lecturers, Headmasters, Upper Division Teachers, and Lower Division Teacher in the School Education Department of the State, whereas petitioners No. 9 & 10 are Shikshakarmies Grade l & II, respectively. The petitioners herein have challenged the selection process on the ground that criteria for selection/eligibility criteria cannot be changed during pendency of selection process; advertisement for selection was ambiguous and misleading, and also in violation of the provisions of Chhattisgarh Educational Services (School Division) Recruitment and Promotion Rules, 1982 (for brevity "the Rules, 1982"), and Schedule-lll made under Rule 8(2) of the Rules, 1982, which prescribes eligibility as "post-graduation degree (minimum second division) B.Ed. or equivalent qualification with ^*. fifie years' teaching experience in Higher Secondary School" and as such, the same is arbitrary, discriminatory, unreasonable and ulta vires Article 14 ofthe Constitution. 03. Petitioners in WP(s)No.4778/08, are Lecturer and Upper Division Teacher in the School Education Department of the State. They participated in the selection process in pursuance of the advertisement dated 14.1.2005 for the post of Principal, Higher Secondary School (in short for the sake of convenience "Principal"); their names appeared in the list of successful candidates in the written examination vide Annexure P/4; and they were issued call letters for interview. The High Court vide order dated 27th November, 2006 passed in WP No. 1380/06 had directed the PSC to remake the list in accordance with law and the observations made in the order. However, the PSC while redrawing the list, deleted the names of the petitioners herein by ineluding the name of number of candidates in the amended list, who do not eMen fulfill the necessary eligibility conditions of the advertisement. In this petition, the petitioners have impugned the press note dated 5.8.2008 issued by the PSC as also the amended result of the written examination and list of the candidates eligible for inten/iew. 04. Petitioners in WP(s) No.1519/08 & 2724/07 are Lecturers and Headmasters in the School Education Department. They participated in the selection process for the post of Principal initiated vide advertise'ment dated 19.1.2005. After written examination, their names appeared in the list of successful \u^ candidates in the result published on 28.2.2006. The PSC was directed to re-draw the select list in accordance with law as per observation made in the order dated 27.11.2006 passed in WP No.1380/ by the High Court. However, the PSC has not prepared the select list in compliance of the order of the High Court even after more than one year of passing of the order. In these circumstances, the petitioners have prayed for direction to the respondents to immediately declare the result of the petitioners and complete the selection process. 05. Briefly stated, facts of the case are that the PSC vide its advertisement dated 14.1.2005 published in the newspaper on 19.1.2005 invited applications against total 46 posts of Principal in the School Education Department of the State. The eligibility criteria was given in Clause 4(c) of the advertisement, according to which a candidate was to be post-graduate in Arts/Commerce/Science with minimum second division and B.Ed. or its equivalent qualification. It was further prescribed that the candidate should have five years' teaching experience as Upper Division Teacher/Lecturer of the Higher Secondary School. The written examination for the post of Principal was held on 8.1.2006 and result of the successful candidates was declared on 28.2.2006. The successful candidates were called for interview on 28.3.2006. However, due to interim order passed in WP No. 1380/06, the interview could not be held as scheduled. The High Courtvide its order dated 27.11.2006 allowed the writ petition and directed the PSC to remake the select list in accordance with law and the observations made in the order. However, the selection process has not been completed till date. 06. The petitioners have questioned the selection process for direct recruitment to the post of Principal initiated under the Rules, 1982 on the following ground: (i) that Schedule-111 made under Rule 8(2) of the Rules, 1982 prescribing "five years' teaching experience in Higher Secondary School" is discriminatory, arbitrary and unreasonable and ultra vires Article 14 of the Constitution, (ii) that the eligibility criteria prescribed in Clause 4(c) of the advertisement does not conform to the eligibility criteria prescribed for direct recruitment to the post of'Principal under Rules, 1982; the eligibility criteria has been changed after commencement of the selection process and Shikshakarmies have been permitted to participate in the examination and they have also been selected; and that the advertisement for recruitment issued by the PSC was ambiguous and misteading, thereby depriving the other eligible candidates/petitioners to participate in the selection process. 07. Shri Prateek Sharma, learned counsel for the petitioners submitted that prescribing five years' teaching experience in Higher Secondary School in Schedule-111 made under Rule 8(2) of the Rules, 1982 is discriminatory, arbitrary and unreasonable and ultra vires Article 14 of the Constitution, as the same discriminates between the candidates, who have teaching experience of five years in Higher Secondary Schpol and others, who could not possess five years' teaching experience in the Higher Secondary School on account of their posting by their Employer/State Govt. The above eligibility criteria ts arbitrary, discriminatory and unreasonable as Lecturers/Upper Division Teachers with higher qualification, not having requisite experience on account of their posting by their Employer/State, stand discriminated for none of their fault, and the less qualified Lower Division Teachers/Assistant Teachers and Shikshakarmies Grade-111, who have the requisite experience, are eligible to participate in the direct recruitment to the post of Principal. 08. Reliance has been placed on the order dated 7.7.2009 passed by this Court in the matter of Dr. B.P Mathil Vs. State of Chhattisgarh and another in WP No.4150/2006. 09. On the other ground that the eligibility criteria prescribed in Clause 4(c) of the advertisement does not conform to the eligibility criteria prescribed for direct recruitment to the post of Principal under Rules, 1982; the eligibility criteria has been changed after commencementof the selection process and Shikshakarmies have been permitted to participate in the examination and they have also been selected; and that the advertisement for recruitment issued by the PSC was ambiguous and misleading, thereby depriving the other eligible candidates/petitioners to participate in •ofc the selection process, it was argued that the condition of five years' teaching experience as Upper Division Teacher/Lecturer in the Higher Secondary School, is at variance with the eligibility criteria prescribed in Schedule-111 under Rule 8(2) ofthe Rules, 1982. Due to the above condition, petitioners No. 9 & 10, who are Shikshakarmies, could not participate in the selection process, however, when the result of the written examination was declared on 28.2.2006 and when they discovered that the Shikshakarmies were also selected along with Upper Division Teachers and Lecturers, the instant petition was filed on 24.3.2006. It was also argued that the requirement of post-graduation in Arts/Commerce/Science is also contrary to the Rules, 1982 as English version of the said Rules prescribes the only requirement that the candidate should be post-graduate with second division. He further argued that after publication of the advertisement inviting applications for the recruitment to the post of Principal on 19.1.2005, the PSC addressed a memo dated 24.2.2005 seeking clarification from the State whether experience of the Shikshakarmies teaching in Schools cannot be considered as experience for appointment on the post of Principal, and on the basis of State's reply dated 11.8.2005, the Shikshakarmies with five years' teaching experience were held eligible. It was also argued that no fresh applications were invited after the aforesaid clarification by publishing corrigendum in the advertisement and Shikshakarmies, who were permitted to appear in the written examination, were declared successful. The PSC in para 10 of its return dated 27.11.2006 have averred that "only the Upper Division Teachers and Lecturers having five years' teaching experience in Higher Secondary School are eligible for appointment". However, contrary stand was taken in WP No.4778/08. The PSC has tried to resolve the apparent contradiction in its stand by way of an additional reply dated 27.7.2009 wherein it has been stated that the word "only" as mentioned in para 10 of its return dated 27.11.2006 was an inadvertent mistake. It is settled law that change of criteria after commencement of the selection process is not permissible. Petitioners No. 9 & 10 and many other eligible candidates could not participate in the selection process due to ambiguous and misleading advertisement issued <-."- by the PSC for recruitment. After declaration of the result of the written examination on 28.2.2006, when they learnt that the Shikshakarmies, Lower Division Teachers and Private Teachers were also eligible, the instant petition for quashing the entire selection process was filed. 10. Shri A.K. Dadariya, learned counsel for the petitioners in WP No.4778/08 argued that the petitioners participated in the selection process, appeared in the written examination and were declared successful in the written examination vide result dated 28.2.2006. The selection was to be made in consonance with the Rules, 1982. The advertisement categorically mentioned that five years' teaching experience in Higher Secondary School should be of the post of Upper Division Teacher/Lecturer, therefore, the Shikshakarmies were not eligible for appointment as per advertisement. However, vide press release dated 5.8.2008, the PSC published the list of eligible candidates for interview in purported compliance of the order of the High Court passed in WP No. 1380/06 and the persons, who were not eligible as per conditions of the advertisement, have been included in the select list by deleting the names of the petitioners, who were declared successful in the result dated 28.2.2006. Referring to the return filed by the PSC in WP No. 1528/06, it was argued that only Lecturers and Upper Division Teacher with necessary experience were eligible for applying for the post of Principal. However, contrary stand has been taken by the PSC while redrawing the select list. It was vehemently argued that the eligibility criteria cannot be changed after initiation of the selection process. 11. The respondents/State in their return denied any arbitrariness in the selection process commenced vide advertisement dated 14.1.2005. They also denied the other pleadings ofthe petitioners regarding petitioners No. 9 & 10 being misled by the advertisement that the Shikshakarmies are not eligible and accordingly, they could not apply for the: post. The petitions are liable to be dismissed on the ground of delay and laches. The petitions are not maintainable as the petitioners have themselves participated in the examination conducted by the PSC and now, they cannot be permitted to challenge the selection process on the ground that the eligibility criteria fixed by the PSC was bad. 10 12. Similar objections have been raised by the PSC regarding maintainability of the writ petitions. It has been contended that the petitioners themselves participated in the selection process and did not submit any objection to the PSC or the State with respect to eligibility criteria published in the advertisement dated 14.1.2005. The petitions were filed only after declaration of the result on 28.2.2006 when the petitioners' names did not find place in the list of the successful candidates in the written examination. No representation was submitted by the petitioners' No. 9 & 10 ofWP No. 1528/06 against the eligibility criteria to the PSC; they did not apply for the post and the provisions of the Rutes, 1982 have been challenged almost after one year of the publication of the advertisement. The note appended to Clause 4(c) of the advertisement is only clarificatory with respect to teaching experience and there is no deviation from the qualification prescribed in the Rules, 1982. Referring to Clause 5 sub-clause (8) of the advertisement, it was argued that the tip was only clarificatory in nature. With regard to eligibility criteria of the Shikshakarmies for the post of Principal, referring to Clause 8 of the advertisement, it was submitted that the candidate applying for the post was to himself decide his candidature and it was made clear that only because the candidate has been permitted to appear in the written examination or he has been invited for interview, would not make him eligible and his candidature could be rejected at any stage. Rule 10 of the Rules, 1982 makes the decision of the PSC with regard to eligibility/selection ofthe candidates final. 13. Shri Rajeev Shrivastava, learned counsel for the interveners, has also advanced similar arguments that the unsuccessful candidates cannot be permitted to assail the selection process after participating in the selection process unsuccessfully. It has been further argued that the petitions are liable to be dismissed on the ground of non-joinder of successful candidates in the select list as a party, who are likely to be affected. It was further argued that the petitions suffer from delay and laches as the same were filed only after result of the written examination was declared, after almost one year of the issuance of the advertisement. The argument advanced by learned counsel for the petitioners is on the issues, which have not been raised in the writ petitions, which is not fti 11 permissible in law in the absence any averment in the writ petitions in this regard. 14. Shri Sanjay K. Agrawal, learned counsel for the interveners, submitted that the constitutional validity of an Act and Rule can be challenged only on the grounds (i) that it is violative of the provisions of the Constitution of India, (ii) that it is violative of the provisions of any of the fundamental rights guaranteed in Part-111 of the Constitution; and (iii) that it is beyond the legislative competence or lack of legislative competence. In the instant case, the Rules, 1982 have been framed in exercise of powers under Article 309 of the Constitution, the same is in force since 1984 in the field of School Education for a period of 25 years and since repealed w.e.f. 13.8.2008 and substituted by Chhattisgarh School Education Gazetted Service (School Level Service) Recruitment and Promotion Rules, 2008 (in short "the Rutes, 2008"). The impugned rule prescribes eligibility criteria for direct recruitment to the post of Principal and therefore, the qualification of minimum five years' teaching experience in Higher Secondary School cannot be considered to be arbitrary, discriminatory and unreasonable as the same has direct nexus with the objects sought to be achieved. Mere hardship to the petitioners cannot be a ground for striking down a valid rule unless it is held that it is suffering from the vice of discrimination or unreasonableness and Article 14 of the Constitution is not attracted in such cases. In the absence of any factual foundation that' the respondents have prescribed tailor made qualification to suit the stated individuals whose names finds place in the select list of the post of Principal, motive cannot be attributed to the legislature in making the Rules, 1982. 15. Learned counsel for the respective parties have cited various judgments in support of their arguments. 16. Before entering into the merits of the case, we propose to consider the preliminary objections with regard to maintainability of the petitions. 17. The respondents have taken a preliminary objection regarding maintainability of the petitions on the ground that the petitioners No. 1 to 8 in WP No. 1528/06 have participated in the recruitment process without any demur and therefore, they are estopped from ^ 12 challenging the selection criteria. They ought to have challenged the advertisement and selection process without participating in the selection process. Reliance is placed on the judgment in the matters of Dhananjay Malik and others Vs. State of Uttaranchal andothers . 18. It is true that the petitioners, who have participated in the selection process and were declared unsuccessful, cannot be permitted to challenge the selection criteria on the ground that the requisite educational qualifications were contrary to rules, as held in Dhananjay Malik's case. WP No. 1528/06 was filed by the 10 petitioners. The first 8 petitioners participated in the selection process; their names did not find place in the list of successful candidates published on 28.2.2006 whereas petitioners No. 9 & 10 have filed the petition with an averment that they were misled by the condition in Clause 4(c) of the advertisement, which specifically prescribed that only those teachers having five years' teaching experience in Higher Secondary School as Upper Division Teacher (in short "UDT") and Lecture are eligible, and therefore, they could not apply for the post. The argument advanced by Shri Prateek Sharma is that the petitioners No. 1 to 8 flled the above petition on 24 March, 2006, only after they learnt that the Shikshakarmies were also permitted to participate in the selection process against the eligibility criteria prescribed in Clause 4(c) of the advertisement and they were also declared successful in the result dated 28.2.2006. WP No.4778/08 has been filed by the petitioners, whose names appeared in the list of successful candidates published on 28.2.2006. However, when they found that their roll numbers did not appear in the list of the eligible candidates for interview published with press release dated 5.8.2008, they have filed the petition on the ground that the PSC has included the Shikshakarmies in the list of successful candidates, who were not eligible as per conditions of the advertisement by removing the names of the petitioners, who were eligible as per advertisement and declared successful in the earlier result. 19. Taking into consideration that these petitions have not been filed only on the groundthat the eligibility criteria prescribed in fhe !.\ 1 \ * (2008) 4SCC 171 13 advertisement is not in consonance with the Rules, 1982, but also on the ground that the PSC has changed the eligibility criteria after commencement of the selection process, we are of the opinion that these petitions cannot be dismissed at the threshold simply because some of the petitioners participated in the selection process and they flled the petitions only after being unsuccessful. 20. The respondents have also prayed for dismissal of these petitions on the ground of delay and laches and also on the ground of non- joinder of successful candidates in the select list, who are likely to be affected. Keeping in view that WP No. 1528/06 has been filed on 24.3.2006 immediately after list of successful candidates was declared on 28.2.2006, and also considering'that WP No. 1380 was disposed of on 27.11.2006 with a direction to the respondents to redraw the list as the list of successful candidates declared on 28.2.2006 was not in accordance with the reservation