Allowed

Kamal Nayan Singh and 12 Others v. State of U.P. and 3 Others

Allahabad HC5 Dec 2022WRIA/5390/2022

Case brief

AI extract

What is this about?

Selection for 69 Group C Librarian posts in Government Polytechnics was completed with a select list dated 10.12.2021, but the State sought to cancel the requisition after the AICTE upgraded the post and the State framed new service rules. The court held the amended norms were prospective and could not be applied to the ongoing selection without a corrigendum, and allowed the petition.

What did the court decide?

Respondents directed to grant appointments pursuant to the UPSSSC result dated 10.12.2021 within one month; if the State takes another view, it must decide within the same time, rights of parties to a

Kamal Nayan Singh and 12 Others Vs State of U.P… — Education and Admissions | Allahabad HC (2022)

A.F.R.

Court No. - 36

Case :- WRIT - A No. - 5390 of 2022

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Petitioner :- Kamal Nayan Singh And 12 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shantanu Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,M.N. Singh,Nisheeth Yadav,Siddharth Singhal

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Ashok Khare, learned Senior Advocate, assisted by Ms. Neha Roy Chaudhary, learned counsel for the petitioners; Sri Siddharth Singhal, learned counsel for the Uttar Pradesh Subordinate Services Selection Commission/respondent no.3; Sri Nisheeth Yadav, learned counsel for the Uttar Pradesh Public Service Commission/respondent no.4 and, Sri Gopal Chandra Saxena, learned Standing Counsel for the State-respondents.

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Present writ petition has been filed primarily to seek a direction upon respondent no.2 – Director, Technical Education, Uttar Pradesh to grant appointment to the petitioners (13), pursuant to the select list 10.12.2021 published by the Uttar Pradesh Subordinate Services Selection Commission (hereinafter referred to as ‘UPSSSC’), pursuant to Advertisement No. 22-Examination/2016 (hereinafter referred to as the ‘Advertisement’). The other prayer made in the writ petition against Advertisement No. A-7/E-1/2021 dated 15.09.2021, is largely consequential. The petitioners seek protection of their rights under select list dated 10.12.2021 published pursuant to the Advertisement - qua 69 posts of Librarian, Grade C, advertised thereunder.

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Earlier, the UPSSSC published the Advertisement. Amongst others, 69 posts of Librarian, Grade C, at Government Polytechnics, in Grade Pay 2800/-, were advertised (hereinafter referred to as the

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advertised posts). The prescribed qualification for appointment on those posts (as then existed), was graduation with diploma in Library Science. The cut-off date prescribed under the above advertisement was 19.12.2016. The petitioners had applied thereunder.

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While that selection process was underway, the All-India Council for Technical Education ('AICTE' in short), came out with “All India Council for Technical Education Pay Scales, Service Conditions and Minimum Qualifications for Appointment of Teachers and Other Academic Staff such as Library, Physical Education and Training & Placement Personnel in Technical Institutions and Measures for the Maintenance of Standards in Technical Education – (Degree) Regulation, 2019”, vide Notification dated 01.03.2019 (hereinafter referred to as the 'Notification'), proposing to amend, the eligibility conditions, pay-band as also the nomenclature etc. of advertised posts, amongst others pertaining to Librarian, applied for by the petitioners. Mainly, that post was proposed to be upgraded from Group C to Group B, from Grade Pay Rs. 2800/- to pay scale Rs. 56100/-. At the same time, under Clause 1.4 of the Notification, it was provided as under:

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“ 1.4 Effective date of application of Service Conditions

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(a) All other service conditions including Qualifications, Experience, Recruitment, Promotions etc. shall come into force with effect from the date of this Gazette Notification.

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b) The Qualifications, Experience, Recruitment and Promotions etc. during 01-01-2016 till the issue of this Gazette Notification shall be governed by All India Council for Technical Education Pay Scales, Service Conditions and Qualifications for the Teachers and other Academic Staff in Technical Institutions (Diploma) Regulation, 2010 dated 5th March 2010 and subsequent notifications issued from time to time.

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c) Those who are eligible for promotions after the date of publication of this gazette, shall have to meet the necessary conditions such as additional qualification, undergoing industrial training, pedagogical training, faculty induction program, publishing research papers etc. However, these requirements shall be permitted to be fulfilled till 31st July, 2022 so as to enable faculty members in equipping them for

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requisite mandatory requirements of this gazette to avail the benefit of promotion retrospectively from the date of eligibility.

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d) It may be noted that no further extension would be given beyond 31st July, 2022 and those who do not meet the essential criteria despite the above grace period, shall lose an opportunity for getting promotion retrospectively. However, they will be eligible for promotion from the date they meet these criteria thereafter.

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e) In cases, wherein interviews are already conducted either for direct recruitment or for promotions but candidates did not join, such candidates may be allowed to join. Their further up-gradation will be governed by this notification.

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f) In cases, where advertisement was published, applications invited but interviews have not been conducted till publication of this notification, the institutes/employers are required to publish corrigendum and processing of applications must be done in accordance with the provisions given in this notification.”

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Thereafter, the State Government formulated the “Uttar Pradesh Technical Education (Teaching) Service Rules, 2021” (hereinafter referred to as the 'UP Rules'), in exercise of powers vested under Article 309 of the Constitution of India. Those Rules were published and thus came into force on 09.06.2021. Under Part III of the UP Rules, Rule 5 (Category – VI) - for appointment on the post of Librarian at Government Polytechnics etc., the source of recruitment is as under:

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“ 100% Direct recruitment by Commission. All the conditions of eligibility and academic qualifications laid down by the AICTE shall be applicable for direct recruitment of Librarian.”

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Under Part – IV of Rule 8 of the UP Rules, the qualification for recruitments were specified as those mentioned in Appendix-II to the UP Rules. Under Clause 6 of Appendix-II thereto, the following eligibility conditions came to be prescribed for appointment on the post of Librarian at Government Polytechnics etc.:

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“1. Master's Degree in Library Science with at least First Class or equivalent and a consistently good academic record, having the knowledge of computer.

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2. Qualifying in the National Level Test conducted for the purpose by UGC or other equivalent test as approved by the UGC.

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For Diploma Level Institutions:

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Librarians who have been recruited between 01-01-1996 and 15-032000 in the Diploma level Institutions, with the existing recruitment rules to be considered for up-gradation under CAS in the next higher grade of Senior Scale only. However, for further upward movement under CAS, they are required to acquire minimum educational qualification in a manner similar to that as laid down in AICTE notification 2000 (Degree) and in subsequent Clarifications/Notifications.

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(b) For Degree level Institutions: same as above.”

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Similarly, under Rule 3(i) of the UP Rules, service was defined as service falling under group “A” and “B” posts in the Directorate of Technical Education, Government Polytechnics etc. Again, under Appendix-I Category – VI thereto, the pay-scale for the post of Librarian at Government Polytechnics etc. was described as Entry Pay: Rs. 56,100.

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While the Notification issued by the AICTE came in force on 01.03.2019 and the UP Rules also came to be published and thus enforced w.e.f. 09.06.2021 yet, the recruitment process undertaken for the advertised posts continued, under the unamended law, in terms of the Advertisement and the pre-existing norms prescribed by the AICTE (of year 2010). Thus, written examination was conducted by the UPSSSC on 28.07.2019; its result declared on 13.10.2020; interviews held in December 2020 and, select list published on 10.12.2021.

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By means of the counter affidavit filed by the State of U.P., it has been asserted, on 18.01.2018 the Secretary Technical Education, Government of Uttar Pradesh wrote to the Secretary, UPPSC (not UPSSSC), to not conduct any further examinations till enforcement of new Rules (that may have become necessary to the Government), in view of the AICTE Notification dated 01.03.2019. At the same time, it does appear, the Director, Technical Education wrote to the Secretary, UPSSSC on 16.02.2018, to place in abeyance the ongoing selection.

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However, it may be noted, at that stage, the AICTE had yet not issued Notification dated 01.03.2019.

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Plainly, the letter dated 16.02.2018 appears to have been issued in anticipation of change of law, likely to be made by the AICTE. Nevertheless, it is not in dispute, the earlier stipulations made by the AICTE (of 2010), had neither ceased to operate nor had been amended or modified, at any earlier point in time. After declaration of the result (of the written examination), by the UPSSSC on 10.10.2021, the Director, Technical Education wrote to the Secretary, UPSSSC on 23.10.2021 to cancel the requisition for appointment on 69 Group – C posts of Librarian at Government Polytechnics etc. This communication though not annexed to the counter affidavit, has been relied by the learned Standing Counsel, at the time of hearing. The existence of that communication is also admitted to the UPSSSC, in the counter affidavit filed by that respondent.

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In such facts, it has been strenuously urged by learned Senior Counsel appearing for the petitioners, the selection process undertaken was not derailed or concluded as incomplete, upon issuance of the Notification and/or enforcement of the UP Rules that changed the law pertaining to selection on such posts. That principle is stated to be time tested and consistently applied by Courts. The law that existed on the date of issuance of the Advertisement, was the only law applicable to the selection process. There is no doubt - the advertisement issued was wholly consistent to the law that then existed. To that extent, reliance has been placed on a recent decision of the Supreme Court in State of Himachal Pradesh & Ors. Vs. Raj Kumar & Ors. (Civil Appeal No. 9746 of 2011) , decided on 20.05.2022 (paragraph nos. 13.1 and 13.2). Second, it has been urged, the reasoning given in the counter affidavit citing dying cadre of

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Librarian, Group C, posts, is non-existent, in law. Relying on yet another decision of the Supreme Court in Ramjit Singh Kardam & Ors. Vs. Sanjeev Kumar & Ors., (2020) 20 SCC 209 , it has been submitted, even if the old cadre (under which posts were advertised), were a dying cadre yet, by virtue of prior issuance of the Advertisement, the selection process once underway had to be taken to its logical end. Posts upgradation etc. could be applied to such posts, at the appropriate stage.

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On the other hand, learned Standing Counsel would submit, once the AICTE had issued Notification dated 01.03.2019 and upgraded the post advertised (Librarian) to a Group – B post while simultaneously making quantitative change in the prescribed qualifications as also pay condition etc., of the upgraded posts, it became impossible for the State to complete the selection process for the advertised posts. It therefore required the UPSSSC to withdraw the requisition made and, to disband the selection. That communication having been made much earlier, the UPSSSC should have aborted the selection process, then. In any case, mere taking forward the selection process and declaration of the result did not create any right in favour of the petitioners as may allow a writ to be issued - to grant them appointment. Reliance has been placed on a coordinate bench decision of this Court in Gyan Prakash Chaubey Vs. State of U.P. & Ors. , (Writ – A No. 4570 of 2022, decided on 25.07.2022). Relying on that order, learned Standing Counsel would contend, with respect to the same recruitment process and for the same posts of Librarian, Group C, that writ petition was dismissed, occasioned by the fact - the requisition for the advertised posts was required to be withdrawn. He has also relied on a reference order made by three judge bench of the Supreme Court in Tej Prakash Pathak & Ors. Vs. Rajasthan High Court & Ors. (Civil Appeal

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No. 2634 of 2013) , dated 20.03.2013. That reference is stated to be pending. It has been further stated, the same is likely to be decided at an early date. Therefore, it was permissible to alter the selection process, upon change made to the law by the Notification and the UP Rules. Referring to the decision in State of Himachal Pradesh & Ors. Vs. Raj Kumar & Ors. (supra) , it has been further submitted, the ratio in Y.V. Rangaiah Vs. J. Sreenivasa Rao, (1983) 3 SCC 284 , has been declared - not good law. The law as it existed on the date of vacancy having arisen, is not the law to be enforced for the purpose of making fresh recruitment. In the present case, the law stood changed on 01.03.2019 itself. Referring to the Notification, it has been submitted, no rights ever vested in the petitioners to seek appointment under the pre-existing/unamended law. In any case, upon enforcement of the UP Rules, the recruitment must be conducted and completed in terms of those Rules. Last, learned Standing Counsel has relied upon the decision of the Supreme Court in Shankarsan Dash Vs Union of India, (1991) 3 SCC 47 , to submit successful candidates do not acquire an indefeasible right to appointment. It remains within the domain of the competent authority to cancel the requisition and/or the selection process as has been done in the present case.

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Learned counsel for the UPSSSC would submit, the Commission had no jurisdiction or authority to withdraw the requisition. Once the requisition had been received by the Commission, it was under a statutory duty and obligation to conduct the examination and publish its results. The Commission was not obligated to do anything further.

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Sri Nisheeth Yadav, learned counsel for the UPPSC would submit, the UPPSC has yet not come into the picture, since that expert body has not taken any steps under the fresh/second advertisement i.e.

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Advertisement No. A-7/E-1/2021.

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Having heard learned counsel for the parties and having perused the record, a fundamental aspect that may be first addressed is - whether the requisition made by the State Government and acted upon by the UPSSSC upon issuance of the advertisement dated 26.11.2016 developed an incurable defect as may not have allowed the UPSSSC to continue or complete the process of selection undertaken by it, either upon issuance of Notification dated 01.03.2019 (by the AICTE) or upon enforcement of the UP Rules on 09.06.2021.

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There may be no quarrel to the principle invoked by learned Standing Counsel on the strength of the decision of the Supreme Court in State of Himachal Pradesh & Ors. Vs. Raj Kumar & Ors. (supra) - the law on the date of occurrence of vacancy is not the law on which fresh selection may be made. At the same time, any and every change made to the law during an ongoing selection process does not automatically attach or govern that selection process, unless the change/amendment to the law is specifically made with retrospective effect. That principle is clearly laid down by the Supreme Court in State of Bihar Vs. Mithilesh Kumar (2010) 13 SCC 467 . There, the post advertised was Assistant Instructor, to train persons with different abilities. Immediately upon interview being held, an administrative decision was taken to engage professionally trained NGOs/institutions to impart such training, instead of hiring Assistant Instructors. Accordingly (as in the present case), despite a request letter sent to the Bihar Public Service Commission, the latter recommended to engage Mithilesh Kumar. Upon rejection of his claim, he approached the High Court in writ jurisdiction. That writ petition was allowed. While affirming the decision of the High Court, the Supreme Court reasoned - during an ongoing selection process, amendment made to the selection norms would not apply to it, unless

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such amendment is specifically made with retrospective effect. Thus, it was discussed and reasoned as below:

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“ 15. Reference was also made by the learned counsel to the decision of this Court in N.T. Devin Katti v. Karnataka Public Service Commission [(1990) 3 SCC 157 : 1990 SCC (L&S) 446 : (1990) 14 ATC 688] , wherein it was reiterated that where selection process was initiated by issuing advertisement inviting applications, selection normally should be regulated by the rules and orders then prevailing. It was also emphasised that service jurisprudence provides that normally amendments effected during the pendency of a selection process operate prospectively, unless indicated to the contrary by express language or by necessary implication.

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16. The learned counsel lastly referred to the decision of this Court in A.P. Public Service Commission v. B. Swapna [(2005) 4 SCC 154 : 2005 SCC (L&S) 452] , wherein while considering the norms for recruitment/selection for filling up vacancies which had been initially advertised, this Court was of the view that such norms of selection cannot be altered after commencement of the selection process and rules prescribing qualification, which were amended during the continuation of the selection process, have prospective operation unless something to the contrary is indicated expressly or by necessary implication.

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17. ...

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18. We have carefully considered the submissions made on behalf of the parties and we are not impressed with the stand taken by the petitioner State of Bihar, that the Bihar Public Service Commission ought not to have recommended the name of the respondent for appointment after the Assistant Director, Social Welfare had requested the Commission not to recommend any further names in view of the decision taken by the State to have disabled persons trained through professionally established NGOs/institutions in place of Instructors/Assistant Instructors for which advertisements had already been issued by the Commission.

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19. Both the learned Single Judge as also the Division Bench rightly held that the change in the norms of recruitment could be applied prospectively and could not affect those who had been selected for being recommended for appointment after following the norms as were in place at the time when the selection process was commenced. The respondent had been selected for recommendation to be appointed as Assistant Instructor in accordance with the existing norms. Before he could be appointed or even considered for appointment, the norms of recruitment were altered to the prejudice of the respondent. The question is whether those altered norms will apply to the respondent.

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20. The decisions which have been cited on behalf of the respondent have clearly explained the law with regard to the applicability of the rules which are amended and/or altered during

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the selection process. They all say in one voice that the norms or rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect.

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Though the Regulation framed by the AICTE & published vide Notification dated 01.03.2019 are statutory law and therefore enforceable as such, yet neither the AICTE nor the State Government seek retrospective enforcement of that law. Rather, the State Government considered the same and framed its own Rules i.e., UP Rules. Those were published on 09.06.2021 and enforced prospectively.

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More fundamentally, if that effort (by the State Government) be ignored, it can never be ignored - under Clause 1.4 (e) & (f) of the Notification, the AICTE itself did not enforce that law, retrospectively. Rather, under Clause 1.4 (e), it first specifically protected all pending selections that had crossed the stage of interview. Those selections were completely insulated from the effects of the change to the law made by the Notification. In Assam Public Service Commission v. Pranjal Kumar Sarma, (2020) 20 SCC 680 , a similar clause 12.2 (in the Assam Public Service Commission (Conduct of Business) Procedure, 2019, reads as below :

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“12.2. … and any proceeding in relation to interviews, selections or competitive examination pending on the date of commencement of these Procedures may be continued and completed in accordance with the provisions of the Rules in force prior to such commencement.”

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It was interpreted by the Supreme Court, as protecting ongoing selection. It was reasoned:

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“17. One must also be conscious of Savings Clause 12.2 incorporated in the 2019 Procedure which makes it abundantly clear that the interviews/selection or competitive examinations pending on the date of commencement of the 2019 Procedure should be continued and completed, in accordance with the 2010 Rules.”

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Second, under Clause 1.4 (f), in case/s where interview stage had not been conducted, the AICTE directed all institutes/employers to first 'publish corrigendum' and process the pending applications (for selection), according to the amended law. Thus, a conditional enforcement of the amended/changed law was contemplated by the AICTE. Only, after the State Government published a ‘corrigendum’ to the Advertisement, the changed law would become applicable to the pending selection process, for the advertised posts and not otherwise.

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Therefore, even to the present case, though selection process was pending before the stage of interview, the changed eligibility prescribed under the Notification could not be enforced on its own. Before it could be enforced and applied to the impugned selection process (already underway), the employer i.e., the State Government was required to decide to apply it to the pending selection process and publish its decision through a corrigendum advertisement, to that effect. That was never done. In absence of publication of the corrigendum by the State Government, the pre-condition prescribed to be fulfilled to apply the amended law (under the Notification), to pending/impugned selection process was never fulfilled. Hence, Regulation 1.4 (f) did not become enforceable to the impugned selection process.

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Mere enforcement of the UP Rules also had no adverse effect on the impugned selection process. Those being statutory Rules, they contain no recital or intent to enforce them retrospectively. Plainly, they are wholly prospective.

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Though the Writ Court may not enforce equity against the plain letter of statutory law, yet it may always recognize equity in that statutory law. Here, while bringing the amendment (to its norms),

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through the Notification, the AICTE acted mindful of ongoing selection processes, at various stages of completion. Being conscious of that, it first completely protected such selection process where stage of interview may have been crossed. Second, it allowed for other (less complete) selection process to be altered (in terms of the law amended by the Notification), subject to condition of such alteration being first adopted by the concerned ‘institutes/employers’ and decimation of that information, through publication of corrigendum.

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Thus, the Notification did not treat any ongoing selection process (under the unamended law), inherently or fundamentally or incurably defective. Rather, it sought to protect those selection processes, as noted above. That equitable principle, legislatively incorporated into the Notification, must be given full effect. Its consequences cannot be avoided or lightly brushed away. Consequently, in absence of any inherent defect in the law (as per the amended law), shown to exist in the selection process, the Court may not rush to recognize such defect to treat annulled, the selection process though, the State Government has not taken any step to apply that amended law to the impugned selection process. To that extent, the equitable principle contained in clause 1.4(f) of the Notification is being recognized in favour of the petitioners.

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The principle relied upon by the learned Standing Counsel on the strength of the other order of the Supreme Court in Tej Prakash Pathak & Ors. Vs. Rajasthan High Court & Ors. (supra) , is clearly not applicable to the present case. The only question that appears to have been referred to a larger bench of the Supreme Court by the three-judge bench order of that Court appears to be - whether the principle "rules of the Commission stipulating the procedure for selection may not be changed pending a selection process" would

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apply to a case "where change sought is to impose a more rigorous scrutiny for selection”. Clearly, that question does not arise in the present case.

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Here, by virtue of the amendments made by the Notification and the UP Rules, it is not a more stringent condition being imposed, to restrict the zone of consideration amongst the (selected candidates), but a complete change of eligibility conditions, has been made. Not only the nomenclature of the post but its group classification, payband have been changed along with the prescribed qualifications. Under the unamended law, graduation with diploma in Library Science was the prescribed qualification whereas under the amended law, a Masters’ degree in Library Science, with at least first class or equivalent and consistently good academic record together with knowledge of computer have been prescribed as the educational qualification along with National Level Test, conducted by the University Grants Commission. In any case, that being an order to refer the issue to a larger bench, it causes no legal effect, to dilute the pre-existing precedent, at present.

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In Ramjit Singh Kardam & Ors. Vs. Sanjeev Kumar & Ors. (supra) , the selection sought to be made was on the post of Physical Training Instructor (PTI in short). That selection was advertised vide Advertisement No. 6 of 2006 dated 20.07.2006, issued by the Haryana Staff Selection Commission. Amongst others, the following question was framed for consideration, by the Supreme Court, in that case:

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"Whether no fresh selection can be held as directed by the learned Single Judge since as per 2012 Rules, the post of PTI has been declared as a dying cadre and the post has merged into the post of TGT Physical Education ?"

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There, the original selection held under the unamended law was found to be contrary to law by a learned single judge of the Punjab & Haryana High Court. Fresh selection made pursuant to the original

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advertisement led to a further challenge. The Supreme Court found, there was no defect in the fresh selection held under the original Advertisement No.6 of 2006. In fact, it was specifically observed, the same ought to have been taken to its logical end.

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Here, it must be noted, learned Standing Counsel has not been able to establish - the State authorities withdrew the requisition at any stage of the proceedings. It is true, a mere selection does not vest any right in the selected candidate to seek appointment and this Court may not readily issue a positive writ in that regard yet, the selection process cannot be allowed to be stalled or wasted on its own for reason of mere administrative inefficiency or incompleteness of administrative action.

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Once, the law stood amended, it was for the State authorities to consider its effect and impact on the ongoing selection. Inasmuch as there exists a principle, duly recognized by the Supreme Court in Ramjit Singh Kardam & Ors. Vs. Sanjeev Kumar & Ors. (supra), whereunder merely because the cadre under which the post may have been advertised would become a dying cadre, it may not automatically defeat the selection process (on such post for such dying cadre), a conscious decision making was required by the administrative authorities’ vis-a-vis the claim of the petitioners, after evaluating the impact of that decision.

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Plainly, not only the State authorities failed to take that decision and publish the corrigendum, unfortunately and unwittingly, they unsuccessfully attempted to shift that responsibility and function on the UPSSSC and or/the UPPSC. The letters written by the state authorities namely the Secretary to the Director Technical Education and the letter written by the Director Technical Education to the Secretary UPSSSC are to the effect that the said expert examination body may itself withdraw the requisition. That function jurisdiction or

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authority, it did not have. It was never exercised by the State Government – the authority vested with such jurisdiction.

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As noted above, in face of specific legal obligation cast on the State Government to publish the corrigendum of Regulation 1.4(f) and, in absence of any delegation or sub-delegation of that essential function on the UPSSSC, the latter was never authorised or enabled to do cancel the requisition or to modify it. Therefore, there is no inherent or other defect in the conduct of the UPSSSC, in having continued and completed the selection process.

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Undisputedly, the UPSSSC is an autonomous body. Also, there are limits to its authority and work. It acts on engagement sought by the State agencies. It could not have acted of its own, either to determine the number of vacancies in various services that were to be filled up at any point in time, nor it could proceed to initiate any selection process on such post, nor it could prescribe or amend the eligibility conditions to be applied, to such selection. To that limited extent, it always remained dependent on the State authorities. The State authorities issued the requisition and thus created the embryo of the selection process, together with all its genetic attributes as to post, grade, pay band and eligibility conditions.

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Thereafter, the cycle of development of that embryo incubated with the UPSSSC. It is at that stage and in the context of the requisition thus received, the advertisement was published by the UPSSSC. The selection process initiated by the UPSSSC, completed its cycle upon declaration of the result. It is the result that the UPSSSC has delivered to the State for the purpose of grant of appointment to the posts requisitioned.

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While the selection process incubated with the UPSSSC, the State authorities did not have any statutory right to require the UPSSSC to place the same in abeyance or to otherwise interfere with

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the same, except as permitted under Clause 1.4(f) of the Notification. It was never resorted to. Also, the UP Rules were not enforced retrospectively to the impugned selection process.

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The only other event that may have led to disruption of the process of selection (that was incubating with the UPSSSC) could be if the State Government had itself aborted the incubation process, by cancelling the requisition made. That power has remained not exercised by the State Government. Consequently, the UPSSSC never became obligated to comply with or show subservience to the communication dated 16.02.2018 etc. and to place in abeyance the selection process, underway. That document carried no legal force.

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It is not a mere technical construction that is being made by the Court. The process of selection by an expert body consumes time and requires dedicated deployment of energy and resources. Those are not available in abundance. Also, often numerous similar selection processes are undertaken simultaneously, by such expert bodies. Therefore, a time schedule is created, and it exists with such expert bodies to conduct various stages of different examinations, for the purposes of making varied recruitments.

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In the context of law that clearly exits - selection does not give right to appointment, there is no rationale to allow the State authorities, the discretion to stall the selection processes mid-way, for good or other reasons. In short, an autonomous expert body such as the UPSSSC was not at the mercy of the State Government to conduct the selection process at the latter's dictates. To allow the UPSSSC to do that would be to introduce another uncertainty in the selection process as may allow for more inefficiencies, adhocism and therefore, corruption.

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The decision of the co-ordinate bench of this Court in Gyan Prakash Chaubey Vs. State of U.P. & Ors. (supra) clearly proceeds

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on the statement made by the learned counsel for the UPSSSC before the Court (in that matter) - that the requisition had been withdrawn. Here, upon opportunity granted, learned counsel for the UPSSSC would submit, no communication was issued by the State Government withdrawing the requisition. Learned Standing Counsel is also not able to contradict that statement. Clearly, it must be accepted, the requisition had not been withdrawn, in accordance with law.

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Merely because the State Government wrote to the Secretary UPSSSC to withdraw the requisition and/or to keep the selection process in abeyance, it did not cause the legal effect as was represented to the Court in the case of Gyan Prakash Chaubey Vs. State of U.P. & Ors. (supra) . Suffice to note, that statement of fact was not contradicted by the petitioner in that case. Apparently, that decision proceeds on a wrong statement of fact, made before the Court. Insofar as that statement is not shown to be correct and no legal effect is shown to have been caused as may allow the Court to infer that as the selection process was aborted by the State Government, the said decision is found to be a decision reached in the own facts of that case. It does not lay down any law.

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As to the submission of learned Standing Counsel on the strength of the decision of the Supreme Court in Shankarsan Dash Vs Union of India (supra) , in view of the above, if required, it is for the State Government to act in the manner permitted by law and it is not for the State Government to either shift that responsibility to UPSSSC or to look to the Court in that regard.

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Administrative decisions are to be taken by authorized authorities. Often, they offer limited scope for interference in judicial review. However, while taking that decision, in the present facts, amongst others, the State Government would have to remain mindful of the purpose of that exercise; the context in law; the timing of the

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action as also, consequences of its action. It would also have to weigh the pros and cons of its decision and its impact on its citizens involved.

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Here, it may also be kept in mind, there is no allegation of foul play in the selection process, that is otherwise complete. Though the State Government has a Constitutionally recognized right to declare the whole result still born, yet it may remain mindful of the fact that that result may arise (in facts of the present case), by way of consequence of its own conduct. That unfortunate result would arise neither by way of operation of law nor any fundamental defect in the selection process.

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Accordingly, the respondent may proceed to grant the appointments, pursuant to the result declared by the UPSSSC dated 10.12.2021 within a month (as there is no legal impediment to that). If however, the State authorities are of another view, such decision may be made within the same time, keeping in mind the observations made above. In that event, rights of the parties shall abide by the decision to be made by respondent no.1. The writ petition is allowed , in terms of the direction issued above. No order as to costs.

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Order Date :- 5.12.2022 Abhilash/Shubham

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Digitally signed by ABHILASH SINGH Date: 2022.12.13 17:19:55 IST Reason: Location: High Court of Judicature at Allahabad

Kamal Nayan Singh and 12 Others v. State of U.P. and 3 Others

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Kamal Nayan Singh and 12 Others v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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