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2005 DIGILAW 1454 (ALL)

ARUN KUMAR SINGH v. STATE OF U. P.

2005-08-09

S.N.SRIVASTAVA

body2005
JUDGMENT : S.N. Srivastava, J. Impugned herein is the advertisement dated 9.8.2003 (Annexure-5 to the writ petition) by which process of selection by way of written examination for filling up the 423 posts of Kshetriya Yuva Kalyan Evam Pradeshik Vikas Dal Adhikari a group 'C' post as prescribed in the advertisement published on 7.9.2001 has been done away with and instead, the selection has been proposed to be made on the basis of physical test and interview. 2. It would appear from the record that 423 posts of Kshetriya Yuva Kalyan Evam Pradeshik Vikas Dal Adhikari a group 'C' Post were advertised in the pay scale of Rs. 3,200-4,900, the same having been published in Dainik Jagran Newspaper, Lucknow, dated 7.9.2001. The written examination pursuant to the aforesaid advertisement was held on 7.10.2001. Subsequently, by means of impugned advertisement dated 9.8.2003, the procedure prescribed for selection in the earlier advertisement was done away with and instead, entire selection was proposed to be made on the basis of interview without any written examination fixing August 18 and 19, 2005, for physical test. The Petitioner, who has instituted the present petition, is one of the aspirants who responding to the earlier advertisement had applied for the post and had put in written examination. 3. The recruitment according to advertisement dated 7.9.2001, was to be made according to the procedure prescribed under U.P. Procedure for Direct Recruitment for Group 'C' Post (Outside the Purview of the U.P. Public Service Commission) Rules, 2001 promulgated on 20.8.2001 (In short 'the Rule 2001'). The procedure prescribed for recruitment in the advertisement dated 7.9.2001 included physical test and written examination. The Physical test included race of 200 meter, high jump, long jump, throw etc. As stated supra, written test was held on 7.10.2001. Subsequently, by means of order dated 24.6.2003 as published in the Rashtriya Sahara Newspaper on 8.8.2003, the aforesaid written examination was cancelled. By another order of the Government, re-examination was directed to be held. It would further appear from the record that instead of holding re-examination as contained in the order dated 7.8.2003, the posts aforestated were re-advertised on 9.8.2003 envisaging therein that the candidates who had appeared in the written examination pursuant to the earlier advertisement may apply afresh. 4. By another order of the Government, re-examination was directed to be held. It would further appear from the record that instead of holding re-examination as contained in the order dated 7.8.2003, the posts aforestated were re-advertised on 9.8.2003 envisaging therein that the candidates who had appeared in the written examination pursuant to the earlier advertisement may apply afresh. 4. From the above, it appears that by the subsequent advertisement dated 7.8.2003, a sea-change was made in the procedure prescribed for selection inasmuch as written examination was dispensed with and the selection was proposed to be made on the basis of physical test and thereafter, interview. 5. It would further appear from the record that some of the candidates who had applied for recruitment on Group 'C' Posts intended for other departments and covered by the U.P. Procedure for Direct Recruitment for Group 'C' Posts (Outside the Purview of the U.P. Public Service Commission) Rules, 2001, had brought the matter to law by filing Writ Petition No. 31852 of 2002, Ajit Kumar and Ors. v. State of U.P. wherein the order cancelling the selection was challenged. In the ultimate analysis, this Court by means of judgment dated 4.10.2002 mandated the opposite parties to take the recruitment process to completion pursuant to the Advertisement of 2001 and to hold selection according to Recruitment for Group 'C' Post (Outside the Purview of the U.P. Public Service Commission) Rules, 2001 (hereinafter referred to as 'the 2001 Rules') attended with further direction that in case selection process has been taken to some finality, the appointment would be made accordingly and in case the selection processes are still incomplete, the opposite parties were directed to complete the selection process followed by appointments to be made on the posts accordingly. It is quite clear from the record that pursuant to the directions contained in the judgment, the Government of Uttar Pradesh issued an order dated 12.4.2003, directing to complete all selections on the basis of Rule 2001. It is in the perspective of fresh advertisement that the Petitioner has canvassed the validity of advertisement 2003 attended with the prayer for issuing a writ commanding the State to comply with the directions contained in the G.O. dated 12.4.2003, also seeking direction to complete the selection proceedings on the basis of advertisement 2001 and in accordance with unamended 2001, Rules. 6. 6. The learned Counsel for the Petitioner canvassed that there is nothing on record to show that advertisement dated 7.9.2001 was cancelled inasmuch as by means of order dated 24.6.2003 only written examination was cancelled and again by an order, the Government issued a specific G.O. to hold re-examination. The learned Counsel for the Petitioner further canvassed that under the U.P. Procedure for Direct Recruitment for Group 'C' Post (Outside the Purview of the U.P. Public Service Commission) Rules, 2001, the written examination was rightly prescribed along with physical test and re-examination dispensing with the written test militates against the unamended 2001, Rules besides leaving the selection process bereft of objectivity. It was further submitted that the impugned advertisement envisaging selection sans written test and on the basis of physical test and interview has been actuated with oblique motive of leaving room for manoeuvring in the selection of candidates. It was further submitted that in view of Government order dated 12.4.2003, the selection process was to be completed in accordance with unamended 2001 Rules and this having not been done, the re-advertisement is vitiated and is liable to be quashed. The learned Counsel also drew attention of the Court that in the counter-affidavit filed by the State, order cancelling advertisement has not been brought on record and in case any such order has been passed and if the same has not been brought on record, the same is also liable to be quashed. Per contra, learned Standing counsel polemically argued that advertisement 2003 was made for the posts as advertised in the advertisement dated 7.9.2001 and further that the Petitioner cannot be said to be aggrieved at all as he would also be considered by Selection Committee according to the selection process prescribed in the advertisement dated 9.8.2003. The learned standing counsel also contended that the State has taken decision for re-examination including written test in view of certain irregularities committed in the written examination. The learned standing counsel lastly urged that it has always been the prerogative of the State/Employer to advertise the posts again and that the Petitioner cannot be said to be aggrieved as he would be given full opportunity to be considered in terms of new selection. He lastly submitted that the writ petition is not maintainable and is liable to be dismissed. 7. He lastly submitted that the writ petition is not maintainable and is liable to be dismissed. 7. In view of the above the question that begs consideration is whether the Petitioner is entitled to be considered along with other applicants according to the procedures prescribed for Group 'C' posts as contained in unamended Rules, 2001 on the basis of applications made pursuant to advertisement of 2001 or he has to be considered under the Amended Rules enforced by amendment dated 21.6.2003 in which the provision for written examination was dispensed with. 8. It is discernible in the above conspectus that there was admittedly no order by the State Government cancelling Advertisement of 2001 and initiating fresh recruitment process by re-advertising the posts. As a matter of fact, the letter dated 6.12.2002 issued by Director General, Prantiya Rakshak Dal (Annexure-CA1) and Government order dated 24.6.2003 (Annexures-2 and 3 to the writ petition) leave no manner of doubt that only written examination held pursuant to Advertisement of 2001 was cancelled and direction was issued to hold re-examination. There is nothing on record to suggest that advertisement 2001 itself was cancelled. The necessary consequence is that cancellation of advertisement of 2001 by Director General, Prantiya Rakshak Dal lacks validity and the entire exercise of re-advertising the posts and dispensing with the written examination has been made without any authority of law. Indubitably, the posts advertised by means of Advertisement of 2001 and re-advertised by means of advertisement 9.8.2003, were group 'C' posts and the procedure prescribed for recruitment of Group 'C' post is contained in the unamended U.P. Procedure for Direct Recruitment for Group 'C' post (Outside the Purview of the U.P. Public Service Commission) Rules, 2001. It is eloquent from a perusal of unamended Rules, 2001 that more objective procedure is prescribed of holding written examination for assessment of proficiency of eligible persons and this procedure was rightly abided by and followed in the advertisement 2001. It may be noticed that the anvil on which the proficiency of a candidate is tested is the written examination in so far as Group 'C' posts are concerned and thus, written statement is an essential ingredient of the selection process as it is from this test that the aptitude and proficiency of a candidate is tested. It may be noticed that the anvil on which the proficiency of a candidate is tested is the written examination in so far as Group 'C' posts are concerned and thus, written statement is an essential ingredient of the selection process as it is from this test that the aptitude and proficiency of a candidate is tested. The posts for which recruitment had been advertised include duties of dealing with stiffer variety of cases, requiring him to have a thorough track of papers in his charge and he may also be required to be endowed with good memory which enables him to put up appropriate precedents at short notice while dealing with the office files. In view of duties, it also necessarily requires that a candidate must have good knowledge of language. Mere physical test and interview would not suffice to test the proficiency of a candidate on group 'C' posts, It is quite unheard of that for recruitment to the Group 'C' posts, the selection should be based merely on interview, which would be a course against the public policy. The written tests being essential ingredient of selection cannot be dispensed with, as it is the only course by which proficiency of a candidate is adjudged while interview has been accorded a supplementary role to play in selections of such posts. The procedure of holding written test was rightly abided by and followed in Advertisement of 2001. The subsequent dispensing with the written examination in advertisement dated 9.8.2003 is not based on any valid justification. The subsequent amendment in the Rules dispensing with the written test and providing selection on the basis of physical test and interview in the advertisement 2003, appears to be highly arbitrary and actuated by improper motive besides being one militating against 2001 Rules inasmuch as it was clearly provided in Government order dated 12.4.2003 issued pursuant to the Court's direction contained in the judgment delivered in Writ Petition No. 31852 of 2002 that the selection process commenced pursuant to the advertisement 2001 may be taken to some finality on the basis of advertisement 2001 following the procedure prescribed in 2001, Rules. Besides, there is nothing on the record to show that the advertisement 2001 was cancelled by any Government order. It is not clear how fresh advertisement was ordered to be published inviting fresh applications and dispensing with written test therein. Besides, there is nothing on the record to show that the advertisement 2001 was cancelled by any Government order. It is not clear how fresh advertisement was ordered to be published inviting fresh applications and dispensing with written test therein. In case, as claimed by the standing counsel, there was some irregularity in the written examination held pursuant to the advertisement 2001, it was not open to anyone to have done away with the written examination at all. All that ought to have been done was to have held fresh written examination following the procedure prescribed in 2001 Rules and as envisaged in the Government order dated 12.4.2003. 9. Now the question arises whether the Petitioner has any existing right to be considered under the unamended 2001 Rules and pursuant to the advertisement made in the year 2001. As stated supra, the subsequent advertisement dated 9.8.2003, dispensing with the written test and making provisions for selection on the basis of physical test and interview, militates against the procedure prescribed for Group 'C' posts in the unamended Rules, 2001. The Petitioner along with other applicants responding to advertisement 2001 applied and appeared in the written test. In case, there was some irregularity in the written test as alleged, re-examination of written test could have been undertaken. The subsequent advertisement 9.8.2003 providing for selection on the basis of physical test and interview was a complete somersault from the earlier procedure besides being one discordant with the procedure prescribed for Group C Posts in the unamended 2001, Rules. In this perspective, I fully endorse the submissions of the learned Counsel for the Petitioner that the Petitioner had a right to be considered on the basis of advertisement of 2001 and the procedure for selection indicated therein and this right of the Petitioner cannot be taken away by subsequent Amendment. In this connection, certain decisions are worthy of consideration. The decisions having bearing on the controversy involved in the instant case are Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, AIR 1983 SC 852 ; Shyam Sunder and Another Vs. Ram Kumar and Another, AIR 2001 SC 2472 ; A.A. Calton Vs. Director of Education and Another, AIR 1983 SC 1143 and P. Mahendran and others Vs. State of Karnataka and others, AIR 1990 SC 405 . J. Sreenivasa Rao and Others, AIR 1983 SC 852 ; Shyam Sunder and Another Vs. Ram Kumar and Another, AIR 2001 SC 2472 ; A.A. Calton Vs. Director of Education and Another, AIR 1983 SC 1143 and P. Mahendran and others Vs. State of Karnataka and others, AIR 1990 SC 405 . In connection with the above, a decision of this Court (F.B.) rendered on 19.7.2005 in Civil Misc. Writ Petition No. 20476 of 2001, Prashant Kumar v. State of U.P. and Ors. may also be referred to. The ratio flowing from this decision is congruous with the view I am taking in the instant petition that the applicant is entitled to be considered on the basis of law existing on the last date of submission of application. The relevant paragraphs of the aforesaid judgment are excerpted below: In A.A. Calton Vs. Director of Education and Another, ; A. V. Rangaiah v. J. Shreenivasa Rao AIR SC 853 ; N.T. Bevin Katti, etc., Vs. Karnataka public Service Commission and others, AIR 1990 SC 1233 ; P. Gyaneshwar Rao v. State of Andhra Pradesh, 1998 Supp SCC 740 and P. Mahendran and others Vs. State of Karnataka and others, the Supreme Court has reiterated the well accepted principles of applicability of statutory Rules to the selection as follows: It is a well accepted principle of construction that a statutory rules or Government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government orders and any amendment of the rules or the Government orders pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended rules or the amended Government orders issued in exercise of its statutory power either by express provision or by necessary intendment indicate that amended rules shall be applicable to the pending selections. See P. Mahendran and others Vs. State of Karnataka and others, : In State of Uttar Pradesh Vs. Vijay Kumar Misra, AIR 2003 SC 4411 , the Supreme Court held in paragraph 7 as follows: 7. See P. Mahendran and others Vs. State of Karnataka and others, : In State of Uttar Pradesh Vs. Vijay Kumar Misra, AIR 2003 SC 4411 , the Supreme Court held in paragraph 7 as follows: 7. The position is fairly well-settled that when a set of eligibility qualifications are prescribed under the rules and an applicant who does not possess the prescribed qualification for the post at the time of submission of application or by the cut off date, if any, described under the rules or stated in the advertisement is not eligible to be considered for such post. In Mohan Kumar Lal v. Vinoba Bhave University and Ors., (2002) 10 SCC 704 , the appointment to the posts was advertised on 10.1.1990, and the last date of submission of application was 30.1.1990. The High Court was of the view that since the appointments were not factually made, the reservation policy introduced on 22.8.1993 could not apply. The Supreme Court held that the High Court erred in applying the reservation as the provisions of Section 57 which governed the field did not contain any class for reservation and Sub-section (5) of Section 57 provide for reservation was introduced only on 22.8.1993. In Shankar K. Mandal and Others Vs. State of Bihar and Others, AIR 2003 SC 4043 , the Supreme Court was faced with the recruitment of 2000 Primary Teachers in Bihar. The High Court had not considered as to what were the applicable rules so far their eligibility was concerned. There was a concession made before the High Court that the appointees were overage on the date of initial appointment. There was no definite material as to what was the eligibility criteria so far as the age is concerned. The Supreme Court relying upon the judgment in Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another, (1997) 4 SCC 18 ; Bhupinderpal Singh and Others Vs. State of Punjab and Others, AIR 2000 SC 2011 and Jasbir Rani and Others Vs. State of Punjab and Another, AIR 2002 SC 60 , culled out the principles of the applicability of the cut off date for the prescribed qualification relating to age by a candidate for appointment as follow: (1) The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules. (2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for application. (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority. 10. Having discussed the matter in all its pros and cons, and having held the right of the Petitioner to be considered pursuant to initial advertisement dated 7.9.2001, the next question that arises is whether the other applicants who had applied pursuant to initial advertisement would be entitled to be considered for selection on the basis of the initial advertisement 2001. It is clearly provided in Advertisement dated 9.8.2003, that the applicants who had applied pursuant to earlier advertisement may apply afresh. It has been held in the instant case that fresh advertisement 9.8.2003 and procedure dispensing with the written examination are quite arbitrary and has no genesis in any valid foundation and therefore, it is liable to be quashed and by this reckoning, the fresh advertisement in so far as it provides for seeking application afresh from the Petitioner and other applicants who had applied in terms of advertisement of 2003, shall be treated as corrigendum to the earlier Advertisement of 2001. In so far as it dispenses with the written examination the same cannot be sustained. However, the advertisement of 2003 shall operate in so far as it provides for inviting fresh applications. However, it may be clarified that the candidature of the Petitioner and all other applicants shall be considered in terms of initial advertisement of 2001 and selection shall be held according to the procedure prescribed in the un-amended Rules, 2001 aforestated. 11. In the above conspectus, the writ petition is disposed of studded with the direction that opposite parties shall take steps for holding of written examination according to the advertisement 7.9.2001 and selections shall be made in observance of the procedure prescribed under the un-amended U.P. Procedure for Direct Recruitment for Group 'C' Posts (Outside the Purview of the U.P. Public Service Commission) Rules, 2001. It is further directed that after the selection process is completed, the opposite parties shall declare the result and issue letters of appointment to the successful candidates within two months from the date of presentation of a certified copy of this order. 12. In the facts and circumstances, there will be no order as to costs.