Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.815 of 2008 (S/S) Ravinder Saklani and two others .........Petitioners Versus State of Uttarakhand and two others ...…Respondents Mr. Paresh Tripathi, learned counsel for the petitioners. Mr. L.P. Naithani, learned Advocate General assisted by Mr. N.P. Sah, learned Standing Counsel for the State/respondents. Mr. Rajendra Dobhal, learned counsel for the interveners. (2) Writ Petition No.849 of 2008 (S/S) Narain Singh Bisht .........Petitioner Versus State of Uttarakhand and two others ...…Respondents Mr. Gopal Narain, learned counsel for the petitioner. Mr. L.P. Naithani, learned Advocate General assisted by Mr. N.P. Sah, learned Standing Counsel for the State/respondents. Dated :15th January, 2009 Hon’ble V.K. Bist, J. Both these petitions have been filed for setting aside the selection of Parvartan Sepoy held on the basis of Advertisement No.1797/Adhisthan/nks-35/2005 dated 2 09.09.2005 published in Daily Newspaper dated 10.09.2005. Both the cases are identical hence both these petitions are being decided by common judgment. Brief facts of the case are that the advertisement was issued by Transport Commissioner, Uttarakhand, Dehradun (respondent no.2) inviting applications for a number of posts including the post of Sepoy and total 112 posts of Sepoy were advertised in the advertisement dated 09.09.2005 out of which 68 posts were of general category, 23 posts were of Scheduled Castes, 3 posts were of Scheduled Tribes and 18 posts were of other backward classes. In para 5 of the advertisement procedure of recruitment was given in which physical examination test, written examination and interview was provided. Para 5 of the advertisement is given below:- **HkrhZ dh izfdz;k izorZu flikgh ds in dks NksM+dj vU; inksa ds laca/k esa vkosnuksa dh tkap ds ckn ik= mEehnokjksa ds p;u gsrq fu;ekuqlkj fyf[kr ijh{kk] Vad.k@vk’kqfyfi@daI;wVj ijh{kk ¼ftu inksa ds laca/k esa ykxw gks½ ,oa lk{kkRdkj ijh{kk dk vk;kstu fd;k tk;sxk vkSj ik= mEehnokjksa ls mDr ijh{kkvksa esa lfEefyr gksus dh vis{kk dh tk;sxhA izorZu flikgh ds in ds laca/k esa vkosnuksa dh tkap ds ckn ik= mEehnokjksa ls 'kkjhfjd ijh{k.k ijh{kk esa lfEefyr gksus dh vis{kk dh tk;sxhA 'kkjhfjd ijh{k.k ijh{kk esa lQy ?kksf"kr vH;fFkZ;ksa ls fyf[kr ijh{kk ,oa mlds i'pkr lk{kkRdkj ijh{kk esa lfEefyr gksus dh vis{kk dh tk;sxhA mEehnokjksa dks dksbZ ;k=k HkRrk ns; ugha gksxkA^^ The post of Enforcement Constable i.e. Sepoy are governed under Uttarakhand Transport Department Enforcement Employee Cadre Service Rules, 2004 3 (hereinafter referred as the Rules). Rule 15 of ‘Rules’ provides the procedure for direct recruitment. Rule 15(4) and 15(5) of the Rules provide about written test and interview. Rule 15(4) and 15(5) of the Rules are being quoted below:- 15(4) ¼d½ fyf[kr ijh{kk vkSj vU; ewY;kaduksa ds ifj.kke izkIr gks tkus vkSj lkj.khc) dj fy;s tkus ds i'pkr~ p;u lfefr fu;e&6 ds vuqlkj vuqlwfpr tkfr] vuqlwfpr tutkfr vkSj vU; Jsf.k;ksa ds vH;fFkZ;ksa dk lE;d~ izfrfuf/kRo lqfuf’pr djus dh vko’;drk dks /;ku esa j[krs gq, lk{kkRdkj ds fy, vH;fFkZ;ksa dks cqyk;sxhA lk{kkRdkj ds fy, cqyk;s tkus okys vH;fFkZ;ksa dh la[;k dh pkj xquk gksxhA ¼[k½ lk{kkRdkj p;u gsrq ijh{kk ds fy, fu;r dqy vadks ds nl izfr’kr vadks dk gksxkA lk{kkRdkj ds v/;{k vkSj lHkh vU; lnL;ksa }kjk i`Fkd&i`Fkd fuEufy[kr jkhfr ls vad fn;s tk;saxs& fo"k;@lkekU; Kku pkj vadksa rd ¼,d½ ¼nks½ O;fDrRo fu/kkZj.k rhu vadksa rd ¼rhu½ vfHkO;fDr dh {kerk rhu vadksa rd fVIi.kh& fdlh vH;FkhZ }kjk lk{kkRdkj esa izkIr fd;s x;s dqy vad p;u lfefr ds v/;{k vkSj lHkh lnL;ksa }kjk i`Fkd&i`Fkd :i ls fn;s x;s vadksa ds vkSlr dh x.kuk djds vo/kkfjr fd;s tk;saxsA ¼x½ p;u lfefr ds v/;{k vkSj lnL;ksa dks fdlh Hkh n’kk esa lk{kkRdkj ds le; mifu;e&3 ds v/khu vH;fFkZ;ksa }kjk izkIr fd;s x;s vadksa ds lEcU/k esa dksbZ lwpuk ugha nh tk;sxhA 15(5) mifu;e&4 ds v/khu lk{kkRdkj esa izR;sd vH;FkhZ }kjk izkIr fd;s x;s vadksa dks mifu;e&3 ds v/khu izkIr fd;s x;s vadksa esa tksM fn;k tk;sxkA bl izdkj izkIr vadksa ds dqy ;ksx ds vk/kkj ij vfUre p;u lwph rS;kj dh tk;sxhA ;fn nks ;k vf/kd vH;FkhZ dqy ;ksx ds cjkcj&cjkcj vad izkIr djsa rks fyf[kr ijh{kk esa mPprj vad izkIr djus okys vH;FkhZ dks p;u lwph esa Åij j[kk tk;sxkA ;fn fyf[kr ijh{kk esa Hkh nks ;k nks ls vf/kd vH;fFkZ;ksa us cjkcj&cjkcj vad izkIr fd;s gksa rks vk;q esa T;s"B vH;FkhZ dks p;u lwph esa Åij j[kk tk;sxkA lwph esa ukeksa dh fjfDr;ksa dh la[;k ls vf/kd ¼fdUrq 25 izfr’kr ls vukf/kd½ gksxhA 4 According to the petitioners they applied for the post of Sepoy in pursuance of the aforesaid advertisement and after qualifying in the physical examination the petitioners appeared in written examination held on 06.07.2008 and were waiting for call letter for interview but the petitioners were taken a back when they came across the notification dated 25.07.2008 published in the daily Newspaper Amar Ujala dated 26.07.2008 declaring the select list and further providing that the candidates declared successful would be issued appointment orders after verification of original certificate and medical examination. The candidates were declared successful without holding the interview as provided in para 5 of the advertisement. Therefore, the petitioners approached the office of respondent no.2 and enquired about the fact that as to how without holding the interview as mandated under Rules and advertisement dated 25.07.2008, candidates have been selected. On being so approached the petitioners were informed that the orders had been issued by the government providing that no interview be held in the direct recruitment and in view of the said government orders the interviews have not been held. On hearing this, the petitioners requested for providing the copy of the government order and on being so requested the petitioners were provided the copy of 5 the government orders dated 6 25.04.2007 and 29.08.2007 on the basis of which the interviews were not held. The condition no.7, 8 and 9 of the government order dated 25.04.2007 reads as under:- (7) lk{kkRdkj dh O;oLFkk u j[kh tk;A tgk¡ lk{kkRdkj dh O;oLFkk j[kuh vifjgk;Z gks] ogk¡ leqfpr ijh{k.k djds l{ke Lrj ls fu.kZ; ysdj dk;Zokgh dh tk;sA (8) ftu foHkkxksa dh p;u izfdz;k xfreku gS vkSj fyf[kr ijh{kk vHkh vk;ksftr ugha gqbZ gS og mDr fcanqvksa ds vuqlkj lsok fu;eksa esa la’kks/ku djus ds i'pkr vfxze p;u dh dk;Zokgh dh tk;sA (9) ftu foHkkxksa esa p;u izfdz;k xfreku gS vkSj vfxze dk;Zokgh lsok fu;eksa esa la’kks/ku ds i'pkr~ dh tkuh gS ,sls foHkkxksa esa la’kks/ku ds rqjar i'pkr~ fu;ekuqlkj lkoZtfud foKkiu nsdj ;fn vkSj dksbZ vH;FkhZ vkosnu djus ds bPNqd gS rks muls vkosnu i= Hkh izkIr fd;s tk;sA rRi’pkr vfxze p;u izfdz;k dh dk;Zokgh iw.kZ dh tk;sA tks vH;FkhZ iwoZ foKkiu ds vuqlkj vkosnu i= ns pqds gSa] mUgsa vkosnu djus dh vko’;drk ugha gksxhA iwoZ esa vkosnu dj pqds lHkh vH;fFkZ;ksa ij vfxze p;u izfdz;k esa Lor% gh fopkj fd;k tk;sxk**A Thus, the aforesaid conditions of Government Order dated 25.04.2007 provide that: (a) The process of interview be not kept and where necessary, the decision be taken after consideration at competent level; (b) Where the process of selection is under progress and written examinations are not held, the further process of selection be undertaken after amending the Service Rules, further proceedings are to be initiated after amendment (c) Where the process is on and further proceedings are to be held after amending the Service Rules, immediately after 7 amending the Rules the fresh public advertisement be issued calling for application from other candidates also and the candidates have applied earlier need not to apply. Thereafter, the State Government amended the rules and Uttarakhand Transport Department Enforcement Employee Cadre (Amendment) Service Rules, 2007 brought into effect. The Rules were amended w.e.f. 14.11.2007. By this amendment Sub-Rule 4 and Sub-Rule 5 of the Rules were deleted. After amendment in Service Rules a public notice was also issued on 24.06.2008 in daily newspaper Dainik Jagran informing about the amendment in Service Rules but changes made in earlier Service Rules were not notified. Relevant portion of the notice dated 24.06.2008 is quoted below:- ^^ifjogu foHkkx] mRrjk[kaM esa izorZu flikgh ds fjDr inksa ij p;u gsrq iwoZ izdkf’kr foKkiu la[;k&1797@vf/k"Bku@2735@2005 ds dze esa vH;fFkZ;ksa dh ’kkjhfjd ijh{k.k ijh{kk ekg fnlEcj] 2006 ,oa tuojh 2007 esa nsgjknwu ,oa m/keflaguxj esa lEiUu gq;h FkhA dkykUrj esa lacaf/kr lsokfu;eksa esa la’kks/ku djrs gq, p;u izfdz;k dks ikjn’khZ cuk;k x;kA rndze esa ’kkjhfjd ijh{k.k ijh{k.k ijh{kk esa lQy ?kksf"kr vH;fFkZ;ksa dh fyf[kr ijh{kk fnukad 06.07.2008 fuEufyf[kr LFkyksa ij gksxh%&^^ Thereafter written examination was held on 06.07.2008 and select list was declared on 25.07.2008 in which the names of the petitioners did not figure. Hence, they filed present petitions challenging the selection of Parvartan Sepoy held on the basis of advertisement dated 09.09.2005. 8 Heard Shri Paresh Tripathi, Advocate and Shri Gopal Narain, Advocate for the petitioners and Shri L.P. Naithani, learned Advocate General assisted by Shri N.P. Sah, learned Standing Counsel for the respondents and Shri Rajendra Dohal, learned Advocate for the interveners. Sri Paresh Tripathi, learned counsel for the petitioners argued that the terms and conditions of the advertisement are mandatory and are to be adhered to in its letter and spirit and in the present case the respondents by violating the Clause 5 of the advertisement have acted illegally. He argued that the Rules framed on 14.11.2007 cannot be made applicable in the process of selection started on 09.09.2005 and a step ahead the physical test held on 27.12.2006 and 16.01.2007 more particularly when the Amended Rules have come into effect w.e.f. 14.11.2007 only. According to him the respondent nos.2 and 3 could not have proceeded on their own in defiance of the Government Order dated 25.04.2007, while no selection could have been made by the respondents without adhering to mandate of the said order. He further argued that since no fresh advertisement was issued as mandated under Government Order dated 25.04.2007 and, thus, the selection was held in most illegal and arbitrary manner, same deserves to be set aside. Shri Paresh Tripathi in support of his argument referred the judgment (1990)3 S.C.C., 157 “N.T. Devinkatti Vs. Karnataka P.S.C.” in 9 which the Hon’ble Supreme Court has held that the process of selection starts from the date of advertisement and the selection process is to be governed with the Rules prevailing at the time of issuance of advertisement. Shri Paresh Tripathi further submitted that the Government Order dated 25.04.2007 was prospective therefore only course open for the respondents was to amend the rules and to recall the earlier advertisement and also to issue fresh advertisement in accordance with the Amended Rules. In support of his argument he referred the judgment (2008)3 S.C.C., 724 “Madan Mohan Sharma vs. State of Rajasthan” and (1994)6 S.C.C., 151 “State of M.P. vs. Raghubir Singh Yadav”. He further argued that the thing which was not prescribed prior to commencement of selection process, could not/and should not have been added during the selection process and therefore, present selection on the basis of the amended rules is bad in law. In support of his argument he cited the judgment of Hon’ble Apex Court (2008)3 S.C.C., 512 and (2008)7 S.C.C., 11. He prayed that entire selection in pursuance of advertisement dated 09.09.205 be quashed. Shri L.P. Naithani, learned Advocate General informed this Court that process of interview has been abolished by the State Government to maintain the transparency in the recruitment process in the government departments. This fact was notified by the Department of Information and Public Relation Uttarakhand vide 10 advertisement dated 27.06.2008 in daily Newspaper Amar Ujala. According to Shri L.P. Naithani the petitioners had full opportunity to know about the amended Service Rules after the notice dated 24.06.2008. Shri L.P. Naithani argued that after having unsuccessfully participated in the process of selection without any demur, the petitioners are stopped from challenging the selection criteria. In support of his argument he relied upon the judgment of Hon’ble Supreme Court in Dhananjay Malik’s case (2008)4 S.C.C., 171. Shri L.P. Naithani further argued that by making amendment in the rules the right of the petitioners to appear in the examination was not curtailed and, infact, they were not prejudiced in any manner. There is no whisper in the writ petitions about the alleged prejudice being caused to the petitioners due to Amended Rules. Therefore, according to Shri L.P. Naithani, writ petitions deserve to be dismissed on this ground also. In support of his argument he cited (2008)4 S.C.C., 619 “Sadanand Halo vs. Mumtaj Ali Sekh”. Shri L.P. Naithani further submitted that since result has already been declared and information regarding the appointment has already been sent to the selected candidates asking them to fulfil the condition required, it will not be justified to cancel the selection process. Shri L.P. Naithani further argued that since selected candidates have not been impleaded, the selection should not be quashed. 11 Shri Rajendra Dobhal, Advocate appeared on behalf of 31 selected candidates whose intervening application was allowed. He argued that since there is a uniform policy of the State Government which was published in Government Order dated 25.04.2007 there is no illegality in making selection on the basis of government policy as well as on the basis of Amended Rules. He further argued that irreparable loss will be caused to the selected candidates, in case their selection is set aside. According to him by now some of the selected candidates have become overage and in case their selection is quashed, they will not be able to appear in future examination. This Court is not examining the action of State Government by which it has decided not to hold any interview for appointment in class 3 post. This Court is also not examining the validity of Amended Rules. The only thing which is to be examined is whether the condition of interview as mentioned in the advertisement can be dispensed with without making corrigendum in the advertisement. In the present case after declaration of government policy dated 25.04.2007 the respondents got the Service Rules amended in the month of November 2007 w.e.f. 15.11.2007 but no corrigendum/notice from the side of respondents was published in the Newspaper that selection in pursuance of advertisement dated 09.09.2005 would be held in accordance with Amended Rules. Even notice dated 24.06.2008 does not provide that interview 12 will not be held and result would be declared only on the basis of written examination. Thus notice dated 24.06.2008 cannot be said a proper notice. At no point of time the candidates who applied in pursuance of advertisement dated 09.09.2005 were informed that selection in pursuance of advertisement dated 09.09.2005 would now be held on the basis of written examination only and no interview will be held as mentioned in that advertisement. Therefore, in the opinion of this Court the only course open for the respondents was to recall the earlier advertisement and to issue fresh advertisement in accordance with Amended Rules or to issue necessary corrigendum in the earlier advertisement informing the all concerned that interview will not be held and selection will be made on the basis of written examination. Since same was not done, the selection made in pursuance of Amended Rules deserves to be set aside. In view of aforesaid discussion, both the writ petitions are allowed. The Selection of the Parvartan Sepoy held on the basis of Advertisement No.1797/Adhisthan/nks- 35/2005 dated 09.09.2005 published in daily Newspaper is set aside. The respondents are directed to conclude the selection process afresh as prescribed in the advertisement dated 09.09.2005 at the earliest. Written examination held in pursuance of advertisement dated 09.09.2005 is not being disturbed. Therefore, while preparing the final merit 13 the marks obtained by various candidates in written examination shall also be considered. (V.K. Bist, J.) 15.01.2009 Arti