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2004 DIGILAW 587 (ALL)

Kamlesh Kumar Singh v. State of U. P.

2004-03-16

I.M.QUDDUSI

body2004
JUDGMENT : I.M. Quddusi, J. Heard learned Counsel for the Petitioner, learned standing counsel for the State of U.P. and perused the record. 2. By means of this writ petition the Petitioner has prayed for issuance of a writ, order or direction in the nature of certiorari quashing the impugned order dated 6.9.2000 passed by the Secretary, U.P. Shashan, Lucknow (Karmik Anubhag 3) on the representation of the Petitioner. 3. Brief facts of the case are that the Petitioner who belongs to Schedule Caste had applied for the post of Nayeb Tehsildar/Assistant Consolidation Officer/District Youth Welfare and Pradeshik Vikas Dal Adhikari/Deputy Jailer/Entertainment Tax Inspector/Kshetriya Yuva Kalyan and Pradeshik Vikas Dal Adhikari/ Welfare Superintendent (labour court) in pursuance of the advertisement dated 7.10.1995 and so on, in order of preference. The Petitioner could not file any medical certificate alongwith his application which was required for the post of Dy. Jailor. The selection was held by the Uttar Pradesh Subordinate Services Selection Commission, Lucknow. The Petitioner got 607 marks. The candidates below in merit were given appointment in different posts. The Petitioner was declared selected under Scheduled Caste quota on the post of Deputy Jailor but he was not found medically fit for the same, as such, he could not be given appointment on that post. The commission, however, assured the Petitioner that some other post according to his merit shall be allotted to him from amongst the posts for which he has given option in his application form after receipt of information from different departments about vacant number of posts. When no appointment was offered to the Petitioner, he filed a Writ Petition No. 3587(S/S) of 1998 in this Court and this Court vide judgment and order dated 14.12.1999 allowed the writ petition with the direction to the opposite parties to consider the case of the Petitioner in case any vacancy exists on account of non-joining of the candidates against any of the post for which the Petitioner had given option in his application form. 4. The Petitioner while submitting the copy of the judgment and order dated 14.12.1999 made representation to the authorities concerned stating therein the fact that seven posts of Assistant Consolidation Officer and three posts of Welfare Superintendent belonging to Schedule Caste are lying vacant on account of non-joining of selected candidates. 4. The Petitioner while submitting the copy of the judgment and order dated 14.12.1999 made representation to the authorities concerned stating therein the fact that seven posts of Assistant Consolidation Officer and three posts of Welfare Superintendent belonging to Schedule Caste are lying vacant on account of non-joining of selected candidates. Thus, these posts are available for filling up in pursuance of the selection and he should be offered appointment in pursuance of judgment referred to hereinabove. 5. The opposite parties rejected the representation, inter alia, on the ground that the appointing authorities of concerned departments did not inform the vacancies so occurred due to non-joining of candidates to the commission within one year from the date of recommendation by the commission. It has also been mentioned that even if the information about the vacancies had been received from different departments within one year, no other post could be allotted to him on reshuffling as the Petitioner had obtained marks less than that of the last selected candidate for other posts. This has been made clear by indicating that the last selected candidates for the post of Assistant Consolidation Officer obtained 612 marks and for the post of Welfare Superintendent also belonging to Schedule Caste obtained 608 marks. 6. Learned Counsel for the opposite parties has submitted that the U.P. Subordinate Services Selection Commission Act was repealed on 28.12.1997 and since the commission is not in existence, it is not possible to allot any other post to the Petitioner. 7. The learned Counsel for the Petitioner has contended that the commission has allotted posts to the candidates from waiting list against the posts for which the appointing authorities in other departments have sent their requisition but the commission could not allot any post to the Petitioner as the Consolidation Commissioner and the Labour Commissioner did not send requisition for posts remained vacant on account of non-joining of selected candidates although the commission had promised to allot one post to him on receipt of information regarding such vacancies from the concerned appointing authorities for which Petitioner has given option. It has been further submitted that in case of Welfare Superintendent the last selected candidate with Roll No. 30164129 has been given appointment. It has been further submitted that in case of Welfare Superintendent the last selected candidate with Roll No. 30164129 has been given appointment. Three selected candidates with Roll No. 30173805, 30047378 and 30003970 have not joined and the Petitioner is at serial No. 2 in order of merit after the last selected and appointed candidate on the post of Welfare Superintendent and as such he was entitled for appointment after the appointment of last selected candidate for the post of Welfare Superintendent, if the concerned departments had sent requisition for vacant posts he would have been offered one post in accordance with rules. He has further contended that this Court has already ordered to keep one post of Assistant Consolidation Officer vacant during the pendency of this writ petition. Besides this, in alternative the Petitioner is entitled for appointment against any of the two posts of Welfare Superintendent on which the above named two candidates did not join. 8. Learned Counsel for the Petitioner has placed reliance on the case law laid down by the Apex Court in Jai Narain Ram Vs. State of U.P. and others, AIR 1996 SC 703 , in which the Hon'ble Supreme Court has held as follows : Right to seek appointment to a post under Article 14 read with Article 16 (1) and (4) is a constitutional right to equality. The State failed to perform its constitutional duty to requisition the PSC to recommend the next qualified persons to the post reserved for Schedule Castes. Under these circumstances the denial of appointment to the Appellant and 3 others above him is unconstitutional. Therefore, the Respondent are not justified in denying the claim of the Appellants for the appointment to the above posts. 9. The stand of the State that the Petitioner cannot be considered for appointment since he had received lesser marks than last selected candidate is not justified in the facts and circumstances of the present case. The case of Petitioner is not that he had preferential right for appointment over last selected candidate but his specific case is that when posts due to non-joining of selected candidates are available the same are to be offered to the candidates just below in merit than the last appointed candidate. The case of Petitioner is not that he had preferential right for appointment over last selected candidate but his specific case is that when posts due to non-joining of selected candidates are available the same are to be offered to the candidates just below in merit than the last appointed candidate. It is on record that the last selected candidate for the post of Welfare Superintendent had secured 608 marks and Petitioner had secured 607 marks and 3 selected candidates did not join on their respective posts as such Petitioner who was just below in order of merit was entitled for appointment in view of available vacancies. 10. The stand of the State that cadre of Welfare Superintendent is likely to be declared as dying cadre as such appointment cannot be given to the Petitioner is unfounded and cannot be accepted. When the State has made selection for appointment on the said posts and have also made appointments in pursuance of the selection. Such plea is not justifiable for the purpose to deny appointment to the Petitioner who is staking his claim on the basis of his merit on the same selection. 11. Further the plea of the opposite parties that the commission has been dissolved and as such names of remaining selected candidates cannot be requisitioned from the commission is also not sustainable in the eye of law in view of the fact that after abolition of commission, merit list already prepared by the commission could not become inoperative. More so when after abolition of commission some more names were requisitioned from the commission in respect of selection in question and the office of the commission had sent more names as the merit list was well available in the office of commission from which the names were sent. Therefore, likewise more names could have been requisitioned from the merit list prepared by the commission. 12. In the case of Miss Neelima Shangla, Ph. D. Candidate Vs. State of Haryana and Others, AIR 1987 SC 169 , the Hon'ble Apex Court has held as under : The Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withhold the names of any qualified candidates. The duty of the Public Service Commission is to make available to the Government a complete list of qualified candidates arranged in order of merit. The duty of the Public Service Commission is to make available to the Government a complete list of qualified candidates arranged in order of merit. Thereafter the Government is to make the selection strictly in the order in which they have been placed by the commission as a result of the examination. The names of the selected candidates are then to be entered in the register maintained by the High Court strictly in that order and appointments made from the names entered in that register also strictly in the same order. It is, of course, open to the Government not to fill up all the vacancies for a valid reason. The Government and the High Court may, for example, decide that though 55 per cent is the minimum qualifying mark, in the interests of higher standards, they would not appoint anyone who has obtained less than 60 per cent of the marks. Something of that nature happened in State of Haryana v. Subhash Chander Marwah and Ors. In that case, though the rules prescribed a minimum of 45 per cent of the aggregate marks to be qualified for appointment as a Subordinate Judge, the High Court and the Government decided not to appoint candidates who had secured less than 55 per cent marks. The result was that although there were a large number of vacancies, only a few candidates were selected for appointment. The selection was challenged on the ground that it could not be so restricted when qualified candidates were available. This Court rejected the submission and upheld the selection. However, as we said, the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. There must be a conscious application of the mind of the Government and the High Court before the number of persons selected for appointment is restricted. Any other interpretation would make Rule 8 of Part D meaningless. In the present case, though the rules required the Public Service Commission to publish the result of the examination and, apparently, also to communicate the result to the Government, the Public Service Commission did not publish the result in the first instance and sent only the names of 17 candidates belonging to general category to the Government, though many more had qualified. That was wrong. That was wrong. The names of all the qualified candidates had to be sent to the Government. The reasons given by the Public Service Commission for not communicating the entire list of qualified candidates to the Government is that they were originally informed that there were only 28 vacancies. That is not a sound reason at all. Under the "Rules relating to the appointment of Subordinate Judges in Haryana", the Public Service Commission is not concerned with the number of vacancies at all. Nor is it expected to withhold the full list of successful candidates on the ground that only a limited number of vacancies are available. The Government of Haryana has taken the stand that they were unable to select and appoint more candidates as the names of only a few candidates were sent to them by the Public Service Commission. It now transpires that even before the Public Service Commission sent its truncated list to the Government, the High Court had already informed the Government that there were more vacancies which required to be filled. The Government not knowing that the names of several candidates who were qualified had been withheld from the Government by the Service Commission wrote to the Service Commission to hold a fresh competitive examination. If the Government had been aware that there were qualified candidates available, they would have surely applied Rule 8 of Part D and made the necessary selection to be communicated to the High Court. The net result is that qualified candidates, though available, were not selected and were not appointed. Miss Neelima Shangla is one of them. In the view that we have taken of the rules, Miss Neelima Shangla is entitled to be selected for appointment as Subordinate Judge in the Haryana Civil Service (Judicial) Branch. By an interim order of this Court, one post of Subordinate Judge has been kept vacant for her. We direct the first Respondent (Government of Haryana) to include the name of the Petitioner (Miss Neelima Shangla) in the 1984 list of candidates selected for appointment as Subordinate Judges in the Haryana Judicial Service (Judicial Branch) and forward the same to the High Court of Punjab and Haryana for inclusion in the High Court register maintained under Rule 1 of Part D of the Rules. She will be entitled to her due place in the seniority list of the 1984 batch. She will be entitled to her due place in the seniority list of the 1984 batch. The Petitioner will be entitled to her costs which we quantify at Rs. 5,000. 13. In view of the above facts and circumstances of the case this Court has come to the conclusion that the decision on the representation of the Petitioner is liable to be quashed and writ petition is liable to be allowed. 14. In the result, the writ petition is allowed. The decision made by the Secretary, U.P. Shashan, Lucknow on the representation of the Petitioner dated 6.9.2000, is hereby quashed. Opposite party No. 1 is directed to consider to allot one of the posts, i.e., of Welfare Superintendent or Assistant Consolidation Officer to the Petitioner in the light of the decision of the Hon'ble Apex Court in the case of Miss Neelima Shangla (supra) as quoted above. 15. The above order shall be complied with by the opposite parties within a period of three months from the date of production of a certified copy of this order.