IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 848 of 2009 (S/S) (Old No. 130 of 1988) Deep Chandra Verma S/o Shri Ishwari Lal Verma R/o Village Kafrauli Post Office Paharpani District Nainital. ….…Petitioner. Versus 1. State of Uttar Pradesh through the Secretary, Finance Department Civil Secretariat, Lucknow. 2. The Director of Government Treasuries Uttar Pradesh, Lucknow. 3. District Magistrate/Collector Nainital. .……….Respondents. Shri L.M. Verma, Advocate for the petitioner. Shri N.P. Sah and Shri Paresh Tripathi, Advocates for the respondents. Hon’ble Prafulla C. Pant, J. By means of this writ petition, the petitioner has sought quashing of the condition mentioned in his appointment letter (copy annexure-2 to the writ petition), whereby it is retrospectively required that it is necessary for the candidate appointed in the District Treasury to hold the degree of Bachelor of Commerce (Accountancy) or Bachelor of Science/Arts (with Maths), for the post of Junior Clerk. 2 2. Heard learned counsel for the parties and perused the affidavit and counter affidavit on record. 3. Brief facts of the case are that the petitioner was an unemployed graduate, who got himself registered with Employment Exchange, Nainital. Certain vacancies in District Treasury, Nainital, were notified by respondent No. 3 and names were called through the Employment Exchange. Petitioner’s name was included in the names recommended by the Employment Exchange. It is stated in the writ petition that 80 names were sent by Nainital Employment Exchange. Said candidates appeared in the written test and oral test, whereafter select list was prepared. Initially 4 candidates were given appointment letter whereafter two more vacancies occurred and the petitioner was issued appointment letter dated 04.12.1987 (copy of which is annexure-2 to the writ petition). However, in said appointment letter, a condition was mentioned that the candidate must possess degree of Bachelor of Commerce (Accountancy) or graduation with Mathematics. Petitioner’s case is that he was not permitted to join the post of Junior Clerk for which the appointment was issued, as he was having none of the two degrees, mentioned in the condition, though he was a graduate. The condition, mentioned in the appointment letter is challenged on the 3 ground that the respondents cannot change the minimum qualification, required for the post, after the selection process is already over. 4. In the counter affidavit, filed on behalf of respondents, it is admitted that the District Magistrate, invited names from the employment exchange for filling the vacant posts (of Junior Clerks) in the District Treasury. It is stated that initially for the post, minimum qualification was Intermediate with Commerce Accountancy/Intermediate with Maths. However, in para-6 of the counter affidavit, it has been stated that written examination and interview was held as per the District Magistrate’s order dated 22.06.1987, and the select list was approved by the District Magistrate. Initially four appointment letters were issued applying the reservation policy against the regular vacancy. Thereafter, due to suspension of some employees, vacancies arose and impugned letter dated 04.12.1987, was issued to one Pratap Narayan Singh Negi and the petitioner on the condition that they must possess a degree from a recognized university with a subject of Maths or Commerce (Accountancy). In para-7 of the counter affidavit, it has been stated that this change was brought because of the Government Order dated 20.11.1987, which was communicated through radiogram dated 24.11.1987 by the Director, 4 Treasury, Lucknow. Since the petitioner did not fulfill the minimum qualification, as such, he was not allowed to join his duties. In para-10 of the counter affidavit, it has been admitted that the vacancy was temporary in nature. It is admitted in para-11 of the counter affidavit that the select list was valid for one year. It is pleaded in the counter affidavit that since the Government has put a ban on the recruitment of the candidates, not possessing prescribed qualification, as such, the petitioner is not entitled to the appointment. 5. From the affidavit, counter affidavit, and annexures, filed therewith, it is clear that the selection process started w.e.f. 22.12.1986 when the Senior Treasury Officer, Nainital, wrote letter No. 2146/86-87, dated 22.12.1986, for filling post of Junior Clerks with the qualification Intermediate Commerce (Accountancy) or Intermediate Maths and invited names from the Employment Exchange. Said fact is evident from annexure-1 to the writ petition. It is also not disputed as is admitted in para-6 of the counter affidavit that the minimum qualification was changed by the Government only in November 1987. It is also not disputed that meanwhile selection process had finalized and petitioner’s name figured in the select list. However, when he was issued appointment letter dated 04.12.1987 (copy annexure-2 to the writ 5 petition), condition was put that the candidate must have possessed degree of B.com (Accountancy) or graduation with Maths. It is not disputed that the appointment letter was issued to the petitioner within one year of finalization of select list. It is argued on behalf of the petitioner that some of the candidates have been allowed to join with different qualification, of the same select list, while for the two (including petitioner) different qualification is mentioned as required. In the opinion of this Court it is clear violation of Article 14 read with Article 16 of Constitution of India on the part of the respondent No. 3 (District Magistrate, Nainital). Learned Standing Counsel for respondents submitted that petitioner’s appointment is temporary in nature, as the vacancy have occurred due to suspension of senior official (consequent to which a Junior Clerk is given promotion). However, this Court does not find that to be a sufficient reason to throw the petition. 6. It is settled principle of law that minimum qualification for a post cannot be changed after the selection process has started. It requires cancellation of selection process already held, and fresh advertisement/process. In Secretary, A.P. Public Service Commission Vs. B. Swapna and others (2005) 4 Supreme Court Cases 154, the Apex Court has clearly held that 6 once a process of selection starts, minimum qualification for the post and the like prescribed conditions cannot be changed. That being so, the condition mentioned in the appointment letter of the petitioner is illegal and cannot be sustained. As such, same is liable to be quashed. 7. However, as to the relief No. 2, sought in the writ petition that the petitioner be given appointment to the post of Junior Clerk, learned counsel for the respondents argued that since more than 21 years have gone and the vacancy which was available for the petitioner may not be available now. This writ petition was filed before Allahabad High Court in the year 1988 and received in the year 2009, by this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. Undoubtedly, during this long period of 21 years, apart from the fact that the vacancy might have been filled, the petitioner’s other colleagues to join service, must be nearing their age of retirement. But for that petitioner cannot be made to suffer for the wrong approach, adopted by the respondents by adding the condition in the appointment letter, which is liable to be quashed. 8. Therefore, in the above circumstances, the writ petition is allowed for relief No. 1 and the last condition, mentioned in the appointment 7 letter dated 04.12.1987 (copy annexure-2 to the writ petition), is hereby quashed. However, after the lapse of 21 years, this Court is not inclined to grant relief No. 2 i.e. mandamus commanding the respondents to allow the petitioner to join the post of Junior Clerk on the basis of selection held in the year 1986-87. But since the petitioner has suffered a lot on account of the condition, which is quashed above, and he had to remain without job for such a long period, this Court thinks it just and proper to award compensation of Rs. 1,00,000/- (Rupees One lakh) to the petitioner, which shall be paid by the respondent No. 3 to the petitioner, within a period of six months from today. (Prafulla C. Pant, J.) Dt:25.11.2009 Sweta 8 9 10 11 12 13