IN THE HIGH COORT OF tTHDICRTURE :£%mCTTXSG3a!arBIIASSQR WRIT PETITION N0 4725 OF 2004 ( AMENDED WRXT PETITION ) PE'EITIONERS Allauddin Siddiqui aged 41 yrs, s/o Shri Kamaluddin Weldor :Category-VI : Bartunga Hill Mine Bramhanand Gupta aged 37 yxs, s/o Shri Rani Siya Gupta Weldor : Category-VI Bartunga Hill Mines Deepankar Bhowmik aged 30 yrs, s/o Shri B. Bhowmik Electric-Helper : Category II Anjan Hill Mi-nes Tapas Mukh'erj ee aged 38. yrs, s/o Shri Amal Mukherj ee Electrlc Helper : Gategory II NCPH Hill Mine >. > Ramkeshwar Prasad aged 33 yrs, s/o Shri Janki Prasad EPGH : Kurasiya Colliery All working at : South Eastern Coalfields Ltd.. Chirmiri Area :Distt-Korea CG P.C.Dubey aged 41 yrs, s/o Shri K.P.Dubey Arms Guard :South Eastern Coalfields Ltd : Bilaspur Hqr Bilaspur CG . Anil Dighraskar aged 33 yrs, • s/o Shri K.D.Dighraskar Category II :• SouUl Eastern Coalfields Ltd.: SingKaIi Project : Dhelwadih Sub-area Sorba area ,Distf-Korba ^S^J^a^-^Q^ ^SUJ CG a@ ^i^- -2- G.Sao aged 42 yrs, s/o Shri Ganga Prasad Category II : South Eastern Coalfields Ltd:Gavera Proj ect Ge-vera ,Distf-Korba CG - VERSUS - RESPONDENTS SOUTH EASTERN GOALFIELDS LTD. Through : 1. The Chairman-cum-Managing Director, " South Eastern Coalfields Ltd Bilaspur CG 2. The General Manager, Systems : South Eastern Coalflleds Ltd.: B±laspur CG 3. The Deputy Chief Personnel Manager : Aciministrati-on South Eastern Coalfields Ltd B.i.laspur CG 4. The Director : Personnel South Eastern Coalfields Ltd : Bilaspur CG WRIT PETITION T3NDERARTICLE 226/227 OF THE CONSTITUTICW OF INDIA 1 HIGH COURT OF CHHATTISGARH : BILASPUR WritPetition No. 4725of2004 Allauddin Siddiqui & Others Versus South Eastern Coalfields Limited & Others \ Post for pronouncement ofjudgment on the A3 day of October, 2009 (^O ^F< 33,- .:(»° SA'- Satish K. Agniliotri Judge 4-; v4 HIGH COURT OF CHHATTISGARH ; BILASPUR Writ Petition No. 4725 of2004 PETITIONERS RESPONDENTS Allauddin Siddiqui & Others Versus South Eastern Coalfields Limited & Others (Writ petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri SatishK. Agnihotri, J Present: Shri Anurag Dayal Shrivastava, counsel for the petitioners. Shri P.S.Koshy, counsel forthe respondents. JUDG M E NT (Passed on this -?3> dav of October, 2009) 1. By this petition, the petitioners seek the following reliefs : "(1) The Hon'ble Court may kindly be pleased to call the concerning records from the respondents. (2) The Hon'ble Court may kindly be pleased to direct the respondent 1 by writ of mandamus to declare the result of the departmental promotion examination having been conducted for the selection of the Junior Data Entry Operator (Trainee), Grade 'E'. (3) The Hon'ble Court may kindly be pleased to direct the respondent 1 to actaccording to the intention of the Annexure - P/4 and by further holding that the decision of -the Functional Directors relating to the subject matter, as has been arrived at their 228 meet and having been quoted by the Dy CPM respondent 3 in his letter dated 13,11.2004 Annexure - P/12 is inoperative in the circumstances of the case. (4) And, consequently, the respondent 1 may kindly further be directed to promote/select the petitioners, in case they stand selected in compliance of their own policy Annexure - P/4. (5) Th.e Hon'bl.e Court may kindly be pleased to direct the respondents not to take any further action in compliance of the circular dated 25.1.2007 Annexure - P/14 till declaring the result of the earlier advertisement issued by drcularAnnexure- P/1, P/2 & P/3. ' > A(6^-^ J- (6) Any other relief(s) which the Hon'bie Court considers proper, may kindly be awarded, in fitness of the things and in the interestof justice." The indisputable facts, in nutshell, as projected by the petitioners, are that the respondent authorities_ had invited applications from the suitable and eligible candidates for selection to the postof Data Entry Operator. Pursuant to the above, the petitioners along with other candidates submitted their applications, and thereafter appeared in the written examination. The petitioners were declared successful in the written examination. Thereafter, the typing test was conducted. The petitioners could not clear the typing test, therefore, they were again afforded an opportunity to appear in the typing test, but the result of the petitioners has not been declared. Being aggrieved by the aforesaid action, the petitioners submitted a representation before the respondent authorities, but no reply has been received by them. Therefore, the petitioners sent a legal notice for demand of justice. After receipt of the notice, the respondent authorities vide letter dated 13-11-2004 (Annexure - P/12) informed the petitionere that the Functional Directors decided that the empanelled list of candidates selected for the post of Data Entry Operators be cancelled forthwith and in future inductionof Data Entry Operator shall be done dn selection basis form amongst clerical staff. However, if in the empanelled h'st, some clerical staff is already selected, the same could be considered by the Functional Directors. Thus, this petition. \> \' ^,'" .^?s^aE^. ^. life>. " 'i& :^ • ^ ^r v^ -te^' Shri Shrivastava, learned counsel appearing for the petitioners, would submit that the respondent-authorities have changed the selection criteria after completion of the selection process and decided on 19-4-2004 in 228' meeting of the Functional Directors to select the persons only amongst the clerical staff and, as such, the entire select list wascancelled and six persons from the clerical staffwere declared as selected by order dated 27-1-2005 (Annexure - P/13). Learned counsel appearing for the petitioners would further submit that during pendency of this petition, the respondents issued acircular dated 25-1-2007 (Annexure - P/14) inviting applications again for seleetion to the post of Jr. Data Entry Operator (Trainee) in T & S Gr. 'E' having the sameeligibility criterja, as stated in the earlier notification (Annexure - P/4). Thus, the order dated 13-11-2004 (Annexure - P/12) issued on the basis of 228 meeting of Functional Directors held on 19-4-2004 to provide selection for the post of Data Entry Operator from amongst clerical staffalone is unreasonable, unconstitutional and bad in law. Learned counsel would next submit that the respondents have altered the criteria for selection to the post of Data Entry Operator, which cannot be done subsequently during the selection process. On the other hand, Shri Koshy, learned counsel appearing for the respondents, would submit that the selection list of the candidates for appointment on the post of Jr. Data Entry Operator (Trainee) was cancelled by the Functional Directors in their meeting held on 19-4-2004. Since the selection list was not \v 4 >- 8. ^ published, the petitioners have not acquired an'y right, which is enforceable by a Court of law for appointment on the post of Jr. Data Entry Operator (Trainee). Shri Koshy would further submit that the persons selected from the selection list have not been arrayed as party-respondents in this writ petition. The Functional Directors are fully competent to cancel the selection process before issuance ofthe appointment order. 1 have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. It is evident that the petitioners along with others applied for selection to the post of Jr. Data Entry Operator (Trainee) in (T&S) Gr. 'E', wherein the eligibility criteria was provided i.e. "any permanent employee having matriculate or equivalent certificate with 3 yearsservice in the Company." The petitjonersapplied and thereafter they successfully qualified in the written test and passed the typing test also after some time. The Functional Directors in their 228 meeting held on 19-4-2004 decided to cancel fhe select list. Accordinlgy, by letter dated 13-11-2004 (Annexure - P/12), the Area Personnel Managers of all areasof SECL were directed as under: "No. SECL/BSP/ADMNProm/Jr.DEO(T)/04/1739 Dt. 13. 11.2004 To AreaPersonnel Managers, AIIAreas of SECL Sub: SelQction ofData Entry Operators. DearSir, \Ne are receiving regular representations from different Areas, employees as well as from Vnions regarding selection to the post of Data Entry Operator. The matter has been placed Sefore 228"' Meetof FDsheld on 1S/lh April,2004 andthe decision of FDs /s reproduced below: \^' ^-.-- Functional Directors decided that the empanelled list of candidatesselected for the post of Data Entry Operators be cancelled forthwith and in future induction of Data Entry Operators shall be done on selection basis form amongst clericgl staff. However, 'rf in the empanelled list, some clerical staff is already selected, the same could be considered by the FDs. This is for your kind information with a request-to inform the persons concernedaccordingly. Yours faithfully Sd/- Dy. CPM Copy to 1. GM (P&A), SECL.BSP. 2. GM(System), SECL, BSP. 3. Dy. CPM(IR), SECL, BSP." 10. On the basis of letter dated 13-11-2004, six persons from the clerical staffwere selected tothe post ofJr. Data Entry Operator (Trainee)in (T&S) Gr. 'E' by order dated 27-1-2005 (Annexure - P/13). The contention of the petitionerthat once the selection process has been initiated on the basis ofeligibility criteria as prescribed in Annexure - P/4, the same cannot be challenged during the selection process. 11. It is evident from the fact that six persons from clerical staff were selected from the same selection process wherein the petitioners also participated on the basis of eligibility criteria as afore-stated. The said eligibility criteria was again restored in thesubsequent selection process vide Annexure - P/14 dated 25-1-2007. It is true that the Government can change the selection criteria any time, but the same cannot be done during the selection process as on the basis.ofeligibility criteria i.e. any permanent employee having matriculate or equivalent certificate with 3 years service in the Company, the petitioners applied for the selection to the post \tf^ of Jr. Data Entry Operator (Trainee), in T&S Gr. 'E'. The criteria was changed during selection and from the said select list only six persons coming from clericalstaffwereappointed. Thus, the selection process is vitiated. 12. I have gone through the decisions cited by learned counsel appearing forthe respective parties, however,! am referring only those decisions, which are relevant tothe controversy involved in the facts of the case. 13. The Supreme Court in P. Mohanan Pillai vs. State of Kerala and Others observed as under : -" "11. It is now well settled that ordinarily ruleswhich were prevailing at the time, when the vacanciesarose would be adhered to. The qualification must be fixed at that time. The eligibilitycriteria as also the procedures as were prevailing on the dateof vacancy should ordinarily be followed." 14. The Supreme Court in Maharashtra State Road Transport Corpn. and Others vs. Rajendra Bhimrao Mandve and Others observed that "it has been repeatedly held by thisCourt that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process ofselection hascommenced." 15. In K. Manjusree vs. State of Andhra Pradesh and Others , the Supreme Court observed that "c/iangmgr the rules of the game after the game was played is not permissible." (Also see P.K. Ramachandra lyer vs. Union of India , Umesh Chandra 1 (2007)9 SCC 497 2 (2001)103cc 51 3 (2008)3 SCC 512 4(1984) 2 SCC 141 •ii«^ ^ Shukla vs. Union of India and Durgacharan Misra vs. State of Orissa ). 16. In Madan Mohan Sharma and Another vs. State of Rajasthan and Others, theSupreme Court observed that "once the actvertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot beon the basis ofthe criteria which hasbeen made subsequently." 17. tn Mohd. Sohrab Khan vs.Aligarh Muslim University and Others , the Supreme Court observed as under: "27. The Selection Comtnittee during the stage of selection, which ismidway could not have changed the essential qualificationlaid down in the advertisement andat that stage held that a Master's degree-holder in Industrial Chemistry would be better suited for manning the said postwithouttherebeing any specific advertisement in that regard. The very fact that the University is now manning the said post by having a person from the discipline of Pure Chemistry also leads to the conclusion thatthe said post at that stage when itwas advertisedwas meant to be filled up by a person belonging to Pure Chemistry stream." 18. The decision of Supreme Court rendered in Union of India and Others vs. Kali Dass Batish and Another, cited by the learned counsel appearing for the respondents,is not applicable to the facts of the present case, as in the present case the eligibility and qualification has been changed in the midway of the selection process, which is not permissible in law. Even '(1985) 3 SCC 721 6(1987)4SCC646 7 (2008) 3 SCC 724 8 (2009) 4 SCC 555 9(2006)tSCC779 !Ji L>.A :w w 19. 20. 21 Gowri 8 V otherwjse, the Supreme Court in Shankarsan Dash vs. Union of India it has made clear that it does not mean that the State has the licence of acting in an arbitrary manner, which has been referred in Punjab State Electricity Board and Others vs. Malkiat Singh and in Kali Dass Batish (supra). Applying the well settled principles of law to the facts of the case on hand, wherein when the applications made by the petitioners, on the basis of the eligibility prevalent at that time, the same was changed in midway of selection process and only six persons from clerical staff were found eligible for consideration to appointment on the post of Jr. Data Entry Operator (Trainee) in (T&S) Gr. 'E', the change in criteria is impermissible in law. The petitioners have not impleaded the selected six persons from the clerical staff as party-respondents and, as such, their appointment and selection process cannot be quashed. However, having regard to the facts and circumstances of the case, the respondent-authorities are directed to consider the case of the petitioners in the light of select list prepared on the basis of original eligibility criteria i.e. Annexure - P/4 and pass appropriate orders, in accordance with law and on its own merits. With the aforesaid observations and directions the writ petition is disposed of. No order asto costs. Sd^-,',.::.:,:: SatishK.ftgnihotrt -..'••Judge1' ^:f===='