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2013 DIGILAW 805 (ALL)

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

2013-03-13

TARUN AGARWALA

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Tarun Agarwala, J.— An advertisement dated 27th October, 2003 was issued by the District Judge Hathras inviting application from the candidates for four post of Stenographers in the Judgeship of Hathras. The qualification indicated that the candidate should be Intermediate pass and should have a knowledge of shorthand and typewriting. It was indicated that 50 marks would be awarded for shorthand and 50 marks would be awarded for typewriting. The petitioner applied and the examination was held on 14th December, 2003. It has come on record that 211candidates appeared out of total 735 candidates. The results were declared on the same day and respondent nos. 4 to 7 were selected and were given appointment letters. The petitioner was placed at serial no. 2 of the waiting list. The petitioner did not raise the issue and was satisfied, but after two years and 154 days, the present petition was filed contending that in the year 2006, respondent nos. 4 to 7 moved an application for confirmation of their services and, at that time, a committee was constituted to test their efficiency in shorthand and typing. The Committee submitted a report contending that one of the candidates Shrawan Kumar did not have the requisite speed inspite of time being granted to him. On this basis, the petitioner filed the present writ petition alleging that if the selection is again held, the petitioner would succeed and that the respondent would not succeed, and consequently, prayed for the quashing of the result of the test held on 14th December, 2003 and further prayed that a fresh selection process be initiated. The petitioner contended that respondent no. 5 and 6 were very close to the District Judge and the mother of respondent no. 6 was employed as a domestic servant at the residence of the District Judge and that the brother of the respondent no. 6 was also employed as a class IV in the judgeship of Hathras. It was also alleged that the petitioners' typing speed was changed in order to provide benefit to respondent no. 4 and 7. On these allegations, the writ petition was entertained and, at one stage, on the averment made that the petitioner's typing speed was interpolated and changed, the Court, by an interim order, directed the production of the records relating to the holding of the examination. 4 and 7. On these allegations, the writ petition was entertained and, at one stage, on the averment made that the petitioner's typing speed was interpolated and changed, the Court, by an interim order, directed the production of the records relating to the holding of the examination. The Court by another order, directed the parties to make an inspection of the record and report to the Court. The ordersheet reveals that a formal inspection was made by all the parties concerned, and based on such inspection, supplementary affidavits were brought on record raising fresh grounds of attack. In the supplementary affidavit, the petitioner came out with the stand that copies of the shorthand was not examined nor any marks were awarded, and that, in the typing examination, marks were awarded out of 100 instead of 50. It was also alleged that the speed in shorthand or typewriting was not examined. In the second supplementary affidavit, it was further alleged that the examination sheet of respondent no. 6 was not in his handwriting. On these allegations, the Court has heard Sri A.K. Mishra, the learned counsel for the petitioner, Ashish Mishra, the learned counsel for the High Court and for the District Judge and Sri Ashok Khare, Senior Advocate assisted by Sri Santosh Kumar Pandey and Sri R.K. Shukla, the learned counsel for the respondent no. 4 to 7. The learned counsel for the petitioner contended that the entire recruitment was made de hors. the U.P. Subordinate Civil Court Ministerial Establishment Rules 1947 (hereinafter referred to as the Rules of 1947) and that the academic qualifications contemplated in Rule 5 was not adhered to. It was further contended that the speed of shorthand or typewriting was not judged and that the advertisement was silent with regard to the essential qualification. It was also contended that the results were declared on the same day, which was not possible and that it indicates a mala fide action on the part of the District Judge. It was further alleged that not only the results were declared on the same day, but appointments were given to the candidates within 24 hours and that the procedure evolved under the guidelines issued by the District Judge was not followed. It was further alleged that not only the results were declared on the same day, but appointments were given to the candidates within 24 hours and that the procedure evolved under the guidelines issued by the District Judge was not followed. The learned counsel for the High Court submitted that various allegations made by the petitioner in the writ petition was vehemently denied and no proof of the allegations has been filed by the petitioner in his rejoinder affidavit. The learned counsel contended that it was on the insistence of the petitioner that his answer sheet was interpolated, that the court summoned the original record, on the basis of which, the petitioner and his counsel were allowed to examine and that they were satisfied that there had been no interpolation in the answer sheet of the petitioner. The learned counsel submitted that upon examination of the record, it was not open to the petitioner to raise fresh ground of attack and that the entire purpose of examining the original record was to examine the allegations made by the petitioner in his writ petition. The learned counsel contended that the petitioner could not improve his case after examining the copies by raising new grounds of attack in the supplementary affidavits. It was also contended that once the petitioner has participated in the selection process, he could not turn around and question the validity and legality of the selection process. The learned counsel for the selected candidates contended that the writ petition should be dismissed on the ground of laches having approached the writ court after more than two and half years and that the conditions in the advertisement, if it was against the rules, ought to have been challenged immediately after the advertisement, but the selection process could not be challenged at this belated stage. The learned counsel submitted that the Rules of 1947 are not applicable and that the U.P. Rules of Recruitment of Ministerial Staff to the Subordinate Officers in U.P. 1950 are applicable along with the Rules of 1947. In the light of the rival stand raised by the parties, the Court finds that the contention of the petitioner that the Rules of 1947 are applicable can not be accepted. The Supreme Court in the case of Om Prakash Shukla Vs. In the light of the rival stand raised by the parties, the Court finds that the contention of the petitioner that the Rules of 1947 are applicable can not be accepted. The Supreme Court in the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others 1986 (Supp.) SCC 285 has held that Rules 9 to 12 of the Rules of 1947 including Appendix II have been superseded by the Uttar Pradesh Rules for the Recruitment of Ministerial Staff of the Subordinate Officer in Uttar Pradesh 1950 (hereinafter referred to as the Rules of 1950) and that the amendment made in 1969 in the Rules of 1947 would not make a difference. The Court finds that the advertisement clearly indicates that the appointments would be made in accordance with the, provisions of the Rules of 1950 read with Rules of 1947 which provided that a candidate should be intermediate pass and should possess a certificate from the University or a recognized shorthand and typewriting institution showing that he possesses speed of at least 100 words per minute in short hand and 35 words per minute in typewriting. The Court finds that the advertisement was issued in that respect and the record indicates that the candidates had given a certificate indicating that they possess the requisite speed in short hand as well in typewriting. Since Appendix II of the Rules of 1947 are not applicable, the District Judge issued certain guidelines for judging the short hand and typewriting of the candidates. The guidelines indicated that there would be a dictation of five minutes of 400 words which comes to 80 words per minute and that the dictation so taken on shorthand would be typed out by the candidates in 20 minutes, meaning thereby, that if the entire matter was typed, the speed would be 20 wpm. It was also indicated that if there is a cutting therein, there would be a negative mark and that 50 marks were allocated for shorthand and 50 marks for typewriting. On the basis of the guidelines, a passage was dictated and the candidates were required to transcribe it in short hand, and thereafter, the matter was typed out on a sheet of paper. On the basis of the guidelines, a passage was dictated and the candidates were required to transcribe it in short hand, and thereafter, the matter was typed out on a sheet of paper. The record indicates that these sheet of paper was examined and marks were allotted in a consolidated manner, namely, that instead of awarding marks separately for shorthand, consolidated mark was awarded on the typed sheet after examining the same. The Court finds that the procedure adopted can not be turned as arbitrary. A passage was dictated, which had 400 words, and which was dictated for five minutes. The speed automatically comes to 80 words per minute. If the candidates has typed out the entire matter, which he had transcribed it in shorthand, it would be presumed that the candidates had the necessary speed and if he was unable to type out the entire matter, less marks would accordingly be awarded, which in turn would indicate that he did not possess the requisite speed. Consequently, the Court does not find fault with the procedure, though there could be more room for improvement. The contention of the petitioner that the requirement under the Rules was 100 words per minute in shorthand and 35 words per minute in typing, which was reduced to 80 words and 20 wpm respectively, and which could not have been done appears to be attractive in the first flush, but on a closer scrutiny, the Court is of the opinion that the stand of the petitioner cannot be accepted. The reason is not far to see. Rule 5(c) of the Rules of 1947 requires that the candidate should submit a certificate indicating that he possesses a speed of 100 words per minute in shorthand and 35 words per minute in typing. These certificates were filed by the candidates, and therefore the requisite requirement was met by the candidate. Since Appendix II stood superseded, the District Judge issued a guideline to test the efficiency of the candidates in typewriting and shorthand at the rate of 80 words and 20 words per minute respectively, which is neither arbitrary nor against the Rules. There is no requirement that the efficiency test is required to be held as per Rule 5(c) of the Rules of 1957. In the light of the aforesaid, the contention of the petitioner that the recruitment process was de hors the Rules is patently erroneous. There is no requirement that the efficiency test is required to be held as per Rule 5(c) of the Rules of 1957. In the light of the aforesaid, the contention of the petitioner that the recruitment process was de hors the Rules is patently erroneous. The contention that the speed was not judged or the advertisement was silent on the educational qualifications is patently erroneous. The Court further finds that the petitioner filed the writ petition making certain wild allegations against the District Judge and further alleging that his answer sheet were interpolated. These allegations made in the writ petition have not been proved. The Court, while considering the contention that the petitioner's answer sheet was interpolated allowed the parties to examine the original record. Upon examination, the petitioner was satisfied that his answer sheet was not interpolated. The Court is of the opinion that the matter stood concluded at this stage, but pursuant to examination of the answersheet, the petitioner has filed two supplementary affidavits bringing on record fresh fact and grounds of attack, which the Court has dealt with and which is patently erroneous. The Court is constrained to observe that the examination of the record was not for the purpose to make a roving and fishing enquiry and fish out discrepancies in the selection process. The entire purpose of examining the record was limited to the extent of the allegations made by the petitioner in his writ petition. Further, fresh facts and grounds cannot be brought on record without the leave of the Court. Such practise adopted in the present case is deprecated. The Court is of the opinion that fresh facts and new grounds of attack can only be taken on the record only upon an amendment application being filed and not otherwise through supplementary affidavits. The Court further finds that the petitioner having participated in the selection process and having failed could not turn around and challenge the selection process. This issue has been settled by a series of decision of the Supreme Court, namely, Madan Lal Vs. State of Jammu and kashmir, 1995 (3) SCC 486 , Marripati Nagraja Vs. State of Andhra Pradesh, 2007 (11) SCC 522 , Dhananjay Malik Vs. State of Uttarakhand, 2008 (4) SCC 171 , Amlan Jyoti Barooah Vs. State of Assam 2009 (3) SCC 227 , K.A. Nagamani Vs. Indian Airlines 2009 (5) SCC 515 and Manish Kr. State of Jammu and kashmir, 1995 (3) SCC 486 , Marripati Nagraja Vs. State of Andhra Pradesh, 2007 (11) SCC 522 , Dhananjay Malik Vs. State of Uttarakhand, 2008 (4) SCC 171 , Amlan Jyoti Barooah Vs. State of Assam 2009 (3) SCC 227 , K.A. Nagamani Vs. Indian Airlines 2009 (5) SCC 515 and Manish Kr. Shahi Vs. State of Bihar and others 2010 (12) SCC 576 . The Court further find that the petitioner had approached the Court belatedly. The results were declared on 14th December, 2003. The writ petition was filed on 08 September, 2006 after two years and 154 days. No plausible explanation has been given for approaching the Court belatedly. The Court is of the opinion that the writ petition was also liable to be dismissed on the ground of laches. For the reasons stated aforesaid, the Court is not inclined to interfere in the selection process or in the declaration of results. The writ petition fails and dismissed. The original record which is before the Court, is being handed over to Sri Ashish Mishra, the learned counsel for the High Court, who is directed to hand over the same to the Litigation Cell. _____________