- (1.) THIS intra Court appeal under the Rules of the Court has been preferred aggrieved by the judgment dated 15. 11. 2007 passed by the Hon'ble Single Judge dismissing the writ petition No. 42748 of 1999 of the petitioner-appellant (hereinafter referred to as 'petitioner' ).
(2.) THE facts in brief, giving rise to the present appeal are that the petitioner was appointed as a Class-IV employee vide appointment letter 4. 2. 1983 issued by the Addl. Director of Education, Institute of Correspondence Courses, U. P. , Allahabad and was posted in Patrachar Shiksha Sansthan (Institution of Correspondents Education) U. P. , Allahabad. He was confirmed as a Class-IV employee vide order dated 18. 9. 1997 (Annexure-4 to the writ petition) with effect from 10. 2. 1987 in accordance with U. P. Nideshalaya Lipik Verg Sewa Niymawali, 1983 (hereinafter referred to as '1983 Rules' ). A selection was held for considering Class-IV employees for promotion to the post of Junior Clerk. Written test was held on 31. 6. 1998 and interview on 4th and 5th August, 1998, as a result whereof, the candidates who qualified, were promoted to the post of Junior Clerk vide orders dated 7. 8. 1998 and 30. 11. 1998. THE petitioner could not succeed in the aforesaid selection whereupon he filed a Writ Petition No. 42186 of 1999, which was disposed of vide judgment dated 8. 1. 1999 permitting him to make a representation to the authorities concerned, who were directed to decide the same within two months from the date of receipt of a certified copy thereof. Consequently, the petitioner's representation was considered and decided by the Addl. Director of Education (Secondary) vide order dated 17. 6. 1999 rejecting his contention that the selection ought to have been held in accordance with U. P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1994 (hereinafter referred to as '1994 Rules' ). Itwas observed that the petitioner had participated in selection end having failed to qualify, cannot be allowed to challenge the same. Aggrieved by the order dated 17. 6. 1999, the petitioner filed the aforesaid Writ Petition seeking the following reliefs: (a) Issue a suitablandwrit, order or direction in the nature of certiorari quashing the impugned order dated 17. 6. 99 (Annexure 10) passed by the respondent No. 3. (b) Issue a suitable writ, order or direction in the nature of mandamus commanding the respondents to promote the petitioner with all consequential service benefits on the post of Junior Clerk, with effect from the date, persons junior to him have been promoted as Junior Clerks. (c) Issue a suitable writ, order or direction calling for the record of the selection for the post of Junior Clerks referred to in the Impugned order dated 17. 6. 1999 and then quash the same by issuing an appropriate writ, order or direction in the nature of certiorari. (d) Issue any other and further writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (e) Award cost of the present petition to the petitioner against the respondents. " The Hon'ble Single Judge, having heard the learned Counsel for the petitioner, has dismissed the writ petition by judgment impugned in this appeal on the following grounds: " Petitioner has undertaken written examination and in the same when he has failed, then he has proceeded to challenge. Once candidate has taken chance and has failed, then he is not at all entitled to make challenge qua selection proceedings. In this background claim of petitioner is unsustainable. " Learned Counsel for the petitioner vehemently contended that since the selection was held by the respondents wholly illegally and contrary to the Rules and, therefore, neither waiver nor estoppel could have deprived the petitioner from challenging'the aforesaid selection and the Hon'ble Single Judge has erred in law in dismissing the writ petition on the ground that the petitioner having participated in the selection, subsequently, cannot challenge the same. He further contended that there was no relief sought by the petitioner for quashing the promotion orders, whereby other Class-IV employees were promoted to Class-Ill post in 1998 and, therefore, he had no occasion to implead the persons who were promoted in 1998 and the Hon'ble Single Judge has erred in law in non-suiting the petitioner on the ground that he did not implead the persons who were promoted in the> impugned selection. He lastly contended that since it is evident from a perusal of 1994 Rules that the same are applicable to all services including the impugned one, therefore, the selection ought to have been conducted on the criteria of seniority subject to rejection of unfit and the respondents have proceeded illegally by making selection holding a written test and interview, which was contrary to the Rules. Since the entire selection is in the teeth of 1994 Rules, it could not have been validated only for the reason that the petitioner has participated therein and is challenging the same after selection is finalized and the Hon'ble Single Judge ought to have considered the aforesaid aspect of the matter, since it was a pure legal question going to the very'root of the matter.
(3.) HAVING heard learned Counsel for the parties and perusing the record, though we are satisfied that the Hon'ble Single Judge has rightly non suited the petitioner on the grounds referred to in his Lordship's judgment, impugned in this appeal, yet in order to satisfy ourselves also as to whether the selection in question was rightly held by the respondents or not, we have also Considered the submission of learned Counsel for the petitioner with respect to applicability of 1994 Rules in the selection in question and are clearly of the view that the said Rules are not at all applicable to the case in hand. 1994 Rules are applicable to a recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required on the principles to be followed in making promotions under U. P. Public Service Commission (Limitation of Functions) Regulations, 1954 (hereinafter referred to as '1954 Regulations') as amended from time to time, as is evident from Rule 1 (3) of 1994 Rules. Thus, the application of 1994 Rules is not general and as wide as is being canvassed by the learned Counsel for the petitioner. The said Rules are applicable only to a limited category of posts and service, for which, under 1954 Regulations, consultation of Public Service Commission is not required with respect to the 'principles to be followed in making promotions'. This brings us to have a closure scrutiny of 1954 Regulations. Regulation 6 of 1954 Regulations provides for the cases where consultation of the commission on the principles to be followed in making promotions or suitability of candidate for promotions is not required and the same is reproduced as under: " 6. Promotion.--It shall not be necessary to consult the Commission on the principles to be followed in making promotion or on the suitability of candidates for promotion in the following cases namely: (a) promotions to those Group 'c' posts, direct recruitment whereof is not made through the Commission or promotion from one non-gazetted post to another non-gazetted post; (b) promotion from Group 'c' posts to Group 'b' posts, or promotion from one gazetted post to another gazetted post, where promotion is the only source of recruitment: Provided that notwithstanding anything contained in this regulation the persons substantively appointed by promotion against Service or posts prior to April 24,1995, shall be deemed to have been substantively appointed on such services or posts and such appointments shall not be open for reconsideration. ";