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Allahabad High Court · body

2013 DIGILAW 755 (ALL)

Arvind Kumar v. State of U. P. and Others

2013-03-07

TARUN AGARWALA

body2013
Tarun Agarwala, J.— For recruitment on Group-C posts, the State Government promulgated the U.P. Procedure for Direct Recruitment for Group 'C' Posts (Outside the Purview of the U.P. Public Service Commission) Rules, 2002 (hereinafter referred to as the Rules of 2002) with effect from 29th June, 2002 in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The post in question is Nalkup Mistri, which admittedly is outside the purview of the Public Service Commission and, consequently, the Rules of 2002 would be applicable. Rule 5 of the Rules of 2002 provides the procedure for direct recruitment. For facility, Rule 5 of the Rules of 2002 is extracted hereunder: "5. Procedure for direct recruitment.-[(1) For making direct recruitment the vacancies shall be notified in the following manner:- (i) by issuing advertisement in a daily newspaper having wide circulation; (ii) by passing the notice on the notice board of the office or by advertising through Radio/Television and other employment newspapers; and (iii) by notifying vacancies to the Employment Exchange. (2) Application for being considered for selection shall be called in the form published in the advertisement issued under sub-rule (1). (3) The selection shall carry one hundred marks. (2) Application for being considered for selection shall be called in the form published in the advertisement issued under sub-rule (1). (3) The selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner: (a)(1) Such posts for which only academic qualifications are prescribed, the marks shall be awarded to each candidate in the following manner: Academic Qualification Percentage of marks Marks to be awarded secured (I) Intermediate Sixty per cent and above Twenty marks Forty five per cent or above Fifteen marks but less than sixty per cent Thirty three per cent or above Ten marks but less than forty five percent (ii) Bachelor's degree Sixty per cent and above Ten marks Forty five per cent or above Eight marks but less than sixty per cent Thirty three per cent or above Six marks but less than forty five percent (2) Such posts for which academic qualifications and technical qualifications both are prescribed, the marks shall be awarded to each candidate in following manner:- Qualification Percentage of marks Marks to be awarded secured (ii) Minimum academic Sixty per cent or above Ten marks qualification prescribed Forty Five per cent or above Eight marks for the post but less than sixty per cent Thirty three per cent or above Six marks but less than forty five per cent (ii) Minimum technical Sixty per cent or above Twenty marks qualification prescribed Forty Five per cent or above Fifteen marks for the post but less than sixty per cent Thirty three per cent or above Ten marks but less than forty five per cent Provided that the post for which some physical standards have been prescribed as essential qualification or as a mode of recruitment for the post, the candidates shall be required to undergo selection and only those candidates shall be considered for selection who came up to the minimum standards prescribed for the post. (b) Marks to a retrenched employee shall be awarded in the following manner subject to the maximum of fifteen marks:- (i) For the first completed year of service - Five marks. (ii) For the next and every completed year of service - Five marks for each year. (b) Marks to a retrenched employee shall be awarded in the following manner subject to the maximum of fifteen marks:- (i) For the first completed year of service - Five marks. (ii) For the next and every completed year of service - Five marks for each year. (c) Marks to a sportsman shall be awarded in the following manner subject to the maximum of five marks:- (i) If the candidate is a sportsman of International level - Five marks (ii) If the candidate is a sportsman of National level - Three marks (iii) If the candidate is a sportsman of State level - Three marks (iv) If the candidate is a sportsman of University/College level - Two marks (d) In the case of candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, there shall be a test of typewriting or shorthand and typewriting as the case may be, of qualifying nature. Only those candidates who have attained the minimum speed prescribed for typewriting or shorthand and typewriting, as the case may, shall be considered for selection. The number of candidates to be called for typewriting test or shorthand and typewriting test, as the case may be, shall be such as is considered appropriate by the Selection Committee. For the purpose the merit list of candidates shall, having regard to the provisions of reservation referred to in Rule 4, be made separately on the basis of marks obtained by them under Clauses (a), (b) and (c). (4)(a) After the results of the evaluations under clauses (a), (b), (c) and (d) of sub-rule (3) have been received and tabulated, the Selection Committee shall, having regard to the provisions of reservation referred to in Rule 4, hold an interview. The number of candidates to be called for interview against the number of vacancies shall be such as is considered appropriate by the Selection Committee, but in any case it shall not exceed ten candidates for one vacancy. In the case of candidates to be selected for a post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, only such candidates who qualify the typewriting test or shorthand and typewriting test, as the case may be, under clause (d) of sub-rule (3) shall be called for interview. (b) The interview shall carry fifty marks. (b) The interview shall carry fifty marks. Marks at the interview shall be awarded in the following manner:- (i) Subject/General Knowledge - up to ten marks (ii) Personality Assessment - up to twenty marks (iii) Power of Expression - up to twenty marks (c) The Chairman and Members of the Selection Committee shall, in no case, be provided any information with regard to marks obtained by candidates under clauses (a), (b) and (c) of sub-rule (3) at the time of interview. (5) The marks obtained by each candidate at the interview under sub-rule (4) shall be added to the marks obtained under sub-rule (3). The final select list shall be prepared on the basis of aggregate of marks so arrived. If two or more candidates obtain equal marks in the aggregate, the candidate senior in age shall be placed higher in the select list. (6) The select list referred to in sub-rule (5) shall be forwarded to the Appointing Authority." The post of Nalkup Mistri is a technical post, consequently, the marks awarded for the academic qualification is required to be calculated in accordance with the provision indicated under Rule 5(3)(a)(2) of the Rules of 2002. Under Rule 5(3)(2)(c) of the Rules of 2002 a candidate who is a sportsman of an International level or National level or State level or University level or College level, would be awarded marks accordingly. Rule 5(4)(a) of the Rules of 2002 provides that the results of the evaluation under clause (a), (b), (c) and (d) of sub-rule (3) would be tabulated and that the Selection Committee constituted will hold an interview under Rule 5(4)(b). The interview shall carry 50 marks and it will be awarded in the following manner, namely, for General Knowledge upto 10 marks, for Personality Assessment upto 20 marks and for Power Expression upto 20 marks. Rule 5(4)(c) further imposes an embargo that the tabulation of the marks obtained by a candidate under clauses- (a), (b) and (c) of sub-Rule (3) will not be provided to the Chairman and Members of the Selection Committee at the time of the interview and that Rule 5(5) of the Rules of 2002 stipulates that the marks of the academic qualifications and the marks of the interview would be added after the interview and thereafter a final select list would be prepared. Such selection list will be thereafter forwarded to the Appointing Authority. Such selection list will be thereafter forwarded to the Appointing Authority. For the purpose of awarding marks under the category of sportsman, the State Government issued a Government Order dated 20th July, 2002, in which one of the sports recognized was Volleyball. This government order further indicated that a candidate who is a sportsman of a University or College level must have participated in a National Championship of Schools and for a State level candidate, the candidate must have participated as a State candidate for National Championship. In the light of the aforesaid Rules and the Government Order, the irrigation department at Allahabad issued an advertisement dated 31st July, 2004 inviting applications for filling up the post of Nalkup Mistri by direct recruitment. The petitioner belongs to the reserved category and applied. His application was duly received within the stipulated period but for reasons best known to the respondents, the petitioner was not invited for the interview. The petitioner filed Writ Petition No.22552 of 2005, which was disposed of by a judgment dated 25th August, 2005. The Court held that the respondents deliberately did not allow the petitioner to appear in the interview and that the petitioner was denied his lawful right to be called in the interview. The petitioner was also denied an opportunity for being given an appointment on a higher post purely on account of the action of the respondents. Since the select list had already been declared and the Court found that three vacancies were existing, the Court, instead of setting aside the select list, directed the Executive Engineer and Superintending Engineer to hold an interview of the petitioner afresh and, if found fit, necessary appointment orders would be issued. The Court further directed that the members of the Selection Committee will not include the respondent nos.2 and 3 of that writ petition, namely, the Executive Engineer and the Superintending Engineer and that they would be bound by the recommendation of the Selection Committee. Pursuant to the aforesaid directions of the writ Court, the Competent Authority, namely, the Superintending Engineer constituted a Selection Committee of five persons, who held the interview and recommended the name of the petitioner for appointment on the post of Nalkup Mistri. Pursuant to the aforesaid directions of the writ Court, the Competent Authority, namely, the Superintending Engineer constituted a Selection Committee of five persons, who held the interview and recommended the name of the petitioner for appointment on the post of Nalkup Mistri. The Superintending Engineer considered the recommendation and rejected it by its order dated 5th April, 2006 holding that the Selection Committee has given the recommendation in violation of Rule 5(4)(a) of the Rules of 2002 and that the Selection Committee has shown the marks to the petitioner by taking his signatures on the Broad sheet thereby leaking the confidentiality in the selection process by making known the results. The Superintending Engineer further held that the marks awarded by the Selection Committee to the petitioner as a sportsman was in violation of the Government Order dated dated 20th July, 2002. The Superintending Engineer accordingly, rejected the recommendation of the Selection Committee and constituted a fresh Selection Committee. It transpires that a fresh Selection Committee was constituted, who awarded 22.8 marks out of 50 marks as per the provision of Rule 5(4)(b) of the Rules of 2002. The petitioner received 28 marks out of 50 marks towards academic qualifications and, consequently, received a total marks of 50.8 marks out of 100 marks and was placed at serial no.41. The Competent Authority found that 40 other candidates in the reserved category had higher marks than the petitioner and accordingly, passed an order that the petitioner could not be appointed on the post of Nalkup Mistri pursuant to the advertisement of 2004. The petitioner, being aggrieved, by the order dated 5th April, 2006 by which the recommendation of the first Selection Committee was set aside by the Superintending Engineer as well as the order dated 8th January, 2007 accepting the recommendation of the second Selection Committee and rejecting the claim of the petitioner for appointment on the post of Nalkup Mistri has been questioned in the present writ petition. The Court has heard Sri R.S. Ram, the learned counsel for the petitioner and Sri Shri Prakash Singh, the learned Standing Counsel and has also perused the original record, which were summoned by the Court. The Court has heard Sri R.S. Ram, the learned counsel for the petitioner and Sri Shri Prakash Singh, the learned Standing Counsel and has also perused the original record, which were summoned by the Court. The learned counsel for the petitioner contented that the writ Court in its judgment dated 25th August, 2005 had clearly directed that the Executive Engineer and Superintending Engineer would be bound by the recommendation of the Selection Committee and that if the petitioner was found fit and was entitled to be selected, consequential orders would be issued. The learned counsel for the petitioner submitted that in view of the specific directions of the writ Court, the Superintending Engineer not only committed an error in rejecting the recommendation of the Selection Committee but also committed gross contempt of the Court in not accepting the recommendation and issuing fresh directions for constituting a new Selection Committee for malafide reasons. The learned counsel for the petitioner further submitted that the certificate issued by the education department indicating that he had participated in the State level has not been considered and has wrongly been rejected by the authorities. Prima facie when the Court was hearing the matter, it appeared that the Appointing Authority had acted malafidely and, inspite of specific directions to accept the recommendation of the Selection Committee committed a contempt in not accepting the recommendation of the Selection Committee and issuing a direction for constitution of a fresh Selection Committee. The Court on that basis, summoned the original record but, having perused the original record and, upon hearing the submission of the learned Standing Counsel, who went at length to elucidate the irregularities committed by the first Selection Committee, the Court finds that the Appointing Authority was justified in rejecting the recommendation of the Selection Committee by its order dated 5th April, 2006. While perusing the record, the Court finds that the Selection Committee has given marks for the academic qualifications and has also given marks for the certificate given by the petitioner showing him a sportsman at the State level. While perusing the record, the Court finds that the Selection Committee has given marks for the academic qualifications and has also given marks for the certificate given by the petitioner showing him a sportsman at the State level. The Selection Committee constituted for holding the interview was only required to give the marks in accordance with the provision of Rule 5(4)(b) of the Rules of 2002 i.e. marks on General Knowledge, Personality Assessment and Power Expression and was not required to give the marks for the academic qualification of the petitioner nor was required to give marks to the candidate for being a sportsman. These marks were required to be separately calculated and were not to be disclosed to the members of the Selection Committee as per Rule 5(4)(c) of the Rules of 2002. On account of this addition of marks by the Selection Committee, the Selection Committee recommended the name of the petitioner for the post of Nalkup Mistri, which was wholly incorrect and against the provision of Rule 5 of the Rules of 2002. The Appointing Authority was justified in rejecting the recommendation of the Selection Committee on this ground itself. The Court further finds that the Selection Committee could not have taken the sports certificate also into consideration and, therefore, the Appointing Authority was also justified in rejecting the recommendation of the Selection Committee on this aspect also. The second Selection Committee constituted by the Appointing Authority awarded 22.8 marks as per Rule 5(4)(b) of the Rules of 2002 and the petitioner had obtained 28 marks under clause (a), (b), (c) of sub-Rule 3 of Rule 5 of the Rules of 2002, thereby receiving a total 50.8 marks out of 100 marks. The record indicates that the petitioner was placed at serial no.41 of the original select list and that 40 other candidates had received more than 50.8 marks. The Appointing Authority accordingly held that on account of the low marks, the petitioner could not be selected for the post in question and rejected his application. The Court having perused the record does not find any error in the recommendation made by the second Selection Committee nor does it finds any error in the ultimate analysis made by the Appointing Authority. A contention was made that the respondents did not consider the sports certificate of the petitioner while calculating 28 marks. The Court having perused the record does not find any error in the recommendation made by the second Selection Committee nor does it finds any error in the ultimate analysis made by the Appointing Authority. A contention was made that the respondents did not consider the sports certificate of the petitioner while calculating 28 marks. The Court finds that the respondents awarded 8 marks for the high school certificate and 20 marks towards ITI qualification and did not award any marks under the sports category. The learned counsel for the petitioner contended that he was entitled to receive marks under the sports category since he was a State level candidate. The Court has perused the certificate and finds that the petitioner had participated as a candidate of the school while participating at the State level. As per the Government Order of 2002, this certificate is inadequate, which provides that a candidate who is a sportsman of a University or College level should participate in a National School level championship and a State level candidate was required to represent the National championship. In the instant case, the petitioner has only participated in a State level championship being a candidate of a school level and, therefore, was not eligible to be given any marks under the category of the sports quota. In the light of the aforesaid, the Court finds that even though the writ Court had directed that the Appointing Authority would be bound by the recommendation of the Selection Committee, it did not mean that the Appointing Authority was required to accept the recommendation mechanically. If the recommendation of the Selection Committee was in violation of the Rules of 2002 the Appointing Authority was justified in not accepting the recommendation. In the light of the aforesaid, the Court does not find any reason to interfere in the impugned orders. The writ petition fails and is dismissed. The original record which was placed by the learned Standing Counsel is being returned to him who in turn may forwarded to the department concerned. _____________