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2005 DIGILAW 944 (ALL)

Aman Singh son of Jai Singh v. State of U. P.

2005-05-12

VINEET SARAN

body2005
VINEET SARAN, J. ( 1 ) IN the present day situation, when jobs are less and seekers for the same are many, a fair opportunity of employment is the least what is expected from a public authority. A fair opportunity to apply and compete should be provided to all eligible candidates. Denial of the same, either deliberately or because of sheer negligence, would amount to denial of justice to such persons. ( 2 ) THE moot question in these writ petitions concerns the fairness of the U. P. State Road corporation (for short referred to as the Corporation) with regard to providing a fair opportunity of employment to the petitioners, who are all contract drivers and have worked with the corporation for a reasonably long period. ( 3 ) THIS bunch of writ petitions is a sequel to the earlier set of writ petitions, decided by this Court on 22. 2. 2005, and of which writ petition No. 48316 of 2004 was treated as the leading writ petition. The issue involved earlier also was with regard to the rights of the petitioners who were engaged by the Corporation as drivers on the basis of contract. Such drivers had continued to work with the Corporation for a period ranging from 2 to 8 years. Their engagement had been made on contract basis because there was a ban imposed by the State Government on regular appointments of any fresh drivers. Undisputedly the Corporation needed working hands for driving their buses, and it was at that time when, after adopting some selection process, the corporation had selected drivers who were engaged on contract basis. After the posts of drivers were sanctioned by the State Government on 25. 10. 2004, the Corporation issued an advertisement on 28. 10. 2004 inviting applications for filling up the posts on which the petitioners claimed that they ought to have been regularized or given some relaxation and/or preference. By the Judgment and Order dated 22. 2. After the posts of drivers were sanctioned by the State Government on 25. 10. 2004, the Corporation issued an advertisement on 28. 10. 2004 inviting applications for filling up the posts on which the petitioners claimed that they ought to have been regularized or given some relaxation and/or preference. By the Judgment and Order dated 22. 2. 2005 rendered in writ petition No. 48316 of 2004, this Court had issued directions for looking into the grievances of the petitioners, for which a joint committee of the State Government and the Corporation was to be constituted, and which was to submit its report regarding the relaxation and/or preference which was to be granted to the contract drivers within the ambit of U. P. S. R. T. C. Employees (other than officers)Service Regulation 1981 (for short Regulations of 1981 ). ( 4 ) IN terms of the said judgment dated 22. 2. 2005, the respondents had constituted a Committee which gave its report dated 14. 3. 2005. The same was forwarded on 24. 3. 2005 by the Principal secretary, Transport Department, Government of U. P. to the Secretary, Government of U. P. and the Managing Director of the Corporation for necessary compliance. Thereafter the Corporation issued the advertisement dated 31. 3. 2005 inviting applications from amongst the contract drivers who were also to be considered for appointment as drivers. Aggrieved by the report of the Joint committee and the terms of the advertisement, the petitioners have filed these writ petitions. ( 5 ) WHEN the matter was being heard on merits, Sri Sameer Sharma appearing for the Corporation had raised a preliminary objection that the petitioners have no locus standi to file these writ petitions. On the request of Sri Sharma the preliminary objection was taken up and heard, and by order dated 9. 5. 2005 the preliminary objection was rejected and it was directed that these writ petitions would be heard and decided on merits. ( 6 ) I have heard Sri V. K. Singh and Sri A. K. Singh, learned counsel who have argued on behalf of the petitioners in all the writ petitions and Sri Sameer Sharma who has appeared on behalf of the respondent-Corporation as well as Learned Standing Counsel appearing for the State of U. P. at length, and have perused the record. ( 7 ) THE writ petition No. 28388 of 2005 is treated as the leading petition and the prayer made therein are quoted below: " (a) Issue a writ order or direction in the nature of Certiorari quashing the impugned advertisement dated 31. 3. 2005 published in the daily newspaper "amar Ujala" by the respondent No. 3 (Annexure-6 to the writ petition ). (b) Issue a writ order or direction in the nature of Certiorari quashing the recommendation/report of the joint ommittee constituted in pursuance of the direction of this honble court after calling it, from the respondents Corporation. (c) Issue a writ order or direction in the nature of mandamus directing the respondents corporation to consider the case of the absorption/appointment of the petitioners on the post of regular driver in pursuance of the order and judgment dated 22. 2. 2005 passed by this Honble court. (d) Issue a writ order or direction in the nature of mandamus directing the respondents corporation to consider the case of the petitioners for their absorption/appointment on the posts of regular drivers after relaxing the height, age and other qualifications as well as relaxation, if any, required in the condition of the present working of the petitioners in the Respondents corporation. (e) Issue any other writ order or direction which this Honble court may deem fit and proper under the circumstances of the case. (f) Award cost to the petition in favour of the petitioners. " ( 8 ) THE submissions of the learned counsel for the petitioners may be summarized as under: (1) advertisement dated 31. 3. 2005, having been issued without approval of the State Government and also without the decision of the Board of Directors of the Corporation, is bad in law. and liable to be quashed. (2) The recommendations/report dated 14. 3. 2005 of the Joint Committee is not in consonance with the judgment dated 22. 2. 2005 passed in writ petition No. 48316 of 2004. (3) The conditions set forth in the impugned advertisement dated 31. 3. 2005 are vague and not in conformity with the judgment dated 22. 2. 2005. (4) The petitioners, who are contract drivers, form a distinct class and are entitled to be treated differently vis-a-vis the general candidates, and they would be entitled to be absorbed under a scheme which may be prepared by the Corporation. 3. 2005 are vague and not in conformity with the judgment dated 22. 2. 2005. (4) The petitioners, who are contract drivers, form a distinct class and are entitled to be treated differently vis-a-vis the general candidates, and they would be entitled to be absorbed under a scheme which may be prepared by the Corporation. ( 9 ) AS regards the first submission, the Joint Committee was directed to be constituted under the terms of the judgment of this Court dated 22. 2. 2005 passed in the earlier bunch of writ petitions in which the rights of the contract drivers were considered by this Court; and in terms of the said directions, the Joint Committee of the State Government and the Corporation was constituted, which submitted its report on 14. 3. 2005, pursuant to which the advertisement dated 31. 3. 2005 had been issued by the Corporation. The technical objection is that the approval of the State government and the decision of the Board of Directors of the Corporation were required to be taken as per Regulation 6 of the Regulations of 1981. The submission of Sri Sharma has force that the recommendations of the Joint Committee were not under Regulation 6 but were under regulation 14 of the said Regulations and thus no such approval was required to be taken from the State Government. Even otherwise, in the earlier judgment dated 22. 2. 2005, this Court had taken precaution that to avoid delay due to the prolonged correspondence which may be required for getting the approval from the State Government, a Joint Committee was directed to be constituted comprising of two members nominated by the State Government and two by the corporation. A letter had also been issued by the State Government on 24. 3. 2005 forwarding the recommendations of the Joint Committee for being implemented and carried out. Thus, in my view the technical objection of the approval not having been obtained from the State government does not hold good. With the Principal Secretary of the State Government forwarding the recommendations of the Joint Committee for implementation, in the present circumstances, it would be deemed that the State Government had approved the scheme, even if it were so required to be done. With the Principal Secretary of the State Government forwarding the recommendations of the Joint Committee for implementation, in the present circumstances, it would be deemed that the State Government had approved the scheme, even if it were so required to be done. In any case, the recommendations were made by the Joint committee in terms of the Judgment of this Court and as such the formal approval, even if so required, would not be necessary. Thus, the answer to the first point raised by the petitioners would be in the negative and the advertisement dated 31. 3. 2005 cannot be held to be bad in view of the aforesaid objection. ( 10 ) BEFORE dealing with the second and third submissions, I would first like to take up the fourth submission of the petitioners that they form a separate class and are entitled to be treated differently vis-avis general candidates; and that a scheme be directed to be formulated by the corporation for their absorption. In my view, the same would be outside the scope of this Court, as in the earlier bunch of writ petitions, all the questions with regard to the rights of the petitioners for either being regularized as drivers or being considered for appointment on such posts, had been argued at length and considered by this Court. This specific question of absorbtion (or, as argued by the petitioners, for keeping some posts apart for their appointment), was not raised by the petitioners in their earlier writ petitions. When a person had the opportunity to raise such a question earlier and he chooses not to raise the same, he cannot be permitted to claim such relief in a successive writ petition. The ratio of the Division Bench decision of this Court in the case of Rakesh Kumar Agrawal v. State Bank of India 2003 (3)E. S. C. 1333 holding that "even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief as it would be barred by the principle of constructive res judicata" would squarely apply to this case. Thus this court would not be inclined to go into this question specially when, treating the petitioners (contract drivers) as a distinct class, this Court had already issued directions (vide judgement dated 22. 2. Thus this court would not be inclined to go into this question specially when, treating the petitioners (contract drivers) as a distinct class, this Court had already issued directions (vide judgement dated 22. 2. 2005) in terms of which they were to be considered or selection for the appointment on the post of drivers. ( 11 ) THE second and third submissions of the petitioners are interrelated and are thus being considered together. They are with regard to the recommendations made in the report of the Joint committee dated 14. 3. 2005 as well as the conditions set forth in the advertisement dated 31. 3. 2005 which, according to the petitioners, are vague and not in consonance with the judgment dated 22. 2. 2005. The main grievance of the petitioners is that those whose contracts were alive on the date of sanction of post by the State Government (i. e. 25. 10. 2004), were to be considered by the Committee whereas, by the recommendations made vide report dated 14. 3. 2005 as well as the conditions specified in the advertisement dated 31. 3. 2005, it is provided that the case of only those who were "working at present" alone would be considered and that too after they furnish a certificate to that effect from the Corporation. ( 12 ) THE further objection of the petitioners is with regard to the age of the contract drivers who could apply. The direction was that in case if the contract drivers were within the prescribed age as on the date of their initial recruitment as contract drivers, they may be considered for such appointment. The report of the Joint Committee as well as the advertisement dated 31. 3. 2005 only reiterated that the persons should be within the prescribed age as on the date of initial recruitment, without specifying the prescribed age, which has been varying from time to time. Sri Sharma, however, accepts that the prescribed age for recruitment has been changed during the period when the contract drivers were initially engaged by the Corporation and till the issuance of the advertisement. Prior to 21. 1. 2000, the prescribed age for appointment of drivers was 25 1/2 to 32 years but thereafter the upper age was enhanced from 32 to 35 years. Prior to 21. 1. 2000, the prescribed age for appointment of drivers was 25 1/2 to 32 years but thereafter the upper age was enhanced from 32 to 35 years. The contention of the petitioners is that the terms of the advertisement with regard to age were vague and ambiguous, as in the absence of it being specified as to what was the prescribed age limit from time to time, they were at a loss to understand as to whether they would be entitled to make such application or not. ( 13 ) ON the aforesaid two counts, Sri Sharma has made a statement, on the basis of instructions having been received by him and also as indicated in the counter affidavit of the Corporation, that the intention of the Corporation was always that those contract drivers who were working on the date of creation of the posts were to be considered, and such clarification that those whose contracts were alive as on 25. 10. 2004 could apply for appointment, can be made by issuing a fresh advertisement, in which the anomaly with regard to age can also be clarified. ( 14 ) CONSIDERING the aforesaid submission of the learned counsel for the parties, I am of the opinion that the advertisement is certainly vague and ambiguous on the aforesaid two counts. However, the aforesaid two ambiguities could only be termed as irregularity, and not an illegality that cannot be corrected by the Corporation. ( 15 ) IN such view of the matter, as has been offered by the Corporation, the defects can be cured by issuing a fresh advertisement, for which necessary directions shall be issued in the operative part of this judgement. ( 16 ) BESIDES the above issues which have been raised by the petitioners, Sri Sharma has, on instruction received from his client, submitted that the Corporation is facing grave hardship because of non-availability of drivers, specially at present, as it is the peak season for the corporation, because of the rush of tourists on account of the on going summer vacations. He has submitted that the Corporation has already suffered a loss of Rs. He has submitted that the Corporation has already suffered a loss of Rs. 5 Crores in the current season and in case if, because of non-availability of drivers, they are unable to provide adequate bus service, besides the inconvenience which may be caused to the public at large, the corporation would also suffer further losses which would be impossible to be compensated. Sri sharma has thus urged that the candidature of the petitioners may be left open to be considered by the Corporation in the next phase of selection of further 1500 posts of drivers, which have already been sanctioned by the State Government. In the alternative, it has been pleaded that only some posts, which according to Mr. Sharma should be about 100 out of the total 1400 post already advertised, which may be left for the consideration for appointment of the petitioners and the Corporation may be permitted to appoint drivers on the remaining posts on the basis of the selection held pursuant to the advertisement already issued. The contention of Sri Sharma appears to be justified, but only to some extent. ( 17 ) SRI V. K. Singh, learned counsel for the petitioners, has vehemently opposed this suggestion on the ground that the same would amount to curtailment of the rights of the petitioners in getting appointment, as it cannot be said that there would be only about 100 contract drivers who could be selected for appointment on such posts already advertised. It was further submitted that in case if the Corporation is facing difficulty in plying their buses because of non-availability of drivers, they can always avail the services of engaging the petitioners and other similarly situated persons on contract basis, on the same terms on which they had been working up to 25. 10. 2004. ( 18 ) AS regards the engagement of drivers on contract in case of necessity, the only objection of sri Sharma is that certain statutory deductions are required to be made from the payment which is made by the Corporation to the contract drivers, for which they are required to furnish a bond, which they are refusing to furnish. Accordingly, it is clarified that in case if the Corporation requires the services of such contract drivers, it may take their services on the same terms as were there prior to 25. 10. Accordingly, it is clarified that in case if the Corporation requires the services of such contract drivers, it may take their services on the same terms as were there prior to 25. 10. 2004, subject to the condition that the Corporation shall be at liberty to make the statutory deductions, even though no such bond may be furnished by the contract drivers so engaged. ( 19 ) AS regards granting permission to the Corporation for keeping some posts vacant and filling up the remaining from amongst the candidates who may be selected in pursuance of the earlier advertisements, looking to the urgency of the matter and the circumstances of this case, this court would on principle agree that such permission may be granted. The only question that would require determination is the number of posts, which should be kept vacant. This court does not have the complete data or even the expertise to find out as to how many of the contract drivers now further found eligible to apply, may be finally selected, if permitted to compete with the candidates who are already in the fray: ( 20 ) THIS Court has, however, to balance the equities between the parties with the object to do substantive justice in the matter. The total number of the contract drivers who were working with the Corporation prior to the creation of posts were possibly a few thousand. As per the statement made at the bar by Sri Sharma, from amongst those contract drivers who were eligible and had applied pursuant to the advertisement dated 28. 10. 2004, a few hundred have already been declared qualified in the selection process already held. Probably a large number of contract drivers would further become eligible in terms of this judgment, who would be entitled to participate in the selection process. On considering these circumstances, in my view, it would be just and proper if 400 (four hundred) post of drivers are kept vacant for being considered for appointment alongwith those who have already applied earlier. Thus, in the interest of justice, it is directed that the Corporation be allowed to appoint 1000 (one thousand) drivers on the basis of merit as per the selection held in pursuance of the advertisement dated 28. 10. 2004 (and also the subsequent advertisement dated 31. 3. 2005, as some contract drivers have applied pursuant to this advertisement also ). Thus, in the interest of justice, it is directed that the Corporation be allowed to appoint 1000 (one thousand) drivers on the basis of merit as per the selection held in pursuance of the advertisement dated 28. 10. 2004 (and also the subsequent advertisement dated 31. 3. 2005, as some contract drivers have applied pursuant to this advertisement also ). ( 21 ) IN the light of the above, the following directions are issued: 1. Out of the 1400 posts of drivers already advertised, the Corporation is allowed to appoint 1000 (one thousand) drivers on the basis of merit as per the selection already held in pursuance of the advertisements already issued. 2. If the Corporation requires the services of drivers on contract basis, it may take the services of the petitioners and other similarly situated persons, on the same terms as were there prior to 25. 10. 2004, subject to the condition that the Corporation shall be at liberty to make the statutory deductions, even though no such bond may be furnished by the contract drivers so engaged. 3. The Corporation may issue a fresh advertisement, preferably within 10 (ten) days from today, in which it shall be specified that those contract drivers whose contracts were alive on the date of the sanction of posts of drivers by the State Government, i. e. 25. 10. 2004, shall be entitled to apply, provided that on the initial (late of recruitment on the basis of contract, they were within the age of recruitment at that time. The said advertisement shall also specify the age prescribed by the Corporation from time to time, from the date since they started engaging drivers on contract till 28. 10. 2004. 4. At least ten days time shall be given to the contract drivers to make such application. 5. It is also provided that the contract drivers making such applications shall not, be required to furnish any certificate from any authority of the Corporation to show that their contracts were alive on 25. 10. 2004. However, the applicants shall have to give an undertaking to the effect that their contracts were alive on 25. 10. 2004, and also that they were within the prescribed age as on the date of their initial recruitment. The Corporation shall thereafter verify the authenticity of the undertaking given by the contract drivers making such application. 6. 10. 2004. However, the applicants shall have to give an undertaking to the effect that their contracts were alive on 25. 10. 2004, and also that they were within the prescribed age as on the date of their initial recruitment. The Corporation shall thereafter verify the authenticity of the undertaking given by the contract drivers making such application. 6. If any application is rejected, the Corporation shall communicate the same to the candidate, alongwith the reasons for such rejection, at least three days before the final list of candidates to be considered is prepared. Such final list shall be prepared preferable within a week or ten days of the last date of submission of the applications and the selection process may commence immediately thereafter. 7. The results of the remaining 400 posts shall be declared alongwith all other candidates who were also considered in response to the earlier advertisements. 22. This Judgment and Order shall apply, not only to the petitioners but all other contract drivers who may not have even approached this Court. 23. With the aforesaid observations/directions these writ petitions stand disposed of. No order as to cost. 24. Let a certified copy of this judgment and Order be given to the learned counsel for the parties by 16. 5. 2005, on payment of usual charges. . .