Heard Mr.Vivek Raj Singh, learned counsel for the petitioner as well as Mr.Manjeev Shukla, learned Standing Counsel for the opposite parties.
The petitioner has challenged the Circular dated 4th of May, 2011 (Annexure No.1), issued by the Joint Commissioner, Food and Civil Supply Department, State of U.P., Lucknow.
By means of the Circular impugned, it has been provided that the Selection Committee, to fill up the posts of handicapped candidates, has been constituted under the Chairmanship of the Head of the Department, which shall interview the candidates, for selection on Group 'C' posts.
Briefly, the facts of the case are that under the policy decision of the State Government, to fill up the quota on the post of junior clerks of physically disabled persons, an advertisement was issued on 10th of January, 2011, pursuant to which the petitioner applied and also appeared in the written examination on 25th of January, 2011. In the said examination five persons including the petitioner were found eligible for the post of clerk assigned for the general category candidate for the office of the District Supply Officer, Banda. Thereafter he was called for an Interview, which held on 1st of March, 2011. He appeared so, but the result of the said examination has not been declared so far, whereas the result of the examinations held for other districts have been declared, more so the candidates selected therein have also been given appointment.
Though merely being selected, the petitioner has no right to claim the appointment, as has been held by the Hon'ble Supreme Court in the case of Sankarsan Das versus Union of India, reported in 1991 (3) SCC 47, but one exception has been carved out by the Hon'ble Supreme Court that discrimination done by the authorities is not permissible. Accordingly it is stated by the petitioner that by giving appointment to other candidates selected by the same very selection committee and depriving the petitioner is purely arbitrary action of the respondents, therefore, the same is unsustainable in the eye of law.
The petitioner also claims his selection valid in accordance with the Rules called as Uttar Pradesh Khadya Tatha Rasad (Sampurti Sakha) Lipik Varg Sakha Niyamawali, 1979, which provides that on the post of clerk and typist by way of direct recruitment the selection shall be made by the District Selection Committee, of which the District Magistrate shall be the Chairman. According to the petitioner he has been selected by the District Level Committee, therefore, there is no error in the selection.
On the other hand through the counter affidavit filed on behalf of the opposite parties, it is stated that the selection in question is governed under the Uttar Pradesh Procedure for Direct Recruitment for Group 'C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) (Third Amendment) Rules, 2009, whereby in place of old Rule 6, the new Rule 6 has been inserted, which provides the constitution of Selection Committee. The relevant Rule 6(2) is quoted hereunder:-
"(2) Direct recruitment to the posts reserved for persons belonging to the category of Physically Handicapped shall be made by a Selection Committee comprising:-
(i) Head of the Department of the concerned department for which recruitment is to be made-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 belong to the Other Backward Classes, an officer other than belonging to the Other Backward Classes or Scheduled Castes or Scheduled Tribes shall be nominated by the Chairman - Member
(iv) An expert of the related disability shall be nominated by the Principal Secretary or Secretary as the case may be to the Government in the Handicapped Welfare Department- Member
(v) One specialist doctor of the related disability shall be nominated by the Principal Secretary or Secretary, as the case may be, to the Government in the Handicapped Welfare Department- Member".
Learned Standing counsel further contended that for selection of physically handicapped persons, the specific selection Committee has been constituted. Rule 6(1) also provides for constitution of Selection Committee, but for the selection to the post other than the post reserved for persons belonging to the category of physically handicapped, whereas sub-rule (2) specifically constitutes the selection Committee for selection of the candidates belonging to the physically handicapped category. It is further stated that there was no such specific provision under the original Rules, 1979 nor in the departmental Rule as well, therefore, the selection of the physically handicapped persons on Group 'C' post could have been made only by the Selection Committee constituted under Rule 6(2) of the amended Rules, 2009. Since it is specific Rule for the particular purpose, it will prevail over others.
On the other hand Mr.V.R.Singh, learned counsel for the petitioner further gave emphasis on the validity of the petitioner's selection and in support of his submission he cited the following decisions:-
(1) D.R.Yadav and another versus R.K.Singh and another, reported in (2003) 7 SCC 110, relevant paragraphs 15 and 21 of the judgment are quoted hereunder:-
"15.Mr.Rakesh Dwivedi, learned Senior counsel appearing on behalf of the appellants raised a short question in this appeal. The submission of the learned counsel is that the High Court went wrong in applying the 1991 Rules relying on or on the basis of the decision of this Court in Mohan Karan without effectively considering the provisions of Article 309 of the Constitution of India. It clearly stipulates that in terms of the proviso appended thereto the Governor can frame a rule so long as the State or the statutory authorities concerned do not make any provisions laying down the conditions of service by or under a statutory enactment. In other words, once a legislation has come into being and rules have been framed thereunder governing the field, the general rules made by the Governor in terms of the proviso appended to Article 309 of the Constitution of India must give way to the special rules framed under the statute. Thus, when there exist special rules, general rules cannot be applied. Strong reliance in this behalf has been placed on Chandra Prakash Tiwari v. Shakuntala Shukla.
21. On a plain reading of the said provision, there cannot be any doubt whatsoever that rules framed thereunder would apply so long as a statute or statutory rules or any other subordinate legislation governing the conditions of service are not enacted or made or not otherwise operating in the field. In other words, rules made under the proviso to Article 309 of the Constitution are for a transitory period and the same would give way to the special rules once framed. However, if a statute or rules made thereunder was/were already operating in the field, the general rules made under the proviso to Article 309 would not apply to the services created thereunder."
He further states that since the departmental Rule is still prevailing, as it has not been specifically repealed by the general Rules, framed under Article 309 of the Constitution of India, the specific Rule shall prevail over the general Rule. In support of his submission he cited the following decision:-
(2) Chandra Prakash Tiwari and others versus Shakuntala Shukla and others, reported in (2002) 6 SCC 127, relevant paragraph 37 of which is quoted hereunder:-
"37.Police force, admittedly, has a special significance in the administration of the State and the intent of the framers of our Constitution to empower the State Government to make rules therefor has its due significance rather than being governed under a general omnibus rule framed under the provisions under Article 309. When there is a specific provision unless there is a specific repeal of the existing law, question of an implied repeal would not arise. In any event, the General Rules are only prospective in nature and as such could not have affected the selection process which commenced in the year 1993 and it is on this score the parties advanced quite lengthy submissions but in our view question of further consideration thereof would not arise by reason of the commencement of the selection process in 1993."
In reply the learned Standing counsel for the respndents further cited the decision of Hon'ble Supreme Court rendered in the case of S.Prakash and another versus K.M.Kurian and others, reported in (1999) 5 SCC 624, relevant paragraph 17 of which is quoted hereunder:-
"17.In our view, the aforesaid submission is without any substance. As discussed above, Rule 5 of the General Rules is enacted to govern the Special Rules with regard to the method of recruitment in cases when appointments are by direct recruitment and by transfer in any substantive vacancies in permanent cadre. The language used in Rule 5 is clear and unqualified. The intention of the legislature of adding Note (3) is also clear and is added to fill in the existing lacuna in the method of recruitment provided in the Special Rules. As stated above, for appointment to Category 3, i.e., to the post of Agricultural Income Tax Officers and others, the method of appointment only provides that 20% of successive substantive vacancies shall be filled or reserved to be filled by direct recruitment and the remaining vacancies are to be filled or reserved to be filled by transfer. On what basis the substantive vacancies are to be determined was not provided and therefore that lacuna is filled up by the aforesaid Note (3) in Rule 5. In any case, even if there is a repugnancy or inconsistency, the law is settled to the effect that the general rule later in time prevails over the earlier special rule if it clearly and directly supersedes the special rule. It is also well settled that the special rule can be altered, abrogated or repealed by the general rule by an express provision. In the present case, the language of Note (3) specifically makes it applicable to the General Rule stating "whenever" the ratio or percentage is fixed for different methods of recruitment, the method prescribed therein would apply. So the word "whenever" would cover the Special Rule prescribing ratio or percentage of appointment between the direct recruit and by transfer and the rule-making authority has specifically provided that the ratio or percentage for the vacancies is to be computed on the basis "not to the vacancies existing at that time," but on the basis of the cadre strength. Hence, there is no question of repugnancy between Rule 5 Note (3) and the method of appointment provided in the Special Rules."
The proposition laid down in case of S.Prakash and another (Supra) has been followed by the Hon'ble Supreme Court in the subsequent judgment rendered in the case of Prasad Kurien and others versus K.J.Augustin and others, reported in (2008) 3 SCC 529.
The Hon'ble Supreme Court in the case of R.S.Raghunath versus State of Karnataka and another, reported in (1992) 1 SCC 335, has held that the special law prevails over general law with one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law.
In the case of Ethopian Airlines versus Ganesh Narain Saboo , reported in (2011) 8 SCC 539, the Hon'ble Supreme Court has held that it is a settled principle of statutory interpretation that specific statutes that come later in time trump prior general statutes.
Upon perusal of the record, I find that both the Rules i.e. Departmental as well as General Rules, 1979 have been framed by the State Government in exercise of power provided under Rule 309 of the Constitution of India. Before the amendment in question made in 2009 i.e. 3rd amendment neither there was any such provision, particularly for constitution of a Special Committee for selection of the candidates belonging to the physically handicapped persons either in the Departmental Rules or in the General Rules, 1979. By way of the Uttar Pradesh Procedure for Direct Recruitment for Group 'C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) (Third Amendment) Rules, 2009, the Special Committee has been constituted particularly for selection of the physically handicapped persons under the Chairmanship of the Head of the Department. The said provision shall be treated as a special provision for the purpose and even being in the General Rule, it is special clause for selection of the physically handicapped person, therefore, even if the argument of learned counsel for the petitioner is accepted, this being special Rule, definitely shall prevail over the general Rule, whereas, as has been held by the Hon'ble Supreme Court in the case of S.Prakash and another (Supra), the particular provision, which was not in the earlier Rule, framed in the subsequent Rule, shall always be treated as special one.
After going through the decisions rendered by the Hon'ble Supreme Court in the case of D.R.Yadav and another (Supra) as well as Chandra Prakash Tiwari and others (Supra), I am of the view that the observations made, here-in-above, are also fortified by those decisions, therefore, I do not find error in the order impugned.
The writ petition lacks merit and and the same is dismissed.
Order Dated:9th of November, 2011.
Banswar