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2009 Supreme(All) 2797
[2009(6) ADJ 727 (DB)]
ALLAHABAD HIGH COURT
BEFORE : C.K. PRASAD, C.J. AND A.P. SAHI, J.
SUPERINTENDING ENGINEER, JHANSI LALITPUR CIRCLE, P.W.D. JHANSI AND OTHERS ....Appellants
Versus
ANOOP KUMAR RATHORE ....Respondent
(Special Appeal (Defective) Nos. 318 of 2006 and 315 of 2009,
decided on 4th August, 2009)
Counsel :
M.S. Pipersenia, Addl. C.S.C. for the Appellants; Indra Raj Singh for the Respondent.
Headnote:Appointment—Post of Junior Clerk in P.W.D.—Knowledge of Hindi typewriting is an essential qualification and not preferential qualification—Advertisement for that vacancy, wrongly mentioned knowledge of Hindi typewriting as preferential qualification—To be ignored in view of clear Rule 23(5) of Recruitment Rules, 1985, which has overriding effect on previous Rules if they are inconsistent to it, in view of Rule 35—Respondent lacking that qualification—Cannot be appointed—Benefit of wrong specification in advertisement—Cannot be given to him—Department when realised that mistake in advertisement, it corrected it in selection process—Incorrect qualification mentioned by mistake in advertisement—Would neither confer right on candidate to claim selection on its basis nor would give rise to any legitimate expectation to him—Rules of 1998 are procedural in nature and in no way affect Rules of 1985—Rather they supplement Rules of 1985, by virtue of Rules 5 and 6—No other Rules, except Rules of 1985 are applicable—Relevant Rules—Considered. [U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985—Rules 23(5) and 35—U.P. Procedure for Direct Recruitment for Group “C” Posts (outside the purview of Uttar Pradesh Public Service Commission) Rules, 1998—Rules 5 and 6—Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975—Rules 2, 3 and 20—Rules for Recruitment of Ministerial Staff to Subordinate Offices, 1950—Rules 5 and 6]. [Paras 16 and 18 to 24]
By the Court.—These two special appeals arise, though against separate judgments dated 9.9.2005 and 12.1.2009 respectively, out of common questions of law and fact pertaining to the same process of selection on the post of Junior Clerk in the Public Works Department, against an advertisement dated 10.8.1998 published by the Chief Engineer, Public Works Department, Jhansi Region, Jhansi, where the respondent-petitioner Anoop Kumar Rathore (hereinafter referred to as the ‘petitioner’) claimed appointment on the basis of the said selection.
2. The dispute raised by the petitioner is that knowledge of Hindi typewriting was only a preferential qualification, and not essential, as per the advertisement itself, and therefore, the appellants-employer could not have disqualified the candidature of the petitioner on that count. The stand of the appellants in response is that the word preference in the advertisement was a mistake, and that the Rules provide for knowledge of Hindi typewriting as an essential qualification for the post in question, which would prevail as against an error in the advertisement. The learned Single Judges while allowing the writ petitions have found favour with the plea of the petitioner, hence these appeals under Rule 5 Chapter VIII of the Allahabad High Court Rules, 1952.
3. Short facts giving rise to the present appeals are that the petitioner applied for the post of Junior Clerk in the Public Works Department in the Jhansi Region against the advertisement issued by the Chief Engineer of the said region dated 10.8.1998. He appeared in the written examination, which was conducted on 13th December, 1998 and by a subsequent letter dated 5th February, 1999, he was called upon to appear in the typing test scheduled on 13.2.1999. The petitioner appears to have made himself available for the typing test, but could not qualify the same. The result of the written test was declared and a merit list was prepared, which was sent to the State Government. The petitioner was, however, not interviewed, as only those candidates were called for interview who qualified in the Hindi typing test with a speed of 25 words per minute.
4. At this stage, the petitioner filed Writ Petition No. 7660 of 1999 praying for a writ of mandamus commanding the respondent authorities (appellants herein) to give him an opportunity to appear in the interview for the post of Junior Clerk and thereafter declare his result. This Court entertained the writ petition and thereafter vide order dated 26.2.1999 stayed the declaration of the result of the said selections. Out of the selected candidates, one Santosh Kumar Yadav filed Writ Petition No. 7903 of 2000 and the said writ petition was heard along with Writ Petition No. 7660 of 1999, whereafter by an order dated 20.4.2001, the interim order dated 26.2.1999 was modified directing the respondents therein to declare the results, which were made subject to the final decision of the writ petition. These facts are mentioned in the order dated 26.8.2006 passed by the Chief Engineer, Public Works Department, Jhansi Region, Jhansi.
5. The writ petition filed by the petitioner, i.e. Writ Petition No. 7660 of 1999 was finally decided on 9th September, 2005 after exchange of affidavits, and the learned Judge held that the qualification of possessing proficiency in Hindi typewriting was only a preferential qualification as per the advertisement for the post in question, and since it was not an essential qualification, the Department had erred in excluding the petitioner from the interview. Accordingly, a direction was issued to interview the petitioner separately and to convey the result of the said interview to the Board for final consideration. The Department preferred Special Appeal (Defective) No. 318 of 2006 assailing the said judgment, which was presented before the Court on 8.5.2006 and an order was passed on 11.5.2006 to list the appeal after the delay condonation application was disposed off.
6. Th
