Ram Chandra And 10 Ors. vs State Of U.P.Thru ...
2013 Latest Caselaw 5943 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 5480 of 2013
 

 
Petitioner :- Ram Chandra And 10 Ors.
 
Respondent :- State Of U.P.Thru Secy.Sectt.Administration Civil Sectt.&Ors
 
Counsel for Petitioner :- H.S. Jain
 
Counsel for Respondent :- C.S.C.,Rajneesh Kumar
 

 
Hon'ble Anil Kumar,J.

Heard Sri H.S. Jain, learned counsel for the petitioner, Sri Pankaj Patel, learned Additional Chief Standing Counsel and Sri Rajneesh Kumar, Advocate, appearing on behalf of opposite party No.2.

By means of the present writ petition, the petitioner prayed for a direction to U.P. Public Service Commission/ Opposite Party No.2 to scrutinize all the applications received against the Advertisement No. A-5/E-1/2010 dated 25.12.2010, thereafter only those candidates who possess the requisite academic qualification as per the terms of the advertisement may be allowed to appear in the written examination schedule to take place on 22.09.2013.

Sri H.S. Jain, learned counsel for the petitioners in order to press the above said relief submits that an advertisement has been issued by the opposite party No.2 for appointment on the post of Additional Private Secretary in U.P. Secretariat, in response to the same the petitioners and other candidates had submitted their applications.

On 03.09.2013 a Notification/advertisement has been issued by the Competent Authority (copy of which is annexed as Annexure No.6 to the writ petition) calling the candidates for appearing in a written test of General Knowledge (in first session) and General Hindi (in second session) as per the tests and schedule mentioned therien.

He further submits that the said exercise done by respondent No. 2 is illegal and arbitrary rather contrary to the terms as provided in Clause 5 of the Advertisement.

The said clause has been reproduced in English in paragraph No.3 of the writ petition, quoted herein below:-

"That in para 5 of the advertisement the Commission has declared that a candidate must have a minimum speed of eighty words per minute and twenty five words per minute in Hindi shorthand and Hindi typewriting respectively,

and

further that the candidate must possess the knowledge of compute in accordance with the course prescribed for Certificate Course in Computing (CCC) conducted by DOEACC society or the course conducted by the Board of High School and Intermediate Education, U.P. or a course recognized by the Government as equivalent thereto.

It is relevant to point out that in the note appended to para-8 of the advertisement the Commission has clearly mentioned that a candidate must annex requisite certificates along with application from failing which his/her candidature will be rejected."

Accordingly, Sri H.S. Jain, learned counsel for the petitioner submits that a mandatory duty has been casted upon the opposite party No.2/ U.P. Public Service Commission as per Clause 5 of the advertisement to scrutinize all the forms received by it, in pursuance of the advertisement and only those candidates who possess the qualification/Certificate Course in Computing (CCC) conducted by DOEACC society or the course conducted by the Board of High School and Intermediate Education, U.P. or a course recognized by the Government as equivalent thereto may be called for written examination schedule to take place on 22 September.2013. As the said exercise has not been done in the present case, so the opposite party No. 2 may be directed to do the said exercise first, thereafter proceed to hold the written examination which is schedule to take place on 22.09.2013, as per the Rule 8 of the U.P. Secretariat Personal Assistant Service (First Amendment) Rules, 2005 read with Rule 15(3) of the Uttar Pradesh Secretariat Personal Assistant Service Rules, 2001

In support of his argument Sri H.S. Jain has placed reliance on the argument as raised by following judgment:-

1.A.P. Public Service Commission, Hyderabad and another Vs. B. Sarat Chandra and others (1990) 2 SCC, 669,

2.Ashok Kumar Sonkar Vs. Union of India and others (2007) 4SCC54,

Sri Rajneesh Kumar, learned counsel appearing on behalf of O.P.No. 2 on the basis of instructions received to him submits that an advertisement No. A-5/E-1/2010 dated 25.12.2010 has been issued by the U.P. Public Service Commission and as per Clause-1 of the said adverisement, the O.P.No. 2 has to conduct the competitive examination for the purpose of appointment on the post of Additional Private Secretaries in U.P. Secretariat, so keeping in view the said fact, notification/advervisement dated 03.09.2013 has been issued for holding a written examination on 22.09.2013 for General Knowledge and General Hindi as per the the fact/scheduled mentioned therein.

He further submits that the candidates who have appeared in the said examination, thereafter have to appear in Shorthand and Hindi

Typing Test, and they should pass/qualify the same as per the terms as mentioned in Clause 5 of the advertisement and those candidates who have passed/qualify the Shorthand Typing Test only will be allowed to appear in the Computer Test after verification of the requisite certificates etc. as per the terms of the advertisement and Rules which governs the field. Lastly, on the basis of marks obtained by the candidates in the abvoesaid exercise will be calculated and accordingly a merit-list will be prepared on the basis of the same appointment will be made on the post of Additional Private Secretaries.

Sri Rajnish Kumar, learned counsel appearing on behalf of O.P.No. 2 further submits that so far as the argument advanced by learned counsel for petitioner that the O.P. No. 2 should scrutinize the candidates as per the Clause 5(3) (a) of the advertizement prior to appearing in the written test scheduled to take place on 22.09.2013, whether they possess the course prescribed for Certificate Course in Computing (CCC) conducted by DOEACC society is not a correct argument because the said exercise will be done as per Clause 11(8) of the advertizement only after the candidates who have appeared in the written examination scheduled to take place on 22.09.2013 as well as passed in the typing and shorthand test, computer examination as per the terms of clause-5 of the advertisement.

Sri Rajneesh Kumar, learned counsel for O.P.No. 2 submits that all the petitioners along with other candidates have been called for, to appear in the written examination scheduled to take place on 22.09.2013, so no prejudice is caused to them by the said examination, and as the said procedure is within the domain of O.P. No. 2 in accordance with with the terms of advertisement/Rules, hence, the relief as claimed by them at this stage, is premature in view of the law as laid down by Hon'ble the Apex Court in the case of Andhra Pradesh Public Service Commission Vs. Baloji Badhvath and others, 2009 (5) SCC 1 by which the Public Service Commission is free to adopt the procedure for selection in terms of the advertisement, thus, writ petition is liable to be dismissed.

I have heard learned counsel for parties and gone through the record.

The object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favoritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services.

The term 'Recruitment", as is used in Article 309 of the Constitution of India is a comprehensive term and not restricted to its etymological meaning.

'Recruitment/Selection' is said to be just an initial process, which may lead to an eventual appointment in the service, and for recruitment/selection to public employment may take the form of selection or contract. There may or may not exist a pre-existing set of rules for recruitment/selection. In absence of such a rule the recruitment, in whatever method made, are none the less regular.

However, when there are prescribed rules, they should be followed to create a valid and legal relationship. Their infractions do not give any justiciable right. As one of the principal objects of the State is to generate opportunities for employment. Such opportunities must be equally available the mode of direct recruitment by selection from the open employment market following a method of competition among contending candidates. This process of selection by open competition ensures that only the best available candidate are recruited for public process. Competition also checks mal-practice and nepotism to a great extent.

Thus recruitment/selection to any service or post. Competent Authority shall be free to decide upon the mode and methods to be applied for. As long as there is open competition among the eligible candidates following the provisions of the recruitment rules, fairness in recruitment is presumed. Courts and Tribunals would obviously be slow to interfere as it would require details to support an allegations of mala fide. Onus on the person making such allegations is heavy. As held by Hon'ble the Apex Court with the case of State of Andhra Pradesh v V. Sadanandam AIR 1985 SC 2060 that it is exclusively within the domain of the executive to decide upon the mode of recruitment/selection and the category from which the recruitment to a Service should be made. The relevant portion is quoted under:-

"We need only point out that the mode of recruitment/selection and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment/selection or the categories from which the recruitment should be made, as they are matters of policy decision failing exclusively within the purviews of the executive. As already stated, the question of filling up of posts by persons belonging to other local categories or zones is a matter of administrative necessity and exigency. When the Rules provided for such benefits being effected and when the transfer are not assailed on the ground of arbitrariness or discrimination, the policy of transfer adopted by the government cannot be struck down by Tribunal or courts of law."

The Constitution of India provides for establishment of the Union Public Service Commission and a State Public Service Commission for each of the States. These constitutional bodies have their own jurisdictions clearly earmarked, Generally, their primary function is to conduct written competitive examinations, as well as, viva voce tests for preparation of Select Lists/Panels or meritorious candidate. Besides, they are consulted in all matter relating to public appointments.

The advertisement issued by the Public Service Commission or State Public Service Commission for selection process comprises of several stages. The process initiates with the issuance of the notification for recruitment and ends with the preparation of select list for appointment. Indeed, it contains various steps from notifying vacancies to preparation of list of successful candidates for appointment. Although a candidate does not get indefeasible right until appointed.

Accordingly, it can be said that the recruitment/selection process, the advertisement for recruitment contain various restrictions and contain several instructions. They are deliberately introduced and are not idle formalities. These have otherwise great advantages. Some of them are of substantive nature with potentiality to curb or eliminate chances for malpractice. As selection has always been considered as an administrative function and the administrative authority is regarded the best judge for it. It is the administrative authority that carries out the policy of the State as Public appointments are made to suit the administrator's purpose by appointing those who is considers the best among the available candidates. As long as the function of such authority is within the law, courts will be slow to interfere; rather it has no business to interfere. Court could not assess comparative merits in selection and set aside appointments. The Court does not also function as an appellate forum in selection matters.

In the instant case, as per the facts stated hereinabove, the O.P.No. 2/U.P. Public Service Commission on 03.09.2012 in view clause-1 of the advertisement is entitled to hold competitive examination as per the advertisement dated 03.09.2013 issued by the competent authority to hold competitive examination for General Knowledge and General Hindi and the candidates, so this Court while exercising power of judicial review cannot interfere in the said exercise to be conducted by the O.P.No. 2 as it is settled proposition of law that if a decision is being taken by a selecting body for conducting an exercise in order to select a candidate as per the terms of the advertisement then by way of judicial review there is a very limited scope to interfere in the exercise adopted by the selecting body/ O.P.No. 2 and on very limited grounds, such as, illegality or patent irregularity in the Constitution of the committee or violation of the procedure of selection or established mala fide affecting the selection on the basis of which interference can be made. The said position doe not exist in the present case (See. Dalpat Abasaheb Solunke V (Dr.) BS Mahajan AIR 1990 SC 535). Accordingly, this Court while exercising power of judicial review cannot encroach upon the power of the U.P. Public Service Commission/O.P.No. 2 in respect to procedure adopted by it for the purpose of selection/appointment on the post of Additional Private Secretaries as per the terms of the advertisement by substituting its own views and opinion (See. SL Vohra V. Union of India 1993 (2)SLR 805 and Vijoy Syal V. state of Punjab (2003)9 SCC 401).

So, the relief as claimed by the petitioners to restrain the O.P.No. 2 from conducting competitive written examination in respect to the General Knowledge and General Hindi on 22.09.2013 cannot be granted as the same is as per the notification dated 03.09.2013 and in accordance with the terms of the advertisement specially clause -1 & 5 read with sub-clause-8 of Clause-11 and as per the law laid down by Honble the Apex Court in the case of Andhra Pradesh Public Service Commission Vs. Baloji Badhvath and others, 2009 (5) SCC 1, held as under:-

"Para No. 25 - How the Commission would judge the merit of the candidates is its function. Unless the procedure adopted by it is held to be arbitrary or against the known principles of fair play, the superior courts would not ordinarily interfere therewith. The State framed Rules in the light of the decision of the High Court in S. Jafeer Saheb (supra). Per se, it did not commit any illegality. The correctness of the said decision, as noticed hereinbefore, is not in question having attained finality. The matter, however, would be different if the said rules per se are found to be violative of Article 16 of the Constitution of India. Nobody has any fundamental right to be appointed in terms of Article 16 of the Constitution of India. It merely provides for a right to be considered therefor. A procedure evolved for laying down the mode and manner for consideration of such a right can be interfered with only when it is arbitrary, discriminatory or wholly unfair."

Further, in the case of A.P. Public Service Commission, Hyderabad and Another Vs. B. Sarat Chandra and others (1990) 2 SCC 669 while interpreting the Hon'ble Apex Court held as under:-

"If the word 'selection' is understood ion a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences,anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment.

In the case of Ashok Kumar Sonkar Vs. Union of India and others (2007) 4 SCC 54 Hon'ble the Apex Court in paragraph 14 at page 63 (relevant portion quoted is held as under) :

"A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for application constituted a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been rejected at the inception itself."

Accordingly, keeping in view the law as laid down by Hon'ble the Apex Court in the case of B. Sarat Chandra (Supra) and Ashok Kumar Sonkar(Supra) there is no legal impediment or any infringement of the terms of the advertisement on the part of U.P. Public Service Commission/O.P.No. 2 in conducting the written examination to be held on 22.09.2013 for General Knowledge and General Hindi, when admittedly all the petitioners are allowed to appear in the said examination and no prejudice is caused to the petitioners on the part of O.P.No. 2 for conducting the written examination on 22.09.2013.

For the foregoing reasons, writ petition lacks merit and is dismissed.

No order as to costs.

Order Date :- 20.09.2013

Ravi/