Allahabad High Court
Priya Sharma vs State Of U.P. And 13 Others on 8 February, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- WRIT - A No. - 16355 of 2022 Petitioner :- Priya Sharma Respondent :- State Of U.P. And 13 Others Counsel for Petitioner :- Anurag Tripathi Counsel for Respondent :- C.S.C.,M.N. Singh Hon'ble Jaspreet Singh,J.
1. Heard Sri Anurag Tripathi, learned counsel for the petitioner as well as Sri Nisheeth Yadav, learned counsel for the respondent no. 3 and the learned Standing Counsel for the State-respondents.
2. By means of the instant petition, the petitioner prays for the following reliefs:-
" (I). Issue a writ, order o direction in the nature of certioari quashing the revised result/Press Communique & select list, dated 23.08.2022 (Annexure No. 9 to the writ petition), to the extent that relates to the result of the post of "Staff Nurse Female" under the Medical and health services department & Medical Education & Training Department, declared by UPPSC/respondent no. 3 under Advertisement No. A-4/E-1/2021 dated 16/07/2021.
(II) Issue a writ, order or direction in the nature of mandamus commanding respondent no. 3 to declare the fresh result for the post of "Staff Nurse Female" under the Medical and health services department & Medical Education & Training Department, considering the experience of the petitioner by adding 15 marks based on the experience in the marks of written examination, giving place to the petitioner in the select list, further, to revise the final result/select list accordingly;
(III) Issue a writ, order or direction in the nature of mandamus commanding the respondent-authorities, to fill up the vacant seats of "Staff Nurse Female" under the medical health services department & Medical Education & Training Department, from amongst unfilled 1638 seats under Advertisement No. A-4/E-1/2001 dated 16/07/2021"
3. The case of the petitioner is that she had applied for the vacant seats against the Staff Nurse (Female), posts which were to be filled up under the Medical Education & Health Services Department & Medical Education & Training Department for which an advertisement dated 16.07.2021 was issued.
4. The contention of learned counsel for the petitioner is that as per the advertisement, a candidate was to appear in a written examination of 85 marks and the minimum cut-off marks were to be obtained. 15 marks were to be awarded towards 5 years experience, three marks to be awarded for each year of experience and this was to be added to the marks obtained in the written examination to determine the cut-off.
5. It is in furtherance thereof, it is urged that the petitioner had obtained 25.30 marks out of 85 marks in the written examination under the EWS category but no marks were awarded to her on account of her experience. It is further urged that she had submitted an experience certificate indicating that she had worked with the Sardar Vallabh Bhai Patel Hospital & Lala Lajpat Rai Memorial Medical College, Meerut as a staff nurse for five years since 03.06.2016 and as such the petitioner was entitled to be granted 15 marks towards her experience. It is urged that in case if the said marks are awarded to the petitioner, she would make the cut-off list and in this view, she has been discriminated by not being awarded the necessary marks for her experience.
6. The record indicates that the Court by means of order dated 25.11.2022 had required the learned counsel for the Selection Commission to seek instructions and indicate as to why marks for said experience has not been awarded to the petitioner. Subsequently, by means of order dated 06.02.2023, it was also required from the Selection Commission to inform that what is the minimum cut-off marks.
7. In response to the aforesaid, Sri Nisheeth Yadav, learned counsel appearing for the Selection Commission informs that the minimum cut-off mark for medical health services for females under the EWS category for which the petitioner had applied, was 40.14.
8. It has also been informed that the petitioner has acquired 25.30 marks in the written examination but the Selection Board did not grant the marks for the experience since the advertisement clearly indicated that the experience certificate which was required to be submitted ought to have been issued by the Appointing Authority.
9. It is urged that in the case of the petitioner, the certificate which was submitted was issued by the Hospital in question who is not the Appointing Authority of the petitioner and thus her experience certificate was not taken note of, accordingly, she did not make the minimum cut-off, therefore, she was not selected.
10. Controverting the aforesaid submissions, the learned counsel for the petitioner submits that the record would indicate that the petitioner had been working with the said Medical College and the experience certificate, a copy of which has been brought on record as Annexure no. 4 has been issued by the Officer-in-charge of the Blood Bank of the Medical College concerned.
11. It is further urged that it is not a case where the petitioner did not possess the requisite experience, the only discrepancy is that the same has been issued by the Medical College concerned and not by the Appointing Authority.
12. It has further been urged that the respondents-Selection Commission were also under a dilemma in ascertaining which certificates were to be treated as valid and had sought the clarification. Attention of the Court has been drawn to the Annexure No. 6 which has been filed along with the counter affidavit filed by the respondent no. 3. and it is submitted that this letter indicated that the Authorities were not clear as to who will be the appropriate Authority to grant the experience certificate. It is urged that this in itself indicates that there was enough leverage available with the Authority to have considered the case of the petitioner for certain relaxation and in any case the exercise of seeking clarification is post the issuance of the advertisement and the thrust of the submission is that the respondent-authorities are attempting to change the rules of the game once the game has began for this exercise is not permissible.
13. It is thus submitted that this diabolical stand of the respondents may not be taken as a detriment in case of the petitioner as admittedly if she been given the requisite marks for her experience, she would make it to the minimum cut-off list and this should ensure to the benefit of the petitioner.
14. In support of his submissions, the learned counsel for the petitioner has relied upon a decision of the Apex Court in the case of K. Manjusree Vs. State of Andhra Pradesh and Another (2008) 3 SCC 512 and specific reliance has been placed on paragraph 28 and 29 to buttress his submissions that the Authorities are not at liberty of changing the rules of game once it is begins.
15. The learned counsel for the petitioner has also relied upon a decision of the Apex Court in the case of Bedanga Talukdar Vs. Saifudaullah Khan and others in (2011) 12 SCC 85 and reliance has been placed on paragraph 28 of the said report to submit that once there is some interplay to relax the rules then it is necessary that all persons must be duly notified of the same and a public authority cannot adopt a pick and chose method to benefit only some persons who may be entitled to the said relaxation while the others are deprived.
16. The learned counsel for the petitioner has attempted to submit that in the instant case, the clarification which has been sought regarding who would be the Appointing Authority indicates that they were in confusion and after having received the reply and proceedings on the said basis amounts to relaxing certain conditions and in case if such relaxation is provided then it ought to have been duly notified so that all persons who are now being deprived could have also taken the benefit and in the instant case the petitioners have not been given level playing field as they are entitled in terms of the Article 14 of the Constitution of India, hence, the action of the respondent Authority is bad and is liable to be corrected by issuing proper directions to grant the marks for experience.
17. Sri Yadav, learned counsel for the respondent on the other hand refuting the aforesaid submissions submit that in the instant case, neither the decisions cited by learned counsel for the petitioner has any applicability, though, the proposition is well settled to be disputed but the fact remains that in the instant case, the advertisement clearly indicated that the experience certificate would be treated as valid if it is issued by the Appointing Authority.
18. It is further urged that the petitioner along with the petition has annexed her appointment letter at running page 42 of the paper book dated 31.05.2016 which has been issued under the signatures of the Chief Medical Officer, Meerut. It is thus submitted that in so far as the present petitioner is concerned, there could be no confusion in the mind of the petitioner as to who would be the Appointing Authority and once the advertisement clearly provided that the certificate of experience ought to be issued by the Appointing Authority, the petitioner is not entitled to invoke the equitable provisions which otherwise have no applicability in the instant case.
19. Sri Yadav, learned counsel for the respondent no. 3 further elaborating his submissions has pointed out that the reliance placed by the petitioner on Annexure Nos. 6 and 7 filed with the counter affidavit of the respondent no. 3 also does not help the case of the petitioner. It has been pointed out that certain staff which is recruited under the Rules of 2016 under the Medical and Health Services, their Appointing Authority is the Managing Director (Medical Education and Training) and all such Medical Colleges who are under the control of the Directorate of Medical Education and the staff is appointed on the basis of contract then in respect of such nursing staff, it is the Principal of the Medical College who is to give the experience certificate. It has further been submitted that in so far as the nursing staff which is appointed under the Medical and Health Services Department on contractual basis, their experience certificate is to be issued by the Chief Medical Officer. It is further urged that in the instant case, the petitioner was appointed by the Chief Medical Officer, Meerut and the petitioner was under the Medical and Health Services Department and not under the Medical Education and Training Department. It is in this capacity she was required to join at Sardar Vallabh Bhai Patel Hospital & Lala Lajpat Rai Memorial Medical College, Meerut.
20. Thus, the petitioner was clear in her mind regarding her Appointing Authority and even the terms of the advertisement were absolutely certain which spoke of no ambiguity and as such the petitioner may have a hard case but nevertheless, there is no power reserved under the advertisement or any rule to relax the same, especially when many other candidates have been non-suited as their experience certificates were not as per prescription as mentioned in the advertisements and any indulgence shown to the petitioner would actually be in violation and in teeth of the decisions which have been cited by the learned counsel for the petitioner.
21. The Court has considered the rival submissions and also perused the material available on record.
22. The undisputed facts as available on record is that the petitioner acquired 25.30 marks in the written examination. It is also not disputed that the Appointing Authority of the petitioner is the Chief Medical Officer, Meerut. Another undisputed fact is that the experience certificate which has been brought on record as Annexure No. 4 has been issued by the Sardar Vallabh Bhai Patel Hospital & Lala Lajpat Rai Memorial Medical College, Meerut through the In-charge officer of the said Blood Bank of the said Medical College.
23. In the aforesaid backdrop of the undisputed fact, the issue that requires consideration is that in the given circumstances whether the petitioner can be granted any relaxation or the fact whether the respondents had actually relaxed conditions for certain other candidates in garb of the letters which have been brought on record along with the counter affidavit as Annexure nos. 6 and 7.
24. In this context, if the record is perused and the copy of the advertisement has been brought on record as Annexure No. 1 with the writ petition is noticed then its Clause 10 will reveal that it relates to the educational qualifications for the different posts and sub-clause 4 of the said Clause 10 reads as under:-
Clause 10 (4):- Selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner:-
(a) Written Examination shall carry................Eighty Five marks.
(b) Marks to a person who is working as Staff Nurse on contract basis in the Medical and Health Services Department, Uttar Pradesh shall be awarded in the following manner subject to the maximum of fifteen marks:-
(i) For the first completed year of service on contract basis.......Three marks
(ii) For the next and every completed year of service on contract basis Three marks for each year. In this regard the certificate issued by the Appointing Authority only shall be treated Valid. A Profarma for this purpose is available in Appendix-6 of this advertisement.
(c) The marks obtained by each candidate under clause (a) shall, where applicable, be added to the marks obtained under clause (b).
Note:- The candidates must possess all the requisite qualifications up to the last date for submitting the applications.
25. Clause 13 contains another instructions for candidates and in the instant case, the instructions which is relevant is sub Clause 19 of Clause 13 which reads as under:
"Clause 13 (19):- The minimum efficiency standard for S.C. & S.T. candidates is fixed 35% i.e. the Candidates of these Categories shall not be placed in the merit/select list if they have secured less than 35% marks in the examination. Similarly, the minimum efficiency standard for the candidates of other categories is fixed 40% i.e. such candidates shall not be placed in the merit/select list if they have secured less than 40% marks in the examination. All such candidates who have secured less marks than the marks of minimum efficiency standard as fixed by the Commission shall be treated disqualified."
26. In the aforesaid backdrop, it is clear that the marks which have to be obtained by a candidate and the minimum efficiency standards have also be been fixed. In terms of the said advertisement as evident from the clauses as mentioned aforesaid it clearly indicates that such candidates who have secured less than the minimum efficiency standard fixed by the Commission shall be treated as dis-qualified.
27. It cannot be disputed that the advertisement in question does not reserve any powers for granting any relaxation nor any rules have been brought to the notice of the Court by any of the parties to indicate that such power does exist.
28. The only irresistible conclusion that then arise is that the instructions clearly lay laid down in the advertisement is binding and it is in furtherance of the said advertisement that the candidates had applied for the vacant posts which also included the petitioner and having acceded to the advertisement, the petitioner cannot assail and claim relaxation of the conditions.
29. It is in furtherance thereof that the petitioner did appear for the written examination and obtained 25.30 marks, though, she applied under the EWS category for which the minimum cut-off marks was 40.14 but in the instant case, the petitioner had obtained 25.30 marks. The issue as to whether the marks for the experience can be granted is in context with the validity of the certificate as to whether it has been issued by the Appointing Authority as required under the advertisement. There can be no doubt that in so far as the advertisement is concerned, it is clear that it required the candidates to furnish the certificates issued by the Appointing Authority.
30. In the instant case, the Appointing Authority of the petitioner is the Chief Medical Officer, Meerut and admittedly the certificate for experience which was furnished by the petitioner has not been issued by the Chief Medical Officer, Meerut. In this view of the matter, it cannot be said that the Service Selection Board was at fault in discarding the certificate as furnished by the petitioner.
31. However, noticing the submissions of the learned counsel for the petitioner whether relaxation has been granted and that the Authorities were in a dilemma in light of the Annexure Nos. 6 and 7 filed by the respondent-Selection Board with their counter affidavit and in this context if the aforesaid two letters are seen, it would be found that they have no applicability , inasmuch as, from the perusal of the aforesaid two letters, it would be clear that in so far as the Staff which is posted in such medical colleges under the control of Medical Education Directorate, it is the Principal of the said Medical College who is entitled to issue the certificate whereas in so far as such nursing staff who are working on contractual basis, their experience certificates is to be issued by the Chief Medical Officer.
32. In the instant case, the petitioner was appointed by the Chief Medical Officer which is evident from the appointment letter and thus the advertisement also clearly provided that the valid certificate would be one which has been issued by the Appointing Authority, therefore, it cannot be said that the petitioner was under any confusion. Moreover, even otherwise, it may be seen that the certificate of experience as furnished by the petitioner has not been issued by the Principal rather it has been issued by some In-charge of Blood Bank and for the said reason, no leaverage can be granted to the petitioner for treating her certificate to be valid. Hence, for the aforesaid reasons, the submissions made by the petitioner do not help her case.
33. It is not the case of the petitioner that she was working with the Hospital under a direct agreement. For the aforesaid Hospital being the employer directly and the certificate may have been issued by the officer in-charge of the Blood Bank of the said concerned Hospital and later the clarifications could have been that it is only the Principal who would issue then to some extent, the case of the petitioner may have been considered, however, unfortunately, this is not the case at hand.
34. In so far as the dictum of the Apex Court in the case of Bedanga Talukdar (supra) is concerned, paragraph 28 lays down the following proposition which reads as under:-
"28. We have considered the entire matter is detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India."
In light of the aforesaid proposition, it cannot be said that the aforesaid decision comes to the rescue of the petitioner.
35. The learned counsel for the respondent has relied upon the decision of the Apex Court in the case of State of Tamil Nadu and Another Vs. G. Hemalata and Another in (2020) 19 SCC 430 wherein the issue before the Apex Court was regarding relaxation of certain instructions. The Apex Court did not find favour with the judgment of the High Court under challenge who had relaxed the conditions and the relevant portion thereof reads as under:-
7. We have given our anxious consideration to the submissions made by the learned Senior Counsel for the Respondent. The Instructions issued by the Commission are mandatory, having the force of law and they have to be strictly complied with. Strict adherence to the terms and conditions of the Instructions is of paramount importance. The High Court in exercise of powers under Article 226 of the Constitution cannot modify/relax the Instructions issued by the Commission
8. The High Court after summoning and perusing the answer sheet of the Respondent was convinced that there was infraction of the Instructions. However, the High Court granted the relief to the Respondent on a sympathetic consideration in humanitarian ground. The judgments cited by the learned Senior Counsel for the Respondent in Taherakhatoon (D) By Lrs. Salambin Mohammad and Chandra Singh and Others v. State of Rajasthan and Another in support of her arguments that we should not entertain this appeal in the absence of any substantial questions of law are not applicable to the facts of this case.
9. In spite of the finding that there was no adherence to the Instructions, the High Court granted the relief, ignoring the mandatory nature of the Instructions. It cannot be said M. Vennila v Tamil Nadu Public Service Commission, (2006) 3 Mad. LJ 376 (1999) 2 SCC 635 (2003) 6 SCC 545 that such exercise of discretion should be affirmed by us, especially when such direction is in the teeth of the Instructions which are binding on the candidates taking the examinations.
10. In her persuasive appeal, Ms. Mohana sought to persuade us to dismiss the appeal which would enable the Respondent to compete in the selection to the post of Civil Judge. It is a well-known adage that, hard cases make bad law. In Umesh Chandra Shukla v. Union of India, Venkatarumishi. J. held that:-
13-exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness. The cases pointed out by the High Court are no doubt hand cases, but hard cases cannot be allowed to make bad law. In the circumstances, we lean in far of a strict construction of the Rules and hold cut the High Court had no such power under the Rules.
36. Taking note of the aforesaid propositions, this Court is of the clear opinion that though the petitioner may have a hard case but the fact remains that in the advertisement, it was absolutely clear that the Appointing Authority is to furnish the certificate which in the case of the petitioner was the Chief Medical Officer, Meerut and the certificate furnished by the petitioner was not been issued by the said Authority. Hence, this Court is not persuaded to rule in favour of the petitioner.
37. For the aforesaid reasons, the petition is dismissed. There shall be no order as to costs.
Order Date :- 08.02.2023 Asheesh