Rajesh Sharma Vs Advocate General, Uttar Pradesh and Others

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177 paragraphs · 4,280 words

Sunil Ambwani, J.—By this writ petition. the petitioner has challenged the select list dated 3.12.1998, in so far as the respondents 2 and 3 are concerned, and has prayed for a direction in the nature of writ of mandamus directing the respondents to include the name of the petitioner in the select list of routine grade clerk/typist, dated 3.12.1998.

The employment on the post of routine grade clerk/typist in the State Law Office of the High Court at Allahabad under the Advocate General has been the subject-matter of controversy for a long time. In Writ Petition No. 42506 of 1993 between Shiv Pratap Yadau and Ors. and State of U.P. and Anr. decided on 8.8.1995, challenging the continuance of daily wage employees in the office of Advocate General of State, and to direct the respondents to make appointment on these posts after considering the facts and circumstances of the case of the daily wage employees ; directions were issued, that after receiving the approval to the proposals for increasing the strength of the ministerial staff permanent appointment would be made, only after due advertisement so that there is no scope of any violation of Article 16 of the Constitution of India. The Court did not ''find it expedient to disturb the arrangement made by the Advocate General in view of the pressure of work but at the same time recognised the rights of all those who were to be considered for appointment. The Court permitted the daily wagers to apply in pursuance of any further advertisement which may be made for recruitment.

The aforesaid directions of this Court were followed by another set of directions issued on 20.11.1996 in Writ Petition No. 37054 of 1996 between Narain Datt Tripathi and State of U. P. and others. In this writ petition, the petitioners challenged the proceedings of examination for routine grade clerk/typist held on 14.11.1996 raising the grievance that call letters are being issued arbitrarily in violation of the undertaking given by the respondents to this Court in Writ Petition No. 42505 of 1993 decided on 8.8.1995 to advertise the post. It was challenged that no advertisement was made and no opportunity was afforded to the petitioners and other candidates to apply for appointment on the said posts. In this writ petition, a statement was given on behalf of the respondents that appointment shall be made after following the procedure prescribed under the law. i.e.. after due publicity of the said post in the local as well as national newspapers having circulation in the State and Country respectively. The Court while disposing of the writ petition issued directions, that the call letters issued by the office of Advocate General to the candidates to appear in the examination shall be ignored. The posts in question shall be advertised in two dally newspapers having good circulation in the country, for which at least 15 days time should be given to the candidates for making/ submitting application for appointment. The newspaper for advertisement of the post shall be selected by learned Advocate General, and that the advertisement for the post of routine grade clerk shall be made within one month and thereafter the respondent will proceed to make selection/appointment in accordance with law. It was made clear that the candidate in whose favour call letters have been issued shall have right to apply for the post, if they so desire.

From the orders made in the aforesaid two writ petitions, and the statement given by the respondents on the basis of which the aforesaid petitions were decided and directions were issued, it is apparent that the Court did not accept the rights of the existing daily wagers to be regularised on the post of routine grade clerk/ typist, and that appointments were to be made only by direct recruitment, after due advertisement giving opportunity to all concerned.

In compliance with the aforesaid directions, an advertisement was issued for selection to 20 posts of routine grade clerk/typist in the pay scale of Rs. 950-1,500 in the office of State Law Officer, High Court. Allahabad/ Lucknow inviting applications from those eligible between 18 years to 32 years. The advertisement provided that according to policy of the State Government regarding reservation. four posts are reserved for Scheduled Caste/Scheduled Tribes, six posts for Other Backward Castes, and ten posts for general castes. A Selection Committee constituted by the Advocate General. U. P.. Allahabad, under the chairmanship of the then Additional Advocate General held competitive test, as well as interview for the eligible candidates and prepared a select list which was submitted for approval before the appointing authority, i.e. Advocate General. The petitioner was declared successful in the written examination and was issued a interview letter on 8.10.1998 for appearing in the interview on 24.10.1998. The petitioner, however, was not selected. All the selected candidates were issued appointment letters and that they have joined. In this writ petition, the petitioner has impleaded only two of the selected candidates, namely, Kunwar K. K. Singh Shastrl, the respondent No. 2, who was earlier working as a daily wager since 12.7.1993, and Kailash Nath Prajapatl, Scheduled Caste Candidate, who was also working on dally wages prior to the selection.

I have heard Sri P. C. Srivastava appearing for the petitioner. Sri C. K. Rai. Additional Chief Standing Counsel appearing for Advocate General, U. P.. Allahabad and Sri Ravi Kiran Jain, Senior Advocate, assisted by Sri Daya Shanker appearing for Kunwar K. K. Singh Shastri.

Sri Ravi Kiran Jain raised a preliminary objection to the effect that in the reliefs claimed by the petitioner, he has challenged the select list, only in so far as the selections of respondents 2 and 3 are concerned, and to issue a writ of mandamus to include his name in the same select list. On the grounds stated in the writ petition, a select list cannot be separated only as against two out of 20 selected candidates. In case the petitioner wanted to challenge selections, he should have sought relief against the entire selections, and impleaded all the selected candidates. It was further submitted that with the permission of the Court, by Order dated 26.11.2000, the petitioner has deleted the name of the respondent No. 3 from the array of the parties, as he has been selected in the Other Backward Caste category, and thus, in the facts and circumstances of the case, the relief was confined only to respondent No. 2. The petitioner was down below in the merit list and that even if the selection of respondent No. 2 was set aside, the petitioner would not stand to gain, and thus, the writ petition was liable to be dismissed on this ground alone.

In this case, the Court is not only concerned with the selection of respondent No. 2, but also to ensure that the selection process, which was initiated after giving an undertaking to this Court, was fair, giving equal opportunity to all the candidates. The office of the Advocate General is attached to the High Court, both at Allahabad and Lucknow Bench. The employees in the office of Advocate General are dealing with the records of the cases which are coming up before the Court every day. They are thus, essential part of the system of administration of justice, and thus. Court must ensure that the employees working as part of its system must be fairly appointed and there should not be any arbitrariness in the selection process. The Court has also to ensure that the orders passed in the earlier two writ petitions are truthfully and faithfully complied with, and thus the preliminary objection had no persuasive value. Even otherwise, the challenged in the present writ petition is confined to the ground of giving under favour to those who were already working as dally wagers, and that only respondent Nos. 2 and 3, belonging to that class were selected.

Before considering the submission of the counsel for the applicant, it is to be found, as to which of the rules regulate the service condition of class-III employees in establishment of the State Law Officer, High Court at Allahabad. The counter-affidavit of Sri Gopal Ji Jaiswal, Superintendent of Litigation in the office of U.P. State Law Officers, High Court. Allahabad has given history of the Advocate General establishment. From this affidavit. It is found that till the year 1952 the office of the U.P. State Law Officer. High Court of Judicature at Allahabad was part and parcel of High Court and for several years, the staff of the office of High Court, and that of the U.P. State Law Officers, which was a''lso known as the office of the Government Advocate used to be frequently transferred from one establishment to other establishment. The United Provinces Legal Remembrancer''s and Law Officers Establishment Rules. 1942, became applicable to the staff of the office of U.P. State Law Officer from the year 1952, when the office of the U.P. State Law Officer, and High Court were separated in the year 1952. In 1974, on a question regarding the equality in pay-scale in the office of the State Law Officer and the High Court, a note was put by the then Secretary (Law) and Legal Remembrancer. Government of U.P. to the Chief Minister for providing parity in pay-scale with the High Court establishment. In the same reference, an order was issued by the State Government of the Advocate General on 11.9.1974. providing that having regard to the nature of work in the State Law Office, so far as possible, same pay-scale and method of recruitment should be adopted as are applicable in the High Court and by the same letter, the pay/scales, for various category of posts were sought to be equalised. In para 3 of the said order, it was said, that in future except the posts in the categories of 10 and 11, that is. routine grade clerk and typist, the appointment and promotion on all other posts, shall be made under U.P. State Council (High Court) Establishment Rules, 1973. and as far as possible through the U.P. Public Service Commission. The reference to the aforesaid rules was superfluous inasmuch as these rules never came into existence. In substance, therefore, the Rules for recruitment and promotion to the posts of routine grade clerk and typist, is the same as it is applicable to the establishment of the High Court.

10.

The thrust of the submission of learned counsel for the petitioner is that under the direction of the Court in the earlier two writ petitions, the recruitment was required to be made only by competitive examination in which the daily wagers were required to participate but the entire selection had to be fair and to conform to the principles of equality enshrined under Articles 14 and 16 of the Constitution of India. According to him, the Selection Committee appointed by the Advocate General favoured the appointment of respondents 2 and 3 who were working as daily wagers in the same establishment, discriminating candidates from open market, including the petitioner. It is alleged that they did not even qualify in the interview in which they were given additional marks to push them upwards, to be selected, and that in fact each of the daily wager were given additional marks over and above the other candidates by which they stole a march, and thus respondent Nos. 2 and 3 found their names in the select list.

11.

Sri C. K. Rai, Additional Chief Standing Counsel submitted that the selection committee was constituted by the Advocate General, which consisted of Senior State Law Officers under the Chairmanship of the then learned Additional Advocate General. They adopted a criterion in which the persons working on ad-hoc/daily wages work for long time, performing duties other than typing were given relaxation from the typing test, as it was not proper to expect them to type with the same speed, and that if possible, the typing test was decided to be relaxed. It further resolved that it would be appropriate to give them 2 marks for every year of working (subject to maximum of 10 marks) for experience and that these marks be added at the time of interview for which all of them be called. The relevant part of the recommendation is enclosed as Annexure-CA-1 to the supplementary counter-affidavit of Sri Sobh Nath, Superintendent of Litigation is quoted below :

"The person working on ad-hoc/daily wage have been working for long time and have been asked to perform duties other than typing. It will not be proper to expect them to type with same speed. The typing test, if possible, be relaxed for them or at least required speed be reduced for them. It will also be appropriate to give them 2 (two) marks for every year of work (subject to maximum of 10 marks) for experience. These marks be added at the time of interview, for which all of them be called."

The aforesaid recommendations were accepted by the Advocate General on 10.4.1998 which is enclosed as Annexure-CA-2.

12.

The Court summoned the marks list which was awarded to all the candidates. The marks list provided to the Court roll-numberwise containing 37 pages giving marks of 3.107 candidates, gives the marks scored by these candidates on the basis of which they were called for interview. The tabulation sheets show that the last candidates out of 56 who were called for interview from amongst general candidates had secured 67 marks in the written examination, the last of said candidates in the other Backward Caste called for interview had secured 67 marks in the written examination and the last of Scheduled Caste/ Scheduled Tribes had also secured 63 marks in the written examination. As against these, all the 8 candidates (6 of which were in general category and 2 in other backward caste category) who were working as daily wagers in the establishment did not secure equal marks in any of the categories. These candidates which were termed as staff candidates working in the establishment, and has scored as low as 39 marks, and the highest 61 marks, were all called for interview.

13.

Coming to the interview, it was decided by the committee and approved by the Advocate General that the persons working on ad-hoc/daily wages in the establishment will be given 2 marks for every year of working subject to maximum of 10 marks for experience. It was not made clear whether these marks were in addition to the marks of interview or these were to be included in the 20 marks fixed for interview. However, when the interview took place, the tabulation sheet shows that each of the so-called favoured internal candidates were given 20 out of 20 marks, i.e., 100% in interview and thereafter they were awarded additional marks for experience at the rate of 2 marks for each year of service rendered as daily wage employees. In the above manner, the respondent No. 2 Kunwar K. K. Singh Shastri who had scored only 61 marks in written examination in general category, whereas the last candidate called for interview had secured 67 marks, was not only given 20 out of 20 marks in interview but 10 marks were added to his credit with 5 years of service in the establishment, and thus he got total of 91 marks, and was placed in the select list of general category at serial No. 2,

14.

The record produced by the office of Advocate General thus clearly established the contention of the counsel for the petitioner, that not only all the daily wagers were favoured in calling them for interview, but that in awarding full marks in interview, and additional marks by which they completed for a maximum of 110 marks whereas the candidates from open market completed for only maximum of 100 marks. A chart given below will demonstrate as to how this special favour was given to the so called internal candidates/daily wagers of the establishment.

OPEN MARKET CANDIDATES

Sl No.

Name

Written

Interview

Total

General category

Ashish Srivastava

Niraj Upadhyay

Shailendra Kumar

Anup Kumar MIsra

Anuj Sachdeva

Prabhakar Tripathi

Pramod Kumar Tiwari

Raj Kumar Srivastava

Vinod Kumar Tiwarl

O.B.C.

Rahul Singh

Raj Kumar Gupta

Ramjl Patel

Dhiraj Kumar Kushwaha

Rajesh Kumar

S.C./S.T.

Sunil Kumar Kanojia

Rakesh Kumar Sonkar

Arun Prakash

Deepak Kumar

THE INTERNAL/STAFF CANDIDATES

Sl No.

Name

Written

Interview

Experience

Total

GENERAL

Ajai Dhyani

Akhilesh Singh

Jai Prakash

Kr. K. K. Singh Shastri (Selected)

Partha Sarathi Gaur

Rajesh Kumar Srivastava

O.B.C.

Kailash Nath Prajapati (Selected)

Rajesh Kumar Yadav

15.

Sri C. K. Rai, Additional Chief Standing Counsel submitted that the committee decided the criteria to award marks, and when the marks were given to their past experience and conduct as the employees already working with the establishment, and additional marks given as a weightage to the candidates who had already put in years of valuable service to the establishment, cannot be termed to be arbitrary. Sri R. K. Jain appearing for the respondent No. 2 supported the award of additional marks as weightage and relied upon Arun Kwnar Rawat v. State of Bihar 1998 (4) SCC 490. In this case, the Hon''bte Supreme Court considered the question of regularisation of the temporary or ad-hoc appointees who were working for more than five years. A scheme was formulated in which 50% of the sanctioned posts were required to be filled up, amongst those appellants who were working on temporary/ ad-hoc basis, on their inter-se merit position and the remaining to be given to the general candidates- The remaining candidates who could not be absorbed against those 50% seats reserved for them, were made entitled to compete for appointment in the balance 50% general posts along with other eligible candidates but they were not be treated unsuitable on account of age bar and on assessment of merit, they will be given a credit of 25% marks for the experience they have gained for service rendered by them for the said long period of 5 years or more. There is nothing to show that these 25% marks is required to be given over and above the maximum mark under which they were required to compete. The Supreme Court made it specifically clear that these directions were given on consideration of special facts of the case and were not be treated as a precedent. Thus, the Supreme Court itself did not make it a precedent to be followed. In the present case, both the respondents 2 and 3 would not have been selected even if were not given 20 out of 20 marks of interview, and given additional marks on account of experience. The respondents further relied upon the judgment of Supreme Court dated 7.9.1992 in the case of State of U.P. v. Vipin Chandra Shukla and Ors. arising out of an order of single Judge in Writ Petition No. 12465'' of 1999, Vipin Chandra Shukla v. State of U.P. decided by the Court on 27.1.1992. In this order, the direction was issued in respect of the employees who are working in the office of the State Law Officer. High Court, Allahabad and High Court, Lucknow Bench, that the posts with regard to creation of which State Government was required to take decision, shall be filled in accordance with Rules. The respondents who were working on dally wage, if they choose, apply for the said post, and as and when they apply, the authorities concerned will. If they are otherwise qualified and were not age barred on the date when they were initially appointed were directed to be given preference by condoning their advanced age, and in the meantime, these employees were allowed to continue. The relaxation was, therefore, given only with regard to age.

16.

The third decision relied upon by the counsel for the respondent No. 2. is Mohd. Riazul Usman Gani and Others Vs. District and Sessions Judge, Nagpur and Others, . In this case of recruitment to the posts of peons in District & Sessions Court in State of Maharashtra, the Supreme Court did not approve of the decision of the authorities to the criteria of short listing of candidates in refusing to call those who had higher education than VII standard, whereas requisite qualification was standard IV. The Supreme Court held that higher qualification cannot be a disadvantage to a candidate. In concluding paragraph 23 of this judgment, Supreme Court although set aside the judgment of High Court, did not disturb the appointment of those candidates who were already selected. This decision is clearly distinguishable. The Supreme Court found fault with the method of short listing and not with the selection of any particular candidate. in the present case, it is found that a particular class of candidates were pushed up giving extraordinary advantage beyond the scope of service rules, without which they could not have been appointed.

17.

Interview or viva voce, which means oral examination, is to estimate suitability for a civil post. The purpose is to discover abilities and deficiencies, not displayed by performance in written examination. It is a test devised for assessment of abilities, aptitudes, attainment and accomplishments of a candidate in spheres which are relevant to suitability in the context of responsibilities and duties of the post sought by the candidate. In Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 414, Supreme Court has given guidelines regarding interview in selection process. In paragraph 21, it was held that the Court cannot sit in judgment over the marks awarded by interviewing bodies unless it is proved or obvious that the marking is plainly and indubitably arbitrary or affected by oblique motives. In the present case, whereas the highest marks awarded to any candidate who competed was 19 out of 20 to Shri Ashish Kumar Srivastava, all the candidates treated as staff candidates working as daily wagers, were each given 20 out of 20 marks allotted for interview. Even if we take the submission of respondents to be correct that they were already working and their work and conduct was found to be satisfactory, all the eight of them could not be given hundred percent marks allotted for interview. Thus, it is more than apparent that these favoured candidates were out of selection process, and the marks were awarded not on the assessment of their work and conduct, but treating them as a separate class to push them up in selection process. The award of full marks was not by way of their suitability but a motive to see, that they are selected. These candidates were thus, favoured at three stages, firstly by calling all of them for interview ; secondly by allotting full marks for interview, and thirdly by giving extra marks for experience at the rate of two marks for each year of experience. The discrimination is writ large on the face of record.

18.

In public employment, special care should be taken to see that the selection process is fair and should not be arbitrary and discriminatory. The object of any process of selection is to secure the best and most suitable person for the job avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. In the present case, it is found that on the two earlier occasions, this Court had directed the establishment of the State Law Officer, to resort to recruitment by competition, and to ensure fair selection of these employees. Instead of regularizing them, they were given extraordinary privilege of awarding full marks in interview and additional marks to push them in the selection process and even with these advantages. Only two of them could be selected, which goes to show that these candidates were much lower in merit than the candidates who competed in the selection. Merit was thus ignored and what could not be directly done was sought to be achieved indirectly. In the circumstances, selection of respondent No. 2 is declared to be illegal and violative of Article 16 of the Constitution of India.

19.

In the result, the writ petition succeeds and is allowed in part. The selection of respondent No. 2 as routine grade clerk in the State Law Officer establishment is set aside. The vacancy on his post shall be filled from the next candidate in the merit list and if the next in merit is not available, or does not choose to take the appointment, then from the next to next in the merit list. Since the respondent No. 2 has worked on the post on which he was appointed, he shall be entitled to the salary for the period he has worked without any deduction or recovery. He also shall have a right to compete on the vacancies in future in accordance with law in accordance with the earlier two judgments of this Court. There shall be no order as to cost.

Rajesh Sharma vs Advocate General, Uttar Pradesh and Others

Judgment