U.P. Public Service Commission & Ors vs Rajeev Kumar Bansal

U.P. PUBLIC SERVICE COMMISSION & ORS ... APPELLANTS

VERSUS

RAJEEV KUMAR BANSAL ... RESPONDENT

WITH C.A.NO. 2843/2005

ORDER

C.A.NO. 2842/2005 The appellant-U.P. Public Service Commission (UPPSC) issued an

advertisement dated 16.07.1999 inviting applications for recruitment to the posts of

Regional Inspectors (Tech.) and Assistant Regional Inspectors (Tech.) in U.P.

Transport Department. The respondent-Rajeev Kumar Bansal was an applicant for

both the posts. The said advertisement prescribed the qualifications required for the

posts. There is no dispute that the respondent possessed the requisite educational

qualification. The dispute is in regard to the practical experience required for the

posts. Sub-clause (5) of Clause 5 of the advertisement prescribing the practical

experience, is extracted below :

"(5) Besides above, for the post of Regional Inspector (Tech.) candidates must possess at least five years practical experience and for Asstt. Regional Inspector (Tech.) three years practical experience of repairs, overhauling and inspection of Motor Vehicles in a large automobile workshop."

The said practical experience specified in Clause 5(5) of the advertisement 2

is in terms of the provisions of the U.P. Transport (Subordinate) Technical Service

Rules, 1980.

2. The applicant claimed that he had two and a half years experience

(10.5.1994 to 22.11.1996) as Workshop Supervisor in Hindustan Automobiles which

was admittedly a State Government approved institution and another two and a half

years experience commencing from 1.1.1997 in a large private workshop known as

Zaheer Engineering Works.

3. Nearly six months after the said advertisement, the Transport

Commissioner, Lucknow issued certain guidelines in regard to what should be

considered as 'large automobile workshops' for the purpose of fulfilling the

requirement relating to practical experience mentioned in Clause 5(5) of the

advertisement. As per the said guidelines, only (i) workshops which were approved

by the State Government, (ii)Department of State Government or Central

Government which has its own large automobile workshop, (iii) a corporation which

has its own large workshop and (iv) workshops of authorised dealers of heavy/light

vehicles manufacturers where repairs and overhauling are carried on, could be

considered as large automobile workshops. The appellant considered the application

of the respondent with reference to the said guidelines and found that working at

Zaheer Engineering Works could not be considered as practical experience as it as not

a large automobile workshop. As a result UPPSC rejected the application of the

respondent on the ground that he did not have the prescribed experience.

4. Feeling aggrieved the respondent approached the Allahabad High Court

by filing Civil Misc. Writ Petition NO.34884 of 2000. A learned Single Judge of the

High Court by judgment dated 17.08.2000 rejected the writ petition. Feeling 3

aggrieved the respondent filed Special Appeal No.515 of 2001. The Division Bench of

the Allahabad High Court by judgment dated 16.07.2001 accepted the contention of

the respondent and allowed the appeal. It rejected the contention of the appellant

that a large automobile workshop refers to a automobile workshop approved by the

State Government. The High Court held that "It will be quite unreasonable to

construe the large automobile workshop as that workshop which was approved by the

State Government because many automobile workshops are very big and cannot be

excluded for the purposes. Moreover, the decision of the Commission cannot override

the statutory rules. That apart the advertisement does not also mention that the large

automobile workshop only relates to the workshops approved by the State

Government." As a consequence the Division Bench directed the UPPSC to consider

the case of the respondent for appointment afresh by taking into account the period

of service/experience of the respondent herein in large automobile workshops

meaning thereby any large automobile workshops approved by the State Government

or in the private sector.

5. The appellant purported to reconsider the case of the respondent in the

light of the order of the Division Bench and passed a fresh order dated 24.08.2001

whereby it again rejected the application of the respondent on the ground that there

was no mention in the certificate that Zaheer Engineering Works was a workshop

approved by the State Government.

6. The respondent again approached the Allahabad High Court by initiating

a second round of litigation in Civil Misc. Writ Petition No.12615 of 2002. A learned

Single Judge of the High Court by judgment dated 04.10.2002 allowed the writ

petition. He did not go into the question whether Zaheer Engineering Works was a 4

large automobile workshop or not. He was of the view that having regard to the

qualification prescribed by the Central Government in a notification dated

12.06.1989 issued under Section 213(4) of the Motor Vehicles Act 1989, prescribing

the practical experience of one year it was unnecessary for the respondent to establish

five years experience. The learned Single Judge was of the view that the said Central

notification dated 12.6.1989 would prevail over the provisions of the U.P. Transport

(Subordinate) Technical Rules 1980. The said judgment of the learned Single Judge

was upheld by a Division Bench and the appellant's appeal (Special Civil Appeal No.

99 of 2003) was rejected by order dated 08.07.2004. The Division Bench also did not

go into the question whether Zaheer Automobile workshop was a large automobile

workshop, as it was also of the view that one year's experience was sufficient and the

respondent admittedly possessed such experience.

7. The said judgment is challenged by the UPPSC. It contends that the

decision of the Division Bench holding that the notification dated 12.06.1989 of the

Central Government will prevail over the U.P. Transport (Subordinate) Technical

Rules 1980 is contrary to the decision of this Court in S. Satyapal Reddy and others

vs. Government of A.P. and others, 1994(4) SCC 391.

8. A perusal of the decision of this Court in Satyapal Reddy (Supra) clearly

shows that the High Court erred in holding that the notification dated 12.06.1989 will

prevail over the State rules. However, it is not necessary to examine the said issue in

further detail, as this appeal can be disposed of on facts, with reference to the

decision rendered by the Allahabad High Court in the first round of the litigation.

9. The question that was considered in the first round was whether only State

approved workshops should be considered as large automobile workshops. The said 5

contention of the Commission based on the guidelines issued by the Transport

Commissioner was expressly negatived by the Division Bench by the judgment dated

16.07.2001. The Division Bench directed the Commission to consider the case of the

respondent without reference to the requirement imposed by the guidelines. That

judgment attained finality as it was not challenged. Necessarily, therefore, the

Commission had to decide the issue with reference to the observations made in the

said judgment. The Commission could not have again rejected the application on

the same ground which was negatived by the Division Bench by judgment dated

16.7.2001. Learned counsel for respondent invited our attention to the recent

decision of this Court in K. Manjusree vs. State of A.P. and another, 2008(2) SCALE

554, wherein this Court has observed that while making selections, the Rules of the

game cannot be altered after the game was started. In this case the advertisement

was issued on 16.07.1999 and obviously therefore any subsequent guideline which has

effect of restricting the definition of large automobile workshops cannot be relied on

for the purpose of rejecting an application which was otherwise acceptable, if the

normal meaning was assigned to the term 'large automobile workshop' in view of the

decision in the first round of litigation.

10. We are informed that one post has been kept vacant in pursuance of the

interim order of the High Court passed on 01.04.2002. It is also stated that in the

written examination the respondent had secured third position and but for the

dispute relating to practical experience he would have been selected.

11. We therefore dismiss this appeal as having no merit. The appellant shall

declare respondent's result as selected. We make it clear that our decision will not

affect any other rejection by the UPPSC which has attained finality. 6 C.A.No.2843/2005

This appeal is by an applicant for impleadment when the matter was

pending in the High Court in Civil Special Appeal No.99/2003. The grievance of the

appellant is that his application for impleadment was not considered by the High

Court. Having regard to the facts and circumstances of the case, the appellant in this

appeal (C.A.No.2843/2005) was neither a necessary nor a proper party and the non

consideration of his application for impleadment cannot be said to have caused any

prejudice. This appeal is also therefore rejected.

..............................J. ( R.V. RAVEENDRAN )

..............................J. ( DR. MUKUNDAKAM SHARMA ) NEW DELHI, JUNE 23, 2008.