Sarvesh Kumar Upadhyay vs State Of U.P.& 6 Ors.
2015 Latest Caselaw 5306 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 1
 
1.	Case :- WRIT - A No. - 61662 of 2013
 
	Petitioner :- Sarvesh Kumar Upadhyay
 
	Respondent :- State Of U.P.& 6 Ors.
 
	Counsel for Petitioner :- Satya Priya Upadhyay
 
	Counsel for Respondent :- C.S.C.,Amit Kumar Singh
 
2.	Case :- WRIT - A No. - 824 of 2014
 
	Petitioner :- Puneet Kumar Singh
 
	Respondent :- State Of U.P. And 7 Others
 
	Counsel for Petitioner :- Dharmendra Srivastava
 
	Counsel for Respondent :- C.S.C.
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Shri Satya Priya Upadhyay, learned counsel for the petitioner and Shri H.C. Pathak, learned Standing Counsel for the State-respondent.

2. These writ petitions have been filed, inter-alia, praying for a writ, order or direction in the nature of certiorari quashing the selection list issued by the respondent no.3 on 21.10.2013 (Annexure No.3 to the writ petition) pursuant to the advertisement dated 9.7.2013 for the recruitment of seven posts of Cook/Kahar. The petitioner has also prayed for a writ, order or direction in the nature of mandamus commanding the respondent no.3 not to issue the appointment letters or not to permit for joining of anyone on the post of Cook/Kahar in pursuance to the Section List dated 21.10.2013.

3. Learned counsel for the petitioner states that the petitioner does not want to file supplementary rejoinder affidavit in reply to the supplementary counter affidavit filed by the respondents.

4. Learned counsel for the petitioner submits that neither any procedure for recruitment of Cook/Kahar was given in the advertisement nor the procedure as provided under the Rules was followed in the selection process. No written examination or test was held by the respondent no.3 on 17.10.2013. The candidates have no knowledge about the procedure or method for recruitment of Cook/Kahar at the time of the advertisement and the interview as well as marks fixed by the selection committee for vocational efficiency test and the interview. The policy of reservation was not properly followed. Out of 100 marks, 90 marks fixed for vocational test and 10 marks fixed for interview, are contrary to the Rule 18 of the Rules. One candidate, namely, Shri Vinod Kumar Yadav was allotted 94 marks while the total marks fixed were 90.

5. Shri H.C. Pathak, learned Standing Counsel submits that the entire selection process was carried in a transparent manner and strictly in accordance with the provisions of U.P. Police Group 'D' Employees Service Rules, 2009 (hereinafter referred to as the 'Rules"). In the advertisement under the heading 'condition for recruitment', all requisite information were disclosed including the applicability of reservation and qualification. In the advertisement, it was specifically mentioned that the recruitment is being held under the U.P. Police Group 'D' Employees Service Rules, 2009. He submits that the vocational efficiency test and interview were held on 17th, 18th, 19th, 20th and 21st October, 2013. Ninety marks were fixed for vocational efficiency test and ten marks were fixed for the interview, which is well in accordance with Rule 18 of the Rules. Total 523 candidates applied but during the course of selection process, only 334 candidates appeared for vocational test and the interview. All the three members separately awarded marks for vocational efficiency test and the interview. One member has awarded 94 marks to the candidate Sri Vinod Kumar Yadav out of 100 marks, which includes the marks obtained in the interview, which cannot be said to suffer from any infirmity. The petitioner participated in the selection process but was unsuccessful. There is no allegation of mala fide or any illegality in the selection process. There is no complaint against the vocational efficiency test or the interview. He, therefore, submits that the entire section was held in accordance with law and in a transparent manner, and therefore, the writ petition deserves to be dismissed. He further submits that since the petitioner has participated in the selection process and after being unsuccessful, he cannot be allowed to turn round and challenge the selection process.

6. I have carefully considered the submissions of the learned counsel for the parties and perused the record.

7. It is wholly undisputed that the advertisement dated 9.7.2013 was published inviting applications for direct recruitment on the post of Cook/Kahar under the provisions of U.P. Police Group 'D' Employees Service Rules, 2009. The petitioner also applied and participated in the selection process. The authorized committee fixed 90 marks for vocational efficiency test and 10 marks for interview, which are in terms of the Rule 18 of the Rules. The record produced by the respondent no.3 also demonstrates that the vocational efficiency test as well as interview were held on 17th, 18th, 19th, 20th and 21st October, 2013. Each candidates have been awarded marks for vocational efficiency test as well as interview, who appeared. Thereafter, the entire merit list was prepared and seven candidates, as per the merit list, were selected after following the policy of reservation. Thus, the entire process of selection does not suffer from any infirmity.

8. The petitioner participated in the selection process without any complaint. There is no allegation of mala fide against the respondents. No material has been brought on record to demonstrate that the selection process was not carried in a transparent manner or in breach of the provisions of the Rules. In the case of Union of India and others vs. S. Vinodh Kumar and others, 2007 (8) SCC 1001, the Hon'ble Supreme Court held as under (Paragraphs 13 to 18):-

13. Even assuming that the appellants should have filled up the unfilled vacancies meant for the reserved category candidates by the general candidates, but then for the said purpose, the general candidates were required to fulfill the eligibility clause including the cut-off marks fixed therefor. Respondents admittedly did not do so. The High Court, in our opinion, committed a serious error in directing the appellants to lower the cut-off marks. The cut-off mark 20 was fixed for the Scheduled Caste and Schedule Tribe candidates. The same was not meant to be applied to the general category candidates. The jurisdiction of the appellants to fix different cut-off marks for different category of candidates has never been questioned and in that view of the matter only because the Railway Board had issued a circular as far back as in the year 1976 to fill up the vacancies by unreserved candidates in the event the reserved category of candidates was not available therefor, in our opinion, the same would not mean that irrespective of the qualification and performance of general category candidates they were entitled to be appointed.

14. It is now a well-settled principle of law that even wait-listed candidates have no legal right to be appointed. (See Ashwani Kumar Singh v. U.P. Public Service Commission2 and State of Rajasthan v. Jagdish Chopra3.).

15. It was for the appellant to decide as to whether the posts were to be dereserved or carried forwarded. (See Rajasthan Public Service Commission v. Harish Kumar Purohit4).

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1. (2007) 8 SCC 100

2. (2003) 11 SCC 584 : 2004 SCC (L&S) 95

3. (2007) 8 SCC 161 : (2007) 10 Scale 470

4. (2003) 5 SCC 480 : 2003 SCC (L&S) 703

16. In any view of the matter, the respondents appeared in a competitive examination. The posts advertised were public posts. They did not have any vested right for appointment. It is well-known that even selected candidates do not have legal right in this behalf. (See Shankarsan Dash v. Union of India5, Asha Kaul v. State of J & K6, All India SC & ST Employees' Assn. v. A Arthur Jeen7, Food Corpn, of India v. Bhanu Lodh8.).

17. In Pitta Naveen Kumar v. Raja Narasaiah Zangiti9 this Court observed: (SCC p.273, para 32)

"The legal position obtaining in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise"

18. It is also well-settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (Munindra Kumar v. Rajiv Govil10.) (See also Rashmi Mishra v. M.P. Public Service Commission11.)

9. In view of the above discussion, I find no merit in the writ petitions.

10. In result, the writ petitions fail and are hereby dismissed. Interim order, granted earlier, stands vacated.

Order Date :- 10.12.2015

Ajeet

(Surya Prakash Kesarwani, J.)

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5. (1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95 : (1991) 2 SCR 567

6. (1993) 2 SCC 573 : SCC (L&S) 637 : (1993) 24 ATC 574

7. (2001) 6 SCC 380 : (2007) 2 SCC (L&S) 362

8. (2005) 3 SCC 618 : 2005 SCC (L&S) 433

9. (2006) 10 SCC 261 : (2007) 1 SCC (L&S) 92

10. (1991) 3 SCC 368 : 1991 SCC (L&S) 1052 : (1991) 16 ATC 928 : AIR 1991 SC 1607

11. (2006) 12 SCC 724 : (2007) 2 SCC (L&S) 345 : (2006) 11 Scale 5