Dr. Imtiyaz Ahmad And 2 Others Versus State Of U.P. Thru. Prin. Secy. Deptt. Of Chikitsa Shiksha Ayush (Unani) Lko. And Another [WRIT – A No. – 349 of 2022]
1. Heard learned counsel for the petitioners and learned counsel for the respondents.
2. The instant writ petition has been filed praying for the following main relief(s):
“i. Issue a writ, order or direction in the nature of mandamus commanding the opposite party no. 2/Uttar Pradesh Public Service Commission to permit the petitioners to appear in the interview for the post of Medical Officer, S-11/07 in Government Unani Medical Colleges of U.P. (General Recruitment), which is slated for 24.01.2022 and 25.01.2022.
ii. Issue a writ, order or direction in the nature of mandamus restraining the opposite parties from detaining/debarring the petitioners from appearing in the interview for the post of Medical Officer, S-11/07 in Government Unani Medical Colleges of U.P. (General recruitment), scheduled for 24.01.2022 and 25.01.2022, without following the provisions contained in the Uttar Pradesh Public Service Commission (Procedure and Conduct of Business) Rules, 2011.”
3. The case set forth by the petitioners is that an advertisement had been issued by the Uttar Pradesh Public Service Commission (hereinafter referred to as Commission) inviting applications for various posts including the post of Medical Officer in Government Unani Medical Colleges of the State. A copy of the advertisement is annexure 3 to the petition. The selection required a two stage process namely a written examination for the purpose of screening followed by an interview of the eligible candidates.
The petitioners appeared in the screening examination and claim to have qualified the same. Thereafter the commission issued a notice dated 12.10.2021, a copy of which is annexure 7 to the petition whereby the candidates who had qualified in the screening examination were to be called for interview. It was specifically provided in the said notice that the candidates shall be called for an interview on the basis of the marks obtained in the screening examination.
4. The petitioners were sanguine in the belief that they would be called for interview which was scheduled to he held on 24.01.2022 and 25.01.2022 but the Commission issued a notice dated 17.01.2022, a copy of which is annexure 2 to the petition whereby the petitioners alongwith several other candidates were informed that the marks obtained by them in the screening examination were less than the cut off marks in their category. It is contended that as the roll numbers of the petitioners figure in the said notice dated 17.01.2022 whereby it has been contended that the cut off marks are less in their category as such they would not be called for interview scheduled on 24.01.2022 and 25.01.2022 and hence the petitioners are before this Court.
5. Reliance has been placed on the Uttar Pradesh Public Service Commission (Procedure and Conduct of Business) Rules, 2011 (hereinafter referred as Rules 2011) a copy of which is annexure 1 to the petition, more particularly on Rule 31 of the Rules 2011 to contend that the petitioners should have been informed individually about the rejection of the application for being called in the said interview. This has not been done by the Commission. It is contended that against the order rejecting the applications of the petitioners the petitioners have remedy of filing an appeal before the date of the interview and the commission should allow the petitioners to appear in the interview during the pendency of the appeal.
6. Reliance in this regard has been placed on two judgments of this Court passed in Writ Petition no. 8548 (Service Single) of 2019 in re: Dr. Atiya Khan vs State of U.P. and another decided on 03.04.2019 and Writ Petition no. 29326 (Service Single) of 2021 in re: Dr. Mohd. Khursheed Alam vs State of U.P. and another decided on 14.12.2021, copies of which are cumulatively annexed as annexure 13 to the petition to contend that Rule 31 of Rules 2011 has been interpreted by this Court and it has been held on the basis of concession given by the learned counsel for the Commission that in the event of rejection of their candidature, the petitioners are entitled to file an appeal and during pendnecy of the appeal the petitioners can be permitted to appear in the interview.
7. Placing reliance on Rules 2011 learned counsel for the petitioners argues that once the Rules 2011 are categoric and the candidature of the petitioners has been rejected by the Commission vide order dated 17.01.2022 as such keeping in view the Rules 2011 the petitioners are entitled to file an appeal against the said rejection order and as the time is short, this Court may permit the petitioners to appear provisionally in the interview scheduled to be held on 24.01.2022 and 25.01.2022.
8. On the other hand, learned counsel appearing for the respondents argues that it is not the case of candidature of the petitioners having been rejected rather it is a case where the petitioners have failed to make the cut off on the basis of marks in their category and as such a conscious decision has been taken by the Commission vide order dated 17.01.2022 of not calling the petitioners and other candidates who have failed to make the cut off marks, for interview. Thus, it is argued that once the petitioners have failed to make the cut off as such there would not be any occasion for calling them for interview.
9. As regards non-communication of the rejection of candidature to the petitioners individually it is argued that the Rules 2011 itself provide that the rejection order can be uploaded on the website of the commission and in fact the notice dated 17.01.2022 has been uploaded on the website of the Commission and as such there was no requirement of giving individual notice to the candidates including the petitioners.
10. As regards the judgments of this Court in the case of Dr. Atiya (Supra) and Dr. Khursheed Alam (Supra), learned counsel for the Commission argues that a wrong concession of law has been given by the learned counsel for the Commission of the candidates having an alternative remedy of appeal in as much as it is where the application of a candidate is rejected that he is entitled to file an appeal against the said rejection but in the instant case as the petitioners have failed to qualify and make the cut off marks in the screening examination as such the remedy of appeal would not be available to them.
11. It is also argued that the petitioners have failed to challenge the notice dated 17.01.2022 whereby they have not been found eligible for being called in the interview and hence the petition deserves to be dismissed.
12. Heard learned counsel for the parties and perused the record.
13. From perusal of record it is apparent that the petitioners had appeared in the screening examination in pursuance of the advertisement issued by the Commission for the post of Medical Officer. Admittedly the examination was in two parts namely screening examination and thereafter the qualified candidates were to appear in the interview.
14. The Commission issued a notice on 17.01.2022 whereby the petitioners alongwith several others were notified that the marks obtained by them in the screening examination are less than the cut off for the purpose of being called in the interview. The argument of learned counsel for the petitioners that the petitioners have not been informed individually about rejection of their applications merits outright rejection in as much as even if for the sake of arguments it is accepted that an individual notice of rejection of candidature was to be given the same would suffice once the said information is given on the Commissions’ website as per Rule 31(iv) of the Rules 2011. Admittedly, the notice dated 17.01.2022 is available on the Commissions’ website and thus there was no requirement of any individual notice to the petitioners.
15. The question which arises is that once the petitioners have not been found eligible for being called for the interview on the basis of having obtained lesser marks than the cut off in the screening examination then whether they are entitled to be called for the interview after filing of an appeal in terms of Rule 31 of the Rules 2011?
16. As reliance has been placed on Rules 2011, more particularly, Rule 31, for the sake of convenience the same is reproduced below:
“31. (i) No candidate shall be admitted to the examination unless he has duly applied on the prescribed form in the prescribed manner and has deposited the prescribed application/examination fee within the prescribed time,
(ii) No application received or submitted after last date fixed for receipt/submission of applications shall be accepted;
Provided that in case more than one mode have been provided the application sent by registered post/speed post shall be at the risk of candidate and shall not be accepted after the last date of receipt mentioned in the advertisement;
Provided that except in case of on-line form submission if the aforesaid last date is a non-working day, applications received on the next working day shall be deemed to be within time;
Provided further that if a doubt arises as to whether the application was received within time, the decision of the Committee constituted for the purpose shall be conclusive and final.
Provided further that Application form partially wrongly filled shall not be allowed to be corrected after it has been received by the Commission. It shall also be applicable to online applications.
(iii) An application not accompanied by proof of having deposited the application/examination fees or not giving full details regarding the optional papers offered shall be liable to rejection.
(iv) A rejection memo shall be sent to the candidates stating the reasons for rejection either through mail or through Commission’s website;
Provided that an information regarding rejection of an application, as shown on the web-site of the commission with regard to any examinations including preliminary examination or Screening test of such examination, shall be deemed to be a rejection – memo for the purposes of this rule and publication thereof on the website shall be deemed as if the rejection-memo has been properly served upon the applicant concerned.
(v) The candidate may file appeal against the memo of rejection imperatively before the date of examination or interview, as the case may be, and the same would be decided expeditiously by the committee of members constituted for the purpose. Subject to the final decision in the appeal, the Commission may allow the candidate to appear at the examination or the interview, as the case may be, provisionally during the pendency of the appeal.”
17. A bare perusal of the said rule would indicate that the same pertains to the application of a candidate to an examination for which he has applied. The said rules provides that no candidate shall be admitted to an examination unless he has applied on the prescribed format in the prescribed manner and has deposited the prescribed application/examination fees and that no application received after the last date fixed for receipt shall be accepted. The Commission has been given the power to remove doubts as to whether the application has been received within time or not. In these circumstances, in case an application form is rejected, a rejection memo is to be sent to the candidate stating the reasons for rejection either through mail or uploaded on Commissions’ website. A candidate has been given the power to file an appeal against the memo of rejection and, subject to final decision of the appeal, the Commission has been given power to allow the candidate to appear in the examination or interview, as the case may be.
18. The controversy or doubt arises with the words used in Rule 31(v) of the Rules 2011 namely:
“(v) The candidate may file appeal against the memo of rejection imperatively before the date of examination or interview, as the case may be, and the same would be decided expeditiously by the committee of members constituted for the purpose. Subject to the final decision in the appeal, the Commission may allow the candidate to appear at the examination or the interview, as the case may be, provisionally during the pendency of the appeal.”
19. At first blush, when Rule 31(v) is read in isolation and as per the arguments of learned counsel for the parties, it comes out that if a candidate is not being permitted to appear in an interview despite his candidature having been rejected then, upon filing of appeal the commission may permit the candidate to appear in the interview.
20. However, Rule 31(v) of the Rules 2011 has to be read in entirety alongwith Rule 29, 30, 32 & 33 of the Rules 2011, which for the sake of convenience, are reproduced below:
“29 (i) The Commission shall conduct examinations for the various posts to be filled by competitive examinations;
(ii) The Commission may hold combined competitive examination for selection to various posts under its purview.
(iii) In cases of direct selection through interview only, if the proportion of candidates to the number of posts is high, the Commission may, after having considered feasibility, expediency and other aspects to hold examinations, decide to hold preliminary examination/ screening test of the candidates.
30 (i) The Commission shall advertise the vacancies through the Print media, or electronic media or both and invite applications from eligible candidates. Manner of inviting applications forms includes ”on-line’ submission of application forms through internet as prescribed by the Commission in it’s website.
(ii) Applications received in response to advertisement shall be scrutinised by the office in the manner prescribed by the Commission on it’s website.
32 (1) All eligible candidates shall, subject to the provisions of the above rules, be admitted to the examination.
(2) A candidate at any stage of examination/selection which shall include final selection and sending recommendation thereof or during the course of examination or any selection process conducted or being conducted may be debarred from an examination or future examinations or his candidature may be cancelled, w.e.f. the date as decided by the Commission, if he or she-
(i) produces a false or forged document, the discovery of which may disqualify him or her from appearing at any examination or interview;
(ii) conceals any material fact or information, or flouts any instruction, guidelines, terms and conditions given through advertisement, instructions or communicated in any manner;
(iii) uses any unfair means at the time of examination or interview, or during the selection process;
(iv) misbehaves with any functionary at the time of examination centre or the Commission;
(v) has ever been rusticated, convicted for any offence, dismissed from any service under the Government, or has concealed deliberately any such information the disclosure of which would otherwise render him/her disqualified for the post which he/she had applied for;
(vi) has been debarred earlier on the above mentioned grounds or on the grounds of moral turpitude by the Union Public Service Commission or any state public service commission including this Commissions also;
Provided that action of debarring and cancellation of candidature shall not be done unless the candidate is served upon with a show cause notice and is provided an opportunity of being heard by the committee constituted for the purpose;
Provided further that the order of debarring or cancellation of candidature shall be passed only after the committee of the members constituted for the purpose has considered the matter and approved the proposed punishment of debarring the candidate or cancellation of his candidature.
(3) An appeal against the order passed under sub-rule 2 of rule 32 shall lie to the Commission.
33 (i) Notwithstanding anything to the contrary contained in relevant service rules of Government Orders regarding recruitment, the Commission may hold preliminary examination/screening test for finding out suitable candidates for admission to main examination or interview, as the case may be;
(ii) Preliminary examination shall mean screening test to be conducted by the Commission with the purpose of finding out suitable candidates in required proportion as fixed by the Commission in each category, reserved or unreserved, for admission to the main examination or interview, as the case may be;
(iii) Preliminary examination shall be conducted in the manner prescribed by the Uttar Pradesh Direct Recruitment through Public Service Commission Preliminary Examination Rule, 1986 as amended from time to time. The marks obtained by the candidates in the preliminary examination/screening test shall not be counted for determining final order of merit.
(iv) The Commission shall fix the place, dates and time of examination which includes preliminary examination/screening test and main examination, as the case may be.
(v) The centers of examination shall be fixed with prior approval of the Chairman/Examination Committee.
(vi) All arrangements for such examinations shall be made by the Controller of Examination in consultation with the Secretary and in accordance with such directions as may be issued by the Commission in that behalf.”
21. Rule 29 of the Rules 2011 categorically provides that a competitive examination for selection to fill various posts under the purview of the Commission can be through examination or through interview only. Rule 30 further provides that the Commission shall advertise a vacancy and invite applications. Rule 31 pertains to the matter in which the applications are to be scrutinized. Rule 32 provides that all eligible candidates shall, subject to the provisions of the rules, be admitted to the examinations. Rule 33 provides that the Commission may hold preliminary examination/screening test for finding out suitable candidates and that the preliminary examinations shall mean screening test to be conducted by the Commission. Thus once the examination by the Commission can be by way of written examination for the purpose of screening or by way of an interview only as such Rule 31(v) which provides that upon rejection of the application a candidate can file an appeal and the Commission may permit the candidate to appear in the examination or the interview as the case may be would have to be read as rejection of an application of a candidate prior to appearing in the written examination or interview and not after the candidate has failed to qualify in the examination either by way of not obtaining the cut off marks or having miserably failed to even obtain the bare minimum marks. Any other interpretation of Rule 31(v) would render chaos in as much as all candidates who fail in written examination would be filing appeals before the Commission and staking their claim for appearing in the interview. This would also be amply clear from the perusal of the Rule 32 which specifically provides that all eligible candidates subject to provisions of the rules to be admitted to the examination meaning thereby that the said rule pertains to giving a way to the rejected candidates to file an appeal which would imply and mean a ”candidate’ prior to appearing in the screening examination/preliminary examination or interview and not subsequent to having appeared in such examination/interview. This also stands clarified in Rule 33 whereby the preliminary examination has been indicated to be the screening test. Thus, the interpretation which the petitioners are trying to place over Rule 31(v) of the Rules 2011 is an interpretation which does not come out from a complete perusal of the Rules and thus merits outright rejection.
22. Admittedly the petitioners having failed to make the cut off marks in the screening examination as per the notice dated 17.01.2022 would not be entitled to appear in the interview which the commission has correctly proceeded to restrain them alongwith others.
23. As regards the judgments of this Court in the case of Dr. Atiya and Dr. Khursheed Alam (Supra) suffice it to say that both the judgments were rendered on the basis of the concession given by the learned counsel appearing for the Commission of the candidates having a remedy of appeal in terms of the Rules 2011. Thus, both the judgments would not be of any help to the petitioners.
24. It is settled proposition of law that a concession against law or wrong concession of law would not be binding.
25. In this regard, the Court may refer to a recent judgment of Hon’ble the Apex Court dated 20.01.2022 passed in Civil Appeal No. 152 of 2022 in re: The Employees’ State Insurance Corporation vs Union of India & others. For the sake of convenience relevant paragraphs of the aforesaid judgment is reproduced are under:
“23. The contesting Respondents submitted that the Appellant is estopped from urging that the DACP Scheme is not applicable to the Teaching Cadre at the ESIC since they have taken this stance before the CAT and in its writ petition before the High Court. While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the Appellant, there can be no estoppel against a statute or regulations having a statutory effect. In Nedunuri Kameswaramma v. Sampati Subba Rao AIR 1963 SC 884 a three-judge Bench of this Court decided a central point of the dispute in favour of a party, irrespective of the concession of its Counsel since it was on a point of law. Justice M. Hidayatullah (as the learned Chief Justice then was), speaking on behalf of the Court observed:
20. From the above analysis of the documents, it is quite clear that the documents on the side of the Appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the Appellant’s case. Much cannot be made of a concession by counsel that this was a Dharmilainam, in the trial court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it. (emphasis supplied)
24. In Himalayan Coop. Group Housing Society v. Balwan Singh (2015) 7 SCC 373 a three-judge Bench of this Court clarified the law of agency with respect to client-lawyer relationships. The Court held that while generally admissions of fact by counsel are binding, neither the client nor the court is bound by admissions as to matters of law or legal conclusions:
32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer’s statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client’s instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. (emphasis supplied)
25. Recently, a two-judge Bench of this Court in Director of Elementary Education, Odisha v. Pramod Kumar Sahoo (2019) 10 SCC 674 observed that a concession on a question of law concerning service Rules would not bind the State:
11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The Rules provide for a specific grade of pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the Appellant.
The concession of the Counsel for the Appellant before the CAT does not preclude the finding on the law that is arrived at by this Court.
(Emphasis by the Court)”
26. Keeping in view the aforesaid discussion no case for interference is made out. Accordingly, the writ petition is dismissed.