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Allahabad High Court · body

2019 DIGILAW 2823 (ALL)

Nitin Pandey v. State of U. P.

2019-12-19

ROHIT RANJAN AGARWAL

body2019
JUDGMENT : 1. All these five connected writ petitions have been filed challenging the order dated 28.09.2017 passed by the State respondents whereby cancelling the entire selection process made pursuant to the advertisement dated 22.01.2015. 2. To appreciate the controversy in question, it is necessary to advert to the facts of the case, in brief, which are as under; Facts 3. U.P. Subordinate Service Selection Commission Lucknow (hereinafter referred to as the ‘Commission’) constituted under the U.P. Subordinate Service Selection Commission Act, 2014, issued an advertisement published on 22.01.2015 inviting applications for filling up 156 posts of group ‘C’ which included post of Textile Inspector, Power Loom Inspector, Industrial Supervisor/Technical Supervisor-cum- Accountant, Viewer Textile and Examiner Textile in Hathkargha Evam Vastra Udyog department of the State of U.P. This advertisement was issued on the requisition sent by the Handloom and Textile Directorate on 07.01.2015 to the Commission. 4. Petitioners, in Writ Petition No. 49709 of 2017, applied pursuant to the said advertisement. According to the averment made in the writ petition petitioner nos. 1 to 16 applied for post of Textile Inspector, petitioner nos. 17 to 34 applied for the post of Power Loom Inspector, petitioner nos. 35 to 49 applied for the post of Industrial/Technical Supervisor, petitioner nos. 50 to 66 applied for the post of Supervisor-cum- Accountant, petitioner nos. 67 to 79 applied for the post of Viewer Textile, petitioner nos. 80 and 81 applied for the post of Master Weaver and petitioner no. 82 applied for the post of Examiner Textile. These petitioners along with the petitioners of other connected matters were called for interview on different dates in the month of June 2015. Post interview a select list was published by the Commission on different dates as given below (i) Select list for the post of Textile Inspector was published on 13.06.2015. (ii) Select list for the post of Power Loom Inspector was published on 08.06.2015. (iii) Select list for the post of Industrial Supervisor/Technical Supervisor was published on 23.06.2015. (iv) Select list for the post of Supervisor-cum-Accountant was published on 09.07.2015. (v) Select list for the post of Viewer Textile was published on 10.07.2015. (vi) Select list for the post of Master Weaver was published on 25.05.2015. (vii) Select list for the post of Examiner Textile was published on 26.05.2015. 5. (iv) Select list for the post of Supervisor-cum-Accountant was published on 09.07.2015. (v) Select list for the post of Viewer Textile was published on 10.07.2015. (vi) Select list for the post of Master Weaver was published on 25.05.2015. (vii) Select list for the post of Examiner Textile was published on 26.05.2015. 5. The Commission thereof forwarded each of the select list for different categories to the Hathkargha Evam Vastra Udyog department. As stated in paragraph 9 of the Writ Petition No. 49709 of 2017, the result, so published, included the names of the petitioners selected for various categories. It was for the first time on 18.03.2016 that the respondent no. 2 referred the matter to the State Government regarding selection which was challenged before this Court and the Lucknow Bench. On 25.04.2016 the State Government directed the respondent no. 2 to issue appointment letters to 152 candidates with regard to whom proceedings for verification of documents had been completed subject to the decision of this Court and the Lucknow Bench. 6. As no appointment letters were issued, some of the selected candidates Mohd. Mustafa Ansari and others preferred Writ Petition No. 23905 of 2016 before this Court, and on 24.05.2016 this Court directed the respondent no. 2 to comply with the order of the State Government within three weeks. Copy of the order dated 24.05.2016 has been brought on record as Annexure No. 13 to the writ petition. Similarly, some other selected candidates filed another writ petition being Writ Petition No. 33177 of 2016 (Krishna Kumar Bharti and others Vs. State of U.P. and others), this Court relying upon the earlier decision of this Court dated 24.05.2016, on 21.07.2016 directed the second respondent to comply the orders of the State Government. This order has also been brought on record as Annexure No. 14 to the writ petition. 7. Respondent no. 2 on 06.05.2016 intimated the State Government regarding some complaints received and also apprised the Government of the fact that Direct Recruitment (4th Amendment) Rules, 2014 envisages for holding of written examination, but the Commission proceeded for selection on basis of interview conducted by giving a go by to the written examination. On the same date, respondent no. 2 also sent a communication to the Commission making certain queries. Further, respondent no. On the same date, respondent no. 2 also sent a communication to the Commission making certain queries. Further, respondent no. 2 on 07.06.2016 sought guidance of the State Government regarding orders of this Court dated 24.05.2016 and the irregularities made in the selection proceedings. The State Government on 20.06.2016 apprised that on basis of complaint received decision would be taken in consultation with the Administrative Department, Hathkargha Evam Vastra Udyog Department, Commission and Law Department of the State. From the pleadings, it transpires that several meetings and consultation of various agencies of the State Government was held and different opinions were received, such as opinion of the Personnel Department, Commission and the Law Department. It was on 28.09.2017 that the State Government proceeded to cancel the selection of 152 candidates and also recalled its earlier order dated 25.04.2016. 8. The order impugned dated 28.09.2017 found following discrepancies in the selection made by the Commission, which are as under; (i) The application forms of 31 candidates did not specify the required experience. (ii) The application form with regard to one candidate did not specify the employment nor enclosed any experience certificate. (iii) The experience certificate of six candidates was found to be suspicious. (iv) In the experience certificate of one candidate as against the required experience of five years the specified experience was for a period of four years, two months and 30 days. (v) Applications of six candidates instead of specifying the experience specified the training. (vi) One application did not even bear the signature of the candidate. (vii) The experience certificate of two candidates had been found to be incorrect. (viii) Four candidates showed their experience of a period during which they were pursuing educational qualifications. (ix) The select list did not comply with the requirement of horizontal/ vertical reservation. (x) There existed serious procedural irregularities with regard to 47 out of 150 selected candidates, which vitiated the entire selection. (xi) The selection did not comply with the procedure as amended in the year 2014; U.P. Subordinate Services Selection Commission Act, 2014 read with U.P. Direct Recruitment Against Group-C Posts (Method and Procedural) Rules, 2015. Law as applicable: 9. Before proceedings further it would be necessary to have a glance of the relevant Act, Rules and Regulations applicable at the relevant point of time for the selection and appointment on post of Group ‘C’. Law as applicable: 9. Before proceedings further it would be necessary to have a glance of the relevant Act, Rules and Regulations applicable at the relevant point of time for the selection and appointment on post of Group ‘C’. (i) U.P. Industry Department (Handloom and Textile Industry Directorate) Subordinate Service Rules, 1992 (hereinafter referred to as the ‘Rules of 1992’) in which only interview was mode prescribed for selection to the abovementioned posts. (ii) 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’) issued vide notification dated 29.06.2002. The said Rules were amended by First Amendment Rules, 2003 vide notification dated 21.06.2003. (iii) U.P. Procedure for Direct Recruitment for Group “C” Posts (Fourth Amendment) Rules, 2014 (hereinafter referred to as the “Rules of 2014) were in existence at the time of advertisement. These amended Rules of 2014 provided in Rule 5 (3) (A) for direct selection on Group ‘C’ post to be made on basis of written examination and interview both. (iv) U.P. Subordinate Services Selection Commission Act, 2014 (hereinafter referred to as the ‘Act of 2014’) came into force on 04.12.2014. (v) Vide notification dated 11.05.2015 U.P. Direct Recruitment to Group “C” Posts (Method and Procedure) Rules, 2015 (hereinafter referred to as the ‘Rules of 2015’) were notified. (vi) U.P. Rules of Business, 1975 Submissions 10. Sri Ashok Khare, learned Senior Counsel, assisted by Sri Siddharth Khare, learned counsel for the petitioners, submitted that request sent by the Hathkargha Evam Vastra Udyog department to the Commission for selection on Group 'C' posts was on basis of Rules of 1992 which only provided for interview. He further submitted that the State Government notified the Rules of 2002 on 29.06.2002 which was amended for the first time on 21.06.2003 and subsequently fourth amendment was notified on 29.01.2014 which came to be known as Rules of 2014, provided for both written examination and interview. 11. He further contended that the Commission was constituted pursuant to the Act of 2014 and Section 17 provides that the concerned department will intimate the vacancy to the Commission and further the Commission under Section 18 after receiving the requisition for the vacancies will as soon as possible start procedure for selection either through written examination or interview or both. 12. 12. Sri Khare, learned Senior Counsel, pointed out that once the Commission was established it was in its wisdom in pursuance to Section 18 either to hold written examination or make selection on basis of interview or for both. He further contended that Section 15 (2) of the Act of 2014 further provide for rules and regulations to be framed in regard to appointment, and State Government on 11.05.2015 notified the Rules of 2015. According to Rule 8 of Rules of 2015 direct recruitment can be made either by written examination or interview. 13. Thus, in the present case, though the requisition was made by the department concerned on 07.01.2015 and advertisement was published on 21.01.2015, Rules of 2014 were applicable, but at the time when interview was held in month of June 2015, Rules of 2015 were already notified by the State Government, which only required that direct recruitment can be made either by written examination or on basis of interview, thus, the stand of the State Government that the selection process was faulted on the count that Rule 5 (3) (A) of Rules of 2014 were not followed and entire selection process stood vitiated as only interview was held by the Commission, cannot be sustained. 14. Sri Khare, learned Senior Counsel, further submitted that the order impugned dated 28.09.2017 is in teeth of the law laid down by the Apex Court and this Court, wherein it is found that certain candidates had not fulfilled the eligibility criteria the entire selection will not go and only selection of those candidates who have not complied the requirement of the advertisement, their candidature would be rejected. Reliance has been placed upon the decision of Apex Court in the case of Union of India Vs. Rajesh P.U. Puthuvainikathu, 2003 (7) SCC 285 , Inderpreet Singh Kahlon Vs. State of Punjab and others, 2006 (11) SCC 356 and Jogendra Pal and others Vs. State of Punjab and others, 2014 (6) SCC 644 . Reliance has also been placed upon decision of Division Bench of this Court, writ petitions being Writ-A No. 37143 of 2017 (Ajeet Singh Patel and others Vs. State of U.P. and others) decided on 28.11.2017. 15. State of Punjab and others, 2014 (6) SCC 644 . Reliance has also been placed upon decision of Division Bench of this Court, writ petitions being Writ-A No. 37143 of 2017 (Ajeet Singh Patel and others Vs. State of U.P. and others) decided on 28.11.2017. 15. The State contested the matter by filing counter affidavit in which it is stated that the advertisement published on 21.01.2015 categorically mentioned the fact that if application form was not on prescribed format, or was incomplete then the application shall be cancelled. It has been specifically mentioned in paragraph nos. 6 to 9 of the counter affidavit, filed in Writ Petition No. 49709 of 2017, that the form filled up by 31 candidates had not made proper disclosure in column no. 10, and their application form being defective was liable to be rejected. It has also been stated that direct recruitment should have been made following provisions of Rules and Regulations framed under Section 15 (2) of U.P. Act No. 20 of 2014 and not under the provisions of Rules of 1992. It is further stated that pursuant to Section 15 (2) of the Act of 2014, Rules of 2015 had been framed and notified on 11.05.2015, and the Commission has not complied the provisions of Rule 8 (1) of Rules of 2015, which provided for approval of selection process from the Government while conducting and completing selection proceedings. It is also mentioned that the Commission had intimated the respondent no. 2 on 21.01.2017 that application forms of 47 selected candidates did not fulfill the essential educational qualification/experience and other necessary formalities as required in terms of the advertisement. In paragraph 13 it has also been averred that in a meeting presided by the Principal Secretary on 09.09.2016 it was decided that since the Commission had not complied with provisions of Rule 8 (1) of the Rules of 2015 and there were certain irregularities in the selection, opinion was sought from the Department of Personnel as well as Law. 16. The State has also taken stand in their counter affidavit that provisions of Section 18 of the Act of 2014 provides that Commission after intimation of vacancies under Section 17 either hold examination or interview or both, and prepare a list of the candidates, who are found 8 of 16 suitable. 16. The State has also taken stand in their counter affidavit that provisions of Section 18 of the Act of 2014 provides that Commission after intimation of vacancies under Section 17 either hold examination or interview or both, and prepare a list of the candidates, who are found 8 of 16 suitable. Further procedure for selection has been provided in Rule 8 (1), which required prior approval of the Government. 17. It has also been stated by the State that request was sent by the concerned department to the Commission on 07.01.2015 and Rules of 2014 was in existence, and selection of Group 'C' post was required to be made on basis of written examination and interview both, and Rules of 1992 was not applicable as the same was forwarded along with the request by the department to the Commission. Apart from relying upon provisions of Sections 17 and 18 of the Act of 2014, the State has also relied upon the statement of object and reason for promulgating the Act of 2014. 18. Sri Jagdish Singh Bundela, learned Standing Counsel, appearing for respondent nos. 1 to 3, has submitted that the vacancies which were notified by way of advertisement on 21.01.2015, at that relevant point of time Rule 5 (3) (A) of Rules of 2014 was in operation, which required that both written examination for 40 marks and interview for 25 marks was to be held, but the Commission proceeded to hold interview only, which was against the Rules of 2014. Learned Standing Counsel invited the attention of the Court to the various discrepancies in the application forms filled up by number of candidates, who found place in the select list, as they failed to adhere to the requisite requirement of the advertisement, which is on record as Annexure No. 1 at page 45 of the paper book, the note appended categorically states that if the form was not in conformity with the format of the Commission or was in-properly filled or it did not bear the signature of the candidate at the right place, then the same could be rejected in a cursory manner. 19. Learned counsel for the State tried to impress upon the fact that 31 such candidates whose form were scrutinized and whose details have been furnished in paragraph nos. 19. Learned counsel for the State tried to impress upon the fact that 31 such candidates whose form were scrutinized and whose details have been furnished in paragraph nos. 6 to 9 of the counter affidavit was not in conformity with the advertisement and were liable to be rejected. He further pointed out that number of petitions are pending before the Lucknow Bench of this Court. Sri Bundela, further, stressed that the Commission proceeded to hold the selection process on basis of Rules of 1992 and Rules of 2015 which provided only for interview and not written examination, while Rule 5 (3) (A) of Rules of 2014, were amended in the year 2014, categorically provides for written examination of 40 marks and interview of 25 marks, thus, giving go by to the procedure laid down in the rules vitiated the entire selection procedure. 20. Reliance has been placed on a decision of the Apex Court in the case of Sonia Vs. Oriental Insurance Company Limited, 2007 (10) SCC 627 , wherein the Apex Court has held that the selection will be governed and covered by rules prevailing on the date of which applications were invited and not to the subsequent rules or amendment. He further submitted that in view of Section 18 of the Act of 2014 the Commission was not fully empowered to act on its own and proceedure for selection has been provided in Section 17 (1) and (2) of the Act. Reliance has also been placed upon the object and reason of promulgating the Act of 2014. 21. Sri Prabhakar Awasthi, learned counsel appearing for the Commission, has submitted that the Commission was a formal party and had acted only on basis of the requisition so received by it and after selection, so made, forwarded it to the Government. Apart from it, no other submissions were forwarded on behalf of the Commission neither any counter affidavit was filed. Conclusion 22. I have heard learned counsel for the parties and perused the material on record. 23. The entire controversy hinges around the applicability of Rules of 2014, U.P. Act No. 2014 and the Rules of 2015. 24. The question for consideration before this Court is that whether the rules as amended in the year 2014, or Rules of 2015 notified after the formation of the Commission by the Act of 2014 would be applicable. 25. 23. The entire controversy hinges around the applicability of Rules of 2014, U.P. Act No. 2014 and the Rules of 2015. 24. The question for consideration before this Court is that whether the rules as amended in the year 2014, or Rules of 2015 notified after the formation of the Commission by the Act of 2014 would be applicable. 25. As it is not in dispute that a requisition for the appointment of 156 candidates for Group ‘C’ posts were made by Hathkargha Evam Vastra Udyog department to the Commission on 07.01.2015. Acting on the request, the Commission proceeded to make advertisement inviting applications from eligible candidates on 21.01.2015. It is also not in dispute that at this relevant point of time the Rules of 2014 were in operation which mandated written examination as well as interview. The advertisement did not provide for any examination or interview. It appears that as the Act of 2014 came into force on 04.12.2014, the Commission in exercise of its power provided under Section 18 had proceeded to make advertisement for selection on Group ‘C’ posts. The State Government thereafter framed the Rules of 2015 exercising power under Section 2 of U.P. Act No. 20 of 2014 wherein in Rule 8 it was provided that Group ‘C’ appointments can either be made by written examination or by interview. 26. While Rules of 2015 were notified on 11.05.2015 i.e. after the date of advertisement, which was published on 21.01.2015. The moot question is whether the Commission which was constituted after coming of amended Rules of 2014 by U.P. Act No. 20 of 2014 was to proceed in accordance with the Rules of 2014 as advertisement was made on 21.01.2015 while rules made pursuant to Act were notified on 11.05.2015, in view of the judgment of Apex Court in the case of Sonia (supra), or the rules followed by the Commission proceeding to make selection on basis of interview, which were held in the month of June 2015 subsequently to the enforcement of the Rules of 2015. 27. It is no doubt true that at the time of publication of advertisement Rules of 2014 which was amended twice was in force, but it cannot be denied that the concerned department had requested the Commission for making selection on basis of the Rules of 1992 which provided for selection on basis of interview only. 27. It is no doubt true that at the time of publication of advertisement Rules of 2014 which was amended twice was in force, but it cannot be denied that the concerned department had requested the Commission for making selection on basis of the Rules of 1992 which provided for selection on basis of interview only. It is also correct that the Rules of 2015 were notified subsequent to the advertisement which were in place before interview took place. 28. The stand taken by the State is two fold. Firstly, it is relying upon the certain discrepancies in the form filled by 47 candidates and there being defect in filling up column no. 10 on basis of which the selection process has been set-aside. The State has also taken a stand in its counter affidavit that the Commission had not complied with the Rule 8 (1) of the Rules of 2015 by not taking prior approval of the State Government while conducting and completing the selection proceedings. The State cannot, at the same time, blow hot and cold by taking two stand, firstly that Rule 5 (3) (A) of Rules of 2014 provided written examination of 40 marks and interview of 25 marks and secondly that the Rules of 2015 were not followed as far as taking prior approval for selection process. It has to stick to one ground whether the Rules of 2014 are applicable on the Commission or Rules of 2015 are applicable. 29. From the reading of U.P. Act No. 20 of 2014, it is clear that once the Commission was established pursuant to the gazette notification, the Commission proceeded for selection for Group ‘C’ posts. It was required under Section 15 (2) of the Act of 2014 to make selection in view of rules and regulations framed there under. 30. As the Rules of 2015 were notified on 11.05.2015 the Commission proceeded to make selection as per Rules of 2015 which required for either written examination or interview. Thus the action of the Commission cannot faulted on the count that it was to proceed on the basis of Rules of 2014, specifically Rule 5 (3) (A) which provided for written examination as well as interview. Thus the action of the Commission cannot faulted on the count that it was to proceed on the basis of Rules of 2014, specifically Rule 5 (3) (A) which provided for written examination as well as interview. The statement of object and reason of promulgating the Act of 2014 also has relevance and same is extracted here as under; “It is necessary to select able, worthy and hard working personnel for appointment to certain posts in administrative departments of the State. It is also necessary to ensure the quality of selection, its impartiality and transparency in their selection. Though the institution of Uttar Pradesh Public Service Commission is present at Constitutional Level but owing to increased pressure on its working, difficulty is being realized regarding selection on Group “C” posts. In near past, selection on Group “C” post was being done under the direct supervision of the State Government, but Head of Department had to devote much time for the above selections which is severely affecting the Government works as well as the works of public interest. Due to all these reasons, it is quite necessary to establish an independent Subordinate Service Selection Commission consisting of the Chairperson and Members similar to that of the Uttar Pradesh Public Service Commission for timely selection on certain Group “C” posts. It has therefore, been decided to make a law to provide for the establishment of a Commission by the name of the Uttar Pradesh Subordinate Service Selection Commission for the selection on certain Group “C” posts in the State ” 31. Thus, from reading the object, it is clear that Commission has been established for making selection of certain Group “C” post in the State to select able, worthy and hardworking persons in administrative department of the State. Once the Commission was established, it was bound to follow the rules and regulations so framed under the act while making selection and to do away with the earlier procedure prescribed under the various rules and regulations. Once the Commission was established, it was bound to follow the rules and regulations so framed under the act while making selection and to do away with the earlier procedure prescribed under the various rules and regulations. It is no doubt true that selection has to be made according to the rules applicable at the time of advertisement and not subsequently, but the present case is slightly different, as in case in hand the Rules of 2014 were not amended or aid of any other rules and regulations were taken into consideration, but after the Rules of 2014 were amended and notified on 29.01.2014, the U.P. Act No. 20 of 2014 came into force and gazette notification was made on 04.12.2014, pursuant to which Rules of 2015 were made which came into operation. 32. Had the Commission held the interview and prepared the select list before the date of notification of Rules of 2015 i.e. 11.05.2015 then the argument of the State could have been accepted to the extent that Rule 5 (3) (A) of Rules of 2014 were applicable and not Rules of 2015, but the Commission after advertisement proceeded to make selection on basis of interview after the notification of Rules of 2015 in the month of June 2015. Thus, relevant rule for consideration for selection would be Rules of 2015 and not the Rules of 2014. 33. The second argument of the State to the extent that prior approval of the State was not taken by the Commission in view of Rule 8 (1) of Rules of 2015 is also not founded on any strong ground, as plain and simple reading of the rule suggests that Commission while dealing with the process of direct recruitment either on basis of written examination or marks of interview shall advert to the rules which are from time to time approved by the State Government. 34. In the present case the rules were already notified on 11.05.2015 and Rule 8 categorically provided that the procedure for direct recruitment will either be held on basis of written examination or marks of interview. It is not in dispute that the State Government has power to amend or modify the said rules and any such amendment or modification is binding on the Commission. It is not in dispute that the State Government has power to amend or modify the said rules and any such amendment or modification is binding on the Commission. Thus, the argument of the State cannot be accepted by any stretch of imagination that prior to making selection, Commission was required to send for approval to the State Government. 35. As far as the argument made by learned Senior Counsel appearing for the petitioners that the entire selection process did not stood vitiated on the ground that there were certain discrepancies found by the Commission in the form of certain candidates and the entire selection could not be held to be tainted, finds support from the Division Bench judgment of this Court in the case of Ajeet Singh Patel and others (supra) as well as the law laid down by the Apex Court in the case of Rajesh P.U. Puthuvainikathu (supra) wherein Apex Court held that there was no justification to deny appointment to those selected candidates whose selection was not vitiated in any manner. In Jogendra Pal and others (supra) Apex Court considering its earlier judgment in the case of Inderpreet Singh Kahlon (supra) held that entire selection process cannot be vitiated unless finding was arrived that it was impossible to distinguish the case of tainted from non-tainted one. 36. As in the present case, the order impugned clearly mentions that out of 152 candidates selection of 47 candidates suffers from serious procedural irregularities. In the counter affidavit in paragraph nos. 6 to 9 candidate wise list has been given stating the discrepancies in their forms, so submitted, thus, the respondent State functionaries are well aware of the fact that who are tainted and non-tainted candidates and thus by a sweeping order the entire selection process cannot be set-aside in one go, which is against the mandate of Apex Court in the case of Jogendra Pal and others (supra). 37. 37. Considering the facts of the case and keeping in mind the decisions of the Apex Court and Division Bench of this Court, I am of the view that the respondent State proceeded to set-aside the entire selection process merely on the ground that out of 152 selected candidates, candidature of 47 candidates was found to be not in accordance with the terms and conditions as mentioned in the advertisement, and non-submission of the requisite qualification by them in the form, which cannot be the basis for cancelling the entire selection, so made. As from the reading of order impugned, it is clear that those 47 candidates are easily identifiable and can be segregated from the list of 152 selected candidates. Thus, the orders impugned are not based on any sound and cogent reasons and same are hereby quashed. 38. It is expected that the State authorities shall issue necessary orders for the rest of the selected candidates whose candidature are in accordance with the law and the earlier order of State Government dated 25.04.2016 being modified to the extent that appointment order be issued to those validly selected candidates excluding those whose forms are not in proper format, as given in the order impugned dated 28.09.2017. 39. All the writ petitions stand allowed.