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T.T. Mohammed Thanseer, Kelpeni Island, U.T. of Lakshadweep v/s The Director, Tourism Development, Kavarathi Island & Others

    OP (CAT). No. 245 of 2017

    Decided On, 31 August 2017

    At, High Court of Kerala


    For the Petitioner: Saiby Jose Kidangoor, P.M. Mohammed Salih, Benny Antony Parel, S. Sibha, Mathews Raju, Advocates. For the Respondents: R1 & R2, S. Manu, CGC, R3, N. Nagaresh, Assistant Solicitor General.

Judgment Text

Ramachandra Menon , J.

1. Interference declined by the Tribunal [Central Administrative Tribunal] with regard to the relief sought for to direct the first respondent to proceed with Annexure A1 notification dated 03.09.2011 and complete the procedure within a stipulated time for appointment to the post of Tourism Officer in the Lakshadweep Administration, however permitting the Administration to proceed with the subsequent notification issued much later, based on the amended Rules and fill up the posts, is sought to be intercepted in this Original Petition.

2. The petitioner is a graduate in Hotel Mangement and was aspiring to have employment in the Lakshadweep Administration, he being a native of Lakshadweep islands. While so, the post of Tourism Officer was notified by the Administration as per Annexure A1 employment notice dated 03.09.2011. As per the notification, only one post was notified [group B] and candidates were to be within the age group of 18 to 30 years [relaxable to the extent as prescribed in respect of the different segments]. The essential qualification prescribed was graduation in the Hospitality Management or MBA/PGDIM/PGDBM or a similar PG Diploma in management. The desirable qualifications mentioned were ; (1) conversational ability in English & Hindi and (2) experience related in Tourism field. It was also mentioned that selection would be made as per the policy of the Administration, by giving weightage of 85 marks for the esse

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tial qualification and 15 marks for the desirable qualification prescribed in the recruitment rules to the said post. According to the petitioner, he satisfied the qualification and the age requirement mentioned in Annexure A1 and had submitted an application for the post as above.3. While so, immediately after issuance of Annexure A1 notification, the same was subjected to challenge by another person by name Abdul Haseeb Ajmeeraini pointing out that the qualification prescribed for the post of Tourism Officer did not have 'Tourism' as a subject in the Degree or Diploma and that the Rule which was in existence since 1990 was sought to be changed by the Administration, issuing some executive orders, which was not correct or sustainable. It was accordingly, that a direction was sought for to conduct selection strictly in accordance with 1990 Recruitment Rules. The said claim was resisted by the Lakshadweep Administration pointing out that, as per the law declared by the Apex Court in J. Rangaswami Vs. Govt. of A.P. [AIR 1990 SC 535], it was not for the Court to consider the relevance of the qualifications prescribed for the post and that as per the declaration in P.U. Joshi Vs. Accountant Generala [(2003) 2 SCC 632] it was held that it would be open within the competency of the State to change the Rules relating to service and alter, amend or vary by addition or subtraction of qualifications, eligibility criteria and other conditions of service including avenues of promotion from time to time depending on the administrative exigencies. It was also pointed out that the applicant had failed to submit the application on time and that the application sent by him by registered post was after the cut off date and hence not a valid application. After considering the rival pleadings, interference was declined and the O.A. was dismissed as per Annexure A3 verdict passed on 29.07.20154. In the meanwhile, the method of selection was sought to be changed by the Administration, who had issued Annexure R1(a) Rules, whereby it was stipulated that there will be written test for selection and that 90 % marks will be allotted to written test, while 10% marks will be for interview. That apart, two more vacancies in the cadre of 'Tourism Officers' had arisen, which were also to be notified and it was accordingly that a fresh notification was issued for conducting the selection based on the new mode of selection. The petitioner submitted Annexure A4 representation on 19.08.2015 to finalize the selection in accordance with Annexure A1 norms and approached the Tribunal with the following prayers:“(i) Issue an appropriate direction or order directing the 1st respondent to proceed with Annexure A1 notification and complete the procedures within a stipulated time period prescribed by this Hon'ble Tribunal in the interest of justice.(ii) Grant such other reliefs that this Hon'ble Tribunal deem fit to grant under the facts and circumstances of the case.(iii) Grant the cost of the Original Petition”5. A detailed reply statement was filed by the Adminitration as borne by Ext. P3. The new notification was produced by the petitioner along with an M.A. as borne by Ext. P4 and sought to intercept the same. The Tribunal passed an interim order permitting the petitioner to take part in the process of selection pursuant to the new notification and without prejudice to his contentions, as evident from Ext. P5. After completion of the pleadings, the parties were heard and the Tribunal passed Ext. P6 order on 03.08.2017 holding that there was absolutely no merit in the Original application, more so, since no right had already been secured by the petitioner/applicant to the post in question and that no prejudice was caused to him under any circumstance. This made the petitioner to approach this Court by filing the present writ petition challenging Ext. P6 order, seeking to direct the first respondent to proceed with Annexure A1 notification and to complete the selection accordingly.6. Sri. Saiby Jose Kindagor, the learned counsel for the petitioner submits that the qualification for the post in question or the mode of selection was not liable to be changed after the commencement of process of selection. In the instant case, Annexure A1 notification was issued was in the year 2011 and the change in Rules was brought in to effect only from 11.12.2013, vide Annexure R1(a) issued in the year 2013; which was having only prospective effect. As such, the change in the mode of selection prescribing a written test allocating 90% marks and leaving 10% marks for interview had virtually changed the norms of selection after the commencement of the proceedings, which was not legally correct or sustainable. Reliance was also sought to be placed on the decisions rendered by the Apex Court in K. Manjusree Vs. State of AP and another [2008 (3) SCC 512 = AIR 2008 SC 1470], Madan Mohan Sharma and Anr. Vs. State of Rajasthan and Ors. [AIR 2008 SC 1657] and Himani Malhotra Vs. High Court of Delhi [AIR 2008 SC 2013].7. The learned standing counsel for the Lakshdweep Administration submits that the idea and understanding of the petitioner is thoroughly wrong and misconceived. The Rules of the Game were not changed after commencement of the Game, to have any application for the decisions sought to be relied on by the petitioner. In the instant case, immediately on issuance of Annexure A1 notification in the year 2011, it was subjected to challenge by another person by filing O.A. No. 927 of 2011 before the Tribunal and the matter was pending there without any further action from the part of the respondents. It is also pointed out that the Administration was finding it difficult to make a proper assessment based on the earlier Rules as it simply stated that not less than 85% marks will be for the essential qualification and 15% for the desirable qualification. Since qualification prescribed for the post in question could be either Degree or PG Diploma in the different faculties, it was not easy to have standardization procedure for proper appreciation and evaluation of the credentials of different candidates. It was also pointed out that after acceptance and implementation of the recommendation of the 6th pay commission, the qualification in respect of almost all the posts in the Lakshadweep Administration had to be changed and necessary modification has been effected in this regard. It was only to make the process of selection transparent, that a written test was prescribed. There is no change in the qualification and that the position was never varied during the midst of the process of selection. The rights and liberties of the employer/Administration to change the relevant qualification, mode of selection and change the relevant recruitment rules for meeting the administration requirements was also stated as settled by virtue of the law declared by the Supreme Court on many an occasion. It was after hearing both the sides, that the Tribunal rightly declined interference by passing Ext. P6 order, which is not assailable under any circumstances, submits the learned counsel.8. There is no dispute to the fact that, norms of selection including qualification for the post in question cannot be altered after commencement of the process, detrimental to the rights and interests of the aspirants. The crucial question to be considered is whether any such exercise was pursued by the Administration, to call for interference at the hands of the Tribunal or this Court.9. It is an admitted fact that, after the issuance of Annexure A1 notification dated 03.09.2011, the Administration was never left to proceed with the same, as it was subjected to challenge by another person before the Central Administrative Tribunal, Ernakulam by filing O.A. No. 927 of 2011, raising a challenge for not including the subject of 'Tourism' in the Degree or Diploma, to be possessed for appointment as Tourism Officer in conformity with 1990 Recruitment Rules. The subject matter was pending consideration before the Tribunal for nearly five years and it was finally heard and disposed of only as per Ext. P6 order passed on 03.08.2017, holding that O.A. was devoid of any merit and in turn dismissing the same.10. In the meanwhile, the difficulty in the process of standardization of the qualification and the marks, in view of, different Degrees/Diplomas notified for the post in question had attracted the attention of the Administration, who hence amended the same as per the Annexure R1 (1) Rules brought into effect from 2013. As held by the Apex Court in AIR 1990 SC 535 [cited supra], it is not for the Court to consider the relevance of qualification prescribed for various posts. Similarly, by virtue of law declared in (2003) 2 SCC 632 [cited supra] [paragraph 10], it was quite open for the Administration/employer to change the Rules or mode of selection, amend, alter or vary the eligibility criteria and other conditions of service. As per the very same decision, it was further held by the Apex Court that, there was no right for any employee of the State to claim that the Rules governing the service condition should forever be the same and that the Government servant has no right to challenge the authority of the State to amend or alter or bring into force the new rules relating to even the existing service.11. As already pointed out, the judicial precedents sought to be relied on by the petitioner are to the effect that the Rules of the Game cannot be changed after commencement of the Game. In other words, once a notification is issued prescribing the qualification, experience or such other eligibility norms, it cannot be changed detrimental to the contents of the notification or Rules under which the vacancy was to be filled up based on the said notification. The point to be considered is, whether the respondent Administration was proceeding with the process of selection as per the amended mode of selection brought into force vide Annexure R1(b), in relation to Annexure A1 notification.12. Admittedly, Annexure A1 notified only 'one' post and two more posts had arisen which were to be notified accordingly. It was also found necessary by the Employer/Administration to have the norms changed by providing a written test, stipulating 90% marks for the written test and 10% marks for the interview as per the amended Rules brought into force in the year 2013. Accordingly, Annexure A1 notification of the year 2011 was cancelled and a new notification was issued vide Annexure R1 (b) on 04.06.2013 to initiate fresh process for the selection for all the three posts notified based on the new rules brought into force. This is perfectly in order as held by the Apex Court in the decision reported in [(2008) 3 SCC 74] [cited supra] paragraph 12 of which reads as follows:”......subsequent amendments of the rules with was prospective cannot be made retrospective so as to make the selection on the basis of the rules which are subsequently amended. If this was to be done, then the only course open was to recall advertisement No.1 of 1996 and to issue a fresh advertisement according to the rules which had come into force.” Having found the necessity to change the mode of selection mentioned in Annexure A1 notification issued in the year 2011, it was not proceeded with, in view of the challenge raised in O.A. No. 927 of 2011, which came to be finalized only in the year 2015 as per Annexure A3 dated 27.09.2015 and further since, two more posts had already occurred, which were to be notified. The earlier notification [Annexure A1] was withdrawn and a fresh notification was issued in the said circumstances. Pursuant to Ext. P5 interim order passed by the Tribunal, the petitioner was also permitted to participate in the selection. Absolutely no prejudice has been caused to the petitioner in any manner and prescription of written test can only add to the transparency sought to be achieved.13. Another important aspect to be noted is that, but for the prayer raised in the O.A. to direct the first respondent to proceed with Annexure A1 notification and complete the proceedings within a stipulated time, the petitioner had not chosen to challenge the new notification or the new recruitment rules by amending the Original Application in any manner. In the absence of any challenge against the new recruitment rules, especially the new notification dated 04.06.2013 it is not open for the petitioner to contend that the order under challenge is liable to be intercepted. We find absolutely no merit in the Original Petition. This is more so, since the petitioner has not acquired any vested right to sustain the relief sought for, as rightly observed by the Tribunal in paragraph 4 of Ext. P6. The right of the applicant was only to be considered for the post and even on his getting placement in the selected list, that by itself would not confer any vested right to be appointed, as already held by the Constitution Bench of Apex Court in Shankarsan Dash Vs. Union of India [(1991) 3 SCC 47]. We are of the view that Ext. P6 order passed by the Tribunal is perfectly within the four walls of law and is not assailable under any circumstance. Interference is declined and the O.P. is dismissed.

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