Pradeep Kumar vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No.1089 of 2013 dated 03.07.2014.

A selection process was sought to be undertaken by the State Government in the year 2011-12 for recruitment to Class III posts, which were outside the purview of the State Public Service Commission. The exercise of selection was entrusted to the Uttarakhand Technical Board of Education, Roorkee, Haridwar which issued an advertisement on 20.12.2011 for these vacancies. A combined test for Class III posts was conducted in various departments. The advertisement stipulated that, for some posts, typing was an essential qualification and for others it was not. The posts of Junior Assistants, in the Forest and Environment Department, Government of Uttarakhand, were categorized into two groups. For certain posts of Junior Assistants, the advertisement stipulated a typing test as an essential qualification, whereas, for other posts of Junior Assistants, it was held that this was not an essential requirement.

The appellant-writ petitioner applied for both the posts of Junior Assistants which required a pass in the typing test as an essential qualification, and for the posts of Junior Assistant which did not. He failed in the typing test held for candidates who sought appointment to the post of Junior Assistant which prescribed the qualification of a pass in the typing test. The Uttarakhand Technical Board of Education, thereafter, realized that, even for the other posts of Junior Assistant, the prescribed qualification was of passing the typing test. Consequently, those candidates who had appeared for participation in the selection process for both the posts of Junior Assistant with the qualification of a pass in the typing test, and for the other posts of Junior Assistant for which the advertisement did not stipulate a pass in the typing test as a requirement, the results of the typing test in the former were also made the basis for selection to the latter; and consequently, since the appellant-writ petitioner failed in the typing test held for the post of Junior Assistant for which the advertisement prescribed the qualification of a pass in the typing test, he was also declared ineligible to be considered for the post of Junior Assistant for which the advertisement did not prescribe a pass in the typing test as an essential qualification. Aggrieved thereby, the petitioner and others invoked the jurisdiction of this Court.

With regards the appellant-writ petitioner's contention that the keyboard, which was given to him, was defective; and, despite his request, another keyboard was not provided to him resulting in his failure to qualify in the typing test, the learned Single Judge held that there was nothing on record to show that the appellant-writ petitioner was given a defective keyboard; and, from a perusal of the record, it appeared that he never made any protest during the examination nor was any representation submitted by him to the authorities concerned in this regard. While taking note of the denial of the respondents that a defective typewriter was supplied, the learned Single Judge opined that the petitioners had already participated in the selection process, including the typing test, and, having failed to qualify in the typing test, they cannot challenge the selection process.

However, one of the candidates in the batch did not apply for the post of Junior Assistant for which the advertisement had stipulated typing test as an essential qualification, and instead had only applied for the post of Junior Assistant which the advertisement stipulated did not require a pass in the typing test as an essential qualification. The learned Single Judge, therefore, dismissed the Writ Petitions filed by the appellant-writ petitioner and another on the ground that they had participated in the typing test, and had failed to qualify the same. However, the learned Single Judge made an exception of the petitioner in Writ Petition (S/S) No.1416 of 2013, who did not participate in the typing test under the belief that typing was not an essential qualification, and held that she could not be faulted, and a chance must be given to her to qualify in the typing test.

Before us Mr. Mohit Kumar, learned counsel for the appellant-writ petitioner, would submit that the rules of the game cannot be changed mid-way; since the advertisement specifically prescribed a pass in the typing test as an essential qualification only for one category of Junior Assistants, and did not so stipulate for the other, the mere fact that the appellant-writ petitioner had appeared in the typing test for the other post of Junior Assistant, and had not qualified in the said typewriting examination, did not mean that he should be denied selection on the ground that he had failed in the typing test held for appointment to the other post; since he secured higher marks than others, who were so appointed, the action of the selection board necessitated interference; and the learned Single Judge was in error in refusing to grant the relief sought for in the Writ Petition.

In the counter-affidavit, filed on behalf of the fourth respondent, reference is made to Rule 16(5)(2)(e) of the Uttarakhand Forest Department Ministerial Service (Amendment) Rules, 2009 (for short the "2009" Rules), which stipulates that the additional required qualification, for the post of Junior Assistant and Stenographer Grade-II, was Hindi typing on computer and stenography and typing test carrying 50 marks each; and the minimum prescribed speed for typing test shall be 4000 Key Depression Per Hour and 80 words per minute in stenography. It is admitted, in the counter-affidavit, that, in the column relating to required qualification as computer typing, the advertisement does not make a mention thereof.

The principle, that the rules of the game cannot be changed midway applies to cases where the rules are amended after the selection process has commenced. It is not in dispute, in the present case, that Rule 16(5)(2)(e) of the 2009 Rules was made long before the advertisement was issued. While it is, undoubtedly, true that the advertisement did not stipulate a pass in the typing test as an essential qualification for this category of posts of Junior Assistants, the advertisement was contrary to the applicable Rules which required a pass in the typing test as an essential qualification. Having realized its error, the Selection Board treated the typing test, conducted for the other post of Junior Assistants, for which the advertisement stipulated a pass in the typing test as an essential criteria, as applicable also to the posts of Junior Assistant for which the advertisement did not stipulate a pass in the typing test as an essential qualification.

In so far as those candidates, who had applied for both categories of posts, and as they had appeared in the typing test for one category of posts, the very same typing test result formed the basis for their selection to the other posts also for which the advertisement had erroneously not shown typing as an essential qualification. It is, in such circumstances, that the learned Single Judge, while refusing to interfere with the action of the respondents in rejecting the candidature of the appellant-writ petitioner and another, however made an exception of the petitioner in Writ Petition (S/S) No.1416 of 2013, since she had not appeared in the typing test, not having applied for the other post for which the advertisement stipulated a pass in the typing test as an essential qualification.

While we find considerable force in the submission, urged on behalf of the appellant-writ petitioner, that the selection board had erred in failing to stipulate this condition in the advertisement, permitting the selection process to go on and for candidates, without a pass in the typing test to be selected and appointed as Junior Assistants, would fall foul of the specific requirement of the 2009 Rules. It is, in such circumstances, that the Selection Board, after realizing its error, had adopted this procedure for selection of these candidates. The appellant-writ petitioner having participated, and having failed, in the typing test (albeit for the other post for which the advertisement stipulated a pass in the typing test as an essential qualification) cannot be heard to contend that either he should have been selected without undergoing a typing test, or a typing test should have been conducted all over again. Accepting this contention, would have required the Selection Board to conduct such a test, for all candidates who had applied for both the posts of Junior Assistants, all over again.

Since the appellant-writ petitioner had failed in the typing test, the learned Single Judge was justified in directing that no such exercise need be undertaken. The jurisdiction which this Court exercises in an intra-court appeal is extremely limited. It is only if the order under appeal suffers from a patent illegality, would interference be justified. We find no such infirmity in the order under appeal. The Special Appeal fails and is, accordingly, dismissed. No costs.