High Court
Case Details
1 RESERVED Court No. - 3 1. Case :- SPECIAL APPEAL DEFECTIVE No. - 211 of 2020 Appellant :- State Of U.P. Through The Principal Secretary Hathkargha Avam Vastra Udyog Kanpur And 3 Others Respondent :- Nitin Pandey And 81 Others Counsel for Appellant :- Pranab Kumar Ganguli,C.S.C. Counsel for Respondent :- Siddharth Khare With 2. Case :- SPECIAL APPEAL DEFECTIVE No. - 775 of 2021 Appellant :- State Of U.P. And 2 Others Respondent :- Anand Kumar Gupta Counsel for Appellant :- C.S.C. Counsel for Respondent :- Siddharth Khare With 3. Case :- SPECIAL APPEAL DEFECTIVE No. - 970 of 2020 Appellant :- State Of U.P. And 3 Others Respondent :- Praveen Srivastava Counsel for Appellant :- Pranab Kumar Ganguli Counsel for Respondent :- Rajeev Kumar Singh With 4. Case :- SPECIAL APPEAL DEFECTIVE No. - 971 of 2020 Appellant :- State Of U.P. Through Principal Secretary And 3 Others Respondent :- Jai Prakash And 8 Others Counsel for Appellant :- Pranab Kumar Ganguli Counsel for Respondent :- Siddharth Khare With 5. Case :- SPECIAL APPEAL DEFECTIVE No. - 976 of 2020 Appellant :- State Of U.P. Through Principal Secretary And 3 Others Respondent :- Satish Kumar Srivastava And Another Counsel for Appellant :- Pranab Kumar Ganguli Counsel for Respondent :- Mritunjay Mohan Sahai With 2 6. Case :- SPECIAL APPEAL DEFECTIVE No. - 980 of 2020 Appellant :- State Of U.P. And 3 Others Respondent :- Dipika Kannaujia Counsel for Appellant :- Pranab Kumar Ganguli Counsel for Respondent :- Harindra Prasad Hon'ble Surya Prakash Kesarwani,J. Hon'ble Jayant Banerji,J. Heard Sri Ajit Kumar Singh, learned Additional Advocate General, assisted by Sri P.K. Ganguli, learned counsel for the appellant and Sri Ashok Khare, learned Senior Advocate, assisted by Sri Sidharth Khare, learned counsel for the respondent- petitioner. 2. By means of this intra court special appeal, the appellants have challenged the judgement and order dated 19.12.2019 passed by this Court in a bunch of connected writ petitions, whereby, the order dated 28.9.2017 passed by the appellant-respondents, cancelling the entire selection process made pursuant to the advertisement dated 22.1.2015, was quashed. 3. The Advertisement No. 01 of 2014-15 dated 22.1.20151 was issued for recruitment of 152 Group 'C' posts in the Handloom & Textile Department, Uttar Pradesh. The selection process was conducted by the U.P. Subordinate Services Selection Commission2, Lucknow. On an enquiry based on complaints, large scale irregularities were found. It was also found that the Commission had not followed the statutory rules. Accordingly, the order dated 28.9.2017 impugned in the writ petition, was passed, cancelling the entire selection process. 4. It appears from the record that the petitioner-respondents who had applied pursuant to the said advertisement, were called for interview on different dates in the month of June, 2015 and after 1 'said advertisement' 2 Commission 3 the interview, a select list was published by the Commission on different dates pertaining to the respective posts for which the advertisement was issued. The names of the petitioner-respondents were published in the result of the interview. On 18.3.2016, the matter regarding the selection was referred to the State Government which issued a direction on 25.4.2016 for issuing appointment letters to 152 candidates whose documents verification had been completed. Since, in the meantime, a reference made to the State Government regarding the selection was challenged before this Court, the direction of the State Government dated 25.4.2016 was made subject to the decision of this Court. On 24.5.2016, this Court directed the appellant- respondent concerned to comply with the order of the State Government dated 25.4.2016 within three weeks. The appellant- respondent no. 2 intimated the State Government on 6.5.2016 regarding some complaints received and apprised the Government of the fact that the U.P. Procedure for Direct Recruitment for Group C Posts (4th Amendment) Rules, 2014 contemplates holding of written examination but the Commission had proceeded for selection on the basis of interview only. Following further inter- departmental communication, the State Government proceeded to cancel the recommendation of the Commission for selection of 152
Decision
candidates by means of the impugned order in the writ petition dated 28.9.2017 and also cancelled its previous order dated 25.4.2016. 5. The learned Judge noticed the narration of discrepancies in the selection made by the Commission as recorded in the order impugned dated 28.9.2017. The relevant laws were also noticed in the judgement as follows:- “Law as applicable: 9. Before proceedings further it would be necessary to have a glance of the relevant Act, Rules and 4 Regulations applicable at the relevant point of time for the selection and appointment on post of Group ''C'. (i) U.P. Industry Department (Handloom and Textile Industry Directorate) Subordinate Service Rules, 1992 (hereinafter referred to as the 'Rules of 1992') in which only interview was mode prescribed for selection to the abovementioned posts. (ii) Direct Recruitment for Group "C" Posts (Outside the purview of the U.P. Public Service Commission Rules, 2002 (hereinafter referred to as the 'Rules of 2002') issued vide notification dated 29.06.2002. The said Rules were amended by First Amendment Rules, 2003 vide notification dated 21.06.2003. (iii) U.P. Procedure for Direct Recruitment for Group "C" Posts (Fourth Amendment) Rules, 2014 (hereinafter referred to as the 'Rules of 2014') were in existence at the time of advertisement. These amended Rules of 2014 provided in Rule 5 (3) (A) for direct selection on Group ''C' post to be made on basis of written examination and interview both. (iv) U.P. Subordinate Services Selection Commission Act, 2014 (hereinafter referred to as the 'Act of 2014') came into force on 04.12.2014. (v) Vide notification dated 11.05.2015 U.P. Direct Recruitment to Group "C" Posts (Method and Procedure) Rules, 2015 (hereinafter referred to as the 'Rules of 2015') were notified. (vi) U.P. Rules of Business, 1975 ” (emphasis supplied) 6. Regarding the applicability of the relevant statutory provisions with regard to the selection process of the advertisement in question, the learned Judge observed that once the Commission was established under the Act of 2014, it was bound to follow the rules so framed under the Act of 2014 while making the selection and to do away with the earlier procedure prescribed under the various rules and regulations. The learned Judge observed that had the Commission held the interview and prepared the select list 5 before the date of notification of Rules of 2015, which was dated 11.5.2015, then the argument of the State could have been accepted to the extent that Rule 5(3)(A) of Rules of 2014 were applicable and not Rules of 2015, but the Commission after advertisement proceeded to make selection on basis of interview after the notification of Rules of 2015 in the month of June, 2015 and thus, the relevant rule for consideration for selection would be the Rules of 2015 and not the Rules of 2014. The learned Judge observed that the appellant-respondents have identified selection of 47 out of the 152 candidates to suffer from serious procedural irregularities who were clearly identifiable and could be segregated from the list of 152 selected candidates and therefore, the order impugned dated 28.9.2017 was quashed and the appellant-respondents were directed to issue necessary orders for the selected candidates whose candidatures were in accordance with law and the previous order of the State Government dated 25.4.2016 was modified to the extent that the appointment order to be issued to those validly selected candidates excluding those whose forms were not in proper format. 7. The submissions of the Additional Advocate General appearing on behalf of the respondents were as under :- (i) That entire selection process conducted was conducted by the Commission in defiance of the provisions of the Rules of 2014 and the Act of 2014. (ii) Candidates successful in the selection process do not have an indefeasible right to be appointed. The decision to cancel an entire selection process and commence the same afresh must be predicated on a finding that the process was wholly vitiated. (iii) The decision to cancel the entire selection process was not discriminatory and not violation of any fundamental right. (iv) The interference in the decision of the Government in the 6 matters of conduct of selection was unwarranted on the part of the learned Single Judge. (v) It was clearly mentioned in the said advertisement that if the application form is not on prescribed format or incomplete or the signature of the candidate is not put in the application form at prescribed place (Declaration) then the said application form would be cancelled cursorily, but the subordinate service selection commission did not cancel the application forms which were not filled up in the prescribed format and also were without signatures. In this way the Commission had not followed the terms and conditions in the advertisement itself and as such the entire selection process was vitiated. (vi) There were grave irregularities and anomalies in the selections which were made on the basis of interview alone whereas under the provision of Rule 5 (3)(A) of the Rules of 2014, direct selection on group C post was required to be made on the basis of written examination of 40 marks interview for 25 marks. (vii) In view of the irregularities and anomalies in the selection proceedings, appropriate action has been taken in the matter at the level of Directorate and State Government and, accordingly, by the order of the State Government dated 28.09.2017 the earlier letter of the State Government dated 25.04.2016 has been cancelled. (viii). The Vigilance Establishment, U.P. Lucknow, in its preliminary inquiry report, found glaring irregularities in the entire selection process by the Commission for the recruitment of 152 Group "C" Posts in the Department of Handloom and Textiles and also recommended lodging of criminal cases against the erring officials. (ix). The State Government has framed the Rules 2015 exercising power Under Section 2 of the U.P. Act No.20 of 2014, in Rule 8 of 7 which it was provided that Group "C" appointment can either be made by written examination or interview. (x). Inclusion of a candidate in the select list does not give him an indefeasible right to be appointed on the said post. 8. Sri Ashok Khare, learned Senior Advocate for the respondent-petitioners submitted as under :- (i) When the Act of 2014 constituting the Commission was enacted and enforced with effect from 20.06.2014 then the Rules of 2002 as amended by the Rules of 2014 ceased to apply. (ii) As per Section 18 of the Act of 2014, the Commission was free to conduct recruitment and it conducted selection by interview in pursuance of the general decision taken by it. (iii) After constitution of the Commission under the Act of 2014, the Rules of 2002, as amended from time to time, ceased to operate and would have no applicability with respect to the selection process conducted by the Commission under the Act of 2014. (iv) The Commission has carried on the selection process only by interview, on the basis of administrative direction of the State Government and the Rules framed under the Act of 2014. (v) The Rules of 1992 were in existence at the time of the said advertisement. Therefore, the Rules of 1992 were applicable to the selection in question. If it is assumed that the Rules of 1992 were overridden by the Rules of 2002 as amended in 2014, then Clause 6 of the Regulations of 2015 framed under the Act of 2014, providing for selection by interview, shall be applicable. Clause 6 of the Regulations of 2015 provides that the Commission shall make selection of candidates by competitive examination or by interview or by both through objective or other form of tests in accordance with the provisions of the relevant Service Rules/ 8 Regulations. The relevant Service Rules shall be the Rules of 1992 for the purpose of the present controversy which also provides for selection by interview. Therefore, as per Regulations of 2015, selection could be made by interview in terms of the Rules of 1992, which has been done in the present set of facts by the Commission. (vi) The Rules of 2015 shall apply to the recruitment in question inasmuch as it is a procedural one and the selection process was going on as on the date of notification of the Rules of 2015, that is, on 11.05.2015 and accordingly the Regulations of 2015 published on 12.02.2015, shall also apply. 9. Learned Additional Advocate General, in rejoinder has submitted as under:- (i) The petitioners themselves have admitted in paragraph-55 of the writ petition that the Rules of 2015 are not applicable. (ii) The Rules of 2002 as amended by the Rules of 2014 were holding the field as on the date of issuance of advertisement and thus, were applicable. The finding of the learned Single Judge that the Rules of 2015 are applicable and not the Rules of 2014, is wholly erroneous both on facts and in law. 10. The points that arise for consideration are that (i) whether on the date of the said advertisement, were the Rules of 2015 and the Regulations of 2015 in force? (ii) If the answer to the previous point is in the negative, then given the fact that the selection process was held pursuant to the said advertisement, whether the Commission was justified in proceeding to conduct the selection of the candidates on the basis of interview alone? (iii) Under the circumstances, whether the decision of the State Government to cancel the recommendation of the Commission for selection by means of the order dated 28.09.2017 was unwarranted. 9 11. Bearing in mind the fact that the said advertisement for the stated vacancies was issued on 21.01.2015, the law with regard to the applicability of the statutory provisions which are brought anew during the selection process has been crystallized by various decisions of this Court as well as by the Supreme Court. It has been held that the norms or rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect. [A.A. Calton vs. Director of Education & Anr.3, N.T. Devin Katti vs. Karnataka Public Service Commission4, Kulwant Singh & Ors. vs. Dayaram5 and State of Bihar vs. Mithilesh Kumar6]. It has, therefore, to be seen what were the applicable and relevant Rules on 21.01.2015. 12. On the date of the said advertisement, though the Act of 2014 which came into force on 20.06.2014, was in existence, however, it did not repeal the Rules of 2002, as amended from time to time, with the relevant amendment being brought about by the Rules of 2014. It is pertinent to note that it was by means of a notification dated 11.05.2015 that the Rules of 2015 were notified. 13. The said advertisement provided for 16.2.2015 as the last date for acceptance of application forms by the Commission. By the said advertisement, applications were invited for general selection on the stated posts from Indian citizens on the basis of interview. The names of the posts with essential/preferential qualifications, as stated in the said advertisement, were:- S No. Post Name Essential/Desirable Qualifications 1 Master Dyer Essential Qualification- Diploma in Textile Technology or weaving Technology or