WPSS/1418/2003 of SURESH KUMAR and ORS. Vs STATE and ORS.

HIGH COURT OF UTTARANCHAL AT NAINITAL

Writ Petition No. 1300 of 2003(SS)

Prakash Chandra Maithani & others ….. Petitioners

Versus

State of Uttaranchal & others ….. Respondents

Writ Petition No. 1341 of 2003 (SS)

Virendra Uniyal & others …… Petitioners

Versus

State of Uttaranchal & others ….. Respondents

Writ Petition No. 1379 of 2003 (SS)

Rakesh Prasad & others ….. Petitioners

Versus

State of Uttaranchal & others ….. Respondents

Writ Petition No. 1418 of 2003 (SS)

Suresh Kumar & others ….. Petitioners

Versus

State of Uttaranchal & others ….. Respondents

Writ Petition No. 303 of 2003 (SS)

Suresh Kumar & others …… Petitioners

Versus

State of Uttaranchal & others …… Respondents

Writ Petition No. 1378 of 2003 (SS)

Bhavesh Kumar Jaguri & others …... Petitioners

Versus

State of Uttaranchal & others ….. Respondents

Writ Petition No. 1333 of 2003 (SS)

Chaman Singh & others ….. Petitioners

Versus

State of Uttaranchal & others ….. Respondents

Writ Petition No. 1334 of 2003 (SS)

Darshan Singh & others ….. Petitioners

Versus

State of Uttaranchal & others ….. Respondents

Sri S.N. Babulkar, Sri J.P. Joshi, Sri H.M. Raturi, Sri U.K. Uniyal, Advocate for the petitioners Standing Counsel for the respondents.

Dated: 26[th] June 2004

Hon’ble Rajesh Tandon J.

Heard the learned counsel for the parties at length.

By the present writ petition the petitioners have prayed for the issue of writ in the nature of certiorari quashing the selection of Assistant Teacher Physical Education (LT Grade) made pursuant to the advertisement dated 24.6.2002 in respect of Garhwal region.

Briefly stated the facts giving rise to the present writ petitions are that the respondents issued two separate advertisements on 17.6.2002 and 24.6.2002 in the newspapers for selection and recruitment of physical education teachers in Kumaun and Garhwal Divisions. The aforesaid advertisements were issued under U.P. Subordinate Educational (Trained Graduate Grade( Service Rules 1983. Advertisements were made for 56 posts in the Kumaun Division and 89 posts in Garhwal Division. The petitioners have stated that in the advertisement issued for the Garhwal region the educational qualification is different than those provided in the rules. The petitioners have submitted that after period of about one year on 22.6.2003 list of 93 selected candidates for Garhwal region was published in news daily ‘Dainik Jagran’. The petitioners have contended the entire selection was made in violation of the rules.

have contended the entire selection was made in violation

The petitioners have assailed the process of appointment on the grounds that in the advertisement issued for the Garhwal region on B.P.Ed. Degree was advertised as educational qualification treating it both as academic and professional qualification, whereas according to rules B.P.Ed. degree is not recognized qualification.

The petitioners have also stated that they were shocked to known that one Dhananjay Malik whose appointment letter shows that he belongs to Muzaffarnagar U.P. has been given appointment whereas the advertisements were confined to Uttaranchal only. The petitioners have further stated that quality point marks were awarded arbitrarily for the qualifications which are not prescribed under rules and for treating academic and professional qualification professional qualification and awarding separate marks for that, even bonus marks were given to higher qualified persons, whereas, advertisement does not require so.

and

Counter affidavit has been filed on behalf of the respondents. It has been contended by the respondents that the appointments of Assistant Teacher L.T. Grade was to be made in accordance with U.P. Subordinate Education Service Rules 1983, together with amended rules of 1992. The respondents have submitted that the candidates were allotted the marks in theory and teaching. In the rules, there is no provision that the allocation of marks in practical and as such, quality points of the teaching was allotted. The respondents have also submitted that the appointments were made in accordance with the service rules and there was no illegality in the selection of the assistant teachers. The respondents have stated that the B.P.Ed. Degree holders were allotted quality points of graduation degree as well as physical education diploma in pursuance of Government order.

The petitioners have submitted that that selection was not made in accordance with the advertisement published for the recruitment of Assistant Teacher, physical training in L.T. Grade. It is noteworthy that two separate advertisements were

published for the recruitment of Assistant Teachers in various subjects including physical training, in Garhwal Division and Kumaun Division separately.

The qualification prescribed for the Assistant Teacher

(Physical) in the advertisement dated 17[th] June 2002, for Kumaon Division reads as under:

mRrj izns”k v/khuLFk f’k{kk izf”kf{kr Lukrd Js.kh lsok fu;ekoyh 1983] mRrj izns”k assav/khuLFk f”k{kk izf”kf{kr ¼LUkkrd Js.kh½ izFke llk/ku lok fu;ekoyh 1992 ,o rndze esa WZsamRrjkpy “kklu fuxr 'kklukn’k 600@2¼12½ 2002 ekuo llk/ku fodkl foHkkxsassasZngjknwu fnukd 5 twu 2002 izkfo/kkuk vUrxr v/khuLFk f”k{kk ¼izf”kf{kr LukrdJs.kh½ds fuEukfdr inks ij fu;qfDr gsrq mRrjkWpy ds fdlh Hkh lsok ;kstuk dk;kZy; esa iathd`r ik= ,oa vgZ vH;ZfFk;ksa@vH;fFkfu;ksa ds vkosnu i= vkeaf=r fd, tkrs gSaA iq:’k “kk[kk ds bu inks ads fy, dsoy ik= ,oa iq:’k vH;ZFkh ,oa efgyk “kk[kk ds inksa ds fy, dsoy ik= ,oa vgZ efgyk vH;kfFkZuh gh ik= gksaxsA foKkfir inksa dh fo"k;okj la[;k o dqy la[;k fu;qfDr ds lkFk ?kV o c<+ ldrh gSA fu;qfDr ds le; miyC/k okLrfod fjDr ds vuqlkj fu;qfDr dh tk;sxhA vUrjeaMyh; laoZx ifjorZu o vU; LFkkukUrj.k ls fo’k; vkSj inksa dh la[;k esa Hkh vUrj vk ldrk gSA ---------- ---

----------------------------------- ------------------------------------- ,y0 Vh0 O;k;ked f’k{kd & fdlh ekU;rk izkir fo’ofo|ky; ls Lukrd dh mikf/k vkSj 'kkjhfjd f'k{kk esa fMIyksek

The qualification prescribed for the Assistant Teacher

(Physical Training) in the advertisement dated 24[th] June 2002

of Gar

hwal Division reads as under:

mRrjk¡py 'kklu ds 'kklukns'k la[;k 600@2¼12½ fnukad 5 twu 2002 ds

svuqdze esa izns”k v/khuLFk f”k{kk izf'kf{kr Js.kh lsok fu;ekoyh 1983 rFkk izn'k

v/khuLFk f'k{kk ¼izf'kf{kr Lukrd Js.kh½ izFke lalk/ku lsok fu;ekoyh 1992 dss izkfo/kkuksa

sZasassad vUrxr x<oky eMy fLFkr jktdh; b.Vj dkytk @jktdh; mPprj ek/;fed

fo|ky;ksa ¼ckyd@ckfydk½ esa fjDr fuEu Lukrd osrudze ds inksa ds izfr e.Myh; la;qDr f'k{kk funs'kd x<oky e.My }kjk bPNqd ,oa vgZ vH;fFkZ;ksa@vH;fFkZfu;ksa ls vkosnu i= vkefU=r fd;s tkrs gSaA----------- ---------------------- ---------------

l0v0 O;k;ke ds fy, fo”ofo|ky; ls O;k;ke esa Lukrd dh mikf/k vFkok ekU;rk izkIr laLFkk ls 'kkjhfjd f'k{kk esa fMIyksek

Rule 15 of the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules 1983, as amended in 1992, deals with the procedure for direct recruitment, which reads as under:

Procedure for direct recruitment- (1) (a) The Regional Deputy Director of Education concerned shall in respect of the vacancies of both branches (Men’s and Women’s Branch) to be filled by direct recruitment, advertise the vacancies subjectwise, along with the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes/ Schedules Tribes and other categories of persons in at least two leading newspapers one having wide circulation in the region and the other in the State, and invite applications for direct recruitment in the pro forma given in Appendix ‘C’. Such advertisement shall, inter alia, mention the pay and allowances relating to the posts, minimum academic qualifications for appointment thereto and such other information as may be considered necessary.

(b) The application referred to in clause (a) shall be sent by registered post, to the Regional Deputy Director of Education within three weeks from the date of publication of advertisement in the newspaper so as to reach the office of the Regional Deputy Director of Education on or before the last date of receipt of application mentioned in the advertisement. * * * *

(2) The Regional Deputy Director of Education shall scrutize the applications and shall cause the lists of candidates to be prepared on the basis of quality points specified in Appendix

D. The Regional Deputy Director of Education shall place the lists along with the applications before the Selection Committee.

(3) There shall be Selection Committee for selection of candidates for appointment by direct recruitment comprising-

(i) appointing authority;

(ii) the Regional Deputy Director of Education or the Regional Inspectress of Girls Schools, who is not appointing authority. the Regional Inspectress of Girls Schools, who is not appointing authority.

the Regional Deputy Director of Education or

(iii) Regional Assistant Director of Education (Basic)

The appointing authority shall be the Chairman.

(4) The Selection Committee shall, after considering the cases of candidates on the basis of lists referred to in sub rule (2) prepare subjectwise list of selected candidates for appointment in L.T. Grade in order of merit as disclosed by the quality points complied under sub ruled (2). If two or more candidates obtain equal quality points, the name of the candidate who is older in age shall be placed higher in list. The number of names in the list shall be larger (but not larger by more than twenty five per cent) than the number of vacancies advertised under sub rule (1).”

Rule 8 of U.P. Subordinate Educational (Trained Graduates Grade) Service Rules 1983, as amended in the year 1992, prescribed for the Academic qualification for the candidate for direct recruitment to the various posts. For the post of Assistant Master/Assistant Mistress (Physical Education) the following qualification is prescribed:

“Bachelor Degree from recognized University or degree recognized by the Government as equivalent thereto and Diploma in Physical Education.”

The contention of the petitioners is that the appointments in the Garhwal Division were made de-horse to the rules. The qualification for the post of Assistant Teacher (Physical Training), provided under the rules, has not been published in the advertisement dated 24[th] June 2002 and thus the entire selection proceeding was vitiated.

I have gone through the advertisement dated 24[th] June 2002, annexure-2 to the writ petition. In the advertisement minimum qualification provided for the post of Assistant Teacher (Physical Training) is Bachelor degree in Physical training or Diploma in Physical Training from recognized institution whereas under Rule 8 of U.P. Subordinate Educational (.. Graduates..) Service Rules 1983, provides minimum qualification for Assistant Master in Physical Education in Bachelor’s degree with diploma in physical education. Thus the minimum qualification prescribed under Rule 8 is Bachelor’s degree. Further the advertisement itself shows on the top of the same that it will be done in accordance with U.P. Subordinate Education (.. Graduates…) Service Rules 1983, as amended in 1992. No defect has been pointed out so for as the advertisement for Kumaon Division is concerned. I fact from the advertisement on the top of the same educational qualification has been mentioned. Therefore, I find no error so as to interfere under Article 226 of the Constitution of India.

The object and purpose of advertisement is an invitation at large to the public to offer their services but once the said offer is made and the candidates appear in the competitive examination, their selection, to the service is governed by the

statutory rules and the same has already been mentioned on the

top of the advertisement as follows:

mRrjk¡py 'kklu ds 'kklukns'k la[;k 600@2¼12½ fnukad 5 twu 2002 ds

svuqdze esa izns'k v/khuLFk f'k{kk izf'kf{kr Js.kh lsok fu;ekoyh 1983 rFkk izn'k

v/khuLFk f'k{kk ¼izf'kf{kr Lukrd Js.kh½ izFke lalks/ku lsok fu;ekoyh 1992 ds izkfo/kkuksa

sZasassad vUrxr x<oky eMy fLFkr jktdh; b.Vj dkytk @jktdh; mPprj ek/;fed

fo|ky;ksa ¼ckyd@ckfydk½ esa fjDr fuEu Lukrd osrudze ds inksa ds izfr e.Myh;

la;qDr f'k{kk funs'kd x<oky e.My }kjk bPNqd ,oa vgZ vH;fFkZ;ksa@vH;fFkZfu;ksa ls

vkosnu i= vkefU=r fd;s tkrs gSaA

In the case of Lal Mani Singh vs. Awadhesh Pratap Singh,

Vishwa Vidhyalaya 1995 (4) S.L.R. 367, it was held that the

advertisement was not rendered defective simply because the minimum qualification were not stated in the advertisement. It has been held as under:

minimum qualification were not stated in the advertisement. It

“In our opinion, the advertisement was not rendered

defective simply because the minimum qualifications were not

stated in the advertisement. It has also not been demonstrated,

what prejudice if any was caused to any of the applicants or

the University merely because the minimum qualification were

not mentioned in the advertisement.”

The Apex Court in the case Prafulla Kumar Das and

others vs. State of Orissa and others, JT 2003 (9) SC 477 has

held as under:

“Even when an advertisement is issued, no candidate

may be said to have acquired vested right of selection.

Conversely, when once the vacancies for the year 1973 were

identified by the government, it was free to conduct

competitive examination at time and in manner of its

choosing. The common examination was in previous years

held for the Orissa administrative service, as well as the Orissa

financial service and Orissa Police service. The mere fact of

omission, then, of the O.A.S. II in the advertisement issued for

the purpose would not of itself amount to rendering the

appointments of the respondent direct recruits as nugatory.”

The learned counsel for the petitioners has placed reliance on the case law A.K. Bhatnagar and others vs. Union of India and others (1991) 1 SCC 544. this case law relates to seniority and promotion and it does not apply to the facts of the present case. However, it has been held by their Lordships in this case that once Government frames rules under proviso to Article 309, it must strictly follow the same. He has further referred the case of State of Orissa vs. Sukanti Mohapatra AIR 1993 SC 1650, A.N. Sehgal and others vs. Raje Ram Sheoran and others, 1992 Supp (1) SCC 304, Dr. Rajinder Singh v. The State of Punjab & others JT 2001 (4) SC 538, Umesh Chandra Shukla vs. Union of India & others, AIR 1985 SC 1351, Yogesh Kumar and others vs. Government of NTC Delhi and others JT 2003 (2) SC 453, Radhey Shyam Singh and others vs. Union of India and others AIR 1997 SC 1610, Dr. M.S. Mudhol and another vs. S.D. Halegkar and others (1993) 3 SCC 591, Dr. Prit Singh vs. S.K. Mangal vs. S.K. Mangal and others 1993 Supp(1) SCC 714 and Paschimbanga Prathamik Sikshkhak etc. vs. W.B. Primary School Council (1996) 7 SCC 333 and Krishan Yadav and another vs. State of Haryana and others AIR 1994 SC 2166 but the facts narrated in the abovesaid case laws are entirely different from the facts of the instant case.

The selection of the candidates was made in accordance

with the statutory rules i.e. U.P. Subordinate Educational (Trained Graduates Grade) Service Rules 1983, as amended in 1992.

The learned counsel for the petitioners could not point out any illegality or irregularity in the procedure adopted by the Selection Committee. The entire selection procedure cannot be thrown merely due to difference in the advertisement at two places. Selection of candidates was made strictly in accordance with the rules prescribed under U.P. Subordinate Educational (Trained Graduates Grade) Service Rules 1983, as amended in 1992 and the petitioners have failed to prove that there was violation of any mandatory provision of the statute. No other point has been raised by either of the parties if they are affected in their selection on the merit and if respondents have proceeded in violation of the statue.

So far as emphasis on advertisement is concerned I find no merit in the contention of the petitioners.

However, liberty is given to the petitioners to agitate their individual grievances before the State Government through the Secretary, Education by filing representations within three weeks after the receipt of the certified copy of this order, which shall be disposed of within months by reasoned order.

Subject to the aforesaid observations, the writ petitions are disposed of. No order as to costs.

26.6.2004 *Dhyani

(Rajesh Tandon)