JUDGMENT
D. K. Seth, J.
1. The petitioner Shital Prasad Tiwari in Writ Petition No. 9404 of 1999 was selected by the selection committee in terms of Rule 16 of the Uttar Pradesh District Offices (Collectorates) Ministerial Service Rules, 1980. By an order dated 29.11.1997, the petitioner was appointed as Stenographer in Grade-I. Respondent No. 3 Sri Ghaslte Lal Verma made a representation that he was not given any opportunity in the selection and that he had been senior to the petitioner by 17 years and that he was confirmed in the post three years before the petitioner was confirmed, as such he has a claim for the post to which the petitioner was posted. By a decision dated 6.1.1999, the Commissioner had allowed the said representation and reverted the petitioner to the post of stenographer grade II. This order has Since been challenged in this writ petition.
2. Mr. M. M. Sahai, learned counsel for the petitioner has taken a
simple but an Interesting point to the extent that the appointment in the post of stenographer grade-I is by way of direct recruitment and not by way of promotion. Relying on Rule 16 of the said 1980 Rules, he then contends that the Rule does not permit any seniority and the appointment should be made only on merit.
3. Rule 16 of the said Rules prescribes as follows :
“16. Procedure for Direct Recruitment to the post of stenographer.–(1) For the purpose of direct recruitment to the posts of stenographer, there shall be constituted a Selection Committee comprising :
(i) the District Officer of the
district;
(ii) two other officers of the district not below the rank of Deputy Collector to be nominated by the District Officer.
(2) The Selection Committee shall scrutinize the applications and require the eligible candidates to appear in a competitive test and interview.
Note.–The syllabus and procedure for competitive test is given in Appendix II.
(3) After the marks obtained by the candidate in the written test, have been tabulated, the Selection Committee, shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes. Scheduled Tribes and other categories in accordance with Rule 6, call for interview such number of candidates as on the result of the written test, have come up to the standard fixed by the Committee in this respect. The marks awarded to each candidate in the interview, shall be added to the marks obtained by him in the written test.
(4) The Selection Committee shall prepare a list of candidates
in order of merit, as disclosed by the aggregate of marks obtained by them in the written test and interview. If two or more candidates obtain equal marks, the candidates obtaining higher marks in the written test shall be placed higher. The number of names in the list shall be larger (but no larger by more than 20 per cent than the number of vacancies.)”
4. A plain reading shows that the selection is to be made only on the basis of the merit and in case of equal marks, in that event, marks obtained in the written test shall be taken into consideration. Seniority has no manner of application in the present case. Therefore, as rightly contended by Mr. Sahai. the question of seniority as has been given in the impugned order of the Commissioner appears to be unfounded.
5. Rule 17 prescribes as follows :
“17. Procedure for recruitment by promotion to the posts other than the posts of Office Superintendent.– (1) Recruitment to the posts of category ‘B’. ‘C’ and ‘D’ and stenographer Grade I mentioned in Rule 5, shall be made on the basis of seniority subject to the rejection of the unfit through the Selection Committee constituted under Rule 16(1).
(2) The appointing authority shall prepare categorywlse eligibility lists of the candidates arranged in order of seniority and place the list before the Selection Committee along with their character rolls and such records pertaining to them so may be considered proper.
(3) The Selection Committee shall consider the cases of candidates on the basis of character rolls and records referred to in sub-rule (2) and if it considers necessary it may also interview the candidates.
(4) The Selection Committee shall prepare a list of selected
candidates arranged in order of seniority and forward the same to the appointing authority.”
A plain reading of the above Rule shows that the selection list prepared by the Selection Committee cannot be changed by any authority.
6. The argument made on behalf of respondent No. 3 by Mr. N. K. Saxena that the petitioner is junior and that he was wrongly allowed could not be sustained in the facts and circumstances of case. Rules 16 and 17 clearly show appointment is to be made on the basis of merit as is determined by the Selection Committee. The contention of Mr. Saxena to the extent that respondent No. 3 was not called on to appear in the test and interview can also not be sustained. Inasmuch as if he is an eligible candidate to be called for the test and Interview and if he has not been called for the same, then he can very much challenge the said selection before this Court, if he is so advised. But it is not open to him to seek the relief through a representation.
7. A plain reading of the Rules shows that there is no provision or any power on the Commissioner to decide either by way of appeal or by way of representation and quash the appointment and as such the order passed by the Commissioner cannot be sustained.
8. Be that as it may. as appears from records of Writ Petition No. 3519 of 2000 that, in the meantime, by order dated 11.11.1999 the petitioner in Writ Petition No. 9404 of 1999 has been adjusted in a post without affecting his scale of pay or seniority or otherwise in the office of the Commissioner, which has already been filed as Annexure-1 to the Writ Petition No. 3519 of 2000, on the basis of an undertaking given by him in writing on 10.11.1999 that he will not proceed with his writ petition being Writ Petition No. 9404 of 2000 and that he would be withdrawing the writ petition. The order dated 11.11.1999 is Annexure-1 to the Writ Petition No. 3519 of 2000. A copy of the undertaking has also been produced before this Court which
finds mention in para 2 of the order dated 11.11.1999. Thus, it appears that the question has become academic and the petitioner having agreed and accepted adjustment, he cannot have any cause tn respect of Writ Petition No. 9404 of 1999. He having given an undertaking in writing on 10.11.1999 in favour of adjustment and the adjustment having been given by order dated 11.11.1999, the petitioner ought to have withdrawn the writ petition. This point was not disclosed by Mr. Sahai when he argued the Writ Petition No. 9404 of 1999. though the same was listed along with Writ Petition No. 3519 of 2000. As soon the case was called out, Mr. Sahai prayed that the Writ Petition No. 9404 of 1999 should be taken up first. He had never referred to any facts mentioned in the Writ Petition No. 3519 of 2000 on the ground that copy of Writ Petition No. 3519 of 2000 was never served upon him. though he was party respondent to that writ petition. Though no copy might have been served on him but when the matter was listed together it was expected that Mr. Sahaf should have gone through records of the case and had pointed out the situation. At the same time, the petitioner had also responsibility to inform his counsel that he had given an undertaking and that on the basis whereof he had been adjusted. If he does not he is bound to suffer the same for which Mr. Sahal cannot be held responsible. In the absence of proper instruction. he may be helpless. The petitioner cannot avoid his responsibility. In view of his undertaking and the subsequent order dated 11.11.1999 and the statement made by Mr. Sanjai Goswami. learned standing counsel to the extent that the petitioner has not been deprived of any of the benefit, which was obtainable by him by reason of the order dated 29.11.1997 and that he has been adjusted on the basis of his representation, as an alternative, he cannot claim any further benefit and as such the question has become purely academic.
9. In that view of the matter, the Writ Petition No. 9404 of 1999 is dismissed as infructuous in view of
the fact that the petitioner has already been adjusted against a post asked for by him on the basis of his representation and the undertaking given on 10.11.1999. Therefore, question of validity of the order passed by the Commissioner need not be gone into since Impugned in Writ Petition No. 9404 of 1999. If respondent No. 3 in Writ Petition No. 9404 of 1999 has obtained any benefit, the same may not be disturbed by reason of the order passed in this writ petition as it will in no way affect the right of the petitioner as is appeared from the order dated 11.11.1999.
10. The petitioner Vinod Kumar Soni in Writ Petition No. 3519 of 2000 has claimed the post to which the petitioner in Writ Petition No. 9404 of 1999 has been adjusted. The post is that of Personal Assistant to which the petitioner in Writ Petition No. 3519 of 2000 is entitled to be promoted. The petitioner has challenged the adjustment of Shital Prasad Tiwari, petitioner in Writ Petition No. 9404 of 1999, in the post of P.A. Mr. B.N. Singh, learned counsel for the petitioner contends that the petitioner Vinod Kumar Soni has a right to be considered for promotion to the post of PA, as such this order cannot be sustained. But in his usual fairness, Mr. Singh admitted that petitioner Vinod Kumar Soni is a stenographer grade II.
11. Mr. Goswami, learned standing counsel submits that new Rules known as Uttar Pradesh Divisional Commissioner Offices and District Offices (Collectorates) Personal Assistants and Stenographers Services Rules, 1998, has been framed which has come into effect from 9.12.1998. Now under the new Rules, the post of PA is to be filled up from stenographer Grade I who has two years’ experience in the post. When admittedly, petitioner Vinod Kumar Soni is not stenographer Grade 1, he cannot claim to have been qualified for the said post. Under the new Rule, qualification for PA having been prescribed as referred to above, and the petitioner having not been able to fulfil the same, he cannot challenge
the order of adjustment in this writ petition, being the order dated 11.11.1999.
12. At this stage. Mr. Singh submits that he had also challenged the validity of the said Rules in this Court which is pending. Therefore, according to him. this writ petition should be connected with the said writ petition. When the matter was called on. no such prayer was ever made. After the order is dictated, Mr. B. N. Singh had appeared and submitted which has been recorded as above. Therefore, it appears that the stand taken by him cannot be accepted after the matter is heard for long time and the order is already dictated, therefore, in the absence of qualification, this Writ Petition No. 3519 of 2000 fails and is accordingly dismissed. However, this order will not in any way influence the decision in the other Writ Petition No. 17149 of 2000. In case the rule is declared ultra vires, in that event, the decision given in these two writ petitions shall be subject to the decision that might be given in the said decision.