SUBODH KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) ACCORDING to the petitioner Director General of Prosecution, U. P. Lucknow, respondent no. 2. through letter dated 22-5-1987 had asked the District Magistrates of the State including that of Aligarh, respondent no. 4 for selection of candidates as junior clerk to be appointed through a Selection Committee. Posts were advertised on 21-6-1987 thereafter the petitioner had appeared in the test before the Selection Committee comprising of A.D.M. Civil Supplies, Aligarh, S.D.M. Khair, Aligarh and the Senior Prosecuting Officer, Aligarh. The petitioner was selected and stood first in the test and his name along with other candidates was sent for approval and appointment to the Director General of Prosecution, Lucknow through letter dated 2-9-1987 that when he did not receive the letter of appointment he enquired from Director General of Prosecution, Lucknow and he was informed by letter dated 31st October, 1987 that the District Magistrate, Aligarh had not been asked to select candidates for the post and, therefore, his appointment could not be approved. The action of the Director General of Prosecution has therefore been challenged being illegal and without jurisdiction and a relief of issue of mandamus commanding the respondents to appoint the petitioner on the post of junior clerk in Prosecution, Aligarh has been prayed.

(2.) ON behalf of the respondent, the petition has been contested on the ground that no doubt through latter dated 22-8-1987 the District Magistrate, Aligarh was also asked for the selection of junior clerks in the office of S.D.O. Aligarh and that the name of the petitioner was also recommended by the Selection Committee appointed but the selection of the petitioner was not in accordance with the provisions of rules 16 and 17 as contained in G. O. No. 20/7-1986 Karmik-2, Lucknow dated 8-9-1986 which reads as, follows "For the purpose of recruitment to any post there shall be constituted a Selection Committee as follows : 1. Appointing Authority; 2. An officer belonging to Scheduled Caste, Scheduled Tribe, nominated by the District Magistrate, if the appointing authority or his nominee does not belong to Scheduled Caste/Scheduled Tribe, if the appointing authority or his nominee belongs to Scheduled Caste/Scheduled Tribe, as officer other than belonging to Scheduled Caste/Scheduled Tribe to be nominated by the District Magistrate. 3. Two officers, nominated by the appointing authority, one of whom shall be an officer belonging to minority community. If such suitable officer is not available in his department or organisation such officer shall, on the request of appointing authority, be nominated by the District Magistrate on his failure to do so by reason of non-availability of suitable officer which officer shall be nominated by the Divisional Commissioner".

(3.) HOWEVER, it was further urged that by the subsequent letter dated 25-8-1987 the authority of the District Magistrate, Aligarh to make selection for junior clerks was terminated and therefore the selection by the committee appointed by the District Magistrate, Aligarh, could not legally recommend the names for appointment. This connection is also devoid of merit in view of the decision of the Honourable Supreme Court in the case of A. A. Colton v. The Director of Education, AIR 1983 SC 1143; wherein the power of the Director to make appointment under section 16-F (4) of the U. P. Intermediate Education Act (2 of 1921) in the case of minority institution was taken away by the U. P. Act 26 of 1975 which came into force on 18-8- 1975, where the proceedings for selection of the Principal of an Intermediate College (a minority instituiion) had commenced in the year 1973 and the Deputy Director had disapproved the recommendations made by the Selection Committee twice, the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. Although the Director in that case exercised that power subsequent to 18-8-1975 on which date the amendment came into force, it could not be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to 18-8-1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings.' Therefore, it cannot' be said that the selection list prepared by the Selection Committee submitted by the District Magistrate after 22-8-1987, though the proceeding of selection had commenced from 21-7-1987 and completed on 25-7-1987 after the interview was not with the authority of the Director General of Prosecution and invalid.