Allahabad High Court
Pankaj Singh And 5 Ors. vs State Of U.P.Thru Prin.Secy. Finance ... on 22 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 1371
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on: 05.02.2021 Delivered on: 22.06.2021 Court No. - 15 Case :- SERVICE SINGLE No. - 24163 of 2019 Petitioner :- Pankaj Singh And 5 Ors. Respondent :- State Of U.P.Thru Prin.Secy. Finance Lucknow And Ors. Counsel for Petitioner :- Laltaprasad Misra,Manoj Kumar Mishra Counsel for Respondent :- C.S.C.,Gaurav Meharotra CONNECTED WITH Case :- SERVICE SINGLE No. - 3522 of 2018 Petitioner :- Anoop Singh Respondent :- State Of U.P. Thru Prin.Secy.Financial Section-3 Lko. & Ors Counsel for Petitioner :- Ranvijay Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Parmanand Sharma & Case :- SERVICE SINGLE No. - 33850 of 2019 Petitioner :- Nitin Kumar Yadav And 4 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Finance Lko. And Ors. Counsel for Petitioner :- Chandresh Mani Shukla,Ajeet Kumar Mishra Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 14474 of 2018 Petitioner :- Jai Prakash Rao Respondent :- State Of U.P. Thru. Prin. Secy. Financial Section-3 & Ors. Counsel for Petitioner :- Ranvijay Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 19124 of 2018 Petitioner :- Akash Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Financial Section-3 & Ors. Counsel for Petitioner :- Ranvijay Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 22992 of 2018 Petitioner :- Abhishek Chaudhary Respondent :- State Of U.P. Thru. Prin. Secy. Finance And Ors. Counsel for Petitioner :- Ranvijay Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 29564 of 2018 Petitioner :- Ram Darash Respondent :- State Of U.P. Thru. Prin. Secy. Finance & Ors. Counsel for Petitioner :- Ranvijay Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 5246 of 2019 Petitioner :- Amit Chaudhary And 9 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Finance Lucknow And Ors. Counsel for Petitioner :- Krishana Kumar Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 34847 of 2019 Petitioner :- Prianshu Verma And 8 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Finance Lucknow And Ors. Counsel for Petitioner :- Agendra Sinha Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 31120 of 2019 Petitioner :- Pravesh Kumar & 4 Ors. Respondent :- State Of U.P.Thru Prin.Secy. Finance Deptt. Lko & Ors. Counsel for Petitioner :- Gopal Pandey Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 1227 of 2020 Petitioner :- Ram Ashish Verma And Another Respondent :- State Of U.P. Thru Addl. Chief Secy. Finance And Ors. Counsel for Petitioner :- Aseem Samant Counsel for Respondent :- C.S.C.,Gaurab Mehrotra,Sri Jogindra Nath Verma & Case :- SERVICE SINGLE No. - 2346 of 2020 Petitioner :- Pankaj Kumar & Ors. Respondent :- State Of U.P.Thru Prin.Secy.Finance Deptt. Lucknow & Ors. Counsel for Petitioner :- Anubhav Awasthi,Piyush Tripathi Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 1930 of 2020 Petitioner :- Arvind Kumar Gautam And 4 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Finance Lucknow And Ors. Counsel for Petitioner :- Pradeep Kumar Singh Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 2283 of 2020 Petitioner :- Shailja Yadav Respondent :- State Of U.P.Thru Prin.Secy.Appointment Lucknow & Anr. Counsel for Petitioner :- Triloki Nath Yadav Counsel for Respondent :- C.S.C. & Case :- SERVICE SINGLE No. - 3920 of 2020 Petitioner :- Ashutosh Agarhari & Another Respondent :- State Of U.P. Through Prin. Secy. Deptt. Finance, Lko & Ors. Counsel for Petitioner :- Shashi Kant Tripathi,Amita Chaudhary Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 5096 of 2020 Petitioner :- Shail Raj Mishra And 11 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Finance Lucknow And Ors. Counsel for Petitioner :- Anubhav Awasthi,Piyush Tripathi Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 4809 of 2020 Petitioner :- Devesh Kumar Respondent :- State Of U.P.Thru Prin.Secy.Finance Deptt. Lucknow & Ors. Counsel for Petitioner :- Avadhesh Mishra,Naseem Ahamad Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 8430 of 2019 Petitioner :- Pramod Kumar And 2 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Finance Lukcnow And Ors. Counsel for Petitioner :- Parmanand Sharma Counsel for Respondent :- C.S.C.,Gaurab Mehrotra & Case :- SERVICE SINGLE No. - 13450 of 2020 Petitioner :- Mantosh Kumar Singh & Ors Respondent :- State Of Up Thru Prin.Secy.Finance & Ors Counsel for Petitioner :- Mohd. Mansoor,Mohammad Danish Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 19826 of 2020 Petitioner :- Sanjay Kumar & Others Respondent :- State Of U.P. Thru. Prin. Secy. Finance Lko. & Others Counsel for Petitioner :- Rajesh Kumar,Amrendra Nath Tripathi,Kanchan Maurya Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 612 of 2021 Petitioner :- Prashant Dhar Dubey Respondent :- State Of U.P.Thru.Addl.Secy.Deptt.Of Finance & Ors. Counsel for Petitioner :- Desh Deepak Verma Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 18174 of 2020 Petitioner :- Satyendra Kumar Yadav Respondent :- State Of U.P.Thru. Prin.Secy. Finance Deptt. & Ors. Counsel for Petitioner :- Suresh Sharma Counsel for Respondent :- C.S.C.,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 5117 of 2018 Petitioner :- Raj Kamal Mishra And Another Respondent :- State Of U.P Thru Prin.Secy.Financial Civil Sectt.Lko.& Ors. Counsel for Petitioner :- Ranvijay Singh Counsel for Respondent :- C.S.C,Gaurav Mehrotra & Case :- SERVICE SINGLE No. - 24568 of 2019 Petitioner :- Suresh Chandra And 3 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Finance Lucknow And Ors. Counsel for Petitioner :- Suresh Kumar Upadhyay,Anisha Dwivedi,R.R. Chaubey Counsel for Respondent :- C.S.C.,Gaurav Mehrotra Hon'ble Chandra Dhari Singh, J.
1. Since common questions are involved in all the above-mentioned writ petitions, they are being decided together.
2. Mainly, there are three categories of writ petitions:
(I) Petitions preferred by persons working on the post of Junior Clerk/Routine Grade Clerk who have challenged Advertisement No.12-Exam/2016 dated 05.07.2016 issued by U.P. Subordinate Service Selection Commission (hereinafter referred as 'the Commission') for holding direct recruitment on the post of Assistant Treasury Accountant. In the said category of writ petitions, the petitioners have also prayed for a direction to be issued to District Magistrates of their respective districts to consider them for promotion to the post of Senior Clerk/Assistant Treasury Accountant in accordance with The U.P. Treasury Ministerial Service Rules, 1978 (hereinafter referred as "1978 Rules");
(II) Petitions preferred by persons who have challenged order dated 25.07.2019 passed by Government of U.P. whereby requisition dated 23.06.2016 sent to the Commission for making direct recruitment to the post of Assistant Treasury Accountant and advertisement dated 05.07.2016 have been withdrawn; and (III) Petitions preferred by persons for a direction to be issued to the respondents for declaration of result of selection held by the Commission on the post of Assistant Treasury Accountant pursuant to Advertisement dated 05.07.2016.
3. Before proceeding further with the case(s) in hand, it would be appropriate to first take a look at history of the litigation, which are as follows:-
(i) On 20.11.1987, Government of U.P. in exercise of power conferred under Rule 4 of 1978 Rules issued a Government Order thereby changing the nomenclature of posts as indicated in 1978 Rules and re-designated the posts of Routine Grade Clerk/Junior Clerk as Assistant Accountant Grade - II and Senior Grade Clerk as Assistant Treasury Accountant Grade - I. The minimum educational qualification for direct recruitment to the post of Assistant Treasury Accountant Grade - II was prescribed as a Bachelor Degree in Maths or Commerce (Accountancy) from a recognised University.
(ii) On 21.03.1990, Government of U.P. exercised its power under Rules 4 and 26 and issued a Government Order implementing the recommendations of the Pay Committee (1989) and by merging the post of Assistant Treasury Accountant Grade - I and Assistant Treasury Accountant Grade - II together created the post of "Assistant Treasury Accountant". It was also decided that 72 posts of Assistant Treasury Accountant Grade - II be re-designated as Junior Clerks and educational qualification for Junior Clerks would be Intermediate (Commerce with Accountancy) and recruitment on the post of Junior Clerk be made through the selection board.
(iii) The State Government decided to fill up the post of Assistant Treasury Accountant by direct recruitment. The said decision had to be taken as only 72 posts of Junior Clerks existed after restructuring the cadre and it was impossible to fill all the posts of Assistant Treasury Accountant only by way of promotion.
(iv) Government Order dated 30.04.1993 was issued to mitigate the hardship and the situation of impossibility created on account of the restructuring of the cadre in order to implement the recommendations of the Pay Committee.
(v) Government of U.P. proceeded to make direct recruitment on the post of Assistant Treasury Accountant on the strength of relaxation made and the alterations effected vide Government Orders dated 20.11.1987, 21.03.1990 and 30.04.1993 to the U.P. Treasuries Ministerial Establishment.
(vi) Pursuant to requisition made by State Government, the Commission issued an advertisement dated 18.05.2015 inter-alia notifying 304 permanent posts of Assistant Treasury Accountants in the Pay Scale of Rs.5200-20200/- with Grade Pay of Rs.2800/- belonging to the Department of Director, Treasury, U.P. Lucknow for direct selection.
(vii) Bunch of writ petitions (Writ Petition Nos.2346 (SS) of 2016, 5254 (SS) of 2016, 6085 (SS) of 2016, 6095 (SS) of 2016, 6118 (SS) of 2016, 8642 (SS) of 2016 & 5287 (SS) of 2016) were filed by persons working as Junior Clerk for quashing the advertisement dated 18.05.2015 issued by the Commission, and further for mandamus not to fill up three posts of Assistant Treasury Accountants by way of direct recruitment until petitioners' candidature be not considered for promotion according to 1978 Rules.
(viii) During pendency of above-said bunch of writ petitions, the Commission completed the selection process pursuant to advertisement dated 18.08.2015 and after declaration of the result sent a list of selectees for the post of Assistant Treasury Accountants to the State Government and the State Government issued appointment letters. This bunch of writ petitions came up for hearing and vide judgment and order dated 21.08.2017, the co-ordinate Bench of this Court while finally deciding the writ petitions held that though the posts in District Treasuries as mentioned in 1978 Rules were re-designated but the mode of recruitment as contemplated under 1978 Rules framed under Article 309 of the Constitution of India was not changed either by amending 1978 Rules or by making fresh set of Rules. The Rules cannot be substituted by Government Orders and therefore, the Government Order dated 28.11.2011 providing for direct selection was not lawful. Vide judgment and order dated 21.08.2017, the Court did not interfere with the selection made pursuant to the advertisement dated 18.08.2015 and directed that the appointment of selectees was not interfered with but, as certain number of posts were directed to be kept reserved for the writ petitioners vide interim orders passed in those writ petitions subject to the final decision in the writ petitions, directed the State Government to consider the claim of the writ petitioners for promotion on the post of Senior Clerk/Assistant Treasury Accountant Grade-I/Assistant Treasury Accountant in accordance with 1978 Rules.
4. Facts of the present case(s) are as under:-
(i) A requisition dated 23.06.2016 was sent to the Commission by Director, Department of Treasury, U.P. i.e. Head of the Treasury Department, referring 540 vacant posts of Assistant Treasury Accountant for direct selection. This requisition made a specific mention that the selection was to be made by the respondent/Commission for the post of Assistant Treasury Accountant pursuant to the requisition dated 18.08.2015 and in accordance with the U.P. Direct Recruitment to Group ''C' Posts (Mode and Procedure) Rules, 2015 (hereinafter referred to ''2015 Rules').
(ii) On 05.07.2016, the Commission issued an advertisement for 702 posts of Assistant Treasury Accountant as part of the Combined Assistant Accountant and Auditors (General Selection) Competitive Exam, 2016. Thereafter, on 27.10.2016, the Commission issued a corrigendum notifying that selection would be made against 540 posts of Assistant Treasury Accountant in view of amendment made to the requisition by the State Government.
(iii) On 29.10.2016, the Commission declared the result of written examination wherein the petitioners were declared qualified.
(iv) Vide judgment and order dated 21.08.2017 rendered in Writ Petition No.2346 (SS) of 2016 (supra) wherein Advertisement dated 18.08.2015 was challenged, the coordinate Bench of this Court refused to quash the selection and appointment of the selected candidates but directed that the petitioners therein be considered for promotion in accordance with 1978 Rules.
(v) On the writ petitions falling in Category - I, the coordinate Bench of this Court passed interim order(s) providing that till the date of listing, the selection shall continue but the result of the same shall not be declared.
(vi) After passing the interim order in the writ petitions falling in Category - I, the Commission sent a letter dated 12.03.2019 addressed to the State Government intimating about the said interim order. In furtherance of the said letter, the State Government sent a letter dated 25.07.2019 addressed to the Secretary, U.P. Subordinate Service Selection Commission and to Director, Treasury, U.P., Lucknow withdrawing the requisition dated 23.06.2016 and advertisement dated 05.07.2016 of 540 posts of Assistant Treasury Accountants and required the commission and the Director to cancel the selection process pursuant to the said requisition and intimate the State Government accordingly.
(vii) Thereafter, bunch of writ petitions have also been filed (Category - II) for quashing the order dated 25.07.2019 vide which the requisition and advertisement was cancelled. Another set of writ petitions, which fall in the Category - III of the petitions, have been filed praying for a direction to be issued to the respondents to declare the result of the selection held by the Commission for the post of Assistant Treasury Accountant pursuant to advertisement dated 05.07.2016.
5. For proper adjudication of Category - I of cases, Writ Petition No.3522 (SS) of 2018 titled "Anoop Singh v. State of U.P. & Ors.' is being taken up.
6. Shri Ranvijay Singh, Advocate has advanced arguments on behalf of the petitioners who fall in Category - I of the writ petitions.
Shri Ramesh Kumar Singh, learned Senior Advocate/Additional Advocate General assisted by Shri Pankaj Khare, learned Additional Chief Standing Counsel and Shri Tushar Verma, Brief Holder, have appeared for the State, and Shri Gaurav Mehrotra, Advocate for U.P. Subordinate Service Selection Commission.
7. Learned counsel for the petitioners has submitted that the disputed questions of the bunch of the writ petitions in which Advertisement dated 05.07.2016 has been challenged have already been resolved in W.P. No.2346 (SS) of 2016 titled "Indra Kumar Shrotria and Ors. v. State of U.P. & Ors." vide judgment and order dated 21.08.2017 and the Special Appeal filed against the said order bearing Special Appeal Defective No.343 of 2019 titled "Ravindra Kumar Pal v. State of U.P. & Ors." has already been dismissed vide order dated 23.10.2019.
8. It is submitted that Rule - 5 of 1978 Rules provides that 90% quota of the post of routine Grade Clerk shall be filled up from direct recruitment and remaining 10% by way of promotion from Class - IVth cadre. The said rule also provides that feeding cadre of Senior Grade Clerk shall be filled up by promotion from Routine Grade Clerk. It is also submitted that Rule 16 (1) of the 1978 Rules provides "the recruitment by promotion on the post of Senior Grade Clerk shall be made on the basis of seniority subject to rejection of the unfit through Selection Committee." The Selection Committee for promotion from Routine grade Clerk to the post of Senior Grade Clerk constituted as follows:
(i) District Officer.
(ii) Treasury Officer.
(iii) The Officer not below the rank of Deputy Collector nominated by District Officer.
According to Rule - 3 of the 1978 Rules, Appointing Authority for the post of Routine Grade Clerk & Senior Grade Clerk shall be District Officer.
9. Learned counsel has submitted that the name and designation of Routine Grade Clerk of Treasury Department has been re-designated as Junior Clerk and subsequently vide G.O. dated 20.11.1987, the name of Junior Clerk has been re-designated again as Assistant Treasury Accountant Grade - II and Senior Grade Clerk has been re-designated as Assistant Treasury Accountant Grade - I and the post of Assistant Accountant Grade - II was declared the post to be filled by direct recruitment. It is also submitted that the Senior Grade Clerk/Assistant Accountant Grade-I was not declared the post of direct recruitment by G.O. dated 20.11.1987 or by G.O. dated 21.03.1990.
10. It is submitted that vide G.O. dated 21.03.1990, the post of Assistant Accountant Grade - II has been upgraded from Rs.980-1500/- to Pay Scale of Rs.1200-2040/- and has been merged with Assistant Accountant Grade - I with combined designation as Assistant Treasury Accountant but the post of Assistant Treasury Accountant was not declared the post of direct recruitment vide G.O. dated 21.03.1990. It is submitted that vide G.O. dated 21.03.1990, 72 posts of the Assistant Accountant Grade - II Pay Scale Rs.980 - 1500/-, who were doing the routine work of the Department, has been identified as Junior Clerk and the said post has been declared to be filled by direct recruitment. In light of the Rule 5 & 16 (1) of 1978 Rules and G.Os. dated 20.11.1987 & 21.03.1990, the post of Senior Grade Clerk/Assistant Treasury Accountant Grade - I/Assistant Treasury Accountant was the post of promotion quota and Routine Grade Clerk/Junior Clerk/Junior Assistant/Assistant Treasury Accountant Grade - II was the post of direct recruitment (10% promotion quota from Class - IVth employee). It is submitted that for promotion on the post of Senior Grade Clerk/Assistant Treasury Accountant, no specific eligibility was required and the promotion was to be made on the basis of seniority from District Cadre subject to the rejection of unfit candidates.
11. Learned counsel has submitted that all the petitioners were eligible for promotion from Junior Clerk to next higher post according to 1978 Rules when U.P. Treasury Accounts (Non Gazetted) Service Rules, 2019 (hereinafter referred as ''2019 Rules') took place. It is submitted that at present 38 Assistant Treasury Accountants, who were promoted from Junior Clerk, are working against 4% promotion quota. The 4% promotion quota of Assistant Treasury Accountants has already been filled and 4% promotion quota for Assistant Treasury Accountant was given only to harass the petitioners. By 1978 Rules, the post of Senior Grade Clerk re-designated as Assistant Treasury Accountant was required to be filled up only by promotion from cadre of Routine Grade Clerk re-designated as Junior Clerk. The 2019 Rules has not been given override effect on 1978 Rules, therefore, 1978 Rules still survives and protect the right of petitioners.
12. It is submitted on behalf of the petitioners that neither State Government nor the candidates has preferred any SLP before the Hon'ble Supreme Court against the order of Division Bench dated 23.10.2019 rendered in Special Appeal Defective No.343 of 2019 (supra) and 19.12.2019 rendered in Special Appeal Defective No.592 of 2019 vide which order dated 24.07.2019 rendered in Writ Petition No.14762 (SS) of 2019 was challenged. Vide order dated 24.07.2019, the petitioner in that case was allowed to work on the post of Treasury Accountant.
13. Learned counsel for the petitioners has submitted that the impugned advertisement dated 05.07.2016 was issued for recruitment on the post of Assistant Treasury Accountant in the light of 1978 Rules and also in light of various Government Orders. Meaning thereby that the post in question was vacant but the petitioners were not promoted inspite of the fact that 1978 Rules provides so.
14. It is submitted that by the impugned advertisement, direct recruitment cannot be made on the post of Assistant Treasury Accountant when 72 Junior Clerks of the entire U.P. are waiting for their promotion on the said post. It is vehemently argued that only the nomenclature of the post of Junior Clerk and Senior Clerk have been changed to Assistant Treasury Accountant but the same has not been incorporated in 1978 Rules and till date the respondents have failed to make new service rule for Assistant Treasury Accountant. It is submitted that the petitioners are possessing all the eligibility for promotion on the post of Assistant Treasury Accountant according to the statute applicable in their case.
15. Learned counsel has relied upon Para - 9 of the judgment rendered by Hon'ble Supreme Court in the case of Y.V. Rangaiah v. J. Sreenivasa Rao1,which reads as under:-
"9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than Respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
16. In such circumstances, learned counsel for the petitioners has submitted that the impugned advertisement dated 05.07.2016 for direct recruitment against the post in question is illegal, arbitrary, contrary to the 1978 Rules and deserves to be quashed with direction to promote the petitioners on the post in question.
17. Shri Ramesh Kumar Singh, learned Senior Advocate/Additional Advocate General appearing for the State has submitted that the petitioners of Category - I of the writ petitions have challenged Advertisement dated 05.07.2016 on the ground that the post of Assistant Treasury Accountant are promotional post and not the post to be filled by way of direct recruitment, and further relief has been sought for considering the petitioners for promotion on the post of Assistant Treasury Accountant in accordance with 1978 Rules.
18. Shri Singh has submitted that all the petitioners are Group ''C' employees of the State Treasuries. In the State of U.P., the Group ''C' employees are governed by 1978 Rules. It is submitted that nomenclature and pay scale etc., have been changed on several occasions till 1987. Rule 5 of 1978 Rules deals with the recruitment of the ministerial cadre of Group 'C' which consists of the following posts:-
(a) Routine Grade Clerk - By direct recruitment (90%) and remaining 10% by promotion from amongst Group 'D' employees of the Treasuries of the concerned District(s)
(b) Senior Grade Clerk - By promotion from amongst permanent Routine Grade clerks in the Treasury of the concerned district(s)
(c) Assistant Treasury Head Clerk - By promotion from amongst permanent Senior Grade Clerks in the Treasury(s) of the concerned district(s)
(d) Additional Treasury Head Clerk/ Treasury Head Clerk - By promotion from amongst permanent Assistant Treasury Head Clerks, permanent Senior Grade Clerks and permanent Routine Grade Clerks, who have put in a minimum of 12 years continuous service as Routine Grade Clerks working in the Treasury of the concerned division.
Rule 8 of 1978 Rules provides the academic qualifications for direct recruitment on the post of Routine Grade Clerk which shall be as prescribed in the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 (Intermediate or equivalent Examination).
19. It is submitted that vide government order dated 21.3.1990 the post of Assistant Treasury Accountant Grade - I was merged with Assistant Treasury Accountant Grade - II (pay scale 1200/- - 2040/-) (Total posts 788 out of which 72 posts were left out for Junior Clerks in pay-scale of 950 -1500/-) and post of Assistant Treasury Accountant was created. These changes could not be incorporated in the 1978 Rules as a result of which time to time several Government Orders were issued setting up the criteria and other conditions of service in respect of the post in question i.e. Assistant Treasury Accountant.
20. Shri Singh has further submitted that an advertisement was issued in the year 2015 for the recruitment to the post of Assistant Treasury Accountant, which was challenged in the case of Indra Kumar Shrotria (supra) and the same was finally decided on 21.08.2017 wherein the Hon'ble Court on the basis of records was pleased to observe in Para - 3 as under:-
"3....................... The qualification as well as the other conditions of service have all been provided for in the Rules of 1978. It is admitted to the parties that these rules have not undergone any amendment/change".
21. Shri Singh has invited attention of the Court in Paras - 7 & 10 of judgment in the case of Indra Kumar Shrotria (supra) in which the following has been observed:-
"7. It is settled that in the hierarchy of laws, a rule framed by the State, exercising its power under proviso to Article 309, would stand on a higher footing then a government order/executive instructions issued by the State and to the extent of repugnancy it would be the statutory rule, which would prevail over the government order. In case the post of Senior Clerk, which has been re-designated as Assistant Treasury Accountant, is tried to be filled by way of direct recruitment, the avenues of promotion, which are available to Routine Grade Clerk under the Rules of 1978, would be taken away.
10. The rules as it exists on date have to be enforced and to the extent the executive instructions/govt. orders are inconsistent with it, the instructions/govt. orders must bend before the rules. The petitioners in this bunch of petitions are admittedly appointed and are working as Routine Grade Clerk, and by virtue of government order issued in the year 1987 and 1990, are re-designated as Assistant Treasury Accountant Grade II. They are entitled to be considered for promotion to the post of Senior Clerk, which post stands re-designated as Assistant Treasury Accountant Grade I.............."
22. It is submitted by Shri Singh that in pursuance of the aforesaid judgement and order dated 21.08.2017 and further in pursuance of various interim orders passed in different writ petitions in the present bunch of writ petitions, the State Government while considering the illegalities, difficulties and anomalies etc., in the initiation of the recruitment being done in pursuance of the advertisement dated 05.07.2016 for the post of Assistant Treasury Accountant not only decided to cancel/withdraw the requisition dated 23.06.2016 and advertisement dated 05.07.2016 but also decided to frame fresh rules governing the services of the group "C" employees of the State Treasuries, which also covers the post of Assistant Treasury Accountant, and providing promotional avenue to the Junior Clerks. In view of the aforesaid not only the impugned order dated 25.07.2019 cancelling the requisition dated 23.06.2016 for recruitment to the 540 post of Assistant Treasury Accountant has been passed but also the 2019 Rules has been promulgated which has been notified on 02.01.2020. Therefore, now any recruitment to the posts of Assistant Treasury Accountant can only be made in accordance with the 2019 Rules and not otherwise.
23. Shri Singh has submitted that Rule 5 of 1978 Rules deals with recruitment on various posts. After issuance of government order dated 21.03.1990, the post of Assistant Treasury Accountant Grade - I and Assistant Treasury Accountant Grade - II (earlier known as Routine Grade Clerk and Junior Clerk) have been merged and re-designated as Assistant Treasury Accountant, thus, now the post of Junior Clerk or Routine Grade Clerk became the post of direct recruitment. It is further submitted the petitioners have not completed 12 years of service, therefore, they cannot claim for promotion on the post of Assistant Treasury Accountant in pursuance of 1978 Rules.
24. It is also submitted that vide 2019 Rules not only 4% quota in the post of Assistant Treasury Accountant has been given to the Junior Clerks but the qualifications for the purposes of promotion to the 4% quota of Assistant Treasury Accountant has also been changed. Shri Singh has submitted that out of the strength of 939 posts of Assistant Treasury Accountant, 4% promotional quota (i.e. 38 posts) have been given to the Junior Clerks working in the Treasuries of the State of U.P. and on the aforesaid 38 posts, the incumbents senior to the petitioners have been given promotions and now no post under the promotional quota is vacant. It is further submitted that as per Rule 5(1)(ii) of 2019 Rules, a candidate must have rendered five years of service as Junior Assistant of Treasuries and have passed departmental examination on the first day of the year of recruitment to be eligible for promotion under 4% promotional quota on the post of Assistant Treasury Accountant.
25. Shri Singh has invited attention of the Court towards Para - 13 of the Supplementary Counter Affidavit dated 21.01.2021 and submitted that in pursuance of the aforesaid cadre determination and as per Service 2019 Rules, vide office order dated 08.06.2020, following persons who were petitioners in following writ petitions were promoted:
क०सं० रिट याचिका संख्या याची का नाम 1 3611/ एसएस / 2018 राज कुमार 2 3527/ एसएस/ 2018 संदीप कुमार श्रीवास्तव 3 15229 / एसएस / 2018 श्रीमती नीलम वर्मा 4 3524 / एसएस / 2018 कामिनी साहू 5 4975 / एसएस / 2018 सौरभ गोयल 6 4932 / एसएस / 2018 गोबिन्द बहादुर श्रीवास्तव 7 3523 / एसएस / 2018 सूरज कुमार 8 11256/एसएस/2018 रोहित बाजपेई 9 5090 / एसएस / 2018 राजेन्द्र प्रसाद 10 5117 / एसएस / 2018 राजकमल मिश्र
26. Summing up his arguments in a nutshell Shri Singh has lastly submitted that those petitioners who are seeking promotions to the post of Assistant Treasury Accountant and have not passed the departmental examination, which is a necessary qualification in pursuance of Rule 5(1)(ii) of 2019 Rules, are not eligible to be promoted on the aforesaid post either in pursuance of 1978 Rules or 2019 Rules.
27. For proper adjudication of Category - II of cases, Writ Petition No.24163 (SS) of 2019 titled "Pankaj Singh & Ors. v. State of U.P. & Ors.' is being taken up.
28. Shri L.P. Mishra, Advocate alongwith Shri Apporva Tiwari, Advocate has advanced arguments on behalf of the petitioners who fall in Category - II of the writ petitions.
Shri Ramesh Kumar Singh, learned Senior Advocate/Additional Advocate General assisted by Shri Pankaj Khare, learned Additional Chief Standing Counsel and Sri Tushar Verma, Brief Holder, have appeared for the State, and Shri Gaurav Mehrotra, Advocate for U.P. Subordinate Service Selection Commission.
29. It is submitted by Shri Apporva Tiwari that there were four category of posts under 1978 Rules i.e. (1) Routine Grade Clerk "Junior Clerk" direct recruitment (2) Senior Grade Clerk "by promotion" (3) Assistant Treasury Head Clerk "by way of promotion" (4) Additional Treasury Head Clerk/Treasury Head Clerk. Thereafter, a Government Order dated 20.11.1987 was issued and the name of the Junior Clerk has been re-designated as Assistant Treasury Accountant Grade-II in the Pay Scale 354-550, the name of the Senior Clerk has been re-designated as Assistant Treasury Accountant Grade-I in the Pay Scale of Rs.430-685 and the name of the Head Treasury Clerk has been re-named as Assistant Treasury Officer in the Pay Scale of Rs.625-1360.
30. It is submitted that State Government vide Government Order dated 20.11.1987 created post of Assistant Treasury Accountant Grade-I and Assistant Treasury Accountant Garde-II. Subsequently, vide Government Order dated 21.03.1990 abolished the post of Assistant Treasury Accountant Grade-I and Assistant Treasury Accountant Grade-II and by merging the said two posts created the post of Assistant Treasury Accountant. The State Government decided to keep 716 posts of Assistant Treasury Accountant intact out of 788 posts of Junior Clerk and the remaining 72 posts were kept as it is in the name of Junior Clerk.
31. It is submitted that on 30.04.1993, a letter was sent by the Joint Secretary of State of U.P. to Director, Treasury, U.P., Lucknow for recruitment of Assistant Treasury Accountant through direct recruitment. It is also submitted that 72 posts of Junior Clerk, which has not been re-designated as Assistant Treasury Accountant, can be promoted to the post of Senior Grade Clerk in view of the U.P. Government Department Ministerial Cadre Service Rules, 2014 (hereinafter referred to as ''2014 Rules'). The 2014 Rules has been enacted under Article 309 of Constitution of India wherein it is specifically provided that 80% posts of Junior Clerk would be filled up by direct recruitment while 15% post of Junior Clerk would be filled up by promotion from the employees working on Group-D posts who have passed the High School Examination and remaining 5% would be filled up by promotion from the employees working on Group-D posts who have passed the Intermediate Examination. It is further provided that promotion of Junior Clerk to the post of Senior Grade Clerk would be made through Selection Committee amongst the Junior Clerk who have completed 5 years of service. It is vehemently argued that Junior Assistant/Junior Clerk can never claim promotion to the post of Assistant Treasury Accountant.
32. Shri Tiwari has submitted that appointment and promotion of Junior Clerk working in the Treasury of State of U.P. are governed under 2014 Rules after creation of their separate cadre vide Government Order dated 21.03.1990. It is further submitted that in view of the re-designing of structure of the cadre of Assistant Treasury Accountant and creation of separate cadre of Junior Clerk vide Government Order dated 21.03.1990 and earlier Government Order dated 21.11.1987, the 1978 Rules became ineffective and inoperative in the matter of selection of Assistant Treasury Accountant.
33. It is vehemently argued that Advertisement dated 18.08.2015 was issued by the Commission vide Advertisement No.11-Exam/2015 for appointment of Assistant Accountant, Auditor and Assistant Treasury Accountant. The same was challenged before this Court in Indra Kumar Shrotria' case (supra). Shri Tiwari has submitted that selection of Assistant Accountant, Auditor and Assistant Treasury Accountant in the aforesaid advertisement were completed by 2015 Rules and 297 Assistant Treasury Accountant were selected and 8 posts of Assistant Treasury Accountant were kept pending/reserved in compliance of order of the Court passed in that case. The Indra Kumar Shrotria's case (supra) was finally decided on 21.08.2017.
34. Shri Tiwari has further submitted that the Commission advertised 1901 posts for Assistant Accountant, 255 posts of Auditor and 702 posts of Assistant Treasury Accountant vide Advertisement No.12-Examination/2016 dated 05.07.2016 under 2015 Rules. In pursuance of the said advertisement, written examination was held on 11.09.2016 and the petitioners, who fall in Category - II of the writ petitions, alongwith several other candidates were declared successful on 29.10.2016. The date of interview was fixed from 23.02.2017 to 21.05.2017 but the Government imposed ban on recruitment initiated by the Commission due to which entire selection process was stopped. After some time, the ban was lifted and the recruitment process started after completion of vigilance enquiry.
35. Shri Tiwari has further submitted that Director, Treasury, U.P., Lucknow vide Letter No.2029/21(287) dated 03.10.2016 addressed to the Commission requested therein to make recruitment for only 540 posts of Assistant Treasury Accountant in place of 702 posts. Thereafter, the Commission issued a corrigendum/notice dated 27.10.2016 and the post of Assistant Treasury Account was reduced to 540 from 702.
36. It is submitted that second time the date of interview was declared by the respondents and as such the petitioners of Category - II of the writ petitions and several other persons duly participated in the interview held from 28.08.2018 to 10.12.2018 at premises of the Commission but the result has not been declared yet.
37. Shri Tiwari has submitted that the impugned order dated 25.07.2019 was passed by Special Secretary, Department of Finance, Civil Secretariat, Government of U.P., Lucknow vide which the selection process of Assistant Treasury Accountant has been cancelled. It is further submitted that the impugned order dated 25.07.2019 is admittedly an executive order which leads to adverse civil consequences against the petitioners inasmuch as the petitioners had qualified in the written examination, which has been cancelled. It is further submitted that the impugned order has been passed without assigning any reason and the counter affidavit filed by the State is also silent on that point.
38. Shri Tiwari has submitted that candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement. He has relied upon Para - 11 of the judgment rendered by Hon'ble Supreme Court in the case of N.T. Devin Katti & Ors. v. Karnataka Public Service Commission & Ors.2, which reads as under:-
"11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature."
39. Shri Tiwari has also relied upon Para - 13 of the judgment rendered by Hon'ble Supreme Court in the case of Commissioner of Police v. Gordhandas Bhanji3, relevant portion of which reads as under:-
"13. ................public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
40. The aforesaid principle was expanded by the Hon'ble Supreme Court in Para - 8 of the judgment rendered in the case of Mohinder Singh Gill & Anr. v. Chief Election Commissioner & Ors.4 on which Shri Tiwari has relied. Para - 8 is reproduced hereinbelow:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
41. Shri Tiwari has relied upon Paras - 23 & 24 of the judgment rendered by Hon'ble Supreme Court in the case of East Coast Railway & Anr. v. Mahadev Appa Rao & Ors.5 and submitted that an order cancelling a recruitment without assigning any reason suffers from the vice of non-application of mind and is an arbitrary exercise of power which is capable of being judicially reviewed. Paras - 23 & 24 read as under:-
"23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.
24. In the instant case the order passed by the competent authority does not state any reasons whatsoever for the cancellation of the typing test. It is nobody's case that any such reasons were set out even in any contemporaneous record or file. In the absence of reasons in support of the order it is difficult to assume that the authority had properly applied its mind before passing the order cancelling the test."
42. Shri Tiwari has relied upon the judgments rendered by Hon'ble Supreme Court in the cases of P. Mahendran & Ors. v. State of Karnataka & Ors.6, Mohd. Raisul Islam & Ors. v Gokil Mohan Hazarika & Ors.7 & B.L. Gupta & Anr V. M.C.D.8 and submitted that right to selection and appointment cannot be defeated by subsequent amendment of rules.
43. Shri Tiwari has also relied upon Paras - 5 & 6 of the judgment rendered by Hon'ble Supreme Court in the case of J.C. Yadav & Ors. v. State of Haryana & Ors.9 and submitted that Government can relax the rules in respect of a class to appoint requisite qualified persons to mitigate the undue hardship. Paras - 5 & 6 read as under:-
"5. The sole question for consideration is whether the relaxation granted by the State Government in favour of the appellants is valid. Rule 22 which confers power on the government to relax requirement of rules, is as under:"
"22. Power to relax.-- * * * Where government is satisfied that the operation of any of these rules causes undue hardship to any particular case, it may by order dispense with or relax the requirements of that rule to such extent, and subject to such conditions, as it may consider necessary for dealing with the case in a just and equitable manner.
* * *"
"6. The rule confers power on the government to dispense with or to relax the requirement of any of the rules to the extent and with such conditions as it may consider necessary for dealing with the case in a just and equitable manner. The object and purpose of conferring this power on the government is to mitigate undue hardship in any particular case, and to deal with a case in a just and equitable manner. If the rules cause undue hardship or rules operate in an inequitable manner in that event the State Government has power to dispense with or to relax the requirement of rules. The rule does not restrict the exercise of power to individual cases. The government may in certain circumstances relax the requirement of rules to meet a particular situation. The expression "in any particular case" does not mean that the relaxation should be confined only to an individual case. One of the meanings of the expression "particular" means "peculiar or pertaining to a specified person -- thing -- time or place -- not common or general". The meaning of the word particular in relation to law means separate or special, limited or specific. The word ''case' in ordinary usage means ''event', ''happening', ''situation', ''circumstances'. The expression ''case' in legal sense means ''a case', ''suit' or ''proceeding in court or Tribunal'. Having regard to these meanings the expression ''in any particular case' would mean: in a particular or pertaining to an event, situation or circumstances. Rule 22 postulates relaxation of rules to meet a particular event or situation, if the operation of the rules causes hardship. The relaxation of the rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. The scope of rule is wide enough to confer power on the State Government to relax the requirement of rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner. The power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation. Many a time strict application of service rules create a situation where a particular individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service. In such a situation the government has power to relax requirement of rules. The State Government may in exercise of its powers issue a general order relaxing any particular rule with a view to avail the services of requisite officers. The relaxation even if granted in a general manner would ensure to the benefit of individual officers."
44. It is submitted that judgment dated 21.08.2017 passed in Indra Kumar Shrotria's case (supra) has not considered Rule 4 and Rule 26 of the 1978 Rules, which are clear repositories of power for issuance of government orders dated 20.11.1987 and 21.03.1990. Furthermore, the said judgment has not quashed the selection made in the year 2015, thus it cannot be referred to as a binding precedent for any proposition.
45. It is further submitted that the question as to whether the 1978 Rules as supplemented by Government Orders dated 20.11.1987 and 21.03.1990 permit direct recruitment on the post of Assistant Treasury Accountant is a pure question of law and in view of the decision of the Hon'ble Supreme Court in Satyendra Kumar & Ors. v Rajnath Dubey & Ors.10, the said question is to be independently determined by this Hon'ble Court and no res-judicata can be claimed in that regard. Therefore, judgment dated 21.08.2017 passed in Indra Kumar Shrotria's case (supra) is inconsequential.
46. By relying on Para - 43 of the judgment rendered by Hon'ble Supreme Court in the case of Smt. Swaran Lata v. Union of India & Ors.11, Shri Tiwari has submitted that executive power under Article 162 of Constitution of India is coextensive with the legislative power to regulate recruitment. Para - 43 reads as under:-
"43. It is not obligatory under the proviso to Article 309 to make rules of recruitment etc. before a service can be constituted, or a post created or filled. The State Government has executive power in relation to all matters in respect to which the legislature of the State has power to make laws. It follows from this that the State Government will have executive powers in respect of List II, Entry 41 of the Seventh Schedule: "state Public Services": B.N. Nagarajan v. State of Mysore [(1966) 3 SCR 382 : AIR 1966 SC 1942 : (1967) 1 LLJ 698] . There is nothing in the terms of Article 309 of the Constitution which abridges the power of the Executive to act under Article 162 of the Constitution without a law. The same view has been taken by this Court in T. Cajee v. U. Jormanik Siem [(1961) 1 SCR 750 : AIR 1961 SC 276 : (1961) 1 LLJ 652] and Sant Ram Sharma v. State of Rajasthan [(1968) 1 SCR 111 : AIR 1967 SC 1910 : (1968) 2 LLJ 830] . The same principle underlies Article 73 of the Constitution in relation to the executive power of the Union."
47. Lastly, Shri Tiwari has relied on Para - 7 of the judgment rendered by Hon'ble Supreme Court in the case of Sant Ram Sharma v. State of Rajasthan & Ors.12 and submitted that if the rules are silent on any particular point, the government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
48. Shri Ramesh Kumar Singh, learned Senior Advocate/Additional Advocate General assisted by Shri Pankaj Khare, learned Additional Chief Standing Counsel and Sri Tushar Verma, Brief Holder, have appeared for the State has vehemently opposed the submissions advanced by Dr. L.P. Mishra and Shri Apporva Tiwari, Advocate and submitted that the writ petitions of this category (Category - II) have been filed challenging order dated 25.07.2019 by which requisition dated 23.06.2016 sent to the Commission for recruitment on 540 posts of Assistant Treasury Accountant and advertisement dated 05.07.2016 have been withdrawn/cancelled. It is submitted that the nomenclature and pay-scale etc., have changed on several occasions till 1987. In pursuance to the judgment dated 21.08.2017 rendered in Indra Kumar Shrotria (supra) and pursuant to various interim orders passed in different writ petitions in the present bunch of petitions, the State Government while considering the illegalities, difficulties and anomalies etc., in the initiation of the recruitment being done in pursuance of the Advertisement dated 05.07.2016 on the posts of Assistant Treasury Accountant not only decided to cancel the requisition dated 23.06.2016 and advertisement dated 05.07.2016 but also decided to frame fresh rules governing the services of Group ''C' employees of the State Treasuries, which also covers the post of Assistant Treasury Accountant and providing promotional avenues to the Junior Clerks. In such circumstances, not only the impugned order dated 25.07.2019 cancelling requisition dated 23.06.2016 and advertisement dated 05.07.2016 has been passed but also the 2019 Rules has been promulgated, which has been notified on 02.01.2020. Thus, now any recruitment to the post of Assistant Treasury Accountant can only be made in accordance with 2019 Rules and not otherwise.
49. Shri Singh has further submitted that if it is assumed that the petitioners have been selected in the examination held in pursuance of Advertisment dated 05.07.2016, it does not give them indefeasible right of claiming appointment. The State Government has acted fairly in taking decision not to fill up the vacancies occurred vide Advertisement dated 05.07.2016 as the post was not advertised in accordance with 1978 Rules. If any selection would have been made on the aforesaid 540 posts of Assistant Treasury Accountant, it would only have been a futile exercise because since the issue had already been decided by the Hon'ble High Court vide judgment and order dated 21.08.2017 (supra) by recording a categorical finding that the earlier advertisement issued pursuant to the directions issued by the State Government contained in Government Order dated 20.08.2011 were not in conformity with the 1978 Rules, as such, the subsequent advertisement dated 05.07.2016 automatically becomes untenable in the eyes of law.
50. Shri Singh has relied upon relevant portion of Para - 7 of the judgment rendered by Hon'ble Supreme Court in the case of Shankarsan Dash v. Union of India13, which reads as under:-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies...................."
51. Shri Singh has also relied upon Paras - 21, 22, 23 & 25 of the judgment rendered in the case of Lt. CDR. M. Ramesh v. Union of India & Ors.14, which read as under:-
"21. The first issue that arises is whether the petitioners have any vested right to claim that the result must be declared and if the petitioners are selected, they should be appointed. This Court in Jai Singh Dalal v. State of Haryana [Jai Singh Dalal v. State of Haryana, 1993 Supp (2) SCC 600 : 1993 SCC (L&S) 846] held that merely because the Government had sent a requisition to UPSC to select the candidates for appointments, did not create any vested right in the candidate called for the interview to be appointed. It was also held that the authority which has the power to specify the method of recruitment must be deemed to have the power to revise and substitute the same. The Court, however, also laid down that at best the Government may be required to justify its action on the touchstone of Article 14 of the Constitution. This view has been followed in a large number of cases. In Vijay Kumar Mishra v. High Court of Patna [Vijay Kumar Mishra v. High Court of Patna, (2016) 9 SCC 313 : (2016) 2 SCC (L&S) 606] , this Court held that there is a distinction between selection and appointment. It was held that a person, who is successful in the selection process, does not acquire any right to be appointed automatically. Such a person has no indefeasible right of appointment.
22. It is, thus, well settled that merely because a person has been selected, does not give that person an indefeasible right of claiming appointment. As far as the present cases are concerned, results have not been declared and even the selection process is not complete. As such, there is no manner of doubt that the petitioners have no enforceable right to claim that the result should be declared or that they should be appointed if found meritorious.
23. Having held so, we must also note that the law is well settled that even though the candidates may not have a vested right of appointment and the State is not under any duty or obligation to fill up the vacancies, the State has to act fairly and it cannot act in an arbitrary manner. The decision, not to fill up the vacancies pursuant to the selection process, must be taken bona fide and for justifiable and appropriate reasons. In this regard, we may make reference to Shankarsan Dash v. Union of India [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800] .
25. The main attack against the decision of the Government is on the ground that the candidates had a legitimate expectation that pursuant to the written test and interview, their result would be declared and if found successful, they would be appointed. It is a well-settled law that even if there is no vested right, the principle of legitimate expectation can be invoked. Legitimate expectation arises when the citizens expect that they will be benefited under some policy or decision, announced by the State. At the same time, the law is well settled that the Legislature and the Executive can change any policy for good reasons. These good reasons must be such which are not arbitrary, which are not mala fide and the decision has been taken in the public interest. If the decision to change the policy is arbitrary or capricious then it may be struck down."
52. Shri Singh has relied upon Para - 7 of judgment rendered by Hon'ble Supreme Court in the case of Jai Singh Dalal v. State of Haryana15, relevant portion of which reads as under:
"7..........................The stage at which the last-mentioned notification came to be issued was the stage when the HPSC was still in the process of selecting candidates for appointment by special recruitment. During the pendency of the present proceedings the State Government finalised the criteria for special recruitment by the notification of March 9, 1992. Thus, the HPSC was still in the process of selecting candidates and had yet not completed and finalised the select list nor had it forwarded the same to the State Government for implementation. The candidates, therefore, did not have any right to appointment. There was, therefore, no question of the High Court granting a mandamus or any other writ of the type sought by the appellants. The law in this behalf appears to be well settled. In the State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] this Court held that the mere fact that certain candidates were selected for appointment to vacancies pursuant to an advertisement did not confer any right to be appointed to the post in question to entitle the selectees to a writ of mandamus or any other writ compelling the authority to make the appointment......................."
53. Summing up his arguments, Shri Singh has submitted that it can be said that the State Government while considering all the aforesaid facts and in public interest took a decision to cancel the requisition dated 23.06.2016 and advertisement dated 05.07.2016 and have also promulgated fresh service rules i.e. 2019 Rules by which not only 4% quota in the posts of Assistant Treasury Accountant has been given to the Junior Clerks but also the qualifications for the purposes of direct recruitment to the remaining 96% quota of Assistant Treasury Accountant has been changed. In view of the above, it would be appropriate to do the recruitment on the aforesaid posts afresh.
54. For the cases of Category - III, arguments advanced by Dr. L.P. Mishra and Shri Apporva Tiwari have been adopted as the said category of cases has been filed only for declaration of result held in pursuance of Advertisement dated 05.07.2016.
55. I have heard learned counsel for the parties of their respective petitions and perused the government orders, judgment as cited above as also the record.
56. The following are the issues involved in the instant case:-
"(I) Whether a Rule made under Article 309 of Constitution of India can be set at naught by executive fiat?
(II) Whether executive power under Article 162 of Constitution of India is coextensive with legislative power?
(III) Whether the petitioners of Category - II & III of the writ petitions have a vested right for selection in accordance with the terms of advertisement having successfully qualified the written examination?
57. For proper adjudication of the aforesaid issues, the impugned order dated 25.07.2019 vide which requisition dated 23.06.2016 and advertisement dated 05.07.2016 have been withdrawn/cancelled is reproduced herein below:-
la[;k&,l0&3&71@nl&2019@MCyw¼17½@18 isz"kd n;k 'kadj flag fo'ks"k lfpo] mRrj izns'k 'kkluA lsok esa] 1- lfpo] m0iz0 v/khuLFk lsok p;u vk;ksx y[kuÅA 2- funs'kd] dks"kkxkj] m0iz0] tokgj Hkou] y[kuÅA foRr ¼lsok;sa½ vuqHkkx&3 y[kuÅ % fnukad 25 tqykbZ 2019 fo"k; %& fjV ;kfpdk la[;k& 3522 ¼,l0,l½@2018] vuwi flag cuke m0iz0 jkT; o vU; esa ikfjr vkns'k fnukad 08-02-2018 ,oa fjV ;kfpdk la[;k& 11256 ¼,l0,l½@2018] jksfgr cktis;h cuke m0iz0 jkT; o vU; esa ek0 mPp U;k;ky; }kjk ikfjr vkns'k fnukad 19-04-2018 ds lEcU/k esaA egksn;] d`i;k mi;qZDr fo"k;d vk;ksx ds i= la[;k&1000@fof/k vuqHkkXk@10@956@2018@2019] fnukad 12-03-2019] dk lUnHkZ xzg.k djus dk d"V djsa] ftlds }kjk vk;ksx us fo"k;kafdr fjV ;kfpdkvksa esa ek0 mPPk U;k;ky; }kjk ikfjr vkns'kksa ds dze esa ;g voxr djkrs gq, fd izdj.k ij 'kklu dk fu.kZ; izkIRk u gksus dh fLFkfr esa ek0 mPp U;k;ky; }kjk ikfjr LFkxu vkns'k ds dkj.k vk;ksx }kjk lfEefyr lgk;d ys[kkdkj ,oa ys[kk ijh{kd ¼lkekU; p;u½ ijh{kk] 2016 dk vfUre p;u ifj.kke ?kksf"kr ugha fd;k tk ldk gS] ;g vuqjks/k fd;k gS fd lUnfHkZr izdj.k ij 'kklu }kjk fu.kZ; ysrs gq, fu.kZ; ls vk;ksx dks voxr djk;k tk;A 2& izdj.k esa lE;d fopkjksijkUr lgk;d dks"kkxkj ys[kkdkj ds 540 inksa ds p;u gsrq fnukad 05-07-2016 dks m0iz0 v/khuLFk lsok p;u vk;ksx dks izsf"kr vf/k;kpu okil fy;s tkus dk fu.kZ; fy;k x;k gSA vr,o bl lEcU/k esa eq>s ;g dgus dk funs'k gqvk gS fd d`i;k bl vf/k;kpu ls lEcfU/kr p;u izfdz;k dks fujLr fd;k tk; ,oa d`r dk;Zokgh ls 'kklu dks voxr djk;k tk;A ¼n;k 'kadj flag½ fo'ks"k lfpo
58. Rules 4, 5, 8 & 26 of 1978 Rules reads as under:-
"4. Cadre of service. - (1) The strength of the service and of each category of posts therein shall be such as may be determined by the Governor from time to time.
(2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under sub-rule (1) shall be as given in Appendix 'A':
Provided that-
(1) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby entitling any person to compensation, (2) The Governor may create such additional, permanent or temporary posts from time to time as he may consider proper.
5. Source of Recruitment - Recuritment to the various categories of posts in the service shall be made from the following sources:
"(a) Routine Grade Clerk - By direct recruitment (90%) and remaining 10% by promotion from amongst Group 'D' employees of the Treasuries of the concerned District(s)
(b) Senior Grade Clerk - By promotion from amongst permanent Routine Grade clerks in the Treasury of the concerned district(s)
(c) Assistant Treasury Head Clerk - By promotion from amongst permanent Senior Grade Clerks in the Treasury(s) of the concerned district(s)
(d) Additional Treasury Head Clerk/ Treasury Head Clerk - By promotion from amongst permanent Assistant Treasury Head Clerks, permanent Senior Grade Clerks and permanent Routine Grade Clerks, who have put in a minimum of 12 years continuous service as Routine Grade Clerks working in the Treasury of the concerned division.
Note- For the purpose of promotion, a combined seniority list shall be prepared by arranging the names of Assistant Treasury Head Clerks, Senior Grade Clerks and Routine Grade Clerks in the said order on the basis of the date of continuous service on the said post, so however, the inter se seniority of person in any category of post in any district shall not be disturbed."
8. Academic Qualification - A candidate for direct recruitment to the post of Routine Grade Clerks must have the qualification as prescribed in the Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1979.
26. Relaxation from the conditions of service - Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may, notwithstanding anything contained in the rules applicable in the case, by order dispense with or relax the requirement to that rule to such extent and subject to such condtitions as it may consider necessary for dealing with the case in a just and equitable manner. "
59. Government Order dated 20.11.1987 is reproduced hereinbelow:-
la[;k% ,l&3&3856@nl&87&34¼76½@¼78½@Vh0lh0&1 isz"kd] Jh oh0ds0 lDlsuk] izeq[k lfpo] foRr] mRrj izns'k 'kkluA lsok esa] funs'kd] dks"kkxkj funs'kky;] m0iz0 tokgj Hkou] y[kuÅA foRr¼lsok;sa½ vuqHkkx&3 y[kuÅ % fnuk¡d 20 uoEcj] 1987 fo"k;% dks"kkxkj deZpkfj;ksa ds inukeksa dk ifjorZuA egksn;] mi;qZDr fo"k; ds lEcU/k esa eq>s ;g dgus dk funs'k gqvk gS fd rkRdkfyd izHkko ls jkT;iky egksn; dks"kkxkjksa esa fuEufyf[kr rkfydk ds dkye&1 ds inukeksa dks dkye&3 eas mfYyf[kr inukeksa esa ifjofrZr fd;s tkus dh lg"kZ Lohd`fr iznku djrs gS %& orZeku inuke osrueku ifjofrZr inuke 1 2 3 1 dks"kkxkj eq[; fyfid 625&1360 lgk;d dks"kkxkj vf/kdkjh 2 fcy ikj.k fyfid@ psd jkbVj 470&735 dks"kkxkj ys[kkdkj 3 is'ku fyfid@ofj"B fyfid@vfHkys[kiky@vf/k"Bku fyfid bR;kfnA 430&685 lgk;d dks"kkxkj ys[kkdkj xzsM&1 4 dfu"B fyfid@L;kguohl 354&550 lgk;d dks"kkxkj ys[kkdkj xzsM&2 2- mi;qZDr inuke ifjorZu ds QyLo#i muds orZeku osruekuksa eas dksbZ ifjorZu ugha gksxk vkSj u gh bl vk/kkj ij fdlh vU; izdkj dk foRrh; ykHk bu inksa ds in/kkjdksa dks vuqeU; gksxkA 3- eq>s ;g Hkh dguk gS fd dks"kkxkjks esa dk;Z{kerk@n{krk c<+kus ds mn~ns'; ls Hkfo"; esa lgk;d dks"kkxkj ys[kkdkj xszM&2 ds inksa ij lh/kh HkrhZ ds fy;s U;wure 'kSf{kd vgZrk fdlh ekU;rk izkIr fo'ofo|ky; ls ¼xf.kr½ vFkok dkelZ¼,dkmUVsUlh½ ds lkFk Lukrd mikf/k gksxhA bl izlax esa fu;ekoyh esa vko';d la'kks/ku vyx ls fd;s tk;sxsA Hkonh;] g0@& oh0ds0 lDlsuk izeq[k lfpoA
60. Government Order dated 21.03.1990 is reproduced hereinbelow:-
la[;k& ,l&3&900@nl&90&100¼56v½@89 isz"kd] Jh jek 'kadj pkS/kjh] mi lfpo] m0iz0 'kkluA lsok esa] funs'kd] dks"kkxkj] m0iz0 y[kuÅA foRr¼lsok;sa½ vuqHkkx&3 y[kuÅ % fnuk¡d %% 21 ekpZ] 1990 fo"k; %& lerk lfefr m0iz0 ¼1989½ dks laLrqfr;ksa ij fy;s x;s fu.kZ;kuqlkj dks"kkxkj vf/k"Bku eas fofHkUu inksa ij iqujhf{kr osrueku dks Lohd`frA ¾ ¾ ¾ ¾ ¾ ¾ ¾ ¾ egksn;] eq>s mi;ZqDr fo"k;d 'kklukns'k la[;k&,l&3&2024@nl&100¼56v½@89] fnuk¡d 10&7&89 ds vkaf'kd la'kks/ku esa ;g dgus dk funsZ'k gqvk gS fd izns'k ds fofHkUu oxksZ ds deZpkfj;ksa gsrq lerk lfefr ¼1989½ dh laLrqfr;kas ij fopkj djus ds fy, xfBr eq[; lfpo lfefr dh laLrqfr;ksa ds ifjis{; esa fy;s x;s fu.kZ;kuqlkj jkT;iky egksn; mDr 'kklukns'k ds laYkXud ds i`"B&1 ds dze la[;k&2- 3- 4 ds lEeq[k LrEHk&2 esa mfYyf[kr inukeks ds fy;s LrEHk&8 esa vafdr osrueku rFkk LrEHk&9 esa dh x;h vfHk;qfDRk ds LFkku ij bl 'kklukns'k ds lkFk layXu rkfydk esa vafdr osrueku rFkk vH;qfDRk;ksa dks izfrLFkkfir djus dh lg"kZ Lohd`fr iznku djrs gSA mDRk 'kklukns'k fnukad 10&7&07 bl lhek rd la'kksf/kr le>k tk;A Hkonh;
g0& ¼jek 'kadj pkS/kjh½ mi lfpoA
61. Rule 7(1) & (2) of 2014 Rules reads as under:-
"7. Recruitment to the various categories of posts in the service shall be made from the following sources: (1) Junior Assistant -
(i) Eighty percent by direct recuritment.
(ii) Fifteen percent by promotion from amongst substantively appointed Group 'D' employees who have passed the High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent thereto and who possess the knowledge of typewriting in accordance with the Uttar Pradesh Subordinate offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion Rules, 2001, as amended from time to time.
(iii) Five percent by promotion from amongst substantively appointed Group 'D' employees who have passed the Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent thereto and who possess the knowledge of typewriting in accordance with the Uttar Pradesh Subordinate offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion Rules, 2001, as amended from time to time. (2) Senior Assistant -
By promotion through the Selection Committee from amongst substantively appointed Junior Assistants who have completed at least five years service as such on the first day of the year of recruitment."
62. Rule 5(1)(i) & (ii) of 2019 Rules reads as under:-
"5- Recruitment to the different categories of posts in the service shall be made from the following sources:-
(1) Assistant Treasury Accountant:
(i) Ninety Six percent by direct recruitment through the Commission.
(ii) Four percent by promotion through the Departmental Selection Committee from amongst substantively appointed Junior Assistants of the treasuries, who have completed five years of service as such and have passed departmental examination on the first day of the year of recruitment."
63. Crux of the argument advanced by counsel(s) appearing on behalf of the petitioners of Category - II & III of the writ petitions is that the petitioners appeared in the written examination for the post of Assistant Treasury Accountant in pursuance of Advertisement dated 05.07.2016 and they have qualified the same. Thereafter, they were called for interview. Earlier, the Government imposed ban upon the recruitment process on the ground that the said advertisement was issued in contrary to the provisions of 1978 Rules.
64. It is also argued on behalf of the petitioners that government can relax the Rules in respect of a class to appoint requisite qualified persons to mitigate the undue hardship without amending the Rules, and executive power under Article 162 of Constitution is co-extensive with legislative power to regulate the recruitment.
65. Further argument of the counsel(s) for the petitioners is that Government Orders dated 21.03.1990 and 30.04.1993 were issued by the Government in exercise of Rules 4 & 26 of 1978 Rules and the said rules have not been considered by the co-ordinate Bench of this Court while dealing with Indra Kumar Shrotria's case (supra). It is also the argument of the counsel(s) for the petitioners that since the petitioners have already qualified the written examination and appeared in the interview, therefore, there is a legitimate expectation of appointment of the petitioners on the post advertised.
66. Argument of learned Additional Advocate General on behalf of State is that there is no illegality in the impugned order dated 25.07.2019 as the same has been passed after considering 1978 Rules. It is further argued that provisions of statutory rules cannot be superseded by issuance of government orders. The advertisement was not in conformity with the 1978 Rules, as such, the same is untenable in the eyes of law.
Issue No.I is dealt as follows:-
67. Rule 5 of 1978 Rules deals with recruitment of various category of the posts in service. According to this provision, the post of Senior Grade Clerk/Assistant Treasury Accountant was required to be filled by way of promotion. However, subsequently, vide Government Order dated 21.03.1990, the post of Junior Clerk and Senior Clerk was merged but no amendment was made in the 1978 Rules.
68. From the discussions aforesaid, it is clear that the rules framed by the State exercising its power under proviso to Article 309 of Constitution of India, providing for recruitment to the post of Routine Grade Clerk and Senior Grade Clerk is distinct from what is provided in the Government Orders. The examination of rules as well as government orders makes it explicit that government order, which has been relied upon for the purpose of issuing advertisement is wholly inconsistent with the statutory rules framed by the State Government in 1978.
69. It is settled law that administrative instructions have no statutory force. The question as to whether an administrative instruction has a statutory force or not cannot be determined by checking whether the statutory provisions permit the administrative agency to issue such instructions. Any administrative instruction/government order given by a statutory body under its rule making powers dealing with service matters are not considered to have statutory backing.
70. Executive instructions cannot amend or supersede the statutory rules or add something therein, nor the orders be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory rule nor does it have any force of law. In Union of India & Ors. v. Somasundaram Vishwanath & Ors.16, the Hon'ble Supreme Court observed that if there is a conflict between the executive instructions and the rule framed under the proviso to Article 309 of the Constitution, the rules will prevail. Similarly if there is a conflict in the rules made under the proviso to Article 309 of the Constitution and the law, the law will prevail.
71. In Ram Ganesh Tripathi & Ors. v. State of U.P. & Ors.17, the Hon'ble Supreme Court considered the similar controversy and held that any executive instruction/order which runs counter to or is inconsistent with the statutory rules cannot be enforced, rather deserves to be quashed as having no force of law.
72. The Hon'ble Supreme Court in the case of Union of India & Ors. v. S.L. Abbas18, held that the instructions regarding the transfer of government servants requiring husband and wife to be posted at one place was a policy that government normally followed but not meant to be followed always. Therefore, the lack of statutory force can be seen as the reason for non-binding nature of administrative instructions or government orders.
73. The main purpose of administrative instruction/government order is to fill the lacunae in statutes and supplement the rules and regulations. It is often observed that such instructions directly trench upon the ambit of legislature. This gives rise to confusion as to whether the statute will be binding or the administrative instructions.
74. In the case of Jagjit Singh v. State of Punjab19, the Hon'ble Supreme Court has held that administrative decisions which run counter to statutory rules are not binding and their violation cannot be enforced in a Court of law. It is also held that the administrative decisions issued by Executive Authority cannot supersede a statutory provision.
75. In the case of V.T. Khanzode v. Reserve Bank of India20, the Hon'ble Supreme Court dealt with the binding nature of administrative instruction that modify a law promulgated by legislature. In this case, Reserve Bank of India laid down guideline for promotion of its employees. As per the regulations, the promotion could only be within the group to which employee belonged or on the basis of seniority. Later another circular issued by Reserve Bank of India changed this system. In this case, the staff regulation was held not to be under the Reserve Bank of India Act, 1934 and therefore, was not a rule.
76. In Punit Rai v. Dinesh Chaudhaty21 and State of Kerala & Anr. v. Chandra Mohan22, the Apex Court held that executive instructions cannot be termed as law within the meaning of Article 13(3)(a) of the Constitution of India.
77. In the instant case, if the post of Senior Clerk which has been re-designated as Assistant Treasury Accountant, is treated to be filled by way of direct recruitment, the avenues of promotion which are available to Routine Grade Clerk under the 1978 Rules would be taken away. The co-ordinate Bench of this Court in Indra Kumar Shrotria (supra) has already observed that the qualifications as well as the other conditions of service have all been provided for in the 1978 Rules. It is admitted facts that these rules have not undergone any amendment.
78. The petitioners expressly emphasised that Rule 4 of the 1978 Rules empowers the State Government to determine the strength or to alter the strength of service by executive orders. They have also emphasised that Rule 26 of 1978 Rules empowers the State Government to dispense with or relax the requirement of any rule. I have perused Rule 4 of 1978 Rules, it does not empower the department/government to issue any administrative order/government order in contrary to any provision of 1978 Rules. Government orders may be issued from time to time in conformity with the provisions of 1978 Rules. Here, the government orders issued from time to time by the department changed the scope of Rule 5 of 1978 Rules. The entire provisions of recruitment has been amended/changed by the administrative order(s). An executive order cannot go against or override the express statutory prescriptions. Unless the rules are amended in terms of the executive order, by appropriate means, the same cannot be sought to be enforced.
Issue No. II is dealt as follows:
79. In M/s. Bishamber Dayal Chandra Mohan v. State of U.P. and Ors.23, the Hon'ble Supreme Court explained the difference in a statutory order and an executive order observing that executive instruction issued under Article 162 of the Constitution does not amount to law. However, if an order can be referred to a statutory provision and held to have been passed under the said statutory provision, it would not be merely an executive fiat but an order under the Statute having statutory force for the reason that it would be a positive State made law. So, in order to examine as to whether an order has a statutory force, the Court has to find out and determine as to whether it can be referred to the provision of the Statute.
80. In Rai Sahib Ram Jawaya Kapur & Ors. v. State of Punjab24, the Supreme Court held that it was not necessary that there should be law already in existence before the executive is enabled to function and that the powers of the executive were limited merely to the carrying out of these laws. There was nothing in terms of Article 309 of the Constitution of India which abridges the powers of executive to act under Article 162 of the Constitution of India without a law. The Court, however, put a word of caution in mentioning that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or Rule. It could not in exercise of executive power under Article 162 of the Constitution of India ignore or act contrary to that Rule or Act.
81. The State is bound by the constitutional scheme to treat all persons equally in the matter of grant of public employment as envisaged under Article 14 & 16 of the Constitution of India. Policy taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of Constitution of India. A purported policy decision issued by way of an executive instruction can not override the statute or statutory rules far less the constitutional provisions. The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. It is settled law that any order, instruction, direction or notification issued in exercise of the executive power of the State, which is contrary to any statutory provisions, is without jurisdiction and is nullity.
82. Though, the argument of the learned counsel for the petitioners appears to be attractive, it cannot be accepted in view of the settled law that government order(s)/administrative order(s)/executive order(s) cannot override the statutory rules i.e. 1978 Rules. The department may be advised to take necessary action to amend all the relevant rules separately instead of issuing government orders contrary to the provisions of 1978 Rules. It is also taken into notice that the 2019 Rules have already been promulgated. It is argued on behalf of the State that after promulgation of 2019 Rules, it would be appropriate to initiate fresh recruitment in accordance with 2019 Rules, after issuing fresh advertisement.
83. In view of the above legal proposition as held by Hon'ble Supreme Court, it is settled law that executive instructions cannot override the statutory provisions. Executive instructions cannot amend or supersede the statutory rules or add something therein, nor the orders issued in contravention of statutory rules for the reason that an administrative instruction is not a statutory rule nor does it have any force of law. Consequently, the Government Order dated 21.03.1990 whereby the post of Routine Grade Clerk/Junior Clerk/Assistant Treasury Accountant Grade - II and Senior Clerk/Assistant Treasury Accountant Grade - I was merged thereby creating a new substantive post of Assistant Treasury Accountant is violative of Rule 5 of 1978 Rules as the said rule does not provide for any such post.
84. In view of the above, Issue No. I is answered as any executive instruction cannot be issued in contravention of the rules framed under the proviso to Article 309 of Constitution of India and statutory rules cannot be set at naught by the executive fiat.
85. Issue No.II is answered as the policy taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of Constitution of India.
Issue No.III is dealt as follows:
86. So far as contention of the petitioners' counsel in respect of legitimate expectation and vested right of the petitioners of Category - II & III of the writ petitions for appointment on the post of Assistant Treasury Accountant is concerned, the Hon'ble Supreme Court in Para - 12 & 16 in the case of Jatinder Kumar & Ors. v. State of Punjab & Ors.25, has held as under:-
12..........................Whenever the Government is required to make an appointment to a higher public office it is required to consult the Public Service Commission. The selection has to be made by the Commission and the Government has to fill up the posts by appointing those selected and recommended by the Commission adhering to the order of merit in the list of candidates sent by the Public Service Commission. The selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Government. The Government may accept the recommendation or may decline to accept the same. But if it chooses not to accept the recommendation of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reasons and report for doing so. Thus, the Government is made answerable to the House for any departure vide Article 323 of the Constitution. This, however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If, however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet will except for other good reasons viz. bad conduct or character. The Government also cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus.
"16. An argument of desperation was further advanced about promissory estoppel stopping the State Government from acting in the manner it did in not appointing the appellants although their names had been recommended. The notification issued by the Board in this case was only an invitation to candidates possessing specified qualifications to apply for selection for recruitment for certain posts. It did not hold out any promise that the selection would be made or if it was made the selected candidates would be appointed. The candidates did not acquire any right merely by applying for selection or for appointment after selection. When the proposal for disbandment of the Punjab Armed Police Battalion and instead creation of additional posts for the district police was turned down by the State Government, the appellants were duly informed of the situation and there was no question of any promissory estoppel against the State."
(Emphasis supplied)
87. In the case of S.S. Balu v. State of Kerala26, the Hon'ble Supreme Court has held that a person does not acquire a legal right to be appointed only because his name appears in the select list. The State as an employer has a right to fill up all the posts or not to fill them up.
88. In the case of Rajasthan Public Service Commission v. Chanan Ram & Anr.27, the following has been held in Para - 17 (relevant portion):
"17. In the case of State of M.P. v. Raghuveer Singh Yadav [(1994) 6 SCC 151 : 1994 SCC (L&S) 1317 : (1994) 28 ATC 255] a Bench of two learned Judges of this Court consisting of K. Ramaswamy and N. Venkatachala, JJ., had to consider the question whether the State could change a qualification for the recruitment during the process of recruitment which had not resulted into any final decision in favour of any candidate. In paragraph 5 of the Report in this connection it was observed that it is settled law that the State has got power to prescribe qualification for recruitment. In the case before the Court pursuant to the amended Rules, the Government had withdrawn the earlier notification and wanted to proceed with the recruitment afresh. It was held that this was not the case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered according to the rules then in vogue. The amended Rules had only prospective operation. The Government was entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State was entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules..........................."
(Emphasis supplied)
89. It is settled law that there is no legal right vested in the candidates to be selected for appointment. Selected candidates have only "a right to be considered" whereas in the facts of the present case, the petitioners are not even selected for the post in question. When selected candidates cannot claim, as a matter of right, to be appointed then where is the question of appointment of those who are not even selected. Merely because a candidate's name appear in the select list, it will not entitle him to be appointed. Thus, facts of the present case is worse as the present petitioners are not even falling within the category of select list. Thus, petitioners of Category - II & III of the writ petitions have no legal right to be appointed for the post in question. In such circumstances, impugned order dated 25.07.2019 withdrawing the requisition dated 23.06.2016 and advertisement dated 05.07.2016, which were violative of 1978 Rules, is correct and in accordance with law.
90. Accordingly, Issue No.3 is answered as above.
91. So far as petitioners of Category - I of writ petitions are concerned, they are claiming promotion on the post of Senior Clerk/Assistant Treasury Accountant as per 1978 Rules. The Hon'ble Supreme Court in the case of S.B. Bhattacharjee v. S.D. Majumdar28, the following has been held:-
"13. Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby. The terms and conditions of service of an employee including his right to be considered for promotion indisputably are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India."
92. Clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14 of Constitution of India. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity" in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.
93. In view of foregoing discussion, I do not find any illegality in the order dated 25.07.2019 whereby requisition dated 23.06.2016 and advertisement dated 05.07.2016 have been withdrawn. Consequently, writ petitions of Category - II & III viz. Writ Petition Nos. 24163 (SS) of 2019, 24568 (SS) of 2019, 8430 (SS) 2019, 31120 (SS) of 2019, 34847 (SS) of 2019, 5246 (SS) of 2019, 33850 (SS) of 2019, 1227 (SS) of 2020, 2346 (SS) of 2020, 1930 (SS) of 2020, 3920 (SS) of 2020, 4809 (SS) of 2020, 13450 (SS) of 2020, 2283 (SS) of 2020, 5096 (SS) of 2020, 18174 (SS) of 2020, 19826 (SS) of 2020 & 612 (SS) of 2021 are dismissed.
Writ petitions of Category - I viz. Writ Petition Nos. 3522 (SS) of 2018, 5117 (SS) of 2018, 29564 (SS) of 2018, 22992 (SS) of 2018, 19124 (SS) of 2018 & 14474 (SS) of 2018 are disposed of with direction to the respondents to consider the petitioners thereof for promotion on the post of Senior Clerk/Assistant Treasury Accountant in accordance with 1978 Rules as amended from time to time.
Order Date :- 22.06.2021 Nishant (Chandra Dhari Singh, J.)