Dismissed

Rahul Dubey v. State of U.P. Thru. Prin. Secy. Appointment Lko. and Others

Allahabad HC21 May 2024/3747/2024

Case brief

AI extract

What is this about?

A selected Assistant Statistical Officer (EWS quota) missed document verification dates displayed on the Commission website and sought appointment when the cut-off was lowered for EWS candidates. Relying on advertisement terms binding candidates and on the Supreme Court's ruling in M. Tripura Sundari Devi, the court dismissed the writ petition.

What the court decided

AI extract

Rahul Dubey Vs State of U.P. Thru. Prin. Secy… — Education and Admissions | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:38366

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Court No. - 6

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Case :- WRIT - A No. - 3747 of 2024

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Petitioner :- Rahul Dubey Respondent :- State Of U.P. Thru. Prin. Secy. Appointment Lko. And Others Counsel for Petitioner :- Ashutosh Mishra Counsel for Respondent :- C.S.C.,Gaurav Mehrotra

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Hon'ble Abdul Moin,J.

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Heard learned counsel for the petitioner as well as Shri S.M. Singh Royekwar, learned counsel appearing for respondents No.2 to 4 and learned Standing counsel appearing on behalf of respondent No.1.

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Learned counsels for the parties state that the facts of the case have already been set forth in detail by this Court in the order dated 14.05.2024.

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For the sake of convenience, the order dated 14.05.2024 is reproduced below:

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"1. Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and perused the record.

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2. Sri S.M. Singh Royekwar, Advocate has put in appearance for Respondent Nos.2 to 4. Vakalatnama filed by Sri S.M. Singh Royekwar, Advocate is taken on record.

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3. Contention of the learned counsel for the petitioner is that the petitioner had appeared for the post of Assistant Statistical Officer against EWS Quota in pursuance of the notification issued by the UP Subordinate Services Selection Commission (hereinafter referred to as 'Commission'). Result was declared on 16.03.2023, in which the petitioner was declared as selected. He had qualified against EWS quota. He had been called for the purpose of document verification on 15.02.2023. The petitioner had been sent an email for the purpose of document verification, in which the period of document verification was specified as 25.04.2023 to 17.05.2023. The date fixed for verification of the document of the petitioner was 16.05.2023, with a reserve date of 17.05.2023. On account of election being held on two dates during the said period, the date of document verification was extended up to 18.05.2023. The petitioner, as per the specific averment made in para 10 of the petition, claims that he

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did not receive any information on the email from the Commission regarding the aforesaid dates for the purpose of document verification, and thus, he could not appear for the document verification. Subsequently, on coming to know regarding the document verification and the petitioner not having appeared, he approached this Court by filing a Writ A No.2661 of 2024 and this Court vide order dated 02.04.2024 directed the respondents to decide the representation of the petitioner.

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4. Representation of the petitioner has been rejected vide order dated 27.04.2024, annexed as Annexure-1, contending that as the petitioner failed to appear for document verification on the date fixed, now there would not be any occasion for the Commission to continue to wait for the document verification to take place and complete the procedure for selection, and as such, representation of the petitioner has been rejected.

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5. Learned counsel for the petitioner while seeking to challenge the impugned order, has placed reliance on the notification dated 05.03.2024, a copy of which has been annexed as Annexure-5, whereby so far as it pertains to EWS quota, wherein the cut off has been reduced by the Commission to 40 marks along with several other categories on the ground that sufficient number of eligible candidates are not available.

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6. Argument of the learned counsel for the petitioner is that the petitioner is a meritorious candidate and has finally qualified in the written examination for the post of Assistant Statistical Officer and the respondents finding that sufficient number of candidates are not available for selection, had lowered the cut off marks, as such in case any such vacancy is available with the respondents, claim of the petitioner for appointment after his document verification can be considered.

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7. Sri S.M. Singh Royekwar, learned counsel for respondent Nos.2 to 4 prays for and is granted one week's time to seek instructions as to whether any vacancies are available against EWS Quota and as to the marks obtained by the petitioner under EWS quota and the cut off marks which have been reduced by the Commission in order to now fill up the vacancy under EWS quota. He shall also seek instruction from the Commission as to whether selection process has been completed or not.

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8. List this case in the next week as fresh showing the name of Sri S.M. Singh Royekwar as counsel for Respondent."

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Today, Shri S.M. Singh Royekwar, learned counsel appearing for the respondents No.2 to 4, on the basis of instructions sent by the Secretary of the Commission dated 18.05.2024, states that a number of candidates have been identified in pursuance to the notification dated 05.03.2024 for the selection.

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The aforesaid statement is recorded.

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As emerges from a perusal of the order dated 14.05.2024, the petitioner, who had appeared for selection for the post of

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Assistant Statistical Officer against Economically Weaker Section quota, had qualified in the written examination. He had been called for document verification on 16.05.2024 with a reserved date of 17.05.2023 and on account of elections being held, the verification date was extended up to 18.05.2023. The petitioner claims to have not received any information from the Commission with the result that he could not appear for the verification of the documents. Thereafter, he continued to represent to the respondent-Commission for the purpose of his document verification and the Commission appears to have also entertained in detail his application as would be apparent from a perusal of an order issued by the Commission dated 27.05.2023, a copy of which is annexure 4 to the petition, which still remains under consideration with the Commission.

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In the meanwhile, the respondents have issued a notice dated 05.03.2024, a copy of which is annexure 5 to the petition, whereby upon finding that candidates belonging to various categories namely Scheduled Caste, Economically Weaker Section, the Dependents of the Freedom Fighters, the Physically Handicapped in Sub-category B. / P.B., O.A. & O.L. are not available, consequently, the merit list has been lowered in order to accommodate them.

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The instant petition has been filed contending that once the respondents are now proposing to lower the merit which so for as it pertains to the category of petitioner, which is E.W.S., which has been lowered to 40 marks and the petitioner being more meritorious he should be appointed against the said category.

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As already indicated above, Shri Royekwar on the basis of instructions has submitted that on the basis of said notification, the requisite numbers of candidates have already been received

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for all the categories including the category to which the petitioner belongs i.e. E.W.S.

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It is also contended that the controversy, as arises in the petition, has already been considered by this Court in Writ A No.3800 of 2024 in Re: Shweta Verma Vs. State of U.P. & Others decided on 15.05.2024 wherein the terms and conditions of the advertisement, as specified in clause 10 of the advertisement, has been considered threadbare by this Court and this Court while placing reliance on the judgment of the Hon'ble Supreme Court in the case of District Collector & Chairman, Vizianagram Social Welfare Residential School Society and another vs M. Tripura Sundari Devi, 1990 (3) SCC 655 has held that any intervention by this Court at this stage would amount to a fraud on those candidates who, seeing the terms and conditions of the advertisement, have not approached the Court and consequently, this Court cannot pass any order in this regard. Likewise, the Division Bench of this Court in Special Appeal No.762 of 2016 in Re: Arvind Kumar Yadav Vs. U.P. Police Recruitment & Promotion Board & Others decided on 05.12.2016 has also held that the terms and conditions of the advertisement are binding upon the parties.

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From a perusal of the record, it emerges that in terms of the advertisement that had been issued by the Commission, Clause 10 of the said notification specifically provided that all information would be displayed by the Commission on its website and no individual notice would be sent to any particular candidate. In pursuance thereof, admittedly, the last date for verification of documents of the petitioner was 16.05.2023 and 17.05.2023 extended up to 18.05.2023. Admittedly, the petitioner failed to see the said information by contending that

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on account of network issue, he was unable to see the information on the website of the Commission.

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Be that as it may, the fact of the matter remains that the information was displayed on the official website of the Commission but it was not seen by the petitioner with the result that he could not appear for his document verification on the date specified by the Commission. Subsequent thereto, the petitioner has been repeatedly representing to the Commission for verification of his documents but to no avail. Now, the Commission has issued the notification dated 05.03.2024 whereby the merit of the candidates have been lowered down as the Commission has not found the requisite number of candidates in the categories as specified in the said notice. The said notice also contains EWS category to which the petitioner belongs. The mere fact that the Commission, on not finding regular number of candidates, has lowered the merit would not give any right to the petitioner to stake his claim for appointment / verification of his document inasmuch as, the window of opportunity for the petitioner stood closed when he failed to appear for his document verification on 16th, 17th & 18th of May, 2023. Thus, a right has accrued to the other candidates in terms of the notification dated 05.02.2024 whereby the merit has been reduced in order to appoint the candidates of the said category as specified in the said notice. Merely because the Commission has lowered the merit could not give any right to the petitioner to claim verification of his document and his appointment inasmuch as already indicated above his window of opportunity stood closed as he failed to appear for document verification.

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Keeping in view of the law laid down by the Apex Court in the case of M. Tripura Sundari Devi (supra) any interference

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by this Court at this stage would virtually amount to opening of pandora's box and would also amount to fraud on those candidates who, noticing the specific terms and conditions of the advertisement, have not come forward to this Court inasmuch as the terms and conditions as specified by the Commission would be binding on both the candidates as well as the Commission and there cannot be any occasion from making any departure from the said specific terms and conditions.

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Keeping in view of the aforesaid discussion and in view of the law laid down by the Apex Court in the case of M. Tripura Sundari Devi (supra) , the writ petition is dismissed.

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Order Date :- 21.5.2024 S. Shivhare

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Digitally signed by :- SHASHANK SHIVHARE High Court of Judicature at Allahabad, Lucknow Bench

Rahul Dubey v. State of U.P. Thru. Prin. Secy. Appointment Lko. and Others

Case brief

What is this about?

What the court decided

Rahul Dubey v. State of U.P. Thru. Prin. Secy. Appointment Lko. and Others

Case brief

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