Arvind Kumar And 3 Others vs State Of U.P. And 3 Others
2022 Latest Caselaw 22 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 71
 

 
Case :- WRIT - A No. - 17530 of 2021
 
Petitioner :- Arvind Kumar And 3 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ankur Sharma
 
Counsel for Respondent :- C.S.C.,A.S.G.I.,Siddharth Singhal
 

 
Hon'ble Ajit Kumar,J.

1. Heard Sri Ankur Sharma, learned counsel for the petitioners, Sri Siddharth Singhal, learned counsel for the respondent No.- 4 and learned Standing Counsel for the respondent Nos. 1 & 2 through video conferencing. Nobody is present on behalf of the respondent No.3.

2. The petitioners who are four in number, are before this Court seeking a writ of certiorari to quash the notification issued by the respondent No.4, namely, U.P. Subordinate Service Selection Commission, impleaded through its Secretary, dated 11th November, 2021 whereby the applicants under the Advertisement No.- 20(07)/2015 and 16(04)/2016 have been directed to apply for appearing in the written examination for selection and appointment to the post of Instructors that are 559 and 293 respectively under the advertisements, to be filled in.

3. The petitioners who have applied against two advertisements respectively, have questioned the notification on the ground that at the time of advertisements in the year 2015 and 2016 prescribing last date for submission of applications as 24th November, 2015 and 21st December, 2016 respectively, the rules in existence were The Uttar Pradesh Industrial Training Institutes (Instructors) Service Rules, 2014 (hereinafter referred as 'Service Rules, 2014') and according to these rules, selection had to be made on the basis of credentials, academic records of the candidates and walk-in-interview.

4. In this regard, he has placed reliance upon sub-rule (3) and (4) of Rule 16 of the Service Rules, 2014. He submits that the selection process had already begun way back in the year 2015 and selection and appointment against two vacancies of Instrument Mechanic and Embroidery in needle work had already been made and the selection process in respect of the remaining 850 (557+293) had remained to be completed. However, in the meantime, Uttar Pradesh Direct Recruitment to Junior Level Posts (Discontinuation of Interview) Rules, 2017 (hereinafter referred to as 'Recruitment Rules, 2017') came to be framed by the Governor in exercise of power under the proviso to Article 309 of the Constitution of India and which provided that interview prescribed in the selection procedure in the relevant service rules of the State would be discontinued and wherever the recruitment process prescribed for interview only, such selection would now be made on the basis of the written examination only.

5. Learned counsel for the petitioner has submitted that these rules saved the selection process in respect of the advertisement already issued prior to coming into force of these rules vide Clause (d) of Rule 4 of Recruitment Rules, 2017. However, the respondent No.- 4 created confusion and that too for no justifiable reasons by seeking guidance from the Director, Training and Employment Government of U.P. Lucknow that approval be sought from the State Government for holding written examination in respect of the vacancies already advertised and in respect of which selection was yet to be accomplished.

6. This letter was written on 5th June, 2020 by the Secretary of respondent No.4, however, the Director in his wisdom correctly appreciated the matter and made recommendation to the Chief Secretary (Vocational Education and Craft Development Department), Government of U.P, Lucknow that any change in the method of selection qua posts already advertised out of which selection and recommendation in respect of two such advertised posts have already been made, would complicate things and would lead to disputes. The Secretary on 30th July, 2021 wrote to the Selection Board that recruitment had to be made strictly in accordance with Recruitment Rules, 2017.

7. Learned counsel for the petitioner has further submitted that there was nothing in the order of the Secretary to direct for written examination in respect of the vacancies already advertised and for which the selection process was still on and yet the respondent No.- 4 proceeded to issue notification for holding written examination in respect of the advertisement of the year 2015 and 2016 and, therefore, the notification dated 28th November, 2016 is absolutely unsustainable in law.

8. He submits that once the Government has decided that the recruitment has to be made in accordance with Recruitment Rules, 2017 and Recruitment Rules, 2017 saved already advertised vacancies in respect of which selection process was underway, the respondent No.-4 transgressed its authority in directing for written examination for the selection process. He submits that this notification is de hors the Recruitment Rules, 2017. Additionally, he submits that every rule unless it postulates its retrospective application by express means, no Government order or notification by the selecting body, can make the rules effective retrospectively.

9. `Per contra, Sri Siddharth Singhal, learned counsel appearing for the respondent No.4 tried to defend the notification on the ground that the Government intended the ongoing selection process to abide by the Recruitment Rules, 2017 which prescribed for written examination and that is why in its letter dated 3rd November, 2021 the Special Secretary, Government of U.P. prescribed for 100 marks for the written examination. He submits that the Commission was left with no other option but to issue notification impugned here in this petition inviting applications from the candidates for written examination. However, he could not dispute the factum of selection and appointment against two posts of Instrument Mechanic and Embroidery in needle work respectively which were part of the same advertisement. He could also not dispute that the selection process had started with the invitation of the applications and for which last date was prescribed as 20th November, 2015 and 21st December, 2016 respectively under the two advertisements.

10. On a pointed query being made refering to the relevant clause (d) of Rule 4 of the Recruitment Rules, 2017, he could not dispute the same and merely argued that it will all depend upon the interpretation of the said provision. However, he would admit at the same time that Recruitment Rules, 2017 have not been made retrospective in its effect.

11. Learned Standing Counsel submitted that the letter issued by the Special Secretary dated 3rd November, 2021 cannot be construed in any manner to be directing to the respondent No.- 4 to hold the on going selection process pursuant to the advertisement of the year 2015 and 2016 by applying the method of the written examination. He would submit that clause (b) of Rule 4 provides similar number of marks for the written examination as prescribed for interview under the Recruitment Rules, 2017 in the event of selection being done doing away with the procedure of interview and replacing the same by written examination. However, he could not demonstrate that Recruitment Rules, 2017 in any manner can be said to have any retrospective operation inasmuch as he could not dispute the provision as contained in clause (d) of Rule 4 to be a saving clause in respect of the advertisements where the selection process in pursuance thereof if already underway at the time when the Recruitment Rules, 2017 came into force.

12. Having heard learned counsel for the respective parties and having gone through the records of the case, I find that sustainability of the notification impugned, depends only upon the interpretation of Recruitment Rules, 2017. It is admitted to the parties that the posts in question were advertised in the year 2015 and 2016 respectively inviting applications fixing last date as 24th November, 2015 and 21st December, 2016 and thus the process of selection started. It is also admitted to the parties that out of various posts advertised, in respect of two posts of Instrument Mechanic and Embroidery in needle work selection had already been done in the past and recommendations had been made to the department concerned for appointment in the past and the final selection process in respect of the remaining vacancies were underway.

13. It is in this above background of the facts of the case, I proceed to examine the relevant recruitment rules so as to form a final view qua sustainability of the notification issued by the respondent No.4, impugned in this petition.

14. Prior to the coming into force of the Recruitment Rules, 2017, there was a procedure only for walk-in-interview under the Service Rules, 2014. Part V of the Service Rules, 2014 prescribes for procedure for recruitment and the relevant rules are sub-rule (3), (4) and (5) of Rule 16 which are reproduced hereunder:-

"(3) In making selection for direct recruitment, the merit list of the eligible candidates shall be prepared in the following manner:-

(a) For academic qualifications prescribed for the post, the marks shall be awarded to each candidate in the following manner:

(i) Fifty percent of the percentage of marks secured in the High School Examination shall be given to each candidate.

(ii) Twenty percent of the percentage of marks secured in the National Trade Certificate Test/ National Apprenticeship Certificate Test shall be given to each candidate,

or

Twenty percent of the percentage of marks secured in Diploma or Degree Examination shall be given to each candidate.

(iii) Fifteen percent of the percentage of the marks secured in CITS/ POT test shall be given to each candidate.

(b) (i) After the results of the evaluations under clause (a) have been received and tabulated, the Section Committee shall hold an interview. If the applications received are large in numbers, then in such situation the number of candidates to be called for interview shall be four times the number of vacancies. For this purpose the merit list of candidates shall be prepared separately on the basis of aggregate of marks obtained by them under clause (a).

(ii) The interview shall carry one hundred marks. Fifteen percent of the marks obtained at the interview shall be given to each candidate."

(4). The marks obtained by each candidate under clause (a) of sub-rule (3) shall be added to the marks obtained by him under clause (b) of sub-rule (3). The final select list shall be prepared on the basis of aggregate of marks so arrived. If two or ore candidates obtain equal marks in the aggregate, the candidate obtaining higher marks under clause (a) of sub-rule (3) shall be placed higher in the select list. In case two or more candidates obtain equal marks under clause (a) of sub-rule (3) also, the candidate senior in age shall be placed higher in the select list.

(5) The select list referred to in sub-rule (4) shall be forwarded to the appointing authority."

(emphasis added)

15. Rule 17 of Service Rules, 2014 provides for appointment, probation, confirmation and seniority under part VI of the Service Rules, 2014. Rule 17(1) that deals with appointment is important for the purpose of this case and is reproduced hereunder:-

"17.(1) Subject to the provisions of sub-rule (3) of this rule, the appointing authority shall make appointment by taking the names of candidates in the order in which they stand in the list prepared under rule 16."

16. Upon bare reading of these rules quoted above, it is clear that a select list has to be prepared under sub-rule 4 in order of merit of the candidates on the basis of marks secured by them under various heads of sub-rule 3 and marks obtained in the interview, shall be forwarded to the appointing authority. The appointing authority shall act upon the select list in the order of merit prepared and forwarded under Rule 16. Thus, there was no procedure prescribed under the Service Rules, 2014 for holding any written examination for making recruitment to the post of instructors.

17. Exercising power under the proviso to Article 309 of the Constitution of India, the Governor has been pleased to frame another rule, namely, Uttar Pradesh Direct Recruitment to Junior Level Posts (Discontinuation of Interview) Rules, 2017 giving it an overriding effect upon all the existing rules of recruitment to the posts in the departments of State Government by virtue of Rule 2 of the Recruitment Rules, 2017. Rule 4 of Recruitment Rules, 2017 deals with discontinuation of the procedure of interview in making direct recruitment to the junior level posts in the Government. Admittedly, the posts in question do fall in the category of junior level posts. For proper appreciation Rule 4 of the Recruitment Rules, 2017 is reproduced hereunder in its entirety:-

"4. Discontinuation of Interview in making direct recruitment to junior level posts - The provisions of interview prescribed in the selection procedure in the relevant service rules in making direct recruitment to junior level posts shall stand discontinued, and upon such discontinuation-

(a) Where the procedure for direct recruitment to a junior level posts is prescribed on the basis of interview only, such selection shall be made on the basis of written examination only.

(b) Where separate marks are prescribed for written test and interview in the selection procedure, the marks for interview shall be included in the marks prescribed for written examination. In case there is no provision for written examination, the marks prescribed for interview shall be presumed as the marks prescribed for written examination.

(c) For selection to the posts where skill test or technical examination is required, the marks prescribed for such test/ examination shall be only qualifying in nature and such marks shall not be counted in the over all selection procedure.

(d) If prior to commencement of these rules, the advertisement for selection to any junior level post has been made and the selection process is on going, such selection shall remain unaffected and shall be made in accordance with the advertisement issued in this behalf.

(e) If in special circumstances, the Administrative Department of the Government finds a justification to prescribe the interview for selection to a particular junior level post, the Administrative Department will submit the appropriate proposal to the Personnel Department of the Government, which will take a well considered decision on such proposal."

(emphasis added)

18. From a bare reading of the aforesaid rules, it becomes quite explicit that in the event advertisement has already been made prior to the commencement of these Rules for selection to any junior level posts and the selection process is going on, such selection shall remain unaffected and shall be governed by the advertisement issued in that behalf.

19. Thus, clause (d) of Rule 4 of Recruitment Rules, 2017 saves the advertisement and selection process pursuant thereto, if already issued and makes the rule 4 of Recruitment Rules, 2017 prospective in nature.

20. The golden rule of interpretation is that words have to be interpreted in the manner they have been framed in the phrase and in my considered view there cannot be any other view in interpreting clause (d) of Rule 4 so as to hold it applicable to even ongoing selection process.

21. Now, the question would be as to when the selection process begins with the issuance of advertisement, or with the issuance of call letter for interview.

22. The legal position as it stands today, the selection process starts with the invitation of applications under an advertisement in which the last date is prescribed for. It is not the case of the respondents that the dates prescribed for as a last date for submission of application forms under the advertisements, were further extended and the case is instead that in respect of two posts selection was already concluded and recommendations were made for appointment. That being the situation, the respondents cannot take the plea that the process of selection had not already begun.

23. It would be worth referring here certain authorities of Supreme Court of India in the above regard. In the case of A.P. Public Service Commission, Hyderabad and others v. B. Sarat Chandra and others reported in (1990) 2 SCC 669, the Andhra Pradesh Services Tribunal though held the process of Selection to have started with the advertisement as applications were invited but there being various steps in the selection process, the essence of process would lie in the preparation of select list and thus held that the eligibility would be taken to be on the date of preparation of select list. The Supreme Court reversed the judgment of the Tribunal by holding that selection cannot be understood in a sense of final act of preparation of selecting candidates with preparation of the list for appointment. The Court though was dealing with the date of eligibility in that case but held that selection consisted of various steps like inviting applications, scrutiny of applications, rejection of defective applications, conducting examinations, calling for interview and preparation of list of selected candidates for appointment and it was observed that Rule 3 of procedure of the Public Service Commission, Andhra Pradesh was also indicative of that. In the case in hand I also find Rule 16 of the Service Rules, 2014, laying down such procedure and thus it is right to hold that selection process in this case also began with the invitation of applications by issuing advertisements in the year 2015 and 2016 in respect of posts advertised thereunder. In the case of N.T. Devin Kutti and others v. Karnataka Public Service Commission and others; (1990) 3 SCC 157, the Supreme Court has clearly held that selection process starts with the advertisement and the selection of candidates is to be made in accordance with the existing Rules and Government order applicable on that date. The rights of the candidates crystallize on the date of publication of the advertisement. The process of selection ends with the appointment. Again in a very recent decision in the case Dheeraj Mor v. Hon'ble High Court of Delhi reported in (2020) 7 SCC 401, it was clearly held that selection process begins with advertisement, inviting applications form the eligible candidates.

24. Yet another argument advanced by learned counsel for the petitioner is that once the rules of game are finally set and game is on, rules of the game cannot be changed.

25. I find merit in the above submission. Besides the saving clause 4(d) of the Recruitment Rules, 2017, the Selecting Body has to abide by the procedure prescribed for under the advertisement and the relevant rules then in existence.

26. In my above view, I find support in the Full Bench judgment of this Court in the case of Prashant Kumar Katiyar v. State of U.P. and others reported in 2013 (1) ESC 221. In that case vacancies had been intimated to the Selection Board for the purposes of notification under the relevant Act and the Rules and the Board had issued advertisement inviting applications. By calling/ approving applications of transfer of a teacher at the instance of management, it sought to alter vacancy position of institutions. The issue was whether the selection Board could have altered the vacancies to upset the procedure already set forth. Vide paragraph 39 of the judgment the Full Bench has held thus:-

"39. To our mind, the function of the management and the District Inspector of Schools, therefore, has to follow this procedure and it is trite law that if a statute requires a thing to be done in a particular manner then it should be done in that manner alone and not otherwise. The procedure under the Act and Rules is mandatory and it has to be done in that manner alone. Reference be had to Para 20 and 23 of the division bench judgment in the case of Km. Poonam v. State of U.P. 2008 (3) AWC Pg. 2852 and to Para 24 of the decision in the case of U.P. Secondary Education Service Selection Board Vs. State of U.P. 2011 (3) ADJ Pg. 340. The rules have been framed consciously by making a provision of limited alteration in the determination by adding to the vacancies on account of any fresh occurrence during the year of recruitment itself. Thus impliedly no power has been conferred for altering the vacancies already determined and intimated to the Board for the purpose of notification under the Act and Rules. The requisition to fill up the vacancies after having sent to the Board therefore becomes unalterable as the Board proceeds with the advertisement under Rule 12 by publishing the vacancy in accordance with reservation rules and in accordance with the subject-wise and group-wise vacancies against which appointments are to be made inviting applications from candidates giving their preference of the institution which choice has to be indicated by the candidate. At this stage, to upset the procedure after advertisement by giving any further leverage would be to disturb the entire process of selection and if such a concession is given, the management can indulge into motivated manipulations which are not uncommon and give rise to uncalled for controversies ending up in litigation."

27. Although in view of the above the impugned notification is liable to be quashed but still further I would examine the right of a Selecting Body, respondent No.-4 in this case, as something has been argued in defence of the notification issued in its behalf changing the procedure of selection.

28. The argument of the learned counsel for the respondent No.- 4 is that the letter dated 3rd November, 2021 issued by Secretary would be taken to be a direction to the respondent No.- 4 to hold written examination and so the consequential notification and unless and until the said order is questioned, the consequential order cannot be questioned. I find no merit in this submission. Firstly, I would observe that when the recruitment Rules, 2017 clearly saved the on going selection process pursuant to an advertisement already made, it was not open for the respondent No.- 4 to have passed resolution requesting the Director, Training and Employment U.P., Lucknow for his opinion. The respondent No. 4 is merely a selecting body and not the appointing authority. The respondent No.- 4 being selecting body has to hold selection as the recruitment rules prescribe for. It is an admitted fact to the respondent No.- 4 that when advertisements were made in the year 2015 and 2016 respectively the Service Rules, 2014 provided only for walk-in-interview as procedure for selection and preparation of select list on the basis of marks obtained under different heads of credentials and academic records of the candidates and finally in the interview. The recruitment Rules, 2017 that came to be framed and enforced to do away with the requirement of interview and replace the same by written examination/ test, did save the selection process already underway and, therefore, it was a complete misadventure on the part of the respondent No.- 4 to have written a letter to the Director, Training and Employment, U.P. Lucknow on 5th June, 2020. The Director, Training and Employment , U.P. Lucknow rightly wrote a letter to the Chief Secretary that any deviation in the procedure of selection pursuant to which selection in respect of two vacancies had already been done and recommendations had been made, would lead to disputes and so the Director also wrote to the respondent No.- 4 on 30th July, 2020 to proceed as per the Recruitment Rules, 2017 as admittedly these rules saved the ongoing selection process.

29. It appears that some further letter was written by the respondent No.- 4 to the Government on 22nd October, 2021, however, copy thereof has not been placed on record but in reply to that letter, an order has come to be passed by the Special Secretary, Government of U.P., Lucknow on 3rd November, 2021 directing the respondent No.- 4 to hold the selection by prescribing curriculum for written examination and allocation of marks in respect thereof. Why the respondent No.- 4 has not brought its letter dated 22nd October, 2021 on record is best known to it, but the argument advanced by learned counsel for the petitioner is correct that the letter dated 3rd November, 2021 does not refer to any advertisement number or date in respect of which curriculum for written examination has been prescribed for and, therefore, this cannot be read to mean that Government decided to hold written examination replacing the interview procedure in respect of the selection pursuant to the advertisements in question made prior to coming into force of Recruitment Rules, 2017. Thus, exercising power as a selecting body, the respondent No.- 4 had no authority to change the rule of procedure in the mid of selection process.

30. Thus for what has been discussed and observed above in this judgment, I am not able to sustain the notification dated 11th November, 2021 whereby written examination has been prescribed to replace the procedure of interview in respect of the selection and appointment to the vacancies advertised in the year 2015 and 2016 vide advertisement Nos.- 20(4)/ 2015 and 16(4)/ 2016 respectively.

31. I further find that the notification is based more upon the resolution of the Selection Commission dated 28th January, 2020 than the letter dated 3rd November, 2021 issued by the Chief Secretary.

32. In my considered view the selecting body does not have its right to alter the procedure for selection than what is prescribed under the relevant Service Rules, 2014 and Recruitment Rules, 2017. Since I have already interpreted both the rules, I am not able to sustain resolution passed by U.P. Subordinate Selection Commission dated 28th January, 2020 and same is hereby quashed as quashing of the notification dated 11th November, 2021 would result in revival of another illegal resolution of the Commission dated 28th January, 2020.

33. Insofar as 3rd November, 2021 order of the State Government is concerned since it only refers to some letter of Selection Commission which has not been brought on record and so it is hereby provided that in the event it relates to the selection pursuant to the advertisements in question, the same shall also stand quashed to that extent.

34. The writ petition thus succeeds and stands allowed as indicated above. However, further directions is issued to the Selection Commission to conclude the selection process strictly in accordance with law and as per the Service Rules, 2014 as expeditiously as possible.

Order Date :- 12.1.2022

Atmesh