Dismissed

Jaivindra and 86 Others v. State of U.P. and 61 Others

Allahabad HC4 Apr 2018SPLAD/157/2018

Case brief

AI extract

What is this about?

This special appeal challenged the eligibility of candidates who passed High School with grace marks in Science/Mathematics for Technician Grade-II appointment. The court held such candidates were eligible per regulations, rejected the claim of vested rights for the excluded list, and dismissed the appeals.

What did the court decide?

The special appeals were dismissed; no direction was issued to adjust excluded candidates against future vacancies.

Jaivindra and 86 Others Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 39

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Case :- SPECIAL APPEAL DEFECTIVE No. - 157 of 2018

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Appellant :- Jaivindra And 86 Others Respondent :- State Of U.P. And 61 Others Counsel for Appellant :- Shiv Poojan Yadav,Sunil Kumar Srivastava,Shri Ashok Khare

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Counsel for Respondent :- C.S.C.,Abhisheka Srivastava,Ramendra Pratap Singh,Seemant Singh

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With

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Case :- SPECIAL APPEAL No. - 251 of 2018

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Appellant :- Vijay Kumar Rai And 7 Others Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Shiv Poojan Yadav,Sunil Kumar Srivastava,Ashok Khare

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Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Ramendra Pratap Singh

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With

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Case :- SPECIAL APPEAL No. - 252 of 2018

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Appellant :- Rakesh Kumar And Another Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Shiv Poojan Yadav,Shri Ashok Khare,Sunil Kumar Srivastava Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Ramendra Pratap Singh

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With

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Case :- SPECIAL APPEAL No. - 253 of 2018

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Appellant :- Sachchida Nand And 20 Others Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Sunil Kumar Srivastava,Shiv Poojan Yadav,Ashok Khare

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Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Ramendra Pratap Singh

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With

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Case :- SPECIAL APPEAL No. - 254 of 2018

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Appellant :- Krish Aryan And 35 Others Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Shiv Poojan Yadav,Shri Ashok Khare,Sunil Kumar Srivastava Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Ramendra Pratap Singh

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With

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Case :- SPECIAL APPEAL No. - 255 of 2018

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Appellant :- Jaivindra And 19 Others Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Shiv Poojan Yadav,Sunil Kumar Srivastava,Ashok Khare Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Ramendra Pratap Singh

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With

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Case :- SPECIAL APPEAL No. - 293 of 2018

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Appellant :- Shailendra Kumar Singh Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Pawankumar Dubey Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Rahul Pandey

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.

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Special Appeal Defective No. 157 of 2018 has been filed against the judgement and order dated 7 October 2017 by which a learned Judge of this Court has allowed Writ Petition No. 58918 of 2016 (Suneel Kumar And 46 Ors. Vs. State of U.P. And 13 Ors.) and a direction has been issued to redraw the select list dated 9 December 2016 issued by the Secretary, Electricity Service Commission, Uttar Pradesh Power Corporation¹ , for making appointments on the post of Technician Grade-II pursuant to the advertisement dated 3 May 2016. A further direction has been issued to the respondents to consider the claim of the petitioners on the basis of the marks obtained by them in the written examination conducted by the Commission and if found eligible for inclusion in the select list, then to modify the select list and take consequential action as per law.

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The remaining Special Appeal Nos. 251 of 2018, 252 of 2018, 253 of 2018, 254 of 2018, 255 of 2018 and 293 of 2018 have been filed against the judgement and order dated 8 March 2018 by which a learned Judge of this Court has dismissed the writ petitions that had been filed for restraining the respondents from taking any action against the petitioners on the basis of

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1 The Commission

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revised select list dated 9 December 2016 issued by the Secretary of the Commission and not to interfere in the working of the petitioners as Technician Grade-II-Apprentice (Electrical). The amended relief claimed is for quashing the order of Chief Engineer (Hydel) dated 13 December 2017 by which the services of the petitioners have been terminated because their names do not appear in the redrawn select list dated 12 December 2017.

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The record reveals that an advertisement dated 3 May 2016 was issued for appointment of 623 Technician Grade-II (Trainee) Electrical. The candidates had to first appear in a written examination and those found successful in the written examination were required to report for document verification on 3 and 4 November 2016. The candidature of all such candidates who had passed the High School Examination conducted by the Board of High School and Intermediate Education² with grace marks, was rejected and the select list was declared on 9 December 2016. These candidates, who had passed the High School Examination with grace marks, filed writ petitions to challenge the select list, as according to them they were eligible since they had passed the High School Examination with Science and Mathematics as subjects. These writ petitions came to be allowed by a learned Judge of this Court on 7 October 2017 and to implement the judgement rendered on 7 October 2017, the Commission prepared a fresh select list which was declared on 12 December 2017. The candidates who were earlier found not eligible because they had passed the High School Examination with grace marks were considered eligible. The preparation of this fresh select list resulted in exclusion of 97 candidates whose names were earlier included in the select list dated 9 December 2016 because they were lower in merit. The Chief Engineer (Hydel) thereafter passed an order dated 31 December 2017 cancelling the selection of these 97 candidates. As a result of this exercise, the candidates who were excluded from the fresh select list dated 12 December 2017 filed writ petitions in this Court which were ultimately dismissed by judgement and order dated 8 March 2018. All these aforesaid Special Appeals except Special Appeal (Defective) No. 157 of 2018 have been filed to assail

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2 The Board

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the aforesaid judgement and order dated 8 March 2018.

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The issue that arises for consideration in Special Appeal (Defective) No. 157 of 2018 is as to whether candidates who passed the High School Examination with grace marks in either Science or Mathematics subjects can be considered eligible for appointment on the post of Technician Grade-II.

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The academic requirement as contained in Parichalkiye Karmchari Varg Seva Viniymawali, 1995³ that have been framed under Section 79 (c) read with Section 79 (k) of the Electricity (Supply) Act, 1948 is as follows:

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“Ekk/;fed f'k{kk ijh"kn m0iz0 dh gkbZ Ldwy ;k led{k ijh{kk foKku ,oa xf.kr fo"k; ds lkFk mRrh.kZ rFkk bysDVªhf'k;u VªsM esa vf[ky Hkkjrh;@jkT; O;kolkf;d izek.k&i= 1&2 o"kZ dk dk;Z dk vuqHkoA”

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The relevant clause of the advertisement dated 3 May 2016 is as follows:

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“2- vfuok;Z 'kSf{kd vgZrk;s%&

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vkosnu ds le; vH;FkhZ ds ikl fuEu 'kSf{kd vgZrk dk gksuk vfuok;Z gSA ek/;fed f'k{kk ifj"kn] m0iz0 dh gkbZLdwy ;k led{k ijh{kk] foKku ,oa xf.kr fo"k;ksa ds lkFk mRrh.kZ gksuk vko';d rFkk bysDVªhf'k;u@ bysfDVªdy@bysfDVªdy ¼dkS'ky fodkl ds vUrxZr fo|qr forj.k½ VªsM esa vf[ky Hkkjrh;@jkT; O;kolkf;d izek.k&i=A

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3- vk;q% fnuakd 01&07&2015 dks U;wure 18 o"kZ ,oa vf/kdre 40 o"kZA”

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A bare perusal of the relevant clause of the Regulations indicates that the educational requirement is that a candidate should have passed High School Examination conducted by the Board or an equivalent Examination with Science and Mathematics as subjects. This requirement was also contained in the advertisement.

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Thus, a candidate who has passed the High School Examination conducted by the Board with Science and Mathematics would possess the essential required qualification.

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3 The Regulations

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While declaring the first select list on 9 December 2016, the Commission excluded all such candidates from the zone of consideration who had passed the High School Examination but with grace marks in either Science or Mathematics subjects. The learned Judge found this decision of the Commission to be contrary to the provisions of the Regulations and, therefore, directed the Commission to prepare a fresh select list.

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Sri Ashok Khare, learned Senior Counsel appearing for the appellants has submitted that the Commission correctly took a decision to exclude such candidates. It is his submission that a candidate may have passed the High School Examination but such a candidate should also have secured pass marks both in Science and Mathematics subjects. His submission is that the award of grace marks does not mean that the candidate has passed Science and Mathematics subjects.

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Sri R.K. Ojha, learned Senior Counsel appearing for the Commission and Sri R.P. Singh, learned counsel appearing for the U.P. Power Corporation have, however, submitted that the Regulations provide that a candidate, who has passed the High School Examination with Science and Mathematics subjects would be eligible. Therefore, a candidate, who has been declared passed even after having been awarded grace marks in either Science or Mathematics subjects cannot be excluded.

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We have considered the submissions advanced by learned counsel for the parties.

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As noted above, the Regulations provide that a candidate, who has passed the High School Examination with Science and Mathematics as subjects, is eligible for being considered for appointment on the post of Technician Grade-II. It is, therefore, not possible to draw an artificial distinction by excluding those candidates who have passed the High School Examination with grace marks. If that was the position, then the Regulations would have been differently framed. It would have excluded such candidates who had passed the High School Examination with grace marks either in Science or Mathematics subjects. To repeat, candidates who have passed the

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High School Examination with Science and Mathematics as subjects would be considered eligible. This is what has also been prescribed under the advertisement. It is, therefore, not possible for the Court to accept the contention of Sri Ashok Khare, leaned Senior Counsel appearing for the appellants that for being considered eligible for appointment, a candidate has to secure pass marks in both Science and Mathematics subjects. Such an interpretation cannot be inferred from the provisions of the Regulations.

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In our opinion, the learned Judge was correct in concluding that such candidates, who had passed the High School Examination conducted by the Board with Science and Mathematics subjects, would be considered eligible.

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It is also the submission of Sri Ashok Khare, learned Senior Counsel for the appellants that though the first select list had been prepared on 9 December 2016 and writ petitions were filed for quashing the select list dated 9 December 2016, but none of the selected candidates had initially been impleaded as respondents and though subsequently respondent Nos. 5 to 14 had been impleaded but the writ petition was decided without hearing these candidates.

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It has been pointed out by learned counsel for the respondents that notices had been issued to these candidates through the counsel appearing for the Commission and it was not necessary to implead all the selected candidates as some of them were impleaded in a representative capacity. It is also his submission that such persons had filed writ petitions to assail the order dated 31 December 2017 by which their appointments had been cancelled.

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In our opinion, the Regulations were required to be interpreted and we have heard learned counsel appearing for all the candidates whose appointments have been cancelled pursuant to the issuance of the fresh select list.

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Sri Ashok Khare, learned Senior Counsel appearing for the appellants then submitted that in any view of the matter, even if a fresh list was to be prepared by including in the zone of consideration such candidates who have

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passed the High School Examination with grace marks in Science and Mathematics subjects then too the interest of 97 candidates who stood excluded after the preparation of the fresh select list on 12 December 2017 should be protected by adjusting them against the vacancies which were subsequently advertised on 9 October 2016 as this advertisement included posts of Technician Grade-II in the U.P. Power Corporation Ltd. In this connection learned Senior Counsel pointed out that though as many as 1599 posts have been advertised but only 128 appointments could be made and, therefore, these 97 candidates can have been adjusted against the remaining vacant posts. Learned Senior Counsel also pointed out that a fresh advertisement has also been issued on 17 February 2018 for 2115 Posts of Technician Grade-II in the U.P. Power Corporation Ltd. which includes the vacancies that have remained unfilled under the advertisement dated 9 October, 2016. In support of this submission learned Senior Counsel has placed reliance upon decisions of the Supreme Court and this Court to which reference shall be made at the appropriate stage.

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Learned counsel appearing for the respondents have, however, contended that for good and valid reasons this submission has been repelled by the learned Judge. Learned counsel for the respondents have also placed reliance upon decisions of the Supreme Court to which reference has been made in the impugned judgement.

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The issue that arises for consideration is whether the Commission can be directed to adjust these 97 candidates whose names have been excluded in the select list dated 12 December 2017 against future vacancies advertised on 9 October 2016.

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What needs to be noted is that 623 posts of Technician Grade-II had been advertised in the advertisement dated 3 May 2016 issued by the Commission. The select list was prepared on 9 December 2016 containing the names of 623 candidates. A fresh select list was directed to be drawn up because the Commission had wrongly rejected the candidature of such persons who had passed the High School Examination with grace marks in Science or

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Mathematics subjects. Only 623 appointments on the post of Technician Grade-II were required to be made and the fresh list also contains the names of 623 candidates. The candidature of such persons, who had passed the High School Examination with grace marks in Science or Mathematics subjects was considered and ultimately 97 of the earlier selected candidates stood excluded in the final select list dated 12 December 2017. This final list dated 12 December 2017 also contains names of 623 candidates. All the posts have, therefore, been filled up and there exists no vacancy.

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It is in such a situation that the Court has to examine whether these 97 persons who have been excluded in the select list dated 12 December 2017 can be adjusted against future vacancies even though they have secured lesser number of marks than the last selected candidate, who has been appointed.

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We have no hesitation in holding that these 97 candidates do not have a vested right to be appointed and cannot seek a direction from a Court that they should be continued in service despite having secured lesser number of marks than the last selected candidate. Vacancies may have arisen subsequently and an advertisement may have been issued, but this does not mean that these 97 candidates have to be adjusted against these future vacancies. The Supreme Court has time and again observed that a Department cannot appoint more persons than the number of posts advertised. The appellants had a right to be considered for appointment against the 623 vacancies which had been advertised. They have been considered against these 623 posts but they have obtained lesser number of marks than the last selected candidate. Their names were included in the first select list because the candidates, who had obtained higher marks than the appellants, were considered ineligible for the reason that they had passed the High School Examination with grace marks in Science or Mathematics subjects. The selection has to be made on the basis of marks obtained in the written examination and admittedly the appellants have obtained lesser marks than the last candidate appointed in the final list. Thus, it will not be prudent on the part of the Court to permit these 97 persons to continue in service merely because they have worked for a period ranging between six months to one year.

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Thus, for all the reasons stated above, we do not find any good reason to interfere with the impugned judgement.

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The Special Appeals are dismissed.

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Order Date :- 4.4.2018 Sandeep

(Dilip Gupta,J.)

(Neeraj Tiwari,J.)

Court No. - 39

Case :- SPECIAL APPEAL DEFECTIVE No. - 157 of 2018

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Appellant :- Jaivindra And 86 Others Respondent :- State Of U.P. And 61 Others Counsel for Appellant :- Shiv Poojan Yadav,Sunil Kumar Srivastava,Shri Ashok Khare Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Ramendra Pratap Singh,Seemant Singh

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.

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Ref: Civil Misc. Delay Condonation Application No. 2 of 2018

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Heard learned counsel for the parties.

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In view of the averments made in the affidavit filed in support of the application under Section 5 of the Limitation Act, we are satisfied that the applicants-respondents were prevented by sufficient cause from preferring the Special Appeal within the period of limitation.

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The application is, accordingly, allowed and the delay in filing the Appeal is condoned.

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Civil Misc. (For Leave to Appeal) Application No. 1 of 2018

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Heard learned counsel for the parties.

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The application is allowed and leave is granted to maintain the Special Appeal.

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Order Date :- 4.4.2018 Sandeep

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(Dilip Gupta,J.)

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(Neeraj Tiwari,J.)

Jaivindra and 86 Others v. State of U.P. and 61 Others

Case brief

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Jaivindra and 86 Others v. State of U.P. and 61 Others

Case brief

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