The Allahabad High Court has dismissed a petition seeking review of the selection list prepared by the Uttar Pradesh Subordinate Services Selection Commission (UPSSSC) for the post of X-Ray Technician, among others.

The Single-Judge Bench of Justice Rajnish Kumar passed this order, while hearing a petition filed by Ashish Pandey and 16 Ors.

By means of the writ petition, the petitioners have approached the Court challenging the select list dated May 17, 2016 issued by the Uttar Pradesh Subordinate Services Selection Commission/opposite party no 3, which has been issued after selection in pursuance of the advertisement dated September 3, 2015.

A further prayer has been made for a direction to the opposite party no 3 (UPSSSC) for re-selection for the post of X-Ray Technician in accordance with law.

The facts of the case, as culled out from the pleadings on record, are that the opposite party no 3 issued the advertisement on 03.09.2015 for various posts including the post of X-Ray Technician under the Director, Medical and Health, UP, Lucknow.

The total number of posts advertised were 403. The mode of selection for the post of X-Ray Technician was an interview. It was also provided in the advertisement that the marks of the interview would be fixed with the approval of the State Government in accordance with the notification dated 11.05.2015, by which the Uttar Pradesh Group-C Direct recruitment (Mode and Procedure) Rules-2015 were notified. In pursuance thereof the selection has been held after holding interview, in which the petitioners had also participated, however they could not get the place in select list issued by the UPSSSC, which is impugned in the writ petition.

Counsel for the petitioner submitted that the selection for the post in question of X-Ray Technician has been held in violation of Rule 8 (1) of the Rules of 2015 without fixing and disclosing the marks of interview with the approval of the Government.

The interviews were held in a hurried manner. The interviews were held w.e.f 06.05.2016 to 14.05.2016, thereafter 15.05.2016 and 16.05.2016 were Saturday and Sunday and the result was declared on 17.05.2016.

After filing of the instant petition by the petitioners on 18.05.2016, appointment letters were issued on 01.06.2016 but the approval of marks of interview in terms of Rule 8 (1) of the Rule of 2015 has been granted by the State Government on 10.06.2016.

Therefore, the whole selection vitiates as the interviews have been held and the selection has been held without approval of marks of the interview by the Government in violation of the aforesaid rule.

Thus, the selection cannot be allowed to continue and the select list is liable to be quashed by this Court with a direction to the respondents to make re-selection for the post of X-Ray Technician in accordance with law.

The Counsel for the respondents submitted that the writ petition, on behalf of the petitioners, who had participated in the selection without any demur and are unsuccessful, is not maintainable.

He further submitted that Rule 8 (1) of the Rules of 2015 only prescribes that the marks of written examination/interview and rules relating thereof shall be such as prescribed by the Commission from time to time with the approval of the Government.

The UPSSSC fixed the maximum marks of interview as 20, in its meeting held on 03.02.2016, which were sent to the Government for approval on 05.02.2016 and thereafter the selection proceeded in view of the request of the department through letter dated 19.08.2015 for selection with utmost expedition and the selection was made in accordance with the marks fixed by the UPSSSC and the maximum marks fixed by the Commission has been approved by the Government by means of the letter dated 10.06.2016, and once the approval has been granted by the Government, the condition prescribed under Rule 8 (1) of the Rules of 2015 stands fulfilled because it does not prescribe the prior approval for selection.

On the basis of above, counsel for the respondents submitted that there is no illegality or error in the selection in question and the select list has been issued after holding the selection in accordance with law and the rules. The writ petition is misconceived and lacks merit. It is liable to be dismissed.

Counsel for the respondents adopting the submissions of counsel for the respondent no 3, further submitted that the merit of selection does not affect in any manner by the approval of marks subsequent to the issuance of the select list in any manner.

He further submitted that the petitioners has failed to point out any prejudice which may have been caused to the petitioners by approval of the maximum marks of interview after issuance of the select list and if no prejudice has been caused to the petitioners, it does not give right to the petitioners to challenge the selection and would not call for any interference by this Court as the selection has been held in accordance with law and there is no illegality or error in the selection made by the UPSSSC. The writ petition is misconceived and lacks merit. It is liable to be dismissed.

The Court noted that,

The select list has been challenged on the ground that the interview has been held in violation of terms of advertisement and Rule 8 (1) of the Rules of 2015 without fixing and disclosing the marks of interview.

The selection on the post of X-Ray Technician under the Directorate of Medical and Health, U.P, Lucknow has been held after holding interviews in pursuance of the advertisement dated 03.09.2015. It was provided in the advertisement that the marks of the interview would be fixed with the approval of the State Government in accordance with the provision made in the Uttar Pradesh Group-C Direct recruitment (Mode and Procedure) Rules-2015, notified on 11.05.2015.

The UPSSSC decided to fix the marks of the interview in its meeting held on 03.02.2016.

The aforesaid decision of the UPSSSC was communicated to the Government for required approval under Rule 8(1) of the Rules of 2015 by means of letter dated 05.02.2016.

In the meantime, the UPSSSC proceeded with the selection in view of the request of the Government, by means of the letter dated 19.08.2015, to hold the selection with utmost expedition. The interviews were held w.e.f 06.05.2016 to 14.05.2016, for which the petitioners were also called and they participated without any protest. After holding the interviews, the respondent no 3 declared the result of the selection on 17.05.2016.

In pursuance of the selection, the appointment letters were issued by the Government on 01.06.2016. The State Government, in pursuance of the letter dated 05.02.2016 of the UPSSSC, granted approval on the maximum marks of 20 of interview fixed by the UPSSSC, under Rule 8(1) of the Rules of 2015, by means of the letter dated 10.06.2016.

Thus, the approval on the maximum marks fixed by the Commission for interview was granted by the State Government.

The Court further noted that the action of UPSSSC in holding interviews without approval on marks fixed by the Commission has been assailed in this petition on the ground that it is in violation of Rule 8(1) of the Rules of 2015.

Sub-Rule (1) of Rule 8 provides that the marks of written examination / interview shall be such as prescribed by the Commission from time to time with the approval of the Government, meaning thereby the maximum marks of the interview are to be prescribed by the Commission i.e UPSSSC, on which the approval of the Government is required, therefore on approval of maximum marks of interview, by the Government which have been fixed by the Commission before interviews, the condition of Rule 8 (1) stands fulfilled, even if it is after the selection has been held because the Rule does not prescribes prior approval or permission on the marks fixed by the Commission.

The Court observed, “Advertising to the facts of the case, it is apparent that the 20 maximum marks of the interview prescribed by the UPSSSC on 03.02.2016 has been approved by the Government on 10.06.2016, therefore the condition of Rule 8(1) of Rules of 2015 stands fulfilled, therefore it cannot be said that the selection has been held in violation of the said rule.Counsel for the petitioner had also tried to argue that the selection has not been made in a fair and proper manner on the ground that in the interview a particular number of marks has been awarded to several candidates who have been selected, but neither there is any pleading in this regard in the petition nor any amendment has been made by the petitioners after coming to know about it. Therefore, the Court is of the view that in absence of any pleading, the contention raised at the time of argument cannot be accepted. It goes without saying that in such cases the career of a number of candidates is on stake who have participated in the selection after making preparation and have successfully cleared the selection and got the appointment, therefore a roving and fishing enquiry to fish out the discrepancies in the selection process without proper pleading at the instance of unsuccessful candidate, who participated without any demur is not permissible. Such contention is only liable to be repelled.”

It found that the petitioners, having participated in the selection process without any demur or protest and having failed to get the place in the select list, have challenged the selection, whereas they cannot turn around and challenge the selection process.

“There is another aspect of the matter, as argued by the counsel for some of the private respondents also, that even if it is found that there is any discrepancy, the selection cannot be quashed, unless it is shown by the petitioners that they have prejudiced in any manner by it. In the case, the petitioners have failed to show that they have been prejudiced in any manner or suffered any harm, injury or they were at disadvantage by subsequent approval on the maximum marks by the Government, which were fixed by the Commission.

“In view of above, the Court is of the view that there is no illegality or error and violation of Rule 8(1) of the Rules of 2015 in selection in question, therefore this Court is of the view that the writ petition has been filed on misconceived ground, which lacks merit and is liable to be dismissed,” the Court observed while dismissing the petition.

The Lucknow Bench of the Allahabad High Court has refused to stay the recruitment process for the posts of Health Workers (Female) in the state.

A single bench of Justice Suneet Kumar passed this order while hearing a petition filed by Anju Devi and 171 Others.

By the writ petition, petitioners have challenged the validity of the advertisement dated 15 December 2021, issued by the third respondent Uttar Pradesh Subordinate Service Selection Commission (UPSSSC), Lucknow, for filling up the post of Health Workers (Female).

The challenge, inter alia, is in respect of 5,628 posts of Health Worker (Female) which was earlier advertised on December 1, 2016 and as also the vacancies that have arisen prior to the enforcement of the Uttar Pradesh Medical, Health and Family Welfare Department Health Workers and Heath Supervisors (Male and Female), Non-Gazetted Service Rules, 2018 i.e before December 31, 2018.

It is urged that all these posts/vacancies of Health Workers (Female) be kept out of the selection pursuant to the impugned advertisement.

The anchor-sheet of the argument of the senior counsel for the petitioners rests on the premise that the selections on that many posts pertaining to Health Workers (Female) would be governed by the Uttar Pradesh Medical, Health and Family Welfare Department Health Workers and Health Supervisors (Male and Female) Service Rules, 1997 (for short ‘Rules, 1997’). The Rules 1997, admittedly, came to be superseded by the subsequent Rules, 2018, governing the selections of Health Workers (Female).

The Court observed that it is not being disputed by the counsel for the petitioners that the impugned advertisement has been issued after enactment of Rules, 2018, and the selections are to be governed under the Rules prevalent on the date of advertisement i.e Rules, 2018.

At this stage, the only question that arises is, as to whether, the selections in respect of the number of posts advertised or vacancies arising prior to December 31, 2018 can be directed to be filled under Rules, 1997. If the answer is in the affirmative, then the petitioners are entitled to interim relief.

The Court noted,

Attention of the Court has been drawn on the decision rendered by the Single Judge of the Court in Priyanka Shukla and others vs State of U.P and others. The issue before the Court was with regard to the advertisement issued in 2016 pertaining to 5628 posts of Health Worker (Female). The advertisement was under challenge and a further direction was sought that the respondents appoint the petitioners on the basis of their batch-wise seniority of training and also to relax the age limit for those candidates, who have become overage. The writ petition came to be allowed directing the respondents to consider the petitioner’s appointment on the basis of batch-wise seniority of training.

The operative portion of the order reads thus:

“In the result writ petitions succeed and are allowed. The respondents are directed to consider the petitioners for appointments on the posts of Health Worker (Female) as advertised on 01.12.2016, on the basis of their batch wise seniority of training.”

In this backdrop, it is urged by the counsel for the petitioners that mandamus issued by the Court is binding upon the State-respondents and it cannot be set at naught by the subsequent advertisement issued under the Rules, 2018, as vested right accrued to the petitioners. In other words, many posts of Health Workers (Female) and the vacancies that have occurred until the enactment of Rules, 2018 (31.12.2018) have to be considered for selection/appointment under the rules applicable at that point of time under Rules, 1997.

In rebuttal, counsel appearing for the State respondents has placed reliance on the decision rendered by the Division Bench of the Court in Reeta Singh and others vs State of UP and others.

The issue before the Court was that the Health Worker (Female) employed on contract basis in the State at different Community Health Centers, raised a challenge to the same advertisement 2016 for recruitment of 5628 posts of Health Worker (Female) on the premise that Rule-5 and Rule-8 of the Rules, 1997, is ultra vires of Article 14 and 16 of the Constitution of India. The Division Bench allowed the writ petitions declaring the Rules violative of Article 14 and 16 of the Constitution and quashed the advertisement.

It is submitted by the counsel for the respondent that in compliance and in pursuance to the Division Bench judgment, the State framed Rules, 2018 and thereafter, all the vacancies have been advertised.

The Court further noted that,

It is further urged that Part-V of the Rules, 2018 prescribes the procedure of recruitment. Rule 15(b) protects the interest of Health Workers working on contract basis by providing a weightage of maximum 15 marks having regard to the number of years they have put in service on contract.

In other words, it is submitted that the advertisement issued in 2016 for 5628 posts of Health Worker (Female) was quashed, therefore, the direction of the Single Judge of the Court to fill up the vacancies has been rendered of no consequence as the advertisement was quashed. The petitioners, therefore, cannot press that the 5628 posts be filled under the superseded Rules, 1997.

That apart on specific query, counsel for the petitioners fairly submitted that the vires of the Rules, 2018, is not under challenge, but the petitioners claim their right under the superseded Rules. Further, the petitioners have also not appeared in the written examination pursuant to the advertisement. It is further pointed out that the impugned advertisement was issued on 15 December 2021, and the written examination has also been conducted on 8 May 2022, by the Commission.

The petitioners have approached the Court at the fag end of the selections by filing the instant writ petition on 16 May 2022.

In the circumstances, at this belated stage, the interim relief cannot be pressed as the petitioners were fully aware of the advertisement and that the selections are to be made as per Rules, 2018, but for the reasons best known to them they did not knock the doors of the Court, the Court said

In this view of the matter the application for interim relief, at this stage, cannot be allowed, the Court further said while rejecting the stay application.