Court No. - 36
Case :- WRIT - A No. - 10394 of 2018 Petitioner :- Rajeev Kumar Gupta Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pankaj Kumar Gupta Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner and Sri Vikram Bahadur Singh learned Standing Counsel for the State.
By means of the present, the petitioner is challenging the order dated 19.02.2018 passed by respondent no.3 namely the Commissioner (Gram Vikas), Government of U.P., Lucknow whereby the claim of the petitioner for payment of salary and seniority w.e.f 24.12.2001 i.e. the date of joining of one Neeraj Kumar Gupta on the post of Junior Accounts Clerk, has been rejected.
The submission is that the petitioner has challenged the selection process held for the aforesaid post pursuant to the advertisement dated 30.08.2001. The writ petition No.20160 of 2002 (Rajeev Kumar Gupta Vs. District Development Officer & others) was decided vide judgement and order dated 11.12.2006 with the observations that once the selection process had commenced and the petitioner appeared in the typing test held on 28.11.2001, it was not open for him to turn around and challenge the selection process on the ground that typing test was not contemplated under the rules and the same was introduced by administrative order after initiation of the selection process.
However, an opportunity has been granted to the respondent authority to declare the result afresh after considering the marks of the petitioner in the typing test and to appoint him, provided he was declared successful in the type test.
The said judgement was challenged in Special Appeal no.55 of 2007 which was decided finally vide judgement and order dated 14.12.2012. The order passed by the Special Appellate Bench is quoted as under:-
"It is settled by the Apex Court that rules of the game cannot be changed after the game has started. It has been stated by the appellant that for the selection on the post of Junior Accounts Clerk neither in the rules nor in the advertisement there is any requirement of passing typing test. After recruitment process had started, in which the petitioner/appellant claims to have secured high marks, the requirement of passing typing test was introduced by way of departmental/administrative decision.
Having heard learned counsel for the appellant and learned State counsel in the light of the detailed order dated 30.11.2012, which was passed indicating the issue, this special appeal is allowed. We set aside the impugned order of learned Single Judge and direct that the selection/result will be declared independent of the typing test. The typing test will not be considered for declaration of result. The result will be declared within a month of the date on which the certified copy of this order is presented before the respondent no.1."
The Special Appellate Court had allowed the special appeal on the ground that the rules of the game cannot be changed after the game has started. There was no requirement in the rules or in the advertisement of passing typing test. After the recruitment process had commenced, it was not open for the department to introduce typing test.
It appear that the direction of the Special Appellate Court for declaration of result by ignoring the result of typing test has not been obeyed by the departmental authority and as such the petitioner had to approach this court in the Contempt Application (Civil) No.724 of 2013, wherein notices were issued on 31.03.2014. After the said notice was issued, a fresh meeting of the selection committee was held and the order dated 15.05.2014 was passed by the District Development Officer, Banda declaring the result of all the candidates including the petitioner, ignoring the result of the typing test.
The present petition is an offshoot of the judgement of the Special Appeal.
It is contended that the petitioner has been able to succeed in the challenge made by him to the act of the respondent in holding typing test for selection on the post of Junior Accounts Clerk. Since the petitioner has been declared successful in the written test held on 30.09.2001 and a similarly situated candidate namely Sri Neeraj Kumar Gupta had been appointed on 31.12.2001, the petitioner is entitled for all benefits to the post including salary and seniority. The said benefit cannot be denied to the petitioner for the inaction on the part of the administrative authority.
The order impugned, therefore, is liable to be set aside.
Learned Standing Counsel, on the other hand, defended the order impugned for the reasoning given therein.
From the careful reading of the judgement of the Special Appellate Court, it is more than apparent that while issuing directions to declare the result of the petitioner ignoring the type test, no interference was made by the Special Appellate Court to the result already prepared by the concerned department and in the appointment of already selected candidate. In this regard, the order of the Special Appellate Court is silent.
Further, no benefit has been provided to the petitioner from the date of declaration of result or of appointment of already selected candidates. It is settled principle of law that the appointment on a post is given effect from the date of joining to the said post. Furthermore, in case of any appointment granted pursuant to the direction of this Court, the administrative authority has to fully accord to the direction given in the order containing such directions.
Learned counsel for the petitioner submits that the petitioner had challenged the appointment of selected candidate and the direction issued by the Special Appellate Court was for declaration of result by ignoring the typing test. The result would be that the earlier appointees could only be continued in case they find place in the merit list. On the fresh declaration of result, Neeraj Kumar Gupta was placed below the petitioner in the merit list. In case of the said declaration being on time, the petitioner would have been appointed. The benefits accrued to him cannot be denied on the wrong action of the respondent.
On a pointed query made by the Court, learned counsel for the petitioner made a statement at the bar that the petitioner had challenged the appointment of the selected candidates in the earlier writ petition.
Dealing with this submission, from the careful reading of the order of the Special Appellate Court it is clear that no such relief has been granted to the petitioner. The relief as prayed, if not granted, would be considered to be rejected. The direction issued by the Special Appellate Court can only be interpreted to mean that the respondents were directed to declare the result of the selection ignoring the type test, keeping intact the selection of already appointed candidate. The question of grant of any benefit to the petitioner from the back date i.e. the date on which others had been appointed on the post of Junior Accounts Clerk pursuant to the said advertisement, does not arise in as much as the relief which has not been granted by the Special Appellate Court, cannot be granted by this Court in the present writ petition.
A further perusal of the order dated 15.05.2014 (page no.56 & 57 of the paper book) indicates that Neeraj Kumar Gupta was found qualified in the written test on fresh declaration of the result ignoring the type test, pursuant to the order of Special Appellate Court. He was appointed on 24.12.2001 and had joined the post of Junior Accounts Clerk immediately thereafter.
For the above noted reason, this Court is of the firm opinion that the petitioner is neither entitled for seniority to the post of Junior Accounts Clerk w.e.f 31.12.2001 i.e. the date of joining of Neeraj Kumar Gupta nor there is any question of payment of salary as there was no contract of service.
In view of the above, the order impugned cannot be said to suffer from any infirmity in the eye of law.
The writ petition is dismissed as such.
Order Date :- 25.4.2018 Himanshu