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Judgment
Navin Singh, C.J.—The present appeals arise from a common order dated 31.8.2015 dismissing Writ Petition (S) No.973 of 2015 and analogous writ petitions. The Learned Single Judge declined to interfere with the termination of the Appellants holding that the advertisement dated 2.7.2013 stood vitiated by incorporation of certain conditions from the draft amendment Rules even before formal amendment of the Public Works Department (Non-Gazetted) Service Recruitment Rules, 2007 (hereinafter referred to as "the Rules") was published and also that the selection process also suffered from all pervasive irregularities.
The State Government published an advertisement on 2.7.2013 for different posts of Data Entry Operator, Assistant Grade-III, Stenographer and Steno-Typist in different districts of the State. The present controversy relates to appointments made in the district of Raipur. It was yet to be made in other districts also before which the impugned orders came to be passed. After the selection process appointment letters were issued to 67 persons for different posts, out of whom 38 persons joined on 28.8.2014. The State Government directed their services to be terminated by order dated 10.3.2015 pursuant to which individual orders of termination were issued on 12.3.2015.
Learned Senior Counsel appearing on behalf of the Appellants submitted that the advertisement was challenged by none on any ground whatsoever. 29 persons who participated in selection process but were unsuccessful, filed a complaint before the State Government alleging irregularities in the selection process. The State Government constituted a three men committee to enquire. The State Government then identified a singular issue only from the report, regarding publication of the advertisement incorporating certain conditions from draft amendment rules regarding proficiency only without it having been formally notified and the Rules amended accordingly. The order dated 10.3.2015 is speaking in nature and has to be tested on basis of the recitals contained therein alone. No further grounds can be urged in a counter affidavit to support it and neither does the counter-affidavit do so. On the contrary, the counter-affidavit reiterates the only singular issue of irregularity as mentioned in the order dated 10.3.2015 and avers that other complaints were found ''baseless''.
The mere placing of a copy of the inquiry report on record with the counter-affidavit will not change the nature of the order dated 10.3.2015. The only ground urged in the counter-affidavit is that a fresh advertisement after formal incorporation of the amendments in the recruitment rules will be in the larger interest of giving an opportunity to all concerned. The Learned Single Judge therefore erred in holding that the order dated 10.3.2015 also mentions of other irregularities pointed out by the three men committee.
Adverting to a comparative analysis of the Rules as they stood before the proposed amendment and thereafter, it was submitted that the former were not in derogation of the latter. On the contrary, it was a mere amplification of the earlier qualifications. In fact, the amendment to the Rules as proposed provided a wider choice to the Government for recruiting better and more qualified persons and did not reduce the standards of recruitment or eligibility. The proposed amendments had been approved by the Department of General Administration on 1.2.2013 for publication and circulated to all departments for amending their recruitment Rules also accordingly. It was lastly submitted that the draft amendments have ultimately been notified on 17.6.2015, as published in the advertisement without any changes.
Learned Counsel for the State submitted that the order of the Learned Single Judge is reasoned and calls for no interference. If the advertisement was published contrary to the Rules, the Government committed no error in can celling the selection process on that ground as the advertisement was in conflict with the existing Rules and thus was not in accordance with law. It was next submitted that complaints received from 29 persons regarding irregularities in the selection process were inquired into by a Committee constituted by the Government. The report of the Committee has also been placed on record. The Committee had found illegalities in selection pervasive in nature. No individual show cause notice was therefore required before termination. The appeals merit no consideration and ought to be dismissed.
We have considered the submissions on behalf of the parties. The advertisement as published on 2.7.2013 was challenged by none including the 29 complainants as being contrary to the Rules. All of them including others who had applied in response to it participated and took their chance of selection. It is nobody''s case that any one was misled by the advertisement or was prevented from applying and who was otherwise eligible to do so under the unamended Rules. The draft amendment to the Rules had been approved by the Department of General Administration on 1.2.2013 for publication and also directed other departments to amend their recruitment rules accordingly. The amendments were therefore not at the stage of deliberations or discussions but awaited a formal publication only. If the advertisement was perceived defective, the aggrieved ought to have challenged the advertisement itself rather than to have participated in the selection process and after being unsuccessful turn around and challenge the advertisement itself. This was clearly impermissible in law on principles of estoppel. Though this principle has been the subject of oft repeated consideration and we may only appropriately refer to (2013) 11 SCC 309 (Ramesh Chandra Shah v. Anil Joshi) observing as follows :-
"24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
The State Government nonetheless on the complaint, constituted a three men Committee. The constitution of the Committee was not an acknowledgement of the correctness of the complaint. The report of the Committee was to be submitted to the State Government. The opinion of the Committee was therefore not conclusive but was subject to its acceptance by the State Government. The order of the State Government dated 10.3.2015 explicitly states that on complaint received, the entire procedure of selection was got examined through a Committee. On examination of the report of the Committee, the Government identified only one issue that the advertisement was contrary to the Rules by incorporating the draft amendment to the Rules as approved by the General Administration Department on 1.2.2013 but without its formal notification amending the Rules. The words used in the order are "ijh{k.k" which means "examination" and "ifjyf{kr" which means "identified" according to the Legal Glossary, 2015 published by the Government of India, Ministry of Law and Justice. It is therefore apparent that the Government did not accept the other recommendations of the Committee.
The counter-affidavit acknowledges that the Appellants, after selection had joined their posts. It further avers that the Committee report was found to be baseless. "Slight confusion" occurred on the part of the Government in publishing the advertisement incorporating the proposed amendments without formal amendment of the Rules by notification and because of which the decision had been taken to cancel the appointments so as to facilitate wider participation. A bare reading of the order along with the averments in the counter-affidavit leaves no doubt that the termination of the Appellants is based on the single identified issue only and that the Government was not relying upon the inquiry report to terminate the services of the Appellants. The mere fact that the inquiry report may have been also brought on record cannot make any difference or change the contents or nature of the order much less the grounds mentioned in the order dated 10.3.2015.
An order passed by the Government or Government functionaries will have to be tested on the basis of recitals contained in the order and it is not open for the functionaries to explain the order or improve upon it by a counter-affidavit. (1978)1 SCC 405 (Mohinder Singh Gill v. Chief Election Commissioner, New Delhi) has been followed in (2005) 7 SCC 627 (Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai) observing :-
"24�.When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the records."
The Learned Single Judge has observed that the findings of the Committee report are not mentioned in express terms in the order dated 10.3.2015 but because there is a reference therein to the Committee constituted for inquiry it could safely be gathered that this aspect of the matter was also a part of the decision making process and the Respondents were not building up a fresh case before the Court in their counter-affidavit beyond the order dated 10.3.2015 holding that Mohinder Singh Gill (supra) had no application to the facts of the case. We regret our inability to concur with the same in view of the clear and express recitals in the order dated 10.3.2015 which admits of no ambiguity whatsoever read along with the counter affidavit also. To read the report into it would tantamount to including something that the Government itself had excluded. Further, it is not permissible for the Respondents to argue contrary to the order dated 10.3.2015, and urge that it is also based on the enquiry report especially when the counter-affidavit avers that other complaints were found baseless.
That brings to the fore the question of the advertisement having incorporated the changes proposed in the draft amendment regarding testing of proficiency before formal notification and amendment of the existing Rules. The entire Rules were not proposed to be changed. Certain additional stipulations to test proficiency only were proposed to be incorporated. The proposed changes had been approved by the Department of General Administration recently on 1.12.2013 and were only awaiting formal publication. Instructions had already been issued to all departments for making necessary changes in the Rules. The proposed amendments but were but only an amplification of the existing Rules providing a better and wider option and choice for the Government to select the more proficient amongst eligible candidates. For better appreciation that no substantive changes were proposed in the Rules and that the draft rules were not in derogation of the former it is considered proper to set out both in a tabular form.
Name of Post
Qualification as prescribed under Rules'' 2007 (as amended on 2010)
Qualification as prescribed under circular dated 01.02.2013
Stenographer
Degree of Higher secondary school (10+2) from recognised school and degree from CG Short-hand and typewriting board and computer course approved from GAD.
Degree of Higher secondary school (10+2) from recognised school
or
Degree of higher secondary school and first year pass certificate from a college affiliated by a recognised university.
From recognised board/ institute/:-
a. For Hindi writing :- certificate of typing of 100 words per minute.
b. For English writing :- certificate of typing of 100 words per minute.
c. For typing in bilanguage :- Certificate of typing of 100 words per minutes.
From recognised institute one year diploma/course in Data Entry Operator/programming and entry of data entry be 10,000 key depression per hour. (For typing speed exam shall be taken).
Steno-Typist
Degree of Higher Secondary School (10+2) from recognised school and degree from CG Short-hand and typewriting board and computer course approved from GAD.
Degree of Higher Secondary School (10+2) from recognised school
or
Degree of Higher Secondary School and first year pass certificate from a college affiliated by a recognised university.
Hindi typing 60 words per minute (for typing speed exam shall be taken).
From recognised institute one year diploma/course in Data Entry Operator/Programming and entry of data entry be 5,000 key depression per hour. (For typing speed exam shall be taken).
Assistant Grade III
Higher Secondary School certificate from recognised school and from recognised institute certificate of Hindi typewriting of 25 words per minutes and computer course as decided by GAD.
Degree of Higher Secondary School (10+2) from recognised school.
or
Degree of Higher Secondary School and first year pass certificate from a college affiliated by a recognised University.
From recognised institute one year diploma/course in Data Entry operator/ programming; and
Computer Hindi Typing speed 5,000 key depression per hour (for typing speed exam shall be taken).
Data Entry Operator
Higher Secondary School Certificate from recognised school.
From recognised institute three years diploma course in computer science or information technology or modern office
From recognised institute one year course/diploma in computer operator and programming or from recognised institute one year undergraduate diploma in computer applications.
For Hindi and English computer typing speed of 8000 key depression per hour.
Degree of Higher Secondary School (10+2) from recognised school
or
Degree of higher secondary school and first year pass certificate management.
from a college affiliated by a recognised university.
or
Pass certificate of 10th class from recognised board and one year diploma course in any subject.
From recognised institute one year course in data entry operator/programming and for Hindi and English computer typing speed of 8000 key depression per hour.
In (2003) 4 SCC 712 (High Court of Gujrat v. Gujrat Kishan Mazdoor Panchayat) delivered by a Bench of five Hon''ble Judges, the controversy related to nomination of the President, Industrial Court under the draft rules approved by the High Court. Earlier appointment was being made under Section 10 of the Bombay Industrial Relations Act, 1946 (hereinafter called ''the Act'') which had no provision for nomination. The Full Bench of the High Court held that the recruitments could be made only in accordance with the provisions of Section 10 of the Act and quashed the appointments. Setting aside the order, it was observed as follows:
"18. ... The existing Recruitment Rules did not comply with the provisions of Article 234 of the Constitution of India. The State Government, therefore, referred to the High Court for consultation and approval of the Rules. The administrative side of the High Court framed the Draft Rules and the appointments offered to Shri N.A. Acharya was in accordance with the Draft Rules. This apart, the eligibility criteria for appointment on the post of the President of the Industrial Court has been determined by the High Court and the same has been incorporated in the Draft Recruitment Rules at the request of the Government."
Manifestly, it is thus to be seen that there has been no change in the essential eligibility criteria for appointment. The only addition is with regard to testing proficiency of the eligible. It would only enable and facilitate the Government from choosing the most proficient and competent from amongst the eligible candidates. Had it been a case where the qualifications of eligibility to participate in the selection process were substantially changed in derogation to the existing rules by lowering them, matters would have been entirely different for consideration.
A process of public advertisement and recruitment is cumbersome, time consuming and has financial implications. If there are gross illegalities and blatant violation of law, the entire process will have to be set aside irrespective of all consequences. But if the irregularities alleged are trivial or do not really constitute an irregularity and the process of advertisement and selection does not stand vitiated completely, every infraction will not call for complete setting aside of the selection process. The draft rules have also been finally published on 17.6.2015 without any modifications.
We therefore are unable to sustain the order under appeal by holding that the entire selection process stands vitiated and has to be set at naught with directions for proceeding afresh all over again. The orders of the State Government dated 10.3.2015 and individual orders of termination pursuant thereto along with the order under appeal are set aside. The Appellants are directed to be reinstated but without back wages.
Nothing in the present order precludes the Respondents, if they so consider it necessary from identifying an individual illegal appointment and proceeding against the concerned in accordance with law.
The appeals are allowed.