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2009 DIGILAW 557 (UTT)

RAMESH CHANDRA v. STATE OF UTTARAKHAND

2009-11-07

B.C.KANDPAL, B.S.VERMA

body2009
JUDGMENT [Per : Hon’ble B.S. Verma, J.] Since both the Special Appeals are directed against common judgment and order dated 15.1.2009 passed by the learned Single Judge of this Court, in Writ Petition No. 815 of 2008 (S/S) Ravinder Saklani and two others Vs. State and others and Writ Petition No. 849 of 2008 (S/S), Narain Singh Bisht Vs. State and two others and as the controversy involved in both the appeals is similar, therefore, for the sake of convenience, they are being decided together by this common judgment. 2. Brief facts giving rise to the present appeals are that the Transport Commissioner, Uttarakhand, Dehradun issued an advertisement on 9.9.2005 thereby applications were invited from the eligible candidates for direct recruitment to the post of enforcement constables under the control of Transport Commissioner, Dehradun, which was published in daily newspaper on 10.9.2005. In the advertisement, the number of posts reserved and unreserved were categorized with a total of 112 posts of enforcement constables. The procedure of recruitment was also exposed in the advertisement. The posts of enforcement constables are governed by Uttarakhand Transport Department Enforcement Employee Cadre Service Rules 2004 (for short the Rules). Rule 15 thereof provides for direct recruitment. In the Rules, Rule 15(4) and 15(5) provided for written test followed by an interview. 3. The respondent nos. 4 to 6 are the three petitioners in the former writ petition, while respondent no. 4 is the writ petitioner in the latter petition. The writ petitioners applied for the post of Enforcement Constables in pursuance of the aforesaid advertisement and after qualifying the physical examination, they appeared in the written examination held on 6.7.2008. It is alleged that the writ petitioners were waiting for call letter for interview as envisaged by the advertisement. Subsequently, select list of the candidates was published by Notification dated 25.7.2008 in the newspaper and it was mentioned that after verification of original documents and medical examination, they will be given appointment. 4. The only grievance of the writ petitioners is that the declaration of select list without holding interview is against Rules and law and, therefore, the writ petitioners came up before this Court by way of aforesaid two writ petitions praying for the issue of a writ in the nature of certiorari quashing the selection of Pravartan Sepoy held on the basis of advertisement dated 9.9.2005. They have also prayed for a writ of mandamus commanding the respondents not to give effect to the impugned selection. 5. The stand of the writ petitioners before the learned Single Judge was that in case there was any change in the process of selection, the proper course would be to make a fresh advertisement and in no case the Rules can be changed once the selection process was given effect and any depart from the procedure would be illegal. 6. On behalf of the State, counter affidavit was filed before the Single Judge. The stand of the State therein was that the selection process, which was in progress in different departments, was postponed by the Government vide Chief Secretary Letter dated 3.3.2007 and by Government Order dated 25.4.2007, the selection process had been changed and the holding of interview in the selection process was discontinued and the select list was to be prepared on the basis of the marks obtained in written examination alone. It was also contended before the learned Single Judge that the State Government also issued Notification dated 14.11.2007 thereby the Service Rules were framed pertaining to Enforcement Constable Cadre of Uttarakhand Transport Department. By introducing 2007 Rules, the procedure of interview as mentioned under sub-rule (4) and (5) of Rule 15 of the former Rules were omitted. Thus, by that notification, Uttaranchal Transport Department Enforcement Staff Service Rules, 2004 were substituted by Uttarakhand Transport Department Enforcement Staff Cadre (Amendment) Service Rules, 2007. These Rules were made application with immediate effect, i.e. 14.11.2007. 7. In Writ Petition No. 815 of 2008 (S/S), on behalf of 31 interveners, who were selected candidates, counter affidavit was also filed on 12.12.2008. They stated therein that a physical test was held on 27.12.2006 and 16.1.2007 in two physical examination centres-Dehradun and Rudrapur in respect of Garhwal and Kumaun divisions respectively. Subsequently the Government issued Government Order on 25.4.2007 thereby postponing all recruitment process with immediate effect which included the impugned recruitment of enforcement constables. Recruitment Rules were amended by Uttarakhand Pariwahan Vibhag Pravatan Karmchari Varg (Sansodhan) Sewa Niyamawali, 2007. A copy of the same was annexed as Annexure CA-3 to the counter affidavit filed by them. The Department of Information and Public Relations Uttarakhand also issued advertisement in daily newspapers mentioning therein that holding of interview has been taken away from the recruitment process of the Government. A copy of the same was annexed as Annexure CA-3 to the counter affidavit filed by them. The Department of Information and Public Relations Uttarakhand also issued advertisement in daily newspapers mentioning therein that holding of interview has been taken away from the recruitment process of the Government. It has also been specifically stated that the writ petitioners having been fully aware that the interview has been abolished from the recruitment process had participated in the written examination without any protest and they waited until the result of the written examination was declared on 25.7.2008 and when they found themselves unsuccessful in the examination, they filed the writ petition before this Court challenging the selection process. It was also stated that the selection process started in the year 2005 and during the span of more than three years many of the selected candidates have become overage for the government service and they would suffer a great irreparable loss. 8. The learned Single Judge, after hearing counsel for the parties and on perusal of the material placed before him, has held that since no corrigendum to the earlier advertisement issued on 9.9.2005 was issued by the Government informing to all concerned that interview will not be held and selection will be made on the basis of written examination, therefore, the selection made as per amended Rules was liable to be set aside. Accordingly, by order dated 15.1.2009, both the writ petitions were allowed and the impugned selection pursuant to advertisement dated 9.9.2005 was set aside. The respondents were directed to conclude the selection process afresh as per advertisement dated 9.9.2005 taking into consideration the marks obtained by the candidates in the written examination. 9. Aggrieved by the impugned order dated 15.1.2009, four of the successful candidates have filed two separate special appeals. 10. We have heard learned counsel for the parties at length and perused the material placed before the Court. 11. Before entering into the merits of the appeals, it may be mentioned that before the learned Single Judge, on behalf of 31 successful candidates, who were finally selected for being given appointment, intervention application was filed, which was allowed and they were also heard by the learned Single Judge. The four appellants in Special Appeal No. 34 of 2009, initially did not array other successful candidates as respondents to the appeal. The four appellants in Special Appeal No. 34 of 2009, initially did not array other successful candidates as respondents to the appeal. Subsequently, those persons were also impleaded as respondents no. 7 to 33 to the Special Appeal No. 34 of 2009. 12. The undisputed facts of the case are that the Transport Commissioner, Uttarakhand issued an advertisement on 9.9.2005 inviting applications for certain number of posts including the post of Enforcement Constables. In paragraph no. 5 of the advertisement, the procedure was given which comprised physical examination test followed by written examination and finally interview. It is also not disputed that at the relevant point of time the recruitment and service of the Enforcement Constables were governed by Uttarakhand Transport Department Enforcement Employee Cadre Service Rules, 2004 and these Rules contained the procedure of selection after written test and interview. Under these Rules separate marks were assigned to written test and interview and the final select list was to be prepared after computing the total marks obtained by the candidates. The selection process was kept in abeyance by the Government Letter dated 3.3.2007. It is also not disputed that the Government of Uttarakhand has issued an Office Memorandum whereby the Government had taken certain policy decisions in order to bring transparency in the recruitment process, which included induction of objective to the candidates as well as carbon copy of answer sheet, induction of negative marking in the examination and availability of answer key in the official website etc. It is also not disputed that subsequent to that, the Government issued Notification dated 14.11.2007 thereby the recruitment and service rules of 2004 were amended and the amended Rules of 2007 were applicable with immediate effect and in the new Rules the holding of interview was omitted. It is also not disputed that the Transport Commissioner, Uttarakhand, Dehradun published a memorandum dated 24.6.2008 in the daily newspaper Amar Ujala on 26.6.2008 as well as in the Dainik Jagran. In the title note of this memorandum it has been mentioned that the recruitment rules of Enforcement Constables were amended and the recruitment process was made transparent subsequently after issuance of advertisement in the year 2005 and the venue of written examination to be held on 6.7.2008 were also indicated therein. In the title note of this memorandum it has been mentioned that the recruitment rules of Enforcement Constables were amended and the recruitment process was made transparent subsequently after issuance of advertisement in the year 2005 and the venue of written examination to be held on 6.7.2008 were also indicated therein. It is admitted case of the writ petitioners that they appeared in the written examination held on 6.7.2008 for which a memorandum was published in the daily newspaper on 24.6.2008. 13. The main contention of the learned counsel for the appellants is that the petitioners are the unsuccessful candidates, who had willfully participated in the new selection process without any demur or protest, therefore, they were not entitled to any relief in the writ petitions. It has also been contended by the learned counsel for the appellants that the petitioners have not challenged the Office Memorandum dated 25.4.2007 whereby the holding of interview had been parted with from the selection process as also the Government Notification dated 14.11.2007 thereby the recruitment rules were amended by the Government. It has been submitted that the impugned order dated 15.1.2009 passed by the learned Single Judge is not sustainable. 14. It has also been contended by the learned counsel for the appellants that the Government was well within its domain to amend the rules for recruitment during the process of selection for which wide publicity through daily newspapers was given for information of the general public, therefore, the writ petitioners were estopped from challenging the selection process. 15. In support of their contention, learned counsel for the appellants relied upon the Apex Court verdict in the case of Dhananjay Malik and others Vs. State of Uttaranchal and others [(2008) 4 Supreme Court Cases 171]. In paragraph no. 9, the following observations were made by the Apex Court :- “9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.” 16. Learned counsel for the appellants also relief upon the case of Union of India and others Vs. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.” 16. Learned counsel for the appellants also relief upon the case of Union of India and others Vs. S. Vinodh Kumar and others [(2007) 8 Supreme Court Cases, 100] wherein it was held in para 18 that “It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.” Similar view was taken by the Hon’ble Supreme Court in paragraph no. 54 of the case of K.A. Nagamani Vs. Indian Airlines and others [(2009) 2 Supreme Court Cases (L&S) 57]. 17. On the other hand, the learned counsel appearing for the writ petitioners-respondents, in reply, have argued that the Rules framed vide Notification dated 14.11.2007 cannot be made applicable to the selection process, which started on 9.9.2005 and thereafter the physical test had already been completed on 27.12.2006 and 16.1.2007. The amended Rules are prospective and have not been given retrospective effect. It was further contended that the mandate under the Government Order dated 25.4.2007 was not adhered to and no fresh advertisement was issued. It was also contended that prejudice was caused to the writ petitioners for not holding the interview because one of the petitioner got the marks equal to the candidate placed in the bottom of the select list, therefore, if the interview would have been held, the writ petitioner would have been in a position to secure better marks in the interview to help him get selected. 18. The short controversy to be resolved in these appeals is whether the select list as has been challenged by the petitioners (unsuccessful candidates), who had admittedly participated in the new selection process as framed by the Government is liable to be quashed and whether the impugned selection process is not legally tenable and liable to be set aside. 19. From the said of the writ petitioners, it has been contended the Rules applicable on the date of advertisement would govern the selection unless the Rules are framed retrospectively and if the Rules are amended prospectively the selection would be governed by the Rules applicable on the date of advertisement. 19. From the said of the writ petitioners, it has been contended the Rules applicable on the date of advertisement would govern the selection unless the Rules are framed retrospectively and if the Rules are amended prospectively the selection would be governed by the Rules applicable on the date of advertisement. Learned counsel for the respondents has placed reliance upon paragraph no. 14 of the case of Marripati Nagaraja Vs. Government of A.P. [(2007) 11 S.C.C. 522] wherein the Apex Court has held that “it is now a well-settled principle of law that the rules which would be applicable for selecting the candidates would be the one which were prevailing at the time of the notification. It is also equally well settled that the State may, subject to constitutional limitations, amend the rule with retrospective effect”. The ratio of the judgment cannot be disputed, Moreover, in paragraph no. 19 of case of Marripati Nagaraja (supra), it was also inter alia held that “the appellants had appeared at the examination without any demur. They did not question the validity of the said question of fixing of the said date before the appropriate authority. They are therefore, estopped and precluded from questioning the selection process.” In the case in hand, the advertisement for the recruitment was issued in the year 2005. The Government admittedly postponed the recruitment processes and abolished interview in order to bring transparency in the recruitment. Wide publicity was also given to that effect and the written examination was held as late as 6.7.2008 after about three years from the date of advertisement. The writ petitioners had appeared in the selection process without any protest and not only this, they waited till the declaration of result by the respondents and finding them unsuccessul, they chose to assail the selection process. In this way, the case-law relied upon by the writ petitioners does not help them rather it helps to the case of the appellants. 20. Learned counsel for the respondent nos. 4 to 6 in Special Appeal No. 34 of 2009 (writ petitioners) also relied upon the following case-law : 1. Arjun Singh Rathore & others Vs. B.N. Chaturvedi & others [(2007) 11 S.C.C. 605] 2. State of Punjab & others Vs. Arun Kumar Aggarwal & others [(2007) 10 S.C.C. 402] 21. 20. Learned counsel for the respondent nos. 4 to 6 in Special Appeal No. 34 of 2009 (writ petitioners) also relied upon the following case-law : 1. Arjun Singh Rathore & others Vs. B.N. Chaturvedi & others [(2007) 11 S.C.C. 605] 2. State of Punjab & others Vs. Arun Kumar Aggarwal & others [(2007) 10 S.C.C. 402] 21. In these cases also, similar view was taken by the Apex Court that the Rules amended during the process of selection, not from retrospective effect, cannot be made applicable on the selection started prior to the amendment of the Rules and the selection would be governed only by the unamended Rules. The ratio of the case-law cannot be disputed, but they are of no help to the writ petitioners as a mentioned above. 22. Learned counsel for the contesting respondents/writ petitioners also argued that the State Government was not justified to deviate from the selection process thereby eliminating the interview as has been mentioned in the advertisement in the year 2005 on the basis of which the physical examination test was already conducted. They have placed reliance upon the case of Madan Mohan Sharma and another Vs. State of Rajasthan and others [(2008) 3 SCC, 724], wherein the Apex Court in paragraph 11 and 12 had held as under : “1. We have heard learned counsel for the parties and perused the records. Mr. M.R. Calla, learned Senior Counsel appearing for the appellants has strenuously urged that during the pendency of the selection process, the eligibility criteria were changed and the date for submission of the application in pursuance to the advertisement was extended and Rule 266 of the Rules of 1996 came into being on 30.12.1996 whereby it was provided that Higher Secondary Examination shall be the criteria for preparing the merit list. As such, as per the service rules, the selection should have been made on the basis of Higher Secondary Examination marks and not on the basis of Secondary Examination marks. We regret this cannot be accepted. Once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot be on the basis of the criteria which has been made subsequently. 12. We regret this cannot be accepted. Once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot be on the basis of the criteria which has been made subsequently. 12. As per the circular which was obtaining at the time when the advertisement was issued dated 24.7.1995, the criteria for selection to the post of teacher Grade III was Secondary Examination though this was changed during the pendency of the advertisement. Subsequent amendment of the Rules which was prospective cannot be made retrospective so as to make the selection on the basis of the Rules which were subsequently amended. If this was to be done, then the only course open was to recall Advertisement No. 1 of 1996 and to issue fresh advertisement according to the Rules which had come into force. Secondly, this was not done and erroneously the authorities made the amended Rules applicable and proceeded with the selection which resulted into litigation and ultimately Radhey Shyam Sharma succeeded in that litigation and it was held that the selection should be made as per Secondary Examination marks, the criteria which was prevalent at the time when the advertisement was issued.” 23. Learned counsel for the contesting respondents/writ petitioners also placed reliance upon the case of N.T. Devin Katti and others Vs. Karnataka Public Service Commission and others [(1990) 3 Supreme Court Cases, 157] wherein it has been held in para 11 and 13 that a statutory rule or government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect. If the recruitment Rules are amended retrospectively during the pendency of selection, in that even selection, must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. 24. The learned counsel has placed reliance in the case of K. Manjusree Vs. State of Andhra Pradesh and another [(2008) 3 S.C.C. Page 512] wherein the Apex Court has held in paragraph no. 27 that the previous procedure was to apply minimum marks only for written examination and not for the oral examination. 24. The learned counsel has placed reliance in the case of K. Manjusree Vs. State of Andhra Pradesh and another [(2008) 3 S.C.C. Page 512] wherein the Apex Court has held in paragraph no. 27 that the previous procedure was to apply minimum marks only for written examination and not for the oral examination. Proper interpretation of the earlier Resolutions dated 24.7.2001 and 21.2.2002 as adopted on 30.11.2004 was that minimum marks are for written examination only and not for the interviews. Therefore, introduction of requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. Similar view was taken by the Apex Court in the case of Maharashtra State Road Transport Corpn. and others Vs. Rajendra Bhimrao Mandve and others [(2001) 10 S.C.C. Page 51] wherein it has been held that reallocation of marks for interview in the middle, or after the commencement, of selection process is impermissible. Similar view was taken by the Apex Court in the case of ‘Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and others [(2000) 5 SCC, Page 287]. The ratio of these judgments is not disputed. In the case at hand, as has already been narrated above that the selection process was kept in abeyance by the Government Letter dated 3.3.2007 and subsequently, the Government took certain policy decisions in order to bring transparency in the recruitment process and accordingly, the Rules of 2004 were amended w.e.f. 14.11.2007 thereby the holding of interview has been eliminated. Wide publicity with regard to amended selection process was made. It was only thereafter that the written examination was held on 6.7.2008 and the writ petitioners participated in the selection process without any objection. As such, case-law referred to above, which were relied upon by the writ petitioners, do not help them. 25. One another important aspect of the case is that from the side of the writ petitioners, main stand was taken that the recruitment to the post of enforcement constables i.e. Sipahi are governed under the U.P. Transport Department Enforcement Staff (Group ‘D’) Service Rules, 1979. The writ petitioners have filed copy of the said Rules as Annexure-2 to the writ petition [No. 815 of 2008 (S/S)]. The writ petitioners have filed copy of the said Rules as Annexure-2 to the writ petition [No. 815 of 2008 (S/S)]. Even in these Rules, we do not find any provision for conducting of written examination, even then the writ petitioners appeared therein. Moreover, it does not stand to reason as to why the writ petitioners had not challenged the Uttarakhand Transport Department Enforcement Staff Cadre (Amendment) Service Rules, 2007 substituting the 2004 Rules, on the basis of which the selection process was amended and the holding of interview was taken away from recruitment in question. In our opinion, it does not lie in the mouth of the writ petitioners to assail the selection process wherein they had participated without any protest and when the result of the examination was not palatable to them, they approached this Court assailing the selection process. 26. Learned counsel for the writ petitioners further contended that the Rules of game cannot be departed in the midway. It is not disputed that the Transport Commissioner Uttarakhand Dehradun issued an advertisement on 24.6.2008 wherein it was clearly mentioned that the service rules were amended and the recruitment was made transparent. This advertisement refers to earlier advertisement of the year 2005 regarding the selection of enforcement constables. This advertisement was published in daily newspapers and was given wide publicity. The writ petitioners had not challenged this advertisement also in their writ petitions. 27. Moreover, the crux of the case is that the Government of Uttarakhand had issued an Office Memorandum dated 25.4.2007, which was filed by the State as Annexure-1 to the counter affidavit filed on behalf of respondent nos. 1 to 3 in Writ Petition No. 815 of 2008 (S/S) and in this Government Office Memorandum certain decisions were taken to make the selection process transparent. This Office Memorandum dated 25.4.2007 had come to the notice of the petitioners on 29.8.2008. A careful reading of this Government Order dated 25.4.2007 goes to show that in Clause 8, it has been categorically mentioned that in the departments where the selection process is going on and the written examination has not yet been conducted, further selection process in those departments shall be proceeded with after amending the service Rules. A careful reading of this Government Order dated 25.4.2007 goes to show that in Clause 8, it has been categorically mentioned that in the departments where the selection process is going on and the written examination has not yet been conducted, further selection process in those departments shall be proceeded with after amending the service Rules. Therefore, it was obligatory on the part of the writ petitioners to challenge the Government Order dated 25.4.2007 on the strength of which the impugned recruitment process had been completed. Even then, the writ petitioners did not choose to amend the prayer clause of the writ petition to question the validity of this Government Office Memorandum also in the present writ petitions. 28. Having considered the arguments advanced by the learned counsel for both the sides, we are of the considered view that the writ petitioners were fully aware that the selection process was postponed by the Government and subsequently Government Order dated 25.4.2007 was issued stating therein the decisions taken by the Government in respect of the selection process which had already commenced and written test was not conducted and subsequently, relevant rules were amended by the Government and finally the written examination was held as per amended Rules. The writ petitioners had in fact participated in the selection process without any protest or demur. It is evident that the Government Order dated 25.4.2007 had not been assailed by the writ petitioners in the writ petitions. We do not find it a fit case to disturb the entire selection process at the behest of the unsuccessful candidates. In such circumstances, the writ petitioners were not entitled to get any relief in the writ petitions. 29. For the discussion and reasons aforesaid, we find that the learned Single Judge lost sight of the fact that the writ petitioners had participated in the impugned selection process knowing fully well the procedure made applicable by the State-respondents without any protest or demur and since the Government Order dated 25.4.2007 was not questioned, the writ petitions were liable to be dismissed outright. Consequently, both the Special Appeals are liable to be allowed. The impugned order dated 15.1.2009 is liable to be set aside. 30. Both the Special Appeals are hereby allowed. Consequently, both the Special Appeals are liable to be allowed. The impugned order dated 15.1.2009 is liable to be set aside. 30. Both the Special Appeals are hereby allowed. The impugned order dated 15.1.2009 passed by the learned Single Judge is set aside and both the writ petitions [Writ Petition No. 815 of 2008 (S/S) and Writ Petition No. 849 of 2008 (S/S)] are accordingly dismissed. Costs easy.