Allahabad High Court
Pragati & 16 Others (Inre 2350 S/S 2017) vs Mahendra Veer Vikram Singh & 9 Others on 4 April, 2017
Bench: Amreshwar Pratap Sahi, Sanjay Harkauli
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 145 of 2017 Appellant :- Pragati & 16 Others (Inre 2350 S/S 2017) Respondent :- Mahendra Veer Vikram Singh & 9 Others Counsel for Appellant :- Jitendra Narain Mishra,Vimal Shukla Counsel for Respondent :- C.S.C., Gaurav Mehrotra, Y. K. Mishra AND Case :- SPECIAL APPEAL DEFECTIVE No. - 118 of 2017 Appellant :- Akil Khan & Another 2350(S/S)2017 Respondent :- Mahendra Veer Vikram Singh & Ors. Counsel for Appellant :- Ajay Pratap Singh, Krishna Kumar Singh Counsel for Respondent :- C.S.C, Gaurav Mehrotra, Y K Misra Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Sanjay Harkauli,J.
1. Heard Sri Jitendra Narain Mishra and Sri Ajay Pratap Singh learned counsel for the appellants; Sri Y. K. Mishra, learned counsel for the private respondents as well as Sri Gaurav Mehrotra, learned counsel for the Commission and the learned Standing Counsel for the State.
2. These two appeals have been filed seeking leave to appeal to question the correctness of the judgment of the learned Single Judge dated 14.02.2017, the fallout whereof is directly affecting the appellants, and it is alleged that they having succeeded in the selection process would now be eliminated from the merit list, which is to be prepared under the impugned judgment, inasmuch as, the appellants are now sought to be non-suited on the ground that they do not possess the equivalent qualifications/eligibility criteria as per the Government Order dated 20.12.2003, which requires the registration of such candidates with the U.P. State Medical Faculty, which is a sine-qua-non as per clause 11 of the aforesaid Government Order.
3. The gensis of the dispute as appears from a perusal of the impugned judgment and the facts brought on record appears to be arising out of the equivalence of the qualification and eligibility criteria as prescribed for selection and appointment against the post of a Lab Technician in the departments of Medical and Health Services and the Medical Education and Training, State of U.P.
4. This dispute arose when the Government Order was initially issued on 05.12.2001 and which became subject matter of challenge in writ petition No.700 (S/S) of 2001 (Atul Kumar and another vs. State of U.P. and others). The said writ petition was ultimately allowed on 23.05.2003 and the said communication dated 05.12.2001 was quashed with a direction to the State Government to decide the question of equivalence and eligibility of such candidates to participate in the selection process for the post of Lab Technician before declaring and finalizing the selections.
5. As a consequence of the aforesaid judgment, the matter was deliberated upon and the State Government issued the Government Order dated 20.12.2003. While prescribing the parameters and ingredients of equivalence, the G.O. also imposed an additional condition of registration with the U.P. State Medical Faculty as contained in Clause 11 thereof, which is extracted herein under:
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6. It is undisputed by the learned counsel before us that the said Government Order has neither been upset or reversed or modified and to the contrary a challenge raised to the said Government Order has been upheld in Writ-A No.64102 of 2013 (Shailesh Kumar vs. State of U.P. and others) decided on 25.11.2013, a copy of the said judgment has been placed before us.
7. It appears that advertisements were issued on 08.01.2016 and again on 15.09.2016 for filling up the post of Lab Technicians which is the subject matter of the present appeal. The appellants also applied and claim that they have qualified in the written examination. It is at this stage that a challenge was raised by those persons who had not succeeded and qualified by filing writ petitions that have given rise to these appeals. The writ petitions were entertained without impleading the appellants or any other successful candidates and has been ultimately disposed off by recording a finding that the selection process has proceeded without complying with the terms and conditions as prescribed in the Government Order dated 20.12.2003 and consequently, the entire process has to be revisited and the list of successful candidates rearranged after applying the eligibility conditions prescribed therein.
8. Learned counsel for the appellants contend that this would amount to changing the rules of the game after the game has been played and consequently the learned Single Judge has committed an error in proceeding to issue such directions without there being any such condition imposed in the advertisements under which the selections are being held. It was the specific case of the appellants that this condition was not contained or even indicated in the advertisement and consequently, the directions of the learned Single Judge would be re-defining the advertisement thereby causing prejudice to the appellants. It is also submitted that there was no notice to the appellants about the inclusion of any such term and condition of eligibility nor any opportunity was given to the appellants to even obtain the registration from the U.P. State Medical Faculty. In such circumstances, this would amount to denial of opportunity thereby violating Article 14 and 16 of the Constitution of India.
9. Learned counsel for the appellants, therefore, submit that the impugned judgment cannot be permitted to be applied in relation to such selections that are a consequence of the advertisements dated 08.01.2016 and 15.09.2016. It is urged that the terms of eligibility after the selection is over cannot be altered so as to eliminate the appellants from the select list. It is urged that even though a mere selection cannot give a right of appointment but if the selection procedure is sought to be altered then any subsequent change in eligibility cannot be a ground to eliminate the appellants on the strength of a condition, which was never part of the advertisement on the basis whereof, selections are being held.
10. The contentions on their behalf is that the Government Order dated 20.12.2003 still continues to exist and its applicability has already been upheld by the judgment dated 25.11.2013. In such circumstances, the appellants who are mere qualified candidates of the written examinations cannot claim a right of appointment on the strength of a procedure, which has failed to comply with a compulsory condition of eligibility. It is urged that any lapse in mentioning the terms and conditions of eligibility in the advertisement will not confer a corresponding right on the appellants to claim a right to be selected and appointed. It is, therefore, submitted that the learned Single Judge has not committed any error in proceeding to issue a direction for revisiting the select list.
11. Learned counsel also submits that this was necessary inasmuch as there is an acute shortage of Lab Technicians throughout the State in all Hospitals and, therefore, any interference in the selection process and the appointment would also be a loss for the public at large and hence the learned Single Judge has steered the judgment in a manner that sub-serves the larger public interest as well and consequently, does not deserve any interference.
12. We have considered the aforesaid submissions and after having heard learned counsel for the parties, we find that a selection, which is being held bereft of the compulsory rules of eligibility cannot be said to be a valid selection and consequently, if the selection is sought to be rectified by introducing the said compulsory eligibility criteria, we do not find any error in the direction issued by the learned Single Judge in applying the said eligibility conditions, if it has been deliberately omitted to be mentioned in the advertisement. A mere omission would not alter the terms and conditions of eligibility inasmuch as that by itself would violate Article 16 of the Constitution of India.
13. We are, therefore, of the opinion that the learned Single Judge was fully justified in proceeding to apply the eligibility conditions, the terms whereof have already been upheld by the judicial pronouncement dated 25.11.2013. Admittedly, the challenge raised to the terms and conditions having been upheld by this Court, there is no occasion now to accept the argument that the selections should be allowed to be completed without complying with the provisions of the eligibility as prescribed in the Government Order dated 20.12.2013. We, therefore, uphold the judgment of the learned Single Judge to that extent.
14. Having said so, what appears is that the said judgment has been delivered without putting any other qualified candidates including the appellants to notice and without providing any opportunity to such candidates to avail the facility of registration from the U.P. State Medical Faculty. To this, learned counsel for the respondents submits that after the judgment impugned herein was delivered on 14.02.2017, the appellants were very well aware of the said terms and conditions that were to be applied, more so, after the issuance of notice on 06.03.2017 to the effect that the appellants would not be further eligible to be considered for selection. The appellants having failed to avail of this intervening period to get themselves registered with the U.P. State Medical Faculty, therefore, cannot be a reason for them to claim that they should be extended any benefit by setting aside the impugned judgment. It is, therefore, submitted that having failed to avail of this opportunity, they cannot now question the correctness of the impugned judgment on this ground.
15. On this issue, we find ourselves at variance with the submissions raised on behalf of the respondents inasmuch as it is admitted that the advertisement did not mention the aforesaid eligibility condition and which omission was either deliberate or by mistake, may not be a reason to deny the opportunity to the appellants, who have already applied and have qualified in the written examination.. This eligibility, in our opinion, can be rectified in the event the appellants succeed in getting themselves registered with the U. P. State Medical Faculty. Consequently, an opportunity to them with a reasonable time to get registered ought to be given keeping in view the aforesaid background of the litigation and the circumstances in which the impugned judgment has brought about this situation.
16. Consequently, we direct that all the appellants herein and such other similarly situate candidates, who are not before the Court, would be entitled to apply before the U.P. State Medical Faculty and in the event they are successfull in obtaining such registration from the competent authority, it will be open to them to bring it to the notice of the respondent Commission, and the Commission shall proceed to comply with the judgment of the learned Single Judge dated 14.02.2017 including the names of such candidates who succeed and are able to supply the said registration certificate before the Commission within one month from today. In the event the appellants apply before the U.P. State Medical Faculty for such a registration, such applications shall be disposed off within three weeks from the date of presentation of a certified copy of this order in order to ensure that in the event they are extended the benefit of registration, they may be able to avail the benefit during the final selection. The appellants and other similarly situate candidates shall be entitled to be considered provided they have qualified in the written exam and are otherwise qualified and eligible as per the relevant rules and the Government order referred to herein above.
17. The Commission shall also notify the pronouncement of this Court so that any other candidate who may fall within the said category may avail of the said benefit. The time period for concluding the said selection process as directed by the learned Single Judge shall stand extended for a further period of one month from today.
18. The appeals stand disposed off accordingly with the directions herein above.
Order Date :- 4.4.2017 VNP/-