Allahabad High Court
Vijay Kumar Srivastava And 3 Others vs State Of U.P. And Another on 4 November, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - A No. - 12686 of 2019 Petitioner :- Vijay Kumar Srivastava And 3 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- R.B. Singh Counsel for Respondent :- C.S.C. Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Grijesh Tiwari learned counsel for the petitioner and Sri Gopal Chandra Saxena learned Standing Counsel for the State respondents.
2. Present writ petition has been filed seeking quashing of the order dated 15.5.2019 passed by the Directorate of Training and Employment, Lucknow whereby it has cancelled the advertisement dated 07.11.2014 earlier issued, only with respect to selection and appointment of 35 Instructors (Employability Skills), to be posted at various Government ITIs.
3. It is not in dispute that the petitioners applied pursuant to the above advertisement. They were found to be eligible. However, the selection process remained pending for almost two years. On 19.12.2016 a Memorandum came to be issued by the Directorate of Training and Employment. It reads as below:-
"विज्ञापन सं० अनु० प्रशिक्षण/1/2014 दिनांक 07.11.2014 में विज्ञापित विषय इम्प्लायबिलिटी स्किल हेतु निर्धारित शैक्षिक अर्हता के अर्न्तगत 12वीं / डिप्लोमा स्तर और उच्च स्तर पर अंग्रेजी / कम्यूनिकेशन स्किल्स तथा बेसिक कम्प्यूटर का अध्ययन निर्धारित है। अतः आप अपने उपरोक्त सम्बन्धी अभिलेख की राजपत्रित अधिकारी द्वारा प्रमाणित छायाप्रति इस निदेशालय में दिनांक 23.12.2016 अपराहन 05:00 बजे तक श्रीमती आशारानी, मुख्य प्रशासनिक अधिकारी को हस्तगत कराने का कष्ट करें। उक्त अभिलेखों की राजपत्रित अधिकारी द्वारा प्रमाणित छायाप्रति को आप ई-मेल आई डी [email protected] पर भी उक्त निर्धारित तिथि व समय तक प्रेषित कर सकते हैं।
4. Pursuant thereto the petitioner claims to have uploaded necessary details on the portal. Prior to that, in the month of November 2016, interviews were held for all posts advertised under the above advertisement dated 07.11.2014 including 35 post of Instructor (Employability Skill). While result for all other posts have been declared, selection pertaining to the Instructor (Employability Skill) remained pending. At that stage, petitioners filed Writ-A No. 35835 of 2017 wherein instructions were called from the respondents to inform the Court as to the reason for non declaration of the results of the petitioners. At that stage, the respondents proceeded to cancel the selection process for the post Instructor (Employability Skill), vide communication dated 09.11.2017. The said decision was based on an information of the Apex Selection Committee. Relevant extract of the communication dated 09.11.2017 is quoted below:-
क्रम सं० प्रशिक्षण महानिदेशालय (डी० जी०टी०) भारत सरकार द्वारा इम्प्लाय आबलिटी स्किल अनुदेश पद हेतु निर्धारित मानक अनुदेशक चयन हेतु निकाले गये विज्ञापन / पोर्टल में हुयी त्रुटि
1.
ए०बी०ए० उत्तीर्ण हेतु अनुभव की आवश्यकता उल्लिखित नही है।
विज्ञापन में प्रत्येक व्यवसाय/पद हेतु अनुभव अनिवार्य रखा गया है जिनके कारण जिसके पास अनुभव नही था किन्तु तकनीकी योग्यता (एम०बी०ए०) धारक थे। उन्हे इस पद पर आवेदन प्राप्त नही हो सका।
2. डी०जी०टी०, भारत सरकार के मानक के अनुसार अभ्यर्थी को इण्टरमीडिएट परीक्षा / डिप्लोमा/ उच्च स्तर पर परीक्षा उत्तीर्ण करने के साथ अग्रेजी विषय / कम्यूनिकेशन का अध्ययन किया जो तथा उसी स्तर पर बेसिक कम्पयूटर का अध्ययन किया हो, आवश्यक है।
जब कि विज्ञान से सम्बन्धित पोर्टल पर मे डी०जी०टी० भारत सरकार के इस मानक से सम्बन्धित विवरण को अपलोड करने का विकल्प त्रुटिवंश उपलब्ध नही था, जिससे चयन प्रक्रिया में प्रक्रियात्मक त्रुटि पाई गयी।
3. अधिमानी अर्हताए नही है।
जबकि विज्ञापन में प्रत्येक व्यवसाय में अधिमानी अर्हता त्रुटिवंश प्रकाशित हुयी है।
4. भारत सरकार के मानक के अनुसार पद हेतु शिल्पकार अनुदेश प्रशिक्षण के अधीन ट्रेनिग मैथोडोलोजी / पी०ओ०टी० का प्रमाण पत्र और एन० आई०एल०आई०टी० यदि किसी अन्य समकक्ष मान्यता प्राप्त संस्था से सी०सी०सी० में प्रमाण पत्र का प्रविधान उल्लेखित नही है।
जबकि विज्ञापन मे इस विषय के लिये शिल्प अनुदेशक प्रशिक्षण योजना के अधीन ट्रेनिंग मैथोडोलाजी / पी०ओ०टी० का प्रमाण पत्र और एन०आई०एल०आई०टी० यदि किसी अन्य समकक्ष मान्यता प्राप्त संस्था से सी०सी०सी० में प्रमाण पत्र का प्रविधान अधिमानी है।
5. The petitioners assailed the said decision by means of Writ-A No. 8366 of 2018. Since submissions have been advanced on the strength of that decision, it would be apposite to take note of the entire order dated 20.2.2019 whereby that petition was disposed of requiring the respondents to take a fresh decision in the matter:-
"Following order was passed in the matter on 23.01.2019:-
"Selection advertised earlier has been nullified by the competent authority on the ground that specification of qualification in the advertisement is contrary to the prescription given by the Government of India, Ministry of Labour and Employment. This finding is assailed on the ground that the qualification prescribed by the Director General at page 131 of the writ petition is identical to what is prescribed in the advertisement also. Submission is that the authorities have proceeded to cancel the advertisement on a non-existent ground and order impugned suffers from non application of mind.
Learned Standing Counsel prays for a short indulgence to clarify this aspect.
List amongst top ten cases on 6.2.2019. "
Learned Standing Counsel has obtained instructions, according to which, the advertisement published by the institution was at variance with prescription of qualification laid down by the Directorate General of Employment and Training (DGET).
Issue raised is as to whether two years experience specified in the advertisement is based upon the circular of the Director General or not?
Along with the petition, the syllabus of Employability Skills in the scheme issued by the Directorate General of Employment and Training has been brought on record. For the post in question the qualification has been specified as under:-
"MBA OR BBA with two years experience OR Graduate in Sociology/Social Welfare/Economics with Two years experience OR Graduate/Diploma with Two years experience and trained in Employability Skills From DGET institutes AND Must have studied English/communication Skills and Basic Computer at 12th/Diploma level and above"
This Court finds substance in the contention of the petitioners that two years experience was prescribed under the Circular of the DGET and the respondents are not justified in saying that the advertisement is contrary to the provisions of circular issued by the Directorate General.
A perusal of the records would go to show that report of the expert committee constituted by the respondents on 08.11.2016 has also come to the conclusion that selections have been held in accordance with law and that the result be declared.
Aforesaid aspects do not appear to have been examined by the respondents while declining to grant approval to declaration of result or making of appointments.
Consequently, this petition stands disposed of, requiring respondent No.2 to take a fresh decision in the matter relating to declaration of result, pursuant to examination conducted, within a period of two months from the date of production of certified copy of this order. In order to facilitate the respondents to take a fresh decision, the impugned order dated 09.11.2017 stands quashed.
6. In compliance of that decision, present impugned order has been passed. Amongst others, it has been recorded in that order that the requisite educational qualification prescribed for appointment on the post of Instructor (Employability Skill) as per the Directorate General of Employment and Training (DGET), Government of India was MBA or BBA with two years' work experience or other alternative qualifications. However in the advertisement dated 07.11.2014, inadvertently two years' work experience was mentioned as essential qualification even for candidates possessing MBA degree. Second, it has been mentioned, at the relevant time, candidates were not facilitated to upload their certificates of class-12 and diploma examinations as also certificates etc. for English and communication skills as also basic computer education. Third, it has been mentioned that the above qualifications or additional qualification were not prescribed by DGET therefore, all eligible candidates could not apply under the advertisement dated 07.11.2014. Fourth, it has been mentioned, in the award of marks to the candidates who had applied for selection, less marks came to be awarded to candidates holding MBA degree solely for reason of their not having work experience of two years. Other reasons have also been mentioned in the impugned order. However, those are either repetition of the reasons noted above or such as the State does not seek to rely.
7. In the context of the above facts, learned counsel for the petitioner has vehemently urged, in the first place, no prejudice came to be caused to any of the candidate for reason of the class-12/diploma/computer education certificates being not allowed to be uploaded, initially. Relying on the corrigendum dated 19.12.2016 (quoted above) it has been urged, all candidates were able to upload those details. Therefore, the reason cited in the impugned order is plainly an eye wash. Second, it has been submitted, additional qualifications referred to in the impugned order were not essential qualifications or qualifications as may have led to award of higher marks to any candidate. Referring to clause-2 of the qualification required for selection on the post of Instructor (Employability Skill), it has been asserted, the additional qualifications were such as could be acquired by a selected candidate, within three years of his selection that too against leave to be granted. Therefore, in the submission of learned counsel for the petitioners no ineligibility came to be earned by any prospective candidate. Accordingly, no prejudice was ever caused to any person as may have led to cancellation of the entire selection process. Third, it has been submitted, even if any discrepancy in marks had arisen at the stage of selection and even if lesser marks had been awarded to candidates holding MBA degree, that mistake was not owing to any conduct offered by the petitioners. Once that mistake had been discovered before declaration of the result, it was always open to the respondents to rectify the same and declare the revised result accordingly. However, it was not open to them to cancel the entire selection process. Fifth, referring to the earlier order dated 09.11.2017 and the decision of this Court in Writ-A No. 8366 of 2018 dated 20.2.2019, it has been submitted, the Court had disapproved the reasoning given in the communication dated 09.11.2017 and required the authorities to take a fresh decision in the matter. Therefore, it did not survive for consideration with the respondents to pass another order on the self same reasoning. The reasoning being now given in the impugned communication is the very same as had been earlier disapproved by the Court. Last, it has been submitted, petitioners have put in their best effort to seek selection on the post of Instructor (Employability Skill). They were never at fault. For reason of delays and mistakes of on the part of respondents, petitioners have now become over aged and cannot participate in any further examination for such post. In any case, different qualifications have now been prescribed for such selection. Petitioners do not possess those qualifications. Therefore, undue hardship would be caused to the petitioners for no fault of theirs. Accordingly, it has been submitted, impugned order is wholly arbitrary and unsustainable. It may be set aside and a direction may be issued to the respondents to declare the result and engage the selected candidates.
8. On the other hand, learned Standing Counsel would submit, there was a mistake in the publication of the advertisement which led to an ambiguity as to work experience being essential qualification even for candidates holding MBA degree. That led to many an eligible candidate from not applying for selection. Then, the certificates of class-12, diploma, English, communication skill and computer education were allowed to be uploaded two years after issuance of the advertisement. Plainly, there was a long delay as had vitiated the selection process, to that extent. Candidates had applied two years earlier. With reference to the cut-off date 10.12.2014, too much time has passed till December 2016 to allow for that correction to be made. As to the third submission advanced by learned counsel for the petitioner, it has been submitted once it is undisputed that the qualifications had to be those prescribed by DGET, mention of additional qualifications as a compulsory qualification to continue in the job was contrary to law. The fact that such qualification was allowed to be acquired by a selected candidate up to three years after selection, would make no difference. Fourth, it has been submitted, once a mistake was noted in the award of marks whereby candidates holding MBA degree without work experience had been awarded less marks, that defect in the selection process permeated through and through. The interviews being over and the Board having been dissolved, it could have been an opaque exercise on the part of respondents to seek correction in the award of marks.
9. In any case, in view of the discrepancy noted above, the respondents took an informed decision to cancel only that part of the selection process as was referable to the post of Instruction (Employability Skill). No such defect was found in the other selections. Therefore, the results for all other posts were declared. That done, respondents have advertised fresh selection on the post of Instructor (Employability Skill). That advertisement having been issued by the Commission on 03.1.2022. Selection process is pending. As to the submission raised on the earlier decision of the Court and the order of this Court arising therefrom in Writ-A No. 8366 of 2018, it has been submitted, other than the issue of work experience for persons holding MBA degree, no other issue had been raised or decided. Therefore, in absence of any specific direction to pass fresh order limited to certain issues only, the order dated 20.2.2019 passed in Writ-A No. 8366 of 2018 was an order of open remand. Therefore, it was open to the respondents to again rely on that part of the reasoning in the impugned order, that had not been considered or disapproved in the earlier decision of the Court. As to the hardship being cited by the petitioners, it has been submitted, no legal right ever vested with the petitioners to be appointed on any post. Mere completion of the selection process or even declaration of the result may not vest such persons with any right to employment. All that may survive for consideration is whether the action impugned was vitiated with patent arbitrariness or discrimination. In view of earlier submission advanced, learned Standing Counsel would submit, there is not such case made out, in the present facts. Therefore, hardships, if any, may not merit any relief in equity when the entire selection process is found to be vitiated.
10. Having heard learned counsel for parties and having perused the record, in the first place it may never have been open to the respondents to cancel the selection process on a reading of the advertisement with respect to work experience prescribed as essential qualification for candidates holding MBA degree. Relevant clause of the advertisement makes it plain that essential qualification was MBA or BBA with two years' work experience. That reasoning contained in the impugned order is plainly perverse. Also, same had been specifically disapproved by this Court in Writ-A No. 8366 of 2018, decided on 20.2.2019. Therefore, it was never open to the respondents to rely on that reasoning in the impugned order.
11. Apart from the above, learned Standing Counsel is quite right in his submission that other defects were open to be considered by the respondents. In the first place, the earlier decision dated 20.2.2019 in Writ-A No. 8366 of 2018 is not a decision of any issue other than the issue of work experience for candidates holding MBA degree. There is no discussion of any issue other than that issue in the above noted decision of the Court. On that, the Court had specifically found that advertisement was not contrary to the provision of the Circular issued by the DGET.
12. As to the further aspects, though some of them were mentioned in the communication dated 09.11.2017, there is no discussion to the same, in the earlier decision of this Court. The only inference that may be reached is, those issues were not raised or pressed by the petitioners in that petition. If that be so, it may have led to an adverse inference against the petitioners and not the respondents inasmuch as they would be barred to raise that plea in fresh proceedings on the principle of constructive res judicata. However, that technical view does not appeal to the Court, at this stage in light of the specific direction issued by the Court-to remand the matter to the respondents, to pass a fresh order.
13. In absence of any adjudication made on other issues and in absence of any limitation placed in the remand made by the Court, it did remain open to the respondents to again rely amongst others on the reasons that had not been considered or disapproved by the Court in its earlier decision, noted above. In the context of an open remand made, that course was certainly open to be adopted.
14. Therefore, principally and also procedurally there is no defect in the approach adopted by the respondents in relying on such part of the reasoning of the earlier order dated 09.11.2017 that had not been touched upon by this court in its order dated 20.2.2019. The same remains to be tested by the Court in the present proceedings.
15. Coming to that part of the reasoning as has been heavily relied upon by the learned Standing Counsel, it does appear that the additional qualification prescribed in the advertisement with respect to certificate/diploma of class-12/computer education/English and communication skill were not qualifications prescribed by DGET. There being no dispute to the fact that the authority to prescribe qualification vested with the DGET, the respondents had not acted in accordance with law while prescribing such additional qualification. The fact that they provided for such additional qualification to be acquired after selection did not cure the inherent illegality that crept in the advertisement. Once a prospective candidate was required to necessarily acquire additional qualification (even if after his selection), that too at his own cost, it never remained a matter of choice to him to acquire or not acquire such qualification. Only the cut-off date to acquire such qualification had been altered. However, in the event of such a candidate being selected and not acquiring or failing to acquire that additional qualification, he would have to face the consequence of termination of his services. Looked in that light, the essential qualification had been altered in the advertisement dated 07.11.2014, contrary to the stipulation of the DGET. That could not have been cured except by withdrawing that condition and allowing the affected candidates an opportunity to apply.
16. Rather than doing that, at the relevant time, respondents chose to issue a corrigendum that too almost a month after conduct of the interviews, allowing the candidates to upload the necessary certificates and diploma. In the first place, the basic infirmity in the advertisement came to be compounded upon insistence to upload the additional qualifications. Second, and more importantly for the neutrality and fairness of the selection process, such a corrigendum may never have been issued after conduct of interviews. Once candidates had been interviewed, the selection process ought to have been completed. By allowing the candidates to fill up certain details, the transparency of the procedure got impaired. It is so, because other than the corrigendum notification dated 19.12.2016 there is not material with the Court to infer that all candidates had been communicated the desired information and had been given desired opportunity to upload their necessary testimonials (with respect to the additional qualifications).
17. Then, with respect to the award of lesser marks to candidates holding MBA degree, having no work experience, is a factual issue. That issue having been raised in the impugned communication, it cannot be lightly brushed aside in absence of any serious challenge to the same. It also does not lie with the petitioners to contend that the respondents should have corrected their mistake. That course if adopted would have been a completely opaque exercise that may neither be permitted nor contemplated in the interest of fairness of public examinations. Interviews having been held by duly constituted Board, the Boards stood dissolved. Thereafter, the marks awarded could not have been moderated or revised, in such circumstances.
18. In the context of selection process having been cancelled, it is found that the infirmities noted by the respondents were such as may have permeated through and through the entire selection process. It may not have been possible or open to the respondents to make corrections in the same while preserving the integrity of the selection process. Any intereference made in that regard, would itself create a larger infirmity in the process.
19. In any case, in absence of any right with the petitioners to appointment solely on the strength of interviews held, it was within the preserve of the respondents to cancel the selection process in the larger interest of the public at large. That decision is shown to have been made on an objective criteria based on relevant material. Therefore, there is no arbitrariness or discrimination found existing. The fact that there were some delays in declaration of the result on the post of other Instructors, under the same advertisement would also be of no consequence. In absence of similar dispute existing in those selections, they would continue to stand on a different footing.
20. As to hardships, it would have been possible to grant some relief to the petitioners, if violation of law had been found to have been committed by the respondents. Equitable considerations howsoever attractive and appealing, must find expression through mind and reasons of the Court. Unless there exists any sustainable reason in law, such relief may not be granted purely on equitable considerations-of the petitioners having lost years or opportunity.
21.Accordingly, the writ petition lacks merit and is accordingly dismissed. No order as to costs.
Order Date :- 4.11.2022/Faraz