Allahabad High Court
Varun Kumar Singh And Another vs State Of U.P. Thru. Prin. Secy. ... on 9 August, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:52980
Court No. - 20
Case :- WRIT - A No. - 5794 of 2023
Petitioner :- Varun Kumar Singh And Another
Respondent :- State Of U.P. Thru. Prin. Secy. Medical Health Lko. And 3 Others
Counsel for Petitioner :- Dr. Pooja Singh,Digvijay Singh
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Puneet Chandra
Hon'ble Manish Mathur,J.
1. Heard learned counsel for petitioners, learned State Counsel appearing on behalf of opposite parties no.1 and 4, Mr. Gaurav Mehrotra, learned counsel appearing for opposite party no.2 and Mr. Mohit Chandra, Advocate holding brief on behalf of Mr. Puneet Chandra, learned counsel for opposite party no.3.
2. Petition under Article 226 of the Constitution has been filed seeking quashing of a part of advertisement dated 12.07.2023 so far as the PET 2022 examination has been made a mandatory condition for appearing in the recruitment examinations for the post of Optometrist. The various concomitant prayers have also been made.
3. Learned counsel for petitioners submits that the petitioners have been working on the aforesaid post on contractual basis for the past more than 10 years and therefore there is no occasion for the opposite parties to have insisted upon their appearance in the PET examination to be held in the year 2022 for the purposes of selection on a post on which they have already gained sufficient knowledge and experience for the past more than 10 years. It is thus submitted that keeping in view the past experience of petitioners, opposite parties were required to exempt petitioners from appearing in the aforesaid examination.
4. Mr. Gaurav Mehrotra, learned counsel for opposite party has submitted that the aforesaid mandatory provision for appearance in PET examination is in pursuance of Regulation 6 in terms of U.P. Subordinate Services Selection Commission (Procedure and Conduct of Business) Regulation 2015 made under the U.P. Subordinate Services Selection Commission Act which clearly prescribes a preliminary test or examination for screening of candidates and is couched in mandatory terms which the Commission is bound to follow.
5. He has placed reliance on judgment rendered by Coordinate Bench of this Court in the case of Smt. Mridul & Ors. versus State of U.P. and others Writ A No.96 of 2022 in which a similar controversy arose with regard to such exemption and the said petition was dismissed by means of judgment and order dated 04.02.2022 holding that such an exemption cannot be accorded in view of Regulation 6 of the Regulations of 2015. He has also adverted to the Division Bench judgment and order dated 09.03.2022 passed in Special Appeal No.74 of 2022 whereby judgment rendered by learned Single Judge has been upheld.
6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material available on record, it is evident that a similar controversy has already been adjudicated upon by this Court in the case of Smt. Mridul (supra) as upheld in Special Appeal No.74 of 2022. The Division Bench has also adverted to the fact that prescription relating to PET has been prescribed by the State Government that is the employer independently of any decision by the Selection Commission and therefore in view of Rules of 2015 which are statutory in nature, such exemption cannot be directed. The relevant portion of the judgment is as follows:
"From the above discussion, we are unable to agree with the submissions made by learned counsel for appellant-petitioner that prescription for PET in this case is, in any manner, illegal or not in conformity with the Rules. Learned counsel for the appellant-petitioner thereafter submits that the Service Rules regulating the conditions of service of the incumbents to the post in question are governed by the Rules which were framed in the year 2018 whereas the prescription for PET can be found in the Regulations framed in the year 2015, however, in our opinion that itself does not alter the legal position as discussed above and we do not find any force in the said submission as well.
It has thereafter been argued by learned counsel for the appellant-petitioner that the request made by the Department of Medical and Health vide its letter dated 07.07.2021 ought not to have been referred to by the Commission to the Karmik Department.
In our opinion, in the matters relating to all government employees generally and normally the Karmik Department is consulted and if the Commission sought the opinion of the Karmik Department and acted upon the same, no fault can be found in the same. The decision of the Commission not to accede to the request of the Additional Chief Secretary, Medical and Health Department cannot be said to be unlawful for the reason that the request as contained in the letter dated 07.07.2021 has yet to be translated into or drafted in the Service Rules regulating the conditions of service of the incumbents in the post in question.
Had any such prescription been available in the Service Rules as finds mentioned in the request letter dated 07.07.2021, it would not have been open to the Commission to have insisted upon holding the PET. If the State Government in the Department of Medical and Health, is of the opinion that the requirement of PET needs to be dispensed with, unless and until corresponding change and alteration in the Service Rules takes place, the claim of the appellant-petitioner cannot be acceded to."
7. Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is quite evident that prescription for PET examination as a mandatory screening process is mandated in the Regulations of 2015, which have not been challenged in the present petition and without challenge thereto, no exemption as has been sought by petitioners can be granted dehors the rules.
8. The aforesaid Regulations of 2015 also do not permit any exemption being occasioned in favour of such persons who have gained sufficient experience on the said post although on a contractual basis. Since a prayer of mandamus has been sought without adverting to any statutory provisions in favour of petitioners, the relief as prayed for in the petition cannot be granted and the petition as such being devoid of merits is dismissed at the admission stage itself.
Order Date :- 9.8.2023
Subodh/-
