RAVI SHANKAR JOSHI Vs. ANIL JOSHI
LAWS(UTN)-2012-5-36
HIGH COURT OF UTTARAKHAND
Decided on May 02,2012

Ravi Shankar Joshi Appellant
VERSUS
ANIL JOSHI Respondents

JUDGEMENT

BARIN GHOSH,.J. - (1.) THERE is a Rule known as "Uttar Pradesh Medical, Health and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998". After the creation of the State of Uttarakhand, the said State adopted the said Rules. In terms of Rule 15 of the said Rules, direct recruitment to the posts created by the said Rules was directed to be made in terms of the provisions contained in Uttar Pradesh (Outside the purview of the Public Service Commission) Group 'C Recruitment Rules, 1998. The said Rules of 1998, therefore, did not specify any specific mechanism for recruitment to the posts created by the said Rules. There appears to be no dispute that Uttar Pradesh (Outside the purview of Public Service Commission) Recruitment to the posts of Group 'C Rules, 1998 laid down a specific procedure for recruitment of people to be engaged in Group 'C posts.
(2.) ON 4th August, 2008, in exercise of power conferred by the proviso to Article 309 of the Constitution of India, the State of Uttarakhand amended the said adopted 1998 Rules by substituting Rule 15 thereof. By the substituted Rules, amongst others, a direction was given for constitution of a selection committee comprising of those persons, mentioned therein. It was directed that the selection shall be made by conducting a written examination, consisting of a single question paper and containing objective type questions. It was stated that the written examination will carry 100 marks. It was then stated that questions will be in General Hindi, General Knowledge and concerned subject. It was also stated that one -fourth mark shall be deducted for each incorrect answer as negative marking. It stated that, in addition to the candidates being awarded marks that they will obtain in written examination, the candidates will be awarded 30% and 70% marks, for the percentage of the marks obtained by them in intermediate examination and diploma /degree examination respectively. It stated that the merit -list shall be prepared by the selection committee on the basis of the aggregate of marks obtained in the test for selection carrying 200 marks, which will include 100 marks for written examination, 30% marks of intermediate examination and 70% marks of diploma /degree examination. It also indicated that the candidate, obtaining less than 40% marks in the written examination and less than 30% marks in diploma examination, shall be unfit for selection. The said 1998 adopted Rules with the amendment was holding the fort, when an advertisement came to be published by the Uttarakhand Board of Technical Education, Haridwar. By that advertisement, it was held out that the said advertisement is being issued for the purpose of combined selection of Group 'C posts available in the State Government. One of those posts, so advertised, was the post of Physiotherapist governed by the said 1998 adopted Rules as stood amended on 4th August, 2008. In the advertisement, it was held out that an examination will be conducted for selecting the right candidate for being recommended for appointment in those posts of Physiotherapists too. It was also held out that the examination will be of objective type carrying 100 marks, of which 50 marks will be dedicated to General Hindi, General Knowledge, General Studies and Geographical, Cultural, Academic and Historical Background of the State of Uttarakhand and remaining 50 marks for the optional subjects. It was indicated that the marks obtained in the said written examination will entail placement of the candidates in their order of merit in the merit -list to be prepared. Private respondents, seven in number, responded to the said advertisement and chose physiotherapy paper as their optional paper. They appeared in the examination and, subsequent thereto, they were declared unsuccessful. Thereafter, they approached the writ court by filing a writ petition and thereby contended, principally, three things, namely, in view of the Rules governing, Uttarakhand Board of Technical Education could not be the selector, instead the selector could have been those, who have been constituted by the amended adopted Rules of 1998. They next contended that some of the candidates, shown to have been selected, obtained less than 40% marks in written examination and less than 30% marks in diploma examination, despite they having been declared unfit for selection by the Rules. They lastly contended that in terms of the Rules, selection could be made on 200 marks and not on 100 marks, as has been done. By the judgment and order under appeal, private respondents have succeeded in their writ petition. Hence, the present Appeal.
(3.) IT is settled law that it must be deemed that people know the law. Each of the private respondents, therefore, knew the law governing the subject, when the advertisement was published. They knew that by the advertisement, selection committee, prescribed by the Rules, has been replaced by some other body. After having had taken a chance before that other body, private respondents could not turn around and contend that the selector, who has not selected them, was not the appropriate selector. In the advertisement, it was not indicated that a person, who has not received 40% marks, at least, in the written examination will be disqualified, despite the same being one of the terms of selection stipulated in the Rules governing the recruitment. Private respondents, having not raised any grievance in relation thereto, while unconditionally responding to the advertisement, cannot turn around and contend violation or breach of that part of the Rules in the advertisement. The advertisement, however, did not speak a word as regards obtaining of not less than 30% marks in diploma examination for being qualified to be selected. At the same time, the advertisement did not speak a word about another 100 marks as provided in the Rules, comprising of 30% marks for intermediate examination and 70% marks for diploma /degree examination and the law being settled that statutory Rules must be read into the advertisement, it should be deemed that the advertisement held out, amongst others, that in order to be selected, a candidate is required to obtain not less than 30% marks in diploma /degree examination and also that the merit -list is to be prepared on the basis of aggregate of marks obtained in the test for selection carrying 200 marks, which will include 100 marks for written examination, 30% marks for intermediate examination and 70% marks for diploma/ degree examination. To that extent, it was well within the competence of the private respondents to approach the Court to state that selection has not been done in the manner the same was required to be done. The learned counsel for the appellants drew our attention to the Uttarakhand Procedure for Direct Recruitment for Group 'C Posts (Outside the Purview of the Uttarakhand Public Service Commission) Rules, 2008 made by the State Government on 1st October, 2008 in exercise of power under proviso to Article 309 of the Constitution of India. It was submitted that by virtue of the said Rules, the method of recruitment provided therein applied to the Group 'C posts also mentioned in the adopted 1998 Rules, as amended on 4th August, 2008. It was submitted that, in terms thereof, there is now no need for including marks obtained in intermediate examination and diploma/degree examination, nor there is any requirement of obtaining at least 30% marks in diploma/degree examination for being selected. We have read the Hindi as well as the English version of the 2008 Rules. In view of Rule 1(3) (i -a) of the English version and Rule 1 (3)(ii) of the Hindi version of the 2008 Rules, we are of the view that from the said Rules, those posts of the department, where the minimum academic qualification is not less than Intermediate, have been excluded. That being the situation, the conclusion would be that the learned Judge while was not right in interfering with the entire selection process, private respondents were entitled to insist for a direction to complete the selection process by adding 30% marks for intermediate examination and 70% marks for diploma /degree examination to the marks obtained by each examinee, who appeared in the examination conducted by the Board and also to declare that those, who have not obtained 30% marks in diploma/degree examination are unfit.;


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