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Teaching Candidates Overaged Owing to Cancellation of Earlier Recruitment Process Eligible for Fresh Recruitment: Allahabad HC

Teaching Candidates Overaged Owing to Cancellation of Earlier Recruitment Process Eligible for Fresh Recruitment: Allahabad HC

16.08.2021 | Education News | EduLegaL  | www.edulegal.org | mail@edulegal.in

10th August 2021, the Allahabad High Court hearing Divya Prakash Mishra and 32 Ors Vs. State of U.P. and 3 Ors — Writ – A No. 9614 of 2018 and 33 other connected cases allowing the petitions held that candidates who had applied for the position of Assistant Teachers are entitled to limited protection with regard to age relaxation if they become overage due to cancellation of earlier recruitment. The court had passed an interim order allowing them to appear for the recruitment process and their selection was subjected to the outcome of these petitions.

The Single Judge Bench of Hon’ble Justice Ashwani Kumar Mishra held:

As this Court has already permitted them to appear provisionally for selection under its interim order and certain petitioners have also secured their selection on the strength of their merits it would be appropriate to direct declaration of their result notwithstanding the fact that they have become overage under the new advertisement.

The petitioners had applied for the post of Assistant Teachers (L.T. Grade) in Secondary Schools run by the State of Uttar Pradesh (U.P.). The petitioners had applied for the post vide Advertisement dated 19.12.2016, which required the applicant to be above 21 years and below 40 years on the date of 01.07.2016. Uttar Pradesh Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 govern the recruitment process. These rules have been amended several times, and under the Fourth Amendment to the rules dated 19.10.2016, the recruitment was to be done by Additional Director of Education, Secondary, U.P., through selection by direct recruitment from state cadre. The criteria for selection candidate’s performance in High School, Intermediate, Graduation, and Training. However, the State decided to change the Policy, by Fifth Amendment to the rules dated 23.08.2017, which provided for direct recruitment through a written exam conducted by Uttar Pradesh Public Service Commission (UPPSC). The Advertisement dated 19.12.2016 was withdrawn and a fresh Advertisement No. A-1/E-1/2018 was issued on 15.03.2018 specifying the maximum age of eligibility as 40 years on 19.12.2016.

The petitioners who were eligible for recruitment in 2016 became overage for recruitment in 2018 and the impugned advertisement did not provide any age relaxation. The petitioners became ineligible for the recruitment and aggrieved by this approached the court. The court passed an interim order on 11.4.2018 directing that the petitioners shall be permitted to apply for the post despite being overage and their candidature will be subjected to the outcome of the petition. The petitioners contended that their right to be considered against the Advertisement dated 19.12.2016 cannot be taken away by the State, even if the policy of recruitment is changed. The respondent argued that petitioners do not get any right to relaxation in the age in contravention to the rules, merely because they had applied for an earlier Advertisement which was withdrawn.

The court observed that policy change was upheld in an earlier judgment of the same court in Himanshu Shukla and Anr Vs. State of U.P. and Ors — W.P. No. 48664 of 2017, decided on 13.4.2018 and held

The decision of State to have the recruitment made based upon written test conducted by the Commission cannot be said to be arbitrary…

…To cancel the recruitment and to undertake it afresh, on the basis of rules amended is not the same as retrospectively applying the recruitment rules. A fresh game starts here, and it can be played on the basis of rules already changed before its commencement.

The court had earlier dismissed the petitions questioning the same Advertisement regarding candidates becoming overage in Sunil Dutt Tripathi Vs. State of U.P. and 3 Ors — Writ Petition No. 8916 of 2018. The view was taken that candidate cannot compel the employer to fill up the vacancy and unless permitted by rules no relaxation can be given. However, The Supreme Court while deciding on the similar matter in State of Andhra Pradesh and Ors Vs. D. Dastagiri and Ors — (2003) 5 SCC 373, had observed that when a policy decision is not arbitrary the candidates do not have any right as such to claim appointments but also recognized rights of the candidates when fresh recruitment is undertaken after withdrawing earlier one and held:

We think it is just and appropriate that as and when any fresh selection takes place to the post of Excise Constables, the respondents may apply for regular recruitment. In that event, age-bar will not be put against them put, they shall satisfy other eligibility conditions and requirements, including qualification

In the present case, the court observed that there were two distinct scenarios related to the matter. The first situation was where vacancies had arisen but recruitment had not been initiated, and in such a case, the right for consideration does not exist with candidates as it only accrues after the process of recruitment has commenced. The Sanjay Dutt Tripathi (Supra) Case was in this nature where the candidate has become overage as State has failed to start recruitment for several years despite there being vacancies.

The second situation was where a vacancy arises and recruitment had commenced, but before issuing the selection list, on justifiable grounds, it is cancelled and new recruitment is started afresh. In such scenarios when the advertisement is issued and the candidate applies, the right of consideration accrues in favour of such candidate in terms of Article 16 of the Constitution of India. This position has been reiterated by Supreme Court in Ramjit Singh Kardam and Ors Vs. Sanjeev Kumar and Ors — 2020 AIR (SC) 2060 as:

In the event fresh applications are called, large number of applicants who participated in the selection would have become over age. All the applicants who had applied in response to advertisement No.6 of 2006 had right to participate in selection as per criterion notified on 28.12.2006

The court observed that in Sunil Dutt Tripathi (Supra) Case, as the court has overlooked this distinction it was inclined to recognize the rights of the petitioners to claim age relaxations. The court held:

I am of the considered opinion that even if previous recruitment was cancelled and change of policy by the State has been affirmed in the case of Himanshu Shukla (supra), which judgment has otherwise been affirmed with dismissal of Special Appeal and Special Leave Petitions, the applicants would be entitled to the limited protection of applying afresh against advertisement dated 15.3.2018 and also from the age bar imposed in accordance with Rule 10 of the Rules of 1983.

With directions UPPSC to issue results where 14 petitioners have been selected based on merit and their case shall be considered within two months for an appointment if they fulfil other eligibility (except age).

Vaibhav Karadale | Research Intern | EduLegaL

Swapna Iyer | Legal Editor | EduLegaL

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