H. C. Mital, J. - (1.) ACCORDING to the petitioner Director General of Prosecution, U. P. Lucknow, respondent no. 2. through letter dated 22-5-1987 had asked the District Magistrates of the State including that of Aligarh, respondent no. 4 for selection of candidates as junior clerk to be appointed through a Selection Committee. Posts were advertised on 21-6-1987 thereafter the petitioner had appeared in the test before the Selection Committee comprising of A.D.M. Civil Supplies, Aligarh, S.D.M. Khair, Aligarh and the Senior Prosecuting Officer, Aligarh. The petitioner was selected and stood first in the test and his name along with other candidates was sent for approval and appointment to the Director General of Prosecution, Lucknow through letter dated 2-9-1987 that when he did not receive the letter of appointment he enquired from Director General of Prosecution, Lucknow and he was informed by letter dated 31st October, 1987 that the District Magistrate, Aligarh had not been asked to select candidates for the post and, therefore, his appointment could not be approved. The action of the Director General of Prosecution has therefore been challenged being illegal and without jurisdiction and a relief of issue of mandamus commanding the respondents to appoint the petitioner on the post of junior clerk in Prosecution, Aligarh has been prayed.
(2.) ON behalf of the respondent, the petition has been contested on the ground that no doubt through latter dated 22-8-1987 the District Magistrate, Aligarh was also asked for the selection of junior clerks in the office of S.D.O. Aligarh and that the name of the petitioner was also recommended by the Selection Committee appointed but the selection of the petitioner was not in accordance with the provisions of rules 16 and 17 as contained in G. O. No. 20/7-1986 Karmik-2, Lucknow dated 8-9-1986 which reads as, follows "For the purpose of recruitment to any post there shall be constituted a Selection Committee as follows : 1. Appointing Authority; 2. An officer belonging to Scheduled Caste, Scheduled Tribe, nominated by the District Magistrate, if the appointing authority or his nominee does not belong to Scheduled Caste/Scheduled Tribe, if the appointing authority or his nominee belongs to Scheduled Caste/Scheduled Tribe, as officer other than belonging to Scheduled Caste/Scheduled Tribe to be nominated by the District Magistrate. 3. Two officers, nominated by the appointing authority, one of whom shall be an officer belonging to minority community. If such suitable officer is not available in his department or organisation such officer shall, on the request of appointing authority, be nominated by the District Magistrate on his failure to do so by reason of non-availability of suitable officer which officer shall be nominated by the Divisional Commissioner". It was contended that the Selection Committee of Aligarh comprises of only three members while according to the above rules there should have been four members in the committee and consequently the Director General Prosecution did not approve the selection of the petitioner. That apart, it is further contended that the Director General Prosecution subsequently took the decision for selecting at the central basis at the prosecution headquarter as there had been gross delay in the selection of junior clerks at the district level and the government work was suffering ; and a circular order to that effect was issued by the Director General Prosecution on 25-8-1987. The first point which arises for decision is whether on account of gross delay committed by the District Magistrate, Aligarh, the selection of the petitioner had been validly not approved. It is not disputed that the typing test was held on 21st July, 1987; Interview took place on 25-7-1987 and thereafter the District Magistrate, Aligarh through letter dated 2-9-1987 had forwarded thename including that of the petitioner for appointment as junior clerk. The latter authorising the District Magistrate to hold test and send a list of selected candidates was dated 22nd May, 1987. Under the circumstances it could not be said that there was any delay, least to say gross delay on the part of the Disirict Magistrate when the interview had been concluded on 25-7-1987 and in the Selection Committee, Senior Prosecuting Officer and an officer of the department of the Director General Prosecution was also a member of the Selection Committee.
(3.) HOWEVER, it was further urged that by the subsequent letter dated 25-8-1987 the authority of the District Magistrate, Aligarh to make selection for junior clerks was terminated and therefore the selection by the committee appointed by the District Magistrate, Aligarh, could not legally recommend the names for appointment. This connection is also devoid of merit in view of the decision of the Honourable Supreme Court in the case of A. A. Colton v. The Director of Education, AIR 1983 SC 1143; wherein the power of the Director to make appointment under section 16-F (4) of the U. P. Intermediate Education Act (2 of 1921) in the case of minority institution was taken away by the U. P. Act 26 of 1975 which came into force on 18-8- 1975, where the proceedings for selection of the Principal of an Intermediate College (a minority instituiion) had commenced in the year 1973 and the Deputy Director had disapproved the recommendations made by the Selection Committee twice, the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. Although the Director in that case exercised that power subsequent to 18-8-1975 on which date the amendment came into force, it could not be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to 18-8-1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings.' Therefore, it cannot' be said that the selection list prepared by the Selection Committee submitted by the District Magistrate after 22-8-1987, though the proceeding of selection had commenced from 21-7-1987 and completed on 25-7-1987 after the interview was not with the authority of the Director General of Prosecution and invalid. The next point raised on behalf of the respondent is that the Selection Committee was not according to the rules as provided in the GO. dated 8-9-1986 which requires that the Selection Committee shall be constituted of an officer belonging to the Scheduled Caste/Scheduled Tribe and two other officers, one of whom belonging to minority community besides the appointing authority. The rule no where provides that there should have been four members of the Selection Committee and present at the time of selection. In the present case the A.D.M. Civil Supplies was Sri M. A. Siddiqui belonging to the minority community, the S.D.M. Khair, Aligarh Sri R. C. Jatav belonged to the Scheduled Caste besides the Senior Prosecution Officer, Aligarh. Thus the Selection Committee fulfilled all the conditions necessary for the appointment of members of the Selection Committee. Thus on the ground also the selection of the applicant cannot be said to be invalid.;