Allahabad High Court
Ashish Pandey And 16 Ors. vs State Of U.P. Thru Prin.Secy.Medical ... on 19 September, 2022
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7/Reserved AFR Case :- WRIT - A No. - 12015 of 2016 Petitioner :- Ashish Pandey And 16 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Medical And Health Lucknow And Ors. Counsel for Petitioner :- Rakesh Kumar Singh,Pramendra Kumar Singh,Ravi Shanker Tripathi Counsel for Respondent :- C.S.C.,Dr.L.P. Mishra,Gaurav Mehrotra,Narendra Kumar Pandey,Prafulla Tiwari,Sameer Kalia,Sidharth Verma Hon'ble Rajnish Kumar,J.
1. Heard, Shri Rakesh Kumar Singh & Shri Pramendra Kumar Singh, learned counsels for the petitioners, learned Standing Counsel for respondents no.1 and 2, Shri Gaurav Mehrotra, learned counsel for respondent no.3 and Shri Sameer Kalia, learned counsel appearing for respondents no.6, 8, 9 and 10. Shri Prafulla Tiwari, learned counsel appearing on behalf of some of the private respondents submitted that he has instructions not to appear and argue on their behalf.
2. By means of the instant writ petition, the petitioners have approached this Court challenging the select list dated 17.05.2016 issued by the Uttar Pradesh Subordinate Services Selection Commission (here-in-after referred as UPSSSC) / opposite party no.3, which has been issued after selection in pursuance of the advertisement no.14/15 dated 03.09.2015. A further prayer has been made for a direction to the opposite party no.3 for re-selection for the post of X-Ray Technician in accordance with law.
3. The brief facts of the case, as culled out from the pleadings on record, are that the opposite party no.3 issued the advertisement no.14/15 on 03.09.2015 for various posts including the post of X-Ray Technician under the Director, Medical and Health, U.P., Lucknow. The total number of posts advertised were 403. The mode of selection on the post of X-Ray Technician was interview. It was also provided in the advertisement that the marks of the interview would be fixed with the approval of the State Government in accordance with the notification dated 11.05.2015, by which the Uttar Pradesh Group-C Direct recruitment (Mode and Procedure) Rules-2015 (here-in-after referred as Rules of 2015) were notified. In pursuance thereof the selection has been held after holding interview, in which the petitioners had also participated, however they could not get the place in select list issued by the UPSSSC, which is impugned in the present writ petition.
4. Learned counsel for the petitioner submitted that the selection for the post in question of X-Ray Technician has been held in violation of Rule 8 (1) of the Rules of 2015 without fixing and disclosing the marks of interview with the approval of the Government. The interviews were held in hurried manner. The interviews were held w.e.f. 06.05.2016 to 14.05.2016, thereafter 15.05.2016 and 16.05.2016 were Saturday and Sunday and the result was declared on 17.05.2016. After filing of the instant petition by the petitioners on 18.05.2016, appointment letters were issued on 01.06.2016 but the approval of marks of interview in terms of Rule 8 (1) of the Rule of 2015 has been granted by the State Government on 10.06.2016. Therefore, the whole selection vitiates as the interviews have been held and the selection has been held without approval of marks of the interview by the Government in violation of the aforesaid rule. Thus, the selection can not be allowed to continue and the select list is liable to be quashed by this Court with a direction to the respondent no.2 and 3 to make re-selection for the post of X-Ray Technician in accordance with law.
5. Learned counsel for the respondent no.3 submitted that the present writ petition, on behalf of the petitioners, who had participated in the selection without any demur and are unsuccessful, is not maintainable. He further submitted that Rule 8 (1) of the Rules of 2015 only prescribes that the marks of written examination/interview and rules relating thereof shall be such as prescribed by the Commission from time to time with the approval of the Government. The UPSSSC fixed the maximum marks of interview as 20, in its meeting held on 03.02.2016, which were sent to the Government for approval on 05.02.2016 and thereafter the selection proceeded in view of the request of the department through letter dated 19.08.2015 for selection with utmost expedition and the selection was made in accordance with the marks fixed by the UPSSSC and the maximum marks fixed by the Commission has been approved by the Government by means of the letter dated 10.06.2016, and once the approval has been granted by the Government, the condition prescribed under Rule 8 (1) of the Rules of 2015 stands fulfilled because it does not prescribe the prior approval for selection.
6. On the basis of above, learned counsel for the respondent no.3 submitted that there is no illegality or error in the selection in question and the select list has been issued after holding the selection in accordance with law and the rules. The writ petition is misconceived and lacks merit. It is liable to be dismissed.
7. Learned counsel for the respondent no.3 relied on Ashok Kumar Das and Others Vs. University of Burdwan and Others; (2010) 3 SCC 616, Bajaj Hindustan Ltd. Vs. State of Uttar Pradesh and Others; (2016) 12 SCC 613, Ms. Shaija Shah Vs. Executive Committee, Bharat Varshiya national Association and Another; 1994 SCC Online All 654/ (1995) All LJ 2033, Joint Director of Education, Azamgarh Mandal and Another Vs. Udai Raj Vishwakarma and Another; 2007 SCC Online All 964/ (2007) 3 All LJ 33 (DB) and judgment and order dated 13.03.2013 passed by a coordinate Bench of this Court in Writ-A No.50119 of 2006; Pawan Kumar Vs. State of U.P. and Others.
8. Learned counsel for the respondents no.6, 8, 9 and 10, adopting the submissions of learned counsel for the respondent no.3, further submitted that the merit of selection does not affect in any manner by the approval of marks subsequent to the issuance of the select list in any manner. He further submitted that the petitioners has failed to point out any prejudice which may have been caused to the petitioners by approval of the maximum marks of interview after issuance of the select list and if no prejudice has been caused to the petitioners, it does not give right to the petitioners to challenge the selection and would not call for any interference by this Court as the selection has been held in accordance with law and there is no illegality or error in the selection made by the UPSSSC. The writ petition is misconceived and lacks merit. It is liable to be dismissed.
9. I have considered the submissions of learned counsel for the parties and perused the record.
10. The select list has been challenged on the ground that the interview has been held in violation of terms of advertisement and Rule 8 (1) of the Rules of 2015 without fixing and disclosing the marks of interview.
11. In view of above challenge to the select list, Rule 8 (1) of Rules of 2015 needs to be examined by this Court, therefore the same is extracted here-in-below, for ready reference:-
"8. (1) The procedure for direct recruitment, the syllabus, marks of written examination/interview and the rules relating thereof shall be such as prescribed by the Commission from time to time with the approval of the Government."
12. The selection on the post of X-Ray Technician under the Directorate of Medical and Health, U.P., Lucknow has been held after holding interviews in pursuance of the advertisement no.14/15 dated 03.09.2015. It was provided in the advertisement that the marks of the interview would be fixed with the approval of the State Government in accordance with the provision made in the Uttar Pradesh Group-C Direct recruitment (Mode and Procedure) Rules-2015, notified on 11.05.2015. The UPSSSC decided to fix the marks of interview in its meeting held on 03.02.2016, a copy of which has been filed by the respondent no.3 as annexure no.2 to the counter affidavit. The aforesaid decision of the UPSSSC was communicated to the Government for required approval under Rule 8(1) of the Rules of 2015 by means of letter dated 05.02.2016, a copy of which is as annexure no.3 to the counter affidavit. In the meantime, the UPSSSC proceeded with the selection in view of the request of the Government, by means of the letter dated 19.08.2015, to hold the selection with utmost expedition, a copy of which is annexure no.4 to the counter affidavit. The interviews were held w.e.f. 06.05.2016 to 14.05.2016, for which the petitioners were also called and they participated without any protest. After holding the interviews, the respondent no.3 declared the result of the selection on 17.05.2016. In pursuance of the selection, the appointment letters were issued by the Government on 01.06.2016. The State Government, in pursuance of the letter dated 05.02.2016 of the UPSSSC, granted approval on the maximum marks of 20 of interview fixed by the UPSSSC, under Rule 8(1) of the Rules of 2015, by means of the letter dated 10.06.2016, a copy of which is annexed as annexure no.5 to the counter affidavit filed by the respondent no.3. Thus, the approval on the maximum marks fixed by the Commission for interview was granted by the State Government.
13. The action of the UPSSSC in holding the interviews without approval on the marks fixed by the Commission has been assailed in this petition on the ground that it is in violation of Rule 8(1) of the Rules of 2015. Sub-Rule (1) of Rule 8 provides that the marks of written examination / interview shall be such as prescribed by the Commission from time to time with the approval of the Government, meaning thereby the maximum marks of the interview are to be prescribed by the Commission i.e. UPSSSC, on which the approval of the Government is required, therefore on approval of maximum marks of interview, by the Government which have been fixed by the Commission before interviews, the condition of Rule 8 (1) stands fulfilled, even if it is after the selection has been held because the Rule does not prescribes prior approval or permission on the makrs fixed by the Commission.
14. The Hon'ble Supreme Court, in the case of Ashok Kumar Das and Others Vs. University of Burdwan and Others (Supra), in regard to an identical provision of determining the terms and conditions of service of non-teaching staff with the approval of the State Government held that since the words used are "with the approval of the State Government", the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise. The relevant paragraphs 11, 12, 13, 14 and 15 are extracted below:-
"11. In Black's Law Dictionary (Fifth Edition), the word "approval" has been explained thus:
"the act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another." Hence, approval to an act or decision can also be subsequent to the act or decision.
12. In U. P. Avas Evam Vikas Parishad (supra), this Court made the distinction between permission, prior approval and approval. Para 6 of the judgment is quoted hereinbelow:
"6. This Court in Life Insurance Corpn. of India v. Escorts Ltd. [(1986) 1 SCC 264], considering the distinction between "special permission" and "general permission", previous approval" or "prior approval" in para 63 held that: "We are conscious that the word `prior' or `previous' may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) of the Act.
" Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act, it was stated in Lord Krishna Textiles Mills Ltd. v. Workmen [AIR 1961 SC 860], that the Management need not obtain the previous consent before taking any action. The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33(1)."
13. Following the decision in U. P. Avas Evam Vikas Parishad (supra), this Court again held in High Court of Judicature for Rajasthan v. P. P. Singh & Ors. (supra) in para 40:
"40. When an approval is required, an action holds good and only if it is disapproved it loses its force. Only when a permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd.)."
14. Section 21 (xiii) of the Burdwan University Act, 1981 is quoted herein below:-
"21. Subject to the provisions of this Act, the Executive Council shall exercise the following powers and perform the following functions:
(i) to (xii) ........................
(xiii) to determine, with the approval of the State Government, the terms and conditions of service of Librarians and non-teaching staff."
15. The words used in Section 21 (xiii) are not "with the permission of the State Government" nor "with the approval of the State Government", but "with the approval of the State Government". If the words used were "with the permission of the State Government", then without the permission of the State Government the Executive Council of the University could not determine the terms and conditions of service of non-teaching staff. Similarly, if the words used were "with the prior approval of the State Government", the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff without first obtaining the approval of the State Government. But since the words used are "with the approval of the State Government", the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise."
15. The Hon'ble Supreme Court, in the case of Bajaj Hindustan Ltd. Vs. State of Uttar Pradesh and Others (Supra), relying on the aforesaid judgment and order rendered in the case of Ashok Kumar Das and Others Vs. University of Burdwan and Others, held that the dictionary meaning of the word 'approval' includes ratifying of the action, ratification obviously can be given ex-post facto approval. It has further been observed that in the case of approval, the action holds until it is disapproved while in other case until permission is obtained. The relevant paragraph 7 is extracted here in below:-
"7. As is clear from the above, the dictionary meaning of the word "approval" includes ratifying of the action, ratification obviously can be given ex post facto approval. Another aspect which is highlighted is a difference between approval and permission by the assessing authority that in the case of approval, the action holds until it is disapproved while in other case until permission is obtained. In the instant case, the action was approved by the assessing authority. The Court also pointed out that if in those cases where prior approval is required, expression "prior" has to be in the particular provision. In the proviso to sub-section (1) of Section 3-A word "prior" is conspicuous. For all these reasons, it was not a case for levying any penalty upon the appellant. We, therefore, allow this appeal and set aside the impugned judgment [Bajaj Hindustan Ltd. v. State of U.P., Misc. Single No. 3088 of 1999, order dated 30-9-2004 (All)] of the High Court as well as the penalty. No order as to costs.."
16. A division bench of this Court, in the case of Ms. Shaija Shah Vs. Executive Committee, Bharat Varshiya national Association and Another (Supra), observed that expression prior approval and approval connotes different situation, where a statue uses the term prior approval anything done without the prior approval, is nullity. However, where a stature employs expression approval, in such cases subsequent rectification can make the act valid.
17. Another division bench of this Court, in the case Joint Director of Education, Azamgarh Mandal and Another Vs. Udai Raj Vishwakarma and Another (Supra), held that in case the act requires only approval the action holds the action holds good until it is disapproved. The relevant paragraphs 16 and 17 are extracted here-in-below:-
"16. On the contrary where the statute specifically provides "prior approval" before passing any order, what its effects would be has been considered in some other cases which we propose to refer as under. Rule 11 of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 provides that no service can be terminated without prior permission from the District Basic Officer. A Division Bench of this Court in Ms. Shilaja Shah v. Executive Committee, Bharat Varshiya National Association, 1995 (25) ALR 88 : (1995 All LJ 2033) held that expression "prior approval" and "approval" connotes different situation. Where a statute uses the term "prior approval" anything done without prior approval is nullity. Where a statute employs expression "approval", however, in such cases subsequent ratification can make the act valid.
17. Section 59(1)(a) of U.P. Urban Planning and Development Act, 1973 provides for "prior approval". The Apex Court in U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd., 1995 Supp (3) SCC 456 : (1995 All LJ 2066) held that "prior approval" and "approval" are two different connotations and if the statute does not mention "prior approval" what is material would be only "approval". The earlier judgment in Life Insurance Corporation of India v. Escorts Ltd., (1986) 1 SCC 264 : (AIR 1986 SC 1370) was also referred where it was held that the word ''prior' and ''previous' may be implied if the contextual situation or circumstances justify such reading and the Act which requires only approval, the action holds good until it is disapproved."
18. Adverting to the facts of the present case, it is apparent that the 20 maximum marks of the interview prescribed by the UPSSSC on 03.02.2016 has been approved by the Government on 10.06.2016, therefore the condition of Rule 8(1) of Rules of 2015 stands fulfilled, therefore it can not be said that the selection has been held in violation of the said rule.
19. Learned counsel for the petitioner had also tried to argue that the selection has not been made in a fair and proper manner on the ground that in the interview a particular number of marks has been awarded to several candidates who have been selected, but neither there is any pleading in this regard in the petition nor any amendment has been made by the petitioners after coming to know about it. Therefore, this Court is of the view that in absence of any pleading, the contention raised at the time of argument can not be accepted. It goes without saying that in such cases the career of a number of candidates is on stake who have participated in the selection after making preparation and have successfully cleared the selection and got the appointment, therefore a roving and fishing enquiry to fish out the discrepancies in the selection process without proper pleading at the instance of unsuccessful candidate, who participated without any demur is not permissible. Such contention is only liable to be repelled.
20. A coordinate Bench of this Court, in the case of Pawan Kumar Vs. State of U.P. and Others; Writ-A No.50119 of 2006 (Supra), has held that the examination of the record was not for the purpose to make a roving and fishing enquiry and fish out discrepancies in the selection process. The entire purpose of examining the record was limited to the extent of the allegations made by the petitioner in his writ petition and further fresh facts and grounds cannot be brought on record without the leave of the Court and such practice adopted in the present case is deprecated. The Court is of the opinion that fresh facts and new grounds of attack can only be taken on the record only upon an amendment application being filed and not otherwise through supplementary affidavits. The relevant paragraph is extracted here-in-below:-
"The Court is constrained to observe that the examination of the record was not for the purpose to make a roving and fishing enquiry and fish out discrepancies in the selection process. The entire purpose of examining the record was limited to the extent of the allegations made by the petitioner in his writ petition. Further, fresh facts and grounds cannot be brought on record without the leave of the Court. Such practise adopted in the present case is deprecated. The Court is of the opinion that fresh facts and new grounds of attack can only be taken on the record only upon an amendment application being filed and not otherwise through supplementary affidavits."
21. So far as the judgment and order dated 06.04.2017, passed in bunch of special appeals leading being Special Appeal No.416 of 2016; Dharmendra Kumar and 2 Others Vs. Abhishek Kumar and Others, relied by learned counsel for the petitioners, is concerned, the same is not applicable on the facts and circumstances of the present case and is of no assistance to the petitioners. In the said case the selection was assailed on the ground that it is contrary to service rules and the instructions, therefore it has been held to be in one the exceptions carved out by the Hon'ble Supreme Court, whereas in the present case the selection has been held in accordance with the rules as discussed above.
22. This Court also finds that the petitioners, having participated in the selection process without any demur or protest and having failed to get the place in the select list, have challenged the selection, whereas they can not turn around and challenge the selection process. This issue has been settled by a series of decisions of Hon'ble the Supreme Court, namely, Madan Lal Vs. State of Jammu and kashmir; 1995 (3) SCC 486, Marripati Nagraja Vs. State of Andhra Pradesh; 2007 (11) SCC 522, Dhananjay Malik Vs. State of Uttarakhand; 2008 (4) SCC 171, Amlan Jyoti Barooah Vs. State of Assam; 2009 (3) SCC 227, K.A. Nagamani Vs. Indian Airlines; 2009 (5) SCC 515, Manish Kr. Shahi Vs. State of Bihar and others; 2010 (12) SCC 576, Hc Pradeep Kumar Rai & Ors vs Dinesh Kumar Pandey & Ors; (2015) 11 SCC 493 and Madras Inst.Of Dev. Studies & Anr vs K. Sivasubramaniyan & Ors; (2016) 1 SCC 454.
23. There is another aspect of the matter, as argued by learned counsel for some of the private respondents also, that even if it is found that there is any discrepancy, the selection can not be quashed, unless it is shown by the petitioners that they have prejudiced in any manner by it. In the present case, the petitioners have failed to show that they have been prejudiced in any manner or suffered any harm, injury or they were at disadvantage by subsequent approval on the maximum marks by the Government, which were fixed by the Commission.
24. As per the Law Lexicon, "Prejudice" means injurious effect, injury to or impairment of a right, claim, statement etc. The Hon'ble Supreme Court, in the case of Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbhai Patel and Others, (2012) 10 SCC 517, has held that "Prejudice" is generally defined as meaning "to the harm, to the injury, to the disadvantage of someone" and it also means injury or loss. The relevant paragraphs 47.1 to 47.4 are extracted here-in-below :-
"47.1. Black's Law Dictionary (8th Edn.) explains "prejudice" to mean damage or detriment to one's legal rights or claims. Concise Oxford English Dictionary [10th Edn., Revised] defines "prejudice" as under:
"Prejudice.-- n. (1) preconceived opinion that is not based on reason or actual experience. ≫ unjust behaviour formed on such a basis. (2) chiefly Law harm or injury that results or may result from some action or judgment. ≫ v. (1) give rise to prejudice in (someone); make biased. (2) cause harm to (a state of affairs)."
47.2. Webster Comprehensive Dictionary (International Edn.) explains "prejudice" to mean (i) a judgment or opinion, favourable or unfavourable, formed beforehand or without due examination ... detriment arising from a hasty and unfair judgment; injury; harm.
47.3. P. Ramanatha Aiyar; the Law Lexicon (The Encyclopaedic Law Dictionary) explains "prejudice" to mean injurious effect, injury to or impairment of a right, claim, statement, etc. 47.4. "Prejudice" is generally defined as meaning "to the harm, to the injury, to the disadvantage of someone". It also means injury or loss."
25. In view of above, this Court is of the view that there is no illegality or error and violation of Rule 8(1) of the Rules of 2015 in selection in question, therefore this Court is of the view that the writ petition has been filed on misconceived ground, which lacks merit and is liable to be dismissed.
26. The writ petition is, accordingly, dismissed. No order as to costs.
.............................................................(Rajnish Kumar,J.) Order Date :- 19.9.2022 Haseen U.