Allahabad High Court
Robins Kumar Singh vs State Of U P And Another on 14 September, 2021
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 2 1. Case :- WRIT - A No. - 12102 of 2020 Petitioner :- Robins Kumar Singh Respondent :- State Of U P And Another Counsel for Petitioner :- Sriprakash Rai,Mujib Ahmad Siddiqui,Rishi Kant Rai Counsel for Respondent :- C.S.C.,Siddharth Singhal with 2. Case :- WRIT - A No. - 6940 of 2021 Petitioner :- Adarsh Kumar Pandey Respondent :- Uttar Pradesh Subordinate Services Commission And 2 Others Counsel for Petitioner :- Ashok Kumar Tripathi Counsel for Respondent :- C.S.C.,Siddharth Singhal Hon'ble Suneet Kumar,J.
Heard Shri K.S. Kushwaha, along with Sri Mujib Ahmad, learned counsels appearing for the petitioner, Shri Siddharth Singhal, learned counsel appearing for the second respondent and learned standing counsel appearing for the State-respondent.
For the sake of convenience, the facts set out in Writ-A No. 12102 of 2020 is being referred to for deciding both the petitions.
The facts, inter se, parties are not in dispute. The second respondent, Uttar Pradesh Subordinate Service Selection Board, Lucknow1, issued an advertisement No. 03/2016, inviting application from eligible candidates for the post of Village Development Officer, 3133 posts were advertised. As per advertisement, eligible candidates were to appear for written examination, physical efficiency test, followed by interview. The candidates in ratio of 3:1 were to be called for interview i.e. three candidates per post. Petitioner qualified the written examination, physical efficiency test and appeared for interview. The Selection Board declared the final result for the post on 18 July 2018. The select list comprised of 2947 candidates, as against the notified 3133 vacancies. The Commission withheld the result of 116 candidates for several reasons, including, verification of their educational qualification and other documents. It appears that some of the candidates approached this Court in two petitions bearing Writ-A No. 18049 of 2019 (Vivek Kumar Srivastava and 4 others vs. State of U.P. and another) and Writ-A No. 18798 of 2019 (Avesh Kumar and 5 others vs. State of U.P. and another), which came to be disposed of on 26 November 2019, directing the Commission to consider the representation to prepare a revised list on account of 29 posts of the candidate securing marks next to the final cut off marks. It appears that the Commission declared a supplementary select list for 18 post on 26 June 2020. The petitioners found their names in the supplementary select list of the 18 candidates. It appears that Commission did not send the list of selected candidates to the concerned department for issuing appointment letters.
Aggrieved, by the conduct of the second respondent, Commission, petitioners have filed the instant writ petition seeking a direction in the nature of mandamus directing the second respondent, Commission to send the select list of the supplementary result, published on 26 June 2020, for the post of Village Development Officer (General Selection) Examination/2016, to the first respondent, Principal Secretary, Rural Development U.P., at Lucknow. It is further prayed that the first respondent be directed to issue appointment letter to the petitioners, pursuant to the recommendation of the Commission.
The Commission is supporting the case of the petitioners. Learned counsel for the second respondent, submits that against 3133 vacancies, select list in the first instance was declared for 2947 candidates, results of 116 candidates were withheld due to the pending verification pertaining to their documents and qualification. Thereafter, Commission cleared 98 candidates. In respect of 18 candidates, after enquiry and verification, their names was cleared by the Commission in its meeting dated 23 June 2020, and duly notified on the official website of the Commission. In other words, the select list of 18 candidates are as per merit and are eligible for appointment. The second respondent undertakes to forward their names to the Government.
The first respondent has filed counter affidavit sworn by the Joint Secretary, Rural Development, U.P., wherein, the facts have not been disputed but a stand has been taken that after declaration of the final result by the Commission on 6 August 2018, the Commission had no power or authority to have issued the supplementary select list as the process of selection came to an end. There is no provision for declaration/publication of supplementary result or waiting list, hence, supplementary list of 18 candidates, including that of the petitioners declared by the Commission on 26 June 2020 is legally not acceptable.
Para-6 of the counter affidavit is extracted:
"That, it is further respectfully submitted that in compliance of order dated 13.07.2021, passed by this Hon'ble Court the Addl. Chief Secretary, Rural Development, U.P. Sashan filed his personal affidavit, stating therein that after publication of final select list of 2943 candidates, dated 06.08.2018 by the U.P. Subordinate Service Selection Commission said selection process came to an end and as such there is no such provision of declaration/publication of Supplementary result or waiting list hence the supplementary list of 18 candidates, declared by the U.P. Subordinate Service Selection Commission on 26.06.2020 is legally not acceptable. In this regard the answering deponent is also filing the copy of Office Memorandum No. 28/5/80-Ka-04-1999, Lucknow dated 15 November, 1999 issued by Personnel Department of State Government, whereby the State Government has banned on publication of waiting list and in view thereof the Supplementary result declared by the Commission legally not acceptable. For kind perusal of this Hon'ble Court a photo copy of Office Memorandum No. 28/5/80-Ka-04-1999, Lucknow dated 15 November, 1999 issued by Personnel Department of State Government is being filed herewith and marked as Annexure No. C.A.-1 to this affidavit."
In this backdrop, learned Additional Chief Standing Counsel submits that the petitioners are not entitled to seek appointment on the strength of the supplementary select list. There is no provision for preparation of waiting list. In other words, it is sought to be urged that the selection process culminated after the declaration of the select list by the Commission on 6 August 2018. Reliance has been placed on the decisions rendered in Secretary, Kerala Public Service Commission v. Sheeja P.R. and another2 and Ajay Prakash Mishra and others v. State of U.P. and others3.
Submissions fall for consideration.
The Commission has been constituted under the Uttar Pradesh Subordinate Services Selection Commission Act, 20144. Chapter-II of the Act provides for establishment of the Commission. Chapter-III provides for power and duties of the Commission and allocation of business. Section-15 confers upon the Commission powers and duties to prepare guidelines on the matter relating to the method of recruitment; to conduct examinations, hold interview and make selection of candidates; to select and invite experts and to appoint examiners for the purposes of selection; to perform such other duties and exercise such other powers as may be prescribed. Sub-section (2) of Section-15 mandates that the Commission in exercising the powers or performing the duties referred to in Sub section-(1), Commission shall be guided by such rules or regulations as may be made in this behalf. Section-15 reads thus:
15.(1) The Commission shall have the powers and duties -
(a) To prepare guidelines on mattes relating to the method of recruitment;
(b) To conduct examinations, hold interview and make selection of candidates;
(c) To select and invite experts and to appoint examiners for the purposes specified in clause (b);
(d) To perform such other duties and exercise such other powers as may be prescribed.
(2) In exercising the powers or performing the duties referred to in sub-section (1) the Commission shall be guided by such rules or regulations as may be made in this behalf.
Chapter -IV of Selection Commission Act provides for notification of vacancies and appointment. Section-17 mandates that the appointing authority shall determine and intimate to the Commission the number of vacancies to be filled through the Commission during the course of the year of recruitment; the vacancies shall be notified to the Commission in such manner as may be prescribed. Sub section- (2) of Section-18 provides that the Commission shall forward to the appointing authority a list of candidates who are found suitable and the appointing authority shall make appointments from the list so forwarded to it in the order mentioned therein. Section-17 and 18 are extracted:
17. (1) The appointing authority shall determine and intimate to the Commission the number of vacancies to be filled through the Commission during the course of the year of recruitment as also the number of the vacancies to be reserved for the candidates belonging to the Scheduled Castes and the Scheduled Tribes and other categories in accordance with the law for the time being in force in this behalf.
(2) The vacancies shall be notified to the Commission in such manner as may be prescribed.
18. (1) The Commission shall, as soon as possible after the intimation of vacancies under section 17, hold examination or interview or both and prepare in such manner as may be prescribed a list of the candidates who are found suitable.
(2) The list referred to in sub-section (1) shall be forwarded to the appointing authority and the appointing authority shall make appointments from the list so forwarded to it in the order mentioned therein.
The Government in exercise of the powers conferred by the proviso to Article-309 of the Constitution of India, framed the Uttar Pradesh Direct Recruitment To Group ''C' Posts (Mode And Procedure) Rules, 2015. Rule-5 provides the mode of direct recruitment to Group ''C' posts to be made through Commission. Rule-7 mandates the appointing authority to determine and intimate to the Commission in the prescribed Form, the number of vacancies to be filled during the course of the year of recruitment, as also the number of vacancies to be reserved for the various class of candidates. Rule-8 provides the procedure for direct recruitment, the syllabus, marks of written examination/interview and the rules relating thereof shall be such as prescribed by the Commission from time to time with the approval of the Government. Sub rule-(2) of Rule-8 provides the procedure for direct recruitment to be made on the basis of written examination and interview. Clause-(iv) of sub rule-(2) of Rule-8 mandates that the Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. Rule 7 and 8 are extracted:
"7. The appointing authority shall determine and intimate to the Commission, in the prescribed Requisition Form, the number of vacancies to be filled during the course of the year of recruitment, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under rule 6.
8.(1) The procedure for direct recruitment, the syllabus, marks of written examination/interview and the rules relating thereof shall be such as prescribed by the Commission from time to time with the approval of the Government.
(2) When, in accordance with the provisions of sub-rule (1) direct recruitment is to made on the basis of written examination and interview, the following procedure shall be followed:-
(i) Application for permission to appear in the competitiveexamination shall be invited by the Commission in the form published in the advertisement issued by the Commission.
(ii) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.
(iii) After the results of the written examination have been received and tabulated, the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and others under rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.
(iv) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of mark obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. If two or more candidates obtain equal marks in the written examination also, the name of the candidate senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority.
The Guidelines adopted by the Commission in exercise of powers under Section 15 of the Selection Commission Act, for the purposes of the examination, written test, proficiency/physical test and interview that govern the selection process of the posts. Guideline-16 provides for selection procedure. The candidates in ratio of 3:1 are to be invited for interview on qualifying written examination. Guideline-21 provides for preparing the merit list on the strength of the marks obtained in the written examination and proficiency test. Guideline-22 provides for interview. Guideline-23 mandates that after verification of the document and upon satisfying itself, the Commission, thereafter, would declare the select list. Guideline-24 mandates that the select list shall be notified by the Commission and the Secretary of the Commission shall pursue/monitor as to whether the appointment letter to all the candidates notified in the select list has been issued. Paragraphs 16 (1), 21, 22, 23 & 24 of the Guidelines are extracted:
16- p;u izfØ;k ds lEcU/k esa dqN fof'k"V ekeyksa ds ckjs esa ekxZn'kZd fl)kUr %& ¼1½ lkekU; :i ls fyf[kr ijh{kk ds ifj.kke ds vk/kkj ij lk{kkRdkj esa cqyk;s tkus okys vH;fFkZ;kasa dh la[;k miyC/k fjDr inksa dh la[;k dk rhu xquk gksxhA ysfdu ;fn fjDr inksa dh la[;k vR;f/kd gS] rks vk;ksx esa fopkj foe'kZ ds mijkUr lk{kkRdkj esa cqyk;s tkus okys vH;fFkZ;ksa dh la[;k esa ifjorZu fd;k tk ldrk gSA 21- ,sls ekeyksa esa tc p;u fyf[kr ijh{kk rFkk lk{kkRdkj nksuksa ds vkk/kkj ij fd;k tkuk gS%& izR;sd fnu lkk{kkRdkj ds i'pkr izR;sd lk{kkrdkj cksMZ ds v/;{k }kjk vadrkfydk dh lwph ¼ftldh dsoy ,d gh izfr cuk;h tk;sxh½ lfpo dks lhYM fyQkQs esa miyC/k djk;h tk;sxhA xksiu vuqHkkx esa bu lwfp;ksa rFkk fyf[kr ijh{kk ds ifj.kke ds vk/kkj ij lsok fu;ekoyh ds izkfo/kkuksa ds vuqlkj Js"Brk lwph rS;kj dj ;Fkk lEHko mlh dk;Zfnol dks vk;ksx dh cSBd vk;ksftr dj vfUre ifj.kke ij ;Fkkfu;e@fofu;e] v/;{k@vk;ksx dk vuqeksnu izkIr fd;k tk;sxkA 22- lk{kkRdkj ds iwoZ ;fn dksbZ vF;FkhZ 'kSf{kd ;ksX;rk vFkok vuqHko ls lEcfU/kr ewy izek.k~&i=] ijh{k.k gsrq izLrqr ugha dj ikrs gSa rks ,sls vH;fFkZ;ksa dk lk{kkRdkj vkSicfU/kd :i ls fy;k tk ldrk gS] ijUrq blls iwoZ lEcfU/kr lk{kkRdkj cksMZ ds v/;{k dk vuqeksnu izkIr djuk vko';d gksxkA ,sls vH;fFk;ksa ls ;g fyf[kr :i esa fy;k tkuk pkfg, fd og visf{kr ewy izek.k&i= lk{kkRdkj dh frfFk ls fu/kkZfjr vof/k ¼;FkklEHko 15 fnu½ esa izLrqr dj nsaxs vU;Fkk mudk vH;FkZu Lor% lekIr le>k tk;sxkA 23- izR;sd ekeys esa ijh{kk ifj.kke ?kksf"kr djus gsrq vk;ksx dh laLrqfr izkIr djus ls iwoZ lQy vH;fFkZ;ksa ds vH;FkZu ds lEcU/k esa dk;kZy; }kjk iqu% lw{erk ls tkap dh tk;sxhA 24- p;u lEcU/kh laLrqfr;ka lacaf/kr foHkkx@foHkkxksa dks izsf"kr djus ds i'pkr dk;kZy;@lfpo dk ;g drZO; gksxk fd os izdj.k dk vuqJo.k rc rd djrs jgsa tc rd laLrqr fd;s x;s vH;fFkZ;ksa }kjk lacaf/kr in ij dk;ZHkkj xzg.k u dj fy;k tk;sA bl laca/k esa f}okf"kZd ewY;kadu fjiksVZ Hkh izkIr dh tk;sxhA 5 I have perused and carefully gone through the provisions of the Act, Rules framed thereunder, and the Guidelines, with the assistance of the learned counsel for the parties.
The Rules and Guidelines nowhere provide for preparation of wait list. The Commission under the Rules and Guidelines is mandated to recommend a select list for the posts notified by the Government to the Commission. In other words, in the facts of the instant case, 3133 post of Village Development Officer (Group ''C') was sent by the Government to the Commission for initiating the process of selection. The Commission after following the selection procedure recommended 2947 candidates, the result of 116 candidates was withhold pending verification of the documents. Thereafter, 98 were sent to the Government, finally, the list of remaining 18 candidates were duly recommended and notified by the Commission on 26 June 2020. Prior to that it is informed that 70 candidates under the ex-serviceman quota were notified. The total recommended candidates, thus, were equivalent to the notified post 3133 (2947+116+70). The State Government has declined to accept the select list of the candidates notified by the Commission on 26 June 2020, for the reason that the Commission lacks power and authority to issue any supplementary select list. According to the State Government, selection process came to an end after the Commission had notified the select list of 2947 candidates. Reliance has also been placed on the notification dated 15 November 1999 (Annexure CA-1), wherein, it has been provided that there is no provision for preparation of waiting list. The notification pertains to the Public Service Commission, U.P. On specific query, learned counsel appearing for the State fairly submits that the said notification would not apply to the Commission, which is governed under a separate statute.
In any case, it is not in dispute between the parties that there is no provision under the Rules/Guidelines for preparation of waiting list. In other words, the Commission is required to prepare a select list of candidates against the vacancies notified by the State Government to the Commission. In the instant case, 3133 vacancies were notified, though the select list was declared/notified intermittently on three occasions pending verification of the credentials of the withheld candidates. It is not the case of the State that they have declined appointment to all such candidates notified by the Commission after declaration of the select list of 2947 candidates. To put it in other words that the subsequent supplementary select list of withheld candidates was honoured. The final supplementary list of 18 candidates is a part of the withheld candidates to have been cleared by the Commission subsequently. The 18 candidates are part of the same select list and not beyond the notified vacancy. Their result were notified after verification as was the case of other withheld candidates. The State cannot discriminate against the petitioners by taking a plea that the Commission has no power to declare a supplementary select list.
Learned counsel appearing for the State is unable to show either from the Rules or Guidelines that there is any such prohibition restraining the Commission from issuing select list in respect of the post in first instance alone. Thereafter, the Commission, is denuded of its power to process the withheld result of otherwise selected candidates pending verification. The withheld result is not a separate exercise undertaken by the Commission but a part of the same selection process. Merely for the reason that verification was pending would not mean that the withheld candidates were not in the select list declared by the Commission on 18 July 2018.
The expression, ''withheld', would mean, ''refuse to give (something that is due or desired by another)'; ''to hold back; to keep back,' and, ''supplementary' -- ''the result has not been revealed or published.' ''Once certain criteria are fulfilled or certain investigation/enquiry are completed.'6 The objection of the State lacks merit for the reasons that it is not the case of the State Government that the candidates recommended for the post are otherwise not qualified or lack merit. It is admitted that the Commission had withheld result of 116 candidates as their credentials pertaining to their qualification and other documents were under verification. As and when the verification was concluded to the satisfaction of the Commission the supplementary result was declared. Guideline 23 clearly mandates that the office shall minutely re-examine the candidature of each successful candidates before obtaining the approval of the Commission. Guideline 22 confers right upon the Commission to take interview of such candidates ''provisionally' if a candidate is unable to produce original certificates relating to qualification. To put it differently the Commission has a right to withhold the result pending verification of the original certificate relating to qualification. It is also not the case of the State Government that the candidates recommended by the Commission exceed the total number of vacancies notified i.e. 3133. It is also not a case of exhaustion of the select list of recommended candidates but preparation and declaration of the complete select list by the Commission of the notified vacancy pursuant to the same advertisement. The authorities relied upon by the State counsel would not apply to the facts of the instant case. In Sheeja P.R. (supra), the respondent/petitioner, therein, was seeking appointment as his name featured in the supplementary list of reserved candidates prepared by the Commission after exhaustion of the main select list. The Supreme Court held that when the main (select) list exhausted or expired, supplementary list cannot be allowed to operate. In the case of Ajay Prakash Mishra (supra), the petitioners, therein, were seeking appointment on vacant posts that could not be filled as some of the aspirant candidates were found unfit in proficiency physical test or on verification of their documents. The court was of the view that since in the rules there was no provision of wait list, the petitioners cannot claim as a matter of right on the vacant post.
In the case at hand, the proposition of law noted in the cited decisions by the State counsel would not apply. It is not the case of the petitioners and/or the Commission that a wait list was prepared. It is further not the case of the Commission and/or the State that the petitioners are seeking appointment upon exhaustion of the select list of 3133 posts. As per the Commission, 18 candidates are the remaining candidates of the 116 withheld result. Their results were declared after verification of their documents and were otherwise found fit on merit.
Learned counsel for the second respondent informs that the names of the petitioners have been duly forwarded by the Commission on 18 December 2020, it is urged that it is for the concerned department of the State Government to issue appointment letter to the petitioners.
Having due regard to the facts and circumstances of the case, writ petitions are allowed directing the first respondent, Principal Secretary, Rural Development U.P., at Lucknow, to issue appointment letter to the petitioners pursuant to the recommendation dated 26 June 2020 of the Commission for the post of Village Development Officer. It is expected that the appointment letters shall be duly issued within four weeks from the date of filing of this order.
No costs.
Order Date :- 14.9.2021 Mukesh Kr.
(Suneet Kumar,J)