AMITAVA LALA,J. - (1.) THIS writ petition has been filed by the petitioner for the purposes of quashing the Advertisement No. 2/2007-08 by Public Service Commission, U.P. to fill up the vacancies of Lecturers (Swasthya Vrita) for State Ayurvedic College. The date of advertisement is 11-17 August, 2007. Last date of submitting application is 31st August, 2007. In the list, 14 candidates were to be given appointments. The petitioner is one of the candidate participated in the election process but become unsuccessful.
(2.) BY filing this writ petition on 28th July, 2009 learned counsel for petitioner has contended before this Court that as the advertisement pertains to selection was not included degree of 'Kay Chikitsa' as one of the qualification for the purposes of consideration for the post of Lecturer (Swasthya Vrita), therefore, the advertisement is defective in nature. Had been their case of consideration such qualification, there would have been subsequent corrigendum, subsequent advertisement or amendment or relaxation in the requisite qualification widely published in this regard. In support of his contention he has shown us that as per Rule 30 of U.P. Public Service Commission (Procedure) Rules, 1976, Rule 30 and Rule 53 are relevant for the purposes which are quoted hereunder: "30. The Commission shall advertise the vacancies for which selections are to be made in the manner and through the medium/media prescribed by them, and invite applications from eligible candidates. Applications received in response to advertisements shall be scrutinised by the office in the manner prescribed by the Commission from time to time. 53. Selection-by Direct Recruitment-The advertisement for selection to various posts by direct recruitment shall be issued and application from eligible candidates invited by the Commission in accordance with the provision of service rules or ad hoc principles agreed to by the Commission where there are no service rules." He has further contended before this Court that unless equal opportunity is given in public employment, it will be hit by Article 16 of the Constitution of India. Firstly, he cited the well celebrated judgment of the Constitution Bench of the Apex Court reported in (2006) 4 SCC 1, Secretary, State of Karnataka and others v. Uma Devi and others. He apprise us in this context that in addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in the matters of Public Employment. Rule of equality in Public Employment is a basic feature of Constitution and since the rule of law is the core of Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. He has further relied upon a reference in this regard, reported in (2006) 2 SCC 482, Union Public Service Commission v. Girish Jayanti Lal Vaghela and others. We find that any regular appointment made on a post under the State or Union without issuing advertisement inviting applications for eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to complete would violate the guarantee enshrined under Article 16 of the Constitution. He further says that step is to be taken in consistent with the principles of fair play, justice and equal opportunity. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins and then consider the cases of all the candidates who have applied. He has further relied upon a publication in the internet comparable to AIR 1984 SC 363 and 1996 (6) SCC 216 to establish that in the case of appointment, it provides for publicity and it can only be with the object that all persons may know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates may be brought before the Selection Committee for its consideration.
(3.) WE have no quarrel with the proposition. But each case has to be considered on its factual basis. The advertisement was made in 2007 and the candidate himself wrote a letter on 7th September, 2009 that 'Kay-Chikitishya' should not be allowed. Therefore, it can be presumed that Kay-Chikitisha is a part and parcel of the same or not has been discussed long back in the year 2007. Ironically, petitioner himself opposed to incorporate K. Chikitishya. Now in 2009, he made this writ petition only on the basis of call letter of some other candidates by saying that Kay Chikitishya is considered as one of the qualification for his case. On our repeated query, it has not been said what is the source of information of the petitioner apart from the source of one other candidate. Assuming for the moment that petitioner has a qualification and the same has been ignored by the authority, then how the petitioner raise his voice not to incorporate such subject in 2007, is unknown to this Court. Moreover, merely incorporating the call letter of some other person cannot establish beyond doubt that whether such qualification has been accepted as one of the qualification or not. Nobody had restrained the petitioner from giving opportunities for his qualification to the selection authority in principle of 'K. Chikitishya' either for main qualification or for additional qualification. It appears to us that since he himself opposed non-incorporation of such subject in the year 2007, as now this is one of the qualification has taken as additional qualification for the purposes of selection, the petitioner trying to take plea that the wide further publication or advertisement should have been there in case of incorporation of such subject. If it is done, his chance which has been lost, can be improved.;