JUDGMENT Sabhajeet Yadav, J.
1. The brief fact of the case is that the Chief Secretary, Government of Uttar Pradesh issued a notice which was published in news paper in the first week of August, 2001 notifying that the selections to be conducted in all the district of the State for filling up Group 'C' posts in different department. The aforesaid notice was followed by an advertisement dated 29.8.2001 issued by the District Magistrate, Moradabad specifying the vacant posts to be filled up on the basis of such selection in the district Moradabad. The copy of advertisement has been filed as Annexure-1 to the writ petition. The advertisement so notified for district Moradabad indicates that number of posts of Junior clerk/Typist/Junior Assistant and Stenographers are to be filled up in different offices of the State Government. The petitioner being fully eligible and qualified to the post has applied in pursuance of the aforesaid advertisement. The petitioner belongs to the General category and had applied as such. The petitioner was allocated a Roll No. 5213422 for appearing in the written examination scheduled to be held on 7.10.2001. The result of written examination was declared and the petitioner was shown as having been qualified in the written examination. This information has been given by the office of District Magistrate, Moradabad vide letter dated 10th December, 2001 whereby the petitioner has been communicated that he has been found eligible to appear in typing test/Stenography test and secured 379 ranks in the merit list. By the aforesaid letter he has been told that by 18th December, 2001 he has to submit his option on a prescribed format and he has to appear in the typing test/stenography test on 22.12.2001 at I.T.I., Kanth Road, Moradabad. The aforesaid communication letter has been filed as Annexure-2 to the writ petition.
2. It is further stated that on 20.12.2001 the petitioner has submitted an application before the District Magistrate, Moradabad intimating that the petitioner had applied for both the post of Junior clerk/typist as well as Stenographer making request that the petitioner be permitted to appear in the typing test for the post of junior clerk and stenography for the post of stenographer. A true copy of the aforesaid application of the petitioner dated 20.12.2001 has been filed as Annexure-3 to the writ petition. In pursuance of the application so submitted by the petitioner to the District Magistrate, he was permitted to participate in both the test i.e. in typewriting test for the post of junior clerk/typist as well as in the stenography test for the post of stenographer held on 22.12.2001. It is further stated that the petitioner has failed to qualify the stenography test, however he qualified the typing test having secured typing speed of 31.4. w.p.m. and at the end of typing test held on 22.12.2001 he was intimated as having been selected for the post of junior clerk/typist. Before appearing in the aforesaid test the petitioner had also been required to fill up an option form indicating his preferential option for several departments and accordingly the petitioner had submitted an option form on 18.12.2001. A true copy of the aforesaid form filled up by the petitioner has also been filed as Annexure-4 to the writ petition. A perusal of which would demonstrate that the petitioner has given his first preference for the post of junior clerk/typist in marketing department i.e. in the office of Regional Food Controller. It is stated that as a result of first phase of typing test/stenography test the appointment orders were issued to some of the candidates on 22.12.2001. In making such appointments, one Sri Som Pal son of Mohan Lal who was allotted Roll No. 52005337 on the post of junior clerk/typist has also been appointed. According to the petitioner Sri Som Pal had also appeared in both the tests i.e. the stenography test as well as in typewriting test but he was appointed as junior clerk/typist by an appointment order dated 21.12.2001. In pursuance there to he had joined his post in the month of December, 2001 and continuously functioning and discharging his duties on the aforesaid post, whereas despite the fact that the petitioner had been declared qualified in the typewriting test held on 22.12.2001 no order of appointment has been issued to him.
3. It is further stated that on account of intervention made by the Apex Court as well as Government orders issued in connection of the aforesaid process of selection, the selection was stopped for quite long time, as a result of which large number of writ petitions were filed. In a leading writ petition No. 31852 of 2002 (Ajit Kumar Singh v. State of U.P. and Ors.) a learned Single Judge of this Court has directed the respondents of the aforesaid writ petition to complete the selection process initiated for filling the vacancies of Group 'C' posts in pursuance of said advertisement of the year 2001. It was specifically directed that where the select list were published, the respondents shall issue the appointment letters to the selected candidates by applying the roster for reservation in accordance with law, where the select list have not been published, those shall be published in accordance with the merit and the appointment orders shall be issued in accordance with law. It is also alleged that the petitioner has also filed Writ Petition No. 38258 of 2002 (Amit Kumar v. State of U.P. and Ors.), which has also been decided by learned Single Judge in a bunch of writ petitions decided on 4th October, 2002. Against the aforesaid judgment and order dated 4.10.2002 passed by Learned Single Judge of this Court a Special Leave Petition had been filed by State before the Supreme Court which was dismissed as withdrawn on 7.2.2003. Thereafter the State of U.P. has filed a Special Appeal before Division Bench of this Court which was numbered as Special Appeal No. 120 of 2003 (State of U.P. v. Amit Kumar Singh and Ors.), the aforesaid Special Appeal is time barred and till the date the delay in filing aforesaid Special Appeal has not even been condoned. It is further stated that the petitioners of the aforesaid writ petitions including the petitioner of instant writ petition have been compelled to file Civil Misc. Contempt Petition No. 742 of 2003 in which notices were issued by this Court on 26.3.2003, as such the State Government issued Radiogram on 5.4.2003 and thereafter issued an order on 12.4.2003. In pursuance of the aforesaid orders the district authorities of district Moradabad have proceeded to hold two further typing test in the month of April and May, 2003 in which additional candidates were called after lowering down the merit in the written examination. However in the typewriting test so held the petitioner was not called for participating therein as the petitioner was already qualified the typewriting test held on 22.12.2001. It is further stated that based upon the typewriting test held in April and May, 2003 the District Magistrate has appointed several candidates. However no appointment letter has been issued to the petitioner so far till the date. In paragraphs 30, 31, 32 and 33 of the writ petition it is further asserted that a total number of 11 posts of Junior clerks are still continuing to be vacant. Despite this the petitioner has not been offered any appointment and for filling the aforesaid 11 posts further typewriting test are scheduled to be held in third week of June, 2003 and there seems no justification for not offering the appointment to the petitioner who had been duly selected and had qualified the typewriting test held on 22.12.2001. Feeling aggrieved against the aforesaid inaction the petitioner moved several representations before the authorities but since no heed has been paid over the matter, therefore, the petitioner has been compelled to file above noted writ petition seeking direction in the nature of mandamus to appoint the petitioner as junior clerk in pursuance of the typewriting test qualified by the petitioner on 22.12.2001 and further to permit him to function as junior clerk under the respondents to pay his regular salary month to month on the post in question.
4. A detailed counter affidavit has been filed on behalf of the respondents. In paragraph 12 of the counter affidavit it is stated that the petitioner applied for the post of stenographer and gave his preference for appointment for the post of stenographer in different departments in accordance to his choice. In paragraph 13 of the counter affidavit it is stated that the petitioner was permitted for the test of stenography i.e. speed of shorthand writing and speed of typing. In paragraph 14 of the counter affidavit it is stated that the petitioner has failed to qualify the test held for the post of the stenographer. It is wrong to allege that the petitioner has qualified the test held for typist-cum-clerk. In paragraph 15 of counter affidavit it has been stated that the petitioner was never informed that he has been selected for the post of junior clerk/typist. The petitioner never applied for the post of typist as such there was no question of his selection as typist, In paragraph 16 of the counter affidavit it has been stated that the petitioner gave his order of preference in various departments in accordance to his choice for the post of stenographer not for the post of typist-cum-clerk and paragraph 17 of the counter affidavit it has been stated that the petitioner gave his preference in the department where the post of stenographers were vacant but the petitioner could not be appointed on the post of stenographer. In paragraph 18 of the counter affidavit it has been stated that Som Pal son of Mohan Lal who was allotted Roll No. 52005337 could not qualify the test for the post of stenographer but due to clerical mistake his name was included in the list of selected candidates of Typist/Clerk which has been withdrawn after scrutiny of the record. In this regard the necessary communication has been made by District Magistrate, Moradabad to the Joint Commissioner, Trade Tax, Moradabad vide his letter dated 19.12.2003. In pursuance there of the services of Sri Som Pal Singh has been terminated vide order dated 12th January, 2004. The copy of which have been filed as Annexures-C.A.-1 and C.A.-2 to the counter affidavit. The petitioner's first preference and remaining five preferences were for the post of appointment of stenographer but the petitioner could not succeed in the test of shorthand i.e. stenography so the appointment letter could not be issued to the petitioner as he was declared failed. In paragraphs 27 to 30 of the counter affidavit it is stated that in pursuance of the Government order the typewriting test has already been held and appointment letters have been issued to the candidates who were selected in the typewriting test and at present the process of selection is completely over and the selected persons were appointed. Since the petitioner was not selected as such no appointment letter could be issued to him. At present the process of selection has been completed and no post is lying vacant. In paragraphs 31, 33, 34 and 35 of the counter affidavit it is further stated that the petitioner has applied for the post of stenographer and gave his order of preference in different departments where the posts of stenographer were vacant. It is wrong to allege that petitioner applied for the post of clerk-cum-typist. The petitioner could not be declared selected in the test held for the post of stenographer so the appointment letter could not be issued to him. In pith and substance the stand taken by the respondents in the counter affidavit is that since the petitioner has applied only for the post of Stenographer and he has been failed in the test of shorthand and typewriting held for the post of Stenographer and did not apply for the post of junior clerk-cum-typist, therefore, the question for his consideration on the post of junior clerk-cum-typist does not arise.
5. In reply to the aforesaid counter affidavit the petitioner has filed rejoinder affidavit whereby he has reiterated the averments contained in the writ petition and also elaborated his stands taken in writ petition in paragraphs 7, 9, 11, 13 and 23 of the rejoinder affidavit.
6. I have heard Sri Ashok Khare, learned Senior Counsel assisted by Sri V.D. Chauhan, Advocate for the petitioner and the learned Standing counsel for the respondents and have also perused the records. Having been gone through the pleadings of the parties and rival contentions made by them and other material available on record a moot question arises for consideration of this Court is as to whether on becoming unsuccessful against the vacancy of stenographer the petitioner was entitled to be considered against the vacancies on the posts of Junior clerks-cum-typist or not in the selection in question.
7. The thrust of submission of learned counsel for the petitioner Sri Ashok Khare is that under the advertisement in question a single selection has been held for the post of stenographer as well as for the junior clerk/typist. A candidate has failed to qualify in the stenography test but has qualified the typewriting test is entitled for appointment as junior clerk/typist, the respondents have done so in an identically circumstanced in favour of a candidate namely, Sri Som Pal bearing Roll No. 52005337 who has been granted appointment as junior clerk/typist, despite his failure to qualify the stenography test. He has further submitted that in the application of the petitioner moved before the District Magistrate on 20.12.2001 and in the option form submitted by him on 18.12.2001 before the Chairman, Selection Committee, he gave his first preference for the post of junior clerk/typist for the office of Regional Food Controller, demonstrates that in case of his failure in the test of stenography, his candidature can be considered in order of preferences given by him against the post of junior clerk/typist available in different departments of Government offices in the district for which selection has been held and otherwise also under the relevant scheme of the Rules under which the aforesaid competitive examination has been held by way of a single process of selection. If a candidate fails to be selected against the vacancies of one category of posts, it cannot be said at all that he is not entitled to be considered for other remaining posts included in the same process of selection. Sri Khare has further submitted that in similar set and facts of the case a learned Single Judge of this Court has allowed a bunch of writ petitions, the leading case of which is Writ Petition No. 19367 of 2003 (Gajendra Singh and Anr. v. State of U.P. and Ors.) decided on 24.9.2003, whereby it has been held that all the petitioners and similarly situated candidates are entitled to be considered for the post of junior clerks irrespective of the fact whether they had disclosed that they have knowledge of typing. All the appointments made out of the select list have been quashed and the respondents of the aforesaid writ petition were directed to rearrange the select list in accordance with Rules, 2001 and a fresh select list was directed to be made in accordance with the observation made in the judgment and appointment letters were also directed to be issued in accordance with fresh select list so prepared. A Division Bench decision rendered in Special Appeal No. 1090 of 2003 (Ramesh Chandra Singh and Ors. v. State of U.P. and Ors.) on 5.2.2004 has also been relied upon by Sri Khare, wherein the view taken by learned Single Judge in the aforesaid cases has also been up held by the Division Bench.
8. Before adverting the rival contentions and submission of the parties in context of the question in controversy involved in the case, it is necessary to have a glance over the scheme underlying in the U.P. Procedure for Direct Recruitment for Group 'C' Posts (Outside the purview of the Uttar Pradesh Public Service Commission) Rules, 2001 (hereinafter referred to as 'Rules, 2001') which is sole basis of recruitment in question. The aforesaid rule has been published in U.P. Gazette Extraordinary Part 4, Section (Ka) dated 20th August, 2001. Under Sub-rule 2 of Rule 1 it has been provided that the provisions of rule shall come into force at once. Rule 2 provides overriding effect of the Rules, which stipulates that these rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders. Rule 3 provides definition clauses and Rule 4 provides the provisions for determination of vacancies and reservation. Rule 5 provides for Constitution of Selection Committees. Rule 6 provides Procedure for direct recruitment which is being reproduced as under :
"6. Procedure for direct recruitment.- (1) For making direct recruitment the Government shall publish the application form in daily newspaper having wide circulation.
(2) The concerned Department of the Government shall notify the vacancies to the Department of Personnel and to the Director, Information, Uttar Pradesh for publication of vacancies, scheme of selection and application form as given in Sub-rule (1).
(3) The appointing authority shall also notify the vacancies in the following manner:-
(i) by pasting the notice on the notice board of the office or by advertising through Radio/Television and other Employment newspapers; and
(ii) by notifying vacancies to the Employment Exchange;
(iii) by also placing advertisement in daily news paper, if the need is so determined by appointing authority.
(4) The application shall be submitted to the Chairman of the concerned Selection Committee.
(5) The application form shall not be published again while notifying the vacancies under Sub-rule (3).
(6) The test for selection shall carry One hundred and fifty marks. The merit list of the candidates shall be prepared in the following manner.-
(a) (i) there shall be an objective type written examination consisting of a single question paper which will include General Hindi, General Knowledge and General Studies. Ninety per cent of the percentage of marks obtained in the written examination shall be given to each candidate except those candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification. In the case of candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification seventy per cent of the percentage of marks obtained in the written examination shall be given to such candidates;
Provided that the posts for which some physical standards have been prescribed as essential qualification or as mode of recruitment for the post, the candidates shall be required to undergo prescribed physical tests after the written examination and only those candidates shall be allowed to join service who come up to the minimum standards prescribed for the post.
(ii) The question paper-cum-answer sheet (in duplicate) shall be provided to the candidates. When the examination is over, the candidates shall be allowed to carry back the carbon copy of the answer-sheet with them.
(b) Marks to a retrenched employee shall be awarded in the following manner subject to the maximum of ten per cent marks of the total marks fixed for test for selection;
(c) In the case of candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, there shall be a test of typewriting or shorthand and typewriting as the case may be. Twenty per cent of the percentage of marks obtained in the said test shall be given only to those candidates who have attained minimum speed prescribed for typewriting or shorthand and typewriting, as the case may be. The number of candidates to be called for typewriting test or shorthand and typewriting test, as the case may be, shall be four times the number of the vacancies. For this purpose the merit list of candidates shall, having regard to the provisions of reservation referred to in Rule 4, be made separately on the basis of marks obtained by them under Clauses (a) and (b).
By second Amendment Rules, 2001 published in U.P. Gazette Extra Part-4 Section (ka) dated 22nd December, 2001 existing Clause (c) is substituted in the following manner :
"(c) In the case of candidates to be selected for any post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, there shall be a test of typewriting or shorthand and typewriting, as the case may be. Twenty percent of the percentage of marks obtained in the said test shall be given only to those candidates who have attained minimum speed prescribed for typewriting or shorthand and typewriting, as the case may be. The number of candidates to be called for typewriting test or shorthand and typewriting test, as the case may be, shall be such as is considered appropriate by the Selection Committee. For this purpose the merit list of candidates shall, having regard to the provisions of reservation referred to in Rule 4, be made separately on the basis of marks obtained by them under Clauses (a) and (b)."
(7) The Selection Committee shall having regard to the provisions of reservation referred to in Rule 4, prepare a list of candidates in order of merit as disclosed by aggregate of marks obtained by them under Clauses (a), (b) and (c) of Sub-rule (6), as the case may be. If one or more candidates obtained equal marks the candidate senior in age shall be placed higher in the list.
(8) In this selection process, each applicant may apply for all the vacancies for which selection is being done by a Selection Committee. At the time of application the applicant has to mention only his first preference among all such posts in the application form, which would be addressed to the Chairman, Selection Committee. After the result of the examination is declared successful applicants shall have to give their preference for all other posts for which the examination was conducted in a prescribed manner, to the Chairman, Selection Committee.
(9) The Selection Committee shall then finalise the lists of selected candidates against the notified vacancies/posts and shall forward the lists to the appointing authorities. "
9. An analysis of the 'Rules 2001' as amended from time to time it seems that the rules have its following salient features:
(I) The rules have been meant for direct recruitment for Group 'C' posts outside the purview of U.P. Public Service Commission.
(II) It has very wide ambit of scope of its application covering large number of Group 'C' posts under the rule making power of Governor under the proviso to Article 309 of the Constitution of India except certain posts and departments indicated in the rule itself and for which the prescribed minimum academic qualification is lower than Intermediate examination certificate of the board of High School -intermediate education, Uttar Pradesh or equivalent qualification recognized by the Government or which were excluded from the application of the rules by the Government by notified orders or which are of technical nature or for which specific qualifications are prescribed.
(III) Rules have its overriding effect upon any other rule or Government orders.
(IV) Under the rule in the process of selection each applicant may apply for all the vacancies in respect of every post for which selection is being done by a selection committee.
(V) At the time of application, the applicant has to mention only his first preference among all such posts in the application form, which would be addressed to the Chairman, Selection Committee.
(VI) After result of written examination is declared, successful applicants have to give their preference for all other posts on which selection being done in a prescribed manner to the Chairman, Selection Committee.
(VII) There shall be only one objective type written examination consisting of a single question paper in respect of all categories of posts included in the advertisement.
(VIII) Ninety percent of the total marks obtained in written examination shall be given to each candidates except to those candidates to be selected for any post for which type writing or shorthand and type writing has been prescribed as essential qualification.
(IX) In case of candidates to be selected for the post for which type writing or shorthand and type writing has been prescribed as essential qualification seventy percent of total marks shall be given in the written examination to such candidates.
(X) The retrenched employee shall be awarded maximum ten percent marks of total marks fixed for selection. Six percent marks shall be awarded for one completed year of service, and for the next and every completed year of service two percent marks for each year shall be awarded.
(XI) The post for which some physical standards have been prescribed as essential qualification or as a mode of recruitment for the post, the candidates shall be required to under go prescribed physical test after written examination and only those candidates shall be allowed to join the service who come up to the minimum standards prescribed for the post.
(XII) In case of candidates to be selected for any post for which type writing or shorthand type writing has been prescribed as essential qualification, there shall be test of type writing or shorthand and type writing as the case may be twenty percent of total marks obtained in the said test shall be given to only those candidates who have attained minimum speed prescribed for type writing or shorthand and type writing as the case may be. For this purpose the merit list of candidates shall having regard to the provisions of reservation referred to in Rule 4, be made separately on the basis of marks obtained by them under Clauses (a), (b) of Sub-rule (6) of Rules 6.
(XIII) For the purpose of selection no oral interview or Viva-voce test is prescribed.
(XIV) In order to demonstrate transparency in selection the question paper-cum-answer sheet in duplicate shall be provided to the candidates. When the examination is over the candidates shall be allowed to carry back the carbon copy of answer sheet with them.
(XV) The correct answers of the questions of written examination and marks obtained therein by the candidates along with their aggregate of marks obtained under Sub-rule (7) of Rule 6 shall be published in the daily news papers and displayed on the notice board of the concerned office. Under Rule (9) of the Rules the candidates are also entitled to have inspection of records of the process of selection.
10. Although Sub-rule (8) of Rule 6 of 'Rules, 2001' throws sufficient light to find out complete answer to the question in controversy involved in the case but before coming to the issue it is necessary to analyse and examine other provisions of Sub-rule (6) of Rule 6 of 'Rules, 2001'. Having regard to the nature of posts for such selection there would be three categories/class of candidates:
(1) The candidates who are not required to appear either in type writing or shorthand and type writing test and are required only to appear in written examination consisting of single question paper, for them total maximum marks allocated in the written examination is ninety percent of total marks prescribed for selection.
(2) Another category of candidates conveniently referred as second category would be those candidates for whom written examination of a single question paper will be of seventy percent marks of total marks prescribed for selection and twenty percent marks is allocated for the test of type writing or shorthand and type writing and the same shall be given to only those candidates who have attained minimum speed prescribed for type writing or shorthand and type writing in such tests.
(3) Third category of candidates would be for the post for which physical standards have been prescribed as essential qualification or as a mode of recruitment for the post. The candidates shall be required to under go prescribed physical test after written examination and only those candidates shall be allowed to join service who come upto the minimum standards prescribed for the post. For them also total ninety percent maximum marks are allocated in the written examination and for the physical test they have to attain only prescribed minimum standard or norm fixed for such post. Apart from it in the process of selection ten percent marks have been allocated only to those candidates who are retrenched employees. It is also necessary to make it clear that these retrenched employees may be the candidates of either categories or they may be a candidates of all categories referred above, ten percent total marks of selection is liable to be allocated as a weightage of marks to a candidate belonging to the aforesaid category of employees.
11. An analysis of Rule 6 (6) a, b and c and the situations contemplated by the rules reveals certain shortcomings and infirmities in the rules. In a situation where candidates to be selected for any post for which type writing or shorthand and type writing has been prescribed as an essential qualification for them there would be seventy percent of total marks of selection in the written examination and twenty percent marks is liable to be allocated to only those candidates who have attained minimum speed prescribed for such type writing or shorthand and type writing test, meaning thereby that those candidates who could not attain minimum speed prescribed for such type writing or shorthand and type writing, no marks can be allocated to them in the typewriting or shorthand typewriting test. For them only seventy percent of total marks in written examination is allocable. If they are candidates of the category of retrenched employee, ten percent of total marks of examination is also admissible as prescribed under Clause (b) of Sub-rule (6) of Rule 6. Although such category of candidates are entitled to be considered for other posts in which shorthand and type writing or type writing test is not required but for them since the written examination carry only seventy percent of total marks, therefore, while assessing their comparative merit with other category of candidates who have not applied for such a post in which type writing test or shorthand and type writing test as an essential qualification and for them in the written examination there would be ninety percent of total marks of selection, the cases of former category of candidates are bound to be prejudiced and such a situation would be detrimental to the interest of such candidates though they are eligible for other posts and may have applied for all the posts for which selection is being done. Thus to that extent Clause (c) of Sub-rule (6) of Rule 6 is arbitrary, unreasonable and does not withstands to the reasons and test of anvil of Articles 14 and 16 of the Constitution of India.
12. Another shortcomings may also revealed from the close scrutiny of Clause (c) of Sub-rule (6) of Rule 6 under which separate merit list of the candidates of type writing test and shorthand and type writing test required to be prepared on the basis of marks obtained by them, under Clauses (a) and (b) alone, since there is no variation in the marks obtained by such candidates who appears in type writing test or shorthand and type writing test and also attains minimum speed prescribed for such test as they are entitled to get twenty percent of total marks allocable in such a test, hence it is clear that proficiency of candidates in the test of type writing or shorthand and type writing has been ignored altogether otherwise while making provision of preparation of merit list separately for such category candidates, the provisions would have been made differently while taking into account the marks obtained by them in such test also, as such it is clear that performances in the written examination is sole decisive factor for determination of merits of such candidates instead their proficiency in type writing and shorthand and type writing test. Therefore, on this count also the Clause (c) of Sub-rule (6) of Rule 6 does not withstands to reasons and cannot be said to be suitable piece of legislation to pick up best suitable candidates from the available lot for the purpose of selection of candidates suiting to the job, and accordingly the provisions do not appear to serve the best purpose of selection and 'Rule, 2001' itself. The view taken by me in this regard also finds supports from dictum laid down by the Apex Court in case of Liladhar v. State of Rajasthan: AIR 1981 S.C. 1777 as pointed out at 1778 of the report: --"the object of any process of selection for entry into public service is to secure the best and the 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. So, open competitive examination has come to be accepted almost universally as the gateway to public service".
13. Since neither the petitioner has challenged the validity of any provision of 'Rule, 2001' nor the case in question requires the Court to examine the validity of the aforesaid provisions of the Rules, as such it is not necessary to go into the aforesaid intricacies of legal niceties of Rules and the same will be considered in appropriate case. The observation made in this regard in preceding paragraphs are only suggestive in nature to the appropriate authority to consider the matter having regard to the aforesaid discussion and other relevant factors having material bearing with the subject matter.
14. In order to answer the question of controversy involved in the case, it is necessary to examine the other relevant materials and the provisions of Sub-rule (8) of Rule 6 of the Rules, which provides that in this selection process each applicant may apply for all the vacancies for which the selection is being done by a selection committee. At the time of making application, the applicant has to mention only his first preference among all such posts in the application form, which would be addressed to the Chairman, Selection Committee. After the result of examination is declared successful candidates shall have to give their preferences for all other posts for which examination was conducted in a prescribed manner to the Chairman, Selection Committee. A bare reading of the aforesaid provisions of the rule it is clear that the rule in question does not admit any ambiguity or doubt about the entitlement of a candidates for consideration against all vacancies in respect of all the posts for which selection is being done by a Selection Committee for simple reason that a candidate can apply for all the vacancies and in his application form prior to the written examination he has to give only his first preference for the vacancies in respect of any post and after becoming successful in written examination he has to give his other preferences for other posts on prescribed format in a prescribed manner. From a perusal of the application form it is clear that while submitting the same he is not required to make specific mention about all the vacancies in respect of all the posts but he has to give his educational and other qualification, and make a declaration to the effect that he has applied for all the post included in the advertisement for which selections being done by selection committee. Therefore, it was duty of the selection committee to consider his candidature for all the vacancies in respect of all the categories of posts, which were included in advertisement in question and for which he is eligible and qualified. Thus what was necessary for the selection committee to examine only eligibility and qualification of the candidates disclosed in the application form in respect of the various categories of the posts included in the advertisement in question in pursuance of which selection was being done by the selection committee. It is not in dispute that petitioner has applied for all the posts included in the advertisement and was eligible and qualified for both the categories of posts i.e. posts of Stenographer and junior clerk-cum-typist included in the said advertisement but selection committee has failed to consider the matter in correct perspective and taken the view that since the petitioner has failed in shorthand and typewriting test held for the post of stenographer and has given options only in respect of the aforesaid post, therefore, question for his consideration in respect of the vacancies pertaining to the post of junior clerk-cum-typist does not arise. The aforesaid view is wholly misconceived. Such exclusion of candidature of petitioner from consideration for all other posts of junior clerk/typist would be in violation of Sub-rule (8) of Rule 6 of Rules and at the same time it would also be contrary to the provisions of Article 16(1) of the Constitution of India, as right of consideration in the matter of employment or appointment in respect of public offices or posts is constitutional guarantee flows directly from the provisions of the aforesaid Article. In this connection it is necessary to point out that Article 309 of the Constitution of India under which service Rules including the Rules of recruitment are framed to public services and the post in connection with affairs of Union or of any State is also subject to other provisions of the Constitution including Article 16 Clause (i) of the Constitution of India. As such even the service rule and rules of recruitment of such public services and post cannot legitimately be framed in a manner to impair the fundamental right guaranteed to a citizen of India in the matter relating to employment or appointment in any office under the State.
15. Now another question arises for consideration before this Court is as to whether the action of respondents and selection committee could have been justified under the provisions of Rule 6 (6) (c) of the Rules. In order to answer this question it is necessary to point out that if the Rule 6(6) (c) is to be interpreted in manner that the candidate who have qualified in the written examination and also eligible to appear in the tests of both the category of posts i.e. stenographer and junior clerks for which different tests i.e. a test for shorthand and typewriting for the post of stenographer and a test for typewriting for the post of junior clerk/typist is required, if their candidature is considered for one category of post in exclusion of another categories of posts, in that event of the matter it would be in the conflict of the Sub-rule 8 of Rules 6 and would create an anomalous situation inasmuch as it would be contrary to the provisions of Article 16(1) of the Constitution of India also and to be held ultra-vires to the aforesaid provisions of the constitution. At the same time it would also be contrary to the aims and object of the rule in question, which provides procedure for holding selection by clubbing the vacancies of various categories of group 'C' posts in the single process of selection wherein a candidate is entitled to apply against all the posts included in the advertisement. Therefore, in order to save the aforesaid provisions of the rule it is to be interpreted in such a manner in which full effect may be given to both the provisions of the rules. Accordingly I have no hesitation to hold that if a candidate has been declared successful in written examination and eligible and qualified to appear in the tests of both the categories of posts namely; stenographer and junior clerk-cum-typist as both the posts are included in the same advertisement and the candidate has applied for the same, in that event of the matter the selection committee is bound to permit the candidate to appear in both the tests to be held for such posts, irrespective of fact whether the candidate succeeds in any of the test or both the test or failed in both the tests. If a candidate succeeds in the tests for both the posts his merit list shall be prepared for both the posts, in case he succeeds in the test for only one category of posts his merit shall be prepared for only that category of post. If he could not succeed in test for any category of posts his candidature shall be excluded only from the merit of aforesaid categories of posts. But in the instant case what the selection committee has done is that the candidature of petitioner for the post of junior clerk-cum-typist was rejected on the ground that he has failed in stenography test. Thus the view taken by the selection committee is wholly erroneous, misconceived and cannot be justified under the provisions of Rule 6 (6) (c) of the Rules also. Therefore, the same is held to be contrary to the rules of recruitment and beyond the scope of authority under law, accordingly not sustainable in the eyes of law.
16. At this juncture a reference can be made to a decision of the Apex Court rendered in Dr. Krushna Chandra Sahu and Ors. v. State of Orissa and Ors.; reported in AIR 1996 (1) S.C. 352. While taking note of earlier decisions the Apex Court had held that in absence of such power given to the selection committee under the rules of recruitment the selection committee has no jurisdiction to adopt any other norm of recruitment contrary to the statutory rules of recruitment. For ready reference paragraphs No. 35, 36, 37 and 38 of the aforesaid judgment are being reproduced as under :
"35. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorized specifically in that regard by the Rules made under Article 309. It is basically the function of the rule making authority to provide the basis for selection. This Court in State of Andhra Pradesh v. V. Sadanandam, AIR 1989 SC 2060 observed as under (para 16, at pp. 2065-66 of AIR) :-
"We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old Rule and for personnel belonging to either zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has traveled beyond the limits of its jurisdiction. We need only point out that the mod of recruitment and the category from which the recruitment to a service should be made are all matters, which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive."
36. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramachandra Iyer v. Union of India, (1984) 2 SCR 200: (AIR 1984 SC 541), it was observed (para 44, at p. 562 of AIR): -
"By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm."
37. Similarly, in Umesh Chandra Shukla v. Union of India, 1985 Suppl. (2) SCR 367: (AIR 1985 SC 1351), it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Sh. Durgacharan Misra v. State of Orissa, (1987) 2 UJ (SC) 657: (AIR 1987 SC 2267) and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce test.
38. It may be pointed out that rule making function under Article 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana, AIR 1981 SC 561. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection."
17. Now another question arises for consideration is that what would he the contents and import of exercise of options given to the candidates in the context of rule and selection in question. Before adverting this question it is necessary to mention here that a selection may embrace in it several process, such as written examination, other sort of tests and interview etc. all depending upon the rules of recruitment. The manner and extent of exercise of option by the selected candidates in particular selection almost depends upon the scheme underlying in the procedure of selection and recruitment which may be provided either under statutory rules of recruitment or under the Government orders issued in this regard. In such a scheme some times task to examine and to give effect the options exercised by candidates is given to the selection Board/commission or committee and some time it is given to the other authorities dependents upon the particular rule governing the subject matter but the main purpose of exercise of option is that it casts an obligation or duty upon the selection body to honour the wishes of the selected candidates as indicated in order of preferences given by such candidates having regard to his comparative merit position. Naturally such exercise imposes certain degree of restrictions upon functioning of the selection body, which in fact regulates the allocation of posts to the selected candidates. Larger the number of options given to the candidates makes difficult the task and lesser the number comparatively makes easier the task of selection committee. It also creates certain degree of check and balances upon the activities of selecting bodies and ensures fairness in the manner of selection to a larger extent. The provisions made in this regard under the rules of recruitments are based on sound public policy and have become common feature to almost every rules of recruitment inasmuch as it has become need of time because of varieties of reasons. Having regard to the large number of candidates in respect of large number of various categories of posts, in order to save time and expenses and cut-short in various other paraphernalia to be employed in individual process of selection it has become common practice to hold selections by clubbing the vacancies together, in a common and single process of selection. Such different categories of posts may be of different cadre, class or grade. If they are in the same cadre, they may carry different pay scales, higher and lower. Even in the same pay scale certain posts may be considered superior and some time place of posting also plays very vital role in the mind of candidates and authorities as well.
18. In this connection it is necessary to point out that under the rule in question several categories of posts of group 'C' services have been included for holding selection by the selection committees constituted under Rule-5 of the rules. These posts may be in different grade carrying higher and lower pay scales. Every candidates are entitled to apply against the vacancies in respect of all categories of posts, for which they are eligible and qualified in a single and common process of selection. At the time of application the applicant has to mention only his first preference among all such posts in application form. After result of examination is declared the successful applicants shall have to give their preferences for all other posts, for which examination was conducted. The format of application form is on record as Annexure-1 to the writ petition. It does not require the candidates to make specific mention about all the vacancies in respect of all the categories of post individually but besides other particulars only educational and technical qualifications are required to be disclosed by the candidate in the application form. It is also mentioned in the application form that the applicant has to give only his first preference among all such post. After declaration of result successful candidates are required to give their preferences for all other posts on a prescribed form to the Chairman, Selection Committee within seven days. If they fail to inform selection committee with regard to their other preferences within seven days in that event of the matter their preferences shall be treated equally in respect of all other posts. The format of option is also on record as Annexure-4 of the writ petition, which discloses the first preference given by the petitioner in the relevant column was in respect of vacancies of junior clerks available in the office of marketing department, which was given by him at the time of submission of application form. Besides that the petitioner was required to give his options in preferential order to the extent of six numbers in which petitioner has indicated the names of the six offices where the vacancies of only junior clerks-cum-typist were available but from the perusal of advertisement of vacancies contained in Annexure-1 of the writ petition it is clear that in advertisement in question the vacancies in respect of posts of Stenographers and junior clerks both were included in it. The vacancies of the junior clerks-cum-typist were existing almost in all 12 offices, whereas, the petitioner was permitted to give his options in preferences only in respect of 1+6 = 7 offices. It means that the candidates were not permitted to give their preferences to the extent of number of offices in which the post of junior clerks/typist were existing. As it is indicated in application form that if a successful candidate will fail to inform his preferences in respect of all other posts to the selection committee on prescribed form within seven days from the date of declaration of result of examination it shall be deemed that his preferences are same and equal in respect of all other posts. These intrinsic evidence leads to a conclusion that non supply of information in respect of options in order of preference is neither fatal to the selection and appointment of candidate nor it empowers the selection committee to reject the candidature or exclude it from consideration for selection and appointment in respect of the posts for which the candidate has applied for. Similarly if the candidate has given lesser number of preference either on his own wishes or due to the reason that same was not provided under the scheme of selection process, in that event of the matter also his candidature can not be excluded from consideration against the posts for which he could not give his preference rather his preference may be treated as same for all such posts. In this connection it is also necessary to point out that exercise of options in order of preference are meant to offer of appointment to the selected candidates according to the choice and wishes indicated in order of preferences having regard to his comparative merit position in selection. It has no relevance and bearing with the right of a candidate to participate in the process of selection. If according to his comparative merit position in select list he could not be offered such post as indicated in the option in order of preferences, it is open for the selection committee to offer any other post not indicated by the candidate in his option form. But the selection committee has no jurisdiction to reject the candidature of any selected candidate in respect of other post for which he did not indicate any preference in his option form.
19. At this juncture it is also necessary to point out that although the respondents have taken factually incorrect, misconceived stand in the counter affidavit, that the petitioner has applied only for the post of stenographer and he has given option in preferences in respect of vacancies where the post of stenographers were existing. Since he could not succeed in the test of stenography, therefore, his candidature was not liable to be considered for the post of junior clerk-cum-typist but the aforesaid facts are not acceptable for another reason also that the petitioner has come forward with the case that on his failure in the test of stenography he has been permitted to participate in the test of typewriting held for the post of junior clerk-cum-typist on 22.12.2001 and attained the minimum speed of 31.4 w.p.m.. There is no specific denial that he ranks in the merit list at serial No. 379 in the written examination and he attained the minimum prescribed standard/norm of 25 w.p.m. in typewriting test, therefore, his candidature was not liable to be rejected for the aforesaid posts on the ground that he has not given any option in preferences on a prescribed format for the aforesaid posts. Although from the perusal of record, Annexure-4 of the writ petition, it is clear that he has given his option for the post of junior clerk-cum-typist in respect of the offices where the aforesaid posts were existing and respondents have neither challenged the genuineness of the Annexure-4 of the writ petition nor has come forward with any case that it is forged document, in absence of the same the selection committee was required to consider his candidature while preparing select list in the light of his performance in the written examination as well as success in the typewriting test on the basis of preferences indicated therein by the petitioner but the selection committee has miserably failed to do so. Therefore, the action of Selection committee is neither justified in any manner as indicated above nor the stands taken by the respondents in the counter affidavit is acceptable.
20. Now coming to the facts of the case it is clear that the petitioner had made application to participate in the process of selection against all vacancies advertised by Chairman, Selection Committee in district Moradabad against group 'C' posts. From the perusal of the same it indicates that all the vacancies of twelve offices have been clubbed together in which the posts of Junior clerk, Stenographer and Junior Assistant were included. The educational qualification for which has been provided as Intermediate. For the post of Junior clerk, other essential qualification has been given as Hindi typewriting at speed of 25 w.p.m. and against the post of Stenographer other essential qualification has been given as Hindi Shorthand at the speed of 80 w.p.m. and typewriting at the speed of 25 w.p.m.. On becoming unsuccessful in the stenography test, the petitioner had applied for typewriting test and participated in such typewriting test and became successful having been attained the speed of 31.4 w.p.m. as against the minimum prescribed standard of 25 w.p.m. in typewriting. It is not in dispute that the petitioner ranks high at serial No. 379 in the merit list prepared after result of written examination. The petitioner has discloses his preferences submitted to the Chairman, Selection Committee on a format given to him, wherein he has mentioned his first choice/preference for the post of junior clerk/typist in the office of Regional Food Controller. From the perusal of same it is clear that the petitioner has given his other six preferences in respect of the aforesaid vacancies/posts lying in (i) Supply Office (ii) Office of Public Works Department (iii) office of Employment Exchange (iv) office of Regional Food Controller (v) office of Upbhogta Sanrakshan Nideshalaya and (vi) Nagrik Suraksha Vibhag. From the perusal of record it is clear that in all the aforesaid six offices the vacancies of junior clerks-cum-typist were existing, therefore, the stand taken by respondents in respect of preferences of petitioner is factually incorrect and contrary to the record and can not be acceptable on the foregoing reasons. Thus, it is to be held that the selection committee has committed gross illegality while holding the selection in question; as such the same is not sustainable and liable to be struck down by this Court. It is further to be held that in case the selection committee would have adopted correct procedure according to rules of recruitment and law, having regard to the comparative high rank merit position of the petitioner in the written examination as well as success in typewriting test held on 22.12.2001, he would have been selected for the post of junior clerk-cum-typist included in the advertisement in question for which the selection has been done by the selection committee, but before issuing any direction in the matter an another question arises for consideration is that what relief can be granted in the instant writ petition. As to whether the whole process of selection in respect of advertisement in question should be quashed and selection committee should be directed to rearrange merit list for finalizing the selection according to the rules as discussed in forgoing paragraphs by re-opening the issue and benefit may be given to all the candidates irrespective of facts they have approached this Court or not or same may be limited only to the petitioner alone.
21) In this connection a reference can be made to a decision rendered by Apex Court in case of Sri Ashok alias Somanna Gowda and Anr. v. State of Karnataka and Ors. reported in AIR 1992 S.C. 80, wherein the appellants of the aforesaid case who were two in number, feeling aggrieved against the order dated 24.5.90 passed by Karnataka Administrative Tribunal on their petitions before the Tribunal, have approached the Apex Court. Before the Tribunal they have challenged the validity of relevant rules of recruitment on the ground that percentage of marks for Viva-Voce as 33.3 were excessive and in the violation of decision of Apex Court rendered in Ashok Kumar Yadav v. State of Haryana 1987 S.C. 454 and Mohinder Sain Garg v. State of Punjab (1990) 4 J.T. (S.C.) 704, which was in respect of recruitment on the post of Assistant Engineers (Civil and Mechanical) for the Public Works Department in State of Karnataka. The Apex Court found that rules in question are clearly in violation of dictum laid down by the Apex Court in aforesaid cases. Accordingly allowed the appeal and directed the respondents of the aforesaid case to give appointment to the appellants only on the post in question in case they are found suitable in other respect according to the rules. It was held that in view of fact that the selections/appointments under the impugned rules were made as back as in the year 1987 and only present appellants had approached the Tribunal for relief, the case of other candidates cannot be considered, as they never approached for redress within reasonable time. Thus the Apex Court had granted relief only to the appellants who were vigilant in making grievance and approached the tribunal in time.
22. The facts of the instant case are more or less identical to the facts of Ashok Alias Somanna Gowda's case (Supra). In this case petitioner alone appears to have challenged the aforesaid process of selection held by selection committee in District Moradabad in the year 2001. No other candidates feeling aggrieved against the aforesaid selection and appointment have approached this Court. A period of more than three years have been passed in respect of appointments made in the year 2001 against the vacancies in pursuance of advertisement in question. Therefore, it would not be appropriate to re-open the whole issue and grant relief to all those candidates who are not vigilant about their right. Thus the relief is to be limited in respect of the petitioner alone without disturbing the appointments made in the process of selection in the month of December, 2001 the respondents are directed to re-open the selection made in the month of April and May, 2003 and subsequent thereto in respect of remaining 11 vacancies which were advertised for the purpose of selection on 29.8.2001. While doing so, it would not be a difficult task for the selection committee to assess the comparative merit of petitioner in comparison to aforesaid candidates in respect of vacancies on the post of junior clerk-cum-typist and without disturbing all such candidates appointed. Only one candidate who is lowest in merit in the list of selected panel may be excluded from the select/merit list if all the vacancies advertised have been filled up. If any of the aforesaid advertised vacancy still remains unfilled, it would not be appropriate to exclude and cancel the appointment of any person on account of selection and appointment of petitioner made by the selection committee. Therefore, the selection committee is directed to undertake the aforesaid exercise keeping the view in mind the observation made above. If the petitioner is found otherwise suitable according to law and on a medical and character verification made after completion of process of selection found fit for appointment, the appointing authority is directed to issue letter of appointment in favour of petitioner to the post of junior clerk in any of the offices of district in respect of which vacancies were advertised, according to the choice indicated by him in the order of preferences given by him and his merit position in the selection list. If it is found that the original record of process of selection of typewriting test is not available or not feasible to trace it out within short span of time, the District Magistrate, Moradabad is directed to constitute a selection committee in accordance with rules and petitioner may be called to appear in typewriting test by affording him one month's time from the date of the communication made to him indicating the aforesaid intention and thereafter subsequent steps may be taken in furtherance of process of selection and appointment, according to the observation made above. The District Magistrate, Moradabad is directed to undertake the aforesaid exercise within a further period of two months from the date of production of certified copy of this order before him.
23. Before I part with the judgment it is necessary to point out that since I have taken the similar view as taken by learned Single Judge in Writ Petition No. 19367 of 2003, Gajendra Singh and Anr. v. State of U.P. and Ors. decided on 24.9.2003 alongwith other four cases and the Division Bench of this Court in Special Appeal No. 1090 of 2003, Ramesh Chandra Singh and Ors. v. State of U.P. and Ors. decided on 5.2.2004, on my own reasons, therefore, it is not necessary to deal with the submissions of learned counsel for the petitioner made on the basis of the aforesaid judgments in detail. That apart, so far as, the submissions made by learned counsel for the petitioner in respect of similar appointment of Sri Som Pal Singh is concerned in this regard only this much is to be observed that the competent authorities have already taken decision and found that the appointment of Sri Som Pal Singh was made by mistake according to them and the same has been cancelled vide order dated 12.1.2004 passed by Joint Commissioner (Executive) Trade Tax, Moradabad in pursuance of letter dated 19.12.2003 written by Chairman, Selection Committee, Moradabad to the Joint Commissioner (Executive) Trade Tax, Moradabad contained in Annexures C.A.-1 and C.A.-2 of the counter affidavit. The matter requires detail investigation and inquiry by the Court in view of decision of Apex Court rendered in case of Chandigarh Administration and Anr. v. Jagjit Singh and Anr., AIR 1995 S.C. 705. Therefore, in view of the aforesaid judgment of the Apex Court it is not necessary to go into merits of the submissions in detail as I have already taken the view to allow the writ petition on other issues discussed in preceding paragraphs of this judgment.
24. The Registrar General, High Court, Allahabad is also directed to communicate this order to the Secretary, Karmik Anubhag, Government of U.P., Lucknow and Legal Remebrancer/Principal Secretary, Law Department, Government of U.P., Lucknow for their perusal and necessary action within a period of Fifteen days.
25. In view of the discussions and observations made in the foregoing paragraphs, the writ petition stands allowed.
There shall be no order as to costs.