Read Order: Nidhi Sharma and Others v. State of Haryana and Others

Monika Rahar

Chandigarh, May 17, 2022:  Calling the decision of the Haryana Staff Selection Commission to withdraw the Advertisement of July 2015 whereby 1035 posts of TGT English (Group C Services) were advertised, in view of the Memo of the Director General Elementary Education, Haryana, as “arbitrary”, the Punjab and Haryana High Court has directed State to complete the recruitment process (firstly) in respect of the advertisement of July, 2015 and fill up the vacancies which were duly advertised keeping in mind the opinions received by the university on English as a compulsory subject at the graduate level being equivalent to English as an elective subject. 

The Bench of Justices G.S. Sandhawalia and Vikas Suri also held,  “It is settled principle that the act of Court is to prejudice no person as per the maxim “Actus Curiae Neminem Gravabit”. Merely because at one stage there was a stay of the recruitment process, would not be a ground as such to withdraw the recruitment notice to the prejudice of concerned… Merely on account of pending litigation, the State cannot wriggle out of the invitation given to the candidates once it is at an advanced stage.”

The Court was dealing with a Writ Petition and an LPA by unsucessful writ petitioners, against the order of the Single Judge Bench. In the said writ petition before the Single Judge Bench, letter dated September 21/27, 2016 was the subject matter of consideration wherein clarification was issued by the Director, Secondary Education, Haryana to the Secretary of the Commission to the effect that compulsory English was equivalent to optional English in cases of universities which have given a certificate to this effect regarding the posts of TGT English, which was advertised in 2015.  

The Single Judge came to the conclusion that the Maharshi Dayanand University at Rohtak (‘MDU’) clarified that English as a compulsory subject at the graduate level was equivalent to English as an elective subject and thus, anybody who cleared B.A. examination with English as a compulsory subject would be deemed to have cleared it with English as an elective subject. 

Similarly, the contention that the Commission was wrongly allowing persons possessing Post Graduate degrees in English with those persons not having English as an elective subject at the graduation level was also repelled on the ground that once English was there as a compulsory subject at the graduation level, it would apply to the said case also on account of the University having clarified as above. 

In the writ petition before this Bench, challenge was to the withdrawal notice wherein the Commission in view of the Memo of the Director General Elementary Education, Haryana decided to withdraw the Advertisement whereby posts of TGT English (Group C Services) were advertised. The ground for challenge and the affidavit which was filed in LPA was that more than 3 years lapsed since the department sent the requisition to the Commission and the appointments could not be made. 

The ground taken in the affidavit was that candidates who did not apply for not being eligible against these posts, now became eligible after the amended qualification and there were chances of them approaching the Court for further consideration under the said advertisement. It was further averred that the fresh requisition be sent by the Department after the proposed amendment in the statutory Rules. 

The argument by the counsel appearing on behalf of the writ petitioners accordingly was that they had been called for interview and the merit list was to be released. Thus, on account of litigation, the same was not liable to be withdrawn as the State was estopped as such under the principle of estoppel. It was accordingly argued that there was also an interim stay on October 09, 2020 that the selection may not be finalized and, therefore, the withdrawal by the State was not justified and was arbitrary as appeal against the order of the Single Judge was not preferred. 

After perusing the eligibility criteria in the advertisement, the Court observed that the letter of September 2016 was issued on the strength of the clarification which was sought from the office of the Chief Secretary which placed reliance upon the letter of MDU which certified that English compulsory was equivalent to English elective for all purposes of the students who passed B.A. Part-I to B.A. Part-III from MDU prior to 2011-12 session. Similarly, it was clarified that candidates having M.A. English were eligible for the post of TGT English, though they might not have B.A. English as an elective subject as the candidate possesses the higher qualification in the same line. 

The question, which arose for the Court’s consideration was whether the action of the State was justified firstly in taking clarifications from the office of the Chief Secretary as to whether the candidates who had compulsory English is equivalent to optional English where the universities have given the certificates to that effect and whether Note 4 (students possessing higher qualifications not eligible unless they possess minimum qualification) would come in the way of the State and whether the State was estopped as such from cancelling the advertisement on the principle of estoppel.

The Court observed at the beginning that reliance was placed upon an earlier letter of 1979 which prescribed that if a candidate possesses higher qualification in the same line, such candidate is liable to be considered as eligible for the said post. The Court however, added that the said letter as such was a general letter and not in pursuant to any specific advertisement or to the posts in question.

Thus, Court was of the opinion that the Commission was bound by the said instructions and it was in such circumstances the necessary clarification was further issued in September 2016 wherein, decision in principle was taken that candidates who had compulsory English were equally entitled for consideration against the posts in question against the ones who had English only as an elective subject

Further, the Court made reference to the affidavit of the Registrar, Kurukshetra University (sixth respondent) wherein it was mentioned that a resolution was passed by the Academic Council agreeing that B.A. course with English subject of the University be considered as equivalent to B.A. Course with English Elective Subject.

Resultantly, the Court opined that the subject experts as such themselves opined regarding the equivalence and that it is a settled principle that it is not for the Court as such to opine to the contrary. 

Further, the Court observed that since the recruitment process was at the advance level (written test was conducted and candidates were to be interviewed), and the State itself did not prefer any appeal against the order of the Single Judge, thus the action of the State to withdraw the recruitment process for the posts of TGT English was not justified in the facts and circumstances. 

It was also noted that the Court was faced with a barrage of the service litigation right from the point of time an amendment was made in the service Rules till advertisement was issued for filling up posts and the selection process if finalized and thus, the Court remarked, 

“If the State is to sit as a silent spectator and withdraw the advertisements as such without having opted to challenge the order in accordance with law, its action can be termed as highly arbitrary. It would lead to unfettered litigation resulting in scuttling the recruitment process and leaving many candidates high and dry as the fresh advertisement after a period of 5 or 7 years would entail many of them have become ineligible to apply.”

Thus, the Court opined that the posts of TGT English were subject matter of consideration and it was is in the interest of the State as such to ensure that the vacancies were filled up at the earliest in view of the fact that the cause of action was to be seen at the time when the advertisement was issued and the requirement at that point of time. 

Keeping in view the above, the Court was of the considered opinion that the order of the Single Judge did not suffer from any infirmity and thus was upheld. It was also noticed that on November 03, 2021, the High Court itself had noticed that a fresh advertisement had been issued in spite of the fact that there was an order of status quo passed earlier and resultantly, it was directed that the selection process shall not continue in pursuance of the fresh advertisement. 

Accordingly, the Court directed the State to complete the recruitment process firstly of the advertisement of July 23, 2015 and fill up the vacancies which were duly advertised keeping in mind the opinions received by the university. 

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