Allahabad High Court
Dr. Atiya Khan vs State Of U.P. Thru. Prin.Secy. Chikitsa ... on 29 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 1357
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 16 Case :- SERVICE SINGLE No. - 12987 of 2021 Petitioner :- Dr. Atiya Khan Respondent :- State Of U.P. Thru. Prin.Secy. Chikitsa Shiksha Ayush & Anr. Counsel for Petitioner :- Ram Raj,Rishabh Raj Counsel for Respondent :- C.S.C.,Ashok Shukla Hon'ble Alok Mathur,J.
1. Heard Sri Ram Raj and Sri Rishabh Raj, learned counsels for the petitioner as well as learned Additional Chief Standing Counsel for the State respondents and Sri R.K. Upadhyay, learned counsel appearing on behalf of Uttar Pradesh Public Service Commission, through video conferencing in view of COVID-19 pandemic.
2. Present writ petition has been preferred seeking direction to respondent no. 2/U.P. Public Service Commission (hereinafter referred to as "the Commission") to permit the petitioner to appear in the interview for the post of Lecturer Tahaffuzi wa Samaji Tib, S-11/10 (hereinafter referred to as "the post of Lecturer") in Government Unani Medical Colleges of U.P. (General recruitment), which is scheduled for 01.07.2021.
3. It has been submitted by learned counsel for the petitioner that she fulfills all the essential academic qualification including preferential qualification and is therefore eligible to be appointed on the post of Lecturer Tahaffuzi wa Samaji Tib. The advertisement to the aforesaid post was published by the Commission on 24.09.2019, whereby applications were invited by the eligible candidates to be appointed on the post of Lecturer. In pursuance to the aforesaid advertisement, the petitioner submitted her on-line application on 06.10.2019 and after submission of on-line application, the petitioner also submitted certified copies of the documents pertaining to her essential academic qualifications before the prescribed cut-off date. Grievance of the petitioner is that despite fulfilling all the conditions and being fully eligible for the post of Lecturer she has not received call letter for interview and the interview for the said post which is scheduled for 1st July, 2021 and hence present writ petition, seeking suitable direction to call the petitioner for interview.
4. This writ petition was listed on 28.06.2021, and on which date the Court has directed learned counsel for respondent no. 2 to disclose the reason for not calling the petitioner for interview. Today, when the case is taken up, it has been submitted by Sri Upadhyay that letter dated 28.06.2021, rejection order in this regard, has been uploaded on the official web site of the Commission. The letter says that the petitioner has not been called for interview because she has not secured minimum marks has have been fixed by the Commission, which is 69.14%.
5. While opposing the prayer made by the petitioner, learned counsel for respondent no. 2 has stated that in the light of Uttar Pradesh Public Service Commission (Procedure and Conduct of Business) Rules, 2011 (hereinafter referred to as "the Rules, 2011"), the petitioner has efficacious remedy of filing an appeal against the rejection order and therefore the writ petition deserves to be dismissed on the ground of alternative remedy.
6. Learned counsel for the petitioner on the other hand has submitted that order/letter dated 28.06.2021 has been uploaded on the website of the Commission only in pursuance to the directions given by this Court seeking explanation and reasons from respondent no. 2 for not calling the petitioner for interview. Counsel for the petitioner further submits that there is provision of appeal as per Rule 31(iv) of the Rules, 2011 provides that :
"31(iv) A rejection shall be sent to the candidates stating the reasons for rejection either through mail or through Commission's website; provided that an information regarding rejection of an application, as shown on the web-site of the Commission with regard to any examinations including preliminary examination or Screening test of such examination, shall be deemed to be a rejection - memo for the purposes of this rule and publication thereof on the website shall be deemed as if the rejection-memo has been properly served upon the applicant concerned."
7. Learned counsel for the petitioner next submits that respondent no. 2 has not complied with the Rule 31(iv) of the Rules, 2011 inasmuch as the petitioner has not received any rejection memo giving reasons for rejection and submits that the appeal could have been filed by her only after receiving reasons for rejection of her application, which has been communicated to her only during the hearing of this case and also that there is insufficient time to file the appeal as the interview is fixed for 01.07.2021.
8. Sri R.K. Upadhyay, learned counsel for respondent no. 2, fairly concedes that no rejection order has been sent to the petitioner, but Rule 31(iv) of Rules, 2011 itself provides that in case the applicant is not called for interview, his/her candidature would have been deemed to be rejected in pursuance to Rule 31(iv) of the Rules, 2011.
9. Heard learned counsel for the parties and perused the record.
10. From the perusal of writ petition it is clear that the petitioner was fully qualified and eligible for the post of Lecturer and she had duly applied for the same in pursuance to he advertisement published by respondent no. 2. The sole grievance of the petitioner is that despite being fully qualified for being appointed on the post of Lecturer, she has not been called for interview and therefore she should be permitted to appear in the interview in question which are scheduled for 1st July, 2021.
11. The Rules, 2011 clearly provide that in case a candidate is not called for interview then in pursuance to the Clause (iv) of Rule 31, a rejection memo has to be sent to the candidate either through email or through the Commission's website. The said rule further provides that an information regarding rejection of an application with regard to the examination/interview, shall be deemed to be the rejection memo for the purposes of filing an appeal and publication thereof on the website shall be deemed as rejection memo, purportedly served on the petitioner.
12. In the present case, the respondent no. 2 has framed rules for conduct of its business, a perusal of which clearly demonstrates that due opportunity of hearing has been provided to a candidate who is aggrieved by the action of the Commission rejecting his/her application/candidature. Body such as the Public Service Commission which undertakes large scale recruitments on behalf of the Government Agencies, are required to function in fair and transparent manner so that their actions demonstrate fairness and reasonableness in their functions. The Rules are also to be interpreted in such a manner that they promote objects of the Commission.
13. In rule 31(iv) of Rules, 2011 it is provided that rejection of candidature has to be communicated to the candidate through e-mail, then this Court see no reason as to why this provision is not complied with in the present case and this Court also noticed that on the earlier occasion when the petitioner has approached this Court (Writ Petition No. 8548 (S/S) of 2019 - Dr. Atiya Khan Vs. State of U.P. and Another) also the orders of rejection of candidature were not communicated to the petitioner. In the present case, it is only when this Court required the learned Standing Counsel to communicate the reasons for rejection of candidature/not calling the petitioner for interview, only then the order was uploaded on the website of the Commission i.e. on 28.06.2021.
14. Sri Ram Raj, learned counsel for the petitioner has also submitted that list of candidates who were called for interview was uploaded on the website of the Commission on 16.06.2021 and submits that it is only on 16.06.2021 the decision has also been taken for rejecting the candidature of the petitioner and since then, despite the Commission having ample time and opportunity chose not to communicate the rejection order to the petitioner and now the submission is being made at the Bar that before the date of the interview the petitioner is free to submit her appeal.
15. In the facts of the present case, it is seen that the stand of the Commission is totally unreasonable and arbitrary and no reason is forthcoming as to why rejection order of the petitioner was not up loaded prior to 28.06.2021.
16. Perusal of the aforesaid provisions makes it clear that the order of rejection has to be communicated to the concerned candidate. It is only after receipt of the rejection order or publication of the same on the website containing reasons for rejection, it forms the basis of appeal which can be preferred by the aggrieved candidate before the date of examination/interview before the Committee constituted for the purpose.
17. Further Rule 31(v) of the Rules, 2011 provides that a candidate may file appeal against the memo of rejection imperatively before the date of examination or interview, as the case may be, and the same would be decided expeditiously by the committee of members constituted for the purpose. Subject to the final decision in the appeal, the Commission may allow the candidate to appear at the examination or the interview, as the case may be, provisionally during the pendency of the appeal.
18. On the conjoint reading of clause (iv) and (v) of rule 31 of Rules, 2011, it is clear that it is open for the Commission to reject candidature of a candidate. The rule further provides that publishing list of successful candidates it would have been deemed to be a rejection of the other candidates. Clause (v) provides appeal for the aggrieved candidates which shall be filed before the date of examination or interview as the case may be and in case such an appeal is filed same is to be decided by the committee of members constituted for the purpose and it also provides that the Commission may allow the candidate to appear at the examination/interview, as the case may be, provisionally, during the pendency of the appeal.
19. If the reasons are not communicated to the aggrieved candidate by means of rejection memo, then provision of appeal would be an empty formality and it will serve no purpose in absence of reasons of rejection. It is the reasons of rejection of the candidature which form the basis of the appeal, and in absence of the grounds of rejection, no appeal can be conceived. Therefore, it is clear that principles of natural justice require that reasons of rejection of candidature of a candidate have to be either clearly provided to him or should be clearly discernible from the order which is uploaded on the website of the Commission.
20. In the present case, it is has been clearly stated on behalf of respondent no. 2 that the petitioner could not be called for interview in the light of the fact that she does not have required cut-off marks so that she could be called for the said interview which are fixed by the Commission at 69.14%.
21. It is without doubt that for whatever reasons candidature of a candidate has been rejected, can be subjected to appeal, provision for which has been made in the Rules, 2011. It has also been clearly stated by the petitioner that she would avail remedy of appeal, but purportedly respondent no. 2 has not communicated the order to her in a reasonable time and therefore, the petitioner should be given sufficient time to prefer an appeal. Admittedly, the petitioner was not aware of the rejection order dated 28.06.2021, prior to today's hearing.
22. Looking to the aforesaid facts, the parties agree that one week time is required to be given to gather information and filing an appeal before the competent authority.
23. The petitioner has also drawn attention of this Court to the earlier order of this Court dated 03.04.2019 (Writ Petition No. 8548 (S/S) of 2019). This Judgment was passed in the matter of the petitioner herself in a clearly identical circumstances. Earlier when candidature of the petitioner was rejected and in absence of any order of rejection she had approached this Court. In the said order also the Court had examined various statutory provisions with regard to appeal and as an interim measure allowed the petitioner to appear in the interview.
24. The respondent no. 2 having not supplied the rejection order to the petitioner within time, the Commission certainly disabled her from preferring an appeal within time so that the same could have been decided before the interview and therefore in the facts and circumstances of the present case, intervention of this Court is required under Article 226 of the Constitution of India, otherwise the petitioner will be deprived from fair opportunity to participate in the selection process.
25. In the light of the arguments advanced by learned counsel for the parties herein above, the present writ petition is being disposed of with the following directions :
(i) In the light of the fact that the rejection order has been passed only on 28.06.2019, seven days time from today is granted to her to file an appeal before the appellate authority.
(ii) Looking into the fact that interview are scheduled on 1st July, 2021, and the appeal cannot be decided before that date, therefore, the petitioner shall be entitled to appear in the interview provisionally, and respondent no. 2 is directed to allow her to participate in the interview. The result of the interview shall be subject to the outcome of the appeal preferred by the petitioner.
(iii) Respondent no. 2 is directed to consider and decide the appeal preferred by the petitioner expeditiously, in accordance with law and communicate the decision to the petitioner.
(iv) Result of the interview shall be published only after decision of the appeal preferred by the petitioner.
26. It is made clear that this Court has not entered into the merits of the case and reason for rejection of the candidature of the petitioner and that respondent no. 2 is free to proceed in accordance with law subject to the directions given herein above.
27. With aforesaid directions, the writ petition stands disposed of.
28. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by her alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
29. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 29.6.2021/A. Verma (Alok Mathur, J.)