Interpretation of the operational part of judgement
Guest
(Querist) 15 September 2012
This query is : Resolved
Divisional Bench gave this judgement in a special appeal filed for the recruitment of physiotherapists in uttarakhand.
We, accordingly, allow the appeal and modify the
judgment and order under appeal by upholding the quashing of
concerned merit list of Physiotherapists prepared by the Board, but at
the same time, direct the Board to reject all those examinees, who
appeared in the examination for being appointed as Physiotherapists,
but not received 30% marks in diploma examination and to complete
the selection of Physiotherapists by adding to the marks obtained by
the fit examinees in the written examination, 30% marks for
intermediate examination and 70% marks for diploma / degree
examination. Let the said exercise be completed as quickly as
possible, but not later than two months from the date of service of a
copy of this order upon the Board.
Sir i want your help to interpret this judgement.please reply,thanks
i have attached the whole judgement for refrence.
ajay sethi
(Expert) 15 September 2012
repeated query . already answered . you have reproduced operational part of judegment . already interpreted . whole judgement has not been enclosed earlier nor now
Guest
(Querist) 15 September 2012
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 77 of 2012
Ravi Shankar Joshi and others. ….Appellants.
Versus
Anil Joshi and others. …...Respondents
Mr. Manoj Tiwari, Senior Advocate assisted by Mr. Alok Mehra, Advocate for the appellants.
Mr. Sandeep Kothari, Advocate for the respondent nos. 1 to 9.
Mr. Vinay Kumar, Standing Counsel for the State of Uttarakhand / respondent nos. 10 and 11.
Mr. Rakesh Thapliyal, Advocate for respondent no. 12.
Coram: Hon’ble Barin Ghosh, C.J.
Hon’ble U.C. Dhyani, J.
BARIN GHOSH, C.J. (ORAL)
There is a Rule known as “Uttar Pradesh Medical,
Health and Family Welfare Department Physiotherapist and
Occupational Therapist Service Rules, 1998”. After the creation of
the State of Uttarakhand, the said State adopted the said Rules. In
terms of Rule 15 of the said Rules, direct recruitment to the posts
created by the said Rules was directed to be made in terms of the
provisions contained in Uttar Pradesh (Outside the purview of the
Public Service Commission) Group ‘C’ Recruitment Rules, 1998.
The said Rules of 1998, therefore, did not specify any specific
mechanism for recruitment to the posts created by the said Rules.
There appears to be no dispute that Uttar Pradesh (Outside the
purview of Public Service Commission) Recruitment to the posts of
Group ‘C’ Rules, 1998 laid down a specific procedure for
recruitment of people to be engaged in Group ‘C’ posts.
2. On 4th
August, 2008, in exercise of power conferred by
the proviso to Article 309 of the Constitution of India, the State of
Uttarakhand amended the said adopted 1998 Rules by substituting
Rule 15 thereof. By the substituted Rules, amongst others, a
direction was given for constitution of a selection committee
comprising of those persons, mentioned therein. It was directed that
the selection shall be made by conducting a written examination,
consisting of a single question paper and containing objective type
questions. It was stated that the written examination will carry 100
marks. It was then stated that questions will be in General Hindi,
General Knowledge and concerned subject. It was also stated that
one-fourth mark shall be deducted for each incorrect answer as
negative marking. It stated that, in addition to the candidates being
awarded marks that they will obtain in written examination, the
candidates will be awarded 30% and 70% marks, for the percentage
of the marks obtained by them in intermediate examination and
diploma / degree examination respectively. It stated that the merit-list shall be prepared by the selection committee on the basis of the
aggregate of marks obtained in the test for selection carrying 200
marks, which will include 100 marks for written examination, 30%
marks of intermediate examination and 70% marks of diploma /
degree examination. It also indicated that the candidate, obtaining
less than 40% marks in the written examination and less than 30%
marks in diploma examination, shall be unfit for selection. The said
1998 adopted Rules with the amendment was holding the fort, when
an advertisement came to be published by the Uttarakhand Board of
Technical Education, Haridwar. By that advertisement, it was held
out that the said advertisement is being issued for the purpose of
combined selection of Group ‘C’ posts available in the State
Government. One of those posts, so advertised, was the post of
Physiotherapist governed by the said 1998 adopted Rules as stood
amended on 4th
August, 2008. In the advertisement, it was held out
that an examination will be conducted for selecting the right
candidate for being recommended for appointment in those posts of
Physiotherapists too. It was also held out that the examination will
be of objective type carrying 100 marks, of which 50 marks will be
dedicated to General Hindi, General Knowledge, General Studies and
Geographical, Cultural, Academic and Historical Background of the
State of Uttarakhand and remaining 50 marks for the optional
subjects. It was indicated that the marks obtained in the said written
examination will entail placement of the candidates in their order of
merit in the merit-list to be prepared. Private respondents, seven in
number, responded to the said advertisement and chose
physiotherapy paper as their optional paper. They appeared in the
examination and, subsequent thereto, they were declared
unsuccessful. Thereafter, they approached the writ court by filing a
writ petition and thereby contended, principally, three things,
namely, in view of the Rules governing, Uttarakhand Board of
Technical Education could not be the selector, instead the selector
could have been those, who have been constituted by the amended
adopted Rules of 1998. They next contended that some of the
candidates, shown to have been selected, obtained less than 40%
marks in written examination and less than 30% marks in diploma
examination, despite they having been declared unfit for selection by
the Rules. They lastly contended that in terms of the Rules, selection
could be made on 200 marks and not on 100 marks, as has been
done. By the judgment and order under appeal, private respondents
have succeeded in their writ petition. Hence, the present Appeal.
3. It is settled law that it must be deemed that people know
the law. Each of the private respondents, therefore, knew the law
governing the subject, when the advertisement was published. They
knew that by the advertisement, selection committee, prescribed by
the Rules, has been replaced by some other body. After having had
taken a chance before that other body, private respondents could not
turn around and contend that the selector, who has not selected them,
was not the appropriate selector. In the advertisement, it was not
indicated that a person, who has not received 40% marks, at least, in
the written examination will be disqualified, despite the same being
one of the terms of selection stipulated in the Rules governing the
recruitment. Private respondents, having not raised any grievance in
relation thereto, while unconditionally responding to the
advertisement, cannot turn around and contend violation or breach of
that part of the Rules in the advertisement. The advertisement,
however, did not speak a word as regards obtaining of not less than
30% marks in diploma examination for being qualified to be selected.
At the same time, the advertisement did not speak a word about
another 100 marks as provided in the Rules, comprising of 30%
marks for intermediate examination and 70% marks for diploma /
degree examination and the law being settled that statutory Rules
must be read into the advertisement, it should be deemed that the
advertisement held out, amongst others, that in order to be selected, a
candidate is required to obtain not less than 30% marks in diploma /
degree examination and also that the merit-list is to be prepared on
the basis of aggregate of marks obtained in the test for selection
carrying 200 marks, which will include 100 marks for written
examination, 30% marks for intermediate examination and 70%
marks for diploma / degree examination. To that extent, it was well
within the competence of the private respondents to approach the
Court to state that selection has not been done in the manner the same
was required to be done.
4. The learned counsel for the appellants drew our
attention to the Uttarakhand Procedure for Direct Recruitment for
Group ‘C’ Posts (Outside the Purview of the Uttarakhand Public
Service Commission) Rules, 2008 made by the State Government on
1st
October, 2008 in exercise of power under proviso to Article 309
of the Constitution of India. It was submitted that by virtue of the
said Rules, the method of recruitment provided therein applied to the
Group ‘C’ posts also mentioned in the adopted 1998 Rules, as
amended on 4th
August, 2008. It was submitted that, in terms
thereof, there is now no need for including marks obtained in
intermediate examination and diploma / degree examination, nor
there is any requirement of obtaining at least 30% marks in diploma /
degree examination for being selected. We have read the Hindi as
well as the English version of the 2008 Rules. In view of Rule 1 (3)
(i-a) of the English version and Rule 1 (3)(ii) of the Hindi version of
the 2008 Rules, we are of the view that from the said Rules, those
posts of the department, where the minimum academic qualification
is not less than Intermediate, have been excluded. That being the
situation, the conclusion would be that the learned Judge while was
not right in interfering with the entire selection process, private
respondents were entitled to insist for a direction to complete the
selection process by adding 30% marks for intermediate examination
and 70% marks for diploma / degree examination to the marks
obtained by each examinee, who appeared in the examination
conducted by the Board and also to declare that those, who have not
obtained 30% marks in diploma / degree examination are unfit.
5. We, accordingly, allow the appeal and modify the
judgment and order under appeal by upholding the quashing of
concerned merit list of Physiotherapists prepared by the Board, but at
the same time, direct the Board to reject all those examinees, who
appeared in the examination for being appointed as Physiotherapists,
but not received 30% marks in diploma examination and to complete
the selection of Physiotherapists by adding to the marks obtained by
the fit examinees in the written examination, 30% marks for
intermediate examination and 70% marks for diploma / degree
examination. Let the said exercise be completed as quickly as
possible, but not later than two months from the date of service of a
copy of this order upon the Board.
(U.C. Dhyani, J.) (Barin Ghosh, C.J.)
02.05.2012 02.05.2012
Rathour
R.K Nanda
(Expert) 15 September 2012
repeated query.
Guest
(Querist) 15 September 2012
Sir, here a question arises whether a person getting 2 marks in the written exam be considered fit examinee while a person with 40 marks is unfit and out from merit list.
ajay sethi
(Expert) 16 September 2012
the court has held that the law being settled that statutory Rules
must be read into the advertisement, it should be deemed that the
advertisement held out, amongst others, that in order to be selected, a
candidate is required to obtain not less than 30% marks in diploma /
degree examination and also that the merit-list is to be prepared on
the basis of aggregate of marks obtained in the test for selection
carrying 200 marks, which will include 100 marks for written
examination, 30% marks for intermediate examination and 70%
marks for diploma / degree examination
if you have any dobt you cna move the court for clarifcations
