Court No. - 18
Case :- WRIT - A No. - 8916 of 2018 Petitioner :- Sunil Dutt Tripathi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Yogesh Kumar Singh,Man Bahadur Singh Counsel for Respondent :- C.S.C.,M.N. Singh
Hon'ble Mahesh Chandra Tripathi,J.
1. Heard Shri Yogesh Kumar Singh and Shri Man Bahadur Singh, learned counsel for the petitioner; Shri Bipin Bihari Pandey, learned Additional Chief Standing Counsel for the State respondent nos.1 to 3 and Shri Nisheeth Yadav, learned counsel for Public Service Commission, U.P. Allahabad.
2. Sunil Dutt Tripathi is before this Court assailing Clause-12 of the impugned advertisement dated 15.3.2018, only so far as the age criteria as on 1.7.2018 is concerned and for direction to the respondents to accept his application/candidature for the post of Assistant Teacher L.T. Grade in subject Hindi against the recruitment of 10,768 posts initiated vide advertisement dated 15.3.2018 as per the age criteria given in Clause-4 of the advertisement dated 19.12.2016 i.e. the age as on 1.7.2016.
3. The petitioner claims to be fully qualified for the post of Assistant Teacher, L.T. Grade in Government Secondary Schools run and managed by the State Government. However, the date of birth of the petitioner is 5.7.1977 and he has become overage for the post of Assistant Teacher, L.T. Grade as per terms and conditions of the advertisement dated 15.3.2018. The appointment of Assistant Teacher L.T. Grade in Government Secondary School is governed by the provisions of the "U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983" (in short, Rules of 1983) and as per Rules of 1983, initially the Public Service Commission, Uttar Pradesh, Allahabad (Commission) was authorized to conduct the selection. The State Government brought the first amendment in the Rules of 1983 on 6.11.1992 by which the selection of L.T. Grade Teachers was taken away from the ambit of the Commission and the selection had been entrusted to the Regional Deputy Director of Education, who became the appointing authority. The selection of L.T. Grade teachers is now to be made at the regional level on the basis of quality point marks of academic qualifications. The State Government further proceeded to notify the "U.P. Subordinate Educational (Trained Graduates Grade) Service (Third Amendment) Rules, 2014" on 28.2.2014 whereby the quality point/weightage given to the post graduate qualification was removed and the quality points are awarded on High School, Intermediate, Graduation and Training.
4. Initially, the State Government issued Government order dated 22.7.2014 for filling up 6645 posts of Assistant Teacher L.T. Grade in Government Secondary Schools. In pursuance thereof, the advertisement was made by the Regional Joint Directors of Education for filling up the vacancies requisitioned in their respective regions. It is also claimed that due to multiplicity of applications and other associated difficulties, only 1952 candidates joined the posts and remaining 3411 appointment letters were cancelled as they did not join the posts. The petitioner was under the zone of consideration in pursuance of the aforesaid advertisement issued in the year 2014 in subject Hindi. On 19.10.2016, the State Government promulgated "U.P. Subordinate Educational (Trained and Graduates Grade) Service (Fourth Amendment) Rules, 2016" whereby the Additional Director, Secondary Education, U.P. Allahabad was made the appointing authority for both men's branch and women's branch and as such, the posts of Assistant Teacher L.T. Grade have also been brought in the State cadre by the said amendment. The State Government had also tried to rectify the discrepancies by the said amendment on the basis of 4th Amendment Rules, 2016. The State Government as per its own wisdom had stopped the ongoing selection process of 6645 posts of Assistant Teacher initiated in pursuance of the Government order dated 22.7.2014 and decided to fill up 9342 posts of Assistant Teachers L.G. Trade in Government Secondary Schools as per 4th Amendment Rules, 2016 vide Government order dated 5.12.2016. Consequently, on-line applications were also invited by the Additional Director vide advertisement dated 19.12.2016. As per terms and conditions of the aforesaid advertisement, the minimum and maximum age for candidates for the post in question was 21 years and 40 years respectively, as on 1.7.2016.
5. In this backdrop, learned counsel for the petitioner states that in pursuance of the aforesaid advertisement, the petitioner had also applied on-line application for the post of Assistant Teacher L.T. Grade in subject Hindi and the same was duly accepted vide registration No.1600367443. After expiry of last date for submission of online applications, as per rules no further selection process was required except to declare the result/cut of merit on the basis of computer data already available with the appointing authority. The result of the said selection against 9342 posts of Assistant Teachers was prepared by the appointing authorities in February-March, 2017 but the same was stopped on account of imposition of Model Code of Conduct in the State for assembly elections. The result of the assembly election was declared in the month of March, 2017. Finally, the State Government had proceeded to introduce the "U.P. Subordinate Educational (Trained Graduates Grade) Service (Fifth Amendment), Rules, 2017" on 23.8.2017 whereby the selection on the post of Assistant Teachers L.T. Grade is to be made by direct recruitment through written examinations by the Commission. Finally, by the impugned order dated 31.10.2017, the State Government has cancelled/closed the ongoing selection process of recruitment of 9342 LT Grade Teachers.
6. It is submitted that meanwhile, some other candidates, who had applied against 9342 posts of LT grade teachers, had assailed the requisition dated 5.9.2017 by preferring Writ A No.48664 of 2017 (Himanshu Shukla and another vs. State of UP and others) in which an interim order was passed on 15.12.2017 that the selection pursuant to the impugned requisition order dated 5.9.2017 shall continue, however, the result in respect of 9342 posts of LT Grade Teachers advertised on 19.12.2016 shall not be declared without leave of the Court. The petitioner at this juncture is aggrieved with the requisition order dated 5.9.2017 issued by the Commission through advertisement No.A-1/E-1/2018 dated 15.3.2018 inviting applications from the qualified candidates having minimum age of 21 years and maximum age of 40 years as on 1.7.2018. The age criteria for the candidates for fresh recruitment is given in Clause-12 of the impugned advertisement.
7. It is further sought to be contended that as per Clause-12 of the advertisement dated 15.3.2018 the petitioner becomes overage and he is ineligible to apply for the post in question. The entire argument of the petitioner has been based on the ground that the posts in question were basically occurred in the year 2016. The petitioner as well as other hundreds of such candidates, who had applied against 9342 posts of Assistant Teachers LT Grade in pursuance of the advertisement dated 19.12.2016, have been eliminated from participating in the recruitment of 10,768 posts, which includes 9342 posts advertised in the advertisement dated 19.12.2017 and now as per Clause-12 of the impugned advertisement dated 15.3.2018, they became overage. The criteria given in Clause-12 of the impugned advertisement is absolutely arbitrary and the same is violative of Article 14 of Constitution of India and as such, this Court should come for rescue and reprieve to the petitioner.
8. Per contra, Shri Nisheeth Yadav, learned counsel appearing for the Commission in support of his submission has placed reliance on Rule 6 of "Uttar Pradesh Recruitment in Services (Age Limit) Rules, 1972 (Rules of 1972)" which provides that notwithstanding anything to the contrary contained in any service rules, for the services and posts whether within or outside the purview of the Public Service Commission, a candidate must have attained the minimum age and must not have attained the maximum age, as prescribed from time to time, on the first day of July of the calender year in which vacancies for direct recruitment are advertised by the Public Service Commission or any other recruiting authority, or as the case may be, such vacancies are intimated to the Employment Exchange, provided that nothing in this rule shall apply to a case where such advertisement or intimation has been made before the commencement of the "Uttar Pradesh Recruitment to Services (Age Limit) (Fifth Amendment) Rules, 1984". He has also placed reliance on "Uttar Pradess Public Service Commission Relaxation of Age Limit Rules, 1992" (Rules of 1992).
9. Shri Nisheeth Yadav, learned counsel for the respondent further makes submission that this Court in Writ A No.65848 of 2010 (Shri Prakash Srivastava and others vs. State of UP and another) decided on 15.10.2013 had considered all the services in different departments for which combined recruitment is being held by the Commission wherein Service Rules of 15 services including the Rules of 1992 for determining cut off date with respect to age were considered by this Court. The said writ petition was disposed of on 25.10.2013 with following observations:-
"25. In the absence of any provision whatsoever, I have no manner of doubt that a candidate cannot compel the employer to fill up a vacancy, as and when it occurred, and/or complain that he has some kind of vested right for process of recruitment, having not conducted with respect to the vacancy in the year when it was available and he was also eligible in the matter of age but become overage due to inaction on the part of respondents in initiation of recruitment process or non holding of any recruitment by recruiting agency. Similar arguments have been discarded in Sanjay Agarwal Vs. State of U.P. and others 2007(6) ADJ 272 (DB)=2007(5) ALJ 328(DB). The Division Bench held:
"(40) Moreover, rule 12 provides for age which is independent and is not subject to other rules. Therefore, Rule 12 would apply on its own irrespective of whether determination of vacancies took place at regular intervals as envisaged in Rule 8 or not. Any other view would make Rule 12 subordinate to Rule 8 though the rule framing authority has not said so and, therefore, any attempt by this Court to relax rigour of Rule 12 with reference to Rule 8 would amount to legislation which this Court is neither supposed to do nor should do. Learned counsel for the petitioners could not show any provision whereunder Rule 12 could have been relaxed by the authorities. In the absence of any provision for relaxation, by judicial interpretation or by judicial exercise such relaxation cannot be granted. In Food Corporation of India Vs. Bhanu Lodh (2005) 3 SCC 618 the Apex Court held that rigor of statutory provisions cannot be relaxed giving a total go-bye to the statute.
(41) Further a person if fulfils requisite educational and other qualifications does not possess a fundamental or legal right to be considered for appointment against any post or vacancy as soon as it is available irrespective of whether the employer has decided to fill in the vacancy or not. The right of consideration does not emanate or flow from existence of the vacancy but commences only when the employer decides to fill in the vacancy and the process of recruitment commences when the notification or advertisement of the vacancy is issued. So long as the vacancy is not made available for recruitment, no person can claim that he has a right of consideration since the vacancy exists and therefore, he must be considered. We have not been confronted with any statutory provision or authority in support of this contention that the petitioners have a right of consideration on mere existence of vacancy. On the contrary, we are of considered view that the right of consideration would come in picture only when the vacancy is put for recruitment, i.e., when the advertisement is published. That being so, the right of consideration commences when the recruitment process starts. The incumbent would obviously have right of consideration in accordance with the provisions as they are applicable when the advertisement is made and in accordance with conditions provided in the advertisement read with relevant rules. It is also obvious that if there is any inconsistency between the advertisement and Rules, the statutory rules shall prevail. In Malik Mazhar Sultan (supra), the Apex Court has clearly held that recruitment to the service could only be made in accordance with the Rules and not otherwise.
(42) Recently a similar claim for relaxation in respect to the period when no recruitment was held, pertaining to recruitment of U.P. Judicial Services came up for consideration before a Full Bench of this Court in Sanjay Kumar Pathak Vs. State of U.P. and others (writ petition no. 65189 of 2006) decided on 25.5.2007, and it held that unless permitted by the Rules no relaxation can be claimed. The Court also observed as under:
"Nobody can claim as a matter of right that recruitment on any post should be made every year."
(43) In view of the above discussion, it is held that Rule 8 makes it obligatory for the Court to make periodical recruitment but any deviation in compliance thereof for just and valid reasons would not give any advantage or consequence to the candidates who failed to participate in selections due to delay in recruitment by becoming overage or otherwise ineligible. Issue no.2 is answered accordingly. Similarly, issue no. 3 is answered in negative, i.e., the petitioners are not entitled for any relaxation on account of selection not held during certain period as contemplated under Rule 8 of 1975 Rules.
26. Similar argument was considered by another Divison Bench in Dr. Rajeev Ranjan Mishra and others Vs. State of U.P. and others 2008(1) AWC 910 = 2008)(1) ESC 595 and it was held:
"In our view, Rule 14 nowhere contemplates an annual selection obligatory on the part of the respondents. On the other hand what it provides that the appointing authority shall determine the number of vacancies to be filled during the course of the 'year' as also the number of vacancies reserved for various categories under Rule 6 which shall be filled in through Commission on intimation being sent. It only provides that for the purpose of determination of vacancy, the appointing authority shall take into notice 'year' as the unit in which the selection process is being undertaken, meaning thereby the vacancies shall not include anticipated vacancies after the 'year' when the recruitment process would commence. The existing vacancies as well as the vacancies likely to arise in the course of the 'year' would only be considered and determined by the appointing authority. The 'year of recruitment' has also been defined under Rule 3(j) of 1990 Rules as under:-
"3 (j) "Years of Recruitment" means a period of twelve months commencing from the first day of July of a calendar year."
Besides, Rule 4 sub-Rule 2 proviso empower the Governor to leave any vacant post unfilled or in abeyance without entitling any person to compensation. The appointing authority under 1990 Rules is the Governor meaning thereby the power under Rule 4 of the proviso is conferred upon the appointing authority and this shows that he is not obliged to fill in the vacancies as and when and immediately on their occurrence.
In order to accept the contention of the petitioner we will have to read in Rule 14, the words 'every year' instead of 'course of year' which is not permissible since this Court will not legislate but only interpret and implement the law as enacted by the competent authority. Where the language of statute is clear and unambiguous, the Court will not interpret the statute which may result in adding or subtracting any word or phrase in the provision of the statute but would simply interpret and implement the provision as it is. Rule 10 nowhere leaves any doubt that as and when the recruitment shall be made, the incumbent must fulfil the age limit of 21 years to 35 years on the first day of the 'calendar year' in which vacancies are advertised by the Commission. It excludes any other contingency for the purpose of age limit and the only incident to apply cut-off date for age is the 'calendar year' in which the vacancies are advertised by the Commission. The principle laid down under Rule 10 of 1990 Rules is consistent with the legal principles well known in service jurisprudence that, for the purpose of direct recruitment no person in open market has a right of consideration unless and until the vacancy is offered to be filled in accordance with law by the competent authority. As soon as a post fell vacant, it would not give or confer any right upon an individual, who fulfil other qualifications, to claim right of consideration for employment against such post for the reason that the employer can always keep a post unfilled. A perspective candidate cannot compel the employer to consider him for employment even though the post has not been made open for recruitment and selection."
27. The proposition laid down in Sanjay Agarwal (Supra) was also followed in Sunil Kumar Pandey and others Vs. State of U.P. and others, Writ A No. 34797 of 2011 (decided on 24.6.2011)
28. However, the above consideration may not strictly apply to the present case inasmuch as, the Governor in exercise of power under proviso to Article 309 of Constitution has published and promulgated another set of Rules, i.e., Uttar Pradesh Public Services (Relaxation of the age limits for recruitment) Rules 1992 (hereinafter referred to "Rules 1992"), published vide notification dated 23rd July 1992. It is a small set of Rules having only three provisions. Rule 2 contains certain definitions. I propose to quote Rules 1 and 3 thereof hereunder:
"1. (1) These rules may be called the Uttar Pradesh Public Services (Relaxation of the age limits for recruitment) Rules, 1992.
(2) They shall come into force at once.
(3) They shall apply to all civil services and posts under the rule making power of the Governor under proviso to Article 309 of the constitution."
"3. Notwithstanding anything to the contrary in any rule-regulating the maximum age of recruitment to a service or post in connection with the affairs of the State relaxation in the maximum age-limit may be granted by the Governor in favour of a candidate or a class of candidates.
Provided that in the case in which recruitment is made through the Commission, that body shall be consulted before the relaxation is granted."
29. The power of relaxation in the matter of maximum age limit has been conferred upon the Governor, vide Rules 1992. The only requirement with respect to recruitment made through UPPSC is that such body shall be consulted before relaxation is granted. It is not the case of the respondents that the circumstances, as arisen in the present case, due to non holding of recruitment in various years, resulting in rendering a large number of candidates like the petitioners, ineligible for no fault on their part, has been considered by competent authority, so as to examine whether power of relaxation can justifiably be exercised under Rules 1992 or not. For the purpose of recruitment, where UPPSC is involved, its consultation is necessary and before this Court UPPSC has admitted that it is not averse to the idea of such relaxation provided such a provision exists.
30. In the present case, the provision conferring power of relaxation upon the Governor exists, but it has not been attended or deliberated to see whether it should be exercised at all, in one or the other way or not. It is no doubt true that the competent authority is not bound to relax the rule, relating to maximum age, but once it possesses the power to do so, in a given case, where the circumstances so justify, it would be appropriate on its part to at least apply its mind and pass appropriate order as to whether such relaxation should be granted or not. It is more so necessary when out of several services in one such service, such relaxation has been granted with reference to an individual service rules of such service. In some of the writ petitions, the petitioners have claimed to have made representations to UPPSC, requesting for relaxation in the matter of maximum age, in the light of fact that the petitioners became overage during the period, when despite existence of vacancies no recruitment was held, but those representations, have not been disposed of for the reason that the power is to be exercised not by the UPPSC but the Governor. In my view, UPPSC instead of turning the blind eye to such representations ought to have referred the same to the competent authority, in the context of Rules 1992, so as to be considered by it, within a reasonable time. That would have helped not only in expeditious recruitment but also consideration of grievance of petitioners and alike other candidates, by respondent competent authority, i.e. Governor.
31. When a power is vested in a particular authority, to do or not to do something, it is not obliged to do by exercising a power in a particular way but when a request is made and the circumstances are brought to its notice, justifying exercise of such power, at least there must be an application of mind on the part of competent authority to find out whether such power should be exercised or not, and its extent, etc.
32. It was faintly suggested on behalf of respondent no.2 that Rules 1992 may not be attracted with respect to such services which are to be governed by individual sets of rules, framed after 1992. The suggestion is thoroughly misconceived. A bare reading of Rule 3 makes it clear that Rules 1992 have been given overriding effect over any contrary provision, regulating maximum age of recruitment to service or post, in connection with the affairs of the State.
33. Non-obstante clause in Rule 3 of Rules 1992, in a very wide and unequivocal term, provides that any rule, contrary, shall not bar the power of relaxation of Governor under Rules 1992. Thus, it is Rule 3 of 1992 Rules which shall prevail over contrary rule, if any. Furthermore, it provides overriding effect over not only the existing contrary rules, operating at the time of notification of Rules 1992, but overriding effect given thereunder by declaration is general and applicable to all Rules contrary thereto.
34. It is in these circumstances, I am clearly of the view that in the peculiar facts and circumstances of these cases, it would be in the fitness of things that the Governor ought to have examined the question of granting relaxation in the maximum age limit to the extent of non holding of recruitment for vacancies occurring during the concerned year(s) when no recruitment held and, and, thereby rendering certain candidates overage and ineligible in the matter of age. By exercising its power and considering entire facts and circumstances in accordance with law, whether relaxation is granted or not is a different thing, but at least the matter should have been examined by him. Since recruitment in the present case has to be made through UPPSC, such exercise of power shall be done by the Governor in consultation with UPPSC.
35. It goes without saying that this Court has not required the competent authority to exercise power in a particular manner, but it shall be open to it, to exercise the same in the manner it finds appropriate, but at least, such consideration must be there with application of mind in compliance of Rules 1992.
36. Resultantly, all these writ petitions are disposed of by directing the competent authority under Rule 3 of 1992 Rules to consider whether there should be relaxation in the matter of maximum age to such candidates who were otherwise eligible on 1st July of the year but due to non- advertisement of vacancies/non recruitment, they could not apply and became overage. The aforesaid decision shall be taken in consultation with the UPPSC as required by proviso to Rule 3 of 1992 Rules. Such exercise shall be completed expeditiously, preferably within two months from the date of presentation of a certified copy of this order before the competent authority.
37. In the meantime, UPPSC is directed either to permit provisionally all such candidates to appear in recruitment/selection in question who were eligible on 1st July of the year(s), in which recruitment did not take place, subject to final decision taken by competent authority under Rules 1992, as directed above, and/or to defer recruitment pursuant to the advertisements 2008 and 2013, till the aforesaid decision is taken and thereafter to abide by such decision."
10. Shri Nisheeth Yadav further makes submission that the aforesaid judgement was assailed by the Commission by preferring Special Appeal No.1823 of 2013 (Public Service Commission vs. Shri Prakash Srivastava and 8 others) connected with Special Appeal No.1824 of 2013 and a Division Bench of this Court had allowed these appeals on 6.12.2017 with following observations:-
"We have considered the submissions raised and what we find is that the learned Single Judge himself in paragraph no.25 of the impugned judgment has concluded that a prospective candidate can not compel the employer to fill up a vacancy nor does he have any vested rights during the process of recruitment in respect of the vacancy occurring in the recruitment year in question. In our opinion once the learned Single Judge had arrived at this conclusion which was correct, then without there being any grant of relaxation by the Competent Authority under the Statutory Rules of 1992, a direction for provisionally appearing in the selection process was not justified. To that extent the learned Single Judge exceeded in issuing the direction to the Public Service Commission or in the alternative calling upon the Commission to defer the recruitment process. We therefore do not find any justification for the directions as contained in paragraph no.37 of the impugned judgment.
In so far as the issue relating to consideration by the Competent Authority is concerned as per the 1992 Rules we do not find any error in the observations made by the learned Single Judge to that effect. Both the appeals are therefore partly allowed and the directions contained in paragraph no.37 of the impugned judgment of the learned Single Judge are set aside."
11. In the aforesaid circumstances, Shri Nisheeth Yadav submits that in the aforesaid judgement the Division Bench has observed that without there being any grant of relaxation by the Competent Authority under the statutory Rules of 1992, the direction for provisionally appearing in the selection process was found to be unjustified and accordingly, paragraph-37 of the judgement of learned Single Judge was set aside. He submits that once the advertisement in question has been made in the year 2018 and as per Rule 6 of Rules of 1972 for computation of age a candidate must have attained the minimum age and must not have attained the maximum age as has been prescribed from time to time on the first day of July of the calender year in which vacancies for direct recruitment are advertised by the Commission or any other recruiting authority. At no point of time the petitioner either has assailed the validity of the provisions contained in the Rules of 1972 or Rules of 1992 and straightaway the aforesaid relief has been asked for. The same is unsustainable in view of law laid down by this Court in the aforesaid judgements. No reprieve can be extended to the petitioner and the writ petition is liable to be dismissed.
12. The Court has proceeded to examine the record in question and is of the opinion that a candidate cannot compel the employer to fill up a vacancy, as and when it occurred, and/or complain that he has some kind of vested right for process of recruitment, having not conducted with respect to the vacancy in the year when it was available and he was also eligible in the matter of age but become overage due to inaction on the part of respondents in initiation of recruitment process or non holding of any recruitment by recruiting agency. The right of consideration would come in picture only when the vacancy is put for recruitment and the advertisement is published. The right of consideration commences when the recruitment process starts. The incumbent would obviously has right of consideration in accordance with the provisions as they are applicable when the advertisement is made and in accordance with conditions provided in the advertisement read with relevant rules. For the purpose of direct recruitment no person in open market has a right of consideration unless and until the vacancy is offered to be filled in accordance with law by the competent authority. As soon as a post fell vacant, it would not give or confer any right upon an individual, who fulfil other qualifications, to claim right of consideration for employment against such post for the reason that the employer can always keep a post unfilled. A perspective candidate cannot compel the employer to consider him for employment even though the post has not been made open for recruitment and selection. In Sanjay Kumar Pathak's case (supra) the Full Bench of this Court has held that unless permitted by the Rules, no relaxation can be claimed.
13. Once this is the factual situation, which is emerging from the record in question that the petitioner has crossed the maximum age as prescribed in the advertisement in question, then no relief can be extended in favour of the petitioner.
14. Consequently, the writ petition sans merit and is, accordingly, dismissed.
Order Date :- 29.3.2018 RKP