U.P. Public Service Commission ... vs Divya Prakash Mishra And 35 Others
2023 Latest Caselaw 20131 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:154109-DB
 
Court No. - 39
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 1014 of 2021
 

 
Appellant :- U.P. Public Service Commission Allahabad
 
Respondent :- Divya Prakash Mishra And 35 Others
 
Counsel for Appellant :- Avneesh Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saumitra Dayal Singh,J.

Hon'ble Vinod Diwakar,J.

Order on Civil Misc. Delay Condonation Application

1. Heard learned counsel for the applicant and perused the record.

2. Cause shown for delay in filing the present appeal is sufficient.

3. The delay condonation application is allowed. Accordingly, the delay in filing the present appeal is condoned.

Order on Appeal

1. Heard Shri G.K. Singh, learned Senior Counsel assisted by Shri Avneesh Tripathi, learned counsel for the appellant, namely, U.P. Public Service Commission, the recruiting agency (hereinafter referred to as the 'recruiting body'), Shri Rakesh Pande, learned Senior Counsel assisted by Ms. Vishakha Pande and Shri Awdhesh Kumar Upadhyay, learned counsel for the private-respondents as well as Shri Arimardan Singh Rajput, learned Additional Chief Standing Counsel for the State.

2. Present intra-court appeal has been filed by the recruiting body against the order dated 10.8.2021 passed by the learned single judge in a banch of writ petitions of which the lead case was Writ-A No.9614 of 2018 (Divya Prakash Mishra and 32 others Vs. State of U.P. and 3 others). By that order the learned single judge has disposed of the writ petition with the following observation:

"27. Ordinarily this Court would have referred the matter to State Government for grant of age relaxation in terms of Rule 3 of the Rules of 1992 but as this Court has already permitted them to appear provisionally for selection under its interim order and certain petitioners have also secured their selection on the strength of their merits it would be appropriate to direct declaration of their result notwithstanding the fact that they have become overage under the new advertisement. This direction, however, is on the facts of this case and shall not be treated as a precedent in other cases. Respondent Commission is thus directed to declare result of writ petitioners who have appeared against advertisement dated 15.3.2018 and to consider their case for appointment, if they are selected and fulfill other eligibility (except age). Such consideration would be made within a period of two months from today.

28. Writ petitions stand disposed of, accordingly. No order is passed as to costs."

3. In essence, the petitioners before the learned single judge had filed various writ petitions that came to be decided by the common judgment and order impugned in the present appeal. In those writ petitions, the precise case set up by the petitioners was, they were eligible to apply for appointment of Trained Graduate Teachers under the earlier advertisement dated 19.12.2016 and that they had filled up their individual application forms after complying with all the terms and conditions of that advertisement. However, that recruitment was disbanded, midway. While no challenge arose to that action of the respondents to cancel the selection process vide second advertisement dated 2.3.2018, 10768 posts of Trained Graduate Teachers were advertised. It included therein 9342 posts of Trained Graduate Teachers that had been earlier advertised under advertisement dated 19.12.2016. However, occasioned by the prescription of age limit, such petitioners became ineligible to consideration under the fresh/second advertisement dated 15.3.2018. Occasioned by such occurrence, the petitioners (respondents in the present appeal) set up a plea, to be considered for appointment against the original 9342 posts advertised on 19.12.2016, as they retained a right to be allowed to participate under the fresh advertisement.

4. Whatever be the merit of such claim, by interim order dated 11.4.2018 passed in the writ petitions filed by the petitioners-respondents, vide 11.4.2018, it was provided as under:

"Thirty three petitioners are before this Court in the present petition contending that they had applied pursuant to advertisement issued in December, 2016 for recruitment to the post in question and that they possessed the requisite eligibility in terms of the advertisement as well as the Rules then enforced. The State Government has cancelled the recruitment process initiated in 2016. A fresh process is now initiated, in which the petitioners are not eligible as they have crossed the maximum age of 40 years.

Learned counsel for the petitioners places reliance upon Rule 10 of the Rules of 1983 in order to contend that the required age warranted in terms of Rule was above 21 years on the 1st July of the year of recruitment but below 40 years. Submission is that petitioners had a right to be considered for appointment which had been availed by them. Submission is that the State by cancelling the process and thereafter initiating a fresh process cannot be permitted to take away the petitioner's right to be considered for appointment against the vacancy advertised in the year 2016.

Matter was deferred on the previous occasion so as to permit learned Standing Counsel to obtain instructions. Sri P.K. Pandey, learned Additional Chief Standing Counsel has produced the instructions received from the State Government, as per which, it would not be permissible for the petitioners to be considered for the purposes, once they are not found eligible in terms of the advertisement and the Rules.

Submission, in reply, of the petitioners is that this would result in denial of opportunity to the petitioners to apply for the post and would clearly be arbitrary.

Matter requires consideration.

Notice on behalf of respondent Nos.1, 2 and 3 is accepted by Sri P.K. Pandey, learned Additional Chief Standing Counsel whereas Sri Avaneesh Tripathi appears for respondent no.4.

All the respondents may file counter affidavit within three weeks.

Rejoinder affidavit may be filed within one week, thereafter.

List thereafter.

Considering the facts and circumstances noticed above, it is provided as an interim measure that petitioners shall be permitted to apply for the post in question and their claim would not be non-suited merely for the reason that they have become over age. Their candidature, however, shall be subject to outcome of this petition."

5. After exchange of affidavits, the challenge raised by the petitioners-respondents, was negated on merits, inasmuch as the petitioners-respondents were not found to be entitled to claim a surviving right against any of the original 9342 posts advertised under advertisement dated 19.12.2016 as that selection process had been disbanded, it was recognised in the peculiar facts of the present case, that they had a right to claim age relaxation as they were within the age limit on the date of the original advertisement dated 19.12.2016 and they had also made their applications under that advertisement.

6. It is on such consideration of peculiar facts obtaining in the present case that the Court further directed for declaration of the result of the petitioners-respondents as may allow them to be considered for grant of appointment, subject to their overall merit position.

7. Having heard learned counsel for the parties and having perused the record, in the first place, we note that the posts of Trained Graduate Teachers were advertised by the recruiting body at the behest of the State-Government, which is the employer. The State-Government has not filed any special appeal against the judgment and order of the learned single judge, impugned in the present appeal.

8. As to the grounds of challenge being raised by the recruiting body in the present appeal, learned Senior Counsel would contend, if the judgment is allowed to stand, it may lead to disruption of other selections as over aged candidates would claim age relaxation, as a matter of right.

9. In such and another circumstances, as may have been canvassed, on 19.12.2022, the bench hearing the matter on earlier occasion required the State to file affidavit as to the age relaxation. Initially, no compliance was made by the State-Government, to that order. Accordingly, on 20.1.2023, the co-ordinate bench passed the following order:

"On 23.11.2022, following order was passed:-

"This intra court appeal is by U.P. Public Service Commission, Prayagraj which completed the recruitment exercise on the request letter of the Director of Education (Madhyamik), U.P. dated 05.09.2017.

The order impugned in this appeal has been passed on a writ petition filed by such candidates who, as per the advertisement, had crossed the maximum age limit to appear in the recruitment exercise. Argument on behalf of the candidates was that in the past the vacancies notified were withdrawn and those vacancies were later clubbed and re-advertised. By that time, they had crossed the maximum age limit permissible as a result whereof they got no fair opportunity to participate. In these circumstances, they claimed that it was a fit case where age relaxation be accorded as per Uttar Pradesh Public Services (Relaxation of the Age limits for Recruitment) Rules, 1992.

The learned Single Judge, after considering the arguments advanced by both sides and observing that by interim order the candidates were permitted to appear provisionally for selection, disposed off a bunch of writ petitions with the following observations/directions:-

"27. Ordinarily this Court would have referred the matter to State Government for grant of age relaxation in terms of Rule 3 of the Rules of 1992 but as this Court has already permitted them to appear provisionally for selection under its interim order and certain petitioners have also secured their selection on the strength of their merits it would be appropriate to direct declaration of their result notwithstanding the fact that they have become overage under the new advertisement. This direction, however, is on the facts of this case and shall not be treated as a precedent in other cases. Respondent Commission is thus directed to declare result of writ petitioners who have appeared against advertisement dated 15.3.2018 and to consider their case for appointment, if they are selected and fulfill other eligibility (except age). Such consideration would be made within a period of two months from today.

28. Writ petitions stand disposed of, accordingly. No order is passed as to costs."

We notice from the provisions of Uttar Pradesh Public Services (Relaxation of the Age limits for Recruitment) Rules, 1992 that the power to relax the maximum age limit can be exercised by the Governor in favour of a candidate or a class of candidates provided that in the case in which recruitment is made through the Commission, the Commission would have to be consulted before the relaxation is granted.

As the State is the employer and the Commission acts as a recruitment agency on the request made by the State, keeping in mind that there could be relaxation in the maximum age limit by the order of the Governor exercising power under Rule 3 of the 1992 Rules, we deem it appropriate to require the learned Standing Counsel to file an affidavit of an Officer not below of the rank of an Under Secretary of the Department of Secondary Education, Govt. of U.P., Lucknow indicating the stand of the State Government on the issue and whether it proposes to file any appeal against the order of the learned Single Judge because if age relaxation is permissible under the 1992 Rules and the selected candidates are suitable for appointment, the issue need not be agitated in appeal more so when the order impugned clarifies that it shall not be treated as a precedent.

List this matter on 19.12.2022."

Unfortunately, no affidavit, as directed above, has been filed today.

Learned Standing Counsel does not even have his file. Such a situation is not acceptable.

Learned Standing Counsel submits that there may be a fault on the part of his office in communicating the above order and therefore one last opportunity may be given to file affidavit in the light of the order dated 23.11.2022.

List this matter on 06th February, 2023. If, by the next date, the affidavit, as directed above, is not filed, an officer not below the rank of Under Secretary of the department of Secondary Education, Government of U.P., Lucknow shall be personally present in Court along with necessary instructions. If the affidavit is filed by the next date, as directed above, the personal presence of the officer concerned is not required."

10. In compliance to the same, the State-Government has filed affidavit of Mr. Afaq Ahmad, Under Secretary, Secretariat Services, Government of U.P., Lucknow dated 10.2.2023. Besides referring to various rules, no positive or clear statement has been made in that affidavit as to grant of age relaxation. Plainly, the affidavit is evasive and/or bald.

11. Thus, to us it appears, the State-Government has no real objection to grant of age relaxation. However, it has chosen not to make a clear statement as to that. Read together with the conduct of the State-Government in not filing any appeal against the order impugned in the present appeal (filed by the recruiting body), we have been led to believe that the State has no existing objection to age relaxation being granted. At the same time, it has to be recognised that age relaxation had to be granted by the State-Government. In absence of any interim order passed in the present appeal, that action should have been completed, long ago.

12. In such circumstances, upon brief hearing, vide order dated 27.7.2023, we had provided as under:

"1. Upon brief hearing, it transpires, against 10768 posts that was advertised (under the second advertisement), results of all candidates except the respondents herein came to be declared. Therefore, before we take up the matter any further, it is desirable, the learned Additional Chief Standing Counsel may ascertain if there are any vacancies still exiting, he may also find out the status of reservation etc., with respect to such vacancies, if any.

2. Sri G.K.Singh, learned counsel for the petitioner may also require the Commission to make its decision clear, if it has declared the results of any of the respondents herein as also the status of the recommendations made therein.

3. Put up on 02.08.2023 in top ten cases."

13. Today, learned Additional Chief Standing Counsel has placed on record written instructions received by him from the Directorate of Intermediate Education stating that the position of available vacancies is known to the recruiting body. On his part, learned Senior Counsel Shri G.K. Singh has also placed on record written instructions that indicate, against 10768 posts advertised, only 7526 candidates were found to have met the qualifying marks. Therefore, the remaining 3237 posts were returned unfilled. They would be carried forward in the next advertisement to be issued in due course. Against 7526 posts, only 6433 recommendations could be made for appointment to the State-Government on confirmed basis.

14. 34 more recommendations are stated to be conditional, while 48 posts are stated to be still vacant. Further, it has been disclosed, in addition to 3237 posts returned unfilled, 59 more posts have been returned unfilled to the State-Government.

15. As against the above, only 12 of the petitioner-respondents found their names included in the list of successful candidates.

16. It may also not be forgotten, in the meanwhile i.e. during the pendency of the present appeal, various appointment letters have already been issued in favour of the selected candidates, who are not litigants before this Court or in whose cases, the issue of age relaxation was not involved. They were not even party-respondents in the writ petition before the learned single judge. They are not before this Court either, in the present appeal. Therefore, their results may never be disturbed for reason of prayer made by the petitioners-respondents in the present proceedings, irrespective of their merit position inter-se petitioners-respondents.

17. In view of the facts noted above and specially the stand of the State-Government, which does not disclose any objection to grant of one time age relaxation in favour of the petitioners-respondents as may not affect the rights of the other duly selected candidates, we find the apprehension being expressed by the recruiting body that the impugned judgment may act as precedent, is unfounded.

18. Learned single judge has issued directions in favour of grant of age relaxation to the petitioners-respondents only in the peculiar facts of the present case. It had been further observed that this decision would not be allowed to work as precedent in any other matters.

19. In view of the above, we find no good ground exists with the recruiting body to assail the judgment of learned single judge. Being a recruiting body, it was only obligated to carry out the recruitment in accordance with law. The issue of grant of age relaxation never fell in the domain of the recruiting body. That issue was always for the State-Government to consider. Insofar as the direction issued to the State-Government to grant age relaxation has not been disputed by the State and there is no resistance whatsoever to that benefit being granted to the petitioners-respondents, in the peculiar facts of the present case, by any other person, who may have been aggrieved by such direction, we find no justification exists to offer any interference in the present appeal. Accordingly, the present appeal is disposed of with the following direction:

20. Subject to availability of vacancies in the subject, to which the petitioners-respondents, namely, Ravi Kumar, Amarnath Singh, Akhilesh Kumar Singh, Gyanendra Singh, Ashwanee Kumar Rai, Sunita Singh, Renu Yadav, Mahendra Singh, Ram Niwas Singh Yadav, Chanchal Agarwal, Brijesh Kumar Rai are eligible, their names may be recommended by the Commission within a period of four weeks from today. The issue of grant of age relaxation is treated to have been dealt with by the State-Government. Inasmuch as the State-Government has chosen not to challenge the order of the learned single judge and has not taken any contrary stand in the present proceedings, the age relaxation is deemed to have been granted by the State-Government.

Order Date :- 2.8.2023

Anil K. Sharma

(Vinod Diwakar, J.) (S.D. Singh, J.)