This Bunch of writ petitions involves common questions of fact and law and have, therefore, been heard together. Writ Petition No. 6578 (S/S) of 2013 has been treated as leading case in the Bunch. Writ Petition No. 6651 (S/S) of 2013 is not related to the subject involved in the present Bunch of writ petitions and, therefore, Office is directed to delink Writ Petition No. 6651 (SS) of 2013.
Writ Petition No. 6578 (S/S) of 2013 and other connected writ petitions, except Writ Petition No. 868 (S/S) of 2013, have been filed challenging the process of selection to the post of X-Ray Technicians initiated, inter alia, by invoking the Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules, 2002, as amended vide Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of Uttar Pradesh Public Service Commission) (First Amendment) Rules, 2003, hereinafter referred to as "2002 Group ''C' Rules, as amended vide 2003 Amending Rules". Further prayer has been made in the writ petitions that batch-wise selection be made for filing up the vacancies of X-Ray Technicians by adopting the procedure that the candidates who pass out X-Ray Technician Diploma Course prior in time from U.P. State Medical Faculty, Lucknow be appointed first before appointing any subsequent batch pass out Out of this Bunch of writ petitions, Writ Petition No. 479 (S/S) of 2013 was filed by 24 petitioners praying for the following substantive relief:-
"(a) To issue a writ, order or direction in the nature of certiorari quashing condition contained in the Advertisements dated 10.09.2010 and 27.02.2011, the true copies of which are contained as Annexure No. 1 and 2 respectively to the writ petition, as it relates to the holding of selection on the post of X-Ray Technician by application of Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules, 2002 as amended vide Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of Uttar Pradesh Public Service Commission) (First Amendment) Rules, 2003.
(b) To issue a writ, order or direction in the nature of Mandamus directing the Opposite Parties to make selection and appointment against the available vacancies of X-Ray Technicians strictly in accordance with Uttar Pradesh X-Ray Technicians Service Rules, 1986, particularly Rule 14 of the said Rules, by appointing the X-Ray Technicians obtaining the X-Ray Technician Diploma prior in time first before appointing the Diploma Holders of later years."
Writ Petition No. 479 (S/S) of 2013 was followed by Writ Petition Nos. 658 (S/S) of 2013, 2078 (S/S) of 2013, 2732 (S/S) of 2013 and 3774 (S/S) of 2013. During pendency of these writ petitions, a short counter affidavit was filed on behalf of the opposite parties in Writ Petition No. 479 (S/S) of 2013 stating that the advertisements dated 10.09.2010 and 27.02.2011, impugned in the said writ petition, were withdrawn vide Government Order dated 16.07.2012 by which the maximum age limit for a candidate was increased to 40 years from 35 years. This Government Order dated 16.07.2012 has been annexed as Annexure SCA-1 along with the short counter affidavit.
Before the Writ Petition No. 479 (S/S) of 2013 and Writ Petition Nos. 658 (S/S) of 2013, 2078 (S/S) of 2013, 2732 (S/S) of 2013 and 3774 (S/S) of 2013 could be heard and decided another advertisement dated 15.10.2013 was issued notifying 287 posts of X-Ray Technicians for selection and recruitment. This advertisement dated 15.10.2013 has been challenged in Writ Petition No. 6578 (S/S) of 2013; Hari Om Singh and another Vs. State of U.P. and others, Writ Petition No. 6645 (S/S) of 2013; Ajay Kanaujiya Vs. State of U.P. and others with identical prayers. In order to avoid unnecessary repetition, the prayer clause of Writ Petition No. 6578 (S/S) of 2013, which has been treated as leading writ petition in the bunch of writ petitions, is being quoted below:-
"(a). To issue a writ, order or direction in the nature of certiorari quashing condition contained in the impugned Advertisement dated 15.10.2013, the true copy of which is contained as Annexure No. 1 to the writ petition, as it relates to the holding of selection on the post of X-Ray Technician by application of Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules, 2002 as amended vide Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of Uttar Pradesh Public Service Commission) (First Amendment) Rules, 2003.
(b). To issue a writ, order or direction in the nature of Mandamus directing the Opposite Parties to make selection and appointment against the available vacancies of X-Ray Technicians strictly in accordance with Uttar Pradesh X-Ray Technicians Service Rules, 1986, particularly Rule 14 of the said Rules, by selecting and appointing the X-Ray Technicians obtaining the X-Ray Technician Diploma prior in time first before appointing the Diploma Holders of later years as was the prevalent practice and also at the time of the petitioner undertaking the said Diploma Course."
While Writ Petition No. 6578 (S/S) of 2013 and other writ petitions were being heard, Writ Petition No. 868 (S/S) of 2014; Sahul Patel and another Vs. State of U.P. and others has been filed claiming that the opposite parties of this writ petition be directed to declare the result of ongoing selection process initiated pursuant to the advertisement dated 15.10.2013. This writ petition has been directed to be taken up along with the Bunch of Writ Petitions. The fate of this writ petition is dependent on the outcome of other writ petitions of the Bunch and probably, therefore, no one has appeared to argue this writ petition during the course of hearing, though the writ petition was listed on several dates for hearing along with the Bunch of writ petitions.
In the leading Writ Petition No. 6578 (S/S) of 2013 an application under Chapter XXII, Rule 5-A of the Allahabad High Court Rules, 1952 for intervention has been moved by Shiv Dutta Dubey and 7 others. This application has been opposed by the petitioners of the said writ petition by filing objections to the same to which objections, further reply has been filed on behalf of the applicants seeking intervention. Opposing the application for intervention, Dr. L.P. Misra appearing for the petitioners of Writ Petition No. 6578 (S/S) of 2013 has vehemently opposed the intervention application by making a reference to the Rules of the Court and by saying that under Chapter XXII, Rule 5-A of the Allahabad High Court Rules, 1952 only such persons can be permitted to be heard who may be the proper parties and in view of the fact that the advertisement itself is under challenge and the selection was not complete, the applicants seeking intervention have no locus standi to be heard. However, the Court without entering into the merits and demerits of the Intervention Application has permitted Mr. S.K. Kalia, learned Senior Advocate assisted by Mr. Vidhu Bhushan Kalia, Advocate to assist the Court.
In challenge to the impugned advertisement dated 15.10.2013, as the previous advertisements dated 10.09.2010 and 27.02.2011 have been withdrawn, a number of points requiring determination and adjudication by the Court, have been advanced on behalf of the petitioners challenging the process of selection of X-Ray Technicians, inter alia, by taking recourse to 2002 Group ''C' Rules as amended vide 2003 Amending Rules.
Dr. L.P. Misra, learned counsel leading the arguments on behalf of petitioners submitted that 2002 Group ''C' Rules, as amended vide 2003 Amending Rules cannot be pressed into service for recruitment of X-Ray Technician as they make it abundantly clear that the said Rules governing the process of recruitment up to the stage of preparation of select list are meant for Group ''C' Posts of district level cadre only where either the District Magistrate may be the appointing authority or where the appointing authority may be other than the officer within the district in a Government department or the appointing authority may be an officer having jurisdiction to exercise in more than one district or the appointing authority be the Head of the Department.
Submission is that in selection for the post of X-Ray Technician for which a separate set of Rules known as U.P. X-Ray Technician Service Rules, 1986 (for short '1986 Rules') are to be applied as 1986 Rules hold the field.
The next submission made by learned counsel for petitioners challenging the advertisement dated 15.10.2013 and the selection process is that a bare perusal of the definition of the ''appointing authority' as given in 2002 Group ''C' Rules, the composition of the Selection Committee as provided in these Rules and the method of evaluation as provided under Rule 5, substituted vide 2003 Amending Rules, makes it more than evident on the face of record that the evaluation process prescribed under these Rules is meant for Group ''C' posts for which academic qualification and technical qualification both are prescribed as eligibility criterion. It is accordingly submitted that Rule 8 of 1986 Rules prescribes only a technical qualification i.e. diploma in X-Ray Technician from U.P. State Medical Faculty or such qualification as recognized by the U.P. State Medical Faculty and academic qualification and technical qualification both are not prescribed, therefore, Rule 5 of 2002 Group ''C' Rules, as amended vide 2003 Amending Rules cannot at all be applied for selection of X-Ray Technician.
Further submission on behalf of petitioners is that the advertisement dated 15.10.2013 clearly reveals the allocation of marks, i.e. the process of evaluation of the candidature as prescribed under sub-rule (2) of Rule 5 of 2002 Group 'C' Rules, as amended vide 2003 Amending Rules, has been adopted in verbatim which is not legally permissible at all to a selection requiring only technical qualification as the eligibility criterion. It is submitted that the prescription of only technical qualification for appointment as X-Ray Technician has got an object and purpose underlying such prescription. Elaborating the submission, it is submitted that there may be persons whose ability, caliber, mental faculty and aptitude may be more efficient in technical orientation than in traditional education, as such, under 1986 Rules the only technical qualification as the eligibility criterion has been prescribed which is purposeful.
It is also submitted by learned counsel for petitioners that 1986 Rules are special Rules whereas 2002 Group ''C' Rules, as amended vide 2003 Amending Rules are only general Rules, as such, they do not cover the field occupied by 1986 Rules.
Submission is that general Rules cannot prevail over the special Rules. As per the two legal maxims generalia specialibus non derogant and generalia specialibus derogant, 1986 Rules are to prevail and the selection is to be made under 1986 Rules.
Learned counsel for petitioners emphasised that Rules 14 and 15 of 1986 Rules have been followed all along in a particular manner except on one instance in the year 2007 when the practice of selection for appointment as X-Ray Technicians under Rules 14 and 15 of 1986 Rules have been applied in a manner that the Directorate of Medical and Health U.P., Lucknow used to indicate the availability of vacancies of X-Ray Technicians under Government including the vacancies likely to occur in a year or two to the U.P. State Medical Faculty and then U.P. State Medical Faculty used to make selection for admission for imparting X-Ray Technician Diploma Course in consonance with such indicated number of posts of X-Ray Technician and after such selection the candidates used to be earmarked to various Government Hospitals, Medical Colleges, Medical Universities etc. for receiving diploma course, the examination of which is conducted by the U.P. State Medical Faculty and all pass out selected persons against such communicated vacancies used to be appointed without any exception except those suffering from any of the disabilities as mentioned in 1986 Rules.
It is submitted that before 1986 Rules were enforced, all passed out X-Ray Technician Diploma Holders from U.P. State Medical Faculty used to be appointed shortly after obtaining such diploma and this practice continued for a very long time even after framing of 1986 Rules. Accordingly the submission of petitioners is that there is no reason as to why the limited number of the petitioners against 287 advertised posts of X-Ray Technician under the impugned advertisement could not be first appointed before making any selection and appointment from outside in adherence to such practice.
In this regard a great emphasis has been laid by learned counsel for petitioners that 1986 Rules are in pari materia same as U.P. Pharmacists Service Rules, 1980, except Rule 15.
The arguments placed before the Court by Dr. L.P. Misra have been adopted by other learned counsels appearing for petitioners in connected writ petitions.
On the other hand, Mr. S.K. Kalia, learned senior Advocate assisted by Mr. Vidhu Bhushan Kalia while making arguments on behalf of the applicants seeking their intervention submitted that 2002 Group ''C' Rules, as amended vide 2003 Amending Rules superseded all the existing service Rules in existence previous to framing of these Rules in regard to the recruitment of Group ''C' employees of the State Government under rule making power of the Governor under Article 309 of the Constitution of India and these Rules have also been given overriding effect to any other provision for the time being in force to the extent of inconsistency as provided under Rule 2 of 2002 Group ''C' Rules.
Further submission of Mr. S.K. Kalia, learned senior Advocate is that the issues raised on behalf of petitioners have been conclusively decided vide judgment and order dated 23.05.2008 passed by the Single Judge in Writ Petition No. 7699 (S/S) of 2007; Sunil Kumar Rai and others Vs. State of U.P. and others as well as other connected writ petitions wherein the applicability of 2002 Group ''C' Rules, as amended vide 2003 Amending Rules in the selection held for the post of Pharmacist has been considered. It has been argued that the findings recorded by the Single Judge in the aforesaid judgment so far as the applicability of 2002 Group 'C' Rules, as amended vide 2003 Amending Rules has not been interfered with by the Division Bench in the judgment dated 04.05.2009 passed in Special Appeal No. 377 of 2008; Prem Chandra and others Vs. State of U.P. and others filed against the said judgment and by the Apex Court while deciding the Special Leave Petition No. 20558 (Civil) of 2009; State of U.P. and Another Vs. Santosh Kumar Mishra and Another filed against the judgment dated 04.05.2009 (supra). It is submitted that unlike the Pharmacists there has been no practice of preferential batch-wise appointment of X-Ray Technician in the State service.
Mr. S.K. Kalia, learned senior Advocate submitted that petitioners had obtained qualification of diploma in X-Ray Technician in the year 2004 or prior to 2004. In the selection held for the post of X-Ray Technician in the year 2007 along with the selection held for the post of Pharmacist, practice of batch-wise selection was not adopted, as such, petitioners could not get the benefit of alleged past practice, however, at that time they had not challenged the procedure so adopted for the selection held for the post of X-Ray Technician. They cannot be allowed to raise such a challenge now in the subsequent selection as they cannot be said to be prejudiced. It is submitted that the case of Pharmacist was different from X-Ray Technician as in that case the State had admitted the past practice adopted in the selection of Pharmacist giving the benefit of batch-wise selection. In the present case, the State Government has categorically denied that there was any such past practice of batch-wise selection of X-Ray Technician.
It is also argued that the U.P. Pharmacist Service Rules, 1980 are different from 1986 Rules as under Rule 15 (2) of U.P. Pharmacist Service Rules, 1980 criteria for selection is solely on the basis of marks obtained in technical qualification i.e. diploma in pharmacy whereas under 1986 Rules, particularly Rule 15 (3) provides that selection committee shall prepare a list of candidates in order of merit as disclosed by marks obtained by them in the interview, on the basis of their general suitability for the post, as such, there is basic difference between the aforesaid two rules as in the case of X-Ray Technician the list is to be prepared on the basis of merit as per marks obtained in the interview.
Mr. S.K. Kalia, learned senior Advocate submits that the selection committee can always adopt the procedure for awarding marks for academic qualification in addition to the eligibility criterion of technical qualification, it is done to evaluate the candidates. Final select list is to be made on the basis of overall evaluation of candidates on the basis of their educational qualification, technical qualification and interview. No illegality can be attributed in case such a criteria is adopted in the selection.
Submission is that under 2002 Group 'C' Rules, as amended vide 2003 Amending Rules, the procedure is to make a selection considering the educational qualification and the technical qualification and it does not in any manner conflict 1986 Rules.
Mr. Amitabh Kumar Rai, learned Standing Counsel agreeing with the arguments placed by Mr. S.K. Kalia, learned senior Advocate pointed out that X-Ray Technician is a State cadre post and the seniority list of X-Ray Technician is prepared at the state level and the selection grade of the post is given on the basis of seniority maintained at the state level. The post of X-Ray Technician is transferrable from one district to another. After coming into force of 1986 Rules, selections were made in the year 1989 in which 40 candidates were selected and the selections were held at the Directorate level on the basis of marks obtained in the interview. In the year 1998 also the selections were made on the basis of marks obtained in the interview as per 1986 Rules. It is emphasized that backlog vacancies of the said post were filled up in the year 2003 after coming into force of 2002 Group 'C' Rules and the selections were made by applying 2002 Group 'C' Rules as well as service cadre rules i.e. 1986 Rules. In the year 2007, selections were made as per 2002 Group 'C' Rules, as amended vide 2003 Amending Rules read with 1986 Rules. It has been categorically mentioned by Mr. Amitabh Kumar Rai, learned Standing Counsel appearing for State and other Government authorities such as Director General, Medical & Health Services, U.P., Lucknow that the selections were never made batch-wise and there was no such practice of appointment batch-wise. Earlier, the qualified/eligible candidates for appointment on the post of X-Ray Technician were much less in comparison to the number of posts available, hence all the eligible candidates used to be selected. However, with the passage of time, number of eligible candidates swelled and hence there is intense competition in the selection.
It is also submitted that the impugned advertisement dated 15.10.2013 is with respect to the vacancies on the post of X-Ray Technician arising on or after 2008 as the vacancies prior to 2008 are already filled up through selection held in the year 2007. It is submitted by learned Standing Counsel that all the contentions of petitioners raised in the present writ petitions have been dealt with by the Court vide judgment and order dated 23.5.2008 (supra) wherein the advertisement dated 12.11.2007 (composite advertisement for the post of Pharmacist and X-Ray Technician) for appointment on the post of Pharmacist was under challenge on the same grounds which have been raised in the present writ petitions. The Court vide aforesaid judgment had rejected the contentions regarding the applicability of 2002 Group 'C' Rules, as amended vide 2003 Amending Rules, constitution of selection committee and competence of Director General, Medical & Health Services, U.P., Lucknow to determine the vacancies and advertised the same as appointing/selecting authority. The Court has negated all such contentions. The findings on the aforesaid points recorded by the Single Judge has not been interfered with in the judgment dated 04.05.2009 (supra) and by the Apex Court in Special Leave Petition No. 20558 (Civil) of 2009 (supra). The Apex Court has confirmed the judgment dated 04.05.2009 (supra) vide judgment and order dated 03.08.2010 wherein limited interference was granted by the Division Bench with respect to batch-wise selection on the post of Pharmacist on the basis of past practice in the Department. The Apex Court in para-7 of the judgment has referred to the findings arrived at by the Single Judge in Writ Petition No. 7699 (SS) of 2007 (supra) with respect to competence to issue advertisement and the composition of selection committee but has not disturbed the findings of the Single Judge on the question of law decided by him on such issues.
It is submitted that the present selection on the post of X-Ray Technician is being held in the same manner as per the selections held in the year 2007. The composition of selection committee is the same and the advertisement has been issued by the Director General, Medical & Health Services, U.P., Lucknow in the capacity of appointing/selecting authority. Thus, the controversy raised in the present writ petitions have been substantially decided vide judgment and order dated 23.5.2008 (supra) with respect to the applicability of 2002 Group 'C' Rules, as amended vide 2003 Amending Rules, composition of selection committee and the competence of Director General, Medical & Health Services, U.P., Lucknow which has not been disturbed by the Higher Courts.
In rejoinder, Dr. L.P. Misra, learned counsel for petitioners submitted that judgment dated 23.5.2008 (supra) of the Single Judge would not be applicable once the Division Bench vide judgment dated 04.05.2009 (supra) has substituted the findings and directed the opposite parties that the candidates shall be considered for appointment on the post of Pharmacist taking their batch into consideration as was being done earlier.
It is submitted that the question of past practice of batch-wise selection was not properly considered in the judgment of the Single Judge, and therefore, the Division Bench had granted indulgence in this regard. The Apex Court has confirmed the judgment of the Division Bench. It is also submitted that the Single Judge in its judgment dated 23.5.2008 (supra) has not considered the material fact that it was impossible to constitute a selection committee for the post of X-Ray Technician by directly applying 2002 Group 'C' Rules, as amended vide 2003 Amending Rules. The plea that 2002 Group 'C' Rules are meant for district level Group 'C' post only was also not considered in the said judgment.
In order to appreciate the respective submissions made at the Bar by learned counsel for parties, it is necessary to first consider the relevant Rules.
As per the impugned advertisement, the selection for the post of X-Ray Technician is to be held as per relevant service cadre rules and 2002 Group 'C' Rules, as amended in 2003 and 2007.
Service conditions of X-Ray Technicians are governed by 1986 Rules which on reproduction read as under:
"THE UTTAR PRADESH X-RAY TECHNICIANS SERVICE RULES, 1986 PART I-General
1. Short title and commencement.-(1) These Rules may be called the Uttar Pradesh X-Ray Technicians Service Rules, 1986.
(2) They shall come into force at once.
2. Status.-The Uttar Pradesh X-Ray Technician Service Comprises Group 'C' posts.
3. Definition.-In these Rules, unless there is any thing repugnant in the subject or context:
(i) 'Appointing Authority' means Joint Director Employees State Insurance, Principal of the Medical Colleges, Chief Medical Officers, Senior Medical Superintendents, Superintendents-in-chief of Hospitals and Head of the Institutions in respect of the posts in their offices;
(ii) 'Citizen of India' means as person who is or is deemed to be citizen of India under Part II of the Constitution;
(iii) 'Constitution' means the Constitution of India;
(iv) 'Director' means the Director, Medical, Health and Family Welfare, Uttar Pradesh;
(v) 'Government' means the State Government of Uttar Pradesh;
(vi) 'Governor' means the Governor of Uttar Pradesh;
(vii) 'Member of the service' means a person substantively appointed under the provision of these rules of the rules or orders in force prior to the commencement of these rules, to a post in the cadre of the Service;
(viii) 'Service' means the Uttar Pradesh X-Ray Technicians Service;
(ix) 'Substantive appointing' means an appointment, not being an ad-hoc appointment, on the post in the cadre of the service, made after selection in accordance with the rules and, if there are no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government;
(x) 'Year of recruitment' means the period of twelve months commencing from the first day of July of a calender year.
PART II-Cadre
4. Cadre of Service.-(1) The strength of the service and of each category of post therein shall be as may be determined by the Governor from time to time.
(2) The strength of the service and of each category of posts therein shall, until orders verifying the same are passed under sub-rule (1), be as follows-
Name of posts Number of posts Total Permanent Temporary X-Ray Technician 270 190 80 Provided that-
(i) the appointing authority may leave unfilled or the Governor may hold an abeyance any vacant post, without thereby entitling any person to compensation, or
(ii) the Governor may create such additional permanent or temporary posts as he may consider proper.
PART III-Recruitment
5. Source of recruitment.-Recruitment to the posts in the service shall be made by direct recruitment.
6. Reservation.-Reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories shall be in accordance with the orders of the Government in force at the time of the recruitment.
PART IV-Qualification
7. Nationality.-A candidate for recruitment to the post in the service must be-
(a) a citizen of India; or
(b) a Tibetan refugee who came over to India before the 1st January, 1962 with the intention to Permanently settling in India; or
(c) a person of Indian origin who has migrated from Pakistan, Burma, Sri Lanka and any of the East African countries of Kenya, Uganda and the United Republic of Tanzania (formerly Tanganyika and Zenjibar) with the intention of permanently settling in India ;
Provided that a candidate belonging to category (b) or (c) above must be a person in whose favour a certificate of eligibility has been issued by the State Government ;
Provided further that a candidate belonging to category (b) will also be required to obtain a certificate of eligibility granted by the Deputy Inspector general of Police, Intelligence Branch, Uttar Pradesh ;
Provided also that if a candidate belongs to category (c) above, no certificate of eligibility will be issued for a period of more than one year and the retention of such a candidate in-service beyond the period of one year shall be subject of his acquiring Indian citizenship.
Note.-A candidate in whose case a certificate of eligibility is necessary but the same has neither been issued nor refused, may be admitted to an examination or interview and he may also be provisionally appointed subject of the necessary certificate being obtained by im or issued in his favour.
8. Academic qualification.-A candidate for recruitment to the post in the service must possess a diploma in X-Ray from the U.P. State Medical Faculty or a qualification recognized by the said faculty as equivalent thereto.
9. Preferential qualification.-A candidate who has-
(i) served in the Territorial Army for a minimum period of two years or
(ii) obtained a 'B' Certificate of National Cadet Corps. shall other things being equal, be given preference in the matter of direct recruitment.
10. Age.-A candidate for recruitment must have attained the age of 18 years and must not have attained the age more than 30 years on July 1, of the year of recruitment. Provided that the upper age limit in the case of candidates belonging to the Scheduled Castes, Scheduled Tribes and such other categories as may be notified by the Government from time to time shall be greater by such number of years as may be specified.
11. Character.-The character of a candidate for recruitment to a post in the service must be such as to render him suitable in all respects for employment in government service. The appointing authority shall satisfy itself on this point.
Note.-Persons dismissed by the Union Government of a State Government or by a Local Authority or by a Corporation of Body owned or controlled by the Union Government or a State Government shall be ineligible for appointment to a post in the service. Persons convicted of an offence involving moral turpitude shall also be ineligible.
12. Marital status.-A male candidate who has more than one wife living or a female candidate who has married a man already having a wife living shall not be eligible for appointment to the post in the service;
Provided that the Governor may, if satisfied that there exist special grounds for doing so exempt any person from the operation of this rule.
13. Physical fitness.-No candidate shall be appointed to the service unless he be in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties. Before a candidate is finally approved for appointment he shall be required to produce a Medical Certificate of fitness in accordance with Rules framed under Fundamental Rule 10 and contained in Chapter III of the Financial Hand Book Volume II, Part II to IV.
14. Determination of vacancies.-The Director shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to the Scheduled castes, Scheduled Tribes and other categories under Rule 6 and notify the same to the Employment Exchange and shall advertise then in the leading News-papers and in such other manner as he may consider proper.
15. Procedure of recruitment.-(1) For the purpose of recruitment, there shall be constituted a Selection Committee comprising :-
(i) the Additional Director, to be nominated by the Director;
(ii) the Joint Director, dealing with establishment of X-Ray Technician; and
(iii) the Secretary, State Medical Faculty.
(2) The Selection Committee shall having regard to the need for securing due representation of the candidate belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with Rule 6, call for interview such number of eligible candidates as it consider proper.
(3) The Selection Committee shall prepare a list of candidates in order of merit as disclosed by marks obtained by them in the interview. If two or more candidates obtain equal marks, the selection committee shall arrange their names in order of merit on the basis of their general suitability for the post. The number of the names in the list shall be larger (but nor larger by more than 25 percent) than the number of the vacancies. The list shall be forwarded to the Director.
(4) The Director shall forward the requisite number of the names, in order of merit, from the list of the appointing authorities concerned.
PART VI Appointment, Probation, Confirmation and Seniority
16. Appointment.-(1) The appointing authority shall make appointments by taking the names of the candidates in the order in which they stand in the list sent to him under Rule 15.
(2) The appointing authority may make appointments in temporary and officiating vacancies also from the list, prepare under Rule 15. If no candidate borne on such list is available, he may make appointment in such vacancies from persons eligible for appointment under these rules. Such appointment shall not last for a period exceeding one year or beyond the next selection under these rules, whichever be earlier.
17. Probation.-(1) A person on appointment to a post in or against a permanent vacancy shall be placed on probation for a period of two years.
(2) The appointing authority may for reasons to be recorded, extend the period of probation in individual cases specifying the date up to which the extension is granted ;
Provided that, save in exceptional circumstances, the period of probation shall not be extended beyond one year and, in no circumstances, beyond two year.
(3) If it appears to the appointing authority at any time during or at the end of the period of probation or extended period of probation that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction, he may be reverted to his substantive post, if any and if he does not hold a lien or any post, his services may be dispensed with.
(4) A probationer who is reverted or whose services are dispensed with under sub-rule (3) shall not be entitled to any compensation.
(5) The appointing authority may allow continuous service rendered in an officiating or temporary capacity in a post included in the cadre or any other equivalent or higher post to be taken into account for the purpose of computing the period of probation.
18. Confirmation.- A probationer shall be confirmed in his appointment at the end of the period of probation or the extended period of probation if,
(a) his work and conduct are reported to be satisfactory;
(b) his integrity is certified; and
(c) the appointing authority is satisfied that he is otherwise fit for confirmation.
19. Seniority.-(1) Seniority in any category of post in the service shall be determined from the date of order of substantive appointment and if two or more persons are appointed together from the order in which their names are arranged in the appointment order ;
Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will mean the date of issue of the order.
(2) The inter-se seniority of person, directly appointed to the service shall be the same as determined at the time of selection ;
Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him. The decision of the appointing authority as to the validity of the reasons will be final.
20. Transfers.-(1) The appointing authority may transfer a member of the service under him from one place to another in his charge.
(2) The Director may transfer a member of service anywhere in the State or to and from any Government organisation in India.
21. Scale of pay.-(1) The scale of pay admissible to persons appointed in the services whether in a substantive or officiating capacity or as a temporary measure shall be such as may be determined by the Government from time to time.
(2) The scale of pay at the time of commencement of these rules is Rs.430-12-490-15-520-E.B.-640-E.B.-15-685.
22. Pay during probation.-(1) Notwithstanding any provision in the Fundamental Rules to the contrary, a person on probation, if he is not already in permanent Government service, shall be allowed his first increment in the time scale when he has completed one year of satisfactory, service and second increment after two years' service when he has completed the probationary period and is also confirmed ;
Provided that if the period of probation is extended on account of failure to give satisfaction such extension shall not count for increment unless the appointing authority directs otherwise.
(2) The pay during probation of a person who was already holding a post under the Government shall be regulated by the relevant Fundamental Rules ;
Provided that, if the period of probation is extended on account of failure to give satisfaction, such extension shall not count for increment unless the appointing authority directs otherwise.
(3) The pay during probation of a person already in permanent Government service shall be regulated by the relevant rules applicable generally to Government servants serving in connection with the affairs of the State.
23. Criteria for crossing E.B.-No person shall be allowed to cross-
(i) the first efficiency bar unless his work and conduct are found to be satisfactory and unless his integrity is certified ;
(ii) the second efficiency bar unless he has worked diligently and to the best of his ability his work and conduct are found satisfactory and unless his integrity is certified.
24. Regulation of other matters.-In regard to the matters not specifically covered by these Rules or by special orders persons appointed to the service shall be governed by the rules, regulation and orders applicable generally to Government servants serving in connection with the affairs of the State.
25. Relaxation in the conditions of service.-Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, if may, not withstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.
26. Savings.-Nothing in these Rules shall effect reservation or any other concessions required to be provided for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories of persons in accordance with the orders of the Government issued from time to time. in this regard."
"Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules, 2002 In exercise of powers conferred by the proviso to Article 309 of the Constitution and in supersession of all existing rules and orders on the subject, the Governor is pleased to make the following rules:-
1. Commencement and application.-(1) These rules may be called the Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2002.
(2) They shall come into force at once.
(3) They shall apply to direct recruitment to Group ''C' posts under the rule making power of the Governor under the proviso to Article 309 of the Constitution, except the posts and Departments:
(i)Which are within the purview of the Uttar Pradesh Public Service Commission, The Uttar Pradesh Secondary Education Services Board, The Uttar Pradesh Higher Education Service Commission, High Court and the Subordinate Courts under the control and superintendence of the High Court and the Police Department including Provincial Armed Constabulary and Fire Services;
(ii)Which have the prescribed minimum academic qualification lower than Intermediate Examination Certificate of the Board of High School and Intermediate Education, Uttar Pradesh or an equivalent qualification recognized by the Government;
(iii)Which are excluded from application of these rules by the Government by notified order.
2. Overriding effect.- These rules shall effect notwithstanding anything to the contrary contained in any other rules or orders.
3. Definitions.- In these rules, unless there is anything repugnant in the subject or context,-
(a) "appointing authority" means the authority empowered to make appointments under the relevant service rules;
(b) "Constitution" means the Constitution of India;
(c) "Government" means the State Government of Uttar Pradesh
(d) "Governor" means the Governor of Uttar Pradesh;
(e) "Other Backward Classes" means the Other Backward Classes citizens specified in Schedule I of the Uttar Pradesh Public Services (Reservation for Scheduled Castes Scheduled Tribes and Other Backward Classes) Act, 1994 as amended from time to time.
4. Determination of vacancies.-The appointing authority shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with the relevant service rules. In case the Chairman of the Selection Committee is an officer other than the appointing authority, the appointing authority shall intimate the vacancies to the Chairman of the Selection Committee.
5. Procedure for direct recruitment.-(1) For making direct recruitment, the vacancies shall be notified in the following manner:-
(i)by issuing advertisement in daily newspapers having wide circulation;
(ii)by passing the notice on the notice board of the office or by advertising through Radio/Television and other employment newspapers; and
(iii)by notifying vacancies to the Employment Exchange.
(2) Application for being considered for selection shall be called in the form published in the advertisement issued under sub-rule (1).
(3) The selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner:-
(a) Marks for academic qualification shall be awarded to each candidate in the manner given below:-
Academic Qualification Division secured Marks to be awarded
(i) Intermediate First Division Thirty marks Second Division Twenty marks Third Division Ten marks
(ii) Bachelor's degree First Division Ten marks Second Division Six marks Third Division Four marks
(iii) Postgraduate Degree First Division Ten marks Second Division Six marks Third Division Four marks Provided that the post 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 before the selection and only those candidates shall be considered for selection who came up to the minimum standards prescribed for the post.
(b) Marks to a retrenched employee shall be awarded in the following manner subject to the maximum of fifteen marks:-
(i) For the first completed year of service -
5 marks
(ii) For the next and every completed year of service-
5 marks for each year
(c) Marks to a sportsman shall be awarded in the following manner subject to the maximum to five marks:-
(i) If the candidate is a sportsman of International level -
5 marks
(ii) If the candidate is a sportsman of National level -
4 marks
(iii) If the candidate is a sportsman of State level -
3 marks
(iv) If the candidate is a sportsman of University/College/School level -
2 marks
(d) 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, of qualifying nature. Only those candidates who have attained the minimum speed prescribed for typewriting or shorthand and typewriting, as the case may be, shall be considered for selection. 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), (b) and (c).
(4) (a) After the results of the evaluation under clauses (a), (b), (c) and (d) of sub-rule (3) have been received and tabulated, the Selection Committee shall, having regard to the provisions of reservation referred to in Rule 4, hold an interview. The number of candidates to be called for interview shall be four times the number of the vacancies. In the case of candidates to be selected for a post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, only such candidates who qualify the typewriting test or shorthand and typewriting test as the case may be, under clause (d) of sub-rule (3) shall be called for interview.
(b) The interview shall carry thirty marks. Marks at the interview shall be awarded by the Chairman and all other Members separately in the following manner:-
(i) Subject/General Knowledge - Upto twelve marks
(ii) Personality Assessment - Upto nine marks
(iii) Power of Expression - Upto nine marks Note.- The total marks obtained by a candidate at the interview shall be determined by calculating the average of marks awarded to him by the Chairman and all the Members of the Selection Committee separately.
(c) The Chairman and Member of the Selection Committee shall, in no case, be provided any information with regard to marks obtained by candidates under clauses (a), (b) and (c) of sub-rule (3) at the time of interview.
(5) The marks obtained by each candidate at the interview under sub-rule (4) shall be added to the marks obtained under sub-rule (3), the final select list shall be prepared on the basis of aggregate of marks so arrived. If two or more candidates obtained equal marks in aggregate, the candidate senior in age shall be placed higher in the select list.
(6) The select list referred to in sub-rule (5) shall be forwarded to the appointing authority."
6. Constitution of Selection Committee.- Direct recruitment shall be made by a Selection Committee comprising:
(i) Appointing Authority Chairman
(ii) An officer belonging to the Scheduled Castes or Scheduled Tribes, nominated by the Chairman if the Chairman does not belong to Scheduled Castes or Scheduled Tribes. If the Chairman belongs to the Scheduled Castes or Scheduled Tribes an officer other than belonging to the Scheduled Castes or Scheduled Tribes or Other Backward Classes shall be nominated by the Chairman Member
(iii) An officer belonging to the Other Backward Classes, shall be nominated by the Chairman, if the Chairman does not belong to the Other Backward Classes. If the Chairman belongs to the Other Backward Classes an officer other than Other Backward Classes or Scheduled Castes or Scheduled Tribes shall be nominated by the Chairman Member
(iv) An officer having adequate knowledge in the related field according to the requirements of the post for which recruitment is to be made shall be nominated by the Chairman.
Member
(v) An Officer nominated by the District Magistrate of the concerned district Member Note.- (1) If the appointing authority is the Head of the Department then in such case all the members of the Selection Committee shall be nominated by him. He may on his behalf nominate an officer senior to the members as Chairman of the Selection Committee. Such Head of the Department may constitute more than one Selection Committee for holding interview only.
Note.- (2) If the jurisdiction of an appointing authority extends to more than one district then in such case the recruitment process shall be done in that district in which the Head Quarters of the appointing authority is situated."
7. Fee.- Candidates for selection shall be required to pay to the Selection Committee such fee as may, from time to time, be determined by the Government. No claim for the refund of the fee shall be entertained.
8. Inspection of records by the candidates.- Candidates shall be permitted to inspect the records pertaining to the selection process done and the marks awarded therein by the Selection Committee in accordance with Rule 5 on payment of such fee as may be determined by the Government from time to time. If a candidate so desires, he shall also be provided with Photostat copies of such records on payment of a fee at the rate of Rupees Five per page."
"THE UTTAR PRADESH PROCEDURE FOR DIRECT RECRUITMENT FOR GROUP ''C' POSTS (OUTSIDE THE PURVIEW OF THE UTTAR PRADESH PUBLIC SERVICE COMMISSION) (FIRST AMENDMENT) RULES, 2003 In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2002.
1. Short title, commencement and application.- (1) These rules may be called the Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) (First Amendment) Rules, 2003, (2) They shall come into force at once.
2. Substitution of rule 5.- In the Uttar Pradesh Procedure for Direct Recruitment for Group ''C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2002, for existing rule 5, set out in Column 1 below, the rule as set out in column 2 shall be substituted namely:-
Column 1 Column 2 Existing rule Rule as hereby substituted
5. Procedure for direct recruitment.- (1) For making direct recruitment, the vacancies shall be notified in the following manner:-
(i) by issuing advertisement in daily newspapers having wide circulation;
(ii) by passing the notice on the notice board of the office or by advertising through Radio/Television and other employment newspapers; and
(iii) by notifying vacancies to the Employment Exchange.
(2) Application for being considered for selection shall be called in the form published in the advertisement issued under sub-rule (1).
(3) The selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner:-
(a) Marks for academic qualification shall be awarded to each candidate in the manner given below:-
Academic Qualification Division secured Marks to be awarded
(i) Intermediate First Division Thirty marks Second Division Twenty marks Third Division Ten marks
(ii) Bachelor's degree First Division Ten marks Second Division Six marks Third Division Four marks
(iii) Postgraduate Degree First Division Ten marks Second Division Six marks Third Division Four marks
5. Procedure for direct recruitment.- (1) For making direct recruitment, the vacancies shall be notified in the following manner:-
(i) by issuing advertisement in daily newspapers having wide circulation;
(ii) by passing the notice on the notice board of the office or by advertising through Radio/Television and other employment newspapers; and
(iii) by notifying vacancies to the Employment Exchange.
(2) Application for being considered for selection shall be called in the form published in the advertisement issued under sub-rule (1).
(3) The selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner:-
(a) (1) Such posts for which only academic qualifications are prescribed, the marks shall be awarded to each candidate in the following manner:-
Academic Qualification Percentage of marks secured Marks to be awarded
(i) Intermediate Sixty per cent and above Twenty marks Forty five per cent or above but less than sixty per cent Fifteen marks Thirty per cent or above but less than Forty five per cent Ten marks
(ii) Bachelor's degree Sixty per cent and above Ten marks Forty five per cent or above but less than sixty per cent Eight marks Thirty per cent or above but less than Forty five per cent Six marks (2) Such posts for which academic qualifications and technical qualifications both are prescribed, the marks shall be awarded to each candidate in the following manner:-
Qualification Percentage of marks secured Marks to be awarded
(i) Minimum academic qualification prescribed for the post Sixty per cent and above Ten marks Forty five per cent or above but less than sixty per cent Eight marks Thirty three per cent or above but less than forty five per cent Six marks
(ii) Minimum technical qualification prescribed for the post Sixty per cent and above Twenty marks Forty five per cent or above but less than sixty per cent Fifteen marks Thirty three per cent or above but less than forty five per cent Ten marks Provided that the post 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 before the selection and only those candidates shall be considered for selection who came up to the minimum standards prescribed for the post.
(b) Marks to a retrenched employee shall be awarded in the following manner subject to the maximum of fifteen marks:-
Provided that the post 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 before the selection and only those candidates shall be considered for selection who came up to the minimum standards prescribed for the post.
(b) Marks to a retrenched employee shall be awarded in the following manner subject to the maximum of fifteen marks:-
(i) For the first completed year of service- Five marks (ii) For the next and every completed year of service- Five marks for each year (c) Marks to a sportsman shall be awarded in the following manner subject to the maximum to five marks:- (i) If the candidate is a sportsman of International level - Five marks (ii) If the candidate is a sportsman of National level - Four marks (iii) If the candidate is a sportsman of State level - Three marks (iv) If the candidate is a sportsman of University/College/ School level - Two marks (i) If the candidate is a sportsman of International level - Five marks (ii) If the candidate is a sportsman of National level - Four marks (iii) If the candidate is a sportsman of State level - Three marks (iv) If the candidate is a sportsman of University/College/ School level - Two marks
(d) 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, of qualifying nature. Only those candidates who have attained the minimum speed prescribed for typewriting or shorthand and typewriting, as the case may be, shall be considered for selection. 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), (b) and (c).
(d) 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, of qualifying nature. Only those candidates who have attained the minimum speed prescribed for typewriting or shorthand and typewriting, as the case may be, shall be considered for selection. 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), (b) and (c).
(4) (a) After the results of the evaluation under clauses (a), (b), (c) and (d) of sub-rule (3) have been received and tabulated, the Selection Committee shall, having regard to the provisions of reservation referred to in Rule 4, hold an interview. The number of candidates to be called for interview shall be four times the number of the vacancies. In the case of candidates to be selected for a post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, only such candidates who qualify the typewriting test or shorthand and typewriting test as the case may be, under clause (d) of sub-rule (3) shall be called for interview.
(b) The interview shall carry thirty marks. Marks at the interview shall be awarded by the Chairman and all other Members separately in the following manner:-
(i) Subject/General Knowledge - upto twelve marks
(ii) Personality Assessment - upto nine marks
(iii) Power of Expression - upto nine marks Note.- The total marks obtained by a candidate at the interview shall be determined by calculating the average of marks awarded to him by the Chairman and all the Members of the Selection Committee separately.
(c) The Chairman and Member of the Selection Committee shall, in no case, be provided any information with regard to marks obtained by candidates under clauses (a), (b) and (c) of sub-rule (3) at the time of interview.
(5) The marks obtained by each candidate at the interview under sub-rule (4) shall be added to the marks obtained under sub-rule (3). The final select list shall be prepared on the basis of aggregate of marks so arrived. If two or more candidates obtained equal marks in aggregate, the candidate senior in age shall be placed higher in the select list.
(6) The select list referred to in sub-rule (5) shall be forwarded to the appointing authority.
(4) (a) After the results of the evaluation under clauses (a), (b), (c) and (d) of sub-rule (3) have been received and tabulated, the Selection Committee shall, having regard to the provisions of reservation referred to in Rule 4, hold an interview. The number of candidates to be called for interview shall be four times the number of the vacancies. In the case of candidates to be selected for a post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, only such candidates who qualify the typewriting test or shorthand and typewriting test as the case may be, under clause (d) of sub-rule (3) shall be called for interview.
(b) The interview shall carry thirty marks. Marks at the interview shall be awarded by the Chairman and all other Members separately in the following manner:-
(i) Subject/General Knowledge- upto ten marks
(ii) Personality Assessment - upto twenty marks
(iii) Power of Expression - upto twenty marks
(c) The Chairman and Member of the Selection Committee shall, in no case, be provided any information with regard to marks obtained by candidates under clauses (a), (b) and (c) of sub-rule (3) at the time of interview.
(5) The marks obtained by each candidate at the interview under sub-rule (4) shall be added to the marks obtained under sub-rule (3). The final select list shall be prepared on the basis of aggregate of marks so arrived. If two or more candidates obtained equal marks in aggregate, the candidate senior in age shall be placed higher in the select list.
(6) The select list referred to in sub-rule (5) shall be forwarded to the appointing authority.
"THE UTTAR PRADESH PROCEDURE FOR DIRECT RECRUITMENT FOR GROUP ''C' POSTS (OUTSIDE THE PURVIEW OF THE UTTAR PRADESH PUBLIC SERVICE COMMISSION) (SECOND) AMENDMENT RULES, 2007
1. (1) These rules may be called the Uttar Pradesh Procedure for Direct Recruitment for Group 'C' Posts (Outside the purview of the Uttar Pradesh Public Service Commission) (Second) Amendment Rules, 2007.
(2) They shall come into force at once.
2. In the Uttar Pradesh Procedure for Direct Recruitment for Group 'C' Posts (Outside the Purview of Uttar Pradesh Public Service Commission) Rules, 2002, rule 5 in sub-rule (4), for existing clause (a) set out in Column-1 below, the clause as set out in Column-2 shall be substituted, namely:-
COLUMN-1 Existing Clause COLUMN-2 Clause as hereby substituted
(a) After the results of the evaluation under clause (a), (b), (c) and (d) of sub-rule (3) have been received and tabulated, the Selection Committee shall, having regard to the provisions of reservation referred to in rule-4, hold an interview. The number of candidates to be called for interview against the number of vacancies shall be such as is considered appropriate by the Selection Committee, but in any case it shall not exceed ten candidates for one vacancy. In the case of candidates to be selected for a post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification; only such candidates who qualify the typewriting test or shorthand and typewriting test, as the case may be, under clause (d) of sub-rule (3) shall be called for interview.
(a) After the results of the evaluation under clause (a), (b), (c) and (d) of sub-rule (3) have been received and tabulated, the Selection Committee shall, having regard to the provisions of reservation referred to in rule-4, hold an interview. The number of candidates to be called for interview against the number of vacancies shall be such as is considered appropriate by the Selection Committee. In the case of candidates to be selected for a post to which typewriting or shorthand and typewriting has been prescribed as an essential qualification, only such candidates who qualify the typewriting test or shorthand and typewriting test, as the case may be, under clause (d) of sub-rule (3) shall be called for interview.
Relevant Rules 8, 14 and 15 of U.P. Pharmacists Service Rules, 1980 on reproduction reads as under:
"8. Academic Qualification.- A candidate for direct recruitment to the posts in the service must possess diploma in Pharmacy from a recognised institution and must also be registered with the State Pharmacy Council, Uttar Pradesh.
14. Determination of vacancies.- The Director shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6 and notify the same to the Employment Exchange and shall advertise them in the leading News-papers and in such other manner as may be considered proper by him."
"15. Procedure for recruitment.- (1) For the purpose of recruitment, there shall be constituted a Selection Committee comprising -
(i) Additional Director, to be nominated by the Director:
(ii) Joint Director, dealing with establishment of X-Ray Technicians: and
(iii) Secretary, State Medical Faculty.
(2). The Selection Committee shall prepare a list of candidates in order of merit as disclosed by marks obtained by them in the Diploma examination. If two or more candidates obtain equal marks, the Selection Committee shall arrange their names in order of merit on the basis of their general suitability for the post. The number of the names in the list shall be larger (but not larger by more than 25 percent) than the number of the vacancies. The list so prepared shall hold good for one year only.
(3). The Director shall forward the requisite number of the names, in order of merit, from the list of the appointing authority/appointing authorities."
Following questions are required to be considered and adjudicated for deciding the present controversy:
(i)Whether any selection for appointment to the posts of X-Ray Technicians in the service of the State of Uttar Pradesh could be made by taking recourse to 2002 Group 'C' Rules as amended in 2003 and 2007 read with 1986 Rules.
(ii)Whether 1986 Rules already occupy the field of selection on the post of X-Ray Technician, hence the said selection shall be exclusively held under the 1986 Rules?
(iii)Whether the impugned advertisement dated 15.10.2013 (Annexure-1) is illegal and bad in law?
(iv)Whether Sub-rule (2) of Rule 5 of 2002 Group 'C' Rules, as amended vide 2003 amending Rules can at all be pressed into service and can be applied for selection to the post of X-Ray Technicians under the service of the State of Uttar Pradesh?
(v)Whether 1986 Rules have been followed and applied in regard to selection of X-Ray Technician in the State Service in a particular manner and whether such manner amounts to making batch-wise selection for recruitment on the post in questions and whether such practice, if any, required to be adhered to in this regard?
The factual aspect of the matter as borne out from the record, which are not disputed, indicates that the post of X-Ray Technician are state cadre post and the seniority list of X-Ray Technician is prepared at the State level. They are transferrable from one district to another. The service conditions of the post in question are governed under 1986 Rules. In the selection held in the year 1989, 1998, 2003 and 2007, the selections were made at the Directorate level. In the selection held in the year 1989 and 1998, 1986 Rules were applied and the select list was prepared on the basis of marks obtained in the interview whereas in the selection held in the year 2003 and 2007, the vacancies were filled up on the post in question applying the 1986 Rules read with 2002 Group 'C' Rules (as amended).
It is not in dispute that in the selection held in the year 2007, the petitioners who have obtained diploma in X-Ray in 2004 and/or before 2004 were not selected, however, the selection held in the year 2007 was not challenged and the persons selected in the said selection have been given appointment on the post of X-Ray Technician.
So far as the question as to whether the selection for post of X-Ray Technician can be made by taking recourse to 2002 Group 'C' Rules as amended in 2003 and 2007 and whether 2002 Group 'C' Rules as amended in 2003 and 2007 are applicable only to such Group 'C' posts which are of district level cadre is concerned, Rule 1 (3) of 2002 Group 'C' Rules specifically mentions that the Rule shall apply to direct recruitment to Group 'C' post under the Rule making power of the Governor under the proviso to Article 309 of the Constitution of India, except the posts and the departments specifically excluded under sub-Clause (i) (ii) (iii) of Rule 1 (3). It is the admitted fact that as per Rule 2 of 1986 Rules the post of X-Ray Technician comprises Group 'C' and it has not been excluded under the exceptional clause of Rule 1 (3) of 2002 Group 'C' Rules.
Moreover, Note-(2) of Rule 6 of 2002 Group 'C' Rules mentions that if the jurisdiction of the appointing authority exceeds to more than one district, then in such case the recruitment process shall be done in which the Head of the appointing authority is situated. This is indicative of the fact that 2002 Group 'C' Rules are not confined only to the recruitment of Group 'C' posts of district cadre and can be applied to the selections held for the State cadre Group 'C' post for which selection is held at the directorate level.
The question of applicability of 2002 Group 'C' Rules in the selection in the State service on the post of Pharmacist under opposite parties has been considered by this Court vide judgment and order dated 23.5.2008 (supra) wherein the advertisement dated 12.11.2007 (composite advertisement for the post of Pharmacist as well as X-Ray Technician) for appointment on the post of Pharmacist was challenged on various grounds. The Court has rejected the contentions regarding the non-applicability of 2002 Group 'C' Rules, the constitution of selection committee and the question of competence of Director General, Medical & Health Services to issue the advertisement being the appointing/selecting authority. It has been categorically held that 2002 Group 'C' Rules as amended in 2003 shall apply to direct recruitment to all Group 'C' posts except such posts and departments which have been excluded from the zone of consideration. The Medical and Health Department is not excluded; rather as per opposite parties the selection on the post of Pharmacist/X-Ray Technician is to be held by applying 2002 Group 'C' Service Rules as amended in 2003. Rule 2 of 2002 Group 'C' Service Rules is very clear and categorical, which mentions in respect of overriding effect of the aforesaid Rules by providing that these Rules shall have the overriding effect notwithstanding anything to the contrary in any other rules or orders. Relevant paragraph of the judgment dated 23.5.2008 (supra) on reproduction reads as under:
"On the touchstone of the provisions quoted above, respective arguments advanced by the parties are being looked into. The question to be looked into is as to whether the provisions of Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) Rules, 2002, as amended by Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003 can be pressed into service while making selection and appointment on the post of Pharmacists and to what extent? This fact is not disputed that as per rule 2 of the U. P. Pharmacists Service Rules, 1980 status of service of Pharmacists is that of a subordinate service comprising group ''C' posts. This fact is also not disputed that in respect of Pharmacists in absence of there being any Act on the subject, Governor of the State has the authority to frame Rules in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Sub-rule (3) of Rule 1 makes the position clear by mentioning that Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) Rules, 2002, as amended by Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003 shall apply to direct recruitment to Group C post, except the existing posts and the departments, which have been excluded from the zone of consideration. Pharmacy Department is not there, neither the State Government has issued any clarification excluding the Pharmacist service from the application of Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) Rules, 2002, and Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003. Rule 2 is clear and categorical, which mentions in respect of overriding effect of the aforesaid Rules by providing that these Rules shall effect notwithstanding anything to the contrary in any other rules or orders."
The impugned advertisement dated 15.10.2013 clearly indicates that the selection for the post in question is to be held in accordance with service cadre rules i.e. 1986 Rules and 2002 Group 'C' Rules as amended in 2003 and 2007. Thus, there is no question of 1986 Rules superseding 2002 Group 'C' Rules; rather the provision of both the rules have to be harmoniously constructed so as to make both the rules workable. The Apex Court while interpreting the effect of non-obstante clause has held in a number of decisions that non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words, the non-obstante clause cannot cut down the constructions and restrict the scope of its operation. Rule 2 of 2002 Group 'C' Rules as amended in 2003 and 2007 contains non-obstante clause which has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment of the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules and non-obstante clause has to be considered on the basis of the context in which it is used.
This Court vide judgment and order dated 23.5.2008 (supra) has adopted the similar approach so as to make both the rules workable i.e. special rules and general recruitment rules are workable and the said approach and conclusion of this Court has not been disturbed by the Apex Court while making reference in para 7 of the judgment dated 03.08.2010 (supra) with respect to the findings of the Single Judge. Para 7 of the judgment dated 03.08.2010 (supra) on reproduction reads as under:
"7. Questioning the said discriminatory and arbitrary treatment, the Respondents herein moved several writ petitions before the Lucknow Bench of the Allahabad High Court for quashing the above-mentioned advertisement dated 12th November, 2007 and for a writ in the nature of Mandamus to command the Petitioners herein to make recruitment to the vacant posts of Pharmacists strictly in accordance with Rules 14 and 15 of the 1980 Rules, by specifying the vacancies year-wise, and, thereafter, appointing the writ Petitioners to the post of Pharmacists after providing for age relaxation. A further prayer was made in one of the writ petitions (Writ Petition No.7771 (SS) of 2007) to declare Rule 5(2)(iv)(b) of the amended Rules as ultra vires. After a detailed consideration of the rules and the existing procedures, the amended Rules were held to be intra vires. Considering the same, the petitioners herein were competent to issue the advertisement and to constitute a Selection Committee in terms of Rule 6 of the 2002 Rules and the First Amendment Rules 2003. It was, however, also indicated that until and unless Clause (a) of Sub-Rule (3) of Rule 5 of the 2003 Rules was amended, selection could not be undertaken by computing the marks as per the procedure prescribed therein and selection had to take place as per the provisions of Rule 15(2) of the 1980 Rules on the basis of the marks obtained in the Pharmacy Diploma Examination."
It is to be noted that 1986 Rules as well as U.P. Pharmacists Service Rules, 1980 are pari materia same except the provisions relating to academic qualification as given in Rule 8 and procedure for direct recruitment as given in Rule 15. Under 1986 Rules, the academic qualification require for the post of X-Ray Technician under Rule 8 is "a candidate for recruitment to the post in the service must possess a diploma in X-Ray from the U.P. State Medical Faculty or a qualification recognized by the said faculty as equivalent thereto" whereas under U.P. Pharmacists Service Rules, 1980 the academic qualification required for the post of Pharmacist under Rule 8 is " A candidate for direct recruitment to the posts in the service must possess diploma in Pharmacy from a recognised institution and must also be registered with the State Pharmacy Council, Uttar Pradesh"
Under 1986 Rules, under Rule 15 in the procedure prescribed for recruitment, the "Selection Committee" shall prepare a list of candidates in order of merit as disclosed by marks obtained by them in the interview. If two or more candidates obtain equal marks, the selection committee shall arrange their names in order of merit on the basis of their general suitability for the post whereas under U.P. Pharmacists Service Rules, 1980 the "Selection Committee" shall prepare a list of candidates in order of merit as disclosed by marks obtained by them in the diploma examination.
So far the applicability of 2002 Group 'C' Rules as amended in 2003 and 2007 in the selection for the post of X-Ray Technician is concerned, I do not find any reason to differ from the findings recorded by this Court vide judgment dated 23.5.2008 (supra).
Dr. L.P. Mishra, learned counsel for petitioners has laid great emphasis on the constitution of "Selection Committee" under 2002 Group 'C' Rules and submitted that the said selection committee is meant only for district level cadre post for which appointing authority is either the district magistrate or any other Officer within the district or the appointing authority having jurisdiction to exercise in more than one district, as such, the selection committee envisaged under 1986 Rules can only be constituted to hold the selection for the post in question which a State Cadre post.
Since I have come to conclusion that the appointment on the post of X-Ray Technician in the service of State of U.P. can be made by taking recourse to 2002 Group 'C' Rules as amended in 2003 and 2007, as such, the said Rules are to be applied along with 1986 Rules in such harmonious constructive way that in case there is any difficulty or confusion in applying any particular provision of either of the Rules, recourse may be taken to the other Rule.
On a query put to learned Standing Counsel regarding the constitution of Selection Committee, it was informed by learned Standing Counsel, on the basis of instructions, that in the selection held for the post in question, in pursuance of impugned advertisement, the selection committee was headed by Director, Para Medical being the appointing authority and four other Members of the rank of Additional Director and Joint Directors. One of the Member represented Scheduled Caste/Scheduled Tribe and another Member represented Backward Class. Moreover, one Member was specialized in the field of radiology and one Member was nominated by the appointing authority. The constitution of selection committee was as per relevant Government Orders and Rules.
It is also informed that in the previous selection held for the post in question in the year 2007, the selection committee was constituted in the same manner.
As such, it is very clear that the constitution of selection committee for selection on the post in question clearly indicates that the selection was held at the directorate level consisting of the Officers of the rank of Director, Additional Director and Joint Directors.
As per Rule 15 of 1986 Rules, the selection committee is required to consist of Officers of the rank of Additional Director nominated by Director and Joint Director dealing with the establishment of X-Ray Technician and Secretary, State Medical Faculty which was more or less fulfilled in the selection held for the post in question. Even in case there was any irregularity in the constitution of selection committee, it will not lead to such illegality which may render the entire selection illegal, particularly when there is no such allegation of mala fide in the selection for the post in question.
In the case of Sardara Singh and Others Vs. State of Punjab and Others; (1991) 4 SCC 555, the Apex Court has held that in case in the selection certain procedure was not properly followed, the appointment made would not become illegal. Relevant para 4 on reproduction reads as under:
4. It is next contended that the District Collector was not competent to invite applications afresh and selection of the candidates from out of those applicants is illegal. It is true that he is bound by the instructions issued by the Government in Annexure 'D' wherein it was stated that since the number of applicants are quite large in number, it would not be necessary to solicit candidate afresh from Employment Exchange or through public advertisement. But in paragraph 4 therein it was stated that priority categories listed in the proceeding dated April 24, 1986 will have to be given precedence over candidates from all other sources other than the regularisation of the existing ad-hoc Patwaris. It had given room to the District Collector to invite applications from those categories. Though it was a mistaken compliance on wrong impression, the selection of the candidates, so applying does not become illegal. It was next contended that instead of calling the applications by publication in the newspapers, only notice was put on the Notice Board of the Collector's office and some candidates submitted their applications in pursuance thereof and that is not a proper notification. Though we find that the procedure adopted by the Collector, in inviting applications is not commendable, but the grievance would be voiced only by the persons who did not have the opportunity to make applications within the prescribed period. But no such grievance could be raised by persons like the appellants. Under those circumstances, the procedure adopted, though irregular, does not vitiate the selection of candidates, ultimately made by the Committee. (emphasis supplied) It is also to be noted that in the selection held for the post of X-Ray Technician in the year 2007 same procedure was adopted including the constitution of selection committee which was not challenged by the petitioners, who had either participated in the said selection or were eligible for appointment to the post of X-Ray Technician prior to 2007 and could have challenged the same in case felt aggrieved.
The selection committee was constituted in the manner as was done in the previous selections particularly held in the year 2007 i.e. after coming into force of 2002 Group 'C' Rules, amended in 2003 and the appointment made in the said selection were not challenged although a long litigation was drawn with respect to the selection held in the year 2007 for the post of Pharmacist. I find force in the arguments of learned Standing Counsel that petitioners who have obtained diploma in 2004 or even prior were fully eligible for selection on the post of X-Ray Technician held in the year 2007, however, they had not challenged the same at that time, as such, they shall not be permitted to challenge the same now.
Moreover, the impugned advertisement indicates that the same has been issued under the authority of Director General, Medical & Health Services and the appointing/selecting authority is the Director General, Medical & Health Services, U.P., Lucknow. The selection is to be held at the State level as has been the practice in the past, as such, it can be easily said that even in case the selection is to be held by applying 1986 Rules and 2002 Group 'C' Rules as amended in 2003 and 2007, the selection committee is not to be constituted at the district level and it is to be constituted at the State level under the authority of Director General, Medical & Health Services. 1986 Rules and 2002 Group 'C' Rules as amended in 2003 and 2007 are to be applied giving harmonious construction in a manner that both the Rules can be given effect to.
The question as to whether Director General, Medical & Health Services can be described as appointing authority/selecting authority and the impugned advertisement issued on his behalf is valid or not has also been considered by this Court in the judgment dated 23.5.2008 (supra) wherein the Court has held that the appointing authority is defined under Rule 3 (1) of 1986 Rules has to be harmonized in the context of the provisions as contained under 2002 Group 'C' Rules, therein the authority to make appointment has been vested with the appointing authority and further selection committee was to be constituted as per Rule 6 of 2002 Group 'C' Rules. Even, these rules have to be construed in the context in which they have been framed and used. Relevant paragraphs of the judgment dated 23.5.2008 on reproduction read as under:
"This fact is not disputed that Pharmacists form part of State level cadre. Appointing authority, as defined under rule 3 (a) of 1980 Rules, has to be harmonized in the context of the provisions as contained under Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) Rules, 2002, and Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003. Therein authority to make appointment has been vested with the appointing authority and further Selection Committee was to be constituted as per rule 6 of the Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) U.P. Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) Rules, 2002. These rules have to be construed in the context in which they have been framed and used. Rule 3 clearly mentions, while defining, that said definition is subject to any thing being repugnant to subject or context. Rule 3 (a) of the Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) Rules, 2002, and Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003 deals with the appointing authority as the authority empowered to make appointment under the relevant service rules. Relevant service rules in the context are 1980 Rules, and there the authority to make selection has been vested with the Director and issuance of appointment letter by appointing authority is nothing more than ministerial act. The Selection Committee constituted in respect of State cadre is of State level, in this background, selection at district level cannot even remotely be thought of, rather such selection has to be done at State level. Under the relevant service rules, 1980 Rules, authority to make determination of vacancy is with the Director and thereafter selection has to be made by State Level Selection Committee, and thereafter Director is obliged to forward the requisite number of names in order of merit, from the list so prepared to the concerned appointing authority.
Earlier when 1980 Rules were framed, Director was Head of the Department, but with the passage of time Director General, Medical Health and Services has been made Head of the Department and various Directors have been posted on account of restructuring of the cadre, as such Director General being head of the department has the authority to determine the vacancies to be filled during the course of the year and the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and such other categories as per rule 6 of 1980 Rules (Rule 4 of 2002 Rules), and thereafter notify the vacancies to the Employment Exchange and advertise the same in the leading news papers as is considered appropriate by him and the Selection Committee is to be constituted by Director General in consonance with the provisions as contained under rule 6 of the Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) Rules, 2002, and Uttar Pradesh Procedure for Direct Recruitment of Group ''C' Posts (Outside the Purview of Public Service Commission) (First Amendment) Rules, 2003. Thus, the advertisement in question issued by Director General cannot be faulted, keeping in view the fact that cadre in question is State level cadre, and selection at district level is not at all permissible, as same would be totally repugnant to the context, and once selection is being made by the Director General by constituting Selection Committee at State level, then after merit list is prepared, same has to be transmitted to respective appointing authorities for follow-up action. In case selection at district level is permitted, giving narrow meaning to appointing authority, same would create anarchic situation, and such action would not all be subscribed by Rules. In view of the language used in 1980 Rules, selection has to be made through the agency of the Head of the Department and not by any other means."
In the present case, as per 1986 Rules the appointing authority means Joint Director, ESI, Principal of the Medical Colleges, Chief Medical Officers, Senior Medical Superintendents, Superintendents-in-Chief of Hospitals and Head of the Institutions in respect of the posts in their offices. It is almost the same position as exist under U.P. Pharmacists Service Rules, 1980, as such, I do not find any reason to defer from the findings recorded by the Court vide judgment dated 23.5.2008 (supra) and hold that for the purpose of holding selection on the post of X-Ray Technician, the Director General, Medical & Health Services on whose behalf the impugned advertisement has been issued shall be treated to be the appointing authority/selecting authority.
As such, the impugned advertisement dated 15.10.2013 does not suffer from any infirmity or illegality and the selection on the basis of said advertisement can be proceeded and finalized.
So far as the procedure prescribed for holding selection by awarding marks is concerned, in the present case as per Rule 15 of 1986 Rules, the selection committee is required to prepare a list of candidates in order of merit as disclosed by marks obtained by them in the interview. The procedure under 2002 Group 'C' Rules is more exhaustive and will provide transparency. In case in order to evaluate the candidature of persons applying for the post in question, the opposite parties adopt the procedure by awarding marks to the academic qualification, it does not mean that it will conflict the procedure prescribed under 1986 Rules. There is no harm in case opposite parties adopt the prescribed procedure as envisaged under Rule 5 of 2002 Group 'C' Rules for evaluating the candidature of persons applying for the post in question and award certain marks to the academic qualification of the candidates as it will not lead to any arbitrariness in the selection and the selection can be held in a more fair and proper manner. 2002 Group 'C' Rules after amendment in 2003 clearly apply to such posts for which educational qualification and technical qualification both are prescribed.
A candidate is required to possess the educational qualification of Intermediate for obtaining diploma in X-Ray from U.P. State Medical Faculty. As per Rule 8, academic qualification required for appointment on the post of X-Ray Technician is diploma in X-Ray from U.P. State Medical Faculty or a qualification recognized by the said faculty as equivalent thereto, as such, even in case as per 1986 Rules only requirement for the post of X-Ray Technician, under Rule 8, is diploma in X-Ray, it does not meant that in the selection held for the post in question no marks can be awarded on the basis of educational qualification to evaluate candidates.
The contention that the 2002 Group 'C' Rules can only be made applicable where the selection is based on educational qualification and technical qualification and it cannot be made applicable where the selection criteria is technical qualification only is misconceived. It is to be noted that Rule 15 (2) of U.P. Pharmacists Service Rules, 1980 provides the selection solely on the basis of marks obtained in the Diploma Examination (technical qualification), whereas the criteria for selection on the post of X-Ray Technician as per Rule 15 (3) of 1986 Rules is merit on the basis of marks obtained in the interview. The examination of a candidate in interview is with respect to his overall assessment regarding his educational qualification, technical qualification, personality assessment, power of expression, etc. In 2002 Group 'C' Rules, vide Rule 5 the criteria for awarding marks in the selection has been elaborated on different accounts which makes selections more transparent and fair. The contention of the petitioners that 2002 Group 'C' Rules cannot be made applicable where only selection criteria is technical qualification is based with respect to selections on the post of Pharmacist under U.P. Pharmacists Service Rules, 1980 where criteria for selection is marks obtained in the Diploma Examination and the Single Judge in Writ Petition No. 7699 (SS) of 2007 (supra) has held that in case where the selection criteria is only technical qualification then in such case 2002 Group 'C' Rules as amended in 2003 cannot be pressed into service, unless and until Rule 5 (3) (a) of 2002 Group 'C' Rules as amended in 2003 are not amended vis-a-vis the U.P. Pharmacists Service Rules, 1980. The contention of the petitions is completely misconceived as the selection criteria for the post of X-Ray Technician is merit on the basis of marks obtained in the interview as provided in Rule 15 (2) of 1986 Rules.
In a situation where the selection criteria is merit on the basis of marks obtained in the interview, then it cannot be said that 2002 Group 'C' Rules will not apply, rather it is juxtapose for the simple reason that the Rule 5 (3) of 2002 Group 'C' Rules makes the selection based on the interview more transparent, fair, reducing the chances of arbitrariness and discrimination in awarding of marks in interview by the selection committee. It is pertinent to mention here that the essential qualification for admission in the course of Diploma in X-Ray is Intermediate and the Rule 1 (3) (ii) of 2002 Group 'C' Rules provides that 2002 Group 'C' Rules will not apply to posts where minimum academic qualification is less than Intermediate and hence the prescription of marks for Intermediate and Technical qualification as per Rule 5 (2) of 2002 Group 'C' Rules is perfectly in accordance with law. As such, I do not find any force in the argument made by learned counsel for petitioners in this regard.
I am of the considered view that sub-Rule (2) of Rule 5 of 2002 Group 'C' Rules as amended in 2003 can be easily pressed into service and can be applied for selection to the post of X-Ray Technician under the service of the State Government.
So far as the contention of learned counsel for petitioners that 1986 Rules are Special Rules whereas 2002 Group 'C' Rules as amended in 2003 and 2007 are general Rules, as such, 1986 Rules will prevail over the 2002 Group 'C' Rules and 1986 Rules have already occupied the filed for selection on the post in question is concerned, suffice is to observe that there is no conflict between these two rules and they are to be applied in such harmonious constructive manner that the selection is held in such a manner as requirement of 1986 Rules so far as it relates to Eligibility Criteria, etc. are fulfilled and the procedure prescribed for selection under 2002 Group 'C' Rules is applied. In the selection held in the years 2003 and 2007 both these rules have been applied in a harmonious manner and there is no procedural illegality in case they are applied in the same manner.
The question as to whether in the selection held for the post of X-Ray Technician, opposite parties shall fill up the post giving batch-wise preference is concerned, it is to be noted that under Rule 15 (3) of 1986 Rules merit list is to be prepared on the basis of marks obtained in the interview whereas under Rule 15 (2) of U.P. Pharmacists Service Rules, 1980 the merit list is to be prepared on the basis of marks obtained in the diploma examination. The Division Bench of this Court vide judgment dated 04.05.2009 (supra) had directed that appointment on the post of Pharmacist shall be held on the basis of their merit taking their batches into consideration as has been the pre-existing practice. It was the admitted case of opposite parties in the case of Pharmacist that they were given batch-wise preference in the earlier selections and considering the same the Court had directed accordingly. The Apex Court vide judgment dated 03.08.2010 (supra) has affirmed the judgment dated 04.05.2009 (supra) and held that in the selection on the post of Pharmacist the pre-existing practice of batch-wise preference shall be applied.
However, in the present case, the position is different. Under Rule 15 (3) of 1986 Rules, the merit list is to be prepared on the basis of marks obtained in the interview and not on the basis of marks obtained in the diploma in X-Ray. Moreover, it has been categorically stated by opposite parties that there has been no pre-existing practice of giving preferential batch-wise appointment on the post of X-Ray Technician in State service; rather learned Standing Counsel has categorically submitted in his written submissions that earlier selections were never made batch-wise and there was never such practice of appointment batch-wise.
There is nothing on record to indicate that the State Medical Faculty used to grant permission for diploma in X-Ray considering the number of vacancies available on the post of X-Ray Technician in various Government Hospitals, Medical Colleges, Medical Universities, etc. and only such number of persons were allowed to get diploma in X-Ray, who may be absorbed against the existing vacancies.
It appears that earlier the qualified/eligible candidates for appointment on the post of X-Ray Technician were much less in comparison to the number of posts available and hence almost all the eligible candidates used to be selected. The persons who used to apply for diploma in X-Ray to the State Medical Faculty after successful obtaining the diploma in X-Ray used to get appointment against the existing vacancies, however, with the passage of time number of eligible candidates swelled and competition has increased in the selection, as such, it cannot be said that the petitioners shall be given batch-wise preference in the selection held for the post in question. Obtaining diploma in X-Ray from State Medical Faculty does not confer any right on petitioners to claim appointment in the State service on the post of X-Ray Technician. In fact, they have to go through the entire procedure of selection as envisaged under the relevant rules. There is also nothing on record to indicate that in the earlier selection any such preference was given by opposite parties.
It is also to be noted that it is the admitted case that in the selection held for the post in question in the year 2007, no such preference was given by opposite parties.
In view of above, I am of the view that the case of present petitioners is different from the case of Pharmacist in which the directions were issued by the Court to give batch-wise preference in the selection held for the post of Pharmacist.
One of the arguments advanced by learned counsel for petitioners was that in the counter affidavit, it has been admitted by opposite parties that the selections in the preceding year have been made batch-wise, which is not correct. In paragraph 11 of the counter as well as in paragraph 20 of the counter affidavit, the said assertion of petitioners has been denied by referring that the selections have been done as per service rules i.e. 1986 Rules.
It is to be noted that 1986 Rules do not provide for any batch-wise selection. The contention in this regard, as such, is misconceived.
In view of above, the writ petitions having no force are dismissed. Interim order, if any, stands vacated.
Opposite parties shall complete the formalities of selection on the post of X-Ray Technician, expeditiously.
[Justice Ritu Raj Awasthi] Dated: 29th May, 2014.
Santosh/-