Champa Patel And 46 Others vs State Of U.P. And 4 Others
2021 Latest Caselaw 3635 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 290 of 2021
 

 
Appellant :- Champa Patel And 46 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- Lalit Kumar Pandey,Radha Kant Ojha (Senior Adv)
 
Counsel for Respondent :- C.S.C.,M.N. Singh
 

 
Hon'ble Manoj Misra,J.

Hon'ble Rohit Ranjan Agarwal,J.

This intra court appeal is preferred against a judgment and order dated 1.2.2021 passed by a learned single Judge in Writ-A No.12212 of 2020 by which the writ petition of the appellants has been dismissed.

The facts giving rise to the instant appeal are as follows: The U.P. Public Service Commission (for short Commission) to fill up vacancies on the post of Staff Nurse Male as well as Female issued an advertisement inviting applications for appearance in the written examination. The petitioners who belong to the female category appeared in the written examination but were not successful as they could not obtain the minimum cut off marks prescribed by the Commission for their category. Assailing fixing of minimum cut off marks by the Commission, a bunch of writ petitions, leading of which was Writ-A No.20016 of 2018 (Sangeeta and 77 others State of U.P. and 4 others), were filed before a Single Judge Bench of this Court on the ground that the Commission exceeded its powers as the concerned service rules do not prescribe that a candidate must obtain minimum marks in the written examination to be considered fit or suitable for appointment. The learned Single Judge, by judgment and order dated 11.12.2018, struck down the requirement of having minimum qualifying marks in the written examination imposed by the Commission and directed the Commission to redraw the final result. Against the order of the learned Single Judge, a Special Appeal No.142 of 2019 was filed by the Commission, which was allowed by a Division Bench of this Court vide judgment and order dated 05th March, 2019. While allowing the special appeal, the Division Bench took the view that the Commission under Rule 15(4) of the Uttar Pradesh Subordinate Nursing (Non Gazetted) (4th Amendment) Rules, 2016 was empowered to recommend such number of candidates as they consider fit for appointment therefore, the Commission was empowered to fix minimum cut off marks for a candidate to have in the written examination to be considered fit for appointment. The Division Bench thus set aside the order of the learned Single Judge and dismissed the writ petitions. Aggrieved by the order of the Division Bench of this Court, the writ petitioners filed Special Leave Petition before the Apex Court. The Apex Court, by order dated 19.07.2019, disposed of the special leave petitions without entering into the merits of the contentions. The operative portion of the order passed by the Apex Court dated 19.07.2019 is extracted below:

"The special leave petitions are disposed of giving liberty to the petitioners to make appropriate representation before the concerned authorities to consider as to whether the petitioners could be treated as a separate class and their case be considered, as petitioners being the contractual employees."

Pursuant to the liberty given by the Apex Court, the writ petitioners (the appellants herein) made representation before the Government. When their representation was not being considered, they filed Writ-A No.2085 of 2020, which was disposed off by order dated 17.02.2020 requiring the Director General, Medical and Health Services Department, U.P. at Lucknow to take a decision on the representation of the writ petitioners dated 09.09.2019 by a speaking order within a specified period.

In compliance of the order of this Court dated 17.02.2020 passed in Writ-A No.2085 of 2020, the Director General, Medical and Health Services, U.P., by his order dated 26.05.2020, rejected the representation of the writ petitioners by stating that the U.P. Subordinate Nursing (Non Gazetted) Service Rules provide no separate quota for Nurses who had worked on contract basis. Aggrieved by the order dated 26.05.2020, the appellants filed Writ-A No.12212 of 2020 which has been dismissed by the learned Single Judge vide impugned judgment and order dated 01.02.2021.

We have heard Sri R.K. Ojha, learned Senior Counsel, assisted by Sri Lalit Kumar Pandey, for the petitioners; learned Standing Counsel for the respondents 1 to 4; and Sri Amol Ranjan, holding brief of Sri M.N. Singh, for the respondent no.5; and have perused the record.

Sri Ojha submitted that the learned Single Judge had not properly addressed the issue raised in the writ petition. He submitted that the writ petitioners (the appellants herein) had vast experience of working as Nurse on contract basis in various medical institutions of the State and, admittedly, a large number of posts of Staff Nurse (Female) lie vacant despite completion of the recruitment exercise therefore, when the Apex Court had given liberty to the writ petitioners to represent their cause to the State Government to consider creation of a separate quota for the Nurses who had worked on contract basis, the State Government was under an obligation to consider the representation and address the issue as to whether creation of such quota would be justified or not. But, the State Government rejected the representation by simply stating that the Rules do not prescribe for any such quota. He submits that under the circumstances the order of the State Government is liable to be set aside and the matter ought to be remitted back to the State Government for fresh consideration of the representation.

Learned counsel for the respondents 1 to 5 submitted that creation of a separate quota for a particular class of candidates or creation of separate category of posts is the policy prerogative of the executive and therefore, to carve out such quota or posts, no mandamus can be issued. They submit that as the service rules do not permit for a quota for appointment of such employees/candidates, the Director General, Medical and Health Services was justified in rejecting the representation of the appellants and, as such, the order passed by the learned Single Judge calls for no interference.

We have given thoughtful consideration to the rival submissions.

It is not in dispute that, as of now, under the Service Rules or Executive instructions issued by the State, there is no quota for Nurses, who had served on contract basis, for appointment as Staff Nurse. The Service Rules do provide for a weightage of 15 marks out of 100 for work experience on contract basis as could be gathered from the substituted Rule 15(3) of the U.P. Subordinate Nursing (Non Gazetted) Service (4th Amendment) Rules, 2016 extracted below:-

"Selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner:-

(a) Written Examination shall carry eighty five marks;

(b) Marks to a person who is working as Staff Nurse on contract basis in the Medical and Health Services Department, Uttar Pradesh shall be awarded in the following manner subject to the maximum of fifteen  marks:-

(i) For the first completed of service on contract basis ............... Three marks.

(ii) For the next and every completed year of service on contract basis .... Three marks for each year.

(c) The marks obtained by each candidate under clause (a) shall, where applicable, be added to the marks obtained under clause (b)."

It is not in dispute that the State had accorded the benefit of 15 marks for such experience but as the petitioners failed to secure minimum cut-off marks in the written examination fixed by the Commission for being considered fit for appointment, the petitioners could not succeed in the recruitment exercise. The challenge laid by the petitioners to fixation of cut-off marks in the written examination has already failed therefore, it appears, the petitioners are seeking a quota for persons who had worked as Staff Nurse on contract basis. But, if, other than weightage for work experience, the Rules do not provide for a quota for recruitment of Staff Nurse who had worked on contract basis in the Medical and Health Services Department, U.P., issuing a direction upon the State to carve out such a quota would impinge on the prerogative of the Government or the Legislature of the day to have a policy of its choice and, therefore, such a direction might not be appropriate save in a situation where such a direction is required to prevent breach of, or enforcement of, any of the fundamental rights guaranteed under Part III of the Constitution of India, which is not the case here. Therefore, in our considered view, the learned Single Judge was justified in dismissing the petition. The appeal is dismissed.

Order Date :- 16.3.2021

AKShukla/-