Ram Kripal Tripathi vs Registrar General Higher Court ...
2013 Latest Caselaw 6411 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					   Judgment reserved on 03.9.2013						   Judgment delivered on 10.10.2013 
 

 
		SPECIAL APPEAL NO.463 OF 2013
 
			     Ram Kripal Tripathi 
 
				         vs. 
 
	Registrar General, High Court of Judicature and others
 
				
 
Hon'ble Sunil Ambwani, J.

Hon'ble Surya Prakash Kesarwani, J.

1. Heard Shri Ram Kripal Tripathi-the petitioner-appellant appearing in person. Shri Ashish Misra appears for Registrar General, High Court, Allahabad. Shri Ateek Ahmad Khan appears for Shri Zafar Fareed-respondent no.2.

2. This intra court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 arises out of an order passed by learned Single Judge dated 26.2.2013 in Writ A No.70090 of 2011 (Ram Kripal Tripathi vs. Registrar General and others) by which the writ petition was dismissed.

3. Brief facts giving rise to this writ petition are that the then Hon'ble Acting Chief Justice, Allahabad High Court by his order dated 18.12.2004 constituted a Committee to fill up four vacant posts of Telephone Operators in the establishment of the High Court. The registry advertised vacancies inviting applications in which two posts were reserved for General Category; one for Other Backward Classes and one for Scheduled Caste category. Rule 9 (i) (a) of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 provides for qualifications essential for the post of Telephone Operator. Rule 10 provides for method of selection on the post of Telephone Operator and Telex Operator. Rules 9 and 10 relevant for the purpose of the case are quoted as below:-

"9. Qualifications- Academic qualifications for direct recruitment to the various Class III posts in the establishment shall be as follows:-

(i) Routine Grade Clerk

Must have passed the Intermediate Examination of the Board of High School and Intermediate Education, U.P. or an examination declared by the Government as equivalent thereto.

(i) (a) Telephone Operators and Telex Operators

Must have passed the Intermediate Examination of the Board of High School and Intermediate Education, U.P. or an examination declared by the Governor as equivalent thereto:

Provided that the minimum academic qualifications in respect of the candidates recruited before the enforcement of these rules shall be High School Certificate.

(ii) Lower Division Assistants

(iii) Upper Division Assistants

Must possess a Bachelor's degree of a University established by law in India or a qualification recognised as equivalent thereto.

(iv)Personal Assistants

(v) Librarian

Degree in law and diploma in Library Science from a recognised University;

Provided that in addition to the above qualifications, candidates for the following categories of posts must also possess the qualification mentioned below:

(a) Routine Grade Clerks

Must possess good knowledge of Hindi and English Type-writing:

Provided that nothing in this rule shall be construed as affecting or invalidating appointments made or orders issued before the commencement and orders shall continue in force and shall be deemed to have been made or issued under the appropriate provisions of this rule.

(b)Personal Assistants

Must possess good knowledge of Hindi or English shorthand and typewriting with minimum speed of 40 words in English and 30 words in Hindi typewriting per minute and 100 words in English and 80 words in Hindi shorthand dictation per minute.

(c) Telephone Operators

Must possess sufficient experience of working as a Telephone Operator in some Government or Semi-Government Undertaking.

(d) Telex Operators

Diploma or certificate in Telex Operators from some recognised Institute of training. Must possess sufficient experience of working as Telex Operator in some Government or Semi-Government Undertaking.

10.Method of selection for the posts of Routine Grade Clerks- (1) The appointing Authority shall ascertain the probable number of vacancies likely to occur in the post of Routine grade Clerks during the course of the year of recruitment and determine the number of vacancies, if any, to be reserved for candidates belonging to the Schedule Castes and others under Rule 23.

(2) The procedure and syllabus relating to the competitive examination shall be such as may be prescribed by the Appointing Authority from time to time.

(3) The candidates who qualify for interview in the written examination, according to the standard fixed by the Chief Justice, will be called for interview before the Selection Committee appointed by the Chief Justice.

(4) The total marks obtained by the candidates in the written examination and interview will determine their position and the merit list shall be prepared accordingly. If two or more candidates secure equal marks, the candidate securing higher marks in the written examination will be placed above. The select list shall hold good for three years or till the next selection is held whichever is earlier.

(5) [***]"

4. The Committee consisting of two Hon'ble Judges supervised the selection, in which 46 candidates applied in pursuance to the advertisement, which provided for the essential qualifications for the post as follows:

"1. Must have passed the Intermediate Examination of the Board of High School and Intermediate Education U.P. or an examination declared by the Governor as equivalent thereto vide Rule 9 (1) (a) of the 1976 Rules.

2.Must possess knowledge of data entry, word processing and Computer Operator, Proviso to Rule 9 of 1976 Rules inserted vide notification dated 26.8.2002.

3. Must possess a certificate or training imparted by the Post and Telegraph department.

4. Must possess sufficient experience of working as a Telephone Operator in some Government or Semi Government Undertaking vide clause (C) of proviso to Rule 9 of 1976 Rules."

5. The Joint Registrar (Services), High Court informed the Committee that none of the candidates possess the certificate issued by the Telegraph Department. The Committee relaxed the requirement of the certificate of the Telegraph Department for all the candidates. Out of 46, 38 persons were subjected to computer text, which was essential in view of the amendment made in Rule 9 for direct recruitment vide notification dated 26.8.2002. Since the post of Telephone Operator is a technical post, the Senior S.D.O. nominated by the General Manager,B.S.N.L. carried out the test for practical and technical knowledge. The candidates were thereafter subjected to test to speak English, etiquette, manners, sense of responsibility and aptitude for work. The Committee on the basis of marks of candidates recommended Shri Dinesh Chandra Tripathi at serial no.3 in general category with 63 marks and Shri Surya Prakash Singh in OBC category with 61 marks for selection as the first and second candidates in general category as Shri Surya Prakash Singh had secured higher marks than the last candidate in general category. Shri Sunil Kumar in OBC category with 59 marks and Shri Hari Krishna in SC category with 47 marks were declared selected. The selected candidates, including Shri Surya Prakash Singh were issued appointment letters. They are working since the year 2008 as Telephone Operators in the High Court.

6. Shri Ram Kripal Tripathi-the appellant filed a Writ Petition No.48549 of 2008 (Ram Kripal Tripathi vs. Registrar General and others) challenging the appointment of Shri Surya Prakash Singh in general category on the ground that he was not qualified for appointment. The writ petition was dismissed on 16.9.2008 on the ground that the selection was made on examination of the entire matter by a Selection Committee of two Hon'ble Judges, who found Shri Surya Prakash Singh-respondent no.3 to be duly qualified and eligible for appointment. In absence of any evidence given by the petitioner with regard to any illegality or irregularity in the appointments and specially in view of the report of the Committee on the basis of which the appointment was made, no interference was called for.

7. Shri Ram Kripal Tripathi filed a Special Appeal No.1453 of 2008, in which he assailed the judgment of learned Single Judge on the ground that there was sufficient material on record to establish that Shri Surya Prakash Singh was not qualified and was thus not eligible to apply and to be selected as Telephone Operator. The Special Appeal was allowed on the ground that Shri Surya Prakash Singh had produced a certificate as a Radio Operator, which was later on verified to be that of Radio Mechanic in Indian Navy. He did not have any experience of working as Telephone Operator. The Telephone and Radio are inventions and operate with different technologies and that a person, who has experience in working as Radio Operator, could not be treated to have experience as of Telephone Operator, which was essential for the purposes of being eligible to apply for the post. The Division Bench allowed the appeal and while setting aside the judgment of learned Single Judge and the appointment of Shri Surya Prakash Singh as Telephone Operator, directed the Registrar General of the Court to prepare a fresh list of selected candidates in accordance with the marks allotted to eligible candidate for appointment on the post of Telephone Operator in general category in accordance with the merit position. The reasoning and operative portion of the order of Division Bench, is quoted as below:-

"We have considered the respective submissions made by the parties and perused the record.

The essential qualifications prescribed in Rule 9 for the post of 'Telephone Operator' is Intermediate Examination of Board of High School and Intermediate as educational qualifications and experience of working as Telephone Operator in some government or semi government undertaking. Both the educational and experience qualifications are essential qualifications for the post and were so advertised and were accepted by the Committee to be the essential qualifications.

The Committee had relaxed the certificate of training imparted by the Post and Telegraph Department. It did not relax the essential qualifications provided by statutory rules, and thus it was essential for every candidate, who had applied to the post to establish by requisite certificates that they had experience of working as Telephone Operator in some government or semi government undertaking.

It was reported to the Committee that Shri Surya Prakash Singh has certificate in Electrical Mechanic Area Radio and had 15 years experience as Radio Operator in Indian Navy. It appears that the Committee did not appreciate the difference between Telephone Operator and Radio Operator, and found Shri Surya Prakash Singh to be eligible on the basis of his experience as Radio Operator, which has now been established to be experience as Radio Mechanic in Indian Navy. The certificate annexed by Shri Surya Prakash Singh clearly demonstrate that he did not have experience of working as Telephone Operator. He claimed to have experience as Radio Operator with his certificates. His designation in Indian Navy and the certificates, however, clearly demonstrates that he had experience of working as Radio Mechanic, and not Radio Operator.

We find substance in the contention of the petitioner appellant appearing in person, that there is a considerable difference in the technology of radio and telephone. Whereas telephone lines operates on wire, the radio operations work on radio frequency. Both the technology are different in nature.

The Committee did not recommend and that Hon'ble the Chief Justice did not exempt the essential qualifications and experience of working as Telephone Operator. The High Court as such clearly fell into error in treating Shri Surya Prakash Singh-respondent No.3 as eligible with essential qualifications and experience and in selecting him as Telephone Operator. Learned Single Judge also fell in error in considering the points raised by the petitioner-appellant regarding the difference in the experience between telephone operator and radio mechanic.

We further find that though Shri Surya Prakash Singh had scored better overall marks than the petitioner-appellant, the petitioner-appellant with 9 marks in computer test; 33 marks in technical test and 14 marks on personality test, as against 15 marks in computer test given to Shri Surya Prakash Singh; 13 in technical test and 16 in personality test, possessed requisite educational qualifications and experience for the job. The other general category candidate, who had participated also did not have experience as Telephone Operator, except Shri Surya Bahadur Singh, who has not challenged the selection. The Committee, therefore, could not have placed Shri Surya Prakahs Singh belonging to OBC category as second person selected in General Category. The petitioner-appellant was clearly discriminated in the selections violating his rights of equality and non-arbitrariness guaranteed under Art.14 and 16 of the Constitution of India.

For the aforesaid reasons, we find that the selection of Shir Surya Prakash Singh-respondent No.3 was not valid, as he did not possess requisite experience provided in Rule 9 of working as Telephone Operator in government or semi government organisation as essential qualification for the post.

The special appeal is allowed. The judgment of learned Single Judge dated 16.9.2008 and consequently the selection and appointment of Shri Surya Prakash Singh-respondent No.3, as Telephone Operator and his appointment is set aside. The Registrar General of the High Court is directed to prepare a fresh list of selected candidates in accordance with marks allotted to eligible candidates for appointment on the second post of Telephone Operator in general category in accordance with merit position. The order will be complied within six weeks."

8. In compliance with the judgment of the Division Bench the matter was again placed by the Registry of the High Court vide its report dated 21.5.2011 before the Committee of two Hon'ble Judges. The Committee considered the report and recommended the name of Shri Zafar Fareed-respondent no.2 as general category from the merit list. Based on the recommendation Shri Zafar Fareed was given appointment.

9. Shri Ram Kripal Tripathi-the appellant again filed Writ A No.70090 of 2011 challenging the appointment of Shri Zafar Fareed-respondent no.2 on the grounds as follows:-

"(i) that the candidature of respondent no. 2 was rejected earlier by the Committee by its minutes dated 08.08.2008 on the ground that he did not possess the requisite experience certificate as provided under Rule 9(c) of the Allahabad High Court Officers and Staff (Condition of Service and Conduct) Rules, 1976 (hereinafter referred to as Rules, 1976). It was contended that once the candidature of respondent no. 2 was rejected earlier by the Committee, he could not be held to be eligible again and be given an appointment and,

(ii)that the experience certificate submitted by respondent no. 2 was found to be forged or fabricated and, therefore, on this ground, his appointment was liable to be quashed."

10. A supplementary affidavit was filed by the appellant-the petitioner in the writ petition stating that pursuant to an application filed under the Right to Information Act, the ITI Ltd authorities responded informing the appellant that in absence of an employment number of respondent no. 2, the requisite information can not be supplied. It was contended that on the basis of reply received from ITI Limited, before learned Single Judge that the experience certificate produced by Shri Zafar Fareed-respondent no. 2 showing that he had gained experience from the ITI Ltd was a forged, or a fabricated document. In the supplementary counter affidavit filed by the High Court bringing on record the verification of the documents, the ITI Ltd authorities submitted that in the absence of the staff number, the verification of the certificate could not be authenticated and that as per available record, the certificate had not been issued from the organisation.

11. The High Court also brought on record by supplementary counter affidavit filed in the writ petition that during the pendency of the proceedings, respondent no. 2 had applied for being relieved from the post of Telephone Operator. His request was considered and by order dated 29.5.2012 passed by the High Court, he was relieved from the post of Telephone Operator and allowed him to join his parent department, namely, District Court, Allahabad on which he continued to have lien even after his appointment in the High Court. It was contended that the writ petition has become infructuous.

12. Learned Single Judge did not find that the writ petition had become infructuous and proceeded to consider the arguments raised by the appellant-the petitioner on merits. On the first ground raised by the petitioner learned Single Judge held that no doubt the Committee in its minutes dated 08.08.2008 had rejected the candidature of Shri Zafar Fareed on the ground that he was not eligible, he did not possess the requisite experience of working as a Telephone Operator in a Government or a semi Government organisation. This, however, would not give any benefit to the petitioner inasmuch as subsequently Shri Zafar Fareed had submitted two certificates namely (i) one month's training from Parimandliya Telecommunication Training Centre, Lucknow and (ii) one year experience certificate from ITI Ltd. Learned Single Judge found that after the candidature of Shri Surya Prakash Singh was rejected, in pursuance to the directions given by the Division Bench in its judgment dated 20.1.2011, and the directions given by the Committee on 19.5.2011 the registry had prepared a list of eligible candidates and found that Shri Zafar Fareed had submitted the experience certificate and accordingly corrected its mistakes and showed him to be eligible. The Committee found that Shri Zafar Fareed had submitted the required certificates and he has scored more marks than the petitioner, and thus recommended him for appointment on the post of Telephone Operator. In the circumstances the principle of estoppel did not arise. If a mistake was corrected while preparing the merit list, it could be rectified subsequently in pursuance to directions given by the Court. The defect was removed and the name of Shri Zafar Fareed was included in the list.

13. Learned single Judge examined the submission, that even if the certificate given by the ITI Limited was ignored, as it was not verified by the organization, the first certificate with regard to training as a Telephone Operator in BSNL, for a period of one month, was in compliance with Rule 9 (c) of the Rules of 1976. The experience certificate of ITI Limited, which could not be verified, was an added feature and if it was found to be forged and fabricated, it will have no bearing on the ultimate decision of the Court.

14. Learned Single Judge further found that on the vacancy of Shri Zafar Fareed, who had thereafter opted for and was relieved to join on the parent post in the District Court, the petitioner could not be accommodated as once an appointment has been made validly, the select list comes to an end. Learned Single Judge relied upon State of Punjab vs. Raghuvir Chand Sharma and another (2002) 1 SCC 113 and District Judge vs. Anurag Kumar and others 2006 Vol 5 AWC 4682.. The writ petition was consequently dismissed giving rise to this intra-court Special Appeal.

15. Shri Ram Kripal Tripathi, appearing in person submits that learned Single Judge did not consider the fact that the Committee had earlier found Shri Zafar Fareed to be disqualified on the ground that he had no experience of working as Telephone Operator, which was the qualification prescribed in the Rules. After the Division Bench judgment by which the appointment of Shri Surya Prakash Singh was held to be illegal, Shri Zafar Fareed in the second round produced the two certificates. The first certificate was of one month training as Telephone Operator in BSNL from Parimandliya Telecommunication Training Centre, Lucknow. The other certificate produced by him of one year's experience from ITI Limited, was found to be forged and fabricated as the organization did not verify the document. Shri Zafar Fareed thus lacks the essential qualification of possessing sufficient experience of working as Telephone Operator in some Government or semi Government undertaking. The second certificate being forged, the first certificate of only one month's training as Telephone Operator in BSNL could not be treated a certificate of having possessing sufficient experience of working as Telephone Operator.

16. Shri Ram Kripal Tripathi further submits that Shri Zafar Fareed had played fraud with the Court. He was afraid of a disciplinary action against him for producing forged or fabricated documents and thus he applied to be relieved to join in the parent department in the District Court. A disciplinary enquiry has been initiated against him by the District Judge, Allahabad being D.E. No.5/F/2013. He was not eligible in any case as he lacked essential qualification and was also a desirable person to be given appointment. In the circumstances, his appointment was illegal and that an illegal appointment enures for no benefit to the wrong doer. Such an appointment does not fill up the vacancy to deny the consideration of the eligible candidate, who had appeared and was next in line for selection. Shri Ram Kripal Tripathi submits that the equality guaranteed under Article 14 of Constitution of India gives him a right to be appointed on the post of Telephone Operator for which he has successfully challenged the appointment of Shri Surya Prakash Singh, who was found ineligible and thereafter Shri Zafar Fareed was also found to be ineligible to hold the post.

17. The appellant has relied on Purushottam vs. Chairman,M.S.E.B. 1999 Law Suit (SC) 607, in which the Supreme Court held that a duly-selected person for being appointed and illegally kept out of employment on account of untenable decision on the part of the employer, cannot be denied the appointment on the ground that the panel has expired in the meantime. An illegal decision taken by the Screening Committee was reversed by the High Court and that the decision of the High Court had reached its finality. The right of the appellant to be appointed against the post to which he was selected could not be taken away on the pretext that the said panel had in the meantime expired and the post had already been filled up by someone else. Usurpation of the post by somebody else was not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. The Supreme Court gave appointment to the appellant to be prospective in nature.

18. Shri Ram Kripal Tripathi has also relied on State of Uttar Pradesh vs. Ram Swarup Saroj 2000 Lawsuit (SC) 481 in which the Supreme Court held that no appeal was filed by the State of UP against the judgment of Division Bench cancelling the appointment. The plea, that a list of selected candidates for appointment to the State services remains valid for a period of one year, is primarily a question depending on facts. The select list was finalised but before the expiry of one year the writ petition was filed challenging the appointment and thus after the writ petition was allowed, the respondent could not be denied appointment.

19. Shri Ashish Misra, on the other hand, submits that a disciplinary enquiry is pending against Shri Zafar Fareed. He was found eligible by the Committee and was given appointment on the post. On his appointment the post got filled up and that after he was relieved, the post can not be treated to be vacant to be filled up from the same selection. He has relied upon State of Punjab vs. Raghbir Chand Sharma and another (2002) 1 SCC 113 in which it was held that the panel for the single post of Assistant Advocate General ceased to exist with the appointment of first candidate. The respondent could not have claimed appointment on the post on the vacancy arising out of resignation of such appointee or vacancy arising subsequently. Shri Ashish Misra has also relied on District Judge, Baghpat and another vs. Anurag Kumar and others 2006 (5) AWC 4682 in which a Division Bench of this Court held that the District Judge could not have enlarged the period of life of any select list after the appointments of the advertised vacancies were made. Once the advertised vacancies stood fill up, the selection process was exhausted and no further appointment could be made from the list.

20. We have considered the submissions and find that learned Single Judge committed a patent error in holding that even if the certificate of experience from ITI Limited was not verified by the organization, the certificate of training as Telephone Operator in BSNL was sufficient for considering the eligibility of Shri Zafar Fareed. It was demonstrated before him that Shri Zafar Fareed was not found eligible at the time of first consideration by the Committee. He had tried to make himself eligible by producing two certificates in the second round of consideration after the Division Bench had set aside the selection of Shri Surya Prakash Singh. Both the certificates did not make him eligible inasmuch as the qualifications prescribed in Rule 9 (1) (c) is sufficient experience of working as Telephone Operator in some Government or semi Government undertaking. The first certificate produced by Shri Zafar Fareed was of training as a Telephone Operator in BSNL organization for a period of one month. It was not a certificate of experience. The other certificate issued by ITI Limited was not verified. On an information sought by the appellant under (The) Right to Information Act, 2005 the ITI Limited informed him that in the absence of staff number, the verification could not be authenticated. On the verification sought by the High Court the organization informed that the certificate was not issued from the organization. The certificate was thus established to be forged or fabricated. The Registry of the High Court thus gave a wrong information to the Committee that on the second consideration Shri Zafar Fareed was found eligible. The report was wrong of which no verification was made by the Committee. The appointment of Shri Zafar Fareed was thus illegal and nonest and cannot be said to have fill up the post to deny opportunity to the appellant to be appointed on the post.

21. The petitioner is knocking the doors of the Court for last five years seeking justice. He has twice established before this Court that the persons recommended by the Committee were not eligible. Shri Surya Prakash Singh selected in the first round was found to be a Radio Mechanic and not a person, who had worked and had any experience as Telephone Operator. After he had successfully challenged the appointment of Shri Surya Prakash Singh, he was again denied justice by the appointment of Shri Zafar Fareed, who was found relying upon a forged certificate from ITI Limited and had no experience of working as Telephone Operator.

22. Shri Ram Kripal Tripathi placed at serial no. 8 having obtained 56 marks was next in the line in the general category to be given appointment. In any case since he is the only person available in the select list, which was not challenged by any other person. He alone has a right to be appointed on the vacancy as an eligible candidate. M/s Anjali Srivastava above him having obtained 58 marks was also found ineligible in view of Rule 9 (c) of Rules of 1976.

23. Once an appointment is held to be illegal and nonest, it would not amount to fill up the post to exhaust the vacancy on the post and the select list. An eligible person waiting in line cannot be denied appointment on the ground that the post was filled up by an illegal appointment, which was secured by playing fraud. We are further of the view that the appellant had challenged the selections within the period of validity of the select list and that the judgment of Division Bench setting aside the selection of Shri Surya Prakash Singh has become final and was not challenged by the High Court or by Shri Surya Prakash Singh.

24. In the circumstances the Special Appeal is allowed. The judgment of learned Single Judge dated 26.2.2013 in Writ A No.70090 of 2011 is set aside. Now since the petitioner is the only eligible and selected candidate included in the select list next in line with 58 marks, we direct that he being eligible and selected candidate having successfully established that the persons, who were given appointment in his place namely Shri Surya Prakash Singh and Shri Zafar Fareed were ineligible, he is entitled to be appointed as Telephone Operator.

25. The Registrar General is directed to offer appointment to Shri Ram Kripal Tripathi-the appellant as Telephone Operator in the establishment of the High Court prospectively within a period of four weeks from a date a copy of the judgment is received in his office.

26. We also direct that the departmental enquiry against Shri Zafar Fareed for having relied upon a forged and fabricated document filed in the High Court to seek appointment be expedited and concluded by the District Judge, Allahabad. The appellant will be entitled the cost quantified at Rs.10,000/- for having succeeded after pursuing the matter for five years.

Dt.10.10.2013

RKP/