Allowed

Bharkha Sharma v. State of U.P. and 3 Others

Allahabad HC29 May 2019WRIA/9072/2019

Case brief

AI extract

What is this about?

This single judge order allowed a writ petition on similar terms to W.A. 4847 of 2019. The Court directed the Public Service Commission to recommend the petitioners for appointment after ordering that a grace period granted for registration must be prospective, not retrospective.

What did the court decide?

The Secretary, Public Service Commission, U.P. is directed to recommend the name of the petitioner for appointment as Staff Nurse within three weeks.

Bharkha Sharma Vs State of U.P. and 3 Others — Service and Employment | Allahabad HC (2019)

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Court No. - 6

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Case :- WRIT - A No. - 9072 of 2019

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Petitioner :- Bharkha Sharma Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.,M.N. Singh

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Hon'ble Yashwant Varma,J.

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Heard learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.

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Learned counsel for the parties are ad idem that this petition would merit disposal in terms similar to those made by a learned Judge deciding Writ -A No. 4847 of 2019¹ . The said petition was disposed of as under:

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“Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Shantanu Khare, learned counsels for the petitioner, Sri M.N. Singh, learned counsel appearing for the fifth respondent-Public Service Commission, Allahabad and learned standing counsel appearing for the State-respondents.

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This Court on 25 April 2019 passed the following order:

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"Learned Standing Counsel appearing for the fifth respondent submits that the U.P. Public Service Commission (for short 'Commission') initiated process of selection in terms of U.P. Subordinate Nursing (Non Gazetted) Service Rules, 1979 as amended by U.P. Subordinate Nursing (Non Gazetted) Service (4th Amendment) Rules, 2016. The fifth respondent, Commission, vide Advertisement dated 12 January 2017, invited applications for Staff Nurse (Female) and Staff Nurse (Male) Examination-2017. The petitioners being fully qualified applied thereunder came to be selected. The result was notified on 18 August 2018. The candidature of the petitioners was not recommended by the Commission for the reason that the petitioners were not registered with the Nursing and Midwifery Council on the cut off date fixed by the Commission.

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In the counter affidavit filed today, it has been stated that the decision was taken by the Commission on 2 February 2019 providing grace period of 45 days to the selected candidates to obtain registration with the Council and the cut off date given to the petitioners was 15 October 2018

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1 Jyoti And 10 Others Vs. State of U.P. And 4 Others

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i.e. an ante date.

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It is urged by learned Senior counsel for the petitioners that the decision was taken in February 2019 by the Commission providing 45 days grace period to enable the selected candidates to register with the Council, but the cut off date was fixed retrospectively i.e. 15 October 2018, depriving the petitioners reasonable opportunity of furnishing the registration certificate.

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It is not being disputed by learned counsel for the Commission that the petitioners have got themselves registered, but their registration is beyond cut off date fixed by the Commission.

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On specific query, Sri M.N. Singh, learned counsel appearing for the Commission, admits that the decision of the Commission was not taken prior to 2 February 2019 nor did the Commission notify the date for obtaining registration certificate from the Council on the date of declaration of result i.e. 18 August 2018.

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Sri Singh, prays for and is granted a week's time to place on record the undertakings, if any, furnished by the candidates."

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Sri M.N. Singh, learned counsel appearing for the fifth respondent has placed on record the undertaking furnished by the petitioners on 19 September 2018. It is not being disputed that despite undertakings furnished by the petitioners in September 2018, to provide certificate of the registration with the Council within 21 days, the fifth respondent/Public Service Commission had thereafter taken a decision on 2 February 2019 granting 45 days further time to the candidates who qualified the examination to obtain registration certificate, however, the decision was made retrospective requiring the candidates to furnish the certificate on or before the 15 October 2018. In other words, the extention of time granted to the petitioners was made nonest by fixing a retrospective date, thereby, depriving the selected candidates an opportunity to meet the shortfall of obtaining registration from the Council within the stipulated 45 days.

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It is urged by learned Senior Counsel that the time of 45 days should run from the date of decision. The stand of the Commission is arbitrary and tantamounts to deprive the duly selected candidates, their right of being considered for appointment.

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On specific query, learned counsel appearing for the fifth respondent is unable to support the decision of the Commission for the reason that the decision was taken in February 2019, which was made retrospective in its application. It is not in dispute that the petitioners have obtained registration certificate from the Council prior to the decision of the Commission i.e. 2 February 2019.

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It is open to the fifth respondent/Commission to set in motion the selection process and fix a cut of date relating to the eligibility conditions of the candidates. The Commission does have the jurisdiction and/or authority to alter the cut of date in respect of the selected candidates relating to obtaining registration from the Council. The Commission in the first instance permitted the selected

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candidates/petitioners to get themselves registered with the Council by obtaining an undertaking to that effect by giving them 21 days, which was subsequently enhanced by the Commission in February 2019 with retrospective effect of which the petitioners had no knowledge or opportunity to act upon. Once the Commission has taken a decision to give further time to the selected candidates it has to be duly notified bringing it to the notice of the selected candidates and must be made prospective.

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Having due regard to the facts and circumstances of the case, the writ petition deserves to be allowed.

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Order accordingly.

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The fifth respondent-Secretary, Public Service Commission, U.P. Allahabad, is directed to recommend the name of the petitioners for appointment as Staff Nurse to the first respondent-Secretary, Medical & Health Services, Lucknow, pursuant to the advertisement dated 12 January 2017, within three weeks from date.

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No cost.”

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Accordingly and with the consent of parties, the petition stands

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disposed of on similar terms.

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Order Date :- 29.5.2019 Arun K. Singh

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(Yashwant Varma, J.)

Bharkha Sharma v. State of U.P. and 3 Others

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Bharkha Sharma v. State of U.P. and 3 Others

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