Sanjay K.Dixit vs The State Of Uttar Pradesh

THE STATE OF UTTAR PRADESH ….Respondent 3

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. All the above Appeals pertain to the selection and

appointment to the post of Technician Grade-2

(Apprenticeship Electrical) in the Uttar Pradesh Power

Corporation. An advertisement was issued inviting

applications from the eligible candidates for filling up

2,974 posts of Technician Grade-2 (Apprenticeship

Electrical) by the Electricity Service Commission, Uttar

Pradesh on 4th March, 2011. The eligibility criteria

according to the said advertisement was that a candidate

should have two years National/State level professional

certificate in Electrician Trade with High School from

Board of Secondary Education, Uttar Pradesh or

equivalent with Science and Math subjects. In addition,

production of Course on Computer Concept (CCC)

certificate given by the Department of Electronics 4

Accreditation of Computer Courses (DOEACC) (hereinafter

referred to as ‘DOEACC certificate’), at the time of

interview was compulsory. 16,712 persons applied for

selection to 2,974 posts which were advertised. Out of

13,576 candidates who appeared in the written

examination conducted on 7th August, 2011, 6,218

persons qualified. 5,687 persons appeared for the

interviews which were conducted from 28th November,

2011 to 28th December, 2011. A large number of

candidates who attended the interview could not produce

the DOEACC certificate. On the said account, several

representations were made to the Chairman and

Managing Director of the U.P. Power Corporation wherein

a request was made for extension of time for submitting

the DOEACC certificate and to permit such of those

candidates who were found meritorious, to participate in

the interview without submitting the DOEACC certificate.

A decision was taken by the Chairman and Managing

Director of the U.P. Power Corporation to permit

candidates without DOEACC certificate to participate in

the interviews, subject to their submitting the certificate 5

within a period of three months. However, it was made

clear that the appointment letters would be issued to

such candidates only after they submit the certificates.

2. The extension of time for submission of DOEACC

certificate expired on 28th March, 2012 and the process of

recruitment was conducted. The result could not be

declared due to the ban on recruitment by the

Government. Such of those candidates who could not

submit their certificates before 28th March, 2012

approached the Chairman of the U.P. Power Corporation

and requested for further extension. Pursuant to a

decision taken by the Corporation on 19 th April, 2012,

time for submission of the certificate was further

extended by three months. The results of the selection

to the posts of Technician Grade-2 (Apprenticeship

Electrical) were announced on 21st May, 2012.

Candidates who did not produce the DOEACC certificate

were informed that they should submit the certificate by

31st July, 2012 failing which their selection would stand

cancelled automatically. Unsuccessful candidates filed

Writ Petitions challenging the selections that were notified 6

on 21st May, 2012. The grievance of the Writ Petitioners

was that the select list contained the names of

candidates who could not submit the DOEACC certificates

at the time of interview. They also sought for a direction

to exclude such candidates and publish a revised list. A

learned Single Judge of the High Court dismissed the Writ

Petitions.

3. The learned Single Judge relied upon Rule 45 of the

U.P. Rajya Vidyut Parishad Parichalkiya Karmchari Varg

Sewa Niyamawali, 1995 to hold that the Chairman was

competent to relax the Rules. He observed that there

was nothing wrong in the exercise of the power of

relaxation as the Chairman/ Managing Director of the

Corporation relaxed the Rule after a thorough

consideration of several representations made on behalf

of the candidates. The submission made on behalf of the

Writ Petitioners that the relaxation of the Rule could not

have been done after the selection process commenced

and that such endeavour would amount to changing the

rules of the game mid-way, was rejected by the High

Court. The unsuccessful Writ Petitioners preferred an 7

appeal against the judgment of the learned Single Judge

in which they submitted that the rules for the selection

could not have been altered after the selection process

commenced. They urged that the advertisement did not

mention anything pertaining to the relaxation. According

to them, even if the power of relaxation is provided in the

Rules, it is mandatory that the advertisement should also

indicate the existence of such power. It was argued

before the Division Bench of the High Court that

submission of DOEACC certificate at the time of the

interview is compulsory according to the Rules and the

advertisement. Such of those candidates who did not

produce the certificates were ineligible for appointment

as Technician Grade-2 (Apprenticeship Electrical). The

Division Bench partly allowed the appeals by holding that

those candidates who submitted the DOEACC certificate

prior to 31st March, 2012 were entitled to be included in

the select list. The learned Division Bench further

concluded that all candidates who produced the

certificates after 31st March, 2012 were not eligible for

appointment. The authorities were directed to declare 8

the results afresh by deleting the names of candidates

who produced the CCC certificate after 31 st March, 2012,

from the select list.

4. By relying on a judgment of this Court in Bedanga

Talukdar v. Saifudullah Khan & Ors.1 the Division

Bench of the High Court held that relaxation of the Rule

was impermissible as there was no mention about the

relaxation in the advertisement. However, the first

relaxation by which candidates were permitted to submit

the certificate before 28th March, 2012 was upheld in

larger public interest as DOEACC did not issue the

certificate, for which the candidates could not be

penalized.

5. Originally, the selection was finalized on the basis of

the results announced on 21st May, 2012 and the

candidates who submitted certificates till 31 st July, 2012

were appointed. However, by virtue of the judgment of

the Division Bench, candidates who produced their

certificates after 31st March, 2012 were removed from the

service. Aggrieved thereby, they have filed SLPs.

Unsuccessful candidates who did not find place in the

1 (2011) 12 SCC 85 9

select list have also assailed the judgment of the High

Court as, according to them, even the first relaxation

given for submission of certificates till 28 th March, 2012

was arbitrary and illegal.

6. After hearing the learned counsel appearing for the

Petitioners and the Respondents, we are of the opinion

that the impugned judgment does not warrant

interference for the reasons given below.

7. Admittedly, the Rules governing the selection to the

posts of Technician Grade-2 (Apprenticeship Electrical)

require every candidate to submit a DOEACC certificate

signifying completion of 80 hours CCC at the time of

interview. Such condition was made compulsory. The

advertisement also contained the condition regarding

submission of the certificate at the time of interview.

There is no doubt that there exists a power of relaxation

of any of the Rules which could be exercised by the

Chairman of the Corporation. It is nobody’s case that the

Chairman/ Managing Director was not competent to relax

the Rules. But, the submission made by the learned

counsel for the Writ Petitioners is that the relaxation

could not have been done as the advertisement did not 10

mention about a possible relaxation of the Rules. We find

force in the said submission made on behalf of the Writ

Petitioners as this Court in Bedanga Talukdar (supra)

held as follows:

“29. .. .. .. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure 11

that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.”

8. We are in respectful agreement with the above

judgment of this Court. Exercise of the power of

relaxation without informing the candidates about the

existence of such power would be detrimental to the

interests of others who did not possess the certificate and

did not take part in the selection process. We are unable

to accept the submission that selection is on the basis of

the performance of the candidates in the written test and

interview and that the DOEACC certificate is not an

essential requirement. The Rule as well as the

advertisement provide for submission of the certificate at

the time of interview, compulsorily. The Rule further

provides for production of the certificate as an additional

requirement for selection. The above stipulation in the

Rule as well as the advertisement cannot be ignored. 12

9. On the basis of the said findings, the point that

remains to be considered is whether the High Court was

right in upholding the relaxation in respect of candidates

who submitted the certificate before 28 th March, 2012.

The High Court took note of the fact that the certificates

were not being issued by DOEACC to candidates who had

already completed the course. The learned Division

Bench of the High Court was of the opinion that there was

a genuine problem and in the interest of those

meritorious candidates who could not secure the

certificate for no fault of theirs, they could not be

penalized. The High Court placed reliance on the

judgment of this Court in Amlan Jyoti Borooah v. State

of Assam & Ors.2 to support its view that relaxation can

be done in larger public interest.

10. The question that then arises is whether the High

Court could have granted such a relief after holding that

the relaxation of the Rule could not have been made.

The final relief in a case can be different from the ratio

decidendi. It was held in Sanjay Singh & Anr. v. U.P.

2 (2009) 3 SCC 227 ¶ 40 13

Public Service Commission, Allahabad & Anr. 3 as

follows:

“10. … …. Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. The reasons for the decision or the ratio decidendi is not the final order containing the decision. In fact, in a judgment of this Court, though the ratio decidendi may point to a particular result, the decision (final order relating to relief) may be different and not a natural consequence of the ratio decidendi of the judgment. This may happen either on account of any subsequent event or the need to mould the relief to do complete justice in the matter. It is the ratio decidendi of a judgment and not the final order in the judgment, which forms a precedent. ..”

11. In view of the above, the conclusion of the High

Court in favour of those candidates who submitted their

certificate before 28th March, 2012 is correct and need not

be interfered with.

12. The next question is, whether the candidates who

utilized the 2nd relaxation for submitting their certificates

3 (2007) 3 SCC 720 14

in the extended period, by 31 st July, 2012 can be given

the same benefit. We are of the opinion that the

beneficiaries of the 2nd relaxation cannot be said to be

similarly situated to those who produced their certificates

prior to 28th March, 2012. Pursuant to the declaration of

results on 21st May, 2012, the candidates who submitted

their certificates were appointed. The Writ Petitions filed,

challenging the selection list were dismissed on 30 th

August, 2012. The impugned judgment passed by the

Division Bench of the High Court, modifying the relief and

extending the benefit of relaxation only in favour of those

candidates who submitted their certificates prior to

28th March, 2012 was delivered on 26 th September, 2012

pursuant to which, the candidates who submitted their

certificates after 28th March, 2012, were removed from

service. Persons who submitted their certificates prior to

28th March, 2012 have been working continuously till

date. It has been stated by the Corporation in the written

note submitted to this Court that recruitment to the post

of Technician Grade-2 (Apprenticeship Electrical) was

being done every year from 2013 onwards. The last 15

notification for appointment of Technician Grade-2

(Apprenticeship Electrical), was issued in January, 2019.

Any relief of a relaxation given in favour of those who

were not diligent in furnishing the certificates prior to 28 th

March, 2012 could have an adverse effect on the ongoing

selection process. There are no posts of the year 2012

which were kept unfilled. There is no interim order

reserving any posts of the year 2012 in which the

candidates who did not submit their certificates prior to

28th March, 2012 and who have been out of service can

be accommodated. Another important difference

between the first group of persons who were given the

benefit of relaxation subject to production of the

certificates prior to 28th March, 2012 and the others who

produced the certificates later is that there is no material

on record to suggest there was any further delay on the

part of DOEACC in the issuance of the certificates. The

very fact that certain candidates submitted their

certificates prior to 28th March, 2012 would show that

persons who sought further relaxation after 28 th March,

2012 were not vigilant. It is settled law that there is no 16

indefeasible right of appointment on the basis of inclusion

in the select list. None of the candidates in whose favour

relaxation was given have any right to claim

appointment. However, we uphold the judgment of the

High Court in favour of the candidates who submitted

their certificates prior to 28th March, 2012, to do

complete justice in the matter.

13. For the aforementioned reasons, the judgment of the

High Court is upheld and the Civil Appeals are disposed

of.

..................................J. [ L. NAGESWARA RAO ]

..................................J. [ SANJAY KISHAN KAUL ]

New Delhi, February 22, 2019.