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2003 DIGILAW 2820 (ALL)

AKHILESH KUMAR SINGH v. STATE OF U. P.

2003-12-03

M.KATJU, UMESHWAR PANDEY

body2003
UMESHWAR PANDEY, J. ( 1 ) THE petitioner, a candidate duly selected and recommended for appointment as District panchayat Raj Officer in the Uttar Pradesh Combined State Subordinate Services Examination, 1999 has come up to this Court under Article 226 of the Constitution of India seeking the following reliefs : (i) issue a writ, order or direction in the nature of mandamus commanding the respondents to issue a letter of appointment/posting to petitioner as the District Panchayat Raj Officer. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to ensure that the petitioners prayer for appointment/ posting as District Panchayat Raj Officer is considered. (iii) Issue a writ, order or direction of suitable nature holding that the petitioner is entitled to have the notional seniority with effect from the date when similarly situated candidates have been given appointments. (iv) Issue any other suitable writ, order or direction as this Honble Court may deem fit and proper in the facts and circumstances of the case. (v) award the cost of petition in favour of the petitioner. ( 2 ) IT is contended that the petitioner Akhilesh Kumar Singh appeared in the examination with roll No. 012828 conducted by Uttar Pradesh Public Service Commission. After qualifying for the Interview he got finally selected regarding which the News Paper Notifications dated 7th may, 2000 were published vide Annexures-I and II. He had given preference for the post of district Panchayat Raj Officer and in the result he was shown to have been notified as selected for the said post. The Uttar Pradesh Public Service Commission on the basis of the aforesaid result sent its recommendation to the respondent No. 1 whereafter petitioners police verification and medical examination were also got done by November, 2000. He had been waiting for the appointment call, which he did not receive. It is allegated that the respondents have absolutely no justification not to give appointment to the petitioner. As many as ten candidates were notified as selected for the vacant posts of District Panchayat Raj Officer but out of them only four (two general category, one other backward class and one scheduled caste category) were offered appointments and they have joined. The backward class and scheduled caste candidates, given appointments in pursuance of the competitive examination, are below in the merit list to the petitioner. The backward class and scheduled caste candidates, given appointments in pursuance of the competitive examination, are below in the merit list to the petitioner. The remaining six posts of District Panchayat Raj Officer covered by the advertisement issued for holding examination and subsequent selection, being still in existence, there is no Justification on the part of the respondents either to abolish those posts or to cancel the selection of the remaining six successful candidates. ( 3 ) IT is further contended that since there was delay in the appointment of the petitioner, he made a representation (Annexure-III) to the respondents on 23rd May, 2002. Another representation vide Annexure-IV dated 3. 6. 2002 was also preferred by him but no response was given to it by the respondents. He thereafter, made a representation to the Chief Minister vide letter dated 15. 6. 2002 (Annexure-V ). Later on, on 5. 10. 2002 a detailed representation was made by the petitioner to the Principal Secretary (Karmik ). Government of Uttar Pradesh requesting him to issue necessary orders for the appointment. A representation on the same date was also sent to the Principal Secretary, Panchayat Raj, Uttar Pradesh Government vide Annexure-VII. Thereafter the petitioner got informal information that so long as the quota of reserved category candidates is filled up, no one from the general category would be appointed to the post of district Panchayat Raj Officer. ( 4 ) IN para 15 of the writ petition, it is further contended that the persons below in merit in the select list of the competitive examination have been given appointment on different posts but the petitioner has been ignored. On account of the inaction on the part of the respondents the petitioner has not received the appointment letter to the post of District Panchayat Raj Officer to which he is fully entitled. The said appointment is being withheld by the respondent without any justifiable rhyme and reason. It is alleged that under law, respondents are legally bound to issue appointment order to the petitioner and hence, the petitioner finding no other remedy, has to approach this Court with the aforesaid prayers. The said appointment is being withheld by the respondent without any justifiable rhyme and reason. It is alleged that under law, respondents are legally bound to issue appointment order to the petitioner and hence, the petitioner finding no other remedy, has to approach this Court with the aforesaid prayers. ( 5 ) A counter-affidavit on behalf of respondent No. 1 has been filed contending that though requisition was sent to the Public Service Commission for filling up ten posts of District panchayat Raj Officer by means of direct recruitment in the year 1999 but at that point of time, reorganisation of State of Uttar Pradesh had not taken place and the State of Uttranchal had not been carved out. Therefore, the calculation of vacancies, taking in view to fill up all the posts in all the then 83 districts, had been made. The U. P. Public Service Commission made the selection of ten candidates for the post of District Panchayat Raj Officers, accordingly, in the year 2000 and a recommendation was made. In the meantime, the State of Uttranchal came into existence on 8. 11. 2000. Consequent to that, only four vacancies to the post of District Panchayat Raj officer remained available in the State of Uttar Pradesh and accordingly, from amongst the ten selected/notified candidates by the Uttar Pradesh Public Service Commission, only four were given appointments keeping in view the merit and the reservation criteria. Two general candidates, one other backward class and one scheduled caste candidates were taken in appointment to the four posts of District Panchayat Raj Officer. ( 6 ) IT is further contended that on creation of State of Uttranchal, thirteen (13) posts of District panchayat Raj Officers were allotted to that State, out of which six posts were to be filled up by direct appointment. The Director of Panchayat Raj, Uttar Pradesh, Lucknow vide his letter dated 21. 11. 2001 requested the Secretary, Rajya Samanvay Samiti, Uttranchal for absorption of remaining six candidates on the post of District Panchayat Raj Officers. After that on 4. 1. 2002, the Secretary, Panchayat Raj, Uttar Pradesh Government apprised the Principal Secretary of concerned department of Uttranchal State about the existing state of affairs and requested for the absorption of the petitioner and other selected candidates in Uttranchal State. A reminder to that letter was also sent on 18. 5. After that on 4. 1. 2002, the Secretary, Panchayat Raj, Uttar Pradesh Government apprised the Principal Secretary of concerned department of Uttranchal State about the existing state of affairs and requested for the absorption of the petitioner and other selected candidates in Uttranchal State. A reminder to that letter was also sent on 18. 5. 2002 whereafter the concerned Secretary of Uttranchal State vide letter dated 31. 5. 2002 informed the respondent No. 1 that candidates selected by U. P. Public service Commission could not be given appointment against the vacant posts of District panchayat Raj Officers in Uttranchal State. These letters of the Uttar Pradesh Government and that of Uttranchal State Government have been annexed to the counter-affidavit as annexures-C. A.-2 and C. A.-3. Every possible effort was made by the Government for absorption of the petitioner and other five selected candidates with the Uttranchal State but no success could be achieved. Chief Secretary, Uttar Pradesh also addressed a letter dated 11. 7. 2002 to the Chief Secretary, Uttranchal State for absorbing these six persons in the said State and a reminder to that was also given whereupon the Chief Secretary, Uttranchal vide his letter dated 28. 9. 2002 informed the decision of the Uttranchal State that no candidate selected by Uttar pradesh Public Service - Commission would be acceptable for appointment to the State of uttranchal. These letters have been filed as Annexures-4, 5 and 6 to the counter-affidavit. It is thus contended that the petitioner has absolutely no vested right available with him for Issue of a writ of mandamus in his favour directing the respondents to appoint him to the post of District panchayat Raj Officer in the State of Uttar Pradesh. ( 7 ) THE petitioner has filed a rejoinder-affidavit to the aforesaid contentions made by respondents wherein it is stated that the Uttar Pradesh Government cannot pass its buck on the Uttranchal state Government for giving appointment to the petitioner on the post of District Panchayat Raj officer because the posts notified after selection by the Uttar Pradesh Public Service commission were not the posts of hill cadre and thus, to say that the vacancies, available to the six remaining candidates, for the post of District Panchayat Raj Officer fell in the State of uttranchal on the reorganisation of the State on 8. 11. 2000, has absolutely no justification. 11. 2000, has absolutely no justification. The government Order No. 1760-A/47ka-4-93-28-5-1980, dated 31st January, 1994 enjoins upon the authorities to act in the manner stated therein. On requisition for selection to certain posts when the names of selected candidates against those posts are made available to the department by the Commission, those selected candidates have to be appointed against the requisitioned posts. Those directions have been repeated in Office Order/g. O. No. 1331a/47ka-4-94-28/5/80, dated 24th September, 1994. Thus the petitioner having been selected and recommended by the commission, has to be necessarily given appointment against the notified post of District panchayat Raj Officer. The correspondence in between the State of Uttranchal and the State of uttar Pradesh are of no relevance in this regard and the respondent No. 1 cannot shirk from discharging its responsibility. There are several posts of District Panchayat Raj Officers in State of Uttar Pradesh which are vacant and the petitioner can be inducted against one of it. ( 8 ) WE have heard learned counsel for the parties and have gone through the entire material available on record. ( 9 ) IT has been contended that in the notified result of U. P. Combined State Subordinate Services examination, 1999, the petitioner was duly selected by the U. P. Public Service Commission for appointment to the post of District Panchayat Raj Officer along with 9 other candidates. Only 4 out of 10 such successful candidates for the said post, were given appointment and the respondent with no justifiable cause withheld petitioners appointment and ultimately refused it. ( 10 ) LEARNED counsel for the applicant has further tried to emphasise that any communication between the respondent--U. P. State and the State Government of Uttranchal is of no relevance in the present matter and should not be made a pretext for refusing appointment to the petitioner on the post of District Panchayat Raj Officer on the basis of the select list, prepared and sent by respondent No. 4-U. P. Public Service Commission. ( 11 ) THE correspondence between the State of U. P. and Uttranchal Government which had taken place in this connection are letters Annexures-C. A.-1 to C. A.-6. ( 11 ) THE correspondence between the State of U. P. and Uttranchal Government which had taken place in this connection are letters Annexures-C. A.-1 to C. A.-6. filed with the counter-affidavit and those letters precisely indicate that the Uttranchal Government had expressed its inability to absorb the remaining 6 candidates selected for the post of District Panchayat Raj Officer by the u. P. Public Service Commission, in which the petitioner is one of them. The reliefs claimed by the petitioner in its substance, is to issue a writ of mandamus directing the respondent Nos. 1 to 3, to give appointment to him on the post of District Panchayat Raj Officer in the State of U. P. Therefore, the reference of judgment of State of Uttranchal v. Siddharth Srivastava and Ors. arising out of SLP (C) Nos. 3032-3040/2002, decided on June 5, 2003 by the Supreme Court, has no bearing upon the controversy arising in this case. In the said case, the Apex Court had simply held that the recommendations of U. P. Public Service Commission are not binding to compel the state of Uttranchal to give appointment to the candidates recommended by the U. P. Public service Commission. The contention of the petitioner is that he should be given appointment on the said post of District Panchayat Raj Officer by the Government of respondent No. 1. Thus, there is absolutely no occasion to go into this controversy whether the refusal of absorption of the petitioner by the State of Uttranchal on any such post was right or wrong. ( 12 ) THE petitioners claim is based upon his alleged right to appointment on the basis of recommended select list, sent by the U. P. Public Service Commission to respondent No. 1. It has been held in a catena of legal pronouncements that a candidate whose name is included in the select list, does not get an indefeasible right for appointment on the basis of the recommendations made by the Public Service Commission. The Supreme Court in the case of vinodant and Ors. v. University of Calicut and Ors. (2002) 4 SCC 726 , has observed in para 14 of the judgment as below : "the principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedent. The Supreme Court in the case of vinodant and Ors. v. University of Calicut and Ors. (2002) 4 SCC 726 , has observed in para 14 of the judgment as below : "the principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedent. Even if vacancies exist, it is open to the authority concerned to decide how many appointments should be made. " ( 13 ) LIKEWISE, the Apex Court in S. Renuka and Ors. v. State of A. P. and Anr. , (2002) 5 SCC 195 , has reiterated the same thing by observing that no right accrues to a person merely because a person is selected and his or her name is put on a panel. ( 14 ) LEARNED counsel for the petitioner, in this context itself has again, relied upon the above mentioned Judgment of the Supreme Court in the case of Uttranchal v. Ravindra Pratap Singh and Ors. (supra) wherein it is observed that though it is settled law that a candidate included in the select list does not get indefeasible right for appointment on the basis of recommendation made by the Public Service Commission but at the same time, the Government has no absolute right to reject the recommendation and refuse the appointment to such recommended candidate without a valid reason. In the present case the reasons for not giving appointment to this direct recruit (petitioner) on the post of District Panchayat Raj Officer, have been detailed in para 4 of the counter-affidavit ; wherein it is stated that 13 posts of District Panchayat Raj Officer, on creation of Uttranchal State (8. 11. 2000), were allocated to this State out of which 6 posts were to be filled in by direct appointment. It was under these circumstances that out of the notified vacancies of 10 posts to be filled up by the selected candidates of U. P. Combined State subordinate Services Examination, 1999, only 04 posts for direct recruits remained with the respondent U. P. State against which 02 general candidates and 02 candidates of the reserved category were given appointment from the select list. It is obvious that certain posts of District panchayat Raj Officer are available to the direct recruits whereas certain posts are earmarked for the promotee officers. It is obvious that certain posts of District panchayat Raj Officer are available to the direct recruits whereas certain posts are earmarked for the promotee officers. Since the 06 direct recruits posts of District Panchayat Raj Officers had been allocated to the Uttranchal State, such number of posts in the U. P. State cadre had been consequently reduced. Annexures-C. A.-1 to C. A.-6 make it clear that all sincere efforts were made by the respondent-Government of U. P. to get the petitioner and other selected candidates on these posts adjusted in the State of Uttranchal, but no success could be achieved. As such for the aforesaid reasons, the petitioner has not been given appointment on the post of District panchayat Raj Officer. This definitely appears to us to be a sound and valid reason for not giving appointment to the petitioner on one of the aforesaid posts. There is no arbitrariness reflected from the conduct of the respondent in not giving appointment to the petitioner and as such issue of writ of mandamus under Article 226 of the Constitution of India, in this context does not appear to be warranted. ( 15 ) IT is also contended in para 15 of the petition, that a person-below in merit of the select list prepared on the basis of the aforesaid U. P. Combined State Subordinate Services Examination, 1999 have been given appointment on other posts whereas the petitioner has been left out. The learned counsel for the applicant, in his submissions before us has tried to emphasise that the candidates who were below the petitioner in merit list and had been selected for other posts for which they had given their options, have been appointed on those posts whereas the petitioner who had given his option for the post of District Panchayat Raj Officer has not been appointed against one of those posts. If it was not possible for the respondent to give appointment to the petitioner on the said post of District Panchayat Raj Officer, he could have been appointed on one of the other posts on which the person below him in merit is accommodated. If it was not possible for the respondent to give appointment to the petitioner on the said post of District Panchayat Raj Officer, he could have been appointed on one of the other posts on which the person below him in merit is accommodated. ( 16 ) IN the first place, it may be mentioned that the petitioner while pleading so in para 15 of the petition that even the persons below to him in merit list have been given appointment, he has not mentioned the names of such candidates who were holding lower position in the merit list than the petitioner and were given appointment. The petitioner has further not pleaded as to if he had given his choice also for those posts, on which such people below to him in merit, have been adjusted. The details of those posts have also not been pleaded. The petitioner has not impleaded those candidates below to him in merit list as respondents to this petition. As such a mere vague statement in the petition that persons below to the petitioner in the merit list have been given appointment on the other posts, has absolutely no foundation and does not attract our consideration for the purpose of issuing of writ of mandamus under Article 226 of the constitution of India. ( 17 ) THE Supreme Court in Bharat Singh and Ors. v. State of Haryana and Ors. , AIR (1988) SC 2181, in para 13 has propounded as below : "in our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. " ( 18 ) THE Apex Court in case of Ram Narain Arora v. Asha Rani and Ors. , (1999) 1 SCC 141 , in para 11 propounded the law as below : "there cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. " ( 18 ) THE Apex Court in case of Ram Narain Arora v. Asha Rani and Ors. , (1999) 1 SCC 141 , in para 11 propounded the law as below : "there cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. It is no doubt true that if the pleadings are clearly set out, it would be easy for the Court to decide the matter. But if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the Court, neither party is prejudiced. " ( 19 ) LIKEWISE Supreme Court in the case of National Buildings Construction Corporation v. S. Raghunathan and Ors. , AIR 1998 SC 2779 , in para 31 has again confirmed the same principle as below : "incidentally, in this case, the question of legitimate Expectation was not raised in the petition and no foundation was laid in the pleadings for such a plea being advanced before the Court. Strangely the High Court allowed this plea at the stage of argument and allowed the petitions only on the ground of legitimate Expectation without least realizing that there was hardly any legitimacy in the claim of the respondents. In the absence of pleading and the affidavit of the respondents in support thereof, the whole exercise done by the High Court cannot but be termed to be speculative. " ( 20 ) THE Apex Court has further reiterated the same view in case of Larsen and Toubro Ltd. etc. v. State of Gujarat and Ors. , AIR 1998 SC 1608 and has observed in para 10 as below : "in the absence of any allegation that Rule 3 had not been complied and there being no particular in respect of non-compliance of Rule 4 also, it is difficult to see as to how the High court could have reached the finding that statutory requirements contained in these rules were not fulfilled before issuance of notification under Section 4 and declaration under Section 6 of the Act. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied in the face of the record of the case. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied in the face of the record of the case. Rather, it returned a finding which is unsustainable that it was not possible on the basis of the material on record to hold that there was compliance with the Rules 3 and 4. " ( 21 ) IN the aforesaid view of matter, when it is apparent that the petitioner has not given the details of these posts and the candidates who were appointed and that they were below him in the merit list, it cannot be said that he has succeeded in proving the said fact to entitle him for the issue of a writ of mandamus, as prayed. If the petitioner is given a relief and the respondents are directed to appoint him on any other post than that of District Panchayat Raj Officer over which a candidate below to him in the merit list, is given appointment on the basis of the same competitive examination, it may entail the retrenchment of the said candidate already given appointment on the said post. As a consequence to the relief granted, such retrenched officer will be definitely aggrieved. An order prejudicing a person cannot be passed without hearing him. It would be in utter violation of the principles of natural justice. The petitioner has not impleaded such candidates below to him in the merit list as parties to this petition. The petition is, thus, bad in law. ( 22 ) ON the aforesaid facts and circumstances of the case, the petitioner does not deserve the grant of reliefs as he has claimed and the petition is liable to be dismissed. ( 23 ) THE petition is hereby dismissed with no order as to costs. .