- (1.) Heard Seemant Singh, Mahendra Singh, Jitendra Kumar, Chandra Dutt and Ajay Kumar Sharma, Advocates for petitioners; Neeraj Tripathi, Senior Advocate, Additional Advocate General for State; Siddharth Singhal, Advocate for U.P. Subordinate Service Selection Commission, Radha Kant Ojha, Mujib Ahhmad Siddiqui, B.S. Pandey, Sanjeev Kumar Singh, J. S. Baghel, Kailash Singh Kushwaha and Vijay Kumar Singh, Senior Advocate for private respondents.
(2.) In all the writ petitions similar relief has been sought, hence they are being decided by this common judgment.
(3.) Facts of the present case. 3.01 The present set of writ petitions are in regard to selection for the post of Lab Assistant namely: Combined Laboratory Technician General Recruitment Competitive Examination, 2016 (hereinafter referred to as "Examination 2016"). The essential qualifications for the post concerned are prescribed in Rule 8 of the U.P. Laboratory Technician (Medical, Health and Family Welfare Department) Service Rules, 1994 (hereinafter referred to as the "Rules, 1994") which reads as under: "8. For direct recruitment to the post of Laboratory Technician, applicant must have passed Intermediate Examination conducted by the Uttar Pradesh Board of High School and Intermediate Education with science or any examination recognized by the government as equivalent thereto and must posses Laboratory Technician diploma awarded by the Uttar Pradesh State Medical Faculty, Lucknow or any equivalent diploma from any recognized institution." (English translation by the Court). 3.02 The State Government issued a Government Order dated 20.12.2003, in compliance of common judgment and order dated 23.5.2003 passed by Lucknow Bench, leading writ petition being Writ Petition No.7001 S/S of 2001, Atul Kumar Bhardwaj and Ors. Vs. State of U.P. and Anr., wherein it is provided in paragraph 11 that the candidates in possession of Diploma in Lab Technician trade shall be required to be registered with the U.P. State Medical Faculty and only such candidates shall be eligible for appointment/selection to the post of Lab Technician. 3.03 The aforesaid Government Order was subject matter of challenge in Writ Petition No.64102 of 2013, (Shailesh Kumar Vs. State of U.P. and Ors), wherein the co-ordinate bench of this court vide judgment and order dated 25.11.2013 rejected the writ petition and refused to interfere with the said government order. 3.04 The selection process was required to be conducted as per the procedure prescribed in U.P. Procedure for Direct Recruitment against Group 'C' Post (Outside the Purview of Public Service Commission (Fourth Amendment) Rules, 2014 notified on 29.1.2014 (to be referred as Rules 2002 as amended). 3.05 Initially, U.P. Subordinate Services Selection Commission (hereinafter referred to as "UPSSSC") issued advertisements dated 16.6.2016 and 16.8.2016 for recruitment/appointment on the post of Lab Technician. However, it was challenged and quashed by a co-ordinate bench at Lucknow Bench with the direction to UPSSSC to issue fresh notifications strictly in accordance with the provisions contained in 'Rules, 2002 as amended' in the case of Keshv Pal and 2 Ors. Vs. State of U.P. through Principal Secretary, Medical and Health Lucknow and Ors; Service Single No.18077/2016 decided on 19.8.2016. 3.06 In compliance of the abovementioned directions, UPSSSC issued fresh advertisement No.17/Examination/2016 dated 09.9.2016 for conducting Combined Lab Technician Examination, 2016 in accordance with Rules, 2002 as amended by Fourth Amendment Rule 2014. Break up of vacancies is as follows: JUDGEMENT_30_LAWS(ALL)9_2020_1.html 3.07 In pursuance of the abovementioned advertisement, written examination was conducted on 20.11.2016, result thereof was declared on 19.12.2016. The UPSSSC declared cut off marks of all the categories, by office memorandum dated 3.2.2017, which is as follows: 3.08 Meanwhile, the above referred advertisement dated 09.9.2016 was challenged before a co-ordinate bench at Lucknow Bench in Mahendra Veer Vikram Singh and Ors. Vs. State of U.P. and Ors, (S/S) No.2350 of 2017, on the ground that the said advertisement was not issued in tune with the judgment and order dated 23.5.2003 passed by co-ordinate bench at Lucknow Bench in writ petitions, leading being Atul Kumar Bhardwaj (supra) and the same was also in derogation of the Government Order dated 20.12.2003, issued in compliance of said judgment. 3.09 The said writ petitions were disposed of vide order dated 14.2.2017 with certain directions. The relevant observations and the directions passed by the co-ordinate bench at Lucknow Bench are as follows: "The basic premise of challenge put forth by learned counsel for the petitioners in both the petitions is that the prescription in relation to the eligibility qualification as advertised is not in tune with the judgement and order dated 23.05.2003 passed by this Court in a bunch of writ petitions, leading writ petition being Writ Petition No.7001 (S/S) of 2001 and the same is in derogation of the Government Order issued on 20.12.2003 by the State Government for ensuring compliance of the judgement and order dated 23.05.2003 passed by this Court. The recruitment to the post of Lab Technicians is governed by Uttar Pradesh Lab Technician (Medical, Health and Family Welfare Department) Service Rules, 1994 as amended from time to time. Rule 8 of the said Rules provides the eligibility educational qualification for appointment to the post in question, according to which only those candidates will be eligible for appointment by way of direct recruitment who have passed Intermediate examination from the Board of High School and Intermediate Education, U.P. Allahabad or any equivalent examination and who are possessed with diploma in Lab Technician granted by the U.P. State Medical Faculty or any other diploma equivalent thereto from a recognized institution. In relation to eligibility qualification, as prescribed in Rule 8 of the Service Rules, various writ petitions were filed before this Court by certain individuals which were connected and decided by a common judgement and order dated 23.05.2003, leading writ petition being Writ Petition No.7001 (S/S) of 2001; Atul Kumar Bhardwaj and others vs. State of U.P. and another. The Court quashed the order/letter dated 05.12.2001, which was under challenged in the aforesaid bunch of writ petitions, and directed the State Government to decide the question of equivalence of the Lab Technician diploma held by the petitioners therein and their eligibility to participate in the selection process for the post of Lab Technician by a speaking order. In compliance of the said order dated 23.05.2003, the State Government took a decision, which is embodied in the Government Order dated 20.12.2003, which has been annexed as annexure no.2 to the Writ Petition No.2350 (S/S) of 2017. According to the said Government Order, U.P. State Medical Faculty was directed to determine the equivalence of the diploma granted by other institutions in accordance with the conditions laid down in the said Government Order. The Government Order dated 20.12.2003 further states that the candidates in possession of diploma in Lab Technician Trade shall be required to be registered with U.P. State Medical Faculty and only those candidates who are registered with U.P. State Medical Faculty shall be eligible for appointment/selection to the post of Lab Technician." xxxx xxxx "It has been stated by learned counsel for the petitioners that the Government Order dated 20.12.2003 became subject matter of challenge before this Court in Writ-A No. 64102 of 2013; Shailesh Kumar vs. State of U.P. and others. This Court while deciding the said petition by means of judgement and order dated 25.11.2013 did not find any justification to interfere with the Government Order dated 20.12.2003. The Government Order dated 20.12.2003, thus, having been affirmed by this Court by means of the aforesaid order, has to be given effect to by the selecting body while making selection/appointment to the post in question. However, in absence of the requisite informations/materials which the State Government and the concerned department were required to furnish to the Commission, the apparent discrepancy in the advertisement appears to have crept in." xxxx xxxx "Accordingly, the petitions are disposed of with the direction to the Commission to proceed with the selection against the posts in question in accordance with law and also taking into account the provisions contained in Government Order dated 20.12.2003. It may further be observed that it is common knowledge that the State of U.P. is facing scarcity of Paramedical staff which are urgently needed and hence, the Court expects and hopes that the entire selection process initiated on issuance of the impugned advertisement shall be completed expeditiously and for the said purpose, the merit list prepared earlier on the basis of written examination without taking into consideration the provisions contained in the Government Order dated 20.12.2003 shall be redrawn and accordingly the interview shall be held. The entire process for selection shall be completed expeditiously, say, within a period of three months from today." (emphasis supplied) 3.10 The above referred judgment and order dated 14.2.2017 was challenged by some of the candidates who were declared selected in the result of written examination, but likely to be eliminated if the above referred directions passed in the said judgment are executed, by way of filing Special Appeal Defective No.145 of 2017, (Pragati and 16 Ors. Vs. Mahendra Veer Vikram Singh and 9 Ors) and Special Appeal Defective No.118 of 2017, (Akil Khan and Anr. Vs. Mahendra Veer Vikram Singh and Ors.) 3.11 The said Special Appeals were disposed of with certain directions vide judgment and order dated 04.4.2017, by Division Bench at Lucknow Bench. The relevant observations and directions are reproduced below: "2. These two appeals have been filed seeking leave to appeal to question the correctness of the judgment of the learned Single Judge dated 14.02.2017, the fallout whereof is directly affecting the appellants, and it is alleged that they having succeeded in the selection process would now be eliminated from the merit list, which is to be prepared under the impugned judgment, inasmuch as, the appellants are now sought to be non-suited on the ground that they do not possess the equivalent qualifications/eligibility criteria as per the Government Order dated 20.12.2003, which requires the registration of such candidates with the U.P. State Medical Faculty, which is a sine-qua-non as per clause 11 of the aforesaid Government Order." "5. As a consequence of the aforesaid judgment, the matter was deliberated upon and the State Government issued the Government Order dated 20.12.2003. While prescribing the parameters and ingredients of equivalence, the G.O. also imposed an additional condition of registration with the U.P. State Medical Faculty as contained in Clause 11 thereof, which is extracted herein under: "7. It appears that advertisements were issued on 08.01.2016 and again on 15.09.2016 for filling up the post of Lab Technicians which is the subject matter of the present appeal. The appellants also applied and claim that they have qualified in the written examination. It is at this stage that a challenge was raised by those persons who had not succeeded and qualified by filing writ petitions that have given rise to these appeals. The writ petitions were entertained without impleading the appellants or any other successful candidates and has been ultimately disposed off by recording a finding that the selection process has proceeded without complying with the terms and conditions as prescribed in the Government Order dated 20.12.2003 and consequently, the entire process has to be revisited and the list of successful candidates rearranged after applying the eligibility conditions prescribed therein. "8. Learned counsel for the appellants contend that this would amount to changing the rules of the game after the game has been played and consequently the learned Single Judge has committed an error in proceeding to issue such directions without there being any such condition imposed in the advertisements under which the selections are being held. It was the specific case of the appellants that this condition was not contained or even indicated in the advertisement and consequently, the directions of the learned Single Judge would be re-defining the advertisement thereby causing prejudice to the appellants. It is also submitted that there was no notice to the appellants about the inclusion of any such term and condition of eligibility nor any opportunity was given to the appellants to even obtain the registration from the U.P. State Medical Faculty. In such circumstances, this would amount to denial of opportunity thereby violating Article 14 and 16 of the Constitution of India." "9. Learned counsel for the appellants, therefore, submit that the impugned judgment cannot be permitted to be applied in relation to such selections that are a consequence of the advertisements dated 08.01.2016 and 15.09.2016. It is urged that the terms of eligibility after the selection is over cannot be altered so as to eliminate the appellants from the select list. It is urged that even though a mere selection cannot give a right of appointment but if the selection procedure is sought to be altered then any subsequent change in eligibility cannot be a ground to eliminate the appellants on the strength of a condition, which was never part of the advertisement on the basis whereof, selections are being held." "12. We have considered the aforesaid submissions and after having heard learned counsel for the parties, we find that a selection, which is being held bereft of the compulsory rules of eligibility cannot be said to be valid selection and consequently, if the selection is sought to be rectified by introducing the said compulsory eligibility criteria, we do not find any error in the direction issued by the learned Single Judge in applying the said eligibility conditions, if it has been deliberately omitted to be mentioned in the advertisement. A mere omission would not alter the terms and conditions of eligibility inasmuch as that by itself would violate Article 16 of the Constitution of India." "13. We are, therefore, of the opinion that the learned Single Judge was fully justified in proceeding to apply the eligibility conditions, the terms whereof have already been upheld by the judicial pronouncement dated 25.11.2013. Admittedly, the challenge raised to the terms and conditions having been upheld by this Court, there is no occasion now to accept the argument that the selections should be allowed to be completed without complying with the provisions of the eligibility as prescribed in the Government Order dated 20.12.2013. We, therefore, uphold the judgment of the learned Single Judge to that extent. 14. Having said so, what appears is that the said judgment has been delivered without putting any other qualified candidates including the appellants to notice and without providing any opportunity to such candidates to avail the facility of registration from the U.P. State Medical Faculty. To this, learned counsel for the respondents submits that after the judgment impugned herein was delivered on 14.02.2017, the appellants were very well are of the said terms and conditions that were to be applied. More so, after the issuance of notice on 06.3.2017 to the effect that the appellants would not be further eligible to be considered for selection. The appellants having failed to avail of this intervening period to get themselves registered with the U.P. State Medical Faculty, therefore, cannot be a reason for them to claim that they should be extended any benefit by setting aside the impugned judgment. It is, therefore, submitted that having failed to avail of this opportunity, they cannot now question the correctness of the impugned judgment on this ground." "15. On this issue, we find ourselves at variance with the submissions raised on behalf of the respondents inasmuch as it is admitted that the advertisement did not mention the aforesaid eligibility condition and which omission was either deliberate or by mistake, may not be a reason to deny the opportunity to the appellants, who have already applied and have qualified in the written examination. This eligibility, in our opinion, can be rectified in the event the appellants succeed in getting themselves registered with the U. P. State Medical Faculty. Consequently, an opportunity to them with a reasonable time to get registered ought to be given keeping in view the aforesaid background of the litigation and the circumstances in which the impugned judgment has brought about this situation. "16. Consequently, we direct that all the appellants herein and such other similarly situate candidates, who are not before the Court, would be entitled to apply before the U.P. State Medical Faculty and in the event they are successfull in obtaining such registration from the competent authority, it will be open to them to bring it to the notice of the respondent Commission, and the Commission shall proceed to comply with the judgment of the learned Single Judge dated 14.02.2017 including the names of such candidates who succeed and are able to supply the said registration certificate before the Commission within one month from today. In the event the appellants apply before the U.P. State Medical Faculty for such a registration, such applications shall be disposed off within three weeks from the date of presentation of a certified copy of this order in order to ensure that in the event they are extended the benefit of registration, they may be able to avail the benefit during the final selection. The appellants and other similarly situate candidates shall be entitled to be considered provided they have qualified in the written exam and are otherwise qualified and eligible as per the relevant rules and the Government order referred to herein above." (Emphasis supplied) 3.12 In compliance of above referred directions, the UPSSSC issued an Important Information dated 25.4.2017 to call upon all the candidates who were covered by the said judgment to submit their registration certificate issued by U.P. State Medical Faculty till 24.5.2017. Last date for submission of certificate was extended till 06.11.2018 by subsequent notification dated 31.10.2018 as mentioned by the UPSSSC before this Court by way of short counter affidavit dated 28.7.2019 and further that as per the guidelines, the Commission has to call three times candidates of the post advertised. 3.13 As per the stand taken by UPSSSC, in the present case 477 posts of General Category were advertised, therefore, 1431 candidates were required to be called for interview applying principle of '3x'. Since, only 1148 candidates were available in the said category, therefore, even the last candidate from General Category was called for interview. Such last candidate had obtained 0.5 marks in the written examination. In terms of ratio of judgment passed by this Court in Lalit Kumar Vs. State of U.P. and Ors, Writ Petition No.68706 of 2015, decided on 11.1.2016 cut off marks of other categories were also lowered down. On the basis of new cut off marks, the merit list was redrawn and finally the merit list was declared of total number of 6494 candidates who were included within the zone of eligibility for interview and the result of the written examination declared earlier on 29.12.2016 was cancelled and redrawn merit list was declared on 07.1.2019. The candidates were called for interview from 17.1.2019 to 2.2.2019. The UPSSSC issued a new information dated 15.1.2019 for all the candidates who had participated in the written examination to submit their self attested copy of the registration certificate issued by the U.P. State Medical Faculty. In pursuance of the said information 278 candidates, also submitted their certificates and were declared eligible to participate in the interview. Thus, making the total number of candidates to appear in the interview to 3772. The final result was declared on 15.6.2019 against 921 posts of Lab Technician. The final cut of marks after the interview declared by UPSSSC on 15.6.2019, is as follows: 3.14 In total, 11 Writ Petitions are filed before this Court challenging the impugned final result dated 15.6.2019. None of the writ petitioners have challenged select redrawn list dated 7.1.2019 and declaration of cut off marks dated 15.6.2019. According to the records available, neither the writ petitioners nor the respondents have approached the Division Bench for any clarification of the judgment and order passed by Division Bench nor any review petition is preferred. 3.15 The case set up by the petitioners in the writ petitions is mainly on the ground that under the garb of redrawing of the merit list, large number of candidates who were not able to qualify earlier in the written examination, are now declared to be qualified and made eligible for interview. Even the candidates who did not possess the requisite qualification of Diploma before the cut off date were also declared eligible for interview and finally some meritorious candidates were left out and less meritorious candidates got selected and therefore merit was compromised. 3.16 This Court by order dated 26.8.2019 after taking note of cut off marks on the basis of which final merit list was issued passed an interim order. Operative part of the order is reproduced below:- "Till the next date of listing, the impugned result dated 15.6.2019 shall be kept in abeyance. The State Government shall not issue any further appointment pursuant to it and the appointments already made shall remain subject to the outcome of the present writ petition." 3.17 This Court by another order dated 08.1.2020 extended the above referred interim order and disposed of all the impleadment applications/intervention applications. Relevant part of the order is mentioned below: "All these impleadment applications and applications styled as intervention application have been filed by the selected candidates. A representative number of the selected candidates are already on record as respondent Nos.3 to 11. All these impleadment applications are disposed of with a direction that the applicants in each of the impleadment or intervention applications made shall be heard under Chapter XXII Rule 5A of the Rules of the Court. The names of each of the learned counsel who have filed the above detailed impleadment applications shall be printed in the cause list on 22.01.2020." 3.18 Later on an application was filed by the State of U.P. for modification of the interim order dated 26.8.2019, seeking permission to continue with the process of appointment of the remaining 729 posts of Lab Technicians. After hearing the parties, prayer was allowed and the interim order dated 26.8.2019 was accordingly modified vide order dated 13.5.2020 passed by this Court, which stated that: " The COVID-19 Pandemic has already spread all over the India including State of U.P,. despite various remedial steps taken by the concerned authorities. The Lab Technicians have important role in testing which is increasing day by day. It is on record that about 186 Lab Technicians have joined their respective post before the interim order dated 26.8.2019 was passed though their appointments are kept subject to the outcome of the present writ petitions. Considering subsequent developments due to COVID-19 Pandemic and the importance of the Lab Technicians for testing, this Court is of the view that State be permitted to fill up remaining 729 posts of the Lab Technicians. However, their appointments shall also remain subject to the final outcome of the writ petition. Accordingly, paragraph no.8 of the order dated 26.8.2019 is modified and is to be read as follows "State of U.P. is permitted to expeditiously carry out the process of joining of remaining 729 selected Lab Technicians from the selection list. Appointments made prior to order dated 26.8.2019 as well as subsequent to present order, shall remain subject to the final outcome of the present writ petitions". ;