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Judgment
Justice Rajiv Sharma, Judge
Process for filling up five posts of Clerks was initiated as per advertisement dated 7.1.2011. Last date of receipt of applications was 27.1.2011. Petitioners and respondents No. 7 to 9 participated in the selection process. 270 candidates applied for these posts and 230 candidates were found eligible. Written test was conducted on 23.3.2011. Minimum qualifying marks were 50% of the total marks. The result was declared on 11.7.2011. The Committee was constituted for the purpose of recruitment on 14.7.2011. Typing test was held on 22.7.2011 alongwith interview. Respondents No. 7 to 9 have qualified the typing test. Initially, petitioner No. 1 was declared to have qualified the typing test but later on as per supplementary affidavit placed at page 84 of the paper book, it transpired that since petitioner No. 1 has secured 28.4 marks, he has wrongly been shown as qualified. Petitioners No. 2 and 3 have not qualified the typing test. Petitioner No. 1 secured 78 marks, petitioner No. 2 secured 84 marks and petitioner No. 3 secured 73 marks whereas respondent No. 7 secured 96 marks, respondent No. 8 secured 85 marks and respondent No. 9 secured 81 marks. In sequel to the result compilation as per Annexure P-9, respondents No. 7 and 8 were issued appointment letters on 30.8.2011. Respondent No. 9 was issued an appointment letter on 27.9.2011. Mr. P.D. Nanda has strenuously argued that the selection process is vitiated due to favouritism and nepotism. According to him, respondent No. 7 is daughter of respondent No. 5, respondent No. 8 is nephew of the wife of respondent No. 3 and respondent No. 9 is son of sister-in-law of respondent No. 4. He then argued that respondents No. 7 to 9 have been indiscriminately given higher marks in the interview to favour them. He also argued that there is possibility of answer-sheets being replaced. He further contended that neither any written test nor typing test could be conducted by the respondents No. 1 to 4. He lastly contended that this Court may get the suitability of the petitioners assessed by constituting a fresh Selection Committee.
Mr. Ashok Sharma and Mr. Shrawan Dogra have supported the selection of respondents No. 7 to 9. Mr. Ashok Sharma has argued that Vidhan Sabha has maintained absolute transparency in the selection process and the allegations made by the petitioners are not borne out from the records. He then argued that since the Speaker accompanied by the Secretary, Vidhan Sabha was going on a foreign tour to attend the Commonwealth Parliamentary Association Conference, Under Secretary was authorized to issue appointment letters to the selected candidates. He lastly contended that since the petitioners have not qualified the typing test, they are precluded from assailing the selection process. Mr. Shrawan Dogra, in addition, has argued that petitioners have undertaken the selection process and when they were not selected, they have assailed the appointments of respondents No. 7 to 9 to the post of Clerks.
I have heard the learned counsel for the parties and have perused the pleadings and the records produced by the Vidhan Sabha carefully.
What emerges from the pleadings is that five posts of Clerks were advertised, out of which two for general category, two for scheduled caste category and one for ex-serviceman category vide advertisement dated 7.1.2011. Written test was conducted on 23.3.2011 and the result was declared on 11.7.2011. Typing test was held on 22.7.2011. Petitioners have not qualified the typing test. Qualifying the typing test was sine qua non for selection. It would be apt at this stage to make reference to the Recruitment and Promotion Rules called "the Himachal Pradesh Vidhan Sabha Secretariat (Recruitment and Conditions of Service) Rules, 1974 (hereinafter referred to as the ''rules'' for brevity sake) amended from time to time. Rule 6 provides for method of recruitment, rule 8 speaks of appointing authority. An amendment has been carried out in the Recruitment and Promotion Rules on 4.12.2008, according to which an amendment has already been carried in rule 8 by substituting existing proviso below sub-rule (2) as under:
Provided that the Speaker may by general or special order delegate to the Secretary his power to make appointments to any post or class of posts specified in such order.
Minimum qualification prescribed for the post of Clerk as per Recruitment and Promotion Rules is that the candidate should have passed 10+2 or its equivalent from a Board/University recognized by the H.P./Central Government and typing speed of 25 W.P.M. in Hindi or 30 W.P.M. in English and the candidate should have the knowledge of word processing in computer. 10% posts are to be filled up by promotion and 90% by way of direct recruitment. In the advertisement issued vide Annexure P-3, it was provided that the candidates would undertake written test and interview. There was also a clause that the vacancies could be increased or decreased. Minimum essential qualification as per advertisement is 10+2 or its equivalent and the candidate is required to pass typing test at the speed of 30 W.P.M. in English and 25 W.P.M. in Hindi. Petitioners have not qualified the typing test, which was one of the essential conditions as per the Recruitment and Promotion Rules. Typing test has been conducted on 22.7.2011 though petitioner No. 1, as noticed above, was declared qualified but as per supplementary affidavit he has not qualified the typing test. The original record was also perused to verify this fact.
Mr. Ashok Sharma has strenuously argued that written test has been provided to restrict the zone of consideration. According to him, this test has been conducted on the analogy of written test held by the H.P. Subordinate Services Selection Board whereby 50% marks are qualifying marks. In the instant case, written test was held on 23.3.2011, result was declared on 11.7.2011 and petitioners and respondents No. 7 to 9 have qualified the written test. They have also been interviewed. Petitioner No. 1 has secured 73 marks, petitioner No. 2 has secured 76 marks and petitioner No. 3 has secured 68 marks in written test. Respondent No. 7 has secured 86 marks, respondent No. 8 has secured 77 marks and respondent No. 9 has secured 74 marks in written test. Petitioner No. 1 was given 5 marks, petitioner No. 2 was given 8 marks and petitioner No. 3 was given 5 marks in the interview. Respondent No. 7 has been given 9 marks, respondent No. 8 has been given 8 marks and respondent No. 9 has been given 7 marks in the interview. However, since the petitioners have not qualified the typing test, they could not be declared suitable. There is no illegality in prescribing the written test to restrict the zone of consideration, that too, on the analogy of H.P. Subordinate Services Selection Board. Holding of typing test was also necessary to ensure that the candidates fulfill the minimum typing speed as per Recruitment and Promotion Rules.
There is no merit in the contention of Mr. P.D. Nanda that there was possibility of the answer-sheets being replaced. According to the reply filed by the Vidhan Sabha, every answer-sheet was signed by the Centre Superintendent. Separate Committees have been constituted to conduct written test, typing test and interview. It has also come in the reply that the candidates were issued admit cards with their photographs.
Now, the Court will advert to the manner in which respondents No. 7 to 9 have been issued appointment letters by the Under Secretary on 30.8.2011 and 27.9.2011. Un-amended rule 8 deals with appointing authority. According to rule 8 (un-amended), the Secretary shall be appointed by the Government in consultation with the Speaker and the appointments to all other posts shall be made by the Speaker. However, as per proviso, the Speaker may, by general or special order could delegate to the Secretary, or any other officer of the Secretariat his power to make appointments to any post or class of posts specified in such order, being posts other than posts in Class-I. An amendment has been carried out in rule 8, as noticed above, on 4.12.2008, whereby proviso below sub-rule (2) has been substituted and now the Speaker may, by general or special order delegate to the Secretary his power to make appointments to any post or class of posts specified in such order. Thus, it is clear from the plain language of rule 8 that the appointments are to be made by the Speaker, but he can delegate power to the Secretary. In the instant case, the appointment letters have been issued by the Under Secretary. The reason assigned for the appointment letters being issued by the Under Secretary is that Speaker accompanied by the Secretary, Vidhan Sabha was going on a foreign tour to attend the Commonwealth Parliamentary Association Conference and the Under Secretary was authorized to issue appointment letters. Mr. Ashok Sharma has failed to point out any provision under which the power could be delegated to Under Secretary to issue appointment letters. In case the Speaker and Secretary were going on foreign tour, the issuance of appointment letters could be delayed. It is settled law by now that if a particular procedure is prescribed in the statute, the same has to be followed in that manner alone. The appointments have to be made by the Speaker though he could delegate power to the Secretary to make the appointments but there could not be any further delegation of the power of appointment. Thus, there is merit in the contention of Mr. P.D. Nanda that the appointment letters have been issued illegally to respondents No. 7 to 9.
Mr. P.D. Nanda has also argued that there were two posts for general category candidates, but three posts have been filled up. It has come in the reply that as per advertisement dated 7.1.2011, it was made clear that the vacancies could be increased or decreased. According to the reply, there was one anticipated vacancy after the retirement of one Senior Assistant, which as per roster, was to go to the general category. It is settled law under service jurisprudence that the employer can always make a panel according to merit list and the life of the panel is to be as per the rules and in the absence of the same as per settled law, the life of panel should be one year. In the instant case, name of respondent No. 9 has been recommended for appointment out of panel.
Petitioners knew about the terms and conditions contained in the Recruitment and Promotion Rules read with advertisement dated 7.1.2011 and have participated in the selection process. It is only when the petitioners could not qualify; they have assailed the selection process. The Court is of the considered view that the petitioners are estopped from challenging the selection process after going through the same. It is not in dispute that respondent No. 7 is daughter of respondent No. 5, respondent No. 8 is nephew of wife of respondent No. 3 and respondent No. 9 is son of sister-in-law of respondent No. 4. Merely, on the basis of respondents No. 7 to 9 being closely related with these functionaries, it cannot be presumed that they have been unduly favoured during the selection process. Respondents No. 7 to 9 have appeared in the written test and have qualified the same and have also qualified the typing test and as per their merit, appointment letters have been issued to them. Petitioners have failed to substantiate by bringing on record any tangible evidence that the private respondents have been unduly favoured by the functionaries. Mr. Ashok Sharma has submitted on the basis of records that respondents No. 3, 4 and 5 were not associated during the selection process.
There is no merit in the contention of Mr. P.D. Nanda that the petitioners be interviewed by the fresh Selection Committee. Selection process commenced on the basis of advertisement, which culminated into appointments of respondents No. 7 to 9, cannot be faulted with. selection process is governed under the Recruitment and Promotion Rules and there is no provision in the rules for constituting fresh selection committee to adjudge the suitability of the petitioners vis-�-vis private respondents. Accordingly, in view of the observations and analysis made hereinabove, the petition is partly allowed. The appointments of respondents No. 7 to 9 are quashed since their appointment letters have not been issued by the competent authority. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.