The Allahabad High Court has justified the cancellation of the selection process by the Uttar Pradesh government due to widespread irregularities in the recruitment of 152 Group C posts in the Handloom and Textile Department in 2015.
The Division Bench of Justice Surya Prakash Kesarwani and Justice Jayant Banerji passed this order while hearing a Special Appeal Defective filed by State of Uttar Pradesh and 3 Others.
By means of the intra court special appeal, the appellants have challenged the order dated 19.12.2019 passed by the Court in a bunch of connected writ petitions, whereby, the order dated 28.9.2017 passed by the appellant-respondents, cancelling the entire selection process made pursuant to the advertisement dated 22.1.2015, was quashed.
The Advertisement dated 22.1.20151 was issued for recruitment of 152 Group C posts in the Handloom & Textile Department, Uttar Pradesh. The selection process was conducted by the UP Subordinate Services Selection Commission, Lucknow. On an enquiry based on complaints, large scale irregularities were found. It was also found that the Commission had not followed the statutory rules. Accordingly, the order dated 28.9.2017 impugned in the writ petition, was passed, cancelling the entire selection process.
The Court observed that the petitioner-respondents who had applied pursuant to the said advertisement, were called for interview on different dates in June 2015 and after the interview, a select list was published by the Commission on different dates pertaining to the respective posts for which the advertisement was issued. The names of the petitioner-respondents were published in the result of the interview. On 18.3.2016, the matter regarding the selection was referred to the State Government which issued a direction on 25.4.2016 for issuing appointment letters to 152 candidates whose document verification had been completed.
Since, in the meantime, a reference made to the State Government regarding the selection was challenged before the Court, the direction of the State Government dated 25.4.2016 was made subject to the decision of this Court. On 24.5.2016, the Court directed the appellant respondent concerned to comply with the order of the State Government dated 25.4.2016 within three weeks. The appellant respondent no 2 intimated the State Government on 6.5.2016 regarding some complaints received and apprised the Government of the fact that the UP Procedure for Direct Recruitment for Group C Posts (4th Amendment) Rules, 2014 contemplates holding of written examination but the Commission had proceeded for selection on the basis of interview only.
Following further inter departmental communication, the State Government proceeded to cancel the recommendation of the Commission for selection of 152 candidates by means of the impugned order in the writ petition dated 28.9.2017 and also cancelled its previous order dated 25.4.2016.
The Single Judge observed that the appellant-respondents have identified selection of 47 out of the 152 candidates to suffer from serious procedural irregularities who were clearly identifiable and could be segregated from the list of 152 selected candidates and therefore, the order dated 28.9.2017 was quashed and the appellant-respondents were directed to issue necessary orders for the selected candidates whose candidatures were in accordance with law and the previous order of the State Government dated 25.4.2016 was modified to the extent that the appointment order to be issued to those validly selected candidates excluding those whose forms were not in proper format.
Ashok Khare, Senior Advocate, for the respondent-petitioners submitted as under :-
(i) When the Act of 2014 constituting the Commission was enacted and enforced with effect from 20.06.2014 then the Rules of 2002 as amended by the Rules of 2014 ceased to apply.
(ii) As per Section 18 of the Act of 2014, the Commission was free to conduct recruitment and it conducted selection by interview in pursuance of the general decision taken by it.
(iii) After constitution of the Commission under the Act of 2014, the Rules of 2002, as amended from time to time, ceased to operate and would have no applicability with respect to the selection process conducted by the Commission under the Act of 2014.
(iv) The Commission has carried on the selection process only by interview, on the basis of administrative direction of the State Government and the Rules framed under the Act of 2014.
The Court observed that, at the time of the said advertisement, the Act of 2014 was already in force but neither Rules of 2015 nor Regulation 2015 were in existence. There is no provision in the Act of 2014 eclipsing or overriding the Rules of 2002 as amended from time to time. Further, the Rules of 2014 came into force from the date of their notification on 29.1.2014 which is prior to the date of coming into force of the Act of 2014. The applicability of Rules of 2002 to direct recruitment in Group ‘C’ posts is mentioned in sub-rule (3) of the Rule 1 of the Rules of 2002 which prescribes three exceptions, each of which would have to be satisfied to demonstrate any non-applicability of the Rules of 2002, which has not been done by the petitioners-respondents. Given the overriding effect and applicability of the Rules of 2002 in view of Section 2 read with sub-section (3) of the Section 1 thereof, it is clear that the Rules of 2002 overrode the provisions of the Rules of 1992.
Therefore, the contention of the counsel for the petitioners-respondents that the Rules of 1992, being specifically made with respect to the Directorate of Handloom and Textiles, would continue to hold the field and would be applicable to the selection in question, is not correct. What is sought to be urged by the counsel for the petitioners-respondents is based on the maxim generalia specialibus non derogant.
The Court held that,
In the case, however, the Rules of 2002, though not expressly providing for repeal of Rules of 1992, in view of sub-rule (3) of Rule 1 read with Rule 2 of the Rules of 2002, have clearly indicated non-applicability of the Rules of 1992 and the overriding effect of the Rules of 2002.
Thus, a perusal of the Act, Rules and Regulation lead to a conclusion that before coming into force of the Rules of 2015 and the Regulations of 2015, it was the Rules of 2002, as amended from time to time, that occupied the field on the matter of selection with regard to the vacancies reflected in the said advertisement. For want of any rules duly made by the State Government under Section 22 of the Act of 2014 or any regulation made by the Commission under Section 23 of the Act of 2014, which was in existence or was made applicable at the time of the said advertisement dated 21.1.2015, the Rules of 2002, as amended from time to time, with the relevant amendment being made by the Rules of 2014, occupied the field with respect to the selection process pursuant to the advertisement in question. There is thus an inherent flaw in the said advertisement as the selection process by interview alone, is without any statutory mandate.
In the impugned judgement, while drawing a conclusion as to which Rules will be applicable in respect of the selection process pursuant to the said advertisement, the Judge referred to the statement of object and reasons of the Act of 2014 and observed that after the Rules of 2014 were amended and notified on 29.1.2014, the Act of 2014 came into force pursuant to which the Rules of 2015 were made which came into operation.
The Court opined that, with respect, the analogy of the Judge and the finding with regard to applicability of Rules of 2015 are not correct. The applicability of Rules with regard to a process of selection would be determined on the basis of relevant rules in force at the time of the said advertisement. Holding of interview and preparation of select list by the Commission are mere consequences of the process of selection initiated by the said advertisement. The holding of interview and preparation of select list, though made after the date of notification of the Rules of 2015 and the Regulations of 2015, would not cause the selection process to be governed by them. The said advertisement itself has been held herein to be flawed, and thus, the finding to the contrary cannot be sustained.
The Court further held that,
As a matter of fact, the suggestion of the counsel for the petitioner-respondent that the Rules of 2015 is one of procedure and therefore it would apply retrospectively is misconceived.
The rules of recruitment that may be framed under the Act of 2014 or the proviso to Article 309 of the Constitution would be for purpose for carrying out the purposes of the Act or for regulating the recruitment, respectively.
In the case the rules for carrying out the purposes of the Act of 2014 or for regulating the recruitment under the proviso to Article 309 of the Constitution would not have retrospective effect without there being either an express provision to that effect or there is a clear implication.
The procedure for direct recruitment is specified in Rule 8 of the Rules of 2015. Sub-rule (1) of Rule 8 refers to the syllabus, marks of written examination/interview and the rules relating thereof being such as prescribed by the Commission with the approval of the Government; sub-rule (2) of Rule 8 provides for the procedure for written examination and interview; sub-rule (3) of Rule 8 provides for the procedure where direct recruitment is to be made on the basis of written examination alone; and sub-rule (4) of Rule 8 providing the procedure for direct recruitment to be made on the basis of interview alone, has been specified. These reflect that Rule 8 is an integrated rule. At every stage and aspect of the procedure prescribed in Rule 8, certain rights are created in favour of one or the other candidates. Therefore, Rule 8 of the Rules of 2015 cannot be construed as a mere procedural provision.
The Court also observed that the aforesaid order impugned in the writ petition records serious irregularities in the selections of 47 candidates out of the 152 candidates. The order further records that the Commission had not complied with the procedure for selection as prescribed in the Rules of 2002 as amended by the Rules of 2014, Section 18(1) of the Act of 2014 read with the Rules of 2015.
Accordingly, in terms of Rule 7 of the Uttar Pradesh Rules of Business-1975, the Governor, in exercise of the powers in the First Schedule of Rule 7 thereof has approved the cancellation of selection of 152 candidates. The order further records that the letter dated 25.4.2016 issued by the Government previously in respect of the aforesaid selection is also being cancelled.
The Court said that, evidently, the scale of irregularities in the selection procedure is extremely high involving about 1/3rd of the candidates who were illegally declared selected. Given the scale of the irregularities and the non-compliance of the statutory rules by the Commission in the selection process based on a flawed advertisement, the entire selection process stands vitiated.
“It has been held herein that it is the Rules of 2002, as amended by the Rules of 2014, that was in operation on the date of the said advertisement, and the said advertisement has been held to be flawed. Admittedly, the selection of the 152 candidates has been based on interview alone and even otherwise, large scale irregularities have been overlooked by the Commission in conducting the selection. Therefore, the decision of the State Government to cancel the selection by means of the order impugned dated 28.9.2017 is warranted and justified. However, the reference to the applicability of the Rules of 2015 in the order impugned in writ petition, is incorrect and to that extent only, the order impugned dated 28.9.2017 is erroneous and is set aside.
None of the selected candidates have yet been appointed. It needs no repetition that the successful candidates in the aforesaid selection process do not have indefeasible right to be appointed. The decision to cancel the selection and not to fill up the vacancies has been taken bona fide and for appropriate reasons.
For the reasons stated aforesaid, the impugned judgement of the Judge dated 19.12.2019 cannot be sustained and is hereby set aside. The Special Appeals are, accordingly, allowed and the writ petitions are dismissed,” the order reads.
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