Allahabad High Court
Dr. Atiya Khan vs State Of U.P. Thru Prin.Secy. ... on 3 April, 2019
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?A.F.R.
Court No. - 23
Case :- SERVICE SINGLE No. - 8548 of 2019
Petitioner :- Dr. Atiya Khan
Respondent :- State Of U.P. Thru Prin.Secy. Chikitsa Shiksha Unani & Anr.
Counsel for Petitioner :- Ram Raj
Counsel for Respondent :- C.S.C.,Ashok Shukla
Hon'ble Rajesh Singh Chauhan,J.
Dr. Atiya Khan, petitioner, is present in person and she has submitted that since there is date fixed for interview on 5.4.2019, therefore, the matter may be heard today itself.
Since the Advocates of this Court are boycotting the judicial proceedings, therefore, the petitioner is appearing in person.
The grievance of the petitioner which compelled her to file the instant writ petition is that the petitioner has applied for the post of Lecturer Tahaffuzi Wa Samaji Tib in Government Unani Medical Colleges of U.P. (General Recruitment) pursuant to the Advertisement No. 01/2018-2019 dated 18.5.2018, being qualified person but the candidature of the petitioner was not considered and she has not been called for an interview and no formal information / letter of rejection of her candidature has been provided to her.
Sri Ashok Shukla, learned counsel for the opposite party no. 2 had filed counter affidavit on behalf of opposite party no. 2 on 2.4.2019, the same is taken on record.
Yesterday, the matter was heard at length and Sri Ashok Shukla had sought time to seek instructions in the matter as to whether the petitioner may be permitted to appear in interview or not.
On the basis of instructions Sri Ashok Shukla, learned counsel had submitted yesterday that if the Court pleases to direct the opposite party no. 2 for permitting the petitioner for the interview, the said order may be passed but that order may be confined for the petitioner only. Since this matter was taken up yesterday in the second round at about 4.15 P.M., therefore, no order could be passed and the matter was listed for today.
Considering the grievance of the petitioner and also considering the fact that the date of interview for the post of Lecturer Tahaffuzi Wa Samaji Tib in Government Unani Medical Colleges of U.P. (General Recruitment) is scheduled for April 05, 2019, therefore, the order protecting the interest of the petitioner is being passed.
The brief facts of the case is that pursuant to the Advertisement No. 01/2018-2019 dated 18.5.2018, issued by the U.P. Public Service Commission the petitioner had applied for the post of Lecturer Tahaffuzi Wa Samaji Tib in Government Unani Medical Colleges of U.P. (General Recruitment) as the petitioner was fully qualified and eligible having both essential qualifications and preferential qualifications.
Learned counsel for the petitioner has drawn attention of this Court towards Annexure no. 3 which is the U.P. Public Service Commission (Procedure & Conduct of Business) Rules, 2011 referring Rule 31(iv) and (v) which are being reproduced herein below:
"(iv) A rejection memo shall be sent to the candidates stating the reasons for rejection either through mail or through Commission's website;
(v) The candidate may file appeal against the memo of rejection imperatively before the date of examination or interview, as the case may be, and the same would be decided expeditiously by the committee of members constituted for the purpose. Subject to the final decision in the appeal, the Commission may allow the candidate to appear at the examination or the interview, as the case may be, provisionally during the pendency of the appeal"
The perusal of Rule 31(iv) categorically provides that if the candidature of the candidate is rejected, the rejection memo shall be sent to the candidate stating the reasons for rejection either through mail or through commission's website, meaning thereby the candidate has right to be informed the reasons for rejection. Since sub Rule (v) of Rule 31 provides about the appeal against the memo of rejection, therefore, this is more the reason the candidate should be intimated / apprised the reasons for rejection so that she could file appeal.
On being confronted Sri Ashok Shukla has submitted that the petitioner has however, not been apprised in writing about her rejection of candidature but the list of candidates who have been declared eligible for interview has been uploaded on the website, therefore, it would be deemed that the candidature of the petitioner has been rejected.
Since there is a statutory prescription under the Rules that the rejection memo should be provided to the candidate stating the reasons for rejection, therefore, the rejection memo must have been provided to the candidate so that the reason of rejection could be known to him or her and statutory appeal can be filed, if so adviced. Admittedly, the rejection memo has not been provided to the petitioner.
It is trite law that if there is a statutory prescription of appeal, the right of appeal of a person cannot be denied in any manner whatsoever. In the present case since the petitioner has admittedly not been served the memo of rejection in terms of Rule 31(iv), therefore, she could have not assailed the memo of rejection by filing appeal under Rule 31(v). This is absolutely impermissible under the law as this inaction is arbitrary and unwarranted. The Hon'ble Apex Court in re: A.R. Antulay vs. R.S. Nayak & Another, reported in (1988) 2 SCC 602 has held that deprivation of the statutory right of appeal would amount to denial of Procedure established by the law.
Since Sri Ashok Shukla has sought instructions in the matter and apprised the Court as stated above, therefore, this matter may be decided finally at the admission stage as learned counsel for the opposite parties have no objection to that effect.
Accordingly the opposite party no. 2 i.e. U.P. Public Service Commission, Prayagraj, through its Secretary is directed to permit the petitioner to appear in the interview for the post of Lecturer Tahaffuzi Wa Samaji Tib in Government Unani Medical Colleges of U.P. (General Recruitment) which is scheduled on 5.4.2019.
Since the petitioner has approached this Court for redressal of her grievance, therefore, the benefit of this order would be confined only for the petitioner.
Writ petition is allowed accordingly.
Sri Ashok Shukla, learned counsel for the U.P. Public Service Commission, opposite party no. 2 will intimate the order to the opposite party no. 2 today itself in writing even without getting the certified copy of this order.
Order Date :- 3.4.2019
Om
[Rajesh Singh Chauhan, J.]
