The Allahabad High Court has said in an order that the selecting body does not have the right to change the rule of procedure in the middle of selection process.
A Single Bench of Justice Ajit Kumar passed this order on a petition filed by Arvind Kumar and three others.The petitioners sought a writ of certiorari to quash the notification issued by the respondent No 4/ UP Subordinate Service Selection Commission, impleaded through its Secretary, dated November 11, 2021, whereby the applicants under the Advertisement No- 20(07)/2015 and 16(04)/2016 have been directed to apply for appearing in the written examination for selection and appointment to the post of Instructors that are 559 and 293 respectively under the advertisements, to be filled in.The petitioners who have applied against two advertisements respectively, have questioned the notification on the ground that at the time of advertisements in the year 2015 and 2016 prescribing last date for submission of applications as November 24, 2015 and December 21, 2016 respectively, the rules in existence were The Uttar Pradesh Industrial Training Institutes (Instructors) Service Rules, 2014 and according to these rules, selection had to be made on the basis of credentials, academic records of the candidates and walk-in-interview.
In this regard, he placed reliance upon sub-rule (3) and (4) of Rule 16 of the of the Service Rules, 2014. He submitted that the selection process had already begun way back in 2015 and selection and appointment against two vacancies of Instrument Mechanic and Embroidery in needle work had already been made and the selection process in respect of the remaining 850 (557+293) had remained to be completed.However, in the meantime, Uttar Pradesh Direct Recruitment to Junior Level Posts (Discontinuation of Interview) Rules, 2017 came to be framed by the Governor in exercise of power under the proviso to Article 309 of the Constitution and which provided that interview prescribed in the selection procedure in the relevant service rules of the State would be discontinued and wherever the recruitment process prescribed for interview only, such selection would now be made on the basis of written examination only.Counsel for the petitioner submitted that these rules saved the selection process in respect of the advertisement already issued prior to coming into force of these rules vide Clause (d) of Rule 4 of Recruitment Rules, 2017.However, the UP Subordinate Service Selection Commission / (respondent No 4) created confusion and that too for no justifiable reasons by seeking guidance from theDirector, Training and Employment Government of UP Lucknow that approval be sought from the State Government for holding written examination in respect of the vacancies already advertised and in respect of which selection was yet to be accomplished.This letter was written on 5th June, 2020 by the Secretary of respondent No 4, however, the Director in his wisdom correctly appreciated the matter and made recommendation to the Chief Secretary (Vocational Education and Craft Development Department), Government of U.P, Lucknow that any change in the method of selection qua posts already advertised out of which selection and recommendation in respect of two such advertised posts have already been made, would complicate things and would lead to disputes.The Secretary on 30th July, 2021 wrote to the Selection Board that recruitment had to be made strictly in accordance with Recruitment Rules, 2017.Counsel for the petitioner further submitted that there was nothing in the order of the Secretary to direct for written examination in respect of the vacancies already advertised and for which the selection process was still on and yet the respondent No 4 proceeded to issue notification for holding written examination in respect of the advertisement of the year 2015 and 2016 and, therefore, the notification dated November 28, 2016 is absolutely unsustainable in law.He also submittedthat once the Government has decided that the recruitment has to be made in accordance with Recruitment Rules, 2017 and Recruitment Rules, 2017 saved already advertised vacancies in respect of which selection process was underway, the respondent No 4 transgressed its authority in directing for written examination for the selection process. He submitted that the notification is de hors the Recruitment Rules, 2017.
The Court said that the argument of the counsel for the respondent No 4 is that the letter dated 3rd November, 2021 issued by Secretary would be taken to be a direction to the to the respondent No 4 to hold written examination and so the consequential notification and unless and until the said order is questioned, the consequential order cannot be questioned. I find no merit in this submission.
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It observed that when the recruitment Rules, 2017 clearly saved the on going selection process pursuant to an advertisement already made, it was not open for the respondent No 4 to have passed resolution requesting the Director, Training and Employment UP Lucknow for his opinion. The respondent No 4 is merely a selecting body and not the appointing authority. The respondent No 4 being the selecting body has to hold selection as the recruitment rules prescribe for. It is an admitted fact to the respondent No 4 that when advertisements were made in the year 2015 and 2016 respectively the Service Rules, 2014 provided only for walk-in-interview as procedure for selection and preparation of select list on the basis of marks obtained under different heads of credentials and academic records of the candidates and finally in the interview.The Court held that,The Director, Training and Employment , U.P Lucknow rightly wrote a letter to the Chief Secretary that any deviation in the procedure of selection pursuant to which selection in respect of two vacancies had already been done
and recommendations had been made, would lead to disputes and so the Director also wrote to the respondent No 4 on 30th July, 2020 to proceed as per the Recruitment Rules, 2017 as admittedly these rules saved the ongoing selection process.It appears that some further letter was written by the respondent No 4 to the Government on 22nd October, 2021, however, copy thereof has not been placed on record but in reply to that letter, an order has come to be passed by the Special Secretary, Government of U.P Lucknow on 3rd November, 2021 directing the respondent No 4 to hold the selection by prescribing curriculum for written examination and allocation of marks in respect thereof.Why the respondent No 4 has not brought its letter dated 22nd October, 2021 on record is best known to it, but the argument advanced by counsel for the petitioner is correct that the letter dated 3rd November, 2021 does not refer to any advertisement number or date in respect of which curriculum for written examination has been prescribed for and, therefore, this cannot be read to mean that Government decided to hold written examination replacing the interview procedure in respect of the selection pursuant to the advertisements in question made prior to coming into force of Recruitment Rules, 2017. Thus, exercising power as a selecting body, the respondent No 4 had no authority to change the rule of procedure in the middle of the selection process.The Court further found that the notification is based more upon the resolution of the Selection Commission dated 28th January, 2020 than the letter dated 3rd November, 2021 issued by the Chief Secretary.The Court is of the view that the selecting body does not have its right to alter the procedure for selection other than what is prescribed under the relevant Service Rules, 2014 and Recruitment Rules, 2017.
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The Court further directed the Selection Commission to conclude the selection process strictly in accordance with law and as per the Service Rules, 2014 as expeditiously as possible.