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2012 DIGILAW 2262 (ALL)

ATUL KUMAR SHARMA v. STATE OF U. P.

2012-09-26

ARVIND KUMAR TRIPATHI, PRAKASH KRISHNA

body2012
JUDGMENT Hon’ble Prakash Krishna, J.—This intra-Court appeal has been filed under Chapter VIII Rule 5 of the High Court Rules against the judgment passed in writ petition No. 28151 of 2012 dated 30th of August, 2012 whereby a learned Single Judge of this Court has dismissed the aforestated writ petition. 2. The basic facts of the matter are not much in dispute. The respondent No. 3/Electricity Service Commission issued an advertisement inviting applications for filling up 2974 posts of Technician Grade-II (Apprenticeship Electrical) in the U.P. Power Corporation. The said advertisement was given wide publicity and in response thereto 16712 applicants have applied for the posts in question. The advertisement provides the following qualifications : **1- vfuok;Z vgZrk;sa@’kSf{kd ;ksX;rk% ek/;fed f’k{kk ifj"kn m0iz0 dh gkbZ Ldwy ;k led{k ijh{kk foKku ,oa xf.kr ds lkFk mRrh.kZ bysDVªhf’k;u VªsM esa 2 o"kZ dh vof/k dh vf[ky Hkkjrh;@jkT; O;olkf;d izek.k i=A blds vfrfjDr DOACC }kjk iznRr 80 ?kaVs dk Course on Computer concept (CCC) izek.k i= lk{kkRdkj ds le; izLrqr djuk vfuok;Z gksxkA** (Emphasis Supplied) 3. The selection was to take place on qualifying the written examination and interview. On 7th of August, 2011 written examination was held. The result was declared and published on 20th October, 2011. 27th November, 2011 to 28th December, 2011 was the period fixed for holding interview of the candidates successful in the written examination. 4. One Raj Kumar Sonekar, a successful candidate in written statement filed writ petition No. 72853 of 2011 before this Court for a writ of Mandamus praying that he should be allowed to participate in the interview even in absence of DOEACC certificate. It may be placed on record that the service in question is governd by the U.P. Vidyut Parishad Parikshayen Karamchari Work Seva Niyamavali, 1995. The service rule was amended on 29th of January, 2012 (as stated in the counter-affidavit of the respondents) by providing an additional qualification i.e. 80 hours Course of Computer Concept (CCC). To qualify, the candidates should possess such certificates issued by DOEACC. It was felt by the respondents that the grievance of such candidates who have done the Course of Computer Concept (CCC) and have not been issued the requisite certificate is genuine. Requisite certificates were not issued to a very large number of such candidates. To qualify, the candidates should possess such certificates issued by DOEACC. It was felt by the respondents that the grievance of such candidates who have done the Course of Computer Concept (CCC) and have not been issued the requisite certificate is genuine. Requisite certificates were not issued to a very large number of such candidates. Taking a note of the said difficulty, as stated in the counter-affidavit, the Secretary of respondent No. 3 issued a press note by giving wide publicity that such candidates who have completed 80 hours CCC Computer Course from DOEACC can produce the certificate of successful completion of the course within three months. A copy of the said press note is Annexure-CA 3 to the counter-affidavit. 5. The final result after interview was published on 21st May, 2012. The names of petitioners do not find place in the final select list as successful candidates. The result shows that 613 persons who have been declared successful have not filed DOEACC certificate and they have been given time up to 31st of July, 2012 to produce the DOEACC certificate failing which their selection shall be cancelled automatically. The roll numbers of these persons have been categorized with the heading “Withheld DOEACC Roll Numbers”. 6. The appellants filed writ petition for the relief to quash the result declared by the Secretary/Electricity Service Commission, U.P. Power Corporation Limited Lucknow as published in the newspaper “Rashtriya Sahara”, in so far as it includes those candidates in the select list who have obtained DOEACC certificate between 28.12.2011 and 31st March, 2012 as also the candidates included under the heading “Withheld DOEACC”. Further prayer has been made to publish a revised list after scrutinizing such eligible candidates as are governed by prayer clause (a) and to publish a revised select list forthwith, and not to give any appointment in pursuance of the said select list. 7. In the counter-affidavit filed on behalf of the respondents herein the action of the respondents was sought to be justified by invoking the Rule 45 of the service rules. It was pleaded that a majority of the petitioners being beneficial of the extension of time granted by the respondents to produce the certificate even after the interviews are estopped to challenge the selection/result after they have been declared unsuccessful. It was pleaded that a majority of the petitioners being beneficial of the extension of time granted by the respondents to produce the certificate even after the interviews are estopped to challenge the selection/result after they have been declared unsuccessful. It was also pleaded that the petitioners appeared in the selection process without any objection, are stopped to question the legality and validity of the selection process. 8. The record shows that some successful candidates applied for their impleadment as respondents before the Writ Court and they were allowed to be impleaded in the writ petition. These candidates were represented by Shri Shashi Nandan, senior advocate. 9. The learned Single Judge considered the matter and dismissed the writ petition mainly on the ground that the rule 45 of the service rules provides for power of relaxation in service rules. It was held that sub-rule (1) of Rule 45 is declaratory in nature and on its true and proper construction, Rule 45 (1) does not limit or minimize the authority of the Board in the matter of appointment/control to take any just and fair decision. Its sub-rule (2) inheres authority in the chairman, if in his opinion it is expedient, he can from among such rules or from any other rule, by according partial relaxation in the rules appointments can be done and any such appointment, which is not fully in accordance with the rules, it would be presumed that the appointment has been done in accordance with these rules. The learned Single Judge proceeded on the footing that once the power to relax is exercised by the competent authority and the merit list is not going to be affected for non production of the DOEACC certificate, the petitioners have got no case. It has also been held that the argument that the rules of game has been changed, cannot be accepted, in as much as production of DOEACC certificate at the time of interview was an additional requirement and selection was to be made on the basis of merits or marks obtained in the written examination and interview. 10. It has also been held that the argument that the rules of game has been changed, cannot be accepted, in as much as production of DOEACC certificate at the time of interview was an additional requirement and selection was to be made on the basis of merits or marks obtained in the written examination and interview. 10. Shri Ashok Khare, learned senior counsel for the appellants, submitted that even if power vests in an authority to relax the qualification, the said relaxation should be published so that the candidates similarly circumstanced and who may be benefitted by such relaxation may also if they so like participate in the competitive examination. Elaborating the argument, he invited the attention of the Court towards the advertisement as also on Rule 45 of the service rule. The submission is that there being no minimum marks fixed in interview, if the persons who could not produce the certificate at the time of interview are excluded from the merit list may give way to the candidates who could produce the certificate and have succeeded in the written examination and participated in the interview. He submitted that the rule with regard to the selection process once commences, cannot be changed subsequently. It was also submitted that by the publication in the newspapers dated 28th November, 2011 three months time to produce the certificate i.e. up to 29th March, 2012 was granted. It was further extended on 19th April, 2012 and time was granted up to 31st of July, 2012, at least this relaxation was not given due publication. The result was declared on 21st of May, 2012 and even then further time has been given to such candidates who could not produce the certificate, which is contrary to service jurisprudence. 11. Sri Rakesh Pandey, Advocate, on behalf of the respondent Nos. 1, 2, and 3, submitted that selection is not under challenge. The requirement of DOEACC certificate was newly introduced by amending the relevant service rules. Taking into consideration the genuine demand of a large number of candidates, a policy decision was taken to extend the period for filing the said certificate firstly up to 29th of March, 2012 and thereafter, to 31st of July, 2012. The respondents are interested to select meritorious candidates and extended the prescribed time for filing the certificate and its filing has nothing to do with the merit list. The respondents are interested to select meritorious candidates and extended the prescribed time for filing the certificate and its filing has nothing to do with the merit list. It was further submitted that the action of the respondents is bona fide and there being not such plea of lack of bona fide, the Court should not interfere in the matter. Plea of estoppel and acquiescence against the petitioners was also raised on the ground that by granting the relaxation most of the petitioners have been benefited. He submitted that the petitioners are not likely to be selected even if some of the selected candidates are excluded; if it is so, then, the posts may go vacant. 12. Sri Shashi Nandan, senior counsel for the selected candidates, additionally submitted that there was practical problem with the DOEACC to issue the certificates to all the duly qualified persons who had completed 80 hours Course of Computer Concept (CCC). Due to heavy volume of work it was practically quite impossible to DOEACC to issue certificates, therefore, the power of relaxation was rightly exercised. Considered the respective submissions of the learned counsel for the parties and perused the record. 13. The basic questions which were involved in the writ petition as also in the present appeal are whether in peculiar facts and circumstances of the case, the respondent No. 3 was justified in allowing relaxation in the requirement of filing DOEACC certificate at any rate after the declaration of the result as also whether a person who had not completed the said course either on the date of application for appearing in the competitive examination or on the date of interview could be permitted to undertake and complete the Course of Computer Concept (CCC) thereafter, to become qualified candidate. 14. The Court was taken through the advertisement No. 3-ESC/2011. It is condition No. 1 reads as follows : **1- vfuok;Z vgZrk;sa@’kSf{kd ;ksX;rk %& ek/;fed f’k{kk ifj"kn m0iz0 dh gkbZ Ldwy ;k led{k ijh{kk foKku ,oa xf.kr fo"k; ds lkFk mRrh.kZ bysDVªhf’k;u VªsM esa 2 o"kZ dh vof/k dk vf[ky Hkkjrh;@jkT; O;olkf;d izek.k i=A blds vfrfjDr DOACC }kjk iznRr 80 ?kaVs dk Course on Computer concept (CCC) izek.k i= lk{kkRdkj ds le; izLrqr djuk vfuok;Z gksxkA** 15. Under the column “other particulars”, one of the conditions mentioned therein that the production of such certificate issued by DOEACC in original at the time of interview is essential. There appears no dispute between the parties in this regard. There is also no dispute that on account of the necessity felt, the time for production of the said certificate was extended up to 29th of March, 2012. At this stage, we may consider the argument with regard to the estoppel and acquiescence put forward by the learned counsel for the contesting respondents. It was vehemently argued by Sri Rakesh Pandey, learned counsel for the contesting respondents, that relaxation in time for production of certificate also benefitted the most of the petitioners. Pointedly, a query was put to him as to whether none of the petitioners could produce the certificate, in reply, he could say only this much that most of them filed certificates within the extended period, but could not dispute that at least some of the petitioners did produce the certificate at the time of interview. An argument was also raised by inviting attention of the Court towards the page No. 118 of the Paper Book which is a certificate dated 24th November, 2012 certifying that Sri Arun Kumar Shukla has been declared successful in the examination but the issue of formal certificate in respect of the candidate is under process, to support his contention that even the certificate could not be produced by the said petitioner. Similar is the case of many other petitioners. We are of the opinion that the argument is not correct. The fact remains that the petitioners/ such candidates have successfully completed the course on or before the interview and the requisite certificate was in offing. Due to procedural delay in issuing the formal certificate the letter dated 24th November, 2011 akin to the certificate was issued. The requirement is of passing the requisite course meaning thereby having the knowledge of subject of the course and not form of the certificate. The filing of certificate may be considered as a ministerial act, provided the candidate has already completed the course successfully and has produced the cogent material certifying this. 16. The requirement is of passing the requisite course meaning thereby having the knowledge of subject of the course and not form of the certificate. The filing of certificate may be considered as a ministerial act, provided the candidate has already completed the course successfully and has produced the cogent material certifying this. 16. The learned counsel for the appellants submitted that a person who does not possess the requisite qualification for a post on the cut off date is different than a person who possesses the requisite qualification on the particular date but due to procedural delay the requisite certificate has not been received by such person. The emphasis of the learned counsel for the appellants is that the selected candidates must have completed the requisite course on the date on which they were interviewed in the terms of the advertisement at least. In other words, a person who does not possess the said qualification or has not completed the course up to the date of interview, his name should not and cannot be included in the merit list/select list by providing that the said person may obtain the requisite qualification by joining the course later on. The Annexure-CA 3 filed alongwith the counter-affidavit would show that the respondents not only permitted the production of the certificates subsequent to the interview but also they provided that the successful candidates may be selected though they do not possess the certificate within or even after three months time, granted to them by relaxation. The relevant extract is reproduced below : **vFkok ;fn lfVZfQdsV /kkjd okafNr la[;k esa ugha miyC/k gksrs gS rks ikl vH;fFkZ;ksa esa mUgs ftuds ikl lfVZfQdsV ugha miyC/k gS mUgs rhu ekg dk le; nsrs gq, p;fur dj fy;k tk;s ysfdu fu;qfDr i= rHkh iznku fd;k tk;s tc muds }kjk izek.k i= miyC/k djk fn;k tk;sA** 17. The crux of the matter is that whether such a relaxation can be justified by invoking rule 45 of the relevant service rules or not. The learned Single Judge has rightly interpreted the said rule and we do not want to add anything further. But its applicability in the present facts and circumstances of the case is altogether a different question. Attention of the Court was invited to Public Service Commission, U.P. Allahabad and another v. Alpana, 1994 SCC (L & S) 742. The learned Single Judge has rightly interpreted the said rule and we do not want to add anything further. But its applicability in the present facts and circumstances of the case is altogether a different question. Attention of the Court was invited to Public Service Commission, U.P. Allahabad and another v. Alpana, 1994 SCC (L & S) 742. In this case in the advertisement it was mentioned that the candidates must possess a L.L.B. degree on the last date for receipt of the application. The advertisement also mentioned that an attested copy of the decree must also be attached with the application. The respondent while submitted application stated that she had appeared in the law degree examination and the result was awaited which was declared subsequently to the last date of receipt of the application in the month of October, 1988. She was not interviewed by the Commission. The matter reached to the Supreme Court and the Supreme Court has laid down as follows : “There is no rule or practice which permitted entertaining of respondent’s application. The appellant was therefore right in refusing to call respondent for interview. The approach of the High Court cannot supported on any rule or prevalent practice nor can it be supported on equitable considerations. In the absence of any specific rule, there was no occasion for the High Court to interfere with the decision of the appellant not to interview the respondent. Many candidates superior to the respondent in merit may not have applied as the results of the L.L.B. examination were not declared before the last date for receipt of applications. If once such an approach is recognised there would be several applications received from such candidates not eligible to apply and that would not only increase avoidable work of the selecting authority but would also increase the pressure on such authorities to withhold interviews till the results are declared, thereby causing avoidable administrative difficulties. This would also leave vacancies unfilled for long spells of time. If however, the respondent has already been appointed in pursuance of High Court order, her appointment shall not be cancelled.” 18. In Himani Mehrotra v. High Court of Delhi, (2008) 7 SCC 11, it has been held that during the recruitment process the recruitment rules cannot be changed. This would also leave vacancies unfilled for long spells of time. If however, the respondent has already been appointed in pursuance of High Court order, her appointment shall not be cancelled.” 18. In Himani Mehrotra v. High Court of Delhi, (2008) 7 SCC 11, it has been held that during the recruitment process the recruitment rules cannot be changed. It was held that there was prescription of minimum marks for written test only and minimum marks were not provided for viva voce. It was held that it is not permissible to provide minimum marks for viva voce. 19. In Rekha Chaturvedi v. University of Rajasthan and others, 1993 SCC (L & S) 951, it has been held that relevant date for adjudging the qualification for the recruitment, except where the date is specified in the advertisement/notification, the date of scrutiny of the qualification will be the last date for filing the applications and not the date of selection. 20. In Manjusree v. State of Andhra Pradesh, (2008) 3 SCC 512 , it has been laid down that the rules of game cannot be changed after start of the selection process. 21. In Bedanga Talukdar v. Saifudullah Khan and others, (2011) 12 SCC 85, it has been held as follows : “We have considered the entire matter in detail. In our opinion, it is too well-settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, 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 cannot 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. 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. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India.” 22. Having regard to the above precedents it can be culled out therefrom that once the selection process has started, the rules for selection cannot be changed. Secondly, there cannot be any relaxation in terms and conditions of advertisement unless such power is specifically reserved. Thirdly, even if the power of relaxation exists in the rules, it must be mentioned in the advertisement. 23. By applying these salutary principles of law to the facts of the case in hand even assuming for a moment that the power of relaxation vests with the respondent authority under rule 45 to grant permission to file certificate to be issued by DOEACC, they cannot be allowed to do so at any rate after the declaration of the result. The requirement of law as laid down by the Apex Court in the case of Bedanga Talukdar (supra) is that the power of relaxation if so exercised should be given due publicity in the advertisement itself so that all such candidates might come under the relaxed umbrella and participate in the competitive examination. The advertisement in question would show that the filing of certificate issued by DOEACC was compulsory up to the date of the interview. The advertisement does not indicate that the qualification of completing 80 hours Course of Computer Concept (CCC) and having a certificate issued by DOEACC was relaxed in the selection process under challenge. It is well-settled that all appointments to public office have to be made in conformity with the Article 14 of the Constitution of India. Selection process has to be conducted strictly in accordance with the stipulated selection procedure. It is well-settled that all appointments to public office have to be made in conformity with the Article 14 of the Constitution of India. Selection process has to be conducted strictly in accordance with the stipulated selection procedure. As laid down in the case of Bedanga Talukdar (supra), there cannot be any relaxation in the terms of the conditions of advertisement. 24. We have already reproduced the part of the actual order passed by the respondents as approved by the Chairman/Managing Director on 26.11.2011, in the earlier part of the judgment which would show that it also permits such candidates who have been selected may produce the certificate of the course within three months and thereafter appointment letters would be issued to them. 25. A close reading of the office note (filed as CA II by the respondents) would indicate that the idea behind the note was to permit such candidates also who are still undergoing the course, their provisional result not being declared and certificates not being issued, but provisional certificates have been made available to them and they can be considered. The relevant portion is reproduced below : **Mhvksblhlh ls nwjHkk"k ij ;g voxr djk;k x;k fd muds ;gka dfFkr dkslZ ds fy, ftu vH;fFkZ;ksa }kjk izf’k{k.k gsrq Hkkx fy;k tk jgk gSA muds vfUre fjtYV ?kksf"kr dj izek.k i= tkjh ugha fd;k tk lds gSa mUgsa vUrfje lVhZfQdsV miyC/k djk nh x;h ml laKku esa fy;k tk;sA** 26. In the light of above, it was ordered to include names of such candidates also merit-wise in the select list by granting them three months time to produce the necessary certificate. This could not be done. This relaxation in eligibility/qualification does not find mention in the advertisement inviting applications. 27. This part of the relaxation having not been mentioned in the original advertisement could not have been relaxed by invoking the Rule 45 after the commencement of selection process. The power conferred under Rule 45 could be invoked literally only up to the date of the issuance of the advertisement and not thereafter. Otherwise, it would amount change in the rules of game. It appears that the attention of the learned Single Judge was not invited to the above aspect of the case. It somehow escaped his notice. The power conferred under Rule 45 could be invoked literally only up to the date of the issuance of the advertisement and not thereafter. Otherwise, it would amount change in the rules of game. It appears that the attention of the learned Single Judge was not invited to the above aspect of the case. It somehow escaped his notice. Only such candidates who had completed the Course of Computer Concept (CCC) up to the date of interview but could not produce the certificate issued by the DOEACC or a provisional certificate or a letter from DOEACC about the successful completion of the course are eligible to be considered for selection. The inclusion of names of such candidates in the select list who could not produce the said certificate up to the last date of interview i.e. 28.12.2011 or up to the extended period i.e. 29.3.2012 fixed by the respondents is illegal, for not possessing the qualification as required under the advertisement. 28. Strong reliance was placed by the respondents’ counsel on Amlan Jyoti Borooah v. State of Assam and others, (2009) 3 SCC 227 . There the factual situation as existed was quite different. Reliance was placed on para 40 which is reproduced below : “The State in an emergent situation would subject to constitutional limitations is entitled to take a decision which subserves a greater public interest. While saying so, we are not unmindful of the fact that the Constitution also demands that candidates who had acquired eligibility for recruitment to the post in the meantime should also be given opportunities to participate in the selection process. This Court times without number had lamented the lackadaisical attitude on the part of the State to treat the matter of selection for appointment to services in a casual and cavalier manner. If no appointment could be made from 1997 to 2001, it is the State alone who could thank itself therefor, but, unless there exists a constitutional or a statutory interdict so as to compel the superior Court to set aside the selection which has otherwise been validly made; in exercise of their power of judicial review the same would not ordinarily be interfered therewith.” 29. There, the appellant had challenged the procedure adopted by the Selection Committee on the ground that no new vacancy could have been filled up from the select list. There, the appellant had challenged the procedure adopted by the Selection Committee on the ground that no new vacancy could have been filled up from the select list. The Court applied the principle of sub-silentio as the appellant therein had accepted the change in the selection procedure by not questioning the appointment of 169 candidates. In this factual background the observation made in para 40 reproduced above should be understood. In the case on hand, the appellants/petitioners participated in the interview and challenged the select list soon after its publication on the ground that the relaxation provided subsequently to illegible candidates is illegal and arbitrary in nature. Had such relaxation been provided in the initial advertisement, the persons more meritorious to the selected candidates could have also competed in the examination. 30. We are not at all impressed by the argument of the respondents that no mark was prescribed for the certificate holder of Course of Computed Concept (CCC) and it is not going to affect the merit of the candidates. Indisputably, in the advertisement one of the eligibility criteria is that the candidates should have passed 80 hours CCC course and they were required to produce the such certificate issued by DOEACC at the time of interview. A candidate who does not fulfil the prescribed criteria of eligibility his name cannot find place in the merit-list. 31. Much emphasis was laid by the learned counsel for the respondents on the fact that the petitioners participated in the interview without raising any objection and therefore, they cannot challenge the selection process now. Even if for the sake of argument the above contention is accepted for the time being, it would not arm the respondents to go on extending the prescribed criteria by asking the candidates who were otherwise disqualified, to complete the qualification by postponing the issuance of the appointment letter to them to the detriment of the eligible candidates available like the petitioners. Such a course of action is not permissible in view of the Article 14 of the Constitution of India. It would amount to discrimination in the public employment. 32. Such a course of action is not permissible in view of the Article 14 of the Constitution of India. It would amount to discrimination in the public employment. 32. Having regard to the special and peculiar fact that there was some genuine problem with the DOEACC to issue the requisite certificates to the persons who had successfully completed the course, we provide that the power of relaxation by extending the time to file the certificate up to 29.3.2012, was correctly exercised. The exercise of power thereafter when the entire selection was over on 19.4.2012, is illegal and arbitrary. 33. In view of the above discussion, the writ Court was not justified in dismissing the writ petition in its entirety. The part of relief as claimed by the writ petitioners with regard to the candidates declared successful under the heading “Withheld DOEACC” is granted and the respondents are restrained from taking/accepting the DOEACC certificate any further after 31st March, 2012. To this extent, the writ petition as well as the appeal succeeds and are allowed. The respondents are directed to declare the result afresh in the light of the observations made in the judgment expeditiously preferably within a period not later than three weeks. No order as to costs. ——————