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Judgment
Dixit Krishna Shripad, J
These two petitions are by the teaching job aspirants. They seek to call in question the legality of recruitment process to Hindi Teacher Posts mainly on the ground that the prescribed procedure as held out in the Recruitment Notification has not been followed and as a consequence they amongst others are put to legal prejudice. After service of notice, the State is represented by ASC and the Staff Selection Commission is represented by its Standing Counsel who has filed the Counter Affidavit & Additional Counter Affidavit as well resisting the petitions.
Foundational Facts:
2.1. The Staff Selection Commission (hereafter “Commission”), vide Advertisement No.IIIE-63/2004-4321/OSSE dated 22.10.2024, had called for online applications from eligible & qualified candidates inter alia for recruitment to 711 posts of Hindi Teacher. Petitioners were in the fray, their applications having been found in order and they having been issued admit cards. They wrote the Written Main Examination held on 15.05.2025. The said examination was for 150 marks, of which 20 were earmarked for Pedagogy and multiple answers were in Hindi. These questions were 1 to 20. Question nos.21 to 150 related to Hindi subject and multiple answers were in Hindi only.
2.2. The Recruitment Notification specifically states that should applications be more than five times the notified vacancies, a Preliminary Examination would be conducted to squeeze the zone of consideration. It also stated the details of Main Written Examination as under:
“Name of the Post
Type of Question
Number of Question
Full Marks
Level
Subjects
Languages (Medium)
xx
xx
xx
xx
xx
xx
xx
Hindi Teacher
MCQ
150
150
Graduation
a) Hindi
Hindi (Devnagari)
b) Pedagogy & Evaluation
English & Hindi (Roman script & Devnagari script)”
Thus, as a matter of policy, bilingual facility, namely, English (Roman script) & Hindi (Devnagari script) was to be made available to the aspiring candidates.
2.3. It is the undisputed case of petitioners that neither Preliminary Examination, as represented to the public at large, was conducted nor the bilingual facility was provided. As a consequence, they had no advantage of English version of the questions. They grieve that had zone of consideration been squeezed by eliminating unworthy applicants by holding Preliminary Examination, they would have stood better chance of selection to the posts in question. The Commission, vide notice dated 12.02.2025, dispensed with holding of Preliminary Examination. Petitioners further submit that, had English questions were furnished along with Hindi, as was assured in the Recruitment Notification, they would have secured more marks and eventually got selected.
2.4. Many candidates complained inter alia about non-availability of questions on Pedagogy & Evaluation in English that had affected their performance in the Main Examination and therefore, the Commission, vide notice dated 17.05.2025, decided to give an option to all candidates to appear for the Examination in the said subject (for 20 marks only) afresh. Petitioners had applied through RTI on 17.02.2025 seeking information as to the number of applicants for the subject posts in question. However, the Commission, vide reply dated 15.03.2025, declined to furnish the information till after entire recruitment process was accomplished in the normative process. However, the key-answers published by the Commission gave hint of their under- performance to the petitioners in the selection process. That is how, they are complaining before the Writ Court alleging apparent infirmities in the recruitment process.
Learned Sr. Standing Counsel representing the Commission drawing attention of the Court to the Counter Affidavit & the Addl. Counter Affidavit filed with leave, makes vehement submission in justification of the recruitment process. Learned Advocates appearing for the Intervening Applicants also resisted the petitions. The gist of submission made by the Standing Counsel for the Commission and Advocates appearing for the Intervening Applicants is as under:
3.1. Petitioners, having participated in the recruitment process without raising even a little finger about its regularity, are estopped from complaining before the Writ Court. They had full opportunity to voice their grievance at the earliest point of time and they did not avail the same sans any justification.
3.2. The Commission had in its discretion availing in terms of very Recruitment Advertisement decided not to hold Preliminary Examination since the number of applicants for the posts in question, at least going by category-wise, was less than five times the notified vacancies. Therefore, decision cannot be faltered.
3.3. Not holding Preliminary Examination has not caused any prejudice to the petitioners, inasmuch as they, having been found eligible and qualified, appeared in the Written Main Examination. The chance of selection, even if zone of consideration was squeezed by holding Preliminary Examination, is speculative and therefore, does not give actionable claim.
3.4. Whatever prejudice is caused to the candidates because of not making available bilingual facility, is rightly addressed by the notice dated 17.05.2025, whereby an option is given by the Commission to rewrite the Pedagogy & Evaluation Papers (20 marks). That option is available to petitioners as well.
Having heard learned counsel for the parties, having perused the petition papers and also having adverted to relevant of the rulings cited at the Bar, this Court is inclined to grant indulgence in the matter as under and for the following reasons:
4.1. The Recruitment Notification admittedly held out to the public in general and aspiring candidates in particular that should applicants outnumber five times the notified vacancies, a Preliminary Examination would be conducted to congress the zone of consideration. Therefore, dispensing with the sieving exercise was unauthorized and unjustified, to say the least, reason assigned by the Commission being demonstrably wrong. The notified vacancies for recruitment in Hindi Teacher Posts were
As against this, there were 4493 applicants. Even by simple arithmetic, the submission of petitioners’ counsel stands substantiated, apparently, the total number of applicants for the posts in question far exceeding 1:5 ratio. Counsel is more than justified in placing reliance on the decision of Apex Court in Bedanga Talukdar v. Saifudaullah Khan(2011) 12 SCC 85 wherein Paragraph-29 reads as under:
“…The selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete...”
4.2. The vehement submission of learned Standing Counsel and learned Advocates appearing for the Intending Interveners that the petitioners are estopped from taking up the above contention, having written the Main Examination vide UOI v. Vinodh Kumar (2007) 8 SCC 100, is difficult to countenance for the simple reason that they did not possess the information as to the number of applicants in the fray of recruitment at that point of time. Added, even their RTI application seeking said information was also not favoured by the Commission. What secrecy the Commission wanted to jealously guard in this regard remains a mystery, not even a word having been whispered in the Counter Affidavits. Even otherwise, what has been observed by the Apex Court in Bedanga Talukdar supra comes to the aid of petitioners.
When law prescribes certain things to be done, there cannot be relaxation, subject to all just exceptions. The Statutory Authorities like the Commission are to be rigorously held bound to the representation they make to the public at large, said Justice Felix Frankfurter of U.S. Supreme Court in Vitarelli v. Seaton 359 US 535 (1959).
4.3. The vehement submission of learned counsel appearing for the Intending Interveners that the breach in question, if at all it is, does not relate to eligibility & qualification and therefore, on that ground alone a recruitment process cannot be set at naught, is difficult to sustain. Their reliance on the Apex Court decision in Tej Prakash Pathak v. Rajasthan High Court (2025) 2 SCC 1 does not come to the rescue of impugned selection process. At Paragraphs-54 to 59, it is broadly observed that ordinarily a Recruitment Process cannot be faltered on the mere infraction of a rule unless the same relates to alteration of eligibility conditions or qualifications, that is brought about when the process is half way through. At Paragrap-60 it is specifically observed that what has been prescribed in the Recruitment Advertisement has to be scrupulously followed subject to all just exceptions. The precedential value of a judgment has to be ascertained by the known tests such as Prof. Wambaugh’s or Prof. Upendra Baxi’s. A few sentences here and a few there, cannot be put in focus disregarding the foundational facts of the case, whilst churning out the ratio laid down in that context. A decision is an authority for the proposition that it articulately lays down in the given fact matrix and not for all that, that logically follows from what has been so laid down, said Lord Halsbury in Quinn v. Leathem [1901] UKHL 2.
4.4. The vehement submission of learned Standing Counsel that the Commission has power to decide the mode of selection and the conduct of Examinations in terms of Paragraph-10 of the Recruitment Advertisement, is difficult to countenance. The same is reproduced for ease of reference:
“10) Commission’s Decision Final: The decision of the Commission in all matters relating to eligibility, acceptance or rejection of the applications, penalty for false information, mode of selection, conduct of examination(s), allotment of examination centers and preparation of merit list & post allocation, debarment for indulging in malpractices will be final and binding on the candidates and no enquiry/correspondence will be entertained in this regard.”
Going by the text of the said paragraph, the Commission has some discretion in matters of conduct of Examinations, is true. However, once the modalities are published in the Recruitment Advertisement, the same have to be adhered to, vide M.P. Public Service Commission v. Navnit Kumar Potdar (1994) SCC (L&S) 1377, wherein it is observed at Para-6 as under:
“…In most of the services, screening tests or written tests have been introduced to limit the number of candidates who have to be called for interview. Such screening tests or written tests have been provided in the statutes or prospectus concerned which govern the selection of the candidates….”
Paragraph-10 in the Recruitment Advertisement does not empower the Commission to alter published modalities/modes.
4.5. Mr. Swain’s contention that the power to dispense with Preliminary Examination avails to the Government under Rule 17 of the Orissa Staff Selection Commission Rules, 1993, appears attractive at the first blush. Let me examine the text of said rule, which is as under:
“17. Where the Government are of opinion that it is necessary or expedient to do so, they may by order and for reasons to be recorded in writing, relax any of the provisions of these rules in respect of any class or category of persons in public interest.”
Firstly, the power given this rule has not been printed in the Recruitment Advertisement. Secondly, the power is given to the Government and not to the Commission. However, the Commission arrogated to itself such a power and unilaterally exercising the same, dispensed with Prelims. There is no reason or rhyme for such an exercise. Existence of power is one thing and its exercise is another. Very existence of such power is hardly the ground for its exercise. Therefore, dispensing with Preliminary Examination was incompetent & prejudicial to the candidates like the petitioners, who were made to compete with all & sundry, who otherwise would have been excluded from the pray in the preliminary sieving.
4.6. Learned Standing Counsel drew attention to Paragraph-4 of the Recruitment Advertisement which speaks of Preliminary Examination. In the remarks column, it is scripted as under:
“It is qualifying in nature. Prelim exam will only be conducted for such posts where number of valid applications are more than five times the advertised vacancies. Based on marks obtained in Preliminary examination approximately 05 times the number of candidates will be shortlisted (post wise & category wise) for appearing in Main written exam.”
His submission that the first part, i.e., the first three & a half lines prescribing Preliminary Examination, when number of valid applications exceeds five times the advertised vacancies, has to be construed along with the second part, i.e., the next sentence running into three more lines, and if that is done, the applications would be within the ratio of 1:5, is difficult to agree with. The first part of the script prescribes the Preliminary Examination as a pre-condition for shortlisting the candidates post-wise & category-wise for appearing in the Main Written Examination on the basis of marks obtained in the Prelims. An argument in variance would make the script topsy-turvy. It is not just the issue of speculativeness, but much more than that. A worthy candidate cannot be made to compete with the unworthy, and thereby run the risk of chance exclusion from the competitive fray.
4.7. The last submission of learned counsel for the petitioners that the Commission grossly erred in not providing bilingual facility, i.e., Hindi in Devnagari script & English in Roman script, is also substantiated by the perusal of very Recruitment Advertisement. Again it remains a mystery wrapped in enigma as to why the English version of Pedagogy & Evaluation Paper was not furnished. In fact, counsel is right in telling that this mistake has been admitted by the Commission vide notice dated 17.05.2025 which, as a measure of rectification, proposes to hold a fresh Examination for 20 marks, at the option of candidates. That, in my considered view, is not only not provided in the Recruitment Advertisement, but, if undertaken, would pollute the sanctity of selection process. No explanation is offered how such a grave error could occur at the hands of the Commission, which plays a pivotal role in the matter of selection & employment to public service. Added, the level playing field that was created by holding the Main Examination would be disturbed, if a fresh & partial Examination is held only for those who opt for that. That would not serve the cause of competitive justice and on the other hand would frustrate the very purpose of choosing the meritorious candidates from the open market.
4.8. The passionate contention of Mr. Swain, learned counsel appearing for Intending Interveners that the Preliminary Examination is dispensed with even in respect of other categories, namely, Sanskrit, Telugu, Urdu & PET Teachers and therefore, petitioners cannot raise hue & cry as if they have been singled out for differential treatment, does not come to the rescue of impugned action. The other aggrieved persons, have not chosen to challenge an unlawful action, is a poor ground to deny relief to those who are vigilant & rights-conscious. Why other candidates did not bring the cause to the portal of Court, is irrelevant while adjudging the legality & regularity of Public Recruitment Process. After all, this is not a case of collective causes of action, nor a social action litigation.
In the above circumstances, these petitions are allowed with the following directions:
(i) The selection process to the 711 posts of Hindi Teachers, as has been done hitherto, is quashed, retaining its stage anterior to Written Main Examination.
(ii) The Commission shall hold the Preliminary Examination in terms of the Recruitment Advertisement, so far as the posts of Hindi Teachers are concerned;
(iii) The Commission shall also provide bilingual facility, as has been held out to the public at large, in terms of Recruitment Advertisement.
(iv) The above exercise shall be accomplished within a period of three (3) months reckoned from this day.
Costs reluctantly made easy.
Web copy of judgment to be acted upon by all concerned.