Allahabad High Court

Praveen Kumar And Anr. vs State Of U.P. And 3 Ors. on 11 October, 2018

Bench: Sudhir Agarwal, Ifaqat Ali Khan




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 31.05.2018
 
Delivered on 11.10.2018
 
Court No. - 34
 

 
Case :- WRIT - A No. - 47798 of 2016
 
Petitioner :- Praveen Kumar And Anr.
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Sharad Malviya, Mohd. Iqbal Farooqui
 
Counsel for Respondent :- C.S.C., Abhishek Misra, G.S.D.Misra, Prashant Shukla
 
With
 
Case :- WRIT - A No. - 55978 of 2016
 
Petitioner :- Garima Singh
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Murtuza Ali, Ashok Khare{Sr. Advocate}, Sr. Advocate
 
Counsel for Respondent :- C.S.C., Abhishek Misra
 
With
 
Case :- WRIT - A No. - 59061 of 2016
 
Petitioner :- Sukhdeo Sharma
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Murtuza Ali, Imtiyaj Ali
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ifaqat Ali Khan,J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Sharad Malviya, learned counsel for petitioners, learned Standing Counsel for respondents 1 and 2 and Sri Ramesh Chandra Yadav, Advocate, Sri G.S.D. Mishra, Advocate, Sri C.S.Garg, Advocate, holding brief of Sri Abhishek Mishra, learned counsel for respondents no.3, 4 and 5 in writ petition no.47798 of 2016 (hereinafter referred to as "First Petition"); Sri Murtuza Ali, learned counsel for the petitioner, learned Standing Counsel for respondents 1 and 2 and Sri C.S.Garg, Advocate, holding brief of Sri Abhishek Mishra, Advocate for respondents 3 and 4 in writ petition no.55978 of 2016 (hereinafter referred to as "Second Petition"); and Sri Murtuza Ali, learned counsel for petitioner and learned Standing Counsel for respondents in Writ Petition No.59061 of 2016 (hereinafter referred to as "Third Petition") and perused the record.

2. In the First Petition, Government Order (hereinafter referred to as "G.O.") dated 08.07.2016 has been challenged and a prayer has been made to issue a writ of certiorari for quashing the said G.O. A writ of mandamus has also been prayed restraining respondents from holding interview on 5th and 6th October, 2016 pursuant to interview letters issued by Principal, D.N. Polytechnic, Meerut (hereinafter referred to as "College") for the post of Lecturer (Computer), Lecturer (Civil Engineering) and Lecturer (Biotechnology).

3. In the Second and Third Petitions, petitioners have sought a writ of mandamus commanding respondents to declare result of selection held for the post of Lecturer (Bio-Technology) and Lecturer (Mechanical), pursuant to advertisement no. 1146/2015-16, ignoring G.O. dated 08.07.2016.

4. Though, in the First Petition, issue of reservation has also been raised in pleadings, but, during course of argument, same has not been pressed, since all the vacancies with which we are concerned in these writ petitions, are unreserved.

5. There is another progress in Second and Third Petitions. After holding interview on 04.10.2016, same was cancelled vide order dated 06.10.2016 and, therefore, cancellation order dated 06.10.2016, by seeking amendment in above writ petitions, has also been challenged.

6. Unfortunately, petitioners of Second and Third Petitions have made amendment in prayers of writ petitions by challenging order dated 06.10.2016 and consequential order dated 19.12.2016 and claimed to have filed these orders as Annexures 12 and 13 to writ petition, but, as a matter of fact, there is no such Annexures 12 and 13 to the writ petition and these orders dated 06.10.2016 and 19.12.2016 are not part of writ petitions at all.

7. Since all these writ petitions relate to same advertisement issued by College and all petitioners are aggrieved by same G.O. dated 08.07.2016, therefore, these writ petitions have been heard together and are being decided by this common judgment.

8. Facts, in brief, in respective petitions are being given herein as under :-

9. College published an advertisement no. 1146/2015-16 inviting applications for recruitment to the post of Lecturers in different disciplines. The discipline-wise number of vacancies published in the newspaper are as under :-

Sl. No.

Post (Discipline)

Number of Vacancies

Lecturer (Civil)

Lecturer (Mechanical)

Lecturer (Computer)

Lecturer (Biotechnology)

10. Requisite qualifications, advertised by College, are as under :-

^^vfuok;Z%&

1- bathfu;fjax vFkok izkfof/kdh ds lacaf/kr fo"k; esa 55 izfr'kr vadksa ds lkFk Lukrd mikf/k vFkok ,-,e-vkbZ-bZ- ¼bafM;k½]

2- fgUnh dk KkuA

fVIi.kh& tgka lEcfU/kr fo"k; esa ewy mikf/k ugha nh tkrh gS ;k tgka og mikf/k j[kus okys vH;FkhZ miyC/k u gksa ogkWa oSdfYid ;k fo'ks"k :i esa lacaf/kr fo"k; ds lkFk ewy Lukrd mikf/k ij fopkj fd;k tk;sxkA

vf/kekuh%&

1- lEcfU/kr fo"k; esa LukrdksRrj mikf/kA

2- ,d o"kZ dk vkS|ksfxd vuqHkoA

fVIi.kh%&

[email protected] lgk;rk izkIr laLFkkvksa] lkoZtfud midzeksa vFkok fyfeVsM laxBuksa dk iw.kZdkfyd vuqHko Lohdk;Z gksxkA**

"Essentials:

1. A graduation degree with 55 percent marks in the concerned subject of engineering or technology or AMIE (INDIA) Certification.

2. Knowledge of Hindi

Comments: Where the basic degree is not awarded in the concerned subject or where candidates holding such degrees are not available; basic graduation degree with the concerned subject opted as an optional or special subject shall be considered.

Preferences:

1. Post Graduate degree in the concerned subject.

2. One year of industrial experience.

Comments:

A full-time working experience in government/aided institutions/public enterprises or limited organisations shall be acceptable." (English Translation by Court)

11. Aforesaid advertisement was published in daily newspaper "Dainik Jagaran" dated 20.03.2016. Last date for submission of application forms was 21 days from the date of advertisement, i.e. 10.04.2016. It was also mentioned in the advertisement that recruitment on the aforesaid posts would follow Government Aided U.P. Technical Education Institution Regulations, 1996 (hereinafter referred to as "Regulations, 1996") and relevant G.O. issued from time to time.

12. Pursuant to aforesaid advertisement and qualifications prescribed therein, petitioners applied for respective post, which are given in the form of chart, as under :-

Sl. No.

Writ Petition No.

Name of Petitioner

Qualification

Post for which applied

47798 of 2016

Praveen Kumar

M. Tech.

Lecturer (Computer)

47798 of 2016

Gaurav Singh

B. Tech (Civil Engineering)

Lecturer (Civil Engineering)

55978 of 2016

Garima Singh

M. Tech.

Lecturer (Bio-technology)

59061 of 2016

Sukhdeo Sharma

B. Tech. (Mech. Engineering)

Lecturer (Mech. Engineering)

13. Interview letters were issued to petitioners of First Petition on 15.09.2016 inviting Praveen Kumar for interview on 06.10.2016 and Gaurav Singh on 05.10.2016. Similarly, petitioners of Second and Third Petitions, namely Garima Singh and Sukhdeo Sharma, were issued interview letters dated 15.09.2016 inviting them for interview on 04.10.2016.

14. In the Second and Third Petitions, petitioners have specifically stated that they participated in interview held on 04.10.2016 but result has not been declared. However in the First Petition, neither it is stated nor it is clear, whether petitioners had participated in interview or not.

15. Be that as it may, in all the writ petitions, criteria for selection fixed by respondents is under challenge, therefore, we proceed to examine common issue raised in these writ petitions.

16. Earlier, State Government issued G.O. Dated 21.03.2014 laying down standards for selection by direct recruitment to the post of Principal and Lecturers in Government Aided Polytechnic Institutions; Allotment of marks, in the aforesaid G.O., stated in para 2, reads as under :-

'kSf{kd ;k rduhdh ;ksX;rk;sa] vuqHko ,oa lk{kkRdkj

iz/kkukpk;Z

izoDrk

izkfof/kd

vizkfof/kd

izkfof/kd

vizkfof/kd

gkbZ Ldwy

b.VjehfM,V @ bathfu;fjax fMIyksek

ch0,l0lh0 @ ch0,0

ch0bZ0 @[email protected],0,e0vkbZ0bZ0

,e0,l0lh0 @ ,e0,0

,e0bZ0 @,[email protected],p0Mh0

vuqHko

lk{kkRdkj

;ksx

Educational or Technical Eligibility, Experience and Interview

Principal

Lecturer

Technical

Non-Technical

Technical

Non-Technical

High School

[email protected] in Engineering

[email protected]

B.E. @ [email protected] A.M.I.E.

[email protected]

M.E./M.Tech./Ph.D.

Experience

Interview

Total

(English Translation by Court)

17. Further guidelines were given in para 4 as under :-

^^4& laLFkkvksa esa vH;fFkZ;ksa ds p;u gsrq vU; vko';d fn'kk&funsZ'k fuEuor gSa%&

¼1½ vadksa dk vkcaVu vH;FkhZ }kjk izkIr vadksa ds 10 izfr'kr vad ij fd;k tk;sxk vFkkZr vH;FkhZ ds ;fn gkbZ Ldwy esa 33 izfr'kr vad gSa rks mls 3-3 vad] 55 izfr'kr izkIrkad gSa rks 5-5 vad] 75 izfr'kr izkIrkad gS rks 7-5 vad ,oa 95 izfr'kr izkIrkad gS rks 9-5 vad vkcafVr fd;s tk;saxsA

¼2½ iz/kkukpk;Z @ f'k{kdksa ds in gsrq fu/kkZfjr vuqHko ds vfrfjDr vuqHko j[kus okys vH;FkhZ dks 02 vad izfro"kZ dh nj ls vuqHko ds vad vkcafVr fd;s tk;saxsA mnkgj.kkFkZ & iz/kkukpk;Z ds in ds fy, okafNr vuqHko 10 o"kZ dk gSA ;fn vH;FkhZ 18 o"kZ dk vuqHko j[krk gS rks mlds 06 o"kZ ds vfrfjDr vuqHko ds 02 vad izfro"kZ ds vk/kkj ij 12 vad ns; gksxsaA

¼3½ ljdkjh @ lgk;rk izkIr laLFkkvksa @ laLFkkuksa @ lkoZtfud midzeksa ,oa fyfeVsM laxBuksa esa iw.kZdkfyd lsok dk gh vuqHko Lohdkj gksxk vkSj mldh x.kuk rHkh dh tk;sxh] tc vH;FkhZ fofgr 'kSf{kd vgZrk;sa izkIr dj yh gksaA**

"4. For selection of the candidates in the institutions, other necessary guidelines are as follows:

1. The marks shall be awarded to the candidate at the rate of 10 percent of the marks obtained by him i.e. if any candidate obtains 33 percent marks in High School, he shall be awarded with 3.3 marks; and likewise if he obtains 55 percent marks, he shall be awarded with 5.5 marks; if he obtains 75 percent marks, he shall be awarded with 7.5 marks; and if he obtains 95 percent marks, he shall be awarded with 9.5 marks.

2. Candidates having experience more than what is prescribed for the post of Principals/Teachers shall be awarded with experience marks at the rate of 02 marks per year. For example, the desired experience for the post of Principal is 10 years. If any candidate has 18 years of experience, he shall be awarded with 12 marks at the rate of 02 marks per year on the basis of the additional experience of 06 years.

3. A full-time working experience in government/aided institutions/institutes/public enterprises and limited organisations shall only be accepted, and the same shall only be considered when the candidate has obtained the prescribed educational qualifications."

(English Translation by Court)

18. After advertisement in question, another G.O. was issued on 08.07.2016, wherein some amendment has been made in standards for allotment of marks. Revised standards for allotment of marks read as under :-

'kSf{kd ;k rduhdh ;ksX;rk;sa] vuqHko ,oa lk{kkRdkj

iz/kkukpk;Z

izoDrk

izkfof/kd

vizkfof/kd

izkfof/kd

vizkfof/kd

gkbZ Ldwy

b.VjehfM,V @ bathfu;fjax fMIyksek

ch0,l0lh0 @ ch0,0

ch0bZ0 @[email protected],0,[email protected] ,e0,[email protected],e0,0

,e0bZ0 @,e0Vsd

ih0,p0Mh0

vuqHko

lk{kkRdkj

;ksx

Educational or Technical Eligibility, Experience and Interview

Principal

Lecturer

Technical

Non-Technical

Technical

Non-Technical

High School

Intermediate @Diploma in Engineering

[email protected]

B.E. @ [email protected]/M.S.C./M.A.

[email protected]

Ph.D.

Experience

Interview

Total

(English Translation by Court)

19. There is some variation in allotment of marks in respect of educational qualification for technical and non technical categories, but, issue raised before this Court is confined to variation made in allotment of marks for experience and interview. Earlier 30 marks were provided for experience and 10 for interview, which, as per G.O. dated 08.07.2016, have been changed as 20 marks for experience and 20 for interview.

20. Common ground raised in all these writ petitions is that, aforesaid alteration in standard of selection or criteria of selection, once selection process has commenced and last date of submission of application form has expired, is not permissible as it amounts to change of rules once game has started, which is not permissible in law.

21. Writ petitions have been contested by respondents Director of Technical Education (hereinafter referred to as "D.T.E.") as well as College and both have filed separate counter affidavits.

22. In the first petition, respondents 1 and 2 have filed counter affidavit, which has been sworn by Sri Vimal Keerti Pathak, Assistant Director, D.T.E., U.P. Kanpur.

23. In the counter affidavit filed on behalf of respondents 1 and 2, it is stated that appointments in Colleges of Technical Education are made in accordance with provisions of All-India Council for Technical Education Act, 1987 (hereinafter referred to as "AICTE Act, 1987") read with Rules and Regulations framed thereunder. In exercise of power under Section 10(i) and (v) read with Section 23(1) of AICTE Act, 1987, Regulations have been framed by All India Technical Education Council (hereinafter referred to as "Council") namely All India Council for Technical Education (Career Advancement Scheme (CAS) for the Teachers and other Academic Staff in Technical Institutions)(Diploma) Regulations, 2012 (hereinafter referred to as "Regulations, 2012"). Minimum scores for Academic Performance Indicator (API) for direct recruitment of Teachers in Colleges and Weightages in Selection, to be considered along with other specified eligibility qualifications stipulated in the Regulations, provided in Table II(B) of Regulations, 2012, as under :-

Lecturer/equivalent cadres (State I)

Head of the Department/Workshop Superintendent/equivalent cadres (State 4)

Minimum API Scores

Minimum Qualification as stipulated in these regulations

Consolidated API score requirement of 300 points from Category III of APIs

Selection Committee criteria/weightages

(a) Academic Record and Research Performance (50%)

(a) Academic Background (20%)

(Total Weightages = 100)

(b) Assessment of Domain Knowledge and Teaching Skills (30%)

(b) Research performance based on API score and quality of publications (40%)

(d) Interview performance: (20%)

24. It is also stated that G.O. dated 21.03.2014 provided 10 marks for interview, 30 marks for experience and 10 marks for higher educational qualification. The aforesaid G.O. was amended by G.O. dated 08.07.2016 to bring allotment of marks under various heads, consistent with Regulations, 2012. It is also pointed out that D.T.E. sent three letters dated 18.05.2015, 19.02.2016 and 07.04.2016 requesting Government to reconsider allotment of marks in different heads. In the letter dated 07.04.2016, D.T.E. specifically pointed out that allotment of marks has to be consistent with provisions made by Council, though in the aforesaid G.O., he refers to Regulations, 1996. The claim of petitioners that respondents are bound to hold selection as per marks allocated vide G.O. dated 21.03.2014, which was operating on the date of advertisement dated 20.03.2016 and said allocation of marks cannot be altered by applying G.O. dated 08.07.2016 presupposes that respondents have promised to make selection as per scheme of G.O. dated 21.03.2014 and, therefore, bound to observe the same and not to apply subsequent G.O. dated 08.07.2016. The respondents claim that above contention of petitioners has no basis and patently illegal.

25. In the first petition, respondent 3 has also filed counter affidavit stating that the College is an aided polytechnic institution of State Government. It is regulated by various G.O./Circulars issued by Technical Education Department. At the time of advertisement, G.O. dated 21.03.2014 was holding the field. Before start of selection, G.O. dated 08.07.2016 was issued bringing minor change in the selection in computation of overall marks of 100. 30 marks earlier allotted to experience were reduced to 20 and 10 marks allotted to interview were enhanced to 20. Therefore, selection had to be made as per G.O. dated 08.07.2016 but since an interim order was passed by this Court hence Institution made selection and awarded marks as per G.O. dated 21.03.2014 and therefore, petitioners should have no grievance.

26. In Second Petition, respondents 1 and 2 i.e. State of U.P. and D.T.E have filed counter affidavit sworn by Sri Sadanand Sharma, Head of Department (Pharmacy) in Government Woman Polytechnic, Allahabad. It states that College is a Government Aided Polytechnic Institute and governed by provisions of Uttar Pradesh Pravidhik Shiksha Adhiniyam, 1962 (hereinafter referred to as "UPTE Act, 1962") and Rules and Regulations framed thereunder. It is applicable to Institutions affiliated to Board of Technical Education, U.P. (hereinafter referred to as "Bd.T.E.") which is constituted under Section 3 of UPTE Act, 1962.

27. Functions of Bd.T.E. are provided in Section 12 of UPTE Act, 1962 which read as under :

"12. Functions and duties of the Board- Subject to the provisions of this Act and the rules and regulations mae thereunder, the functions and duties of the Board shall be-

(i) to affiliate institutions and prescribe courses of study and instructions leading to examinations conducted by it;

(ii) to prescribe standards for buildings and equipment of affiliated institutions;

(iii) to prescribe educational qualifications and other standards for the members of staff of affiliated institution;

(iv) to prescribe educational and other qualifications for admission of students to affiliated institutions;

(v) to prescribe the manner of admission of students to affiliated institutions;

(vi) to admit candidates to examinations conducted by it;

(vii) to conduct examinations for promotion from lower to higher classes and also for awarding certificates and diplomas;

(viii) to publish results of examinations conducted by it;

(ix) to grant certificates and diplomas to students who have completed the prescribed courses of study in an affiliated institution and have passed the examinations conducted by it;

(x) to co-operate with other authorities and bodies in such manner and for such purposes as may be necessary for giving effect to the provisions of this Act;

(xi) to advise the State government no co-ordinated development of technical education and training regarding the same.

(xii) to do all other such acts and things as may be necessary for the proper discharge of its functions under this Act or the rules or regulations made thereunder; and

(xiii) to carry out such other duties as may be imposed upon it under this Act or the rules or regulations made thereunder."

28. Bd.T.E. conducted examinations for awarding Certificates and Diplomas. For preparing students for such Certificate and Diplomas, Educational Institutions get affiliation with the Bd.T.E. and in this regard power to frame Rules have been conferred upon State Government under Section 22 of UPTE Act, 1962 while Bd.T.E. has been conferred power to make Regulation under Sections 23 and Bye-laws under Section 24 of UPTE Act, 1962.

29. In exercise of power conferred by Section 23 of UPTE Act, 1962, Bd.T.E. has framed Regulations, 1996 published in U.P. Gazette dated 14th July, 1997. It regulates appointment of teaching and non-teaching staff in affiliated Technical Education Institutions with the Bd.T.E. under UPTE Act, 1962.

30. Schedule A read with Regulations 4 and 23 of Regulation, 1996 provides source for recruitment of teaching and non-teaching cadre in affiliated institutions and Schedule B read with Regulations 7 and 9 provides for qualifications compulsory and preferential for various such posts. As per Regulations, 1996, Appointing Authority of Principal and Teachers is President of Committee of Management of Technical Institute and in respect to others, it is the Principal.

31. There is no regular President of Committee of Management of the College and there is an Officiating President who has initiated recruitment process. This was not found valid by Joint Director, Technical Education, Meerut Region and he submitted report dated 03.10.2016 recommending cancellation of entire process of recruitment. Hence a letter was issued by Director on 06.10.2016 cancelling entire selection and interview held between 04.10.2016 to 06.10.2016. Principal of the College sent a letter dated 13.10.2016 requesting for review of above decision but Director vide letter dated 19.12.2016 has reiterated its decision and communicated the same by letter dated 06.10.2016. Selection Committee is to be presided by President of Committee of Management and since there is no regular President of Committee of Management, Officiating President is not competent to either hold selection or made selection and appointment of Lecturers in the College.

32. In view of above facts and rival submissions, we find that short question, up for consideration, in these writ petitions, is :

"Whether subsequent G.O. dated 08.07.2016 can be said to be a change in criteria of selection and can it be applied to recruitment/selection sought to be made pursuant to advertisement no. 1146/2015-16?"

33. We first proceed to refer conditions published in advertisement. Two important conditions published in advertisement, are:-

^^1- mijksDr inksa dh HkrhZ ds ljdkj ls lgk;rk izkIr m0iz0 izkfof/kd f'k{kk laLFkku fu;ekoyh 1996 ¼vf/klwpuk tqykbZ 1997½ esa fufgr fofu;e ,oa le; le; ij bl laca/k esa tkjh 'kklukns'kksa ds fu;e ykxw gksaxsA

----

8- bl foKkiu ds ek/;e ls HkrhZ ds laca/k esa fdlh fookn dh n'kk esa fu;qfDr izkf/kdkjh dk fu.kZ; vafre gksxkA**

"1. The regulations contained in the Sarkar Se Sahayata Prapt U.P. Pravidhik Siksha Sansthan Niyamawali, 1996 (Government aided UP Technical Education Institutes Rules, 1996) (notified in July 1997) and the rules provided in the government orders issued in this respect from time to time, shall be applicable to the recruitment on the aforesaid posts.

................

8. In case of any dispute regarding the recruitment through this advertisement, the decision of the appointing authority shall be final." (emphasis added)

(English Translation by Court)

34. Besides, in the opening part of advertisement, reference is made only to two G.O. i.e. G.O. No.9/4/2/15/KA-2/2015 dated 28.08.2015 and G.O. No.02/2016/1802/Solah-2-2015-121(E)/ 15 dated 15.01.2016. These two G.Os. are also on record and show that they provide certain guidelines in the matter of application of reservation and not for allocation of marks to candidates. Relevant extract of G.O. dated 28.08.2015 (Annexure 7 to First Petition) reads as under :-

fnukad% 28 vxLr] 2015

fo"k; %& jkT;k/khu yksdlsokvksa vkSj inksa ij vkj{k.k dh x.kuk ds laca/k esaA

egksn;]

'kklu }kjk vuqlwfpr tkfr] vuqlwfpr tutkfr vU; fiNM+k oxZ dks dze'k% 21] 02] 27 izfr'kr ofVZdy vkj{k.k rFkk fodykaxtu] Lora=rk lsukfu;ksa ds vkfJrksa] HkwriwoZ lSfudksa ¼dsoy lewg x ,oa ?k ds inksa ij ½ ,oa efgykvksa ds fy, dze'k% 03] 02] 05 ,oa 20 izfr'kr dk gkfjtksUVy vkj{k.k fu/kkZfjr fd;k x;k gSA

2- 'kklu ds laKku esa dfri; ,sls izdj.k vk;s gSa ftuesa vkjf{kr fjfDr;ksa dh x.kuk fu/kkZfjr izfr'kr ds vk/kkj ij djrs le;] xf.kr ds jkmafMax vkWQ ds fl)kUr ds vk/kkj ij fjfDr;ksa dh x.kuk dh tkrh gSA jkmafMax vkQ ds fl)kUr ds vuqlkj x.kuk djus ij vkjf{kr Js.kh dh fjfDr;kWa] vkjf{kr Js.kh gsrq vuqeU; izfr'kr ls vf/kd gks ldrh gaS] tks fd vkj{k.k fu;eksa ds fo:) gSA 'kklu }kjk fu/kkZfjr vkj{k.k izfr'kr ls vf/kd vkj{k.k iznku fd;k tkuk fof/klEer ugha gSA

3- mi;qZDr n`f"Vxr] lE;d~ fopkjksijkar] ;g fu.kZ; fy;k x;k gS fd vkjf{kr fjfDr;ksa dh x.kuk djrs le; xf.kr ds jkmafMax vkWaQ ds fl)kar dks ugha viuk;k tk;sxk] oju dsoy iw.kkZadksa dks gh laKku esa fy;k tk;sxk rFkk fHkUu ¼QzSD'ku½ dks utjvankt ¼bXuksj½ fd;k tk;sxkA mnkgj.kkFkZ ;fn izfr'kr ds vk/kkj ij vkjf{kr fjfDr;ksa dh la[;k 1-5 vkrh gS] rks dsoy 01 in @ fjfDr vkjf{kr dh tk,xh rFkk blh izdkj vkjf{kr fjfDr;ksa dh la[;k 1-99 vkxf.kr gksus ij Hkh vkjf{kr in @ fjfDr 01 gh gksxhA vFkkZr] fHkUu ¼QzSD'ku½ dks utjvankt ¼bXuksj½ fd;k tk;sxkA

4- vr% vuqjks/k gS fd mi;qZDr izko/kkuksa dk vuqikyu lqfuf'pr djkus dk d"V djsaA

Dated : 28th August, 2015

Sub.: Determination of reservation in public services and posts under the State Government

Sir,

The government has fixed 21, 02, 27 percent vertical reservation for scheduled castes, scheduled tribes and other backward classes respectively; and horizontal reservation of 03, 02, 05 and 20 percent for disabled persons, dependents of freedom fighters, ex-servicemen (only on Group C and D posts) and women respectively.

2. The government has noticed several cases wherein, while reckoning the reserved vacancies on the basis of the fixed percentage, the vacancies are determined on the basis of the mathematical rule of rounding off. On determination with the application of the rule of rounding off, the vacancies for reserved categories may exceed the percentage admissible for reserved category; which is in contravention of the reservation rules. Allowing reservation in excess of the reservation percentage fixed by the government is not lawful.

3. In view of the above, it has been after due consideration decided that while calculating the reserved vacancies, the mathematical rule of rounding off shall not be followed; rather, only the whole number shall be taken into account and the fraction shall be ignored. For example, if the reserved vacancies come to be 1.5 on the basis of percentage, only 01 post/vacancy shall be reserved. Similarly, in case of the reserved vacancies being worked out to be 1.99, the reserved vacancy/post shall be only 01; that is to say, the fraction shall be ignored.

4. Therefore, it is requested to kindly ensure compliance of the aforesaid provisions."

(English Translation by Court)

35. Similarly, G.O. dated 15.01.2016 was issued in furtherance of G.O. dated 28.08.2015 replying following three queries :-

^^1- D;k vuqnkfur @ lgk;rk izkIr bathfu;fjax dkystksa @ cgq/ka/kh laLFkkvksa tks i`Fkd&i`Fkd lkslkbVh ckbykt ds rgr LFkkfir gS] dks ,d bdkbZ ekurs gq, bu laLFkkvksa ds lacaf/kr V~sMksa dks Dyc djrs gq;s vkj{k.k dh x.kuk dh tk;sxhA

2- D;k izR;sd vuqnkfur laLFkk esa fofHkUu V~sMksa esa l`ftr inksa dks Dyc djrs gq;s miyC/k inksa @ fjfDr;ksa ds lkis{k vkj{k.k dh x.kuk dh tk;sxhA

3- lgk;rk izkIr izkfof/kd f'k{k.k laLFkk;sa tks i`Fkd&i`Fkd lkslkbVh :Yl ds vUrxZr iathd`r i`Fkd bdkbZ;ka gS rFkk ftuds in ijLij LFkkukUrj.kh; ugha gSA D;k bu laLFkkvksa esa 'kklukns'k fnukad 26-02-1976 esa mfYyf[kr DyLVj cuk;s tkus ds fu;e ykxw gksaxsA**

"1. Whether the engineering colleges/ multi business institutes on grant/ aid which are established under separate society bye-laws may be treated to be a single unit enabling the trades associated with these institutions to be clubbed so as to quantify reservation?

2. Whether the reservation shall be quantified against the posts/ vacancies available after clubbing of posts created in different trades in every institution on grant?

3. Whether the rules for forming cluster as mentioned in the Government Order dated 26.02.1976 shall be applicable to aided technical education institutions registered under different society rules as separate units and whose posts are not mutually transferable?" (English Translation by Court)

36. The above queries have been replied in para 2 of G.O. dated 15.01.2016 and it says as under :-

^^2- mDr lanHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd 'kklukns'k fnukad 26-02-1976 ds ifjf'k"V&8 esa ^^inksa dk lewghdj.k** ds ifjizs{; esa O;oLFkk mfYyf[kr gSA rn~uqlkj inksa dk lewghdj.k ¼dyLVj½ eq[;r% muds dk;Z] izd`fr] Lrj o osru ds vuqlkj fd;k tkuk gS rFkk ;g Hkh laKku esa ysuk gS fd mDr in vUrLFkkZukUrj.kh; gks ,oa lh/kh HkrhZ gsrq fu/kkZfjr ;ksX;rk Hkh leku gksA mDr lanHkZ esa ;g Li"V fd;k tkrk gS fd izkfof/kd f'k{kk foHkkx ds vUrxZr LFkkfir @ lapkfyr izkfof/kd f'k{k.k laLFkkvksa ds in vUrLFkkZukUrj.kh; ugha gS vksj fofHkUu Vs~Mksa ds inksa dh 'kSf{kd vgZrk Hkh i`Fkd&i`Fkd gSA mDr ds n`f"Vxr bu laLFkkvksa ds inksa dk lewghdj.k fd;k tkuk lehphu ugha gSA vr,o i`Fkd&i`Fkd laLFkk @ bdkbZ ds vUrxZr V~sMokj inksa dh la{;k dks ns[krs gq;s] vkj{k.k izfr'kr ds vuqlkj vkj{k.k vuqeU; gksxkA**

"2. On the aforementioned subject, I am directed to say that provision for "the clustering of the posts" is contained in appendix-8 of the Government Order dated 26.02.1976. Accordingly, the clustering of the posts is to be done, mainly on the basis of their work, nature, level and salary; and also by taking into cognisance that the aforesaid posts are inter-changeable and similar qualifications are prescribed for direct recruitment thereto. In these context, it is made clear that the posts of the Pravidhik Sikshan Santha (Technical Education Institutions) established/run under the Pravidhik Siksha Vibhag (Technical Education Department) are not inter-changeable and educational qualifications prescribed for the posts of various trades are also different. In view of the aforesaid, it is not appropriate to go for the clustering of the posts of these institutions. Hence, considering the number of trade-wise posts under the different institutions/unit, the reservation for such posts shall be granted according to the reservation percentage."

(English Translation by Court)

37. Thus, G.O. dated 28.08.2015 and 15.01.2016, referred to in opening part of advertisement, have nothing to do with controversy in question.

38. In respect of allocation of marks and procedure of selection, advertisement clearly says that provisions of Regulations, 1996 and G.O. issued from time to time shall be made applicable in the matter of recruitment on the posts in question. It nowhere says or suggests that G.O. issued from time to time means those which have already been issued and will not include G.O., if any, issued after advertisement but before selection is made.

39. Learned Senior Counsel for petitioners contended that once recruitment process has started with advertisement, provisions for recruitment as are available on the date of advertisement are to be treated as concretised. Aspiring candidates acquire a vested right to be considered as per the provisions available on the date of advertisement and such vested right cannot be divested by making alteration in the procedure or in the form of a modified procedure issued subsequently. He submits that G.O. dated 21.03.2014 providing allocation of marks in a particular manner, resulted in a vested right to candidates, who had applied pursuant to advertisement in question, and they are entitled to be considered as per aforesaid procedure and any subsequent altered procedure will amount to divesting of such right, and it is not permissible being arbitrary and violative of Article 14 of Constitution.

40. The submission, in our view, is misconceived and unacceptable for more than one reasons.

41. Firstly, advertisement does not contemplate that a particular procedure will be followed. In the matter of procedure and criteria for recruitment, there is no assurance in the advertisement conferring a vested right upon a candidate who has applied pursuant to aforesaid advertisement, to be considered according to that procedure and guidelines and not otherwise.

42. Secondly, advertisement clearly contemplates that direct recruitment, on the post in question, shall be made in accordance with Regulations, 1996 and G.Os. issued from time to time.

43. The words "G.O. issued from time to time" not only contemplates existing G.Os., but, if any G.O. issued even subsequent to advertisement, but, before completion of selection process, can be applied.

44. Moreover, in the matter of allocation of marks, in our view, petitioners did not get a vested right to be governed by G.O. dated 21.03.2014 and cannot claim it a vested right. It is not only misconceived but also misnomer.

45. What is a "vested right" and how it is distinct from "existing right" has been considered by a Constitution Bench in Trimbak Damodhar Rajpurkar Vs. Assaram Hiraman Patil & Ors. AIR 1966 SC 1758 and Court said that there is a distinction between 'existing right' and 'vested right'. If a provision covers all existing rights and is likely to affect future right, it cannot be said that it has affected vested rights.

46. In the matter of qualifications prescribed by University Grants Commission in Regulations (Minimum Qualifications Required for the Appointment And Career Advancement of Teachers in Universities and Institutions affiliated to it) (the third Amendment) Regulation 2009 (hereinafter referred to as "Regulation 2009"), when sought to be amended and changed by subsequent Regulations, and it was argued that earlier qualifications under Regulations accrued in a right resulting in vested right in the candidates, the same was negated by Supreme Court in P. Suseela and others Vs. University Grants Commission and others (2015) 8 SCC 129 by observing :

"A vested right would arise only if any of the Appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the Appellants. At the highest, the Appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the Appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the Appellants is affected, nor does it mean that the Regulation laying down such minimum eligibility condition would be retrospective in operation." (emphasis added)

47. The above discussion shows that manner in which marks shall be allocated in the selection is not to be construed as it is a vested right of a candidate as soon as he applies and therefore it cannot be treated to be a "vested right" and submission otherwise is rejected.

48. In the present case, even otherwise we find no merit in the submission advanced on behalf of petitioners.

49. Admittedly, Polytechnic Institution in question is governed by UPTE Act, 1962 and Rules and Regulations framed thereunder. It is in this context, in the advertisement reference was made to Regulations, 1996 and various Government Orders issued from time to time. Reference made to only Regulations, 1996 without taking into consideration other statutory provisions, which prevail over Provincial legislation is also inconsistent with law. We find that in 1987, Parliament intervened and enacted AICTE Act, 1987.

50. AICTE Act, 1987 is a Central Act regulating, besides other, norms and standards in Technical Education Institutions. The term "Technical Education" and "Technical Institution" are defined in Section 2(g) and (h) of AICTE Act, 1987 and read as under :

"(g) 'Technical education' means programmes of education, research and training in engineering technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other programme or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare.

(h) 'Technical institution' means an institution, not being a University, which offers courses or programmes of technical education and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions."

51. 'Council' means All India Council for Technical Education established under section 3 of AICTE Act, 1987 and its functions are provided in Section 10 of AICTE Act, 1987. Section 10(i) thereof empowers Council to make provisions for qualifications of Staff of Technical Education Institutions. Section 22 of AICTE, Act 1987 confers power upon Central Government to make Rules and under Section 23, Council can make Regulations on the subject mentioned therein.

52. For the present purpose, Section 23 of AICTE Act, 1987 is reproduced as under :

"Power to make regulations.-(1) The Council may, by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act, and the Rules generally to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely :

(a) regulating the meeting of the Council and the procedure for conducting business thereat;

(b) the terms and conditions of service of the officers and employees of the Council;

(d) the area of concern, the constitution, and powers and functions of the Board of Studies;

(e) the region for which the Regional Committee be established and the constitution and functions of such Committee."

53. In exercise of power under Section 23 of AICTE Act, 1987, Regulations 2012 have been framed.

54. AICTE Act, 1987 being subsequent enactment to the extent the field is covered by said statute and Rules and Regulations framed thereunder, the provisions of UPTE Act, 1962 and Rules and Regulations framed thereunder, will have to be subserved and yield. In other words, Parliamentary enactment and Rules and Regulations framed thereunder have to prevail, if there is anything inconsistent with such enactments. We have to examine the matter in the light of above Parliamentary enactment and Regulations framed thereunder.

55. As we have already noticed, Regulations 2012 contemplates allotment of 20 marks for interview and 30 marks for Higher Educational Skill and Experience. Ignoring the aforesaid requirement of Regulation, 2012, in the G.O. dated 21.03.2014, only 10 marks for interview were provided, which was contrary to Regulations, therefore, G.O. dated 21.03.2014 had to yield to the Regulations and interview has to consist of 20 marks. G.O. dated 08.07.2016, providing 20 marks for interview is in conformity with Regulations, 2012 and, therefore, it has to be observed and followed by way of necessity also.

56. Executive Orders i.e. G.O. dated 21.03.2014 has to sub-serve Regulations, 2012 framed under the provisions of AICTE Act, 1987 since being Central enactment it will prevail over any order issued by State Government. It is in this backdrop, we have to hold ultimate selection valid by applying G.O. dated 08.7.2016, which is consistent with Regulations, 2012 so far as allotment of marks for experience and interview are concerned.

57. We may also remind at this stage that if there is an advertisement giving some qualifications or other information, which is not consistent with Rules or Regulations, requirement of Rules and Regulations has to prevail over such advertisement. This issue was considered in Malik Mazhar Sultan Vs. U.P.P.S.C., JT 2006 (4) SC 531 and Court held that in case of discrepancy between relevant provision under which selection is made and conditions actually advertised in the advertisement, it is the relevant provision which shall prevail and not advertisement since advertisement is consequential and dependent upon relevant provisions pursuant whereto it has been issued. The relevant extract of the judgment in Malik Mazhar Sultan (supra) reads as under:

"Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules." (emphasis added)

58. Same view has been taken by a Division Bench of this Court Sanjay Agarwal Vs. State of U.P. and others, 2007(6) ADJ 272.

59. In the present case, G.O. dated 21.03.2014 by itself cannot said to be an advertisement. Since advertisement contemplates compliance of Rules, Regulations and G.Os. issued from time to time, therefore, recruitment has to strictly comply with requirement of statute.

60. The interview marks provided in G.O. dated 08.07.2016 are consistent with Regulations, 2012, therefore, it cannot be said that respondents must hold selection by ignoring G.O. Dated 08.07.2016. If that is allowed, selection would be illegal and contrary to existing statute.

61. It is then pointed out that under Regulations, 30 marks were provided for Experience and Higher Educational Skill, but, in G.O. dated 08.07.2016, only 20 marks have been provided for experience, but, when we compared G.O. dated 08.07.2016 with Regulation, 2012, we find that requirement of Regulations, 2012 i.e. educational skill and experience consisting of aggregate 30 marks has been divided in G.O. dated 08.07.2016 and 10 marks have been provided for higher educational qualification and 20 marks for experience. Therefore, there is substantial compliance of Regulations, 2012, it cannot be said that G.O. dated 08.07.2016, on this count, is contrary to Regulations, 2012.

62. In the above circumstances, since, this Court stayed selection but permitted selection in accordance with procedure ignoring G.O. dated 08.07.2016, therefore, selection, if made on 04.10.2018, ignoring G.O. dated 08.07.2016, it cannot said to be a valid selection, hence, it has rightly been cancelled and warrants no interference.

63. In the result, we find no merit in all the writ petitions. The same are dismissed accordingly.

64. Interim order, if any, stands vacated.

Order Date :- 11.10.2018

sailesh/KA