V.K. Shukla, J.@mdashOn 24.8.2002 from the office of Chief Development Officer, Ballia advertisement was made for making selection and appointment on the post of Jeep Driver and Class IV employee.
2. Petitioner applied for the post of "Patra Wahak" as per advertisement on 1.7.2002. Age of the incumbent prescribed was in between 18 to 35 years and relaxation of five years was provided for qua SC/ST/OBC category candidates. Selection was to take place in consonance with the provisions as contained in Group''D'' Employee Service Rules, 1985. Said selection was to be based on the basis of interview. Last date for filling up application form was 10.9.2002. Petitioner was issued call letter fixing 6.10.2002. On 6.10.2002 Interview took place. Some complaints were made qua said selection. Special Secretary, Gram Vikas Vibhag, U.P., Lucknow sent letter to District Magistrate, Ballia on 7.10.2002, contending therein to initiate inquiry qua the said selection and submit report till 8.10.2002. Result of Interview was stayed. Contention of petitioner is that no inquiry whatsoever took place and as result was being illegally withheld, consequently, petitioner approached this Court by preferring Civil Misc. Writ Petition No. 29655 of 2004 for declaration of the result. Pursuant to the order passed by this Court, Inquiry Committee was constituted for initiating inquiry and for submitting its report. Thereafter, impugned order in question has been passed, which is subject matter of challenge in the present writ petition.
3. Counter affidavit has been filed and therein it has been contended that selection, which had taken place, same was contrary to Rules and as such same has been cancelled.
4. Rejoinder affidavit has been filed and therein statement of fact mentioned in the counter affidavit has been rebutted and that of writ petition has been reiterated.
5. After pleadings mentioned above, have been exchanged and pursuant to directive issued by this Court, original record has been produced, then based on the same respective argument has been advanced and present writ petition has been taken up for final hearing and disposal with the consent of the parties.
6. Sh. R.M. Vishwakarma, Advocate, learned Counsel for the petitioner contended with vehemence that in the present case authorities concerned have totally misread and misconstrued the Rules in question and as such decision, which has been taken is unsustainable and result in question is liable to be declared and writ petition is liable to be allowed.
7. Learned Standing Counsel on the other hand contended that valid reasons have been assigned and selection in question has not been found to be fair and as such no interference be made.
8. Before proceeding to cons wider the respective arguments, relevant Rules which have been mentioned in the advertisement and on the basis of which parties to dispute have placed reliance namely on Rules, Class IV (Group ''D'') Employees Service Rules, 1985 framed by Governor in exercise of power vested under the proviso to Article 309 of the Constitution, is being looked into :
Chapter 5 which deals with procedure of selection, is being quoted below :
"16. Constitution of Selection Committee. For the purpose of recruitment to any post, there shall be constituted a Selection Committee as follows :
1. Appointing Authority;
2. An officer belonging to Scheduled Castes, Scheduled Tribes, nominated by the District Magistrate, if the Appointing Authority or his nominee does not belong to Scheduled Castes, Scheduled Tribes. If the Appointing Authority or his nominee belongs to Scheduled Castes, Scheduled Tribes, an officer other than belonging to Scheduled Castes, Scheduled Tribes to be nominated by the District Magistrate;
3. Two others nominated by the Appointing Authority, one of whom shall be an officer belonging to Minority Community. If such suitable officer is not available in his department or organization such officer shall, on the request of Appointing Authority, be nominated by the District Magistrate and on his failure to do so by reason of nonavailability of suitable officer such officer shall be nominated by the Divisional Commissioner.
17. Recruitment to be made every year. Selection for recruitment under these Rules shall be made every year or as and when necessary.
4. Omission of Rule 18. In the said Rules, Rule 18 shall be, omitted.
5. Substitution of Rule 19 : In the said Rules, Rules 19, the following
Rules shall be substituted.
19. Procedure for Selection. (1) The Appointing Authority shall determine the number of vacancies to be filled during the course of the year as also the number of the vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories. The vacancies shall be notified to the Employment Exchange. The Appointing Authority may also invite application directly from the persons who have their names registered in the Employment Exchange. For this purpose, the Appointing Authority shall issue an advertisement in a local daily newspaper besides pasting the notice for the same on the notice board. All such applications shall be placed before the Selection Committee.
(2) When the names both of the General candidates and Reserve candidates (for whom vacancies are required to be reserved under the order of the Government) have been received by the Selection Committee it shall interview and select the candidate for the various post.
(3) In making selection the Selection Committee shall give weight age to the retrenched employees awarding marks in the following manner :
(i) For the first complete year;
(ii) For the next and every completed year of service :
Provided that the maximum marks awarded to a retrenched employee under this subrule shall not exceed.
(4) The number of the candidates to be selected will be large (but not larger by more than 25 per cent) than the number of vacancies for which the selection has been made. The names in the select, list shall be arranged according to the marks awarded at the interview.
6. Omission of Rule 20 : In the said Rules, Rule 20 shall be omitted.
7. Substitution of Rule 21 : In the said Rules, for Rule 21 the following
Rules shall be substituted.
21. Common list. When the names of Selected candidates, both general and reserve have been received the Appointing Authority shall arrange them in common list, the first name to be from the list of the general candidate followed by the name of the reserve candidate and so on. The select list so prepared shall hold good for a period of one year from the date of selection "
9. Perusal of the said Rule 16 would go to show that for the purpose of making selection, Selection Committee'' would be constituted, which would comprise the Appointing Authority. In case Appointing Authority is not Scheduled Castes or Scheduled Tribes, then District Magistrate will authorize a member from Scheduled Castes or Scheduled Tribes category. In the Appointing Authority is from the Scheduled Castes or Scheduled Tribes, category, then any other officer will have to be authorized by the District Magistrate, who is not from the Scheduled Castes/Minority Community and other backwards category. District Magistrate will also appoint two other members out of which one would be of Minority Community and other to be from Backwards category. As per Rule 17 selection will have to take every year or as and when necessary. As per Rule 19 obligation is cost upon the Appointing Authority to determine the number of vacancies, to be filled during the course of year of recruitment as also the vacancies to be filled up by Scheduled Castes/Scheduled Tribes and other categories candidate. The vacancies are to be intimated to the Employment Exchange. The Appointing Authority has also been further enjoined upon to invite application directly from those candidates, who have their names registered in the Employment Exchange. For this purposes, apart from fixing the notice on the notice board, advertisement has to be made and thereafter entire applications are to be placed before the Selection Committee. As per subrules (2) of Rule 19 Selection Committee will get the name of general candidates and reserve candidates and thereafter, will take interview and will make selection. SubRule (3) of Rules 19 talks about preference to retrenched employees. SubRule (4) of Rule 19 provides that number of the selected candidates could not be more than 25% of actual vacancies. In the select list, name shall be placed as per marks obtained. Rule 21 provides preparation of the list and the life of aforementioned list.
10. On the touchstone of the provisions as contained in Rules, impugned order in question has been seen. Impugned order in question as well as record in question reveals that an issue was sought to be raised qua existence of backlog vacancies pursuant to the Government Order dated 15.5.2003. However, on the subsequent occasion, said issue has been dropped by contending that said Government Order will apply prospectively and not retrospectively. As issue of applicability of Government Order dated 15.5.2003 has been left out and same has not been made foundation and basis for withholding the appointment, as such said aspect of the matter is not at all being adverted to.
11. Record in question as well as impugned order in question reflects that three member Committee was constituted, which submitted its report on 10.11.2004 by concluding that advertisement was made on 24.8.2002, Selection Committee'' was constituted on 5.10.2002. Consequently, entire proceedings undertaken in between date of advertisement till Selection Committee was constituted has been held to be illegal. As far as authority under Rule 19 is concerned, right to determine the number of the vacancies and vacancies which are to be reserved, vests with the Appointing Authority. Appointing Authority has also been vested with the authority to inform Employment Exchange of the vacancies and to invite applications also directly from persons who have been registered in Employment Exchange by making advertisement. As per Rules, only these persons are entitled to apply who are registered with Employment Exchange as Appointing Authority is entitled to invite applications only qua them. After entire applications are received, then as per scheme of the Rules, the act of the Selection Committee starts in consonance with the provisions as contained in subrules (2), (3) and (4) of Rule 19.
12. Here in the present case, impugned order in question does not reflect that Appointing Authority has rejected the applications on his own score, inasmuch as, no finding has been returned that Appointing Authority on his own rejected various applications, who were otherwise eligible to be called for interview. It has been mentioned that only Selection Committee was empowered to see as to whether applications were valid or not and not the Appointing Authority. This is totally unwarranted presumption, inasmuch as, Appointing Authority is to place only those applications, which fulfilled the eligibility criteria and were in consonance with the Rules and the Advertisement and applications which lacked such requirement were not at all liable to be placed before Selection Committee. SubRule (2) of Rule 19 talks of calling of names of Selection Committee of General category candidates and Reserved category candidates and of the interview which is to follow thereafter. Selection Committee has to see the applications in term of provision as contained in subrules (2), (3) and (4) of Rule 19 of Group ''D'' Employees Service Rules, 1985 and merely because Selection Committee has been constituted on 5.10.2002 and advertisement was published on 21.8.2002, will not render entire exercise undertaken by Appointing Authority to be redundant or illegal. The issue in question has not been looked into from the angle as to whether valid applications have been illegally rejected by the Appointing Authority for extraneous consideration or there are any other infirmities prevailing in selection.
13. Consequently, order dated 16.11.2004 passed by respondent No. 2 is hereby quashed and set aside. District Magistrate, Ballia is directed to see as to whether there was any infirmity in the selection proceeding undertaken by Appointing Authority by rejecting valid applications and placing only those applications, which he intended and whether any unfair practice was adopted in selection and selection was undertaken strictly as per Rules. Said exercise be concluded, preferably within period of three months from the date of production of certified copy of this order. In case selection is found fair and in consonance with the Rules, then result be declared and in case selection is found unfair, tainted with manipulation and contrary to Rules, then information be communicated to petitioner.
14. With these observations, writ petition is allowed.
15. No orders as to cost. Petition allowed.
