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Allahabad High Court · body

2003 DIGILAW 2257 (ALL)

Gajendra Singh v. State of U. P.

2003-09-24

SUNIL AMBWANI

body2003
JUDGMENT : Sunil Ambwani, J. Heard Sri Ashok Khare, senior advocate, assisted by Sri A. K. Singh in Writ Petition Nos. 19367 of 2003, 19045 of 2003 and 18791 of 2003, Sri Ghanshyam Dwivedi in Writ Petition No. 20213 of 2003 and Sri Ramendra Asthana in Writ Petition No. 20150 of 2003, and learned standing counsel for Respondents in the above writ petition. 2. The facts giving rise to these writ petitions are stated as below: In Writ Petition Nos. 19367 of 2003, 19045 of 2003 and 18791 of 2003, Petitioners applied in pursuance of advertisement in newspaper 'Dainik Jagran' dated 30.8.2001, for appointment to Group C posts under U.P. (Outside the Purview of Public Service Commission) Procedure for Direct Recruitment Group 'C' Posts Rules, 2001. All the Petitioners applied for 54 advertised vacancies of Junior Clerks ; 14 for typists and 8 of Apprentice Clerks in the Government Press, Allahabad, for which appointing authority is the Joint Director, Government Press, Allahabad. Whereas the minimum qualification for the posts of Junior Clerks was provided to be Intermediate, and for the posts of Typists, the minimum qualification prescribed as Intermediate with proficiency in typing 25 words per minute in Hindi. The advertisement was published under the authority of Chief Development Officer/Chairman District Selection Committee (Group C), Allahabad. In Writ Petition No. 18791 of 2003, Petitioners 1, 2, 5 and 6 belong to general category, Petitioner Nos. 3 and 4 belong to other backward class, and Petitioner No. 5 claims reservation as dependent of Freedom Fighter. In Writ Petition No. 19045 of 2003 also both Petitioners belong to general category and in Writ Petition No. 19367 of 2003, both Petitioners belong to general category. All the Petitioners applied for all the three posts and in column 7 (b) of the application form, they disclosed that they are proficient in typing. 3. A written examination was held on 7.10.2001. The result was published on 25.11.2001. All the Petitioners qualified in the written examination. A Writ Petition No. 32799 of 2001 Ashok Kumar v. State of U.P. was filed challenging the Constitution of Selection Committee for filling up the posts in Government Press in which interim order was passed on 9.10.2001, restraining the Respondents to proceed with selections. The result was published on 25.11.2001. All the Petitioners qualified in the written examination. A Writ Petition No. 32799 of 2001 Ashok Kumar v. State of U.P. was filed challenging the Constitution of Selection Committee for filling up the posts in Government Press in which interim order was passed on 9.10.2001, restraining the Respondents to proceed with selections. Subsequently by order dated 3.1.2002, it was clarified that the stay order dated 9.10.2001 was limited for the posts of typist in Government Press and did not operate with regard to other posts. All the Petitioners were called for appearing in type test which was scheduled to be held on 5/6.12.2001. In the communication calling Petitioners for type test, it was clarified that the candidates who will appear in typing/ stenography test, will nevertheless be included for consideration for the post in which the knowledge of typist was not necessary and will be considered on their merit position. Petitioner Nos. 3 and 4 in Writ Petition No. 19045 of 2003 appeared in type test. The remaining Petitioners in this writ petition did not appear. The Petitioners in both the Writ Petitions No. 19045 of 2003 and No. 19367 of 2003 did not participate in type test. 4. The entire selection process was stopped on account of a Radiogram of 21.2.2001, issued by the Government Order dated 29.4.2002, in pursuance of the undertaking given on behalf of State Government and thereafter under the order of the Apex Court in Writ Petition No. 488 of 2001 Akhil Bharat Varshiya Chhatra Yuva Berojgar Front v. State of U.P. and others. Thereafter by U.P. Act No. 1 of 2002, the amendments providing for reservations to most backward classes were deleted. A number of writ petitions were filed before this Court for concluding the selection process. In Writ Petition No. 31852 of 2002 Ajit Kumar Singh v. State of U.P., while allowing writ petition on 4.10.2002 a direction was issued to complete the selection process. A special appeal against the said judgment was filed before the Supreme Court on 7.2.2003 which was withdrawn for availing remedy of special appeal. A Special Appeal No. 120 of 2003 filed thereafter is still pending. In pursuance of the statement given in Contempt Petition No. 502 of 2003 the State Government issued a Radiogram dated 5.4.2003, for completing the selection process. A Special Appeal No. 120 of 2003 filed thereafter is still pending. In pursuance of the statement given in Contempt Petition No. 502 of 2003 the State Government issued a Radiogram dated 5.4.2003, for completing the selection process. Even though the selections for 54 posts of Junior Clerks in Government Press was stopped, the result was declared for 52 posts. When these writ petitions were filed, the Court noticed that there are 8 Petitioners in Writ Petition No. 18791 of 2003 and 19045 of 2003, and a direction was issued that the 8 candidates who stand at bottom, of the select list shall not be offered appointment. It was made clear that the Court is not interfering in the selection process. Learned standing counsel requested for time to file counter-affidavit, which was extended on 7.5.2003, 22.5.2003 and thereafter on 7.8.2003. Since it is a matter arising out of Allahabad, this Court took strong exception for further extension of time and imposed cost of Rs. 5,000 to adjourn the case which was deposited on 13.8.2003. At this stage it is pertinent to state that on 22.5.2003 when all these matters were taken up Sri H.P. Upadhyay, Additional Standing Counsel prayed for further time for filing counter-affidavit. On a request made by counsel for Petitioner to stay the appointment, following order was passed by this Court on 22.5.2003: Inspite of time granted to counter-affidavit has been filed. Sri H.P. Upadhyay, Additional Standing Counsel prays for and is granted three weeks further time to file counter-affidavit. List all these connected cases on 15.7.2003. Sri Upadhyay states that on account of modernisation of the Government Press and in order to accommodate retrenched employees the department is considering the number of appointments to be made and that no appointment shall be made until the next date of hearing. In view of the aforesaid statement, no interim order is required to be passed in these matters. List on 15.7.2003. 5. It appears that inspite of the aforesaid assurance given to this Court, Respondents offered appointment to the candidates out of the select list, leaving only 8 posts. In view of the aforesaid statement, no interim order is required to be passed in these matters. List on 15.7.2003. 5. It appears that inspite of the aforesaid assurance given to this Court, Respondents offered appointment to the candidates out of the select list, leaving only 8 posts. Since these appointment letters were issued against an assurance given by the Respondents to this Court, and were made during the pendency of the writ petition, the Court did not consider it proper to implead all the appointees to decide the rights of Petitioners, and has proceeded to decide the case in absence of these appointees. 6. Counter affidavits have been filed. All the counsels agreed that no rejoinder-affidavits are required to be submitted, and have addressed the Court on merits. With the consent of all the parties under the Rules of the Court these writ petitions are being decided at this stage. 7. These selections are regulated by the U.P. (Outside the Purview of U.P. Public Service Commission) Procedure for Direct Recruitment to Group C Posts, Rules, 2001 (in short Rules, 2001). Rule 6A provides that an examination will be held for selection for 150 marks and the select list of the candidates shall be prepared in accordance with the procedure provided under Sub-rule (9) (b) and (c). Sub-rule (a) provides that an objective, written test of one paper consisting of general Hindi, general knowledge and general studies will be taken. 90% marks of the total number of marks will be given to the candidates except for those posts in which typing or stenography and typing is the essential condition for appointments and in other case candidates will be given 70% of the marks in the written examination. Where any physical standards have been provided for the posts, the candidates shall be subject to the physical test after the written examination, from amongst the candidates who fulfilled minimum physical standards. Sub-rule (c) provides that those posts for which typing, stenography and typing is essential condition, the selected candidates shall be required to appear in type test, or stenography and type test as the case may be and 20% of the marks obtained in such type test shall be given to the candidates who have achieved minimum speed. Sub-rule (c) provides that those posts for which typing, stenography and typing is essential condition, the selected candidates shall be required to appear in type test, or stenography and type test as the case may be and 20% of the marks obtained in such type test shall be given to the candidates who have achieved minimum speed. The ratio of candidates to be called for type test or stenography and type test shall be 4/1, provided in these selections every candidate applied for all the vacancies. At the time of application the candidate will be required to give only first preference to the vacancies, to be addressed to the Chairman of the Selection Committee. After the declaration of result the candidates can give their preferences to the Chairman of the Selection Committee. 8. In the counter-affidavit of Sri Bhav Nath, Chairman District Selection Committee/ Chief Development Officer, Allahabad, it is stated that the selections were held under the aforesaid rules. The categories of posts available in Group C in which typist, stenographers and the posts for which knowledge of typing is not required were clubbed together. Apart from the application form, a column was also provided in the answer books requiring the candidates to state whether they know typing/shorthand. Those candidates who gave the aforesaid information, were, according to preference given by them in the application, were classified and were required to appear in the typing/stenography test. All the Petitioners disclosed in their application forms as well as in answer books that they knew typing. The requisite number of candidates were called for typing test. The Petitioners appeared in type test and did not succeed. The rest of them did not appear. As against 42 posts of Junior Clerks, out of the select list, 19 candidates have been given appointments. Since the Petitioners had disclosed that they were proficient in typing and they either did not appear and failed in type test, were not included in the select list. 9. Sri Ashok Khare appearing for all the Petitioners submits that there were two categories of posts. Whereas the post of Junior Clerks did not require proficiency in typing, the post of stenographer required knowledge of typing and stenography. The Petitioners were given option to apply for all the posts. 9. Sri Ashok Khare appearing for all the Petitioners submits that there were two categories of posts. Whereas the post of Junior Clerks did not require proficiency in typing, the post of stenographer required knowledge of typing and stenography. The Petitioners were given option to apply for all the posts. They also gave information in both the application and the answer book that they were proficient in typing, but some of the Petitioners did not choose to appear in type test. Petitioners 3 and 4 in Writ Petition No. 18791 of 2003 appeared, but did not qualify. They, however, were not disentitled to be considered for the post of Junior Clerk for which typing was not the essential qualification. He submits that both under the rules, namely, Rules 6 (c) and 8, as well as in the call letter for type test, it was clearly mentioned that those who did not appear in type test, or did not qualify will not be made eligible to be considered for the post of Junior Clerk, and that the selection for Junior Clerk shall be made according to merit position in the examination. The Respondents, therefore, acted arbitrarily in excluding the Petitioners for consideration only for the post of Junior Clerk, on the ground that they either failed or did not appear in type test. He further submits that Respondents have committed contempt of the orders of this Court and assurances given to this Court in giving 19 appointments. They have shown disrespect to the Court and that the Chairman of Selection Committee and the Joint Director of the Government Press, Allahabad are guilty of contempt. He also submits that action should be taken against Chairman of Selection Committee who has deliberately and purposely acted against the rules. 10. In Writ Petition No. 18791 of 2003, Petitioner No. 5 belongs to category of dependent of freedom fighter and in Writ Petition No. 20213 of 2003, Petitioner claims to be candidate seeking reservation for physically handicapped candidates. Petitioner, it is alleged, is physically disabled in the right leg, limb by 50% and is entitled to be considered for a quota of physically handicapped candidate suffering from disability provided under U.P. Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Serviceman) Act, 1993, as amended in 1997. Petitioner, it is alleged, is physically disabled in the right leg, limb by 50% and is entitled to be considered for a quota of physically handicapped candidate suffering from disability provided under U.P. Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Serviceman) Act, 1993, as amended in 1997. They submit that the reservation has been provided under the aforesaid Act in all Government services and that the State Government has also notified the posts of clerks for reservation for physically handicapped. The Petitioner should have been considered under the said quota. 11. In the counter-affidavit of Sri Bhav Nath, Chairman, District Selection Committee/ Chief Development Officer, Allahabad, it is stated in paragraph 3 that after the amendment on the reservation Act the reservation for certain categories including dependents of Freedom Fighters/ Physically Handicapped/ Women has been given up and in paragraph 5 it has been stated that under the Government Order dated 12.4.2003, physically handicapped have not been given quota in the select list. 12. In Writ Petition No. 20150 of 2003, the writ petition as for Petitioner No. 2 has been dismissed with liberty to file fresh writ petition. It is, therefore, confined only to Anil Kumar Roy, Petitioner No. 1 who is in the same category as Petitioners in the first three writ petitions and had applied for all the posts. He did appear for type test and had been deprived for being considered from the post of Junior Clerk only on the ground that he had mentioned in the application and answer book that he was proficient in typing. Sri Ramendra Asthana appearing for Petitioner submit that the eligibility condition cannot be changed during recruitment process. He has relied upon the judgment of Supreme Court in Gopal Krushna Rath Vs. M.A.A. Baig (Dead) by Lrs. and Others, AIR 1999 SC 2093 and State of M.P. and Others Vs. Raghuveer Singh Yadav and Others, (1994) 6 SCC 151 . In this case also a counter-affidavit of Sri Bhav Nath, it has been disclosed that Petitioner did not have knowledge of typing and since he did not qualify in type test he was taken out of the selection process. In paragraph 19, it has been stated that in Government Press, the number of vacancies were reduced from 54 to 42, and thus select list of only 42 candidates was declared. 13. In paragraph 19, it has been stated that in Government Press, the number of vacancies were reduced from 54 to 42, and thus select list of only 42 candidates was declared. 13. The selections in the present case were held under Rules of 2001, notified on 20.8.2001. The advertisement dated 29.8.2001 published by Chief Development Officer/Chairman, District Selection Committee (Group C), at Sl. No. 19, for Allahabad invited applications for 54 posts of Junior Clerks, 14 posts of Typist and 8 posts of Apprentice Clerk for Printing and Stationery, Allahabad. The appointing authority for these posts is Joint Director, Government Press, Allahabad. The eligibility for the post of Junior Clerk is Intermediate. The column of special eligibility/other condition in front of Junior Clerk was left blank. The post of Clerks, however, required minimum qualification as Intermediate, and knowledge of typing with a speed of 25 words per minute as special eligibility/condition. For Apprentice Clerk same qualification was required as in the case of typist. All the Petitioners applied for all the three categories of posts, and disclosed in their application form that they were proficient in Hindi typing. The Rules, 2001 provided in Rule 6 (6) that the examination of selection shall constitute 150 marks and the select list shall be prepared in a manner that 90% of the marks shall be determined on the basis of objective type written examination in General Hindi, General knowledge and General Studies. Except those applicants who are required to be selected on a post for which the typing or stenography and typing is essential condition of eligibility, and in such cases 75% marks shall be provided for written examination. A proviso to Rule 6 provides that where any standards of physical ability are provided as essential condition of recruitment, the written examination shall be held only after such candidates are subjected to all the prescribed minimum standards of physical ability. Rule 6 (6) (c) provided that those posts for which typing and stenography and knowledge in typing is essential condition, the candidates shall be subjected to type or stenography and type as the case may be, test for typing. 20% of the marks shall be given to those candidates who are efficient in typing with minimum, speed. Rule 6 (6) (c) provided that those posts for which typing and stenography and knowledge in typing is essential condition, the candidates shall be subjected to type or stenography and type as the case may be, test for typing. 20% of the marks shall be given to those candidates who are efficient in typing with minimum, speed. The number of candidates to be called for type or stenography test shall be 4/1 and for this purpose a select list shall be prepared separately taking into account the rules for reservation. Sub-rule (8) provides that in these selections every candidate should be at liberty to apply for all the vacancies for which the selection is being made by the selection committee. At the time of application, the applicants will be required to give their first preference in the application form which shall be addressed to selection committee. After the declaration of result the successful candidates shall give their preference to other posts as well. The application form required the applicants to disclose whether they have knowledge of typing, in column 7 (ka), and whether they have knowledge of stenography and typing in column 7 (kha). In the answer sheet of objective test also, a special column was provided to give information by marking in affirmative whether the candidate knows typing or shorthand and typing as the case may be. Petitioners were declared successful in the written test. Some of the Petitioners, as detailed above, appeared in the type test. All of them have not been selected on the ground that they had disclosed in their application form as well as examination test paper form that they are proficient in typing, but they either failed or did not appear in the type test. All the Petitioners were, therefore, not considered for the post of Junior Clerks for which a knowledge of typing was not required. In the counter-affidavit of Sri Bhav Nath, Chairman, District Selection Committee/Chief Development Officer, Allahabad, it is stated that Petitioners gave false information in their form, and in the answer book that they had knowledge of typing. Only those candidates who had given this information were allowed to appear in the type test. Those who have not filled up these columns were considered for the post of Junior Clerks. 14. Only those candidates who had given this information were allowed to appear in the type test. Those who have not filled up these columns were considered for the post of Junior Clerks. 14. The question to be considered in these writ petitions is whether a candidate who applied for all the three categories of posts and disclosed in his application form as well as examination/test paper form that he had knowledge of typing as essential qualification for being considered for the post of Junior Clerk for which the knowledge of typing was not required. Answer to this question can be easily found in Rule 6 (6) and (8) of the Rules of 2001. Rule 6 (8) clearly gives an option to the candidates to apply for all categories of posts by giving their first preference in his application form. His other preference is required to be given only after the examination was declared. Sub-rule (6) provided for break-up of percentage of marks out of 150 marks and those who appeared for the post in which the knowledge of typing or stenography and typing was required. The fact that the Petitioners filled up column 7 (ka) and the examination/test paper by giving information that they had knowledge of typing, were not disqualify from consideration for the post of Assistant Clerk on the basis of the marks secured by them in the written examination. Interviews are not provided under the Rules. The selection is based only upon the result of the written examination and type test or stenography and type test as the case may be, for particular post. 10% marks is provided for retrenched employees in accordance with Rule 6 (6) (kha). A plain reading of Rule 6 of the Rules, 2001, shows that those candidates who disclosed that they had knowledge of typing and thereafter either failed or did not appear in the type test could not be disqualified for the post of Assistant Clerk. There was no difficulty in preparing the list for the post of Assistant Clerk and typist on the basis of marks obtained by them in the written examination. The Respondents, therefore, committed gross error in refusing to consider Petitioners for the post of Assistant Clerks on the basis of their merit in the written objective examination. There was no difficulty in preparing the list for the post of Assistant Clerk and typist on the basis of marks obtained by them in the written examination. The Respondents, therefore, committed gross error in refusing to consider Petitioners for the post of Assistant Clerks on the basis of their merit in the written objective examination. In the counter-affidavit, it has already been submitted that some of the candidates did not give preference for the post/department/office and that thus all of them were allowed to appear in the examination. 15. The objection taken in the counter-affidavit cannot be sustained. The District Selection Committee acted arbitrarily and in violation of the rules, in preparing the list. The Court does not find that the task of preparing list was so difficult, which disqualified Petitioners to be considered for the post of Assistant Clerks. A matter of convenience in preparing select list cannot be a ground for considering Petitioners for Junior Clerks in which typing was not a special condition. In the written test taken under statutory rules, the Respondents could not ignore the candidature or disqualify those who were eligible for the post to which they had applied. 16. The stand taken by the Chairman, District Selection Committee with regard to reservation of physically handicapped, dependents of freedom fighters and women is in ignorance of law. Reservation of freedom fighters, physically handicapped, and ex-serviceman as horizontal reservation (interlocking reservation) is provided in each category of vertical reservation, provided under U.P. Public (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, as amended in 1997 which is still in force. 17. By a Government Order dated 7th May, 1999, the State Government has identified those posts for which reservation is to be provided for physically handicapped persons u/s 32 of the Act. In Group C posts, item No. 46 relates to Junior Clerks for which in case the physical requirements, and categories of disabilities are provided, in which O.L., i.e., one leg affected, is included. With this reservation applicable to the post of Assistant Clerk, the Petitioner Sri Neeraj Kumar Pandey who claims to be physically handicapped could not have been denied consideration for horizontal reservation in his own category. Annexure-4 is certificate issued to him by Orthopedic Surgeon and counter-signed by the Chief Medical Officer which shows that he has disability on right lower limb by fifty percent (PPRP). Annexure-4 is certificate issued to him by Orthopedic Surgeon and counter-signed by the Chief Medical Officer which shows that he has disability on right lower limb by fifty percent (PPRP). 18. Interim orders were passed by this Court not to give appointment to the last eight selected candidates. The vacancies were reduced from 54 to 42 for the Junior Clerks and it is stated that last eight candidates have not been given appointment. The Court is thus left to decide the validity of appointment of 36 Junior Clerks out of the select list prepared by the District Selection Committee. This Court did not grant interim order as the matter related to Allahabad itself and it was expected that the counter-affidavit may be filed on 7.8.2003. Inspite of a statement given by Sri H.P. Upadhyay, learned Additional Chief Standing Counsel, on 22.5.2002 no appointments were to be made until next date of hearing, but still the appointment letters were issued. The Respondents have, therefore, breached the assurance given by learned Additional Chief Standing Counsel to this Court. The matter was subjudice, and almost all the affected persons had knowledge of the proceedings. The appointment letters were, therefore, illegally issued and cannot defeat Petitioners' right on the ground that the selected persons have not been impleaded. 19. In the facts and circumstances of the case, all the writ petitions are allowed. It is held that the Respondents have illegally and arbitrarily refused to consider Petitioners for the post of Assistant Clerk in Government Press advertised vide advertisement dated 30.8.2001, published in Dainik Jagran, Allahabad. All the Petitioners and similarly situate candidates, are entitled to be considered for the post of Junior Clerks irrespective of the fact whether they disclosed that they had knowledge of typing. All appointments made out of select list are quashed. Respondents are directed to rearrange the select list in accordance with Rules, 2001, as well as directions issued in this judgment, and to prepare a fresh select list and to offer appointment strictly in accordance with law. In Writ Petition Nos. 18791 of 2003 and 20213 of 2002, Petitioner is held entitled to be considered for reservation as dependent of freedom fighter, and physically handicapped post for the post of Assistant Clerk and shall be considered accordingly. The costs are quantified at Rs. 5,000 to be paid by the Respondents.