Judgment:
1 W.P. No. 15832 Of 2013 10.2.2014 Shri Rajesh Dubey, learned counsel for the petitioner.
Shri S.S. Bisen, learned Government Advocate for State of M.P. on advance notice.
At the outset learned counsel for petitioner submits that the issue raised in the present petition is squarely covered by the decision in Anil Bhatt and others v. State of M.P. and others : W.P. No. 91/2011 (S) decided on 21.2.2012.
In this petition, the petitioner who belongs to Other Backward Classes category, initially appointed as Instructor by order dated 1.1.1991.
Subsequently cleared eligibility test of Samvida Shala Shikshak Grade III held on 31.8.2008 and obtained 53.06 % in Section A and 41.67 % in Section B. The petitioner is Higher Secondary and has undergone training conducted by National Council of Educational Research and Training.
It is contended that despite of his clearing the eligibility test of Samvida Shala Shikshak Grade III, the petitioner is not being considered for appointment to the said post.
Since parity is being claimed with the decision in Anil Bhatt and others (supra); wherein it has been held: "Admittedly, the examination in question was held under the 2005 Rules. Rules 4 and 5 deals with minimum educational qualification as well as prescribed minimum marks for qualifying examination.
From a perusal of Rule 4 it is apparent that a candidate must 2 have passed the higher secondary school Examination or an equivalent examination.
Rule 5 provides that in the qualifying examination candidates belonging to SC/ ST/OBC and disabled category should have secured a minimum 40 % marks whereas cut off marks in respect of other categories were fixed 50%. In pursuance of the notification of the vacancies the examination was held on 31.8.2008 in which the petitioners appeared and they were declared successful.
Admittedly, the petitioners were declared successful in the examination which was held on 31.8.2008.
Thereafter Annexure P6, i.e, the circular dated 5.10.2009 was issued by which the criteria for selection was changed and the revised select list was issued which is contained in Annexure P8 which is legally impermissible.
The contention of learned counsel for the respondents that the State Government could have withheld the process of selection and could have filled up subsequently in accordance with amended criteria need not be examined as no such plea in the return has been taken.
The amendment made in the rules which was published in the Gazette, dated 4.1.2010. It is well settled now in law that prima facie every amendment is prospective unless there is clear indication in statute or rule that it would apply with retrospective effect. It is not discernible from the amendment that it is retrospective in nature.
Therefore the amendment rule would not apply retrospectively to the proceedings for selection which were already completed.
For this additional 3 reason also, the action of the respondent in excluding the names of the petitioners from the consideration cannot be sustained in the eyes of law.
In the result, the circular (Annexure P6) is quashed. The respondents are directed to consider the case of the petitioners for appointment on the post of Contract Teacher Grade III in view of the unamended criteria and in the light of Annexure P 5 and if the petitioners are found otherwise eligible for appointment, to issue order of appointment." Therefore, without adverting to the merit of the petition, the petition is disposed of with a direction to the respondents to consider the claim of the petitioner within a period of three months from the date of communication of this order and if found eligible to extend the benefit as has been held in Anil bhatt and others (supra). In case, if the petitioner is not found eligible the respondents shall pass speaking order within the said period and communicate the same to the petitioner within the same period.
It is reiterated that this Court has not expressed any opinion on merit.
The petition stands disposed of finally in above terMs.C.c. as per rules.
(SANJAY YADAV) JUDGE Vivek Tripathi