WPSS/1231/2009 of SATISH MAMGAIN and ANOTHER Vs STATE OF UTTARAKHAND and ANOTHER

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No.1231 of 2009 (S/S)

1. Satish Mamgain S/o Vishal Mani Mamgain

2. Rakesh Negi S/o Bhagwan Singh Negi … Petitioners Vs.

State of Uttarakhand & others … Respondents

Hon’ble Tarun Agarwala, J.

Heard Mr. H. M. Bhatia, the learned counsel for the petitioner no.1, Mr. Atul Bahuguna, the learned counsel for the petitioner no.2 and Mr. Lalit Miglani, the learned brief holder for the respondents.

The petitioners have filed the present writ petition praying for the quashing of the select list dated 19.12.2009 and has further prayed that writ of mandamus be issued commanding the respondents to prepare final select list in accordance with Rule 15 (5) of the Uttarakhand Ayurvedic and Unani Pharmacist Service Rules, 2009 (hereinafter referred to as the Rules of 2009).

It transpires that in the month of October 2009, an advertisement was issued inviting applications for appointment of 240 pharmacists. Based on this advertisement, the petitioner applied and select list was initially prepared in which the petitioner no.1 was shown at serial no.10 and petitioner no.2 was shown as serial no.57. Subsequently, it transpires that the Selection Committee passed resolution dated 25.11.2009 amending the Recruitment Rules on the basis of which, fresh select list was issued in which the petitioners’ names were found at the bottom of the select list, as result, the petitioner could not get an appointment and, consequently, the present writ petition was filed.

The learned counsel for the petitioners contended that the selection is required to be made as per the procedure prescribed under Rule 15 (5) of the Rules of 2009. For ready reference, Rule 15 (5) is extracted hereunder:-

“15. Procedure for direct recruitment – (1) ………..

(5) The Selection Committee shall prepare list of candidates in order of merit, as disclosed by marks obtained by them passing year wise diploma examination. If two or more candidates obtain equal marks, the Selection Committee shall arrange their names in order of their general suitability for the post. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. The list so prepared shall hold for one year only.”

The learned counsel for the petitioners submitted that according to the aforesaid Rule, the list of candidates are required to be prepared in the order of merit as disclosed by marks obtained by the candidate passing year wise diploma examination and, on this basis, select list was prepared, but subsequently, the Selection Committee by resolution dated 25.11.2009 amended the Rule 15(5) of the Rules of 2009 observing that the select list would be prepared on the basis of marks obtained year wise / month wise with the stipulation that candidate, who has passed in the first attempt without any supplementary examination or back paper, would be placed ahead in the seniority list from those candidates who cleared the examination by giving supplementary examination or back paper. The learned counsel for the petitioners submitted that the Rules of 2009, which is statutory Rule framed under Article 309 of the Constitution of India, could not be amended by the Selection Committee and that the Selection Committee had no jurisdiction to amend the Rules.

The State has filed counter affidavit admitting that the select list was amended pursuant to the resolution of the Selection Committee whereby those who had cleared the examination in the first attempt were placed higher in the selection list and since the petitioners have passed after giving supplementary examination and back paper, were consequently

placed below the persons who had qualified the examination in the first attempt. Similar response has been given by respondent nos.8 & 9 in their counter affidavit, who were at the bottom of the select list and have been placed higher than the petitioners in the select list on account of the resolution of the Selection Committee. List has been revised, but, the learned counsel for the respondent nos.8 & 9 is not present.

Upon hearing the learned counsel for the petitioner and the learned brief holder for the State, the court finds that Rule 15 (5), which have been framed under Article 309 of the Constitution of India and which has statutory force clearly indicates that the select list of the candidates would be prepared in order of merit as disclosed in the marks obtained by candidate passing year wise diploma examination, that is to say, the select list is to be prepared on the basis of the marks obtained by candidate in particular year. For example, person who has passed in the year 2007, would accordingly be placed in that batch of 2007 and the candidate who has passed in the year 2008, his select list would be prepared for that year and so on and so forth. The Rules does not indicate that if person has given back paper or supplementary examination or has not cleared the examination in the first attempt, would be placed at the bottom of that year and below the candidates who have passed the examination in the first attempt. Such demarcation has not been indicated in the Rule 15 (5) and could not be amended by the Selection Committee, which has no jurisdiction to do so. Such resolution passed by the Selection Committee was beyond its jurisdiction and against the Rules.

In Dr. Krushna Chandra Sahu & others Vs. State of

Orissa & others 1995 (6) SCC 1, the Supreme Court held that the power to make rules regulating the conditions of service of persons appointed on Government posts is available to the

Governor of the State under the proviso to Article 309 of the Constitution and it was in exercise of this power, the statutory rules are framed. Once the statutory rules are framed, it is open to the State Legislature to issue executive instructions only if the rules are silent on any subject or point in issue. The Supreme Court found that the Government did not issue any administrative instructions with regard to the criteria on the basis of which the suitability of the candidates was to be determined and that the members of the selection board on their own decided to adopt the confidential character rolls for determining their suitability. The Supreme Court held that the Selection Board did not have jurisdiction to lay down the criteria for selection unless they were authorized specifically under the Rules and that the Rules can only be amended by the rule making authority. The Supreme Court further held :-

“35. Similarly, in Umesh Chandra Shukla Etc. v. Union of India and Ors. 1985 (3) SCC 721, if was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Durgacharan Misra v. State of Orissa and Ors. 1987 (4) SCC 646 and the limitation of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum "marks which candidate had to secure at the viva-voce test.

36. It may be pointed out that rule making function under Article 309 is legislative and not executive as was laid down by this Court in B.S. Yadav and Ors. v. State of Haryana and Ors. AIR 1981 SC 561. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating rule of selection.

The aforesaid decision is squarely applicable in the instant

case. In the instant case, the counter affidavit does not indicate that any executive instructions were issued to the Selection

Committee to amend the criteria as laid down under Rule 15 (5) of the Rules nor there is any thing to indicate that the Selection Committee was given the power to lay down the criteria for selection or to modify the Rules. In the absence of the aforesaid, the court is of the opinion that the statutory Rules framed in Rule 15 (5) of the Rules of 2009 could not be amended in the fashion as done by the Selection Committee. The resolution of the Selection Committee is ex-facie illegal and without jurisdiction in utter violation of Rules.

In the light of the aforesaid, the resolution of the Selection Committee dated 25.11.2009, being in gross violation of the Rule 15 (5) of the Rules of 2009, cannot be sustained and is quashed. The impugned select list prepared on the basis of the Resolution of the Selection Committee, being against the provisions of Rule 15 (5), are also quashed. writ of mandamus is issued commanding the respondents to publish fresh list in accordance with Rule 15 (5) and issue appointment order accordingly. The writ petition is allowed accordingly.

Dated 03[rd] August, 2012

LSR

(Tarun Agarwala, J.)